Shri Imran Sher Khan, Bhopal V. THE ITO WARD 1(1), Bhopal

ITA 1303/IND/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0993 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-07-2019
• Assessment Year: 2006-2007
• Appeal Filed On: 09-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SONI
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Validity of assessment
• Section: 50C; 143(2); 147; 148; 144

Judgement Text

[ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.1303/IND/2016 ASSESSMENT YEAR: 2006-07 SHRI IMRAN SHERKHAN 15, RAIT GHAT BHOPAL / VS. ITO WARD-1(1) BHOPAL ( APPELLANT ) ( REVENUE ) P.A. NO. DCXPK6781E APPELLANT BY SHRI NITIN KAUSHIK, A.R. RESPONDENT BY SHRI A.K. SONI, SR. D.R. DATE OF HEARING: 09.07.2019 DATE OF PRONOUNCEMENT: 06.09.2019 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER O F THE CIT(A)-2, BHOPAL DATED 2.8.2016 PERTAINING TO THE ASSESSMENT YEAR 2006-07. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: [ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] 2 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE THE ASS ESSMENT COMPLETED U/S 144/147 IS BAD AND UNJUST AND WITHOUT JURISDICTION AS NO NOTICE U/S 143(2) WAS SERVED TO THE APPELLANT IN RESPONSE TO NOTICE ISSUED U/S 148. 2. THAT THE LD. CIT(A) HAD ERRED IN FACTS AND IN LAW I N UPHOLDING THE VALIDITY OF ASSESSMENT FRAMED UNDER SECTION 144/147 . THE REASSESSMENT COMPLETED ON THE BASIS OF UNSERVED NOT ICE U/S 148 AND BEFORE 31.3.2013 IS BAD AND UNJUST. 3. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS.10,65,000/- AS UNEXPLAINED INVESTMENT, WHEN THE SAID AMOUNT WAS AVAILABLE WITH THE ASSESSEE. 4. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS.16,04,000/- WITHOUT APPRECIATING THE FACTS THAT THE ASSESSEE WA S HAVING THE SOURCE OF THE SAID DEPOSITS NOT GIVING THE EFFECT O F THE AMOUNT WITHDRAWN AND REDEPOSITED IN BANK AND ALSO DID NOT ALLOW THE CONSIDERATION RECEIVED OF RS.18,37,800/- INSTEAD OF RS.11,92,000/-. 5. THE LD. CIT(A) AND THE LD. A.O. BOTH OF THEM HAVE E RRED IN LAW AND WERE NOT JUSTIFIED IN DISBELIEVING THE SALE PROCEED S OF AGRICULTURE LAND (RS.18,37,800/-.) 6. THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) AS WELL AS LD. A.O. WERE NOT JUSTIFIED IN MAKING ADDIT ION OF RS.29,96,000/- APPEARED IN STATE BANK OF INDIA ON 3 .7.2005 AND 18.7.2005 RESPECTIVELY WHEREAS THE PEAK INVESTMENT IN THIS SAID BANK AMOUNTED TO RS.19,31,000/- ONLY. 7. THAT THE APPELLANT CRAVES TO ADD, ALTER OR DELETE A NY GROUND OR GROUNDS OF APPEAL ON OR BEFORE HEARING. 2. FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE CASE OF THE ASSESSEE WAS REOPENED ON THE BASIS OF THE AIR INFORMATION. A NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) WAS ISSUED. SINCE TH ERE WAS [ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] 3 NO REPRESENTATION ON BEHALF OF THE ASSESSEE, THE A.O. MADE ASSESSMENT U/S 144 R.W.S. 147 OF THE ACT. THE A.O. MADE ADDITION OF RS.29,96,000/- IN RESPECT OF THE AMOUNT DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE. AGGRIE VED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CI T(A). THE LD. CIT(A) PARTLY ALLOWED THE APPEAL. OUT OF ADDITI ON OF RS.29,96,000/- A SUM OF RS.13,92,000/- WAS DELETED AND REST OF THE ADDITION WAS CONFIRMED. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT HE DOES NOT WISH TO PRESS GROUND NUMBERS 1 & 2 OF THE APPEAL. HENCE, THESE GROUNDS ARE DISMISSED AS NOT PRESSED. 4. GROUND NO.7 OF THE APPEAL IS GENERAL IN NATURE NEEDS NO SEPARATE ADJUDICATION. HENCE, THIS GROUND IS ALSO DISMISSED. [ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] 4 5. NOW COMING TO THE REMAINING GROUNDS I.E. GROUND NUMBERS 3 TO 6 ARE RELATED TO THE ADDITIONS SUSTAINED B Y THE LD. CIT(A). 6. APROPOS TO THESE GROUNDS LD. COUNSEL FOR THE ASSE SSEE SUBMITTED THAT THE AUTHORITIES BELOW FAILED TO APPRECIA TE THE FACTS THAT THE ASSESSEE HAD EXPLAINED THE SOURCE OF DEPOSIT IN HIS BANK ACCOUNT. HE SUBMITTED THAT THE LD . CIT(A) ACCEPTED THE CONTENTION IN PART, THUS SUSTAINED THE ADDITIONS IN PART PURELY ON THE CONJECTURE BASIS. HE SUBMITTED THAT IT IS NOT THE CASE WHERE THE TAX PAYER S HAS NO SOURCE OF INCOME AT ALL, THE ASSESSEE HEREIN IS A F OURTH CLASS GOVERNMENT EMPLOYEE AND ALSO PROVED EARNING OF AGRICULTURAL INCOME COUPLED WITH THE FACT THAT HE RECE IVED SALE CONSIDERATION UPON SALE OF AGRICULTURAL LAND. HE STAT ED BEFORE THE ASSESSING OFFICER THERE WAS NO REPRESENTATI ON ON BEHALF OF THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE WAS NOT PROVIDED SUFFICIENT OPPORTUNITY AND THE ASSESSMEN T [ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] 5 WAS CONCLUDED IN HASTE. HE SUBMITTED THAT BEFORE THE LD. CIT(A), IT WAS DEMONSTRATED THAT THE ASSESSEE HAD WITHDRAWN FROM HIS BANK ACCOUNTS OF CERTAIN SUMS FROM 04.07.2005 TO 15.07.2005 BEFORE DEPOSITING THE SAME ON 18.07.2005. HENCE, LD. CIT(A) FAILED TO APPRECIATE THI S FACT AND PROCEEDED TO REJECT THE CLAIM OF THE ASSESSEE. 