Smt. Prem Lata Jangid, JODHPUR V. DCIT, JODHPUR

ITA 242/JODH/2014

• Counselvise Citation: 24223314 RSA 2014
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-09-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 15-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: DEEPAK ARORA
• Keywords: Unexplained cash credit; Unexplained investment; Capital asset; Business income; Document seized; Principle of natural justice; Earning of tax free income; Period of limitation; Additional evidence; Wrong claim; Valuation report; Time period of passing order; Revised return; Documents seized
• Section: 143(3); 2(14); 142(1); 153A; 234B; 132; 68

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL , JODHPUR BENCH: J ODHPUR BEFORE SHRI H ARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER I.T.A. NO. 242 /JODH/2014 (A.Y. 200 6 - 0 7 ) I.T.A. NO. 243/JODH/2014 (A.Y. 2007 - 08) I.T.A. NO. 244/JODH/2014 (A.Y. 2008 - 09) I.T.A. NO. 245/JODH/2014 (A.Y. 2009 - 10) SMT. PREM LATA JANGID, V S DCIT, CENTRAL CIRCLE - 2, G - 132, SHASTRI NAGAR, JODHPUR. JODHPUR. PAN NO. ADCPJ8222A I.T.A. NO. 358/JODH/2014 (A.Y. 2006 - 07) I.T.A. NO. 359/JODH/2014 (A.Y. 200 7 - 08) I.T.A. NO. 360/JODH/2014 (A.Y. 2009 - 10) DCIT V S SMT. PREM LATA JANGID, CENTRAL CIRCLE - 2, G - 132, SHASTRI NAGAR, JODHPUR. JODHPUR. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI, AND SHRI DEEPAK ARORA. DEPARTMENT BY : SHRI O.P. MEENA - CIT - D.R. DATE OF HEARING : 04 /0 9 /201 4 DATE OF PRONOUNCEMENT : / 0 9 /2014 2 O R D E R P E R BENCH : - THIS IS A BUNCH OF SEVEN APPEALS PERTAINING TO A.Y. 2006 - 07, 2007 - 08, 2008 - 09 AND 2009 - 10. FOR A.Y. 2 008 - 09 THE ASSESSEE ALONE HAS FILED APPEAL AND THERE IS NO APPEAL BY THE REVENUE, FOR OTHER ASSESSMENT YEARS BOTH PARTIES HAVE FILED THEIR RESPECTIVE APPEALS. IN ALL THESE APPEALS ALMOST IDENTICAL ISSUES ARISING FROM COMMON SET OF FACTS ARE INVOLVED, THERE FORE, ALL THESE ARE BEING DISPOSED OFF BY THIS COMMON ORDER. ITA NO. 242 AND 358/JODH/2014 FOR A.Y. 2006 - 07 2. THESE ARE CROSS APPEALS, FILED AