Professional Income Not become Unexplained merely for Deposit in SBNs

Shobha Tomar Vs DCIT (ITAT Jaipur)

Cash deposits from professional Income during Demonetization could not be considered as unexplained merely because it was deposited in form of SBNs

In the above mentioned case, the Hon’ble ITAT noted and held that cash balance and professional income offered was duly reflected in regular books of account of assessee, also cash which was recorded in cash book was not doubted by AO, furthermore, considering month wise receipt as compared to previous year, cash on hand regularly shown by assessee with that of cash receipt did not reflect sudden hike

Thus, once source from regular books was considered as explained and assessee had merely deposited that sourced income in SBNs, that income could not be considered as unexplained within provision of section 68 Furthermore, Since cash was already considered as professional income, same could not be a base while making addition of income that had already been offered and substantiated with evidence and reflected in returned income by assessee.

FULL TEXT OF THE ORDER OF ITAT JAIPUR

The present appeal is filed by assessee, because the assessee is aggrieved with the finding recorded in the order of the Commissioner of Income Tax (Appeals)-4, Jaipur dated 23/02/2024 [here in after (ld. CIT(A)]. The appeal relates to the assessment year 2017-18. The order of the ld. CIT(A) is passed because the assessee has preferred an appeal against the assessment order dated 31.12.2019 passed under section 143(3) of the Income Tax Act, by DCIT, Central Circle-01, Jaipur.

2. Assessee has challenged the order of the ld. CIT(A) on the following grounds: –

“1. Ld. CIT(A), has erred in law and on facts in sustaining addition of Rs.80,96,000/- out of total addition of Rs.99,96,000/- for the deposits of demonetized currency notes in bank a/c. out of explained sources i.e. out of b/f. cash balance and from practice income as Gynecology Doctor, appearing in audited books of account, duly examined and accepted without application of provisions of section 145(3) of Act.

2. Ld. CIT(A) was not justified in allowing only partial relief of Rs. 19,00,000/- out of total addition of Rs.99,96,000/- under sec. 68 of I.T. Act made by the Id. AO by avoiding the fact that from total practice income of Rs. 1,73,27,300/-, major part was deposited in bank a / c after declaration of demonetization of currency notes.

3. Ld. CIT(A) has erred in accepting but not disposing of the ground of appeal in respect of levy of special rate of tax under sec. 115BBE of I.T. Act for the debit side of cash book (deposits in bank a/c) whereas credit side i.e. receipts from practice income was accepted as genuine.”

3. Succinctly, the fact as culled out from the records is that the assessee e-filed her return of income on 07.11.2017 declaring total income at Rs. 1,74,96,020/- for the AY 2017-18. The case of the assessee was selected manually for scrutiny as per instruction no. 4/2018 dated 20.08.2018 for cash deposit during the demonetization, after taking approval from Pr. CIT (Central) Jaipur on 25.09.2018. Notice u/s 143(2) was issued to the assessee on 26.09.2018. The assessee complied the notices and questionnaire issued during the assessment proceeding and submitted the details called for. The assessee is a Gynecologist by profession and had also income from investment activity.

3.1 During the assessment proceeding the ld. AO noted that the assessee has deposited cash aggregating to Rs. 99,96,000/- during the demonetization between 09.11.2016 to 30.12.2016 in the form of specified bank notes (SBNs). The ld. AO asked the assessee to submit various details and comparison of cash deposits of preceding two years. The assessee has furnished comparative chart of cash deposited in preceding two years. In support of the SBNs deposited in the bank account the assessee also filed the cash book. On perusal of cash book ld. AO noted that the assessee has not mentioned any narration regarding the patients from whom consultation fees has been furnished. The assessee has also not explained the sudden spike in the cash deposits post demonetization. Therefore, for these reasons a show cause notice dated 18.12.2019 was issued to the assessee. The assessee vide letter dated 20.12.2019 filed the detailed reply contending that each and every deposit of cash in bank is out of disclosed sources, appearing in regular books of account which are also audited u/s. 44AB of the Act. The assessee also explained that there was an opening cash balance available with the assessee for Rs. 18,45,420/-. There is an increase in the returned income for an amount of 25,52,460/-compared with last year. If both that aspect of the matter is considered and keeping in mind that the assessee is a medical practitioner, the deposit of cash for an amount of Rs. 99,96,000/- is nothing but out of the professional income and cash balance available to her in the beginning of the year.

3.2 The ld. AO has considered the explanation of the assessee but not found acceptable because,

(a) the assessee has not furnished the details of patients from whom the consultancy fees was received in cash,

(b) April 2016 to October 2016 the assessee has deposited only Rs. 60,31,700/-, whereas the same spiked in November and December to Rs. 99,96,000 as the assessee not in seasonal business the spike is not acceptable,

(c) the assessee has not given any reason to justify such spike in cash deposit and there is no justification for sudden jump in practice,

(d) evidence also emerge that the group has huge amount of unaccounted cash and thus, the genuineness of the argument of the assessee was not accepted.

Based on these observations the ld. AO considered Rs. 99,96,000/- as income as per provision of section 68 of the Act.

4. Aggrieved from the order of the assessment, assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant finding of the ld. CIT(A)/NFAC is reiterated here in below:

“Decision:-

From the analysis of the relevant facts brought on record by the parties it can be seen that the appellant is a doctor. Also, there is no reasonable justification for the sudden spike in cash deposits post demonetization. Appellant has not submitted any evidences/documents regarding higher cash balance other than the cash book prepared by the appellant. During the appellate proceedings the appellant has submitted cash book on 25.02.2021 and further submitted the cash book on 22.02.2024. On perusal of both cash book it is found that there are differences in consultancy fees mentioned in both cash book on number of occasions and thus not reliable. Further, on perusal of cash book (submitted on 22.02.2024) it is found that the appellant, during the period of 01.04.2016 to 13.11.2016, has shown consultation fees on daily basis between 50000/- to 90000 /- per day. But during the period of 14.11.2016 to 31.03.2017 she has shown the same between 11 ,500/- to 25 ,500/^ – Further if the monthly practice income data is compared with the monthly cash deposit the following picture emerges:-

The appellant has shown regular increase in the monthly closing balance of cash in hand and as shown in closing balance of rupees 94,87,418 at the end of October 2016. However the cash deposited in bank and the practice income shown on month-to-month basis is without any co-relation as the cash deposited in bank has not increased and has not matched the closing cash in hand shown by the appellant.

The Hon’ble Supreme Court in the case of Sreelekha Banerjee v. CIT [1963] 49 ITR 112 has observed as under:

“If there is an entry in the account books of the assessee which shows the receipt of a sum on conversion of high denomination notes tendered for conversion by the assessee himself, it is necessary for the assessee to establish, if asked, what the source of that money is and to prove that it does not bear the nature of income. The department is not at this stage required to prove anything. It can ask the assessee to produce any books of account or other documents or evidence pertinent to the explanation if one is furnished, and examine the evidence and the explanation. If the explanation shows that the receipt was not of an income nature, the department cannot act unreasonably and reject that explanation to hold that it was income. If, however, the explanation is unconvincing and one which deserves to be rejected, the department can reject and draw the inference that the amount represents income either from the sources already disclosed by the assessee or from some undisclosed source. The department does not then proceed on no evidence, because the fact that there was receipt of money is itself evidence against the assessee, There is thus, prima facie, evidence against the assessee which he fails to rebut, and being unrebutted, that evidence can be used against him by holding that it was a receipt of an income nature. The very words ‘an undisclosed source’ show that the disclosure must come from the assessee and not from the department.”

(emphasis supplied)

It is further observed in this case by the Hon’ble Supreme Court as under:-

In the present case, the assessee claimed that the high denomination notes were a part of the cash balance at the head-office. The Income-tax Office found that at first the cash on hand was said to be Rs. 1,62,022, but on scrutiny, it was found to be wrong. Indeed, the assessee himself corrected it before the Appellate Assistant Commissioner and stated there that the balance was Rs. 1,21,875. Ordinarily, this would have prima facie proved that the assessee might have kept a portion of this balance in high denomination notes. But the assessee failed to prove this balance, as books of the assessee did not contain entries in respect of banks. Though cash used to be received from banks and sent to the various places where works were carried on and vice versa, no central account of such transfers was disclosed. There was also no account of personal expenses of the assessee and he had failed to prove why such large sums were kept on hand in one place when at each of the places where work was carried on, there were banks with which he had accounts.  The Appellate Assistant Commissioner also went into the question and found that on the same day when the high denomination notes were encashed, a sum of Rs. 45,000 was drawn by cheque.

The next remittance immediately afterwards was of Rs. 16,000 to Bokaro, but Rs. 17,000 were withdrawn a few days before to meet this expense. A withdrawal of Rs. 8,000 was made a day later and Rs. 20,000 were withdrawn ten days later to finance the business. It appears that the money on hand (Rs. 45,000) was not touched at all, but on January 30, 1946, a further sum of Rs. 6,005 was withdrawn and not utilised, which made up the sum of Rs. 51,000 for which the high denomination notes were encashed.

On these facts, the Tribunal came to the conclusion that the high denomination notes represented not the cash balance but some other money which remained unexplained, and the Tribunal treated it as income from some undisclosed source. The High Court held on the above facts and circumstances that there were materials to show that Rs. 51,000 did not form part of the cash balance, and the source of money not having been satisfactorily proved, the department was justified in holding it to be the assessable income of the assessee from some undisclosed course. In this conclusion, the High Court was justified, regard being had to the principles we have explained above.

Some of the important factual-legal relevant questions emerging from the above judgement are as under:-

Question of justification of keeping large sums on hand whereas the facility of withdrawing cash was available at the time and place it was required.

The above is from the observation “failed to prove why such large sums were kept on hand in one place when at each of the places where work was carried on, there were banks with which he had accounts”

It is not the case that the appellant had some specific purpose for which the large cash was maintained. No such verifiable information has been placed on record. Further more, the availability of cash in hand is shown from the practice income and it is not the case that the cash was withdrawn from the bank if it was required for some specific purpose, as if there were some specific purpose in some specific month, the appellant would have withdrawn the cash in that particular month and would have deposited the same back within a short span of time in the same purpose did not remain in existence.

At the same time, regarding the observation of the assessment order that the appellant did not produce the details of the patients etcetera is held to be not crucial as no such particular statutory record is required to maintained as noting in this regard is highlighted in the assessment order. And there is no prescribed method of verification by any medical authority from time to time. As per the same analogy, the record referred by the appellant before the Id. AO in this regard to support the practice income cannot be relied. The documents produced stated as patient registers are computer printed, having first names only and having running serial number and running registration number. There is no mention of time of visit. There is no link back of patients who visit second time or further times which is very common in gynecology. In view of the detailed discussion the registers are not reliable.

Similar issue had arisen in the case of another individual of the group. However the facts of such case are different from the present case. Illustratively, the relative figures and patterns of opening cash balance, income after the subject year, cash as reported in ITRS, VAT returns, cash deposited in bank account after the demonetisation period etc. are comparatively different and hence distinguished.

Where the sufficient direct verifiable evidence is not available, the case is to be decided as per the preponderance of probabilities. The dictionary meaning of the word “preponderance is superiority in weight, power, importance, or strength. Under the preponderance standard, the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true. This preponderance is based on the more convincing evidence and its probable truth or accuracy.

Considering the facts of the case, the cash deposit pattern of the appellant in the past and the availability of cash on hand in the past is considered to be the best available basis to judge the availability of cash on hand and the date of announcement of the demonetisation. The cash in hand with the appellant as on 1 April 2016 and as on 31 March 2018 are almost same even though the cash on hand as on 31 March 2017 is lesser. Further considering the above discussion in the facts, in the absence of any explanation and the justification, cash deposited in the bank in a particular month is found to be the best available basis to arrive at the approximate amount of the practice income earned during the month immediately before the deposit of cash. In view of this decision, the amount of monthly practice income shown by the appellant is not reliable and the same is hereby rejected.

In view of the discussion in the above paragraphs, the books of accounts of the appellant are hereby rejected under section 145(3) of the Act. The learned assessing officer is hereby directed to reduce the amount of addition sustained in this order on account of unexplained cash deposit during the period of demonetisation from the amount of the practice income of the appellant and thereby thus reduce the same from the total income, so as to remove the duplication.

The source of cash deposits being SBNs in the bank accounts of the appellant has not been explained, which should have been done only by the appellant as the primary onus for explaining source of cash deposits being SBNs during demonetization period lies only over the appellant. It is binding on the appellant to prove the genuineness and correctness of sources of unexplained money so deposited in bank account.

The Hon’ble Supreme Court of India pronounced order in the case of Commissioner of Income Tax, Salem Vs. K. Chinnathamban bearing appeal No. [2007] 162 Taxman 459 (SC)/[2007] 292 dated 24.07.2007 had held that:

“Whether onus of proving source of deposit primarily rests on persons in whose names deposit appears in various banks Held, Yes;

Whether since assessee had failed to show that amount in question did not represent his income, Department was justified in treating same as assessee’s income under section 69A Held Yes.”

The Hon’ble High Court of Kerala pronounced in the case of K. V.Mathew Vs. Income Tax Officer, Ward-2(3), Range-2, Ernakulam bearingOrder No. [2014] 42 taxmann.com 571 (Kerala) Appeal No. 95 of 2012dated 04.10.2013 had held that:

“A huge amount was found deposited in savings bank account of assessee, which he claimed to have been received from his sister in Italy-He, however, failed to furnish any proof-No cash flow statement was filed Whether since amount in savings bank account of assessee remained unexplained, Assessing Officer was justified in making addition under section 69A Held, Yes [Para 4] [In faovur of Revenue].”

In the case of Manoj Aggrawal Vs. DCIT (ITAT, SB-Del) 113 ITD 377, the ITАТ, Delhi held that:

“Cash deposit in bank should be explained by assessee, otherwise it is unexplained money u/s 69A – Held – Yes.”

In view of the above discussion, considering the cash in hand with the appellant as on 1 April 2016 and as on 31 March 2018, it is derived that the appellant was habitually maintaining a cash in hand of roundly 19 lakhs with her. In view of the totality of the facts of the case of the appellant, the reasonable conclusion to be drawn is that on the date of the announcement of the demonetisation also the appellant was actually maintaining this cash balance and the cash over and above this 19 lakhs, as deposited in the bank during the period of demonetisation remains unexplained and is upheld as the income of the appellant and the action of the learned assessing officer in this regard is upheld to this extent. Accordingly addition of 80,96,000 is hereby upheld.

Accordingly, these grounds of appeal are partly allowed.

5. In the result, the appeal of the appellant is partly allowed.”

5. Feeling dissatisfied and aggrieved from the order of the the ld. CIT(A), the assessee has preferred the present appeal before on the grounds as reproduced hereinabove. To support the grounds so raised by the ld. AR of the assessee, he has filed the written submissions in respect of the various grounds raised by the assessee and the same is reproduced herein below:

BRIEF FACTS OF THE CASE:

Assessee, a Gynecologist, is in practice for last more than 45 years in Jaipur. Books of account for the relevant year so also earlier years are audited under section 44AB of income tax Act. Gross receipts of assessee from private practice were higher at Rs.1,73,27,300/- as against Rs.1,54,49,900/- in A.Y. 2016-17. Ld. AO examined the audited statements of account, cashbook and other records but no mistake, defect or deficiency was found, noted or pointed out nor were the provisions of sec. 145(3) of Act applied. B/f. cash balance and practice income appearing in cashbook were found correct and genuinely explained but addition for deposits of demonetized currency in bank a/c. only in demonetization period (09.11.2016 to 31.12.2016) amounting to Rs.99,96,000/- was made under sec. 68 of I.T. Act. In first appeal, ld. CIT(A) sustained addition of Rs.80,96,000/- and allowed relief of remaining addition of Rs.19,00,000/-.

GROUNDS OF APPEAL:

GROUND No. (1): Ld. CIT(A), has erred in law and on facts in sustaining  addition of Rs.80,96,000/- out of total addition of Rs.99,96,000/- for the deposits of demonetized currency notes in bank a/c. from explained sources i.e. out of b/f.  cash balance and from practice income as Gynecology Doctor, appearing in  audited books of account, duly examined and accepted without application of provisions of section 145(3) of Act .

Ld. CIT(A) was not justified sustaining addition of Rs.80,96,000/- out of Rs.99,96,000/- made by ld. AO for bank deposits in period of demonetization of currency notes more so when the receipts or sources of cash appearing in cashbook (P.B. page 6 to 32) were accepted as genuinely explained. From other point of view, the extra sources for bank deposits in current year, if compared to the deposits of preceding year can be explained by way of following four tables:

TABLE “A” (reduction in cash – at year end )

TABLE “B” (Extra availability of cash due to higher taxable income)

TABLE “C” (Additional sources available with assessee)

TABLE “D” (Extra deposits in bank account – compared to AY 2016­17)

The above tables have also been repeated by ld. CIT(A) in order u/s. 250 of Act. From the order u/s. 250 of I.T. Act by ld. CIT(A), it is very much proved that relief of Rs.19,00,000/- was not based on any legal or factual ground but on the imagination and guess work of ld. CIT(A). It gets further support from the fact that by both the lower authorities, while accepting the sources appearing in cashbook as genuinely explained, without application of provisions of sect. 145(3) of Act, treated the deposits out of same sources only in period of demonetization as unexplained under sec. 68 of Act.

Considering totality of the facts and circumstance of the case, ld. CIT(A) acted in very arbitrary way in sustaining major amount of disallowance of Rs.80,96,000/-.

Ground No (2): Ld. CIT(A) was not justified in allowing only partial relief of Rs.19,00,000/- out of total addition of Rs.99,96,000/- under sec. 68 of I.T. Act made by the ld. AO by avoiding the fact that from total practice income of Rs.1,73,27,300/- , major part was deposited in bank a/c. after declaration of demonetization of currency notes.

Avoiding the explained sources appearing in books of account and also the figures tabulated as per ground No. (1) hereinabove, ld. CIT(A), while repeating but not implementing all the four allegations made by ld. AO, at page (5) of order dated 31.12.2019 under sec. 143(3) of I.T. Act, had allowed only part relief of Rs.19,00,000/- out of total addition Rs.99,96,000/-. The allegations of the ld. AO against the assessee and the explanation/factual position is:

(1) Deposit of cash through consultancy fee but details regarding patients from whom consultancy received not furnished:

At para No. (1) at page (5) ld. AO had admitted that “the assessee has justified the source of cash deposited from cash generated from consultancy fee”. Though against the principles of natural justice by allowing single intervening day vide show-cause notice dated 18^th December 2019 (P.B. page No.41), ld. AO required from the assessee, the details of patient like their addresses, phone number etc. Two registers for the patients, giving details like date of consultation, name of the patient, registration number, disease, age, gender and fee charged from patient were submitted to ld. AO. Again, no defect or deficiency was pointed out by ld. A.O. but by twisting the facts of case that assessee had not furnished any details of the patient from whom consultancy fee was received, made adverse comment on practice income of Assessee. While accepting bank deposits in remaining part of year, made addition for the bank deposits during demonetization period, though at the concluding part of the Assessment order ld. AO had accepted the returned income by the following language:

Without understanding the fact that major part of demonetized currency was out of the above income, ld. AO taxed the same receipts out Rs.1,74,96,020/-.

(2) Generation of cash in two months (up to 8^th 2016), higher:

Like other allegations, the above allegation too is based on imaginations and guess work of ld. AO. Monthly practice income, compared to immediately preceding year was:

(*Paper book page 43, ** Paper books page 44)

The fact admitted by the ld. AO at top of page (3) of order dated 31.12.2019 u/s. 143(3) is repeated hereunder:

“the assessee has justified the source of cash deposited from cash generated from consultancy fee”. Income from practice is more or less same before declaration of demonetization on 08.11.2016, if compared to same period of preceding year but was wrongly treated by the ld. AO as higher practice income in that period.

(3) Cash deposit in bank account being higher than previous year and there was no justification for such spike of cash deposit:

The value of demonetized currency notes of Rs.1,000/- and of Rs.500/- on declaration of demonetization was nil, therefore the only course open with the assessee was to deposit the demonetized currency in her bank account. If the yearly deposit of currency in bank during the relevant year is compared to immediately preceding year, it was more or less same in proportion to assessee’s income from medical profession as per following details:

(* higher due to reduction in cash in hand –as per table A at page (1) above)

Surprising part of such addition is that when source of cash was found by both the lower authorities as explained how and why part cash deposit in bank was treated as unexplained when deposited in bank as demonetized currency and remaining deposits as explained ?

(4) Reference of search in case of NIMS Group: It is true that NIMS Group and its Trustees (including the assessee) were subjected to action u/s. 132 of the Income tax Act on 30^th October 2014. Though the principles of Resjudicata are not applicable in Income tax proceedings but in assessee’s case the additions made by the ld. AO were found to be unjustified by the appellate authorities as per following details:

(*Addition of Rs.13,73,372/- deleted by this Hon’ble ITAT, vide order dated 25.06.2018, ** protective addition of Rs.30,94,080/- considered by Hon’ble

ITSC in case of IMT and Rs.2,68,450/- for foreign tour was deleted by this Hon’ble ITAT )

Therefore, the addition of Rs.80,96,000/- sustained by ld. CIT(A) is totally unjustified. More so, as submitted hereinabove, when assessee’s books of accounts explaining sources of cash, were accepted by the ld. AO and the net taxable income was assessed as “Income declared in Return of income Rs.1,74,96,020/-”, why the deposits in bank in form of demonetized currency notes out of same declared sources was again taxed as the same amounts to double taxation, not permitted by Income tax Act 1961.

GROUND No. (3) Ld. CIT(A) has erred in accepting but not disposing of the ground of appeal in respect of levy of special rate of tax under sec. 115BBE of I.T. Act for the debit side of cash book (deposits in bank a/c) whereas credit side i.e. receipts from practice income was accepted as genuine

Ground No. (3) as per Form 35 was repeated by the ld. CIT(A) in his order dated 23.02.2024 u/s. 250 of Act remained indisposed of for which reason appears that as against acceptance of source of cash entered in cash book, ld. AO had treated the deposit of same cash in bank on declaration of demonetization, as unexplained under sec. 68 of I.T. Act which is against the provisions of Income tax Act and also against accounting principles.

On the facts, the explained currency notes, duly appearing in audited statements of account which were deposited in bank in form of demonetized currency notes after 9^th November 2016 to 31^st December 2016 cannot be treated as unexplained under sec. 68 of Act when cash deposited in remaining period during the same year was fund to be out of explained sources. Reliance is further placed on the following judicial pronouncements:

(1) Anil Verma Vs. Dy. CIT (2019) 201 TTJ (Chand.’A’) 608 (P.B. page No.  44 0 57)

(2)Pr. CIT Vs. Agson Global (P) Ltd. (2022) 325 CTR (Del)1 (P.B.page No.  58 to 75)

(3)Asstt. CIT Vs. Chandra Surana (2023) 221 TTJ (JP ‘A’) 515 (P.B. page No.76 to 90)

(4) Dhanpat Rai Khatri Vs. ITO (2023) 222 TTJ (Jd) 382 (P.B. No. page No.91  to 99)

(5) Mewar hospital (P) Ltd. Vs. ACIT (2024) 227 TTJ (Jd) 145 (P.B. page No.  100 to 164)

(6) I.T.O. Vs. Manasa Medicals (ITA No. 522/Bang/2022 (P.B. page No. 165 to 173.”

6. To support the contention so raised in the written submission reliance was placed on the following evidence / records / decisions:

7. The ld. AR of the assessee in addition to the paper book and written submissions so filed vehemently argued that the revenue has not disputed upon the cash balance lying with the assessee as opening balance. The said amount was for Rs. 18,45,420/-. The assessee has declared more income of Rs. 25,52,460/- if this both aspect of the matter is considered then the deposit of cash lying with the assessee is on account of the income already reflected in the books of accounts and observations of the lower authorities are nothing against the record produced but are mere based on surmises or conjectures. The books of account has not been rejected by invoking the provisions of section 143(3) of the Act. Therefore, even the lower authority has not appreciated the fact that the income which is already forming part of regular books of accounts cannot be added u/s 68 of the Act if at all is to be done that income is required to be reduced which has not been done by the ld. AO and the ld. CIT(A). The reasons given by the ld. AO while making the addition are nothing but mere prejudicial based on the surmises or conjectures. The assessee has submitted around 600 pages including patient register and the ld. AO did not brought anything on record that the income declared by the assessee which is duly reflected in the cash book are not arising out of professional income of the assessee. The ld. AR of the assessee based on the table has reflected in the order of assessment explained that there is also increase in income and receipt shown by the assessee. The cash book so produced before the lower authorities has not been rejected upon finding of any fault. The ld. AR of the assessee also submitted that he has submitted a chart controverting the finding of the lower authorities comparing professional income with that of the amount deposited in to the bank account. During the year under consideration, the professional income is duly recorded for an amount of Rs. 1,75,77,700/-. That professional income duly comparable with the bank deposit. Without appreciating that aspect of the matter the finding of the ld. CIT(A) while confirming the addition to the extent of Rs. 80,96,000/- is incorrect and is required to be deleted. The ld. AR of the assessee also argued that the ld. AO has made an addition u/s 68 of the Act whereas the ld. CIT(A) has considered the said amount u/s 69A of the Act. The law does not permit to do such change. The ld. AR of the assessee invited our attention to the provision of sections 68 & 69 of the Act. The ld. AR of the assessee also draw our attention to page 26 of the order of ld. CIT(A) wherein the fact has been recorded that the assessee has submitted the patient register and IUI register giving details like date of consultation name of patient age registration number etc. These registers are not found on any fault or any defect in the records so produced. The addition is sustained merely based on the surmises or conjectures and ld. AR of the assessee also submitted that the decision relied upon by the revenue and the ld. CIT(A) are on different facts and are not applicable considering the peculiar facts of the case of the assessee. The contention of the ld. CIT(A) that the assessee has not placed on record any direct verifiable evidence are incorrect. Because the claim of the assessee or deposit of cash is duly supported by the records maintained and submitted in the form of patient register and the receipt of cash book. The cash deposited in to the bank account is duly recorded day to day in the cash book submitted before the lower authorities. Both the lower authorities not found any defect in any of the records including regular books of account produced before the lower authorities. The ld. AR of the assessee submitted that the lower authorities has not appreciated the fact that same income cannot be taxed twice in the hands of the assessee.

7.1 Finally, the ld. AR of the assessee submitted that the ld. CIT(A) for the best reason known to him has not decided the grounds of levy of higher rate of tax as per provisions of section 115BBE of the Act. Therefore, he prayed that the said ground be decided based on the detailed argument that the receipt is from profession and duly taxed as per normal provision the same it again cannot be taxed as per section 115 BBE of the Act.

8. The ld. DR is heard. He submitted that this is a classic Case of human probability. He not disputed the fact but submitted that the assessee failed to justify by placing on record direct evidence in support of the claim of professional receipt. Thus, the finding of Hon’ble Apex Court in the case of Sumati Dayal vs. CIT (1995) 125 CTR (SC) 124 squarely applied in this case. As the evidence placed on record are not correct and not reliable the professional receipt shown on the assessee in the same set of cash book is on reducing after demonetarization period. Therefore, the cash balance recorded in the cash book is not reliable and there is no substance in the entries recorded in that cash book. The records produced are thus, self-serving document rightly rejected and not considered by the lower authorities. The ld. DR referring to page No. 40 of the paper book filed by the assessee wherein the assessee was having cash balance of Rs. 46,00,000/-. He has deposited at Rs. 5,00,000/- into the bank account only and so holding of high cash balance from May, 2016 onwards suggest the reliability of cash so as to justify the deposit of cash in the period of demonetization. The assessee is not a farmer or not an illiterate person who in a habit of having high cash on hand and therefore, so explanation furnished by the assessee is not justifiable.

8.1 The ld. DR referring to the regular practice income shown by the assessee in months of August, September, October 2016 compared with the January, February, March, 2017 demonstrated that assessee has shown much decreasing trend. This fact itself suggest that cash book is self-serving document and is not reliable. To drive whom to this contention, he has relied upon the case laws cited in the order of ld. CIT(A) and also following case laws:-

8.2 The ld. DR also argued that the assessee considering the merits in the arguments of the assessee the ld. CIT(A) has also granted relief of Rs. 19,00,000/-. As regards the action of making the separate addition in addition to the professional income already offered the ld. DR submitted that since the income added is in addition to the regular income the assessee rightly denied the benefit of deduction of the income to that extent.

9. In the rejoinder to the submission of the ld. DR, the ld. AR of the assessee referring to page no. 41 [ the show cause notice dated 18.12.2019 ] submitted that the notice was issued on 18.12.2019 and leaving one day only the reply was expected on 20.12.2019. Given that time the assessee submitted the patient register and cash book. The ld. AR of the assessee also submitted that in the previous year, the assessee has shown of Rs. 100,54,450/- out of that receipt, she deposited at Rs. 1,37,20,500/- and based on the chart placed on record. He demonstrated that in the previous year assessee out of 12 month has deposited in cash in 9 month only, this suggest that the assessee is not in a habit of visiting to regularly to the bank. He also submitted that in the year under consideration based on the chart placed on record at paper book page no. 40. The assessee has deposited every month the amount into her bank account and total bank account deposit is almost much with the practice income shown by the assessee. Therefore, the contention of the lower authorities that there is sudden spike in the receipt of the assessee is not correct and is against the evidence placed on record.

10. We have heard the rival contentions and perused the material placed on record. The brief facts of the case as emerges from the record is that the assessee is a Gynecologist by profession. She had also income from investment activity. Return of income declaring total income at Rs. 1,74,96,020/- was filed. The case of the assessee was selected manually for scrutiny for verification of deposit of cash of Rs. 99,96,000/-. Before taking the case for scrutiny manually, approval from Pr. CIT (Central) Jaipur was obtained on 25.09.2018. Notice u/s 143(2) was issued to the assessee on 26.09.2018. The assessee complied with the notices and questionnaire issued during the assessment proceeding and submitted the details called for. The assessee deposited a sum of Rs. 99,96,000/- in her bank account during the demonetization between 09.11.2016 to 30.12.2016 in the form of specified bank notes (SBNs). The assessee was asked to submit various details and comparison of cash deposits of preceding two years. The assessee has furnished a comparative chart of cash deposited in the preceding two years. The assessee also submitted the patient register and cash book in support of the SBNs deposited in the bank account. On perusal of cash book ld. AO noted that the assessee has not mentioned any narration regarding the patients from whom consultation fees received. He also contended that the assessee not explained the sudden spike in the cash deposited post demonetization. The ld. AO thus, issued a show cause notice dated 18.12.2019 vide letter dated 20.12.2019 a detailed reply contending that each deposit of cash in bank is out of disclosed sources, appearing in regular books of account which are audited in accordance with the provision of section 44AB of the Act. On perusal of the cash book the ld. AO noted that there is no narration regarding the fees received from the patients and there is no reasonable justification for the sudden spike in the cash deposited in the demonetization period. The assessee explained that there was an opening cash balance available in her books for Rs. 18,45,420/-. There is an increase in the returned income for an amount of 25,52,460/- compared with last year. If both that aspect of the matter is considered and keeping in mind that the fact that the assessee is a doctor the deposit of cash for the amount of Rs. 99,96,000/-is nothing but out of the professional income and cash balance is duly supported by a cash book maintained. The assessee also filed a patient register vide letter dated 20.12.2019. The assessee submitted through mail two registers which were made part of the submission and marked as annexure A. In that annexure assessee submitted the details of the total fees charged, receipt per patient along with other details of patients like, date of consultation, name of the patient, registration number, age of patient and gender are given. The ld. AO has not pointed out any defect in the details so submitted. In the show cause notice issued to the assessee only one day time was granted, and the assessee has filed all the required details. Here we note that though, the patient register was submitted to the ld. AO he noted that the assessee has not furnished. Before the ld. CIT(A) the ld. AO not contended that aspect and even the revenue has not raised any appeal or cross objection that the patient register is not filed. The ld. AO based on the details placed on record noted that from April 2016 to October 2016 the assessee has deposited only Rs. 60,31,700/-, whereas the same spiked in November and December to Rs. 99,96,000 as the assessee not in seasonal business. The spike was not considered as the assessee has not given any reason to justify the spike. The ld. AO also noted that the group has a huge amount of unaccounted cash. The ld. AR of the assessee on that aspect that the allegation is general and there is not such addition in the hands of the assessee or in the family of the assessee. The ld. DR did not bring any contrary material on record and the blame of the revenue without any supportive findings. The action of the ld. ld. AO to considered Rs. 99,96,000/- as income as per provision of section 68 of the Act is contrary to the law when he has accepted the book result and the source of cash deposited is already reflected in the audited books of account merely the assessee deposited SBN separate addition is not required. Even otherwise while doing so he has to reduce the income already taxed while filling the ITR. The assessee carried the matter before the ld. CIT(A) who, after considering the submission and details placed on record, held that the assessee holds cash for an amount of Rs. 19 lakhs [ as Rs. 19 was maintained by the assessee as cash on hand] remain explained. Accordingly, he confirmed the addition of balance amount of Rs. 80,96,000/-. While doing so he noted that assessee has not submitted any evidence/ documents regarding higher cash balance other than the cash book. He also from the cash book so submitted noted that the assessee during 01.04.2016 to 13.11.2016 the consultation fees on daily basis was between 50,000/- to 90,000/- per day, but the same thereafter till 31.0.2017 was between 11,500/- to 25,500/-. On this aspect of the matter the ld. AR of the assessee submitted that the same was tread in the last year also as evident from the month wise practice income chart given at page 42 & 43 submitted before the lower authority. The said chart of Monthly Practice Income compared to immediately preceding year is reproduced herein below;

7. As it is evident from the above monthly receipt chart that the receipt from December to March has reduced trend previous year also. Thus, it is usual practice and not only on the reasons of the demonetization. Based on these set of facts we see no force on the contention so raised while confirming the addition by the ld. CIT(A). Therefore, the contention that the income which has not sudden hike and irregular pattern as alleged has no basis. The observation of the ld. CIT(A) that the “assessee has shown regular increase in the monthly closing balance of cash in hand”. On the other hand, the ld. AR of the assessee demonstrated that the assessee is regular in depositing the money in cash in her bank account even before the demonetization. As regard the decrease trend in the receipt after demonetization we note that this observation has no force as the receipt compared with the previous year as tabulated here in above and the chart of monthly cash deposited it is evident that every month the assessee has deposited the cash, so the allegation is not correct. In support of the cash deposited the assessee has filed all the supporting evidence about the professional income that she has earned. The ld. CIT(A) noted that the assessee submitted the cash book on 25.02.2021 and on 22.02.2024 that cash book being of two different date he noted that the same was not reliable as the fees mentioned differ, so he stated that it is not reliable. But while commenting on this he remained silent and did not cited any instance. He also does not fit it deem to seek the explanation from the assessee by citing any instance. The ld. DR just mentioned the observation but here the ld. DR did not give to our notice any instance on that aspect of the matter. In the light of this fact the cognizance of that observation is not taken by the bench being without any supportive instance.

12. The bench noted that the addition made by the ld. AO was under the provision of section 68 of the Act for an amount of Rs. 99,96,000/-. The provision of section 68 comes into play when an assessee maintains books of account and a sum is found credited in those books for any previous year. If the assessee fails to provide a satisfactory explanation for such cash credits, the provisions of this section are invoked. Essentially, it aims to address unexplained cash credits in an assessee’s financial records. Here we note that the ld. AO has not rejected the books of account the income what is already reflected is considered as arising out of the professional income and the same again cannot be added as per provision of section 68 of the Act. Thus, once the source from the regular books is considered as explained and merely the assessee has deposited that sourced income in SBN that income cannot be considered as unexplained within the provision of section 68 again in addition to what is already considered as explained once when the book results are accepted by the ld. AO. The bench noted that while making the addition the ld. AO has not rejected the books of account of the assessee. The ld. CIT(A) while confirming the addition invoked the provision of section 145(3) of the Act, but while doing so, he has not pointed out any defects and the same was not confronted to the assessee, as required by that provision. There is no show cause notice issued by the ld. CIT(A) while invoking the provision of section 145(3) of the Act and that too without showing any defects in the books of account of the assessee therefore, that action is against the provision of section 145(3) of the Act. The ld. AO through the ld. DR, did not show any defect in the records so placed by the assessee. Thus, ld. CIT(A) erred in law as well as on fact while rejecting the books of account of the assessee. While arguing the case ld. DR heavily relied upon the fact of the case of Sumati Dayal, which are not applicable in the facts of the case, as the assessee is regularly filling the return, she being doctor having regular practice income and that source is not doubted. Thus, the fact of the case of the assessee and that of the Sumati Dayal is on different aspect cannot apply to the fact of the case. Further the receipt of the income offered has no spike in the current year as compared with that of with last year. The assessee has every month deposited the cash in her bank account. The cash balance and the professional income offered is duly reflected in the regular books of account of the assessee. The assessee has also substantiated the receipt with the patient register and cash book. No defect whatsoever was found in that records produced by the assessee. The ld. AO as well as the ld. CIT(A) has not doubted the cash recorded in the cash book. The cash which is recorded in the cash book he has been deposited into the bank account of the assessee. The contention is only that there is sudden hike in the cash balance and receipt after the demonetization is less and this was the basis of making the addition. As for that aspect of the matter, the hike in the receipt is not much compared to last year. The difference in the receipt till October if compared with the last it shows same trend. Therefore, the contention made basis if compared with the last year has no basis to arrive at the allegation. Thus, considering the month wise receipt as compared to the previous year, the cash on hand regularly shown by the assessee with that of the cash receipt does not reflect sudden hike. The cash which is already considered as professional income again cannot be a base while making the addition that too of income has already been offered and substantiated with the evidence and reflected in the retuned income by the assessee.

13. We note that it is not under dispute that the assessee is having the opening cash balance of Rs. 18,45,420/- available with the assessee. During the year the assessee has a higher income of Rs. 25,52,460/- only, which is not substantially higher. The assessee offered receipt at Rs. 1,49,43,560 for last year and Rs. 1,74,96,020/- for the year under consideration. The assessee also submitted that the cash deposit in the last year was Rs. 1,37,20,500/- with that of the current year 1,75,77,700/-having difference of Rs. 38,57,200/-. This extra money is also explained for two reasons the opening balance of Rs. 18,45,520/- available and extra income of Rs. 25,52,460/- as compared to last year totaling Rs. 42,49,752/-was available as extra, as against that assessee has deposited cash of Rs. 38,57,200 extra in the year under consideration. Therefore, even otherwise based on this analysis of the income offered by the assessee is not jump or spike in the receipt of the assessee or that of the cash on hand. Based on that analysis of facts the lower authority without appreciating the facts when the demonetization announced the assessee has no option to carry the cash on hand but must deposit into the bank account. The source of that cash is duly explained and supported by the clear and cogent evidence placed on record. It has been held in a number of cases that it is trite law that suspicion howsoever strong cannot take place of a legal proof. The ld. CIT(A) has relied on the decision of Sreelekha Banerjee Vs. CIT [ 49 ITR 112 (SC) ] quoting the finding that “the department does not then proceed on no evidence, because the fact that there was receipt of money is itself evidence against the assessee.” In that same judgment the apex court also held that “The department cannot by merely rejecting unreasonably a good explanation, convert the good proof into no proof.” Further the bench also noted that ld. AO made the addition of cash deposited without considering the fact that income is already included to that extent while calculating the taxable income. The ld. CIT(A) appreciated this fact and directed it to reduce to that extent the total income to remove the duplication. The revenue is not appeal for that finding so recorded by the ld. CIT(A). Now the narrow issue is whether considering the finding so recorded herein above, the income is to be considered as unexplained money or explained credit in the hands of the assessee? The answer is that the money deposited is from the professional income which is supported in the entries passed in the books supported by the patient register containing all the required details. Both that records were placed on record and no defects was observed in those record so it would be far starching that merely the assessee has deposited the cash available with her in SBN is deposited in bank account cannot be considered as unexplained money in the hands of the assessee. The ld. AR of the assessee demonstrated that the income has not abnormal trend with that of with the last year month to month. The income is slightly higher, and it cannot be said sudden or irregular hike. Based on that finding so recorded herein above we hold that the cash deposited into the bank account of the assessee cannot be considered as unexplained considering the month wise receipt and income slightly more than last year cannot warrant the cash deposited into the bank account as unexplained cash which is proved as such and even taxed without rejecting the books of account. In the light of the discussion so recorded here in above we note that the cash so deposited by the assessee is explained to be emerges out of the her professional income and revenue has not proved that the assessee has any other source for the income which is already reflected in her books of account. Thus, addition so made by the ld. AO and sustained by the ld. CIT(A) is directed to be deleted. Based on these observations ground no. 1 & 2 raised by the assessee is allowed.

14. Ground no. 3 being consequential in nature and as we considered the additional income as the assessee regular professional income there is case to decide the ground no. 3 as the same is infructuous and educative in nature only.

In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 01/07/2024.