7. HE FURTHER SUBMITTED THAT THE REVENUE HAS NOT BROU GHT ANY MATERIAL ON RECORD SUGGESTING THAT THIS AMOUNT WAS UTILIZED SOMEWHERE ELSE. IN THE ABSENCE OF SUCH MATER IAL THE LD. CIT(A) OUGHT NOT TO HAVE SUSTAINED THE ADDITIO N. IT IS FURTHER CONTENDED THAT THE ACTUAL CONSIDERATION RECE IVED ON SALE OF LAND WAS AT RS.18,37,800/-, AGAINST A SUM OF RS.11,92,000/- AS RECORDED IN THE SALE DEED. HE FURTHER CONTENDED THAT NO INQUIRY WAS MADE FROM THE PURCHASERS, EVEN THE CO-OWNERS OF THE LAND HAVE CONFI RMED THIS FACT ON OATH, I.E. THE ACTUAL CONSIDERATION OF THE [ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] 6 AGRICULTURAL LAND SO SOLD WAS HIGHER THAN WHAT WAS RECORDED IN THE SALE DEED. 8. FURTHER, THE LD. COUNSEL FOR THE ASSESSEE SUBMITT ED THAT THE LD. CIT(A) HAS ACCEPTED THE SOURCE OF INCOME BUT DID NOT ACCEPT THE OPENING CASH BALANCE AS ON 1.04.2005. HE CONTENDED THAT UNDER THESE FACTS LD. CIT(A) OUGHT TO HAVE DELETED THE ENTIRE ADDITION. 9. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (LD. DR) VEHEMENTLY OPPOSED THESE SUBMISSIONS. HE SUBMITTED THAT THE ENTIRE EXPLANATION SO FURNISHED IS AFTER THOUGHT AN D IS NOT BEING SUPPORTED BY ANY MATERIAL EVIDENCE. LD. DR FURTHER SUBMITTED THAT THE ISSUE IN QUESTION IS TO EX AMINE AND VERIFY THE SOURCE OF CASH DEPOSIT WHICH STOOD DEP OSITED IN THE ACCOUNT OF THE ASSESSEE. HENCE, ONUS IS ON THE ASSESSEE TO PROVE THE SOURCES OF THE DEPOSITS WITH P LAUSIBLE EVIDENCES. HE SUBMITTED THAT MERE MAKING STATEMENT [ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] 7 WOULD NOT BE SUFFICIENT TO ACCEPT THE CONTENTION OF THE ASSESSEE. IN REJOINDER LD. AUTHORISED REPRESENTATIVE (AR) SUBMITTED THAT ALL THE RELEVANT EVIDENCE HAVE BEEN PLACE D ON RECORD. THE AUTHORITIES BELOW HAVE NOT CONSIDERED THESE EVIDENCES IN THE RIGHT PROSPECTIVE. LD. COUNSEL SUB MITTED THAT THE BANK STATEMENT DEMONSTRATES DEPOSIT AND WITHDRAWAL. FURTHER, THERE IS A SALE DEED DEMONSTRATING THE SALE OF AGRICULTURAL LAND, AND OTHER EVIDENCE SUGGESTING THE EARNING OF AGRICULTURAL INCOME IT IS NOT THE CASE WHER E THE ASSESSEE HAS FAILED TO PROVIDE ANY EVIDENCE. 10. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW. THE ONLY ISSUE IS WITH REGARD TO SOURCE OF SUM OF RS. 19,31,000/- & RS.10,65,000/- A TOTAL SUM OF RS.29,96,000/-( TWENTY NINE LACS NINETY SIX THOUSAND RUPEES ONLY) DEPOSITED IN CASH ON 03.07.2005 & 18.07.2015 IN THE SAVING BANK ACCOUNT NO.53015202475 [ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] 8 HELD WITH STATE BANK OF INDIA, CHAOWK BAZAR BRANCH, BHOPAL. 