ITO, Jaipur V. AJESH KUMAR AGARWAL, Jaipur

ITA 201/JPR/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5290 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 28-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Assessee Lawyers: MADHUKAR GARG; ANIRUDH GARG CA DH RKJ
• Keywords: Opportunity of being heard; Earning of tax free income; Assessment record
• Section: 143(3); 133(6); 131

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI T.R.MEENA, AM VK;DJ VIHY LA -@ ITA NO. 201/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 INCOME TAX OFFICER, WARD 1(2), JAIPUR. CUKE VS. AJESH KUMAR AGARWAL, KHANDAKA BHAWAN, BORADI KA RASTA, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ABJPA 7832 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT IZR;K{KSI.K @ C.O. NO. 24/JP/2013 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 201/JP/2013) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 AJESH KUMAR AGARWAL, KHANDAKA BHAWAN, BORADI KA RASTA, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 1(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA- @ PAN/GIR NO.: ABJPA 7832 Q IZR;K{KSID @ OBJECTOR IZR;FKHZ @ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI S.K. JAIN (DCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MADHUKAR GARG & SHRI ANIRUDH GARG (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27/04/2016. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 30/05/2016. ITA NO.201/JP/2013 & CO 24/JP/2013 ITO VS AJESH KUMAR AGARWAL 2 VKNS'K@ ORDER PER T.R. MEENA, A.M. THE APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE ARISE AGAINST THE ORDER DATED 31/12/2012 P ASSED BY THE LD. CIT(A)-I, JAIPUR FOR THE ASSESSMENT YEAR 2009-10 WHE REIN THE REVENUE AS WELL AS THE ASSESSEE RAISED FOLLOWING GROUNDS:- GROUND OF ITA NO. 201/JP/2013 REVENUES APPEAL ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A)-I, JAIPUR IS JUSTIFIED IN:- (I) GRANTING RELIEF OF RS. 56,94,231/- MADE BY THE A.O. ON ACCOUNT OF CAPITAL GAIN ON SALE OF LAND. (II) GRANTING RELIEF OF RS. 1,35,395/- MADE BY THE A.O. ON ACCOUNT OF HOUSE HOLD EXPENSES GROUND OF ASSESSEES C.O. NO. 24/JP/2013 1. THAT THE LD CIT(A) HAS ERRED IN HOLDING THAT THE CERTIFICATE ISSUED BY SHRI MADAN MEENA, SARPANCH OF GRAM PANCHAYAT IS HELD TO BE INVALID AND INADMISSIB LE EVIDENCE. THE SAID FINDING IS ILLEGAL AND UNJUSTIFIE D. 2. THAT THE LD CIT(A) HAS ERRED IN HOLDING THAT EXEMP TION U/S 10(37) IS NOT ALLOWABLE TO THE APPELLANT ON THE CAPITAL GAINS ON THE COMPENSATION RECEIVED IN RESPE CT OF AGRICULTURAL LANDS HAVING KHASRA NUMBERS 196, 199/453, 206, 458/195, 459/195 AND 465/198. THE SAID ACTION IS ILLEGAL AND UNJUSTIFIED. THE ASSESSEE WAS CLEARLY ENTITLED TO EXEMPTION U/S 10(37) IN RESPECT OF THE SAID AGRICULTURAL LANDS. ITA NO.201/JP/2013 & CO 24/JP/2013 ITO VS AJESH KUMAR AGARWAL 3 3. THAT THE LD CIT(A) HAS ERRED IN SUSTAINING ADDITI ON OF RS. 30,000/- ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS. THE ADDITION SUSTAINED IS UNJUSTIFIED AND EXCESSIVE. 2. ALL THE THREE GROUNDS OF THE ASSESSEES C.O. BEI NG C.O. NO. 24/JP/2013 IS NOT PRESSED, THEREFORE, WE DISMISS THE SAME AS NOT PRESSED. 3. THE ASSESSEE FILED RETURN FOR A.Y. 2009-10 ON 30/ 09/2009 DECLARING TOTAL INCOME OF RS. 5,43,510/-. THE CASE WAS SCRUTIN IZED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) VIDE ORD ER DATED 30/12/2011. THE LD ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD CLAIMED RS. 1,34,05,166/- AS EXEMPT INCOME BY SELLING THE AGRIC ULTURAL LAND U/S 10(37) OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE FURNISHED PURCHASE/SALE DEED RELEVANT TO T HE SAID AGRICULTURAL LAND AND ALSO FILED HIS DETAILED SUBMISSION FOR CLA IMING THE SAID INCOME AS EXEMPT, WHICH HAS BEEN REPRODUCED BY THE ASSESSING O FFICER ON PAGE NO. 2 AND 3 OF THE ASSESSMENT ORDER. AFTER CONSIDERING THE ASSESSEES REPLY, THE LD ASSESSING OFFICER HELD THAT THE ASSESSEE PUR CHASED SAID AGRICULTURAL LAND BEARING KHASRA NO. 196, 199/453, 206, 458/195, 459/195,. 465/198, 198, 461/195 AND 460/195 SITUATED AT GRAM VIMALPURA , TEHSIL-SANGANER, JAIPUR FROM FIVE DIFFERENT PARTIES VIDE PURCHASE DE EDS DATED 07/4/2005, ITA NO.201/JP/2013 & CO 24/JP/2013 ITO VS AJESH KUMAR AGARWAL 4 11/04/2005 AND 16/04/2005 FOR TOTAL CONSIDERATION O F RS. 32,64,980/- AND SINCE THEN HAS SHOWN AGRICULTURAL INCOME OF RS. NIL FOR A.Y. 2007- 08, RS. 35,850/- FOR A.Y. 2008-09 AND RS. 87,154/- FOR A.Y. 2009-10 IN HIS INCOME TAX RETURNS FILED WITH THE DEPARTMENT. THE LD ASSESSING OFFICER VERIFIED THE ASSESSMENT RECORD AND FOUND THAT THE R ETURN FOR A.Y. 2007- 08, 2008-09 AND 2009-10 HAS BEEN ACCEPTED U/S 143(1 ) OF THE ACT, THEREFORE, AGRICULTURAL INCOME SHOWN HAD NOT BEEN VE RIFIED BY THE ASSESSING OFFICER IN SCRUTINY ASSESSMENT. HE FURTHE R HELD THAT MERELY SHOWING AGRICULTURAL INCOME IN THE INCOME TAX RETURN FILED BY THE ASSESSEE, DOES NOT AUTOMATICALLY MEAN THAT THE CLAI M OF THE ASSESSEE WAS GENUINE. THEREFORE, HE ASKED TO PRODUCE THE EVID ENCES OF AGRICULTURAL CROP SOWN IN THE LAND. HE ALSO ASKED T O FURNISH THE COPY OF KHASRA GIRDAWARI, WHICH IS LEGAL DOCUMENT TO SHOW T HAT THE ASSESSEE HAD CULTIVATED AGRICULTURE ON IT. HE GAVE DETAILED SHOW CAUSE, WHICH HAS BEEN REPRODUCED ON PAGE NO. 3 AND 4 AND THE ASSESSE E ALSO GAVE THE REPLY, WHICH IS ALSO REPRODUCED ON PAGE NO. 4 OF THE ASSESSMENT ORDER. THE ASSESSEE FAILED TO PRODUCE THE COPY OF GIRDAWARI KHASRA WISE REPORT, THEREFORE, HE ISSUED NOTICE U/S 133(6) TO THE TEHSIL DAR SANGANER TO GIVE THE COPY OF GIRDAWARI, WHICH WAS RECEIVED BY THE ASSES SING OFFICER. IT IS FOUND THAT IN F.Y. 2006-07 (SAMVAT 2063-64) AND F.Y . 2007-08 (SAMVAT ITA NO.201/JP/2013 & CO 24/JP/2013 ITO VS AJESH KUMAR AGARWAL 5 2064-65) RELEVANT TO A.Y. 2008-09, (SAMVAT 2065-66) RELEVANT TO A.Y. 2009-10 I.E. DURING THE YEAR WHEN THE ASSESSEE HAD SHOWN AGRICULTURAL INCOME WAS BANJAR (BARREN) OR PATAD (NO CROPS GROWN) . THE LD ASSESSING OFFICER AGAIN GAVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ON THE BASIS OF EVIDENCE COLLECTED FROM THE TEHSILDA R, SANGANER. A DETAILED SHOW CAUSE HAS BEEN REPRODUCED BY THE ASSES SING OFFICER ON PAGE 5 AND 6 OF THE ASSESSMENT ORDER. THE ASSESSEES REPLY ALSO REPRODUCED ON PAGE NO. 6 AND 7 OF THE ASSESSMENT OR DER. AFTER CONSIDERING THE ASSESSEES REPLY, THE LD ASSESSING OFFICER HELD THAT THE ASSESSEE INTENTIONALLY HAD NOT GIVEN THE COPY OF KH ASRA GIRDAWARI AND OBTAINED CERTIFICATE FROM THE VILLAGE-SARPANCH ON P LAIN PAPER. THE ASSESSEE FILED AFFIDAVIT OF KASTAGAR NAMED KHEMRAJ SHARMA, S/O- SHRI JAGDISH NARAYAN SHARMA, R/O- VILLAGE BAWADI, TEHSIL P HAGI STATING THAT HE HAD CARRIED OUT CERTAIN AGRICULTURAL OPERATION O N THE LAND IN QUESTION. FURTHER IT HAS BEEN STATED THAT ALL THE EXPENSES WER E BORN BY THE KASTAGAR AND HALF SHARE WERE GIVEN TO THE ASSESSEE. THE LD ASSESSING OFFICER FOUND THIS AFFIDAVIT A FABRICATION OF EVIDE NCE WHEN THE ASSESSMENT PROCEEDINGS WERE GOING ON. THE KASTAGAR AS WELL AS TH E ASSESSEE HAS NOT ABLE TO GIVE EVIDENCES OF DIESEL ENGINE, BILLS OF D IESEL, SEEDS, LABOURS ETC. DURING THE ASSESSMENT PROCEEDINGS. THERE WAS NO IRRIG ATION FACILITY ON ITA NO.201/JP/2013 & CO 24/JP/2013 ITO VS AJESH KUMAR AGARWAL 6 THAT LAND. THERE WAS A WELL EXISTED ON KHASRA NO. 197, WHICH WAS IN THE NAME OF SHRI RAMKISOR AGARWAL, WHO IS NOWHERE CONNECTE D WITH THE ASSESSEE OR THE SO CALLED KASTAGAR. THE ASSESSEE AL SO ASKED TO PRODUCE KASTAGAR SHRI KHEMRAJ SHARMA VIDE ORDERSHEET ENTRY DATED 28/11/2011 AND ALSO ISSUED SUMMON U/S 131 ON 08/12/2011 FOR VE RIFICATION OF THE AFFIDAVIT BUT HE HAS NOT APPEARED BEFORE HIM. FURTH ER HE ANALYSED THE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE IN THE INC OME TAX RETURN FOR A.Y. 2009-10 WHEREIN THE ASSESSEE HAD SHOWN AGRICUL TURAL INCOME BY SELLING THE CROP TARAMERA, BARLEY (JAO) AND SARSON I N THE MONTH OF APRIL, 2008 AND JULY, 2008 WHICH IS RABI CROP GROWN IN F.Y. 2007-08 ON WHICH VERIFICATION OF GIRDAWARI REPORT, NO SUCH ENTRY OF C ROP MENTIONED IN THE RETURN HAS BEEN FOUND. THEREFORE, HE HAS NOT SHOWN AG RICULTURAL INCOME DECLARED BY THE ASSESSEE AS GENUINE. BEFORE PURCHAS E ALSO, THIS LAND WAS NOT USED FOR AGRICULTURAL PURPOSES AS THERE IS NO E LECTRICITY CONNECTION, NO BOREWELL ON IT. THE ASSESSEE WAS NOT ONLY PURCHASED TH IS LAND IN F.Y. 2005-06 BY MAKING STOP GAP ARRANGEMENT TO GET THE B ENEFIT OF SECTION 10(37) OF THE ACT. THE ASSESSEE ALSO NOT AN AGRICULT URISTS, HE WAS DEALING IN BUSINESS OF GOLD AND JEWELLERY SINCE LONG AND DO NOT HAVE ANY EXPERIENCE OF AGRICULTURE NOR HAD ANY INTENTION OF ADOPTING AGRICULTURE AS MEANS OF HIS LIVELIHOOD. THE LAND WAS ALSO PURCHASED BY THE ASSESSEE ITA NO.201/JP/2013 & CO 24/JP/2013 ITO VS AJESH KUMAR AGARWAL 7 FROM MERWADA HOTEL PVT. LTD., KOLKATA, CHANDRAJ BHAN DHARI, WEST BENGAL. HE FURTHER RELIED ON THE DECISION OF HONBLE GUJARA T HIGH COURT IN THE CASE OF CIT VS SIDHARTH J. DESAI (182) 28 CTR (GUJ) 1 48/(1983) 139 ITR 628 (GUJ). HE FURTHER RELIED ON THE DECISION OF HON BLE GUJARAT HIGH COURT IN THE CASE OF CHIMANLAL NAGRI VS. CWT (1965) 56 ITR 608 (GUJ), CIT VS MANILAL SOMNATH (1977) 106 ITR 917 (GUJ), HON'BLE SU PREME COURT DECISION IN THE CASE OF CWT VS OFFICER-INCHARGE (COU RTS OF WARDS), PAIGAH 1976 CTR (SC) 404/(1976) 105 ITR 133 (SC), DEL HI HIGH COURT DECISION IN THE CASE OF SHIV SHANKAR LAL VS CIT (197 4) 941 ITR 433 (DEL). BY CONSIDERING THESE DECISIONS, THE LD ASSESSING OF FICER HELD THAT THE ASSESSEES LAND WAS NOT USED FOR THE AGRICULTURAL PU RPOSES. SINCE IN A BARREN LAND, AGRICULTURAL OPERATION ARE GENERALLY N OT POSSIBLE, THEREFORE, HE HELD THIS TRANSFER IS NOT EXEMPTED U/S 10(37) OF THE ACT. ACCORDINGLY HE ASSESSED CAPITAL GAIN AT RS. 1,30,33,036/- ON IT . 4. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WHO HAD ALL OWED THE APPEAL PARTLY BY OBSERVING THAT BY CONSIDERING THE REMAND REPORT RECEIVED FROM THE ASSESSING OFFICER WITH A COPY OF STATEMENT OF SH RI KHEMRAJ SHARMA AND SHRI MADAN LAL MEENA, SARPANCH OF VILLAGE VIMA LPURA, WHICH WAS NOT FOUND PARTLY ACCEPTED BY THE LD CIT(A). SHE ALSO CO NSIDERED THE CASE LAWS ITA NO.201/JP/2013 & CO 24/JP/2013 ITO VS AJESH KUMAR AGARWAL 8 RELIED UPON BY THE ASSESSEE, WHICH ALSO FOUND DISTI NGUISHABLE. SHE FURTHER EXAMINED THE ASSESSEES CLAIM FOR SAMVAT 20 64, WHICH IS AS UNDER:- K HASRA NO. F.Y. 2005 - 06 SAMVAT 2062- 63 F.Y. 2006 - 07 SAMVAT 2063- 64 F.Y. 2007 - 08 SAMVAT 2064- 65 F.Y. 2008 - 09 SAMVAT 2065- 66 196 0.27 HECTARE WHEAT PATAT (..) PATAT BANJAD () 199/453 0.11 HECTARE BANJAD BANJAD BANJAD BANJAD 206 0.02 HECTARE PATAT PATAT PA TAT PATAT 458/195 0.23 HECTARE PATAT BANJAD BANJAD BANJAD 459/195 0.30 HECTARE PATAT BANJAD BANJAD BANJAD 465/198 0.79 HECTARE PATAT BANJAD BANJAD BANJAD 198 0.11 HECTARE PATAT WHEAT WHEAT WHEAT 461/195 0.70 HECTARE PATAT TEELL TILL PATAT 460/195 0.5 0 HECTARE PATAT TEELL TILL PATAT 197 KUA IN THE NAME OF SHRI RAMKISHORE AGARWAL KUA KUA KUA ON VERIFICATION OF KHASRA GIRDAWARI, THE LD CIT(A) HE LD THAT KHASRA NO. 198, 461/195, 460/195 WERE PUT TO AGRICULTURAL USE I N THE PAST TWO YEARS FROM THE DATE OF ACQUISITION OF THE LAND. ACCORDING LY SHE ALLOWED EXEMPTION U/S 10(37) OF THE ACT ON PROPORTIONATELY WHERE KASTAGAR SHOWED CROP CULTIVATED ON KHASRA NO. 198, 461/195 AN D 460/195. ITA NO.201/JP/2013 & CO 24/JP/2013 ITO VS AJESH KUMAR AGARWAL 9 5. NOW THE REVENUE IS IN APPEALS BEFORE US. THE LD D R HAS VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFF ICER AND ARGUED THAT KHASRA GIRDAWARI ONLY SHOWED CROP IN SAMVAT 2063-64 R ELEVANT TO F.Y. 2006-07 BUT DID NOT HAVE ANY AGRICULTURAL ACTIVITY FOR SAMVAT 2064-65, THEREFORE, THE LD CIT(A) HAS WRONGLY ALLOWED THE PROP ORTIONATE DEDUCTION U/S 10(37) OF THE ACT AS NO CROP HAS BEEN CULTIVATE D IN SECOND YEAR. AS PER SECTION 10(37) FROM THE DATE OF ACQUISITION THE ASSESSEE HAD TO CULTIVATE IMMEDIATE TWO PRECEDING YEARS AGRICULTURAL ACTIVITY ON IT. THEREFORE, HE PRAYED TO REVERSE THE ORDER OF THE LD CIT(A). 6. AT THE OUTSET, THE LD AR OF THE ASSESSEE HAS REI TERATED THE ARGUMENTS MADE BEFORE THE LD CIT(A) AND SUBMITTED TH AT THE LD ASSESSING OFFICER RECORDED THE STATEMENT OF KASTAGA R SHRI KHEMRAJ SHARMA, WHO HAD ALSO FILED AFFIDAVIT DURING ASSESSM ENT PROCEEDINGS. HE ALSO RELIED ON CERTIFICATE ISSUED BY THE SARPANCH S HRI MADAN LAL MEENA OF VILLAGE VIMALPURA. THE ASSESSEE HAD SHOWN AGRICULTURA L INCOME IN IMMEDIATE PRECEDING YEAR FROM THE DATE OF ACQUISITI ON IN THE RETURN, WHICH HAS BEEN ACCEPTED BY THE DEPARTMENT. THE ASSES SEE HAD CULTIVATED ON ALL THE KHASRA NUMBERS, WHICH HAS BEEN ACQUIRED B Y THE RIICO DURING THE YEAR UNDER CONSIDERATION. THEREFORE, THE ASSESSE E IS RIGHTLY ALLOWED THE EXEMPTION U/S 10(37) OF THE ACT BY THE LD CIT(A) . HE FURTHER RELIED ITA NO.201/JP/2013 & CO 24/JP/2013 ITO VS AJESH KUMAR AGARWAL 10 ON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS SMT. DEBBIE ALEMAO 331 ITR 59 WHEREIN IT HAS BEEN HELD THA T LAND HAS BEEN SHOWN AS AGRICULTURAL LAND IN REVENUE RECORD AND WAS NEVER SOUGHT TO BE USED FOR AGRICULTURAL PURPOSES BY THE ASSESSEE TILL IT WAS SOLD, HAS TO BE TREATED AS AGRICULTURAL LAND EVEN THOUGH NO AGRICUL TURAL INCOME WAS SHOWN BY THE ASSESSEE FROM THIS LAND. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. AS PE R SECTION 10(37)(II) OF THE ACT, SUCH LAND, DURING THE PERIOD OF TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER, IS BEING USED FOR AGRICULTURA L PURPOSES BY SUCH HINDU UNDIVIDED FAMILY OR INDIVIDUAL OR OF A PARENT OF HI S; THUS THE ASSESSEE HAS TO PUT THIS LAND IN IMMEDIATELY PRECEDING TWO YEARS IN AGRICULTURAL OPERATION FOR CLAIMING THE BENEFIT OF SECTION 10(37 ) OF THE ACT. THE ASSESSEE PRODUCED KASTAGAR NAMELY SHRI HEMRAJ SHARM A ALONGWITH HIS AFFIDAVIT WHICH HAS BEEN EXAMINED BY THE ASSESSING OFFICER BUT HAS NOT HAS ABLE TO DEMONSTRATE THAT HE REALLY CULTIVATED T HE LAND. THERE WAS NO EVIDENCE WITH HIM OR WITH ASSESSEE THAT THERE WAS AN I RRIGATION FACILITY AVAILABLE ON THAT LAND AND INCURRED EXPENDITURE FOR CULTIVATING THE AGRICULTURAL ACTIVITIES ON IT. THE ASSESSEE ALSO HAS NOT ABLE TO PRODUCE ANY AUTHENTIC EVIDENCE OF SALE PROCEEDS FROM THE MANDI BEFORE THE LOWER ITA NO.201/JP/2013 & CO 24/JP/2013 ITO VS AJESH KUMAR AGARWAL 11 AUTHORITIES. THE LD CIT(A) ALSO WRONGLY APPRECIATED T HE FACT THAT IN SAMVAT 2064-65 (F.Y. 2007-08), THE ASSESSEE CULTIVA TED KHASRA NO. 198, 461/195 AND 460/195. ON VERIFICATION OF THE COPY OF KHASRA GIRDAWARI AVAILABLE IN PAPER BOOK, WHICH DOES NOT SHOW ANY AGRI CULTURAL ACTIVITY IN SAMVAT 2064-65 RELEVANT TO F.Y. 2007-08. FURTHER TH E ADMISSIBLE EVIDENCE TO PROVE THE AGRICULTURAL ACTIVITY CARRIED BY THE ASSESSEE, IS KHASRA GIRDAWARI, NO ANY CERTIFICATE FROM THE SARPAN CH OF THE VILLAGE, WHICH IS ALSO CONTRADICTORY AND HE OPENLY ACCEPTED T HAT THIS CERTIFICATE WAS GIVEN BY HIM AT THE BEHEST OF THE ASSESSEE. HE D ID NOT KNOW THE EXACT LAND OF THE ASSESSEE WHERE SITUATED. THEREFORE, WE HAVE CONSIDERED VIEW THAT THE ASSESSEES CLAIM PROPORTION ATELY ALLOWED BY THE LD CIT(A) IS NOT JUSTIFIED. ACCORDINGLY, WE REVERSE T HE ORDER OF THE LD CIT(A) AND THE REVENUES APPEAL IS ALLOWED ON THIS GR OUND. 8. THE GROUND NO. 2 OF THE REVENUES APPEAL IS AGAIN ST ALLOWING THE RELIEF OF RS. 1,35,395/- ON ACCOUNT OF HOUSEHOLD EX PENSES. THE LD ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS SH OWN TOTAL WITHDRAWAL OF RS. 74,605/-. THE ASSESSEES FAMILY CONSISTS SELF , WIFE AND ONE SON, WHO IS STUDYING IN NEERJA MODI SCHOOL, PAID FEES OF RS. 58,000/- PER ANNUM. THUS, TOTAL WITHDRAWAL WAS RS. 1,32,605/-. THE ASSESSEE IS A REPUTED BUSINESS MAN DEALING IN MANUFACTURING AND T RADING OF ITA NO.201/JP/2013 & CO 24/JP/2013 ITO VS AJESH KUMAR AGARWAL 12 PRECIOUS/SEMI PRECIOUS STONES AND LIVING IN A POSH LOCALITY OF THE CITY, HAS LUXURY CAR AND OTHER MODERN FACILITIES AT HIS RESID ENCE. THEREFORE, HE ESTIMATED TOTAL HOUSE HOLD EXPENSES AT RS. 20,000/- PER MONTH. ACCORDINGLY, THE LD ASSESSING OFFICER MADE ADDITION OF RS. 1,65,395/- ON ACCOUNT OF LOW HOUSEHOLD EXPENSES. 9. THE LD CIT(A) PARTLY ALLOWED THE APPEL BY OBSERVI NG THAT THE APPELLANT WAS RESIDING IN HIS PARENTAL HOUSE IN A JO INT FAMILY SET UP WHERE PART OF THE EXPENSES LIKE ELECTRICITY ETC. WAS BEING BORNE BY HIS FATHER. SUBMISSION OF THE AR WAS FOUND BY THE CIT(A) REASONAB LE, THEREFORE, SHE RESTRICTED THE ADDITION OF RS. 30,000/-. 10. THE LD DR HAS VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND ARGUED THAT THE LD ASSESSING OFFICER WAS VERY REASONABLE IN ESTIMATING THE HOUSEHOLD EXPENSES, THEREFORE, SAME IS TO BE CONFIRMED. 11. AT THE OUTSET THE LD AR OF THE ASSESSEE HAS SUB MITTED THAT THE LD ASSESSING OFFICER ESTIMATED THE HOUSEHOLD WITHOUT AN Y BASIS AND BROUGHT ON RECORD CONTRARY EVIDENCE. HE RELIED ON THE DECIS ION OF HONBLE ITAT JODHPUR BENCH IN THE CASE OF ITO VS. DR. ANAND CHAB RA 37 TAX WORLD 72 WHEREIN IT HAS BEEN HELD THAT THE ASSESSING OFFICER HAS NOT GIVEN ANY BASIS FOR ESTIMATING HOUSEHOLD EXPENSES, ADDITION M ADE CANNOT BE SUSTAINED. HE FURTHER RELIED ON THE DECISION OF ITA T, JAIPUR BENCH IN THE ITA NO.201/JP/2013 & CO 24/JP/2013 ITO VS AJESH KUMAR AGARWAL 13 CASE OF MAHAVEER SINGH SANKHLA VS DCIT 177 TTJ (JP)(U O) 1 WHEREIN IT HAS BEEN HELD THAT ONUS IS ON THE REVENUE TO PROVE THAT THE ASSESSEE HAD INCURRED EXPENDITURE MUCH MORE THAN DEBITED BY THE ASSESSEE, THEREFORE, HE PRAYED TO UPHOLD THE ORDER OF THE LD CIT(A). 12. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE AS SESSEE WAS LIVING WITH HIS FATHER DURING THE YEAR UNDER CONSIDERATION AND EXPENSES WERE SHARED BY HIS FATHER AS CLAIMED BY THE ASSESSEE. THE LD ASSESSING OFFICER HAD NOT BROUGHT ON RECORD ANY EVIDENCE IN ESTIMATIN G THE HOUSEHOLD WITHDRAWAL HIGHER SIDE. THE LD CIT(A) IS ALSO REASONABL E TO RESTRICT THE ADDITION, THEREFORE, WE DISMISS THE REVENUES APPEAL ON THIS GROUND. 13. IN THE RESULT, APPEAL OF REVENUE IS PARTLY ALLO WED AND ASSESSEES C.O. IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/05/2016. SD/- SD/- DQYHKKJR VH-VKJ-EHUK (KUL BHARAT) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 TH MAY, 2016 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ITO WARD 1(2), JAIPUR. ITA NO.201/JP/2013 & CO 24/JP/2013 ITO VS AJESH KUMAR AGARWAL 14 2. IZR;FKHZ @ THE RESPONDENT- SHRI AJESH KUMAR AGARWAL, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 201/JP/2013 & CO 24/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR