Shri Gopalbhai Joitaram Patel, Mehsana V. The Income Tax Officer, Patan Ward-4, Patan

ITA 1834/AHD/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5702 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 08-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment; Peak credit; Additional evidence; Capital expenditure; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ITA NO. 1834/AHD/2016 ( / ASSESSMENT YEAR : 2006-07 ) SHRI GOPALBHAI JOITARAM PATEL AMBICANAGAR AT & POST : AITHOR 384 175 TAL. UNJHA,DIST.MEHSANA (N.G.) / VS. THE ITO PATAN WARD-4 PATAN 384 265 ./ ./ PAN/GIR NO. : APJPP 9471 N ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI MEHUL TALERA, AR SHRI S.N. DIVATIA, AR / RESPONDENT BY : SHRI MUDIT NAGPAL, SR.DR / DATE OF HEARING 12/11/2018 !'# / DATE OF PRONOUNCEMENT 30 /11/2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) GANDHINAGAR, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEA L NO.CIT(A)/GNR/410/2014-15 DATED 17.12.2015 ARISIN G IN THE ASSESSMENT ORDER PASSED UNDER S.143(3) R.W.S.147 OF THE INCOME TAX ACT, 1961(HEREINAFTER REFERRED TO AS 'THE ACT') DATED 3 1.12.2013 RELEVANT TO ASSESSMENT YEAR (AY) 2006-07. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL: ITA NO.1834/AHD/2016 SHRI GOPALBHAI JOITARM PATEL VS. ITO ASST .YEAR - 2006-07 - 2 - 1.1. THE ORDER PASSED U/S.250 ON 17.12.2015 FOR AY 2006-07 BY CIT(A)-GNR, ABAD UPHOLDING THE ADDITION OF RS.6,73, 100/- 12 UNEXPLAINED INVESTMENT U/S.69 MADE BY AO IS WHOL LY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NAT URAL JUSTICE. 1.2. THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR O N FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE SUBMISSIO NS MADE AND EVIDENCE PRODUCED BY THE APP WITH REGARD TO THE IMPUGNED ADDITION. 2.1. THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THAT THE CASH DEPOSITS TO THE EXTENT OF RS.6,73,100/- WAS UNEXPLAINED. 2.2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THAT TH E CASH DEPOSITS TO THE EXTENT OF RS.6,73,100/- WAS UNEXPLA INED. 3.1. THE LD.CIT(A) HAS FAILED TO APPRECIATE THAT TH E PROCEEDINGS INITIATED U/S.147 AND NOTICE ISSUED U/S.148 WERE BA D IN LAW AND ILLEGAL SO THAT LIABLE TO BE QUASHED. 3. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE S UBMITTED THAT HE HAS BEEN INSTRUCTED BY THE ASSESSEE NOT TO PRESS GROUND NO.3.1. ACCORDINGLY, WE DISMISS THE SAME AS NOT PRESSED. 4. THE ONLY ISSUE RAISED BY THE ASSESSEE IS THAT LD . CIT(A) ERRED IN CONFIRMING THE ORDER OF ASSESSING OFFICER BY SUSTAI NING THE DISALLOWANCE OF RS.6,73,100/- U/S.69 OF THE ACT. 5. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IN TH E PRESENT CASE IS AN INDIVIDUAL AND ENGAGED IN THE AGRICULTURAL ACTIVITY . THE ASSESSING ITA NO.1834/AHD/2016 SHRI GOPALBHAI JOITARM PATEL VS. ITO ASST .YEAR - 2006-07 - 3 - OFFICER DURING THE ASSESSMENT PROCEEDINGS OBSERVED THAT THE ASSESSEE HAS DEPOSITED CASH OF RS.7,28,100/- IN HIS SAVINGS BANK ACCOUNT. 5.1. ON QUESTION BY THE ASSESSING OFFICER ABOUT THE SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT, THE ASSESSEE FAILED TO MAKE ANY REPLY. THEREFORE, THE ASSESSING OFFICER TREATED THE SAME S UNEXPLAINED CASH DEPOSIT AND ADDED TO THE TOTAL INCOME OF THE ASSESS EE. 6. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LD . CIT(A). 7. THE ASSESSEE BEFORE THE LD. CIT(A) HAS SUBM ITTED THAT THE CASH WAS DEPOSITED IN THE BANK ACCOUNT FROM THE FOLLOWING SO URCES: 1. SALE OF AGRICULTURAL PRODUCE OF RS. 4,35,403/-. 2. UNSECURED LOAN WAS TAKEN DURING THE YEAR FROM THE P ARTIES AS DETAILED UNDER: SR.NO. DATE NAME AMOUNT 1. 23/01/2006 RAVJIBHAI K. PRAJAPATI 19,000 2. 27/01/2006 HARSHADKUMAR BABULAL PATEL 18,000 3. 30/01/2006 VITTHALBHAI C.PATEL 17,500 4. 04/02/2006 LAXMANBHAI J.PATEL 18,500 TOTAL 73,000 3. SALE OF AGRICULTURAL LAND AMOUNTING TO RS. 90,000/- . 4. THERE WAS A CASH WITHDRAWAL OF RS. 15,50,000/- AND THE SUM OF RS. 15,39,000/- WAS DEPOSITED IN CASH WHICH IMPLIES THA T THERE WAS SUFFICIENT CASH AVAILABLE WITH THE ASSESSEE TO DEPO SIT IN THE SAVING BANK ACCOUNT. ITA NO.1834/AHD/2016 SHRI GOPALBHAI JOITARM PATEL VS. ITO ASST .YEAR - 2006-07 - 4 - 7.1. THE LD. CIT(A) CALLED FOR THE REMAND REPOR T FROM THE AO ON THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE DURING T HE APPELLATE PROCEEDINGS. 7.2. THE AO VIDE LETTER DATED 17.11.2015 SUBMITTED THE REMAND REPORT. THE RELEVANT CONTENT OF THE REMAND REPORT IS EXTRAC TED AS UNDER: ADDITIONAL EVIDENCE WITH RESPECT TO THE CASH DEPOSI TED : IN THIS REGARD FOR VERIFICATION OF AGRICULTURAL SALES VOUCHERS, IT IS SUBMITTED THAT SUMMONS WAS ISSUED TO THE PURCHASER OF THE AGRICULT URAL PRODUCE I.E. SHRI RAMESHLAL JOITARAM PATEL (COPY ENCLOSED) AND D ULY SERVED UPON THE PURCHASER FOR VERIFICATION OF THE BILLS/VOUCHERS. IN RESPONSE TO THE SAID SUMMONS SH RI RAMESHLAL JOITARAM PATEL ATTENDED THIS OFFICE ON 23.10.2015 A ND PRODUCED THE REQUIRED BOOKS OF ACCOUNTS AND DETAILS AS CALLED FO R. THE SAID DETAILS WERE VERIFIED AND NECESSARY EVIDENCE WERE PUT ON RE CORD. ON PERUSAL OF THE SAID DETAILS, THE CLAIM OF THE ASSESSEE APPEARS TO BE GENUINE. THEREFORE, THIS CLAIM OF THE ASSESSEE MAY BE DECIDE D