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Judgment
PER SATBEER SINGH GODARA, JM
This assessee’s appeal for assessment year 2010-11, arises against the Commissioner of Income Tax (Appeals) [in short, the “CIT(A)”], Rohtak’s order dated 13.01.2020 passed in case No. 392/2017-18, involving proceedings under section 144/147 of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’).
Heard both the parties. Case file perused.
Coming to the impugned section 68 addition of unexplained cash credits amounting to Rs.30 lakhs, we note that the CIT(A)’s detailed discussion confirming the assessment findings to this effect, reads as under:
“6.I have carefully considered the facts of the case, assessee's submissions, assessment order, remand report of the AO and find that:
6.1The assessee had not filed his return of income for the A.Y. 2010-11. As per information available with the department the assessee has deposited cash of Rs.72,51,000/- with SBOP, Rohtak during the F.Y.2009-10 relevant to A.Y. 2010-11. Later on, the A.O. completed the assessment u/s 144 of the IT Act at an income of Rs.72,51,000/-by making an addition of Rs.72,51,000/- on account of unexplained cash deposits in his saving bank account.
6.2During the appellate proceedings, the submissions of the assessee regarding receipt of Rs 1,59,56,000/- was found deposited in his a/c and it was verified that it was received on acquisition of land. Assessee's submission regarding advanced made to Megha Sharma, Neha Sharma and Radhe Sham Sharma through banking channel of Rs 12,50,000/-, Rs 25,00,000/- and Rs 28,00,000/- are also found verifiable, so the interest income from advances of Rs 2,47,000/- is found acceptable as shown in the cash flow statement. The cash withdrawal of Rs 36,30,000/- from SBI is also verifiable from the bank statement and benefit of availability of cash for the deposits made in the bank a/c, to this extent can be given to the assessee. As per the cash flow statement Rs 35 lacs is shown as gift received on 18.01.2010 from wife Smt. Rajwanti and in respect of this gift assessee has submitted that the plot purchased from HUDA was to be sold to Sube Singh for Rs 50 lacs, who gave her the advance of Rs 35 lacs. In support of this he has submitted affidavit and documents to show creditworthiness of Sube Singh and a valuation report to show the land value as Rs 50 lacs. A perusal of the documents submitted show that assessee's wife had purchased the HUDA plot for Rs 18,08,500/- on 02.09.2009 from Veena Vaid and it is a capital asset situated within M.C. area. It is not understood how the value of plot within 4 months has become Rs 50 lacs. No documentary evidence to show that the actual value of land is Rs 50 lacs for this plot has been furnished. The Valuation Report is not by a Valuer approved/Regd. with IT Deptt. and no sale instance has been relief upon while working out the valuation. He has simply mentioned in the Valuation Report that the land rate adopted is Rs 22,500/- per sq. mtr. and it is the FMV. The basis is real estate consultant market report but no copy of such report has been enclosed. Sh. Sube Singh files ITR and has given an affidavit but the sale agreement is not registered and surprisingly on the photo copy of this document the signature of witness are not there. The submission that Sh. Sube Singh had withdrawn Rs 35 lacs on a given date i.e. 21.08.2009 and gave it to the assessee's wife on 18.01.2010 is not substantiated by any documentary evidence on the date 21.08.2009, Smt. Rajwanti was not even in possession of the plot which is brought only on 02.09.2009. It is strange that a person withdrawal exactly the same amount i.e. Rs 35 lacs prior to the date on which assessee's wife purchases a plot for Rs 18 lacs and the agreement is done in January, 2010. It is likely that Rs 35 lacs was spent by Sh. Sube Singh for some other purpose. The date of registry of this agreement and its copy has not been submitted till date i.e. 9 years after the sale agreement which shows that this is all a madeup story with no evidence. As per the cash flow statement and bank statement there is negative cash balance as gift received from his wife is not substantiated. Therefore it is held that assessee has not been able to establish the source of Rs 30 lacs shown to have been deposited in the bank a/c from receiving gift from his wife on 18.01.2010. Thus addition of Rs 30 lacs being undisclosed cash deposits is hereby confirmed as the assessee has failed to discharge the onus of proving the source of this money.”
Both the parties vehemently reiterate their respective stands. We make it clear that the assessee has all along attributed source of his impugned cash credits as a gift came from his wife Smt. Rajwanti, who in turn, had all along filed her detailed supportive evidence that it represented an advance against HUDA plot coming from her vendee, Sh. Sube Singh (supra). Learned counsel has further invited our attention to the assessee’s detailed paper-book running into 36 pages wherein not only he had filed all the source details of his wife’s vendee, Sh. Sube Singh but also the HUDA plot allotment etc.
The Revenue’s case on the other hand is that the CIT(A)’s above extracted detailed discussion has examined the entire issue at threadbare whilst raising very serious doubts on the assessee’s aforesaid explanation.
We have given our thoughtful consideration to both the assessee’s as well as the Revenue’s detailed vehement submissions at length. We find no reason to express our agreement with either party’s stand in entirety. This is for the precise reason that although the assessee has tried to explain the source of the impugned cash deposits as cash gifts coming from his wife Smt. Rajwanti as in the nature of advances received from Sh. Sube Singh for the plot in question, it is indeed against the test of human probabilities in light of Sumati Dayal Vs. CIT (1995) 214 ITR 801 (SC), CIT Vs. Durga Prasad More (1971) 82 ITR 540 (SC) and PCIT Vs. NRA Iron & Steel Co. (2019) 412 ITR 161 (SC) that the latter would pay total advances of Rs.35 lakhs in cash without even getting the sale deed registered for years which finally culminated in cancellation of the deal. We thus express our complete agreement to the Revenue’s vehement contention. The fact also remains that both the learned lower authorities have nowhere considered the assessee’s socio-economic status all along as well as his past savings etc. which could not be denied although he has nowhere pleaded and proved the same to their satisfaction during assessment as well as lower appellate proceedings.
Be that as it may, we are of the considered view in these peculiar facts that a lumpsum addition of Rs.10 lakhs only in the assessee’s hands would be just and proper with a rider that the same shall not be treated as a precedent. The assessee gets relief of Rs. 20 lakhs in very terms. Necessary computation shall follow as per law.
This assessee’s appeal is partly allowed.