Addition U/s. 69A based on part of statement which suited AO not sustainable

Vijay L. Bhawe Vs. Asst. CIT (ITAT Mumbai)

Addition U/s. 69A based on part of statement which suited AO not sustainable

Assessee has been claiming right from the stage of the assessing officer that assessee is having sufficient amount of cash withdrawals since last many years. The point worth noting here is that this fact was stated by the assessee in his statement also at the time of search. Learned assessing officer has chosen to rely only upon that part of statement which suited him and ignored the remaining one. It is well accepted position of law that in the income tax proceedings theory of approbation and re probation is not applicable. The revenue authorities are not expected to blow hot and cold together. The assessing officer appears to have followed the rule of “head I win tail you lose”, whereas the revenue authorities are expected to work in fair and transparent manner. Before making any addition, it is expected from the assessing officer that all the facts and circumstances, pleadings and evidences before the assessing officer would be taken into account. The statement of the assessee should be read in its entirety, particularly when it is being used against the assessee. Thus, in our considered view, the revenue authorities were duty bound to consider the aspect of source of cash claimed to be out of the withdrawal from banks and other means. It is noted from the perusal of the orders of the lower authorities that assessee had submitted that total amounts of withdrawals during the last 7 years by the assessee’s family stood at Rs. 127.25 lakh. Under these circumstances, amount of cash found at the time of search of Rs. 6,36,900 is easily explained and covered therein. The apprehension of the lower authorities that there were huge expenses, other household expenses and marriage expenses which might have been made from these withdrawals is certainly not out of context but no evidences were found during the course of search indicating that entire withdrawals were exhausted in meeting household, marriage and other expenses. Thus, we cannot ignore the availability of cash on account of huge amount of withdrawals from the bank just on the basis of doubts and surmise, especially when no contrary material has been brought on record. In our view, the assessee has duly explained the availability of cash of Rs. 6,36,900 found at the time of search out of the cash available on account of withdrawals made by the assessee and his family members in the current year as well as during the last 7 years. We find that addition made by the assessing officer is not sustainable and therefore same is directed to be deleted.

Addition under section 69A only in assessee’s hands for Unaccounted jewellery found from possession of different family members is not  sustainable

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