ON MERITS. C) FURTHER THE ASSESSEE HAS ALSO CLAIMED TO HAVE TAKEN LOAN FROM HIS FAMILY MEMBERS AND OTHER PERSONS NAMELY : SHRI HARSHADBHAI BABULAL PATEL II) SHRI VITHALBHA I CHATURDAS PATEL III) SHRI LAXMANBHAI JOITARAM PATEL IV) SHRI RAVJIBHAI KALIDAS PRAJAPATI TO VERIFY THE CLAIM OF THE ASSESSEE, THIS OFFICE IS SUED SUMMONS TO ALL THESE PERSONS, AND IN RESPONSE TO THE SAID SUMMONS, EXCEP T SHRI HARSHADBHAI BABUBHAI PATEL APPEARED BEFORE THE UNDERSIGNED AND PRODUCED NECESSARY DETAILS AS CALLED FOR STATEMENTS U/S.131 WERE ALSO RECORDED IN THE CASE OF SHRI VITTHALBHAI CHATURBHAI PATEL AND S HRI RAVJIBHAI KALIDAS PRAJAPATI. COPIES OF STATEMENT RECORDED AND COPIES OF THEIR ITR FILED ARE ENCLOSED HEREWITH FOR YOUR KIND REFERENCE. IN THEI R STATEMENTS, THESE TWO PERSONS ACCEPTED THE FACT THAT THEY HAVE GIVEN LOAN TO THE ASSESSEE AND HAVE RECEIVED BACK THE SAME DURING THE SAME FINANCI AL YEAR. THEREFORE, THIS CLAIM OF THE ASSESSEE APPEARS TO BE GENUINE AN D THE SAME IS REQUIRED TO BE DECIDED ON MERITS SHRI LAXMANBHAI JOITRAM PAT EL ALSO ATTENDED ITA NO.1834/AHD/2016 SHRI GOPALBHAI JOITARM PATEL VS. ITO ASST .YEAR - 2006-07 - 5 - PRODUCED THE COPY OF ITR FILED FOR AY 2006-07. SHR I LAXMAN JOITARAM PATEL IS A RETIRED GOVERNMENT TEACHER AND HAS SHOWN THE GROSS TOTAL INCOME AT RS.1,71,239/- WHICH MAINLY CONSISTS OF PE NSION INCOME & INTEREST INCOME. FROM THE ABOVE, IT APPEARS THAT T HE CLAIM OF THE A APPEARS TO BE GENUINE AND THE SAME IS REQUESTED TO BE DECIDED ON MERITS. SINCE SH.HARISHDBHAI BABULAL PATEL HAS NOT APPEARED BEFORE THE UNDERSIGNED, THE SAME COULD NOT BE VERIFIED AND HEN CE NO COMMENTS ARE OFFERED ON THIS POINT.' 7.3. THE LD. CIT(A) AFTER CONSERVING THE SUBMISS ION OF THE ASSESSE AND REMAND REPORT DELETED THE ADDITION MADE BY THE AO I N PART BY OBSERVING AS UNDER: 6.5. I HAVE CONSIDERED THE FACTS OF THE CASE, ASSE SSMENT ORDER, SUBMISSION MADE BY THE APPELLANT, REMAND REPORT AND REJOINDER FILED BY THE APPELLANT. AO HAS MADE THE ADDITION O F RS.7,28,100/- TO THE TOTAL INCOME OF THE APPELLANT WITHOUT GIVING THE CREDIT OF CASH WITHDRAWALS AND PEAK CASH CREDIT CONTENDING TH AT THE ABOVE CASH WAS CONTINUOUSLY DEPOSITED IN THE BANK ACCOUNT BY THE APPELLANT UPTO 3/2/2006. THEREFORE, APPELLANT WAS NOT ELIGIBLE FOR PEAK CREDIT. ALSO, DURING THE REMAND PROCEEDINGS, AO WAS REQUESTED TO COMMENT UPON THE ADDITIONAL EVIDENCES FILED BY THE APPELLANT ON THE BASIS OF ADDITIONAL EVIDENCES FILE D BY THE APPELLANT WITH REFERENCE TO THE ADDITION MADE OF RS .7,28,100/-. FROM THE REJOINDER FILED BY THE APPELLANT, THE FOLL OWING FACTS ARE REVEALED: (1) AO HAS MADE THE ADDITION OF RS.7,28,100/- AS UNEXP LAINED CASH DEPOSIT ON THE BASIS OF BANK STATEMENT BY NOT GIVING CREDIT OF PEAK CASH AS CLAIMED BY THE APPELLANT DUE TO THE FACT THAT THE ORDER WAS FINALIZED BY THE ASSESSING OFFICER U/S.14 4 OF THE ACT. HOWEVER, THIS ISSUE HAS BEEN CONSIDERED BY THE AO D URING THE REMAND PROCEEDINGS AND REPORTED THAT RAMESH JOITARA M PATEL, PURCHASER OF AGRICULTURAL PRODUCE WAS SUMMONED AND AFTER VERIFICATION OF BOOKS OF PURCHASES OF AGRICULTURE P RODUCE REPORTED THAT CLAIM OF THE APPELLANT APPEARS TO BE GENUINE. ITA NO.1834/AHD/2016 SHRI GOPALBHAI JOITARM PATEL VS. ITO ASST .YEAR - 2006-07 - 6 - FURTHER, AO HAS ALSO RECORDED STATEMENT OF THREE PE RSONS WHO HAD ADVANCED MONEY TO THE APPELLANT VIZ. SHRI VITHA LBHAI, LAXMANBHAI, RAVJIBHAI AND KALIDAS PATEL AND REPORTE D THAT THE DEPOSITORS APPEAR TO BE GENUINE; HOWEVER, MAY B E D ECIDED ON MERIT. FURTHER, AO HAS ALSO REPORTED THAT SHRI HAR SHADBHAI PATEL DID NOT ATTEND THE PROCEEDINGS AND THEREFORE COULD NOT BE EXAMINED AND REPORTED TO DECIDE THE ISSUE ON MERITS . AO HAS ALSO REPORTED THAT THE SALE DEED OF LAND IS REGISTE RED AND FOUND TO BE GENUINE. THE SALE OF LAND AND THE CASH RECEI VED FROM SALE OF LAND IS FOUND TO BE GENUINE. AFTER CONSIDERING THE ABOVE REPORT OF THE ASSESSING OFFICER, ADDITIONAL EVIDENCES AND REBUTTAL OF THE APPELLANT, THE FOLLOWING FACTS EMERGE: AO HAS VERIFIED THE FACTS OF AGRICULTURAL LAND, 7/ 12 AND AGRICULTURE PRODUCE BILLS BUT FAILED TO REPORT THAT APPELLANT HAD 5 BROTHERS AND POSSESSING TOTAL OF 2.75 ACRES I.E. BE LOW 3 ACRE LAND AND APPELLANTS SHARE IN THE AGRICULTURE LAND IS ON LY 1/5 TH FROM WHICH APPELLANT HAS CLAIMED TO HAVE EARNED MORE THA N RS.8 LAC FROM AGRICULTURE PRODUCE IN TWO YEARS. THIS FACT W AS BROUGHT TO THE NOTICE OF THE AR OF THE APPELLANT AND NECESSARY PROOF OF AGRICULTURE EXPENSES WERE CALLED FOR TO EARN SUCH H UGE AGRICULTURE INCOME FROM SUCH A SMALL LAND HOLDING WHICH IS JUST IMPOSSIBLE. THE AR HAS BEEN UNABLE TO REPLY TO THE QUERIES MADE WHICH HAS BEEN RECORDED IN THE ORDER SHEET. FURTHER, IT IS SEEN THAT APPELLANT HAS SOLD TWO YEA RS CROP TO ONE SHRI RAMESH JOITARAM WHO HAS BEEN EXAMINED BY T HE AO BUT HE IS THE BROTHER OF THE APPELLANT THE RETURNS FILE D BY SHRI RAMESH JOITARAM FOR AYS 2004-05 AND 2005-06 IS BELOW RS.55 ,000/-. FURTHER, IT IS ALSO NOTICED THAT FROM THE LEDGER AC COUNT OF SHRI RAMESHBHAI THAT HE HAS BEEN SHOWING HIGHEST AMOUNT OF PURCHASE OF AGRICULTURE PRODUCE FROM THE APPELLANT AND OTHER PURCHASES ARE NOMINAL WHICH ARE NOT AGRICULTURE PRODUCE. THE AR ALSO FAILED TO PRODUCE THE SOURCE OF HUGE HOUSEHOLD EXPENSES OF 5 BROTHERS WHO ARE HAVING SOURCE OF INCOME FROM AGRICULTURE ONLY. IN SUCH CIRCUMSTANCES IT IS HELD THAT THE CLAIM OF THE APPE LLANT THAT THE ITA NO.1834/AHD/2016 SHRI GOPALBHAI JOITARM PATEL VS. ITO ASST .YEAR - 2006-07 - 7 - CASH INTRODUCED IN THE BANK OF RS.8,43,123/- IS PUR ELY A COLOURABLE DEVICE, AN AFTERTHOUGHT, POST RECEIPT OF NOTICE U/S .148 OF THE ACT. FURTHER, THE CLAIM OF THE APPELLANT THAT RS.25,000/ - AND RS.65,000/- RECEIVED AGAINST SALE OF LAND IS ALSO A N AFTERTHOUGHT OF THE APPELLANT WHEN THE CASE WAS UNDER SCRUTINY. TH E TWO PIECES OF LAND ARE BELONGING TO 6 FAMILY MEMBERS AND APPELLAN T IS SILENT ABOUT THE DISTRIBUTION OF MONEY AMONGST OTHER 6 MEM BERS OF FAMILY INCLUDING MOTHER AND EVEN THE AR OF THE APPELLANT I S SILENT ON THE FAMILY MANAGEMENT AND DISTRIBUTION OF MONEY THEREFO RE, THE ENTIRE SALE CONSIDERATION SALE OF TWO PIECES OF LAND CANNO T BE CONSIDERED OF THE APPELLANT AND THIS AMOUNT OF CASH OF RS.25,0 00/- AND RS.65,000/- INTRODUCED IN BANK CANNOT BE CONSIDERED AS EXPLAINED AS OUT OF SALE OF PLOTS. FURTHER, APPELLANT HAS ALSO TRIED TO EXPLAIN THE CA SH INTRODUCTION TO THE EXTENT OF RS.73,000/- IN THE NA ME OF SHRI RAVJIBHAI K.PRAJAPATI-RS.19,000/-, HARSHADKUMAR B P ATEL- RS.18,000/-, VITHALBHAI C.PATEL-RS.17,500/- AND LAX MAN J PAEL- RS.18,500/-. IN THIS REGARD, AO HAS REPORTED THAT SHRI HARSHADKUMAR B., PATEL HAS NOT ATTENDED BEFORE HIM S/SHRI RAVJIBHAI PRAJAPATI, VITHALBHAI C PATEL AND LAXMAN J.PATEL WERE EXAMINED AND THE DEPOSITS GIVEN BY THEM WAS FOUND G ENUINE. SINCE THE AO HAS EXAMINED THE 3 PERSONS AND FOUND T O BE GENUINE AND CONSIDERING THE SMALL DEPOSITS BELOW RS.19,000/ - THESE DEPOSITS AND CASH INTRODUCTION IN THE BANK ARE TREA TED AS EXPLAINED EXCEPT THAT OF SHRI HARSHADKUMAR B.PATEL OF RS.18,0 00/- WHO HAS NOT ATTENDED BEFORE THE AO FOR EXAMINATION. CONSIDERING THE ABOVE FACTS, IT IS AMPLY CLEAR THAT THE APPELLANT HAS TRIED TO EXPLAIN THE SOURCES OF CASH INTRODUCTION CONSIDERED BY THE AO AS UNEXPLAINED OUT OF AGRICULT URAL PRODUCE AND DEPOSITORS AND THE SALE OF 2 PIECES OF LAND, AR E FOUND TO BE AN AFTERTHOUGHT OF THE APPELLANT AFTER RECEIVING THE N OTICE U/S.148. AO HAS WELL ADDED RS.7,28,100/- AS UNEXPLAINED CASH DEPOSIT IS CONFIRMED AFTER GIVING CREDIT OF RS.55,000/- (RS.73 000/- LESS RS.18000/-). THE CLAIM OF THE PEAK CREDIT OF TOTAL CASH DEPOSIT OR RS.15,39,000/- AFTER CONSIDERING WITHDRAWALS HAS AL READY BEEN GIVEN BY THE AO AND HENCE, THE NET UNEXPLAINED CASH DEPOSIT OF ITA NO.1834/AHD/2016 SHRI GOPALBHAI JOITARM PATEL VS. ITO ASST .YEAR - 2006-07 - 8 - RS.6,73,100/-IS HEREBY CONFIRMED. APPELLANT GETS R ELIEF, ACCORDINGLY. THIS GROUND OF APPEAL IS PARTLY ALLOW ED. 8. BEING AGGRIEVED BY THE ORDER OF LD. CIT(A) A SSESSEE IS IN APPEAL BEFORE US. THE LD. AR BEFORE US FILED TWO PAPER BOO KS RUNNING FROM PAGES 1 TO 99 AND 1 TO 52 AND THE EXPLAINED THE SOU RCE OF CASH DEPOSITED IN THE SAVING BANK ACCOUNT AS DETAILED UNDER: PARTICULARS AS PER AO REMARK RS.3,64,100 CASH DEPOSITS DURING 30.8.05 TO 20.10.2005 AGRI. INCOME AS PER BANK DETAILS (PG 6-8) TOTALLING TO RS.3,50,763/-. (48790+131320+84125+86528) RS.3,64,000 CASH DEPOSITS DURING 1.12.05 TO 3.2.2006 REDEPOSIT OUT OF PREVIOUS WITHDRAWALS OF RS.2,90,000/- (RS.1,60,000/- ON 29.10.05 + RS.1,30,000/- ON 8.11.2005) (PG 23-24) AND LOANS FROM RELATIVES OF RS.73000/- OUT WHICH RS.55,000/- IS ACCEPTED BY CIT(A). RS.7,28,100 TOTAL CASH DEPOSITS 9. THE LD. AR ALSO SUBMITTED THAT THE AO IN ITS R EMAND REPORT HAD ACCEPTED THE GENUINENESS OF SALES OF THE AGRICULTUR AL PRODUCE BUT THE LD. CIT(A) ERRED BY DISAGREEING WITH THE CONTENTION OF THE AO AS MENTIONED IN THE REMAND REPORT. 9.1. ON THE OTHER HAND THE LD. DR SUBMITTED THAT THE INCOME SHOWN BY THE ASSESSEE IS DISPROPORTIONATE TO THE LAND OWNED BY THE ASSESSEE. ITA NO.1834/AHD/2016 SHRI GOPALBHAI JOITARM PATEL VS. ITO ASST .YEAR - 2006-07 - 9 - 9.2. THE AO IN THE REMAND REPORT HAS ACCEPTED THE SALE OF AGRICULTURAL PRODUCE MERELY ON THE BASIS OF THE STATEMENT FURNIS HED BY SHRI RAMESHBHAI J.PATEL, THE BROTHER OF THE ASSESSEE. AS SUCH THE AO HAS NOT CARRIED OUT ANY VERIFICATION TO ENSURE THAT THE ASS ESSEE HAS ACTUALLY MADE THE SALE OF AGRICULTURE PRODUCE TO HIS BROTHER. THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE IN THE INSTANT CASE RELATES TO THE CASH DEPOSITED BY THE ASSESSEE IN HIS SAVING BANK ACCOUN T. THE EXPLANATION FURNISHED BY THE ASSESSEE FOR THE DEPOSIT OF CASH W AS REJECTED BY THE AUTHORITIES BELOW. THEREFORE, THE ADDITION WAS MAD E BY THE AO FOR RS. 7,28,100/- WHICH WAS PARTLY SUSTAINED BY THE LD. CI T(A) FOR RS. 6,73,100. 10.1. NOW THE CONTROVERSY ARISES BEFORE US WHE THER THE JUSTIFICATION FOR THE SOURCE OF CASH DEPOSIT EXPLAINED BY THE ASS ESSEE ARE GENUINE OR NOT IN THE GIVEN FACTS & CIRCUMSTANCES. 10.2. IN THIS REGARD, WE NOTE THAT THE AGRICULT URE PRODUCES SOLD BY THE ASSESSEE WAS REJECTED BY THE LD. CIT(A) ON THE GROU ND THAT THE ASSESSEE WAS HOLDING 1/5 TH SHARE IN THE TOTAL AREA OF LAND I.E. EQUAL TO 2.75 ACRES WHICH CANNOT DERIVE INCOME OF RS. 8 LACS APPROXIMAT ELY IN TWO YEARS. 10.3. INDEED THE OBSERVATIONS OF THE LD. CIT(A) CREATES DOUBTS IN HOLDING THAT THE ASSESSEE HAS SHOWN DISPROPORTIONAT E INCOME IN RELATION TO THE LAND AS OBSERVED BY HIM DURING APPELLATE PRO CEEDINGS. HOWEVER, ITA NO.1834/AHD/2016 SHRI GOPALBHAI JOITARM PATEL VS. ITO ASST .YEAR - 2006-07 - 10 - THE OTHER EVIDENCES FURNISHED BY THE ASSESSEE ABOUT THE SALE OF AGRICULTURAL PRODUCE CANNOT BE JUST BRUSHED ASIDE. INDEED THE BUYER OF THE AGRICULTURAL PRODUCE WAS RELATIVE OF THE ASSESSEE B UT THAT CANNOT BE GROUND FOR REJECTING THE AMOUNT OF SALE. WE ALSO NO TE THAT THE BUYER OF THE AGRICULTURAL PRODUCE HAS APPEARED AND CONFIRMED THE PURCHASE OF AGRICULTURAL PRODUCE FROM THE ASSESSEE BEFORE THE A O. THE BUYER ALSO PRODUCED THE BOOKS OF ACCOUNTS FOR THE PURPOSE OF V ERIFICATION AND AFTER THAT THE CONTENTION OF THE ASSESSEE WAS ADMITTED BY THE AO IN THE REMAND REPORT. IN OUR CONSIDERED VIEW, THE CLAIM OF THE AS SESSEE CANNOT BE DENIED MERELY ON THE GROUND THAT THE LAND HELD BY THE ASSE SSEE WAS IN SMALL IN SIZE. THE UNDISPUTED FACTS ARE THAT THE LAND IS PO SSESSED BY THE ASSESSEE AND THE AGRICULTURE PRODUCE WAS SOLD BY HIM TO A PA RTY WHICH ADMITTED THE SAME DURING THE ASSESSMENT PROCEEDINGS. 10.4. THERE WAS NO EVIDENCE BROUGHT ON RECORD S UGGESTING THAT THE INCOME DECLARED BY THE ASSESSEE IS NOT FROM AGRICUL TURAL SOURCE. ONCE THE ASSESSEE HAS CLAIMS BEFORE THE AO THAT THE INCOME I S FROM THE SOURCE OF THE AGRICULTURAL ACTIVITY ON THE BASIS OF DOCUMENTA RY EVIDENCE, THEN THE ONUS SHIFTS ON THE REVENUE TO PROVE OTHERWISE. IN H OLDING SO, WE FIND SUPPORT & GUIDANCE FROM THE ORDER OF THE LD. ITAT K OLKATA IN CASE OF LABORATORIES GRIFFON (P) LTD. REPORTED IN 93 TAXMAN N.COM 29 WHEREIN IT WAS HELD AS UNDER: WE NOTE THAT THE ASSESSEE HAS DISCHARGED THE INITI A ONUS CASTED UPON IT TO CLAIM THE EXPENDITURE BY SUBMITTING THE NAME, ADDRE SS, PAN ETC, (OF THE PROFESSIONALS) THE AO COULD NOT HAVE ADDED THE AMOU NTS BACK WITHOUT FURTHER VERIFICATION AND OUGHT NOT TO HAVE CASTED ANY DOUBT ABOUT THE GENUINENESS OF THE EXPENDITURE WITHOUT BRINGING ANY ADVERSE MATERI AL AGAINST THE ASSESSEE ITA NO.1834/AHD/2016 SHRI GOPALBHAI JOITARM PATEL VS. ITO ASST .YEAR - 2006-07 - 11 - 10.5. IN VIEW OF ABOVE, WE ARE NOT IMPRESSED WIT H THE FINDING OF LD. CIT(A) FOR HOLDING THAT THE CASH DEPOSIT AS UNEXPLA INED INCOME TO THE EXTENT OF THE AGRICULTURAL INCOME CLAIMED BEFORE US IN THE WRITTEN SUBMISSION. 10.6. SIMILARLY, THE INCOME SHOWN BY THE BROTH ER OF THE ASSESSEE NAMELY SHRI RAMESHBHAI J PATEL CANNOT BE GROUND FOR MAKING THE DISALLOWANCE OF THE SALE DECLARED BY THE ASSESSEE. 10.7. ALL THE TRANSACTIONS WERE DULY DISCLOSED BY THE ASSESSEE IN RELATION TO HIS AGRICULTURE INCOME. THERE WAS NO EV IDENCE BROUGHT ON RECORD SUGGESTING THAT THE INCOME SHOWN BY THE ASSE SSEE IS A COLORABLE DEVICE. IN OUR CONSIDERED VIEW, IT WAS THE DUTY OF THE AO TO PROVE WITH THE TANGIBLE EVIDENCES THAT THE INCOME SHOWN BY THE ASSESSEE WAS NOT AGRICULTURE INCOME. THEREFORE, THE INCOME SHOWN BY THE ASSESSEE CANNOT BE TREATED AS COLORABLE DEVICE TO ESCAPE FROM THE T AX LIABILITY IN THE GIVEN FACTS AND CIRCUMSTANCES. 10.8. WE ALSO NOTE THAT THE ASSESSEE HAS PRODU CED THE BANK STATEMENT TO JUSTIFY THE CASH WITHDRAWAL FROM BANK ACCOUNT WH ICH WAS UTILISED TO DEPOSIT THE SAME IN THE SAVING BANK ACCOUNT THE COP Y OF THE BANK STATEMENT AVAILABLE ON RECORD WHICH IS PLACED ON PA GES 15 TO 57 OF THE PAPER BOOK. HOWEVER THE LD. CIT (A) HAS DISREGARDED THE CONTENTION OF THE ASSESSEE WITHOUT ADDUCING ANY REASON. THERE IS ALSO NO ALLEGATION BY THE AUTHORITIES BELOW THAT THE AMOUNT WITHDRAWN BY THE ASSESSEE HAS EITHER BEEN INCURRED AS AN EXPENSE OR HAS BEEN INVE STED SOMEWHERE BY WAY OF CAPITAL EXPENDITURE. THEREFORE, WE CAN SAFEL Y PRESUME THAT THE ITA NO.1834/AHD/2016 SHRI GOPALBHAI JOITARM PATEL VS. ITO ASST .YEAR - 2006-07 - 12 - CASH WITHDRAWN BY THE ASSESSEE WAS AVAILABLE WITH H IM FOR DEPOSITING THE SAME IN THE SAVING BANK ACCOUNT. 10.9. WE ALSO NOTE THAT THE ASSESSEE HAS CLAIME D TO HAVE RECEIVED A LOAN OF RS.18,000/- FROM MR. HARSHADKUMAR BABULA PA TEL. HOWEVER, THE ASSESSEE HAS NOT FILED SUFFICIENT DOCUMENTARY EVIDE NCE IN SUPPORT OF THE IMPUGNED LOAN. THEREFORE, WE ARE INCLINED TO CONFIR M THE ADDITION FOR SUCH LOAN. 11. IN VIEW OF ABOVE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION MADE BY HIM EXCEPT TH E LOAN OF RS.18,000/- TAKEN FROM MR. HARSHADKUMAR BABULAL PATEL. HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 30/11/2018 SD/- SD/- (MAHAVIR PRASAD) (WASEEM AHME D) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 30 /11/2018 &.., .(.. / T.C. NAIR, SR. PS ITA NO.1834/AHD/2016 SHRI GOPALBHAI JOITARM PATEL VS. ITO ASST .YEAR - 2006-07 - 13 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)-GANDHINAGAR, AHMEDABAD 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 6 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// // / ( DY./ASSTT.REGISTRAR) $%, / ITAT, AHMEDABAD 1. DATE OF DICTATION (WORD PROCESSED BY HONBLE AM IN HIS COMPUTER) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27.11.2018 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER