Appeal details
Counselvise Citation
188624514 RSA 2012
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 7 month(s) 24 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
27-05-2014
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
B
Assessment Year
2009-2010
Appeal Filed On
03-10-2012
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 1886 / P N/ 20 1 2 ASSESSMENT YEAR : 200 9 - 10 THE INCOME TAX OFFICER, WARD 2(1 ), JEEVAN SUMAN 2 ND FLOOR, LIC BUILDING, N - 5, CIDCO, AURANGABAD VS. SHRI ASHISH TEJMALJI MUGDIYA, ADMIRE MENS & CHILDREN WEAR, TILAK PATH, PAITHAN GATE, AURANGABAD (APPELLANT) (RESPONDENT) PAN NO. AFUPM5477J APPELLANT BY: SHRI S.P. WALIMBE RES PONDENT BY: SHRI NIKHIL PATHAK DATE OF HEARING : 21 - 05 - 2014 DATE OF PRONOUNCEMENT : 27 - 05 - 2014 ORDER PER R.S . PADVEKAR , JM : - THIS APPEAL IS FILED BY THE REVENUE CHALLENGING THE IMPUGNED ORDERS OF THE LD. CIT(A) , AURANGABAD DATED 25 - 07 - 2012 FO R THE A.Y. 200 9 - 10. THE REVENUE HAS TAKEN THE FOLLOWING GROUND S IN THE APPEAL: 1. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WHETHER THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.40 LACS MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH DEPO SITS. 2. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WHETHER THE CIT (APPEALS) ERRED IN HOLDING THAT ONCE IDENTITY IS ESTABLISHED THEN GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF CREDITOR IS NOT RELEVANT AS THERE IS NO NEED TO PROVE THE SOURC E OF SOURCE. 3. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WHETHER THE CIT (APPEALS) HAS ERRED IN HOLDING THAT THE TRANSACTION ENTERED INTO BY THE ASSESSEE BY MAKING ISSAR PAVATI WITH THE FARMER IS GENUINE ONE, EVEN WHEN THE REASONS GIVEN BY THE AO ARE NOT FULLY REBUTTED/COMMENTED BY THE ASSESSEE. 2 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD 4. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WHETHER THE CIT (APPEALS) ERRED IN HOLDING THAT THE CREDIT WORTHINESS OF FARMER IS PROVEN BY MAKING GENERAL SUBMISSION AND AVOIDING SPECIFIC DETAILS/COM MENTS. 2. THE ISSUE IN CONTROVERSY IS THE ADDITION OF RS.40 LACS MADE BY THE ASSESSING OFFICER WHICH WAS DELETED BY THE LD. CIT(A). THE FACTS WHICH ARE REVEALED FROM THE RECORD AS UNDER. THE ASSESSEE IS CARRYING ON THE RETAIL GARMENTS BUSINESS UNDER THE PROPRIETORSHIP AS M/S. ADMIRE MEN AND CHILDREN WEAR S . HE ALSO DERIVES INCOME FROM BROKERAGE. THE ASSESSEE FILED THE RETURN OF INCOME FOR THE A.Y. 2009 - 10 DECLARING TOTAL INCOME OF RS.6,70,060/ - . THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY AND ASSESSM ENT HAS BEEN COMPLETED U/S. 143(3) OF THE INCOME - TAX ACT. IN RESPECT OF THE ISSUE BEFORE US THE FACTS WHICH ARE REVEALED FROM THE RECORD AS UNDER. IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS MADE THE CASH DEPOSITS OF RS.36,00,000/ - IN T HE SAVINGS BANK ACCOUNT WITH ICICI BANK. THE ASSESSING OFFICER SOUGHT THE EXPLANATION OF THE ASSESSEE ON THE SAID CASH DEPOSITS. THE ASSESSEE EXPLAINED TO THE ASSESSING OFFICER THAT THE SAID CASH DEPOSITS WERE MADE OUT OF THE ADVANCE OF RS.40,00,000/ - RE CEIVED FROM ONE SHRI LAXMAN BHAURAO JADHAV AND SHRI SUDHIR LAXMAN JADHAV IN RESPECT OF THE AGREEMENT TO SALE DATED 01 - 04 - 2008 WHICH WAS IN RESPECT OF THE CONSTRUCTED AREA IN THE BUILDING TO BE CONSTRUCTED AT CTS NO. 20719 AT KOKANWADI , AURANGABAD . THE ASS ESSING OFFICER ASKED THE ASSESSEE TO PRODUCE SHRI LAXMAN JADHAV. ACCORDINGLY, SHRI LAXMAN JADHAV APPEARED BEFORE THE ASSESSING OFFICER ON 01 - 12 - 2011 AND HIS STATEMENT WAS ALSO RECORDED. THE ASSESSING OFFICER ASKED THE ASSESSEE WHY THE ADDITION OF RS.36,0 0,000/ - SHOULD NOT BE MADE ? 3. THE ASSESSEE RESISTED THE ACTION OF THE ASSESSING OFFICER. THE ASSESSEE STATED THAT THE SAID TRANSACTION HAS BEEN DISCLOSED BY THE 3 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD ASSESSEE. THE ASSESSEE ALONG WITH SHRI RAVINDRA BABULAL JAIN HAS ENTERED INTO A DEVELOPME NT AGREEMENT WITH ONE SHRI SHAIKH KHALILLULLAH ON 23 - 07 - 2007 FOR DEVELOPMENT OF 60 , 000 SQ. FT. AREA OUT OF WHICH 30 , 000 SQ. FT. AREA WOULD BE GIVEN TO ONE SHRI SHAIKH KHALILLULLAH AND 30 , 000 SQ. FT. AREA WOULD BE AVAILABLE WITH THE DEVELOPERS I.E. THE ASSE SSEE AND SHRI RAVINDRA BABULAL JAIN. THE ASSESSEE ALSO CONTENDED THAT THERE WAS A ISSAR PAVATI DATED 23 - 07 - 2007 EVEN THOUGH THE AGREEMENT WAS MADE ON STAMP PAPER OF RS.500/ - . THE ASSESSEE ALSO CLARIFIED IN DATE OF THE AGREEMENT AND ALSO EXPLAINED THAT COURT MATTER WAS GOING ON. THE ASSESSEE ALSO EXPLAINED THAT SHRI LAXMAN JADHAV IS AN AGRICULTURIST AND HE HAS GOOD SOURCE OF INCOME FROM AGRICULTURE. IN THE STATEMENT RECORDED SHRI LAXMAN JADHAV ACCEPTED THAT HE HAS PAID RS.40,00,000/ - IN CASH TO THE ASS ESSEE IN INSTALLMENTS IN THE MONTH OF APRIL, 2008 AND SEPTEMBER, 2008. IN SUM AND SUBSTANCE THE ASSESSEE EXPLAINED THAT RS.40,00,000/ - WERE GIVEN BY SHRI LAXMAN JADHAV TO THE ASSESSEE. THE ASSESSING OFFICER WAS NOT CONVINCED WITH THE EXPLANATION OF THE A SSESSEE AND HE MADE THE ADDITION OF RS.40,00,000/ - . THE OPERATIVE PART OF THE FINDING OF THE ASSESSING OFFICER ARE AS UNDER: 18. IN VIEW OF ABOVE, IT IS CLEAR THAT THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF SHR I. LAXMAN B. JADHAV. UNDER THE CIRCUMSTANCES AND AS DISCUSSED IN THE PRECEDING PARAS, I AM OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS DEPOSITED THE CASH OF RS.36,00,000/ - IN ICICI BANK AND THE SOURCE OF WHICH HE IS UNABLE TO EXPLAIN. THE ASSESSEE WAS UNABLE TO PROVE THE SOURCES OF THE SAME, HE HAS TRIED TO CREATE EVIDENCE FOR SOURCES BY WAY OF ISSARPAVATI DT.01/04/2008 WITH SHRI. LAXMAN JADHAV AND DRAWN A CONCOCTED/FAKE STORY, WHICH HAS NOT BEEN PROVED TO THE SATISFACTION.. UNDER THESE CIRCUMSTANCES, THE SAID CASH DEPOSITS OF RS.36,00,000/ - ARE TAXED IN THE HANDS OF THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCES U/S. 69 OF THE INCOME TAX ACT. BY CREDITING SUCH ADVANCES IN BANK, THE ASSESSEE HIMSELF HAS ADMITTED THAT HE HAD MADE VARIOUS INVESTMENTS LIKE 4 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD REPAYMENT/ADVANCE OF LOAN, CREATION OF A CAPITAL IN VARIOUS PROPRIETARY CONCERNS AS WELL AS FIRMS IN WHICH HE IS PARTNER, INVESTMENT IN AGRICULTURAL LAND AT ITKHEDA, PURCHASE ADVANCE FOR PLOT NO. 129, N - 3, CIDCO, AND OTHER ASSETS. AS SUCH, THE AMOUNT OF RS.36,00,000/ - IS TAXED U/S.69 OF THE I.T. ACT, AS UNEXPLAINED INCOME AND ADDITION TO THAT EXTENT IS MADE TO THE TOTAL INCOME OF THE ASSESSEE. THE AMOUNT IS ADDED ON SUBSTANTIVE BASIS. PENALTY PROCEEDINGS U/S. 271(L)(C) R.W. EXPLN. (L) OF THE ACT ARE INIT IATED FOR FURNISHING OF INACCURATE PARTICULARS OF TAXABLE INCOME. 19. IT IS SEEN THAT ASSESSEE HAS RECEIVED AMOUNT OF RS.40,00,000/ - , THE AMOUNT OF RS.36,00,000/ - IS ADDED IN AFORESAID PARAS. THE REMAINING AMOUNT OF RS.4,00,000/ - IS ALSO ADDED TO THE INCOM E OF THE ASSESSEE FOR SIMILAR REASON, AS TOTAL AMOUNT OF RS.40,00,000/ - IS SHOWN AS ADVANCE IN THE STATEMENT OF AFFAIRS/BALANCE SHEET FILED IN THE RETURN WITH HAS BEEN ELECTRONICALLY FILED BY THE ASSESSEE ON 31/03/2010. THE AMOUNT IS ADDED ON SUBSTANTIVE B ASIS. AS DISCUSSED ABOVE, SINCE THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF HIS INCOME, PENALTY PROCEEDINGS UNDER SECTION 271 (L)(C) EXPLN. (L) OF THE ACT, ARE SEPARATELY INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME ON THIS ACCOUNT. 4. THE ASSESSEE CHALLENGED THE SAID ADDITION BEFORE THE LD. CIT(A) AND LD. CIT(A) DELETED THE ADDITION. THE OPERATIVE PART OF THE FINDING OF THE LD. CIT(A) ARE AS UNDER: 7. THE CREDITWORTHINESS OF SHRI LAXMAN JADHAV HAS NOT BEEN ACCEPTED BY THE A.O. FOR THE REASON THAT THE COPIES OF 7/12 EXTRACTS OF THE LAND BELONGING TO SHRI LAXMAN JADHAV HAVE NOT BEEN PRODUCED BY HIM DIRECTLY BUT THE APPELLANT HAS OBTAINED THE SAME DIRECTLY FROM SETU OFFICE OF REVENUE DEPARTMENT. THE A.O. HAS FURTHER POINTED OUT THAT SHRI LAXMAN JADHAV HAS NOT SUBMITTED EVIDENCE IN THE FORM OF SALE BILLS OF AGRICULTURAL PRODUCE IN SUPPORT OF THE AGRICULTURAL INCOME. THE A.O. FURTHER STATED THAT SHRI LAXMAN JADHAV HAS TAKEN LOANS FROM VARIOUS BANKS AGAINST THE SECURITY OF AGRICULTURAL L AND AMOUNTING TO RS.8,65,500/ - AND HAS NOT REPAID THE SAME. 5 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD 7.1 IN THIS REGARD, THE APPELLANT HAS POINTED OUT THAT THE FACT THAT SHRI LAXMAN JADHAV OWNED SUBSTANTIAL AGRICULTURAL LAND IS ONLY RELEVANT AND NOT WHO HAS OBTAINED AND FILED THE SAID 7/12 EXTRA CT. THE APPELLANT POINTED OUT THAT IT IS NOT THE PRACTICE OF THE AGRICULTURISTS TO MAINTAIN AND PRESERVE SALE BILLS OF AGRICULTURAL PRODUCE AND MANY TIMES THE AGRICULTURAL PRODUCE IS SOLD TO THE TRADERS WITHOUT ISSUING ANY SALE BILL AS THE AGRICULTURISTS D O NOT MAINTAIN SALE BILLS NEITHER THE TRADERS ISSUE ANY BILL OR RECEIPT FOR PURCHASING THE AGRICULTURAL PRODUCE. THE APPELLANT HAS FURTHER POINTED OUT THAT THE RICH AGRICULTURISTS TAKE AGRICULTURAL LOANS AT LOWER RATE OF INTEREST AVAILABLE TO THEM FROM THE BANKS AND INVEST THE SAME IN REAL ESTATE FOR EARNING HANDSOME RETURNS. THE APPELLANT FURTHER SUBMITTED THAT THE BANK LOANS WERE REPAID IN PRESCRIBED INSTALLMENTS WITHIN TIME BY SHRI LAXMAN JADHAV AS CAN BE NOTED FROM THE BANK LOAN EXTRACTS. 8. FURTHER TH E APPELLANT HAS SUBMITTED THAT SHRI LAXMAN JADHAV IS HAVING PAN AS AMPPJ0248J AND HAS BEEN PRODUCED BEFORE THE A.O. AND HAS ALSO CONFIRMED THE AMOUNT OF RS.40,00,000/ - PAID TO THE APPELLANT AND HENCE THE IDENTITY OF SHRI LAXMAN JADHAV AND GENUINENESS OF TH E TRANSACTION HAS BEEN PROVED. THE APPELLANT HAS SUBMITTED THAT THE CREDITWORTHINESS OF SHRI JADHAV IS ALSO PROVED FROM THE FACT THAT HE HAS OWNED SUBSTANTIAL AGRICULTURAL LAND. THE APPELLANT HAS FURTHER CLAIMED THAT IN VIEW OF THE ABOVE FACTS AND AS SHRI JADHAV HAS CONFIRMED THE AMOUNT ADVANCED TO THE APPELLANT, THE A.O. CANNOT TREAT THE AMOUNT RECEIVED BY THE APPELLANT AS NON - GENUINE; IN SUCH CASES, THE A.O. CANNOT ASK THE ASSESSEE TO PROVE THE SOURCE OF THE SOURCE; THE A.O. IN SUCH CASE CAN TAKE STEPS TO VERIFY THE SOURCE OF THE AMOUNT IN THE CASE OF THE PERSON WHO HAS ADVANCED THE AMOUNT. THIS PROPOSITION/CONTENTION IS SUPPORTED BY THE FOLLOWING DECISIONS (1) S. HASTIMAL VS. CIT (1963) 49 ITR 2.73 (MADRAS) (2) TOLARAM DAGA VS. CIT (1966) 59 ITR 632 (ASSAM) (3) CIT VS. DAULATRAM RAWATMAL (1973) 87 ITR 349 (SC) (4) SAROGI CREDIT CORPORATION VS. CIT (1976) 103 ITR 344 (PATNA) (5) CIT VS. LOVELY EXPORTS (P.) LTD. (2008) 216 CTR 195 (SC) 8.1 FURTHER, IN SUPPORT OF THE CONTENTION THAT THE AMOUNT ADVANCED BY SHRI LAXMAN JADHAV CANNOT BE ADDED U/S. 69 BY 6 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD TREATING THE TRANSACTIONS AS NON - GENUINE, THE APPELLANT HAS RELIED ON THE FOLLOWING DECISIONS (1) CIT VS. DIVINE LEASING & FINANCE LTD. (2008) 299 ITR 268 (DELHI) (2) AUROBINDO SANITARY STORES VS. CIT (20 05) 276 ITR 549 (ORISSA) (3) DR. R.L. NARANG VS. ITO 174 TAXMAN 96 (CHD ITAT) (4) CIT VS. BALBIR SINGH MOHINDER SINGH (P&H) (5) ITO VS. LAXMAN DAS MAKHIJA (2009) 116 ITD 47 (ITAT, AGRA) (6) ITO VS. ASHOK KUMAR AGGRAWAL (ITAT) 9. THE A.O. VIDE LETTER DAT ED 18/06/2012 WAS ASKED TO SUBMIT HIS REPORT ON THE DECISIONS RELIED ON BY THE APPELLANT AND ALSO SUBMISSION OF THE APPELLANT IN THE APPEAL MEMO. THE A.O. HAS FILED REPORT ON THE SUBMISSION AND THE DECISIONS RELIED ON BY THE APPELLANT VIDE LETTER DATED 03/ 07/2012. IN THE REMAND REPORT THE A.O. HAS RAISED FOLLOWING CONTENTIONS (1) THE ASSESSEE HAS NOT GIVEN COMMENTS IN RESPECT OF GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE CREDITOR AND HENCE HE HAS NOT DISCHARGED HIS ONUS FULLY. (2) THE D ECISION RELIED ON BY THE APPELLANT IN THE CASE OF CIT VS. LOVELY EXPORTS PVT. LTD. (2008) 216 CTR 295 (SC) IS DISTINGUISHABLE ON FACTS SUCH AS THE SAID CASE WAS REGARDING SHARE APPLICATION MONEY AND IDENTITY OF SHARE APPLICANTS WHEREAS IN THE CASE UNDER AP PEAL THE ISSUE WAS OF ADVANCE AGAINST PROPERTY; IN THE CASE OF LOVELY EXPORTS PVT. LTD., TRANSACTION WAS THROUGH BANKING CHANNEL WHEREAS IN THE INSTANT CASE THE TRANSACTION WAS IN CASH; IN THE CASE OF LOVELY EXPORTS SOME OF THE SHARE APPLICANTS WERE REGULA RLY ASSESSED TO TAX WHEREAS IN THE CASE UNDER APPEAL THE LENDER IS NOT ASSESSED TO TAX; IN THE CASE OF LOVELY EXPORTS THE A.O. HAS FAILED TO INVESTIGATE THE CREDITWORTHINESS OF THE SHARE APPLICANTS WHEREAS IN THE CASE UNDER APPEAL THE A.O. HAS INVESTIGATED THE CREDITWORTHINESS OF THE LENDER. THE DECISION IN THE CASE OF CIT VS. LOVELY EXPORTS PVT. LTD. (SUPRA) HAS BEEN CONSIDERED SUBSEQUENTLY IN TWO DECISIONS IN THE CASES OF CIT VS. NOVA PROMOTERS FINANCE LEASE (P) LTD. IN ITA NO.342 OF 2011 VIDE ORDER DATED 15/02/2012 (DELHI HIGH COURT) AND CIT VS. MKP DISTRIBUTORS (P) LTD. ITA NO.157 AND 993/MUM/2008. IN THESE DECISIONS THE ISSUE HAS BEEN DECIDED 7 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD IN FAVOUR OF REVENUE AFTER CONSIDERING THE DECISION IN THE CASE OF LOVELY EXPORTS. (3) THE A.O. HAS FURTHER CLA IMED THAT THE DECISIONS RELIED ON BY THE APPELLANT IN THE CASES OF TOLARAM DAGA VS. CIT (1966) 59 ITR 632 (ASSAM), CIT VS. DAULATRAM RAWATMAL (1973) 87 ITR 349 (SC) AND S. HASTIMAL VS. CIT (1963) 49 ITR 273 (MADRAS) ARE DISTINGUISHABLE ON FACTS AND HENCE A RE NOT APPLICABLE TO THE FACTS OF THE CASE OF THE APPELLANT. (4) IN SUPPORT OF THE ADDITION OF RS.40,00,000/ - , THE A.O. HAS RELIED ON THE FOLLOWING DECISIONS - (A) MUKESH SHAW VS. ITO 246 CTR 82 (JHA) (B) PRADEEP KUMARVS.IT0244CTR116 (JHA) (C) BHOLA SHANK AR COLD STORAGE VS. JCIT 31 SITC 134 (CAL) (D) CIT VS. KUNDAN INVESTMENTS LTD. 2 5 SITC 266 (CAL) (E) CIT VS. RUBY TRADERS 28 SITC 302 (CAL (5) THE ADDITION U/S 69 CAN BE MADE IN RESPECT OF CASH DEPOSITS IN BANK ACCOUNT. IN SUPPORT OF THIS PROPOSITION THE A.O. HAS RELIED ON THE DECISIONS IN THE CASE OF LALUMAL VS. CIT 126 ITR 52 AND DEO NARAYAN BHADANI VS. CIT 164 ITR 501. (5) THE DECISIONS RELIED ON BY THE APPELLANT IN THE CASES OF CIT VS. DEVINE LEASING & FINANCE LTD. 299 ITR 268 (SC), DR. R.L NARANG VS. ITO 174 TAXMAN 96 (CHANDIGARH), CIT VS. LAXMANDAS MAKHIJA (2009) 116 ITD 47 (ITAT, AGRA), CIT VS. BALBIRSINGH BHUVANSINGH (P&H), IN SUPPORT OF THE CONTENTION THAT THE ADDITION CANNOT BE MADE U/S 69 ARE DISTINGUISHABLE ON FACTS AND HENCE NOT APPLICABLE TO T HE FACTS OF THE CASE OF THE APPELLANT. 9.1 THE APPELLANT HAS FILED COUNTER COMMENTS ON THE REPORT OF THE A.O. ON 05/07/2012. THE CONTENTIONS RAISED BY THE APPELLANT IN THE COUNTER COMMENTS ARE SUMMARIZED AS UNDER (1) THE APPELLANT HAS PROVED THE GENUINEN ESS OF THE TRANSACTION AND THE CREDITWORTHINESS OF THE CREDITOR BEYOND DOUBT AS THE STATEMENT OF THE THIRD PARTY I.E. THE CREDITOR HAS BEEN RECORDED ON OATH BY THE 8 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD A.O. IN WHICH THE FACT OF ADVANCING THE AMOUNT OF RS.40,00,000/ - HAS BEEN CONFIRMED. (2) THE A.O. HAS CLAIMED THAT THE FACTS OF THE CASES OF CIT VS. LOVELY EXPORTS PVT. LTD. (2008) 216 CTR 295 (SC), TOLARAM DAGA VS. CIT (1966) 59 ITR 632 (ASSAM), CIT VS. DAULATRAM RAWATMAL (1973) 87 ITR 349 (SC) AND S. HASTIMAL VS. CIT (1963) 49 ITR 273 (MADRAS) ARE DISTINGUISHABLE. HOWEVER, THE ISSUE INVOLVED WAS SIMILAR AND THE RATIO LAID DOWN BY THE SAID DECISIONS IS APPLICABLE TO THE CASE OF THE APPELLANT. (3) THE DECISIONS RELIED ON BY THE A.O. ARE DISTINGUISHABLE ON FACTS. IN SUPPORT OF THIS CONTENTION THE A PPELLANT HAS SUBMITTED AS UNDE R 5. LD. AO HAS PLACED RELIANCE ON MUKESH SHAW VS. HO (JHA) 246 CTR 82 WHEREIN HON'BLE HIGH COURT CONFIRMED ADDITION U/S 68 EVEN AFTER THE DONOR ADMITTED THAT HE HAS GIVEN GIFT TO THE ASSESSEE. COURT FURTHER HELD THAT WHET HER IT COULD BE BELIEVED THAT THE DONOR WENT ON WITHDRAWING CASH FROM BANK AND KEPT MONEY WITH HIM FOR FIVE YEARS. IN THE INSTANT CASE SHRI JADHAV DID NOT WITHDRAW AMOUNTS FROM ANY BANK. HE KEPT THE CASH DERIVED OUT OF AGRICULTURAL ACTIVITIES WITH HIM, AS HAS BEEN STATED IN HIS STATEMENT RECORDED ON OATH. 6. AMONGST OTHER CASES, LD. AO HAS RELIED UPON BHOLA SHANKAR COLD STORAGE VS. JT. CIT CALCUTTA (31 SITC 134), WHEREIN AMOUNTS WERE DEPOSITED IN THE ACCOUNTS OF THE FANNERS WHOSE ACCOUNTS WERE OPENED ON THE SAME DAY AND SHARE APPLICATION MONEY WAS PAID FROM THE SAID ACCOUNTS. THIS TRANSACTION WAS QUESTIONED AND ASSESSED BY LIFTING THE VEIL. THE SITUATION IN THE INSTANT CASE IS DIFFERENT. 7. FOR MAKING ADDITION U/S 69, BESIDES OTHER CASE, THE ID AO HAS RELIED UPON DEO NARAYAN BHADANI VS. CYT (164 ITR 501) WHEREIN ADDITION WAS MADE ON ACCOUNT OF UNDISCLOSED INVESTMENT. IN THE INSTANT CASE NONE OF THE INVESTMENTS ARE UNDISCLOSED AND HENCE ADDITION U/S 69 IS NOT SUSTAINABLE.' 9 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD (4) IN SUPPORT OF THE CONTENTION THAT THE ASSESSEE CANNOT BE ASKED TO PROVE THE SOURCE OF THE CREDITORS, THE APPELLANT HAS FURTHER SUBMITTED AS UNDER 'FURTHER, THE APPELLANT RELIES ON JUDGMENT IN THE CASE OF M/S. MOONGIPA INVESTMENT LIMITED VS. ITO, WARD 5(4), NEW DELHI ITA NO. 2605/DEL /2007 DECIDED ON 05.08.2011. BRIEF EXCERPTS OF THE JUDGEMENT ARE REITERATED AS UNDER' 'SINCE THE ASSESSEE HAS PROVED THE IDENTITY AND ALSO CREDITWORTHINESS OF THESE LENDERS, THE ASSESSEE CANNOT BE ASKED TO PROVE THE SOURCE OF THE CREDITORS . THERE IS NO EVI DENCE ON THE RECORD WHICH COULD SHOW THAT THE DEPOSITS MADE IN THE BOOKS OF ACCOUNT OF THE CREDITORS WERE FROM THE MONEY BELONGING TO THE ASSESSEE ITSELF. SIMILARLY, THE EXPLANATION ABOUT THE SOURCE OF DEPOSIT IN THE CREIDTORS ACCOUNT, IF NOT FOUND TO BE A CCEPTABLE, THEN ALSO THE ADDITION CANNOT BE MADE IN THE HANDS OF THE ASSESSEE. IT MAY BE SUBJECTIVE TO THE PROCEEDINGS FOR INCLUSION OF THE AMOUNT AS INCOME OF THE DEPOSITORS FROM THE UNDISCLOSED SOURCES OR IF THEY ARE FOUND BENAMI THEN THE REAL OWNER CAN BE BROUGHT O THE TAX. IN VIEW OF THESE FACTS, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THIS ISSUE. THUS, GROUND NO. 1 IS ALLOWED.' GOING BY THE JUDGMENT OF THE CASE, SUPRA, THE APPELLANT HAS DISCHARGED THE ONUS CAST UPON HIM AND SHOULD NOT BE MA DE TO SUFFER BY ADDITION OF THE AMOUNT, IN HIS HANDS, GIVEN TO HIM BY SHRI LAXMAN B. JADHAV IN THE COURSE OF A NORMAL BUSINESS TRANSACTION.' 7. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND RIVAL CONTENTIONS. THE A.O. HAS NOT ACCEPTED THE CLAIM OF THE APPELLANT THAT HE HAS RECEIVED ADVANCE OF RS.40,00,000/ - AGAINST THE PROPOSED SALE OF PREMISES ON TWO COUNTS. THE A.O. HAS TREATED THE TRANSACTION CLAIMED BY THE APPELLANT AS PER AGREEMENT AND 'ISAR PAVATI' I.E. ADVANCE RECEIPT AS NON - GENUINE TRANSACT ION AND HAS STATED VARIOUS REASONS FOR THE SAME WHICH HAVE BEEN REPRODUCED IN 10 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD THE PRECEDING PARA. THE APPELLANT HAS REASONABLY REBUTTED THE SAID REASONS STATED BY THE A.O. AS DISCUSSED IN THE PRECEDING PARA. THE OTHER CONTENTION OF THE A.O. IS THAT THE APP ELLANT HAS NOT PROVED THE CREDITWORTHINESS OF SHRI LAXMAN JADHAV. IN THIS REGARD, FROM THE SUBMISSION OF THE APPELLANT IT HAS BEEN NOTICED THAT SHRI LAXMAN JADHAV HAS OWNED SUBSTANTIAL AGRICULTURAL LAND AND IS EARNING AGRICULTURAL INCOME SINCE LAST 20 YEAR S. FURTHER, THE REASONS MENTIONED BY THE A.O. FOR NOT ACCEPTING THE CREDITWORTHINESS OF SHRI JADHAV HAVE BEEN REASONABLY REBUTTED BY THE APPELLANT AS MENTIONED IN THE PRECEDING PARA. IN THIS CASE, IT IS UNDISPUTED FACT THAT THE APPELLANT HAS PRODUCED SHRI LAXMAN JADHAV BEFORE THE A.O. FOR VERIFICATION AS REQUIRED BY THE A.O. THE A.O. HAS RECORDED STATEMENT ON OATH OF SHRI LAXMAN JADHAV IN WHICH HE HAS CONFIRMED THE AMOUNT OF RS.40,00,000/ - ADVANCED TO THE APPELLANT. IN THIS CASE, THE A.O. HAS ASKED THE APPE LLANT TO PROVE THE SOURCE OF THE SOURCE WHICH IS BEYOND THE CONTROL OF THE APPELLANT AS THE KNOWLEDGE OF THE SOURCE OF THE SOURCE CAN BE WITH THE PERSON WHO HAS ADVANCED THE AMOUNT. THIS PROPOSITION OF LAW IS SUPPORTED BY THE DECISION IN THE CASE OF (1) S. HASTIMAL VS. CIT (1963) 49 ITR 273 (MADRAS): IN THIS CASE IT HAS BEEN HELD THAT THE ASSESSEE CANNOT BE PRESUMED TO HAVE KNOWLEDGE ABOUT THE SOURCE OF SOURCE OR ORIGIN OF ORIGIN. (2) TOLARAM DAGA VS. CIT (1966) 59 ITR 632 (ASSAM) : (3) CIT VS. DAULA TRAM RAWATMAL (1973) 87 ITR 349 (SO : (4) SAROGI CREDIT CORPORATION VS. CIT (1976) 103 ITR 344 (PATNA) : IN THE ABOVE CASES, IT WAS HELD THAT EVEN IF THE CREDIT IS IN THE NAME OF CLOSELY RELATED PERSON, THE ASSESSEE CANNOT BE PRESUMED TO HAVE KNOWLEDGE OF THE SOURCE FROM WHICH THE DEPOSITOR OBTAINS THE MONEY. THE FACT THAT THE ASSESSEE WAS UNABLE TO SATISFY THE AUTHORITIES REGARDING THE SOURCE FROM WHICH THE DEPOSITOR DERIVED THE MONEY CANNOT BE USED AGAINST THE ASSESSEE. 7.1 THE A.O. HAS, HOWEVER, STATED IN THE REMAND REPORT THAT THE RATIO LAID DOWN IN THE ABOVE REFERRED DECISIONS RELIED ON BY THE APPELLANT IS NOT APPLICABLE TO THE FACTS OF THE CASE OF THE APPELLANT AND HAS STATED THAT THE FACTS OF THE SAID CASES ARE NOT IDENTICAL TO 11 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD THE FACTS OF THE CASE OF THE APPELLANT. IT IS TRUE THAT THE FACTS OF TWO DIFFERENT CASES CANNOT BE IDENTICAL, HOWEVER, CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE, THE RATIO LAID DOWN IN THE DECISIONS OF THE HON'BLE COURTS CAN BE APPLIED TO THE CASES WHILE DECIDING THE AP PEALS. THEREFORE, THIS CONTENTION OF THE A.O. IS NOT ACCEPTED. 7.2 FURTHER, IN THE REMAND REPORT, THE A.O. HAS RELIED ON VARIOUS DECISIONS IN SUPPORT OF THE ADDITION OF RS.40,00,000/ - . HOWEVER, THE RATIO LAID DOWN BY THE SAID DECISION IS NOT APPLICABLE TO THE FACTS OF THE CASE OF THE APPELLANT IN VIEW OF THE TOTALITY OF THE FACTS OF THE CASE OF THE APPELLANT. THE FACTS OF THE SAID CASES RELIED ON BY THE A.O. AND THE CASE OF THE APPELLANT ARE AS UNDER (A) MUKESH SHAW VS. ITO 246 CTR 82 (THA) IN THIS C ASE, THE ASSESSEE HAS CLAIMED GIFT FROM HIS FATHER IN LAW IN CASH IN THE YEAR 2004 TO THE EXTENT OF RS.8,00,000/ - . IT WAS CLAIMED ON BEHALF OF THE ASSESSEE THAT THE SAME IS OUT OF CASH WITHDRAWALS FROM THE BANK ACCOUNT. IN THE STATEMENT RECORDED ON OATH TH E DONOR HAS CONFIRMED THE GIFT. HOWEVER, THE A.O. HAS BROUGHT ON RECORD THE FACT THAT THE TOTAL WITHDRAWALS FROM THE BANKS OF THE DONOR DURING LAST SIX YEARS WAS RS.7,50,900/ - AND HENCE AFTER CONSIDERING HOUSEHOLD EXPENSES OF THE DONOR IT IS NOT POSSIBLE F OR THE DONOR TO GIVE GIFT OF RS.8,00,000/ - . IN THE CASE OF THE APPELLANT, THE APPELLANT HAS RECEIVED ADVANCE AGAINST PROPOSED SALE OF PROPERTY FROM A THIRD PARTY WHICH IS NOT RELATED TO THE APPELLANT AND WHOSE CREDITWORTHINESS HAS BEEN PROVED FROM THE AGRI CULTURAL LANDS HELD BY HIM. (B) PRADEEP KUMAR VS. ITO 244 CTR 116 (THA) IN THIS CASE, THE ALLEGED CREDITOR WAS EARNING MEAGER INCOME OF. RS.300/ - PER MONTH AND COULD NOT EXPLAIN THE SOURCE OF THE SAID MEAGER INCOME AND HENCE IT WAS HELD THAT HE CANNOT ADVANCE A SUM OF RS.1,33,000/ - TO THE ASSESSEE AND THE RATIO LAID DOWN BY THE DECISION IS NOT APPLICABLE TO THE CASE OF THE APPELLANT. 12 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD IN THE CASE OF THE APPELLANT THE CREDITOR HAS OWN SUBSTANTIAL AGRICULTURAL LAND AND HENCE FACTS OF THE CASE RELIED ON BY T HE A.O. ARE DISTINGUISHABLE. (C) BHOLA SHANKAR COLD STORAGE VS. TCIT 31 SITC 134 (CAL). (2004) 270 ITR 487 (CAL) IN THIS CASE, THE HON'BLE COURT HAS FOUND THAT MOST OF THE CREDITORS WERE FARMERS WITH NEGLIGIBLE AGRICULTURAL LAND HAVING NO OTHER SOURCE OF INCOME; THEIR BANK ACCOUNTS WERE OPENED BY THE ASSESSEE ON A SINGLE DAY JUST TO DEPOSIT A HUGE SUM OF MONEY AND THE AMOUNT WAS WITHDRAWN FROM BANK FROM THE BANK ACCOUNTS FOR MAKING INVESTMENT BY THE ASSESSEE AND EVEN THE NUMBERS OF BANK DRAFTS WERE IN S ERIAL ORDER. IN THE CASE OF THE APPELLANT NO SUCH FACTS EXISTED AND THE CREDITOR WAS FOUND TO BE THE OWNER OF THE SUBSTANTIAL AGRICULTURAL LAND. (D) CIT VS. KUNDAN INVESTMENTS LTD. 25 SITC 266 (CAL). (2003) 263 ITR 626 (CAL.) IN THIS CASE, THE CREDITWO RTHINESS OF THE CREDITORS WAS NOT ESTABLISHED AS THE ASSESSEE HAS NOT FILED CONFIRMATORY LETTERS AND HAS NOT PRODUCED THE CREDITORS AND ALSO HAS NOT FILED THE INCOME TAX NUMBER (PAN) OF THE SAID CREDITORS. IN THE CASE UNDER APPEAL, THE APPELLANT HAS PRODUC ED THE CREDITOR AND HAS ALSO FILED PAN OF THE CREDITOR AND IN VIEW OF SUBSTANTIAL LAND HOLDING OF THE CREDITOR HIS CREDITWORTHINESS HAS BEEN PROVED. (E) CIT VS. RUBV TRADERS 28 SITC 302 (CAL). 182 CTR 596 (CAL) IN THIS CASE, IN RESPECT OF MOST OF THE CREDITS THE ASSESSEE HAS FILED LIST OF THE CREDITORS ONLY AND HAS NOT PROVED THEIR IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. IN THE CASE UNDER APPEAL, THE APPELLANT HAS FILED COPY OF AGREEMENT WITH THE CREDITOR IN SUPPORT OF THE ADVANC E RECEIVED, 13 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD PRODUCED THE CREDITOR BEFORE THE A.O. WHO HAS CONFIRMED THE AMOUNT ADVANCED IN STATEMENT RECORDED ON OATH AND HIS CREDITWORTHINESS WAS ALSO PROVED IN VIEW OF SUBSTANTIAL LAND HOLDINGS. IN VIEW OF THE ABOVE FACTS AND DISCUSSION, THE RELIANCE PLA CED ON BY THE A.O. ON THE ABOVE DECISIONS IS MISPLACED. 7.3 FURTHER, IT HAS BEEN LAID DOWN BY HON'BLE SUPREME COURT IN THE CASE OF CIT VS. LOVELY EXPORTS (P) LTD. (2008) 216 CTR 195 (SC) THAT ONCE THE CREDITOR OR THE PERSON WHO HAS ADVANCED THE AMOUNT HAS CONFIRMED THE FACT OF ADVANCING THE AMOUNT THEN THE A.O. CANNOT ASK THE RECEIVER TO PROVE THE SOURCE OF THE SOURCE, HOWEVER, THE A.O. IS FREE TO TAKE ACTION/TO MAKE VERIFICATION OF THE PERSON ADVANCING THE AMOUNT. 7.4 IN THE REMAND REPORT THE A.O. HAS CLAI MED THAT THE FACTS OF THE CASE OF THE APPELLANT AND THE FACTS OF THE CASE OF CIT VS. LOVELY EXPORTS PVT. LTD., (2008) 216 CTR 195 (SC) ARE DIFFERENT. THE A.O. HAS FURTHER CLAIMED THAT THE SAID DECISION OF CIT VS. LOVELY EXPORTS PVT.LTD. HAS BEEN CONSIDERED BY HON'BLE DELHI HIGH COURT CIT VS. NOVA PROMOTERS FINANCE LEASE (P) LTD. IN ITA NO.342 OF 2011 VIDE ORDER DATED 15/02/2012 AND THE HON'BLE COURT HAS DECIDED THE ISSUE IN FAVOUR OF THE REVENUE. IN THIS REGARD IT HAS BEEN NOTICED THAT IN THIS CASE, THE VAR IOUS COMPANIES HAVE BEEN INCORPORATED FOR INTRODUCING CREDIT ENTRIES OF SHARE APPLICATION MONEY. THE MODUS OPERAND OF INTRODUCING BOGUS CREDIT ENTRIES OF SHARE APPLICATION MONEY HAS BEEN PROVED BY THE DEPARTMENT BY MAKING THE INVESTIGATION. THEREFORE, THE HON'BLE HIGH COURT HAS TREATED THE SAID CREDITS AS UNEXPLAINED THOUGH THE SAID COMPANIES HAVE CONFIRMED THE AMOUNT OF CREDIT. IN VIEW OF THESE FACTS, THE HON'BLE DELHI HIGH COURT HAS HELD THAT THE RATIO LAID DOWN IN THE CASE OF LOVELY EXPORTS PVT. LTD. (20 08) 216 CTR 295 (SC) IS NOT APPLICABLE. IN THE CASE UNDER APPEAL NO SUCH FACTS EXISTED AND HENCE THE A.O. IS NOT JUSTIFIED IN HOLDING THAT THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF LOVELY EXPORTS PVT. LTD. IS NOT APPLICABLE TO THE CAS E OF THE APPELLANT. FROM THE REMAND REPORT IT HAS ALSO BEEN NOTICED THAT THE A.O. HAS TAKEN STEPS TO GET THE ENQUIRY DONE IN THE CASE OF THE CREDITOR BY THE CONCERNED A.O. BY ISSUING NOTICE U/S 148 FOR VERIFYING SOURCE OF THE SOURCE. 14 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD 7.5 IN VIEW OF THE ABO VE FACTS AND DISCUSSION, I AM OF THE CONSIDERED VIEW THAT THE APPELLANT HAS REASONABLY PROVED THE SOURCE OF THE AMOUNT OF RS.40,00,000/ - RECEIVED AS ADVANCE FROM SHRI LAXMAN JADHAV. THE A.O. IS, THEREFORE, NOT JUSTIFIED IN MAKING THE ADDITION OF RS.40,00,0 00/ - IN THE HANDS OF THE APPELLANT AND HENCE THE SAME IS DELETED. NOW THE REVENUE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. WE HAVE ALSO PERUSED THE REASONS GIVEN BY THE LD. CIT(A). THE LD. COU NSEL SUBMITS THAT IN THE CASE OF THE SHRI JADHAV, CREDITOR THE ASSESSING OFFICER HAS MADE THE ADDITION OF RS.40,00,000/ - FOR THE A.Y. 2009 - 10 REJECTING THE CLAIM OF SHRI LAXMAN JADHAV THAT HE HAS THE SUBSTANTIAL INCOME FROM THE AGRICULTURE. THE ASSESSEE A LSO FILED THE COPY OF THE ASSESSMENT ORDER IN THE CASE OF SHRI LAXMAN JADHAV FOR THE A.Y. 2009 - 10 DATED 28 - 03 - 2013. IT APPEARS THAT ON THE BASIS OF STATEMENT RECORDED IN THE ASSESSMENT PROCEEDINGS OF THE ASSESSEE THE ASSESSING OFFICER ISSUED THE NOTICE U/ S. 148 TO SHRI LAXMAN JADHAV ON THE PREMISES THAT HE ADMITTED THAT HE HAD PAID RS.40,00,000/ - TO THE ASSESSEE AS AN ADVANCE TOWARDS THE PURCHASE OF SHOP. AS NOTED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER PASSED IN THE CASE OF SHRI LAXMAN JADHAV (P AGE NO. 1), SHRI JADHAV STATED THAT AN ADVANCE OF RS.40,00,000/ - HAS BEEN MADE OUT OF CASH AVAILABLE AT HOME OUT OF AGRICULTURAL INCOME OF THE FAMILY OVER THE PERIOD OF YEAR S . SHRI JADHAV ALSO FILED THE CAPITAL ACCOUNTS AND BALANCE SHEET FOR THE F.Y. 2005 - 06 TO F.Y. 2008 - 09. THE ADMISSION OF SHRI JADHAV IN HIS OWN ASSESSMENT PROCEEDINGS IS AS UNDER: 1. ON VERIFICATION OF RETURN OF INCOME FOR A.Y.2009 - 10, IT IS SEEN THAT YOU HAVE SHOWN AN ADVANCE OF RS.40 LACS TO MR. ASHISH MUGDIYA TOWARDS SHOP PURCHASE. THE SAID TRANSACTION FOR PURCHASE OF SHOP HAS NOT YET MATERIALIZED TILL DATE. DURING THE COURSE OF 15 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD ASSESSMENT PROCEEDING, YOUR AUTHORIZED REPRESENTATIVE WAS REQUIRED TO SUBSTANTIATE THE SOURCES OF ADVANCE AMOUNTING TO RS.40 LACS MADE DURING THE YEAR. IN CO MPLIANCE TO THE SAME, IT HAS BEEN STATED THAT AN ADVANCE OF RS.40 LACS HAS BEEN MADE OUT OF CASH AVAILABLE AT HOME OUT OF AGRICULTURAL INCOME OF THE FAMILY OVER THE PERIOD OF YEARS. IN SUPPORT OF SUBMISSION, A COPY OF CAPITAL ACCOUNT AND BALANCE SHEET WITH EFFECT FROM F.Y.2005 - 06 TO F.Y.2008 - 09 HAS BEEN FILED. 6. IT IS SEEN THAT THE ASSESSING OFFICER DID NOT ACCEPT THE EXPLANATION OF SHRI LAXMAN JADHAV IN RESPECT OF HIS AGRICULTURAL ACTIVITY AND MADE THE ADDITION OF RS.40,00,000/ - . THE ARGUMENT OF THE LD. COUNSEL IS THAT ON C E SOURCE IS EXPLAINED BY THE ASSESSEE , THE ASSESSING OFFICER CANNOT GO ON ASKING FOR THE SOURCE OF THE SOURCE. HE RELIED ON THE FOLLOWING PRECEDENTS: (I). ROHINI BUILDERS 256 ITR 360 (GUJ) (II). MOD CREATIONS (P) LTD. VS. ITO 354 ITR 2 82 (DEL) (III). KANHAIALAL JANGID 217 CTR 354 (RAJ) (IV). METACHEM INDUSTRIES 245 ITR 160 (MP) (V). NEMI CHAND KOTHARI VS. CIT 264 ITR 254 (GAU) (VI) SAROGI CREDIT CORPORATION VS. CIT 103 ITR 344 (PAT) 7. IN THE PRESENT CASE, ADMITTEDLY SHRI LAXMAN JAD HAV HAS ADMITTED IN THE STATEMENT RECORDED BEFORE THE ASSESSING OFFICER AS WELL IN HIS OWN ASSESSMENT PROCEEDINGS THAT HE HAS MADE AN ADVANCE FOR PURCHASE OF THE SHOP IN THE PROPERTY WHICH THE ASSESSEE WAS GOING TO DEVELOP. SO FAR AS SEC. 68 IS CONCERNED THE ASSESSEE HAS DISCHARGED HIS BURDEN BY PROVING THE IDENTITY AND GENUINENESS OF THE TRANSACTION . THE ASSESSING OFFICER HIMSELF HAS MADE THE ADDITION IN THE HANDS OF SHRI LAXMAN JADHAV REJECTING HIS CLAIM IN RESPECT OF AGRICULTURAL INCOME. THE LAW IS 16 ITA NO. 1886/PN/2012, SHRI ASHISH TEJMALJI MUGDIYA, AURANGABAD WE LL SETTLED THAT ONCE THE ASSESSEE PROVED THE IDENTITY AS WELL AS GENUINENESS OF THE TRANSACTION HE IS UNDER NO LEGAL OBLIGATION U/S. 68 TO PROVE THE SOURCE OF THE SOURCE. IN THE PRESENT CASE EVEN THE ASSESSEE HAS PROVED THE SOURCE OF THE DEPOSITS MADE IN THE ICICI BANK. WE FIND NO MERIT IN THE APPEAL FILED BY THE REVENUE. ACCORDINGLY, ALL THE GROUNDS ARE DISMISSED. 8. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 27 - 05 - 20 1 4 SD/ - SD/ - ( R.K. PANDA ) ( R.S . PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 27 TH MAY, 20 1 4 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) , AURANGABAD 4 THE CIT, AURANGABAD 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE
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