IN INCOME TAX APPELLATE TRIBUNAL, BENCH C ,MUMBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA No.3067/Mum/2013 (Assessment Year : 2009-10) Umesh Chadha legal heir of ACIT Range-17(2), Omkumari Joginder Kumar Chadha, Piramal Chambers, Lalbaug, C/o Eastern Overseas Corporation, Mumbai-400012. Ground Floor, Josephine, 44 St. Andrews Road, next to Bandra Vs. Gymkhana, Bandra West, Mumbai-400050. PAN: AADPC1806H (Appellant) (Respondent) ITA No.3462/Mum/2013 (Assessment Year : 2009-10) ACIT-20(2), Late Omkumari Joginderkumar Room No. 217, 2nd Floor, Chadha through legal heir Umesh Piramal Chambers, Lalbaug, Vs. Chadha, 15/16, Kismet, 48 Carter Parel, Mumbai-400012. Road, Mumbai-400050. PAN: AADPC1806H (Appellant) (Respondent) Assessee by : Shri Milind V. Sahasrabudhe (AR) Revenue by Shri M.C.Omi Ningshen : (DR) Date of hearing : 24.08.2016 Date of Pronouncement : 05.10.2016 2 ITA Nos. 3067 & 3462/M/2013- Umesh Chadha ORDER PER PAWAN SINGH, JM: 1. These two cross appeal are directed against order of CIT(A)-29,Mumbai, dated 11.02.2013 for AY-2009-10. As both appeals are arising out of same order, hence, both appeals were clubbed together, heard and are being decided by common order. 2. During pendency of appeal, assessee died on 24.09.2015. Shri Umesh Chadha claiming as her sole surviving son filed application in form of affidavit dated 08.03.2016 informing that assessee died on 24.09.2015. Affidavit further disclosed that he is only legal heir of assessee. copy of death certificate of assessee dated 01.10.2015 is filed on record. Amended Form- 36 has been filed by legal heirs of assessee. In Cross Appeal, Revenue has also placed on record amended Form-36 on 31.05.2016. Thus, in both appeal Shri Umesh Chadha was substituted as legal heir of assessee. 3. Brief facts of case are that assessee filed return of income for relevant Assessment Year (AY) on 30.07.2009 declaring total income of Rs. 1,00,46,366/-. Return of income was selected for scrutiny. On basis of AIR information AO issued notice to assessee that on 31.03.2009 assessee had deposited sum of Rs. 17,50,000/- in cash in Standard Chartered Bank and Rs. 26,84,000/- in Corporation Bank on 25.03.2009. assessee was asked to give evidence of source of cash deposit. assessee filed her reply dated 14.10.2011 and contended that she had withdrawn Rs. 20,00,000/- from Corporation Bank, Kandivali and deposited Rs. 26,84,000/- in said Bank during year. assessee has opening balance of cash of Rs. 7,32,861/-. This cash was kept by her as husband Shri Joginder Kumar was critically ill for last two-three years and was being treated in Leelavati Hospital, Bandra, who ultimately passed away on 06.06.2008. assessee further contended that extract of cash-book for year ended on 31.03.2009 for transaction of cash with Standard Chartered Bank which shown Rs. 2,00,000/- withdrawal from Standard Chartered Bank and deposit of Rs. 17,50,000/- in account during 3 ITA Nos. 3067 & 3462/M/2013- Umesh Chadha year. There was transaction of account from account of her husband of Rs. 17,68,630/-, as her husband expired on 06.06.2008. AO again vide letter dated 01.11.2011 asked assessee to submit date wise details of cash withdrawal and cash deposit in bank account along with details of cash in hands for last three years. assessee further submitted her reply dated 11.11.2011, wherein assessee repeated same contention. contention of assessee was not accepted by AO. AO concluded that assessee was unable to explain source of cash credit in her cash-book and added Rs. 44,34,000/- in hand of assessee u/s 68 of Act. Aggrieved by order of AO, assessee filed appeal before CIT(A), wherein assessee was granted partial relief of Rs. 22,00,000/- out of total addition of Rs. 44,34,000/-. Aggrieved by order of AO, assessee filed present appeal before us challenging addition of Rs. 6,84,000/- of cash deposit in Corporation Bank and Rs. 15,50,000/- in Standard Chartered Bank. And Revenue has filed Cross Appeal against deletion of Rs. 22,00,000/-. 4. We have heard Authorized Representative (AR) of assessee and ld. Departmental Representative (DR) for Revenue and perused material available on record. At outset, ld. AR of assessee argued that appeal filed by Revenue, being ITA No. 3462/Mum/2013 is not maintainable in view of Circular No. 21/15 dated 10.12.2015, wherein Revenue is precluded from filing appeal before Tribunal, wherein tax effect does not exceed amount of Rs. 10,00,000/-. ld. DR for Revenue has not disputed tax effect in Revenue s appeal, thus Revenue s appeal (ITA No. 3462/Mum/2013) is dismissed as not maintainable. 5. For ITA No. 3067/Mum/2013, ld. AR of assessee argued that assessee has deposited in Corporation Bank cash of Rs. 26,84,000/- on various dates between 8th September 2008 to 25th March 2009 and deposited cash of Rs. 17,50,000/- in Standard Chartered Bank during year ended on 31.03.2009. AO wrongly mentioned date of deposit as 25.03.2011 instead of 25.03.2009. husband of assessee who was sick from last two-three years and was treated in Leelavati Hospital, Bandra passed away on 06.06.2008. 4 ITA Nos. 3067 & 3462/M/2013- Umesh Chadha husband of assessee executed Will dated 24.04.2008, wherein all assets was bequeathed in favour of assessee. Probate of Will was granted by Hon ble High Court of Bombay. After Probate all assets of husband of assessee including cash was transferred from Account of his husband to assessee. assessee made withdrawal from one bank and deposited in other bank. It was further argued that neither AO nor ld. CIT(A) appreciated fact properly. On other hand, ld. DR for Revenue relied upon order of authorities below. We have considered rival contentions of parties and perused material available on record. AO made addition of Rs. 44,34,000/- in income of assessee u/s 68 of Act. Addition of Rs. 17,50,000/- was made on basis of cash deposit in Standard Chartered Bank and Rs. 26,84,000/- in Corporation Bank. While making addition, AO observed that cash-book submitted by assessee from 01.04.2005 to 31.03.2009 reveals that cash withdrawal Rs. 10,00,000/- on 17.07.2008 and Rs. 10,00,000/- on 12.12.2008, withdrawal is after death of assesse s husband. reasons explained for cash withdrawal by assessee for treatment of her husband was not accepted by AO holding that not single rupee was spent during year. cash-book of Shri Joginder Kumar for 01.10.2007 to 31.03.2009 furnished by assessee, it was noticed by AO that there is cash withdrawal of Rs. 15,00,000/- for period 02.02.2008 to 17.04.2008 and there is opening balance of Rs. 2,68,630/- as on 01.10.2007. It was further observed by AO that in Will of Shri Joginder Kumar there is no reference of cash amount. ld. CIT(A) while considering this ground accepted cash withdrawal of Rs. 2,00,000/-from Standard Chartered Bank and remaining Rs. 15,50,000/- out of husband s cash balance was not accepted. Ld. CIT(A) hold that husband of assessee died on 06.06.2008 and cash was deposited in bank after nine month of her husband death. claim of receiving cash as per Will is not proved. As there is no mention of any amount of cash available with husband, thus, sustained addition of Rs. 15,50,000/-. In respect of addition of Rs. 26,84,000/- ld. CIT(A) observed that assessee has explained source of Rs. 20,00,000/- 5 ITA Nos. 3067 & 3462/M/2013- Umesh Chadha as same was withdrawn from same Bank. However, for remaining Rs. 6,84,000/- it was observed that no explanation has been given by assessee about source of such amount and confirmed same. 6. We have seen copy of certified Will dated 24.04.2008 of Shri Joginder Kumar duly attested by Registrar (original side) High Court of Bombay (page 14 to 23 of PB) wherein at para 5 of Will executants as referred as many as 23 FD s in Corporation Bank showing maturity value of several crores. As para 6 of Will all movable and immovable property were bequeathed in favour of assessee. AR of assessee is claiming that Probate of Will was granted by Hon ble High Court, and said amount was transferred in account of assessee after order of Hon ble High Court. cash flow can be found from cash statements of assessee as well as of her husband. assessee is further claiming that she was having sufficient cash balance in his hand. In these circumstances, we deem it appropriate to restore case to file of AO to examine cash flow statement of assessee and his husband and amount transferred from account of his husband and grant assessee appropriate relief in accordance with law. With these observations, both grounds of appeal raised by assessee are allowed for statistical purpose. 7. In result, ITA No. 3067/Mum/13 filed by Assessee is allowed for statistical purpose and ITA No. 3462Mum/13 filed by Revenue is dismissed as not maintainable. Order pronounced in open court on this 5th October, 2016. Sd/- Sd/- (R.C.SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated 05/10/2016 S.K.PS Copy of Order forwarded to : 1. Appellant 2. Respondent. 3. CIT(A), Mumbai. 4. CIT 6 ITA Nos. 3067 & 3462/M/2013- Umesh Chadha 5. DR, ITAT, Mumbai 6. Guard file. //True Copy/ BY ORDER, (Asstt.Registrar) ITAT, Mumbai Umesh Chadha v. ACIT Range-17(2), Mumbai