11. BEFORE THE LD. AO NO ONE APPEARED ON BEHALF OF THE ASSESSEE. THE CAUSE OF NON-APPEARANCE IS STATED TO BE DEATH OF SOMEONE IN FAMILY. HOWEVER, THE ASSESSING OFF ICER MADE ADDITION OF ENTIRE SUM OF RS.29,96,000/- U/S 69 OF THE ACT AND THUS ASSESSED INCOME AT RS.29,96000/-. ON APPEAL TO THE LD. CIT(A) THIS ADDITION WAS REDUCED TO RS.16,04,000/- BY PARTLY ACCEPTING THE EXPLANATION OF T HE ASSESSEE. LD. CIT(A) HAS DECIDED THE ISSUE AS UNDER: DURING APPEAL, THE ASSESSEE FILED WRITTEN SUBMISSI ONS STATING THAT NOTICE U/S 148 WAS ISSUED ON 26.03.2013 WHICH AS RECEIVED BY THE APPELLANT ON 07.05.2013, THAT IS, A FTER ABOUT 42 DAYS, IT IS QUITE IMPOSSIBLE OR UNCOMMON THAT POSTA L SERVICE WILL TAKE SUCH LONG TIME. IT IS FURTHER STATED THAT THE CASH WAS DEPOSITED OUT OF THE SALE OF AGRICULTURAL LAND HELD JOINTLY BY THE ASSESSEE WITH HIS BROTHERS AND SISTERS. THIS IS EVI DENT FROM THE NAMES OF THE SELLERS AS MENTIONED IN THE SALE DEEDS . HOWEVER, AS THE APPELLANT SHRI IMRAN SHER KHAN MANAGES THE E NTIRE FAMILY LANDS, THE ENTIRE CONSIDERATION WAS DEPOSITE D IN THE SAVING BANK ACCOUNT HELD IN HIS NAME IN RESPECT OF WHICH THE AIR INFORMATION WAS RECEIVED. PARTICULARS SALE CONSIDERATION AS PER THE REGISTERED SALE MODE OF PAYMENT AS PER THE REGISTERED SALE DEED AMOUNT CLAIMED BY THE ASSESSEE TO BE ACTUALLY RECEIVED/MARKET [ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] 9 DEED VALUE ADOPTED U/S 50C REGD. SALE DEED DATED 27.05.2005 IN FAVOUR OF SHRI RAGHUVEER SINGH MEENA RS.3,04,000 CASH RECEIVED IN PARTS PRIOR TO 27.05.2005 RS.5,16,400/- REGD. SALE DEED DATED 27.05.2005 IN FAVOUR OF SHRI BALBEER SINGH MEENA RS.3,04,000 CASH RECEIVED IN PARTS PRIOR TO 27.05.2005 RS.3,04,000/- REGD. SALE DEED DATED 27.05.2005 IN FAVOUR OF SMT. KAUSHALAYA BAI MEENA RS.2,80,000 CASH RECEIVED IN PARTS PRIOR TO 27.05.2005 RS.5,01,200/- REGD. SALE DEED DATED 27.05.2005 IN FAVOUR OF SHRI MANMOHAN SINGH MEENA RS.3,04,000 CASH RECEIVED IN PARTS PRIOR TO 27.05.2005 RS.5,16,400/- TOTAL RS.11,92,000/- RS.18,37,800/- IT WAS CLAIMED IN THE WRITTEN SUBMISSION FILED DURI NG APPEAL THAT THE PURCHASERS HAD ACTUALLY PAID AN AMOUNT OF RS.18,37,800/- INSTEAD OF RS.11,92,000/- MENTIONED IN THE REGISTERED SALE DEEDS. IT WAS FURTHER STATED THAT THE ASSESSEE AND HIS EIG HT SIBLINGS JOINTLY HELD ABOUT 20ACRES OF AGRICULTURAL LAND OUT OF WHICH THE ABOVE 1.5 ACRES X4=6.0 ACRES OF LAND WAS SOLD BY TH EM AS PER THE FOUR REGISTERED SALE DEEDS DATED 27.05.2005. TH E ASSESSEE HAS FILED KHASRA AND FORM P-II WHICH SHOW THAT THE LAND WAS IRRIGATED AND UNDER CULTIVATION OF SOYA BEAN. ACCOR DINGLY TO THE ASSESSEE, THE INCOME FROM THE SAID AGRICULTURAL LAN D WAS ABOUT RS.25,000/- PER ACRE. RELIANCE WAS ALSO PLACED UPON THE DECISION OF I.T.A.T. JABALPUR IN ITANO. 141/JBP/200 7 RELATING TO A.Y. 2000-01 IN WHICH THE ESTIMATED OF AGRICULTURAL INCOME OF RS.20,000/- PER ACRE HAS BEEN HELD TO BE FAIRE AND REASONABLE. THE ASSESSEE FURTHER STATED THAT APART FROM THE SAL E CONSIDERATION, HE WAS ALSO IN POSSESSION OF THE FOL LOWING CASH IN HAND: I. OPENING CASH IN HAND AS ON 01.04.2005 AVAILABLE RS.5,27,432/- WITH THE ASSESSE FROM THE EARLIER F.Y. 2004-05 II. AGRICULTURAL INCOME RS.2,00,000/- [ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] 10 III. CASH WITHDRAWALS FROM BANK FROM 04.07.2005 R S.11,52,000/- TO 15.07.2005 IN SUPPORT OF THE ABOVE SUBMISSIONS, THE ASSESSEE F ILED CASH FLOW STATEMENT AS UNDER: DATE PARTICULARS PAYMENTS RECEIPTS BALANCE CASH 01.04.2015 CASH BOOK PG. NO.1 AS ON 20.05.2005 SHOWING BALANCE 527432 20.04.2015 DRAWINGS 25000 502432 30.04.2015 AGRICULTURAL INCOME 200000 702432 09.05.2015 WITHDRAWAL FROM BANK 10000 712432 20.05.2005 DRAWING 25000 687432 27.05.2005 SALE OF AGRICULTURAL LAND 1837800 2525232 01.06.2005 DRAWING 30000 2495232 03.07.2005 TO DEPOSIT IN SBI 1931000 04.07.2005 BY BANK 40000 09.07.2005 BY BANK 5000 12.07.2005 BY BANK 7000 15.07.2005 BY BANK 11,00,000 18.07.2005 TO DEPOSIT IN SBI 10,65,000 CLOSING BAL. OF CASH BOOK ON 18.07.2005 6,51,232 4.4 I HAVE CONSIDERED THE FACTS OF THE CASE AND WRI TTEN SUBMISSIONS OF THE ASSESSEE. THE NOTICE U/S 148 WAS ISSUED ON 26.03.2013 WELL BEFORE 31.03.2013. THIS IS SUFFICIE NT TIME FOR THE NOTICE TO REACH BY POST. HENCE THE ASSESSMENT H AS BEEN VALIDLY MADE. THE ASSESSEE IS NOT MAINTAINING ANY BOOKS OF ACCOUN TS. THE CASH FLOW STATEMENT HAS BEEN PREPARED ONLY TO EXPLA IN THE CASH CREDITS. IT IS NOT BASED UPON ANY BOOKS OF ACCOUNTS OR SUPPORTED BY ANY DOCUMENTARY EVIDENCE. THE ASSESSEE WAS NOT F ILING ANY RETURNS OF INCOME. NO RETURN OF INCOME WAS FILED IN COMPLIANCE TO THE NOTICES U/S 148 FOR A.Y. 2006-07 UNDER ASSES SMENT. THERE IS THUS NO EVIDENCE IN SUPPORT OF THE OPENING CASH IN AND [ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] 11 OF RS.5,27,432/- AS CLAIMED BY THE ASSESSEE. SIMILA RLY, NO DOCUMENTARY EVIDENCE HAS BEEN FURNISHED IN SUPPORT OF THE RECEIPTS OF AGRICULTURAL INCOME OF RS.2,00,000/- CL AIMED TO BE RECEIVED ON 30.04.2015. AS PER THE FOUR REGISTERED SALE DEEDS DATED 27.05.2005, THE ASSESSEE HAD RECEIVED CASH OF RS.11,92,000/- UPTO THE DATE OF REGISTRATION, I.E. 27.05.2005. THERE IS NO MATERIAL/EVIDENCE WITH THE APPELLANT TO ESTABLISH THAT THE ACTUALLY RECEIVED, RS.18,37,800/- INSTEAD OF RS.11,92,000/-. THE PLEA OF THE ASSESSEE THAT CASH OF RS.11,92,000/- WAS AVAILABLE WITH HIM FOR BEING DEP OSITED ON 03.07.2005 IS ACCEPTED. FURTHER THE APPELLANT AND HIS SIBLINGS HAD A LAND H OLDING OF ABOUT 20 ACRES OUT OF WHICH 6 ACRES WAS SOLD ON 27. 05.2005. THE ASSESSEE HAD FILED KHASRA AND FORM P-II WHICH S HOW THAT THE LAND WAS IRRIGATED AND UNDER CULTIVATION OF SOY ABEAN. ACCORDINGLY TO THE ASSESSEE, THE INCOME FROM THE SA ID AGRICULTURAL LAND WAS ABOUT RS.25,000/- PER ACRE. H OWEVER, IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE REGARDING T HE ACTUAL RECEIPT OF SALE PROCEEDS OR THE ACTUAL CONSUMPTION BY THE HOUSEHOLDS OF THE 9 SIBLINGS, IT IS HELD THAT IT WO ULD BE REASONABLE IF FURTHER CREDIT OF RS.2,00,000/- IS GI VEN OUT OF THE AGRICULTURAL INCOME OF RS.2,00,000/- CLAIMED TO BE RECEIVED DURING THE CURRENT YEAR (ON 30.04.2015) AND OUT OF THE AGRICULTURAL INCOME CLAIMED TO BE FORMING PART OF T HE OPENING CASH IN HAND. UPON DUE CONSIDERATION OF THE TOTALITY OF FACTS, IT IS HELD THAT THE ASSESSEE CAN BE HELD TO BE IN RECEIPT OF CASH OF RS . 11,92,000/- FROM SALE OF LAND AND RS.2,00,000/- FROM AGRICULTUR AL INCOME RECEIVED DURING THE YEAR AND BROUGHT FORWARD FROM T HE EARLIER YEAR. IN TOTAL, THE EXPLANATION OF APPELLANT TO THE EXTENT THAT HE WAS IN POSSESSION OF CASH OF RS.11,92,000/- + RS.2, 00,000/-= RS.13,92,000/- IS ACCEPTED. THE ASSESSEE HAS FURTHER CLAIMED THAT THE CASH OF R S.40,000/-, RS.5000/-, RS.7000/- AND RS.11,00,000/- WITHDRAWN F ROM THE BANK ACCOUNTS ON 04.07.2005, 09.07.2005, 12.07.2005 AND 15.07.2005 RESPECTIVELY WAS NOT UTILIZED ANYWHERE A ND WAS RE- DEPOSITED ON 18.07.2005. THIS CONTENTION OF THE ASS ESSEE IS NOT FOUND TO BE ACCEPTABLE. THERE IS NOTHING TO VERIFY THE PURPOSE OF [ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] 12 THE WITHDRAWAL OF THE SPECIFIC SUMS AND NOTHING TO SHOW THAT THESE WERE NOT UTILIZED AND REMAINED AVAILABLE WITH THE ASSESSEE TO BE RE-DEPOSITED ON 18.07.2005. THE CLAI M OF THE ASSESSEE IS NOT TENABLE. IN VIEW OF THE ABOVE, OUT OF THE ADDITION OF RS.29, 96,000/-, THE ASSESSEE GETS A RELIEF OF RS.13,92,000/-. THE ADDIT ION OF RS.16,04,000/- IS CONFIRMED. 12. WE FIND THAT LD. CIT(A) DID NOT ACCEPT OPENING CAS H BALANCE ON THE GROUND THAT THE ASSESSEE IS NOT MAINTAININ G BOOKS OF ACCOUNTS, HOWEVER, ACCEPTED THE FACTUM OF SALE OF LAND EARNING OF AGRICULTURAL INCOME AND DID NOT ACCEPT TH E CONTENTION THAT THE AMOUNT SO WITHDRAWN WAS DEPOSITED IN THE BANK ACCOUNT. WE HAVE CONSIDERED THE MATERIAL AVAILABLE ON RECORD AND PERUSED THE FINDING OF THE LD. CIT(A) THE UNDISPUTED FACT IS THAT THE LD. CIT(A) ACCE PTED THE FACT THAT ASSESSEE WAS HAVING AGRICULTURAL INCOME AND ALSO SOLD A PIECE OF AGRICULTURAL LAND PROCEEDS WHEREO F WAS DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE. IT IS AL SO NOT REBUTTED BY THE REVENUE THAT BEFORE MAKING DEPOSITS O F SUM OF RS.10,65,000/- ON 18.07.2005. THE ASSESSEE HA D [ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] 13 WITHDRAWN SUM OF RS.40,000/-, RS.5,000/-, RS.7,000/ - AND RS.11,00,000/- ON 04.07.2005,09.07.2005, 12.07.2005 AND 15.07.2005 FROM THE SAME BANK ACCOUNT. HENCE, THE CASH AVAILABLE WITH THE ASSESSEE WAS HIGHER THAN THE CASH DEPOSITED ON 18.07.2005. THE REVENUE HAS NOT PLACED ON RECORD DEMONSTRATING THAT THESE SUMS WER E UTILIZED FOR ANY OTHER PURPOSE. THEREFORE, WE ARE UNAB LE TO AFFIRM THE FINDING OF THE LD. CIT(A) FOR SUSTAINING T HIS ADDITION AS MADE ON THE BASIS THAT PURPOSE OF WITHDRAWAL OF SPECIFIC SUMS WAS NOT GIVEN. IN OUR VIEW REVENUE SHOULD HAVE BROUGHT SOME MATERIAL SUGGESTING THAT THE MONEY AS WITHDRAWN FROM THE BANK ACCOUNT WAS USED SOMEWHERE ELSE AND IT WAS NOT AVAILABLE WITH THE ASSESSEE FOR MAKIN G DEPOSITS. IN ABSENCE OF SUCH FACTS LD. CIT(A) OUGHT T O HAVE ACCEPTED THE SOURCE OF DEPOSIT OF RS.10,65,000/- ON 18.07.2005. HENCE, WE DIRECT THE AO TO DELETE THIS ADDITION. IN RESPECT OF THE REMAINING ADDITION IT IS NOTICED [ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] 14 THAT THE LD. CIT(A) HAS NOT ACCEPTED THE OPENING CASH BALANCE OF RS.5,27,432/-. LOOKING TO THE FACT THAT THE ASSESSEE WAS HAVING AGRICULTURAL INCOME AND OTHER SOURCE OF INCOME EVEN IF THE OPENING BALANCE IS CONSIDERED T O BE HIGHER AT LEAST THE ASSESSEE WOULD BE HAVING CASH ON HAND A SUM OF RS.3,00,000/- WHICH APPEARS TO BE REASONABLE. HENCE, THE ASSESSING OFFICER IS DIRECTED TO DELETE T HE ADDITION OF RS.3,00,000/- BEING AVAILABLE AS CASH IN HAND. REGARDING HIGHER CONSIDERATION RECEIVED IN CASH WE ARE OF THE CONSIDERED VIEW THAT ONUS WAS ON THE ASSESSEE TO P ROVE THAT THE CASH WAS RECEIVED IN ADDITION TO SUM MENTIONED IN SALE DEED. FURTHER, THE PROVISIONS OF SECTION 50C WO ULD NOT HELP AS SAME OPERATE IN THE DIFFERENT FIELD. THE CONTE NTION OF THE ASSESSEE IS THEREFORE REJECTED. HENCE, OUT OF ADDITION OF RS.16,04,000/- SUSTAINED BY THE LD. CIT(A) WE DIR ECT THE AO TO DELETE THE ADDITION OF RS. 13,65,000/-, AND [ITA NO.1303/IND/2016] [SHRI IMRAN SHERKHAN BHOPAL] 15 REMAINING ADDITION OF RS. 2,39,000/- IS SUSTAINED. GRO UND NUMBERS 3 TO 6 ARE PARTLY ALLOWED. 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLO WED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 06 .09.2 019. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 06/09/2019 PATEL/PS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE