Income Tax Appellate Tribunal - Agra
Ramesh Kumar Gupta, Gwalior vs Department Of Income Tax on 23 April, 2013
IN THE INCOME TAX APPELLATE TRIBUNAL,
AGRA BENCH, AGRA
BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND
SHRI A.L. GEHLOT, ACCOUNTANT MEMBER
ITA No. 457/Agra/2011
Asstt. Year : 2004-05
A.C.I.T., Circle-1, vs. Shri Ramesh Kumar Gupta,
Gwalior. Flat No. 303, Tulsi Vihar Aptt.,
Chitnis Ki Goth, Madhavganj,
Lashkar, Gwalior.
(PAN : AKXPG 6315 R)
(Appellant) (Respondent)
Appellant by : Shri Waseem Arshad, Sr. D.R.
Respondent by : S/Shri Rajendra Sharma & Manuj Sharma, Adv.
Date of hearing : 23.04.2013
Date of pronouncement of order : 03.05.2013
ORDER
Per Bhavnesh Saini, J.M.:
This appeal by the Revenue is directed against the order of ld. CIT(A), Gwalior dated 30.09.2011 for the assessment year 2004-05 on the following grounds :
"1. Whether on the facts and in the circumstances of the case, the Ld. CIT(Appeals) is not justified in deleting the cash credit of Rs.10,01,000/- u/s. 68 of the Income Tax Act, 1961.
2. Whether on the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in deleting the addition of Rs.1,00,000/-.2 ITA No.457/Agra/2011
3. Whether on the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in deleting the addition of Rs.1,50,000/- ."
2. We have considered the rival submissions and the material available on record.
3. Briefly, the facts of the case are that the search / survey u/s. 132A/133A have been conducted on 12.05.2008. The assessee filed return of income declaring income of Rs.50,000/- from business along with agricultural income of Rs.45,000/-
The assessee submitted that none of the seized documents as mentioned in various annexures belong to him. The AO vide order dated 23.12.2010 completed the assessment u/s. 153A of the IT Act and made the additions of Rs.10,01,000/- on account of unexplained cash credit in the bank account, income from Galla Rs.1,00,000/-, income from agriculture Rs.1,50,000/- and household expenses at Rs.1,50,000/- and computed the income at Rs.14,51,000/-. All the four additions were challenged before the ld. CIT(A). The appeal of the assessee has been allowed. However, the Revenue has filed the present appeal challenging the deletion of three additions only as mentioned above.
4. The first ground of appeal relates to addition of Rs. 10,01,000/- made on account of deposits made in the bank account of the assessee treating it as 3 ITA No.457/Agra/2011 unexplained. In the assessee's bank account No. 1009510010007216 in United Western Bank (now IDBI bank), a cash credit of Rs. 10,01,000/- has been made.
As per the assessee, the source of the same is said to be money received from Matai Singh Tomar, Shri Ashok Singh Chauhan and Shri Harnarayan Sharma.
Affidavits of these 3 persons- all being agriculturists, have also been filed. AO has made the addition on the ground that these persons have not been produced for verification. Request made by the assessee on 22.12.2010 for adjournment seeking time for their production has not been accepted by the AO on account of earlier and frequent noncompliance attitude of the assessee and matter being time barring.
During the course of appeal proceedings and after perusal of affidavits and records, the assessee was directed to produce the three creditors. They have been produced on 19.09.2011 alongwith relevant documentary details. AO has also been given the opportunity to cross examine them. Accordingly, AO has also recorded their statements on 19.09.2011 and has submitted remand report on 21.09.2011 mentioning certain discrepancies and defects in the statements of the alleged creditors and reiterating for confirmation of addition so made. Assessee also filed rejoinder to the said remand report vide letter dtd. 29.09.2011. Assessing Officer's remand report given on the basis of statements of the three creditors is as under:-
"After taking the statement of these 3 persons the following facts came before this office which prove that the cash credit of Rs. 10,01,000/- in the United Western Bank A/c No. 1009510010007216 is unexplained and belongs to the assessee only.4 ITA No.457/Agra/2011
(i) Shri Matai Singh Tomar and Shri Ashok Singh Chauhan both the person had their bank accounts in F.Y. 2003-04 but it is not understandable that why they kept their money alongwith the assessee's bank account.
(ii) One affidavit was produced in the name of Shri Ashok Singh Chauhan but in the statement the concerned person told his another name which is Shri Bisham Pratap Singh and in the voters identity card and land possession - credit book only the name Bisham Pratap Singh and in the voters identity card and land possession- credit book only the name Bisham Pratap Singh is mentioned.
(iii) Assessee belongs to village Mihona while the affidavit holders belongs to another villages. So it is not possible that these persons kept their money alongwith avoiding the nearest social net working belongs to them.
(iv) All the three persons produced possession and credit book but in these credit books there is no signature of the issuing officer and the book holder.
(v) In the statement these three persons mentioned about the approximate amount which is due with the assessee on 19.09.2011 (1.50 lacs of Shri Ashok Singh, 2 lacs of Shri Matai Singh and 1 lac of Shri Har Narayan Sharma) but when statement of the assessee was taken just after the statement of these 3 persons and he was asked about the due amount. But assessee did not tell anything about this due amount alongwith him. It is not possible that the assessee has liability of Rs. 3.5 lacs and he is unfamiliar with it.
(vi) These 3 persons told that the money which they kept alongwith the assessee had the source of sale of grains in the Mandi but they could not produce any bills and vouchers of the same.
(vii) Shri Matai Singh Tomar invested Rs. 3 lacs in the marriage of his daughter in 2006 but in statement this fact came to notice that he did not take his money back from the assessee in spite of the urgency of the money.
(viii) One of these persons name Shri Ashok Singh signed on the statements but this signature does not match with the signature over the affidavit.
5 ITA No.457/Agra/2011On the basis of above facts it is very clear that the cash credit in the bank account of the assessee is unexplained and there is no relation with the above mentioned persons of it. So please consider my submission positively in the interest of revenue."
4.1 Assessee's rejoinder to the same is reproduced as hereunder:-
"The observations and concluding remarks disbelieving the amount belonging to three persons by the Ld. Assistant Commissioner of Income Tax are not justified. The observations and concluding remarks given by the Ld. Assistant Commissioner of Income Tax are serially numbered from 1 to 8 for all the three persons. However, my humble submission to the comments of the Ld. Assistant Commissioner of Income Tax for each person separately is being submitted as under:
A. Comments and submission with reference to Shri Matai Singh Tomar, Village- Imlaha, Dist. Bhind Sl.No. Comments of Ld. ACIT Humble Submission
1. Shri Matai Singh Tomar had bank That, the observation is not justified.
account in F.Y. 2003-04 but it is not understandable that why they kept theirThat, the Ld. Assistant Commissioner of money alongwith the assessee's bank Income Tax has given the concluding account. remark because ".....it is not understandable.....". This concluding While concluding and commenting, the remark is not justified because it is Ld. Assistant Commissioner of Income subjective and not objective. Tax has relied upon the following statement recorded by him: Shri Matai Singh Tomar never kept his money with the assessee's bank account.
Ikz&3& vki ;s jde utnhdh cSd a It is with the assessee/appellant only, who 'kk[kk esa Hkh j[k ldrs Fks] ysfdu fQj kept the money in his bank account. Shri Hkh vkius ;s jes'k dqekj xqIrk ds ikl Matai Singh Tomar deposited the money with the appellant just to keep without gh D;ksa j[ksa gSAa d`i;k Li"V djsAa any further direction to deposit or not to deposit the money in bank account.
mRrj& cSd a esa dbZ ckj :i;s&iSls However, the disbelieving because of not keeping the money in personal bank 6 ITA No.457/Agra/2011 le; ij ugha fey ikrs gSa vkSj Jh account of the person concerned is not jes'k dqekj xqIrk ls vPNs laca/k gS]a justified because it is a matter of personal habits and dealings, which may be blfy;s eSaus muds ikl :i;s j[ksa gSAa verified with the answer to Q no. 10 iz&4& vkius ;s :i;s vius fj'rsnkjksa To keep the money with one person or the ds ikl D;ksa ugha j[ksA tSls vkids other is matter of faith and convenience. HkkbZ] llqjky i{k ds yksx vkSj vU; The person concerned has categorically mentioned the reason of keeping the fj'rsnkj o ukrsnkjA d`Ik;k Li"V money with Shri Ramesh Kumar Gupta djsAa i.e. the appellant and not with the bank or other relatives.
mRrj& gekjs T;knkrj fj'rsnkj beykgk ls ckgj jgrs gSa rFkk jes'k Reliance is placed on :
th dk beykgk esa vkuk tkuk gksrk Para 14:- To sum up, we are clearly of the jgrk gSA opinion that the ITO had no material with him which could prove the ownership of iz&9& d`i;k vius ,oa ifjokj ds the seized amount of Rs. 1,05,000/- in the lnL;ksa ls lacfa /kr cSd a [kkrksa ds ckjs possession of the assessee and in his turn esa tkudkjh nsa ,oa ;g Hkh crk;sa ;s the assessee had satisfactorily explained dc [kksys x;sA his possession thereof. The Ld. CIT(A) has taken quite a reasonable view of the circumstances available in this case. It mRrj& rhl o"kZ iwoZ gekjs uke ls was not unwise on his part to observe that lsUVªy cSd a vkWQ bf.M;k] fegksuk czkp a as the rustic villagers had not yet esa gSA ftldk [kkrk Øe 2571 gSA developed investment habits by keeping u;k uEcj eq>s ;kn ugha gSA esjs their money in banks, the testimony of the ifjokj ds vU; lnL;ksa esjs csVs Jh seven persons was not to be rejected on the ground that they did not keep their d`'.kiky flag rFkk jk?kosUnz flag ds money in banks. In our opinion, the Ld. Hkh blh cSd esa [kkrs gSAa CIT(A) has given very cogent reasons for cancelling the addition and we fully agree iz&10& mi;qZDr cSd a [kkrs esa o"kZ with his views. We, therefore, see no 2003&04 esa vkids osru ds vykok good cause to upset his finding and vkSj fdruk ysu&nsu ntZ gSA mlds conclusions.
ckjs esa crkb;sA Golcha Properties (P) Ltd. Vs. ITO
(1989) 28 ITD 386, relevant page 399
mRrj& eq>s tgka rd ;kn gS] esjs para 14
osru ds vykok vkSj dksbZ ysu&nsu
esjs cSd
a [kkrs esa ntZ ugha gSA
2. One affidavit was produced in the name This para has no relevance with the of Shri Ashok Singh Chauhan but in the amount deposited by Shri Matai Singh statement the concerned person told his Tomar.
another name which is Shri Bisham 7 ITA No.457/Agra/2011 Pratap Singh and in the voters identity card and land possession credit book only the name Bisham Pratap Singh is mentioned.
3. Assessee belongs to village Mihona That, the observations is not justified.
while the affidavit holders belongs to That, the Ld. Assistant Commissioner of another village. So it is not possible that these persons kept their money along Income Tax has given the concluding with assessee avoiding the nearest socialremark because "......it is not networking belongs to them. possible..........". This concluding remark is not justified because it is While concluding and commenting, the subjective and not objective. Ld. Assistant Commissioner of Income Tax has relied upon the following That, the person concerned Shri Matai statement recorded by him: Singh Tomar has categorically given the reason of depositing/keeping the money Ikz&4& vkius ;s :i;s vius fj'rsnkjksa ds with Shri Ramesh Kumar Gupta i.e. the ikl D;ksa ugha j[ksA tSls vkids HkkbZ] appellant and not keeping the money with llqjky i{k ds yksx vkSj vU; fj'rsnkj other persons. o ukrsnkjA d`i;k Li"V djsAa Therefore, the concluding remarks are subjective and not objective, which are mRrj& gekjs T;knkrj fjs'rsnkj beykgk not permissible under the law. ls ckgj jgrs gSa rFkk jes'k th dk beykgk esa vkuk tkuk gksrk jgrk gSA
4. All the three persons produced land That, it is a matter related to issuing possession and credit book but in these officer. However, it is submitted that credit books there is no signature of the the entries recorded are duly issuing officer and the book holder. authenticated by the officer concerned.
To put the signature by the issuing While concluding and commenting, the Ld. Assistant Commissioner of Income officer and book holder is the duty of Tax has relied upon the following the officer concerned. The Ld. statement recorded by him. Assistant Commissioner of Income Tax has not established that the iz0&7& vkids }kjk izLrqr Hkw&vf/kdkj relevant records are false, forged and ,oa _.k iqfLrdk ds dzekad 271111 esa not correct. If this evidence is tkjhdrkZ vf/kdkjh ds gLrk{kj ugha gS material, then the Ld. ACIT ought to rFkk d`"kd ds gLrk{kj ugha gSAa bldk have examined this aspect also with dkj.k Li"V djsAa the concerned government department.
But this has not been done. Therefore, m0& ;s iqfLrdk gesa 10&12 fnu iwoZ in absence of any contrary finding and iVokjh eksgu JhokLro }kjk miyC/k material, the Ld. ACIT is not justified djok;h x;h gS vkSj vU; vf/kdkfj;ksa ds in disbelieving the documents supra.
8 ITA No.457/Agra/2011gLrk{kj ds ckjs esa eq>s ugha irkA iz0&8& bl Hkw&iqfLrdk ls iwoZ cuk;h x;h vU; iqfLrdkvksa dh fLFkfr ds ckjs esa crkb;sA m0& os lkjh fdrkcsa esjs ikl miyC/k gSA ;s fdrkcsa yxHkx 10 o"kZ iqjkuh gSAa
5. In the statement, he mentioned about the That, the concerned Shri Matai Singh approximate amount which is due with Tomar has categorically mentioned and the assessee on 19.09.2011 (Rs. 2 Lakh confirmed the amount of deposit with the of Shri Matai Singh) but when statement appellant as well as the remaining amount of the assessee was taken just after the as on date of recording the statement. statement of these 3 persons and he was asked about the due amount. But The appellant has also confirmed the transaction of keeping the money and assessee did not tell anything about his due amount alongwith him. It is not payable as on the date of recording the statement. Although, he has not given the possible that the assessee has liability of exact amount as on the date of recording Rs. 3.5 lacs and he is unfamiliar with it.
the statement but confirmed the While concluding and commenting, the transaction. The reason for not Ld. Assistant Commissioner of Income mentioning the exact amount was not Tax has relied upon the following bringing the relevant papers at the time statement recorded by him: appellant was never told to attend the office alongwith the relevant documents.
iz0&2& fnukad 20-12-2010 dks bl Therefore, the appellant attended the dk;kZy; esa izLrqr ''kiFk&i= ds office without bringing any document at vuqlkj vkius o'kZ 2003&04 esa 3-50 that time. However, the appellant has yk[k :i;s Jh jes'k dqekj xqIrk] xzke categorically confirmed the amount payable to Shri Matai Singh Tomar as on beykgk dks muds ikl j[kus ds fy;s the date of recording the statement. fn;s Fks] ftuesa ls 1-50 yk[k :i;s geus okil izkIr fd;s gSa vkSj vHkh Hkh 2 yk[k Therefore, in view of the above, the Ld. :i;s muesa ckdh gSAa Assistant Commissioner of Income Tax is not justified in disbelieving the C;ku& jes'k dqekj xqIrk transaction between both the parties.
Ikz0&1& vkt fnukad 19-09-2011 dks vkidks erbZ flag rksej] Hkh"e izrki flag mQZ v'kksd flag pkSgku rFkk Jh gfj ukjk;u 'kekZ ¼rhuksa O;fDr ftuds uke ls ''kiFki= izLrqr fd;s x;s gS½a dks fdrus :i;s vkidks nsuk gSA 9 ITA No.457/Agra/2011 m0& bl rjg dk dksbZ fglkc fdrkc ;kn ugha gSA gka eq>s iSls nsus gSa ysfdu fdrus nsus gSa ;s esjs /;ku esa ugha gSA
6. These 3 persons told that the money That, the concluding remark of the Ad.
which they kept alongwith the assesseeAssistant Commissioner of Income Tax had the source of sale of grains in the for disbelieving the source of money Mandi but they could not produce any deposited with the appellant mentioning bills and vouchers of the same. that Shri Matai Singh Tomar could not produce any bills and vouchers of sale of While concluding and commenting, the grains as source of money is not justified. Ld. Assistant Commissioner of Income Tax has relied upon the following The Ld. Assistant Commissioner of statement recorded by him: Income Tax has not doubted the holding of agriculture land. Since, the person Ikz0&14 vkius vius ''kiFki= esa fy[kk concerned had submitted the relevant gS fd eSa viuh Qly xYyk e.Mh esa papers regarding land holding and other udn fcØh djrk gwAa d`i;k ;s crk;as revenue details also, hence, disbelieving fd ;s fdl e.Mh ds ckjs esa vki crk the agricultural and subsequently sale of crops is not justified.
jgs gSAa vkSj tks Hkhk e.Mh esa ysu&nsu dh jlhnsa gS]a mudks izLrqr djsAa Reliance is placed on:
m0& eSa viuh Qly dh fcØh fegksuk Assessee has submitted complete details e.Mh ls lacfa /kr gSA bldh jlhn gesa of his agriculture holding alongwith the dHkh ugha feyh gSA blfy;s esjs ikl activities carried out by him during the dksbZ jlhn ugha gSA brus lkyksa rd esjk relevant period- same duly supported by the revenue records and the certificate jlhnksa ls dksbZ dke ugha iM+kA issued by the agriculture office-therefore, AO was not justified in treating a part of iz0&15& vkids ikl tks Hkh 40 ch?kk the agricultural income as non- tehu gSA og vkidks dSls izkIr gqbZ vkSj agricultural income. dc izkIr gqbZA Kamal Kishore Chandak Vs. ITO (2006) 103TTJ(JD) 843 relevant page 848 m0& 40 ch?kk tehu eq>s esjs ekek Lo0 That, the person concerned has mentioned Jh gkfde flag dq'kokgk] xzke beykgk the source of money as sale of crops ls feyh gSA 25 ch?kk tehu 20&25 o'kZ while recording the statement but could not submit the sale receipt of crop for the esjs uke dj nh Fkh ,oa 15 ch?kk tehu reason not keeping the receipt with him. o'kZ 2010 esa esjs uke ls gLrkarfjr gqbZ Meaning thereby he has given the oral gSA evidence supported with land holding and other relevant record. Since, there was no receipt with the assessee but the 10 ITA No.457/Agra/2011 contention hence the oral evidence rejected by the Ld. ACIT mainly on suspicion is not justified.
Reliance is placed on:
As regards the failure of the assessee to produce books of accounts, it was mentioned in the statement of the case that the Hindu Undivided Family had not maintained any books of accounts. If it is a fact that the assessee did not maintain books of accounts, it can hardly be blamed for its failure to produce account books before the Income Tax Officer.
All the oral and documentary evidence produced by the assessee rejected by the tribunal mainly on suspicion and conjecture was not legally sustainable.
There is no presumption that witnesses appearing for an assessee come forward to give false evidence to oblige the assessee.
Sheo Narain Duli Chandji Vs. CIT (1969) 72 ITR 766 (ALL.) B. Comments and submission with reference to Shri Bhishm Pratap Singh, alias Shri Ashok Singh, Village- Daulatpura, Dist. Bhind.
Sl.No. Comments of Ld. ACIT Humble Submission
1. Shri Ashok Singh Chauhan had bank That, the observation is not justified.
account in F.Y. 2003-04 but it is not understandable that why they kept their That, the Ld. Assistant Commissioner of money alongwith the assessee's bank Income tax has given the concluding account. remark because ".....it is not While concluding and commenting, the understandable.......". This concluding Ld. Assistant Commissioner of Income remark is not justified because it is Tax has relied upon the following subjective and not objective. statement recorded by him:
Shri Bhism Pratap Singh alias Shri Ashok iz&9& 'kiFki= ds vuqlkj vkius 2 Singh Chauhan never kept his money yk[k ls 3 yk[k :i;s uxnh Jh jes'k with the assessee's bank account. It is with the assessee/appellant only, who dqekj xqIrk ds ikl j[ks FksA bl jde kept the money in his bank account. Shri 11 ITA No.457/Agra/2011 dk L=ksr D;k FkkA rFkk ;s jde vU; Bhism Pratap Singh alias Shri Shri Ashok fj'rsnkjksa ;k cSd a esa D;ksa ugha j[kh x;hA Singh Chauhan deposited the money with the appellant just to keep without any mRrj& ;s :i;s [ksrh ls izkIr vkenuh further direction to deposit or not to ds gSAa esjk [kkrk 2003&04 esa pEcy deposit the money in bank account.
However, the disbelieving because of not {ks=h; xzkeh.k cSd a fegksuk esa FkkA cSd a keeping the money in personal bank dh ctk; jes'k th ls ysu nsu djuk account of the person concerned is not gekjs fy;s T;knk vklku gSA blfy;s ;s justified because it is a matter of person iSls geus muds ikl j[ks gSAa habits and dealings.
iz0&11& vki xzke nkSyriqjk&lkuh ds To keep the money with one person or the jgus okys gSa vkSj jes'k th beykgk xzke other is a matter of faith and convenience.
The person concerned has categorically ds jgus okys gSAa blfy;s d`i;k crk;sa mentioned the reason of keeping the fd vkids chp :i;ksa dk ysu nsu D;ksa money with Shri Ramesh Kumar Gupta gqvkA i.e. the appellant and not with the bank or other relatives.
m0& ge ,d gh xzke iapk;r ds jgus okys gSa rFkk gekjh [ksrh dh tehu Hkh Reliance is placed on : vklikl gSA blfy;s muds lkFk gekjk Para 14:- To sum up, we are clearly of the ysu nsu vklku gSA opinion that the ITO had no material with him which could prove the ownership of the seized amount of Rs. 1,05,000/- in the possession of the assessee and in his turn the assessee had satisfactorily explained his possession thereof. The Ld. CIT(A) has taken quite a reasonable view of the circumstances available in this case. It was not unwise on his part to observe that as the rustic villagers had not yet developed investment habits by keeping their money in banks, the testimony of the seven persons was not to be rejected on the ground that they did not keep their money in banks. In our opinion, the Ld. CIT(A) has given very cogent reasons for cancelling the addition and we fully agree with his views. We, therefore, see no good cause to upset his finding and conclusions.
Golcha Properties (P) Ltd. Vs. ITO (1989) 28 ITD 386, relevant page 399 para 14 12 ITA No.457/Agra/2011
2. One affidavit was produced in the name That, the observation of the Ld. ACIT is of Shri Ashok Singh Chauhan but in the not correct because it is not based on the statement the concerned person told his supporting documents. The person another name which is Shri Bhishm concerned has categorically mentioned Pratap Singh and in the voters identity that the official name in the school was card and land possession credit book Shri Bhism Pratap Singh. Whereas he was only the name Bhishm Pratap Singh is known as Bhishm Pratap Singh alias mentioned. Ashok Singh Chauhan S/o Shri Pooran Singh Chauhan resident of Daulatpura While concluding and commenting, the (Sani) Dist. Bhind. He has categorically Ld. Assistant Commissioner of Income mentioned his name, fathers name and Tax has relied upon the following address also as his identity. His both the statement recorded by him: names are recorded in Khasra-Khatoni, P-
II form also, which were issued by the Ikz0&1& d`i;k viuk iw.kZ ifjp; nsAa Govt. department.
m0& esjk iwjk uke Hkh"e izrki flag mQZ Therefore, once the person concerned has v'kksd flag pkSgku iq= Jh iwju flag categorically mentioned his identity pkSgku]fu0&nkSyriqjk¼lkuh½] ftyk&fHk.M giving name, fathers name and address, gwAa esjs ikl dksbZ PAN dkMZ ugha gS vkSj hence the contrary finding based on suspicion by the Ld. ACIT is not justified. u gh eSa vk;dj nkrk gwAa iz0&5& vkids }kjk izLrqr Hkw&vf/kdkj ,oa _.k iqfLrdk Ø- 827718] 827719 tks fd Hkkuq izrki flag vkfn ds uke ls gSAa blesa vkidk uke Hkh"e izrki flag fy[kk gS ysfdu [kljk [krkSuh] P-II QkeZ esa vkidk uke Hkh"e izrki flag mQZ v'kksd flag fy[kk x;kA d`i;k vki fLFkfr dks Li"V djsaA m0& ;s lc iVokjh dh xyrh ds dkj.k gqvk gSA esjk uke Hkh'e izrki flag mQZ v"kksd flag gSA iz0&6& vkids }kjk fnukad 20-12-2010 dks foHkkx ds le{k izLrqr 'kiFki= esa vkidk eq[; uke v'kksd flag pkSgku fy[kk x;k gSA tcfd [kljk] [krkSuh P-
II QkeZ esa eq[; uke Hkh"e izrki flag fy[kk x;k gSA d`i;k bl fojks/kkHkkl dks 13 ITA No.457/Agra/2011 Li"V djsAa m0& Ldwy esa esjk uke Hkh"e izrki flag FkkA eSua s uoeh d{kk rd blh uke ls f'k{kk xzg.k dh gSA ;s f'k{kk eSua s nhiw neu flag HknkSfj;k mPprj ek/;fed fo|ky; fegksuk esa xzg.k dh gSA uoha d{kk ls eSua s i<+kbZ NksM+ nh FkhA esjs ikl dksbZ Hkh ekdZ'khV ,oa Vhlh miyC/k ugha gSAa
3. Assessee belongs to villge Mihona That, the observation is not justified.
while the affidavit holders belong to That, the Ld. Assistant Commissioner of another village. So it is not possible that these persons kept their money Income Tax has given the concluding alongwith assessee avoiding the nearest remark because ".......it is not social networking belongs to them. possible.......". This concluding remark is not justified because it is subjective and While concluding and commenting, the not objective. Ld. Assistant Commissioner of Income Tax has relied upon the following That, the person concerned Shri Bhishm statement recorded by him: Pratap Singh alias Ashok Singh Chauhan has categorically given the reason of iz0&11& vki xzke nkSyriqjk&lkuh ds depositing/keeping the money with Shri jgus okys gSa vkSj jes'k th beykgk xzke Ramesh Kumar Gupta i.e. the appellant ds jgus okys gSAa blfy;s d`i;k crk;asa explaining that the transactions with the appellant are convenient because both are fd vkids chp :i;ksa dk ysu nsu D;ksa belongs to same Panchayat having gqvkA agricultural land nearer to each other:
m0& ge ,d gh xzke iapk;r ds jgus Therefore, the concluding remarks are okys gSa rFkk gekjh [ksrh dh tehu Hkh subjective and not objective, which are vklikl gSA blfy;s muds lkFk gekjk not permissible under the law. ysu nsu vklku gSA
4. All the three persons produced land That, it is a matter related to issuing possession and credit book but in these officer. However, it is submitted that the credit books there is no signature of the entries recorded are duly authenticated by issuing officer and the book holder. the officer concerned. To put the signature by the issuing officer and book While concluding and commenting, the holder is the duty of the officer Ld. Assistant Commissioner of Income concerned. The Ld. Assistant Tax has relied upon the following Commissioner of Income Tax has not statement recorded by him: established that the relevant records are false, forged and not correct. If this iz0&13& vkids }kjk izLrqr Hkw&vf/kdkj 14 ITA No.457/Agra/2011 ,oa _.k iqfLrdk esa dksbZ QksVks gha yxk evidence is material, then the Ld. ACIT gS rFkk tkjhdrkZ vf/kdkjh ds gLrk{kj ought to have examined this aspect also Hkh ugha gS vkSj u gh d`"kd ds gLrk{kj with the concerned government department. But this has not been done.
gaSAa d`i;k bldk Li"Vhdj.k izLrqr djsAa Therefore, in absence of any contrary m0& ;s lkjh xyfr;ka jktLo foHkkx dh finding and material, the Ld. ACIT is not gSAa justified in disbelieving the documents supra.
5. In the statement, he mentioned about the That, the concerned Shri Bhishm Pratap approximate amount which is due with Singh has categorically mentioned and the assessee on 19.09.2011 (Rs. 1.5 confirmed the amount of deposit with the Lakh of Shri Ashok Singh) but when appellant as well as the remaining amount statement of the assessee was taken just as on date of recording the statement. after the statement of these 3 persons Although the person concerned has and he was asked about the due amount. mentioned the approximate amount of Rs. But assessee did not tell anything about 1.5 Lakh as deposit with the appellant, his due amount alongwith him. It is not but he has mentioned the amount of possible that the assessee has liability of deposit also. Rs. 3.5 lacs and he is unfamiliar with it.
The appellant has also confirmed the While concluding and commenting, the transaction of keeping the money and Ld. Assistant Commissioner of Income payable as on the date of recording the Tax has relied upon the following statement. Although, he has not given the statement recorded by him: exact amount as on the date of recording the statement but confirmed the iz0&10& jes'k th us vkidks fdrus iSls transaction. The reason for not pqdk;s vkSj fdruk iSlk vHkh jes'k th mentioning the exact amount was not ds ikl tek gSA bringing the relevant papers at the time of recording of the statement. The appellant was never told to attend the office m0& jes'k th us eq>s yxHkx o'kZ alongwith the relevant documents.
2004&05 esa 1-50 yk[k :i;s fn;s FksA Therefore, the appellant attended the rFkk bl le; muds ikl 1-50 yk[k office without bringing any document at :i;s ds vklikl vkSj tek gSAa that time. However, the appellant has categorically confirmed the amount C;ku%& jes'k dqekj xqIrkA payable to Shri Bhishm Pratap Singh alias Ashok Singh Chauhan.
Ikz0&1& vkt fnukad 19-09-2011 dks vkidks erbZ flag rksej] Hkh"e izrki flag Therefore, in view of the above, the Ld. mQZ v'kksd flag pkSgku rFkk Jh Assistant Commissioner of Income Tax is not justified in disbelieving the gfjukjk;.k 'kekZ ¼rhuksa O;fDr ftuds transaction between both the parties. uke ls 'kiFki= izLrqr fd;s x;s gS½a dks 15 ITA No.457/Agra/2011 fdrus :i;s vkidks nsuk gSA m0& bl rjg dk dksbZ fglkc fdrkc ;kn ugha gSA gka eq>s iSls nsus gSa ysfdu fdrus nsus gSa ;s esjs /;ku esa ugha gSA
6. These 3 persons told that the money That, the concluding remark of the Ld. which they kept alongwith the assesseeAssistant Commissioner of Income Tax had the source of sale of grains in the for disbelieving the source of money Mandi but they could not produce any deposited with the appellant mentioning bills and vouchers of the same. that Shri Bhishm Pratap Singh alias Ashok Singh Chauhan could not produce While concluding and commenting, the any bills and vouchers of sale of grains as Ld. Assistant Commissioner of Income source of money is not justified. Tax has relied upon the following statement recorded by him: The Ld. Assistant Commissioner of Income Tax has not doubted the holding iz0&12& vkids }kjk izLrqr 'kiFki= esa of agriculture land. Since, the person vkius fy[kk gS fd vki e.Mh esa Qly concerned had submitted the relevant dh uxn fcØh djrs gSAa d`i;k crk;sa ;s papers regarding land holding and other dFku fdl e.Mh ls lacf/kr gS rFkk revenue details also, hence, disbelieving blds fcy okmpj ;fn gSa rks izLrqr the agricultural and subsequently sale of crops is not justified.
djsAa Reliance is placed on:
m0& eSa fegksuk e.Mh esa Qly dh uxn Assessee has submitted complete details fcØh djrk gwAa fcØh ls lacfa /kr fdlh of his agriculture holding alongwith the izdkj dh jlhnsa esjs ikl ugha gSAa activities carried out by him during the relevant period-same duly supported by the revenue records and the certificate issued by the agriculture office-therefore, AO was not justified in treating a part of the agricultural income as non-
agricultural income.
Kamal Kishore Chandak Vs. ITO (2006) 103 TTJ(JD) 843 relevant page 848 That, the person concerned has mentioned the source of money as sale of crops while recording the statement but could not submit the sale receipt of crop for the reason not keeping the receipt with him.
Meaning thereby he has given the oral evidence supported with land holding and 16 ITA No.457/Agra/2011 other relevant record. Since, there was no receipt with the assessee but the contention supported with other relevant record, hence the oral evidence rejected by the Ld. ACIT mainly on suspicion is not justified.
Reliance is placed on:
As regards the failure of the assessee to produce books of accounts, it was mentioned in the statement of the case that the Hindu Undivided Family had not maintained any books of accounts. If it is a fact that the assessee did not maintain books of accounts, it can hardly be blamed for its failure to produce account books before the Income Tax Officer.
All the oral and documentary evidence produced by the assessee rejected by the tribunal mainly on suspicion and conjecture was not legally sustainable.
There is no presumption that witnesses appearing for an assessee come forward to give false evidence to oblige the assessee.
Sheo Narain Duli Chandj Vs. CIT (1969) 72 ITR 766 (ALL.)
7. Shri Matai Singh Tomar invested Rs. 3 Not relevant with Shri Bhishm Pratap Lakhs in the marriage of his daughter in Singh alias Ashok Singh Chauhan. 2006 but in statement this fact came to notice that he did not take his money back from the assessee in spite of the urgency o f the money.
8. Shri Ashok Singh signed on the That, the observation of the Ld. Assistant statements but this signature does not Commissioner of Income Tax is not match with the signature over the justified because it is subjective and not affidavit. objective mentioning that the signature does not match with the signature over While concluding and commenting, the the affidavit. Ld. Assistant Commissioner of Income Tax has relied upon the following The Ld. Assistant Commissioner of Income specifically asked the person 17 ITA No.457/Agra/2011 statement recorded by him: concerned regarding difference in signature while recording the statement.
iz0&14& vkids }kjk fnukad 20-12-2010 The person concerned has categorically dks izLrqr 'kiFki= vkSj vkt fnukad mentioned and confirm that both the 19-09-2011 dks fn;s x;s C;ku esa tks signature are of him only. gLrk{kj fd;s x;s gSa os vkil esa esy The Ld. Assistant Commissioner of ugha [kk jgs gS]a d`I;k bldk Li"Vhdj.k Income Tax is not a handwriting expert.
nsAa He has also not taken any expert opinion on this issue. Moreover, once the person m0& ;s nksuksa gLrk{kj esjs }kjk gh fd;s concerned has categorically confirmed x;s gSAa both the signatures, then matter ends leaving no scope of ambiguity.
C. Comments and submission with reference to Shri Harnarayan Sharma, Village- Birkhadi, Dist. Bhind.
Sl.No. Comments of Ld. ACIT Humble Submission
1. Shri Matai Singh Tomar and Shri Ashok This para is not related to Shri Singh Chauhan both the persons had Harnarayan Sharma. their bank accounts in F.Y. 2003&04 but it is not understandable that why they kept their money alongwith the assessee's bank account.
2. One affidavit was produced in the name This para is not related to Shri of Shri Ashok Singh Chauhan but in the Harnarayan Sharma. statement the concerned person told his another name which is Shri Bhishm Pratap Singh and in the voters identity card and land possession credit book only the name Bhishm Pratap Singh is mentioned.
3. Assessee belongs to village Mihona This question was not asked with Shri while the affidavit holders belong to Harnarayan Sharma. another village. So it is not possible that these persons kept their money alongwith assesee avoiding the nearest social networking belongs to them.
4. All the three persons produced land This question was not asked with Shri possession and credit book but in these Harnarayan Sharma. credit books there is no signature of the 18 ITA No.457/Agra/2011 issuing officer and the book holder.
5. In the statement, he mentioned about the That, the concerned Shri Harnarayan approximate amount which is due with Sharma has categorically mentioned and the assessee on 19.09.2011 (Rs. 1 Lakh confirmed the amount of deposit with the of Shri Harnarayan Sharma) but when appellant as well as the remaining amount statement of the assessee was taken just as on date of recording the statement. after the statement of these 3 persons and he was asked about the due amount.The appellant has also confirmed the transaction of keeping the money and But assessee did not tell anything about payable as on the date of recording the his due amount alongwith him. It is not statement. Although, he has not given the possible that the assessee has liability of exact amount as on the date f recording Rs. 3.5 lacs and he is unfamiliar with it.
the statement but confirmed the While concluding and commenting, the transaction. The reason for not Ld. Assistant Commissioner of Income mentioning the exact amount was not Tax has relied upon the following bringing the relevant papers at the time of statement recorded by him: recording of the statement. The appellant was never told to attend the office iz0&2& o"kZ 2003&04 esa vkius fdrus alongwith the relevant documents. :i;s jes'k dqekj xqIrk dks fn;sA mldk Therefore, the appellant attended the vkt dh rkjh[k esa D;k fglkc fdrkc gS office without bringing any document at that time. However, the appellant has vkSj ;s iSls mudks D;ksa fn;sA categorically confirmed the amount payable to Shri Harnarayan Sharma.
m0& geus mDr o"kZ esa 2-50 yk[k :i;s fn;sA vHkh yk[k :i;s muds ikl gekjs Therefore, in view of the above, the Ld. tek gSAa gekjk fdlh cSd a esa dksbZ [kkrk Assistant Commissioner of Income Tax is ugha gSA blfy;s jes'k th ls ysu nsu not justified in disbelieving the djrs gSAa transaction between both the parties.
C;ku%& jes'k dqekj xqIrkA iz0&1& vkt fnukad 19-09-2011 dks vkidks erbZ flag rksej] Hkh"e izrki flag mQZ v'kksd flag pkSgku rFkk Jh gfjukjk;u 'kekZ ¼rhuksa O;fDr ftuds uke ;s 'kiFki= izLrqr fd;s x;s gS½a dks fdrus :i;s vkidks nsuk gSA m0& bl rjg dk dksbZ fglkc fdrkc ;kn ugha gSA gka eq>s iSls nsus gSa ysfdu 19 ITA No.457/Agra/2011 fdrus nsus gSa ;s esjs /;ku esa ugha gSA
6. These 3 persons told that the money That, the concluding remark of the Ld. which they kept alongwith the assessee Assistant Commissioner of Income Tax had the source of sale of grains in the for disbelieving the source of money Mandi but they could not produce any deposited with the appellant mentioning bills and vouchers of the same. that Shri Matai Singh Tomar could not produce any bills and vouchers of sale of While concluding and commenting, the grains as source of money is not justified. Ld. Assistant Commissioner of Income Tax has relied upon the following The Ld. Assistant Commissioner of statement recorded by him: Income Tax has not doubted the holding of agriculture land. Since, the person Ikz0&3& vki fdl e.Mh esa fcØh djrs concerned had submitted the relevant gSAa fcØh ls lacfa /kr jlhnsa izLrqr djsAa papers regarding land holding and other revenue details also, hence, disbelieving m0& eSa fegksuk e.Mh esa fcØh djrs gSAa the agricultural and subsequently sale of fcØh ls lacfa /kr dksbZ jlhn gekjs ikl crops is not justified.
ugha gSA Reliance is placed on:
Assessee has submitted complete details of his agriculture holding alongwith the activities carried out by him during the relevant period-same duly supported by the revenue records and the certificate issued by the agriculture office-therefore, AO was not justified in treating a part of the agricultural income as non-
agricultural income.
Kamal Kishore Chandak Vs. ITO (2006) 103TTJ(JD) 843 relevant page 848 That, the person concerned has mentioned the source of money as sale f crops while recording the statement but could not submit the sale receipt of crop for the reason not keeping the receipt with him.
Meaning thereby he has given the oral evidence supported with land holding and other relevant record. Since, there was no receipt with the assessee but the contention supported with other relevant record, hence the oral evidence rejected by the Ld. ACIT mainly on suspicion is 20 ITA No.457/Agra/2011 not justified.
Reliance is placed on:
As regards the failure of the assessee to produce books of accounts, it was mentioned in the statement of the case that the Hindu Undivided Family had not maintained any books of accounts. If it is a fact that the assessee did not maintain books of accounts. It can hardly be blamed for its failure to produce account books before the Income Tax Officer.
All the oral and documentary evidence produced by the assessee rejected by the tribunal mainly on suspicion and conjecture was not legally sustainable.
There is no presumption that witnesses appearing for an assessee come forward to give false evidence to oblige the assessee.
Sheo Narain Duli Chandj Vs. CIT (1969) 72 ITR 766 (ALL.)
7. Shri Matai Singh Tomar invested Rs. 3 Not relevant with Shri Harnarayan Lakhs in the marriage of his daughter in Sharma. 2006 but in statement this fact came to notice that he did not take his money back from the assessee in spite of the urgency of the money.
8. Shri Ashok Singh signed on the Not relevant with Shri Harnarayan statements but this signature does not Sharma. match with signature over the affidavit.
It is further submitted that all the three persons namely Sh. Matai Singh Tomar, Sh. Bhishm Pratap Singh and Sh. Harnarayan Sharma had confirmed the transactions by wasy of affidavit and thereafter attending the office while recording the statement by the Ld. Assistant Commissioner of Income Tax. Since all the three persons have attended the office and confirmed the transactions, then the addition is not justified."
21 ITA No.457/Agra/20114.2 The ld. CIT(A) considering the explanation of the assessee and remand report of the AO deleted the addition of Rs.10,01,000/-. The findings of the ld.
CIT(A) in para 3.3 and 3.4 of the appellate order are reproduced as under :
"3.3 Appellant's submissions alongwith assessment order and AO's remand report have been considered carefully and are found acceptable. In my view, the appellant has duly discharged the onus required u/s 68 regarding identity and creditworthiness of the creditors alongwith genuineness of transactions whereby the fact regarding deposit of Rs. 10,00,000/- with the appellant has been categorically confirmed by the creditors alongwith the appellant himself. All the three persons are agriculturists, who have produced required documentary evidence regarding their agricultural holdings, corps grown etc. A.O. has not accepted the explanation mostly on surmises and presumptions. No material has been brought on record by the AO to prove the ownership of the amount of Rs. 10,01,000/- with the appellant. The explanation and testimony of the credits and the appellant cannot be rejected solely on the ground that they did not keep their money in banks, but rather choose to deposit it with the appellant. Oral evidence of the creditors supported with land holdings and other relevant documents cannot be rejected solely on the ground that receipts for sale of crops have not been produced. It is a settled law that the appellant need not to prove the "source of source.
3.4. Further, A.O. has made the impugned addition u/s. 68 which is not found applicable to the appellant's case. As per section 68 of the I.T. Act where any sum is f0und credited in the books of an appellant maintained for any previous year and the appellant offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the A.O., satisfactory, then the sum so credited is to be charged to Income tax as the income of the appellant for the previous year. In the appeal under consideration, the appellant has not maintained any books of accounts for the relevant previous year; neither the A.O. has referred to the same in his records or in the assessment order. The bank statement/bank pass book have been held to be not the books maintained by the appellant. It has been held by Hon'ble Delhi High Court in case of Ms. Mayawati vs. Dy. CIT (2008) 113 TTJ (Del) that where the appellant does not maintain 22 ITA No.457/Agra/2011 any books of accounts, section 68 cannot be invoked, as the balance sheet or statement of affairs cannot be equated to books of accounts. Also, no corresponding documentary evidence much less incriminating material has been found during the course of search operations in support of the impugned cash credits, the source of which has been explained by the appellant.
In view of all the facts mentioned above, A.O. is not found justified in making the impugned addition by treating bank deposits as unexplained. Accordingly, addition of Rs.10,01,000/- is, hereby, deleted."
5. The ld. DR relied upon the order of the AO and submitted that the assessee made huge cash deposit in his bank account, source of which could not be explained. The assessee later on has given names of three persons who have given Rs.10,00,000/- to him but they have also not explained their source of income to advance any loan to the assessee. Thus, the assessee has failed to prove creditworthiness of creditors and genuineness of the transaction. Therefore, the ld.
CIT(A) should not have deleted the addition. Section 69 is attracted in the case of the assessee even if no books of account are maintained. On the other hand, the ld.
counsel for the assessee reiterated the submissions made before the authorities below and referred to the documents filed in the paper book from pages 3 to 36 in respect of the above three creditors.
6. We have considered the rival submissions, perused the findings of authorities below and considered the material available on record. The Hon'ble 23 ITA No.457/Agra/2011 Calcutta High Court in the case of Bharati Pvt. Ltd. Vs CIT, 111 ITR 951 held as under:
"In the course of assessment proceedings, the Income-tax Officer found that the assessee had shown Rs.20,000 as loan in its books taken from two parties. The assessee produced the alleged confirmatory letters from those parties before the Income-tax Officer in support of the two loans. The Income-tax Officer served notices under section 131 of the Income -tax Act, 1961, on the alleged creditors and since those notices came back unserved, the Income-tax Officer treated the loan as assessee's income from undisclosed sources. The Appellate Assistant Commissioner dismissed the assessee's appeal on the ground that the assessee could not even establish the identity of the parties. On further appeal by the assessee, the Appellate Tribunal held that mere filing of confirmatory letters did not discharge the onus that lay on the assessee and there was no material on the record to establish the identity of the creditors:
Held, that the Tribunal had taken all the relevant facts into consideration and the conclusion arrived at by the Tribunal that the loans represented the assessee's income from undisclosed sources was not perverse or unreasonable."
6.1 The Hon'ble Calcutta High Court in the case of CIT Vs United Commercial and Industrial Co. (P) Ltd., 187 ITR 596 held as under:
"The primary onus lies on the assessee to prove the nature and source of credits in its account. It is necessary for the assessee to prove prima facie the identity of his creditors, the capacity of such creditors to advance the money and lastly the genuineness of the transactions. Only when these things are proved by the assessee prima facie and only after the assessee has adduced evidence to establish the aforesaid facts does the onus shift on to the Department. It is not enough to establish the identity of the creditors. Mere production of the confirmation letters before the Income-tax Officer 24 ITA No.457/Agra/2011 would not by itself prove that the loans have been obtained from those loan creditors or that they have credit-worthiness.
Held, that, in the instant case, the Tribunal misdirected itself in holding that the transactions were genuine simply because some of the transactions were made by cheques. The assessee had failed to prove the credit-worthiness of the alleged lenders. A number of other assessees had also admitted that loans obtained from these bankers against hundis were not genuine and such hundi loans really represented their own concealed income. The assessee had not discharged its burden of proving that the loans in question were genuine."
6.2 The Hon'ble Calcutta High Court in the case of M/s. Precision Finance Pvt.
Ltd., 208 ITR 465 held as under :-
"Even the loan through bank cannot be accepted as genuine unless the identity and creditworthiness of the creditors are proved. Mere payment of account payee cheque is not sacrosanct nor can it make a non-genuine transaction genuine."
6.3 The Hon'ble Supreme Court in the case of Durga Prasad More, 82 ITR 540 and Sumati Dayal, 214 ITR 801 held that "the Courts and Tribunal have to judge the evidences before them by applying the test of human probabilities after considering the surrounding circumstances."
6.4 Considering the facts of the case in the light of above decision, we are of the view that the ld. CIT(A) was not justified in deleting the addition. It is well settled law that that the burden is upon the assessee to prove identity of the creditors, their creditworthiness and genuineness of the transaction. The burden in this case has, however, not been discharged by the assessee through reliable and cogent 25 ITA No.457/Agra/2011 evidence. The AO has specifically stated in his remand report that Shri Matai Singh Tomar and Shri Ashok Singh Chauhan maintained their bank account in F.Y. 2003-04 relevant to assessment year under appeal, but it is not understandable why they kept their money along with the assessee's bank account. The AO has, therefore, raised a serious doubt about the genuineness of the transactions which have not been satisfactorily explained by the assessee. It is highly improbable that both these creditors despite maintaining their bank accounts have not kept their cash money in their bank accounts, but have given to the assessee to keep their amount in his bank account. It would show their unnatural conduct in keeping the money with the assessee's bank account. The ld. CIT(A) instead of appreciating the contention of the AO without any reasons rejected the same. Therefore, finding of the ld. CIT(A) cannot be sustained in law. The ld. CIT(A) also failed to take note of the fact that the assessee did not tell anything about the amount with him.
All the three creditors claimed the source of money advanced to the assessee being the sale of grain in Mandi but they could not produce any bills or vouchers for the same. All the persons are stated to be agriculturists and produced some evidences of their agricultural land holding, but in their statement none of the creditors has been able to produce any bills and vouchers of sale of agricultural produce. All were stated to be keeping cash and cash advanced to the assessee. Therefore, in the absence of any evidence of sale of agricultural produce or the amount which they 26 ITA No.457/Agra/2011 could have saved with them would clearly suggest that the creditors did not have any evidence to explain source of money advanced to the assessee. The creditors have only filed their vague affidavit along with copy of some revenue records showing their ownership of agricultural land, but none of them have produced any evidence to prove their creditworthiness. The ld. CIT(A) accepted the contention of the assessee merely because the creditors in statements have confirmed giving of loan to the assessee. Mere filing of confirmation letter/affidavit does not discharge the onus that lay on the assessee to prove creditworthiness of the creditors and genuineness of the transactions in the matter. The above decisions of Hon'ble Calcutta High Court reproduced above, squarely apply against the assessee. At the most, by producing the creditors at the appellate stage and filing of their affidavit and ownership of agricultural land would prove the identity of the creditors, but the same would not prove their creditworthiness and genuineness of the transaction.
The specific objections raised by the AO in the remand report have not been taken into consideration by the ld. CIT(A) at the time of deciding the issue. The assessee has made deposit of the huge cash in his bank account. Therefore, the provisions of section 69 would also attract in this case. In the absence of any evidence to prove the creditworthiness of the creditors and genuineness of the transaction, it is difficult to believe that the onus lay upon the assessee has been discharged. The ld.
CIT(A) was, therefore, not justified in deleting the huge addition against the 27 ITA No.457/Agra/2011 assessee. The order of the ld. CIT(A) is, therefore, set aside and the order of the AO is restored. Ground No. 1 of appeal of the Revenue is allowed.
7. On ground No. 2, the Revenue challenged the deletion of addition of Rs.1,00,000/- on account of Galla income. As per the AO, since the assessee has himself accepted that he was involved in Galla business from the assessment year 2001-02 onwards and the return filed by him does not show the same separately, therefore, the AO has estimated the same income at Rs.1,00,000/-. The assessee submitted before the ld. CIT(A) that with regard to business of Galla, the assessee in his statement explained that Galla business was done on small basis in earlier years and this has been discontinued. The assessee has furnished return of income declaring income from business at Rs.50,000/-. Therefore, the addition of Rs.1,00,000/- is highly unjustified. The ld. CIT(A) accepted the contention of the assessee that the assessee declared business income of Rs.50,000/- and there was no basis to estimate the business income of assessee at Rs.1,00,000/- and accordingly, deleted the addition.
8. On consideration of the rival submissions, we do not find any justification to interfere with the order of the ld. CIT(A) in deleting the addition. No material was found against the assessee to estimate the income from Galla business at 28 ITA No.457/Agra/2011 Rs.1,00,000/-. In the assessment year the assessee has already declared business income of Rs.50,000/-. Therefore, the ld. CIT(A) on proper appreciation of facts correctly deleted the addition. Ground No. 2 of appeal of the Revenue is accordingly dismissed.
9. On ground No. 3, the Revenue challenged the deletion of addition of Rs.1,50,000/-. According to the statement recorded of the assessee, the assessee accepted that he held 7.5 bighas of agricultural land in Bhind and is used for agricultural purpose with the help of salaried labour. The assessee has declared gross income only of Rs.50,000/- and did not show income from agricultural activities. The assessee could not produce any relevant document regarding this income, therefore, Rs.1,50,000/- is estimated keeping in view the cash crops like mustard and Soyabeen. The assessee submitted before the ld. CIT(A) that the AO was not justified in making impugned addition in computation part without giving rebate from tax. It was also submitted that the addition is made without any incriminating document before the AO. The ld. CIT(A) on perusal of the return of income found that the assessee has declared agricultural income at Rs.45,000/-
though the AO mentioned the same as nil. The assessee produced documentary evidence of holding of agricultural land and estimate of agricultural income, 29 ITA No.457/Agra/2011 therefore, in absence of any material on record, further addition of Rs.1,50,000/-
was found unjustified and addition was deleted.
10. On consideration of the facts of the case and in the absence of any evidence on record against the assessee, we do not find any basis to interfere with the order of the ld. CIT(A). Ground No. 3 of appeal of the Revenue is, accordingly, dismissed.
11. In the result, the departmental appeal is partly allowed.
Order pronounced in the open court.
Sd/- Sd/-
(A.L. GEHLOT) (BHAVNESH SAINI)
Accountant Member Judicial Member
*aks/-
Copy of the order forwarded to :
1. Appellant
2. Respondent
3. CIT(A), concerned By order
4. CIT, concerned
5. DR, ITAT, Agra
6. Guard file Sr. Private Secretary
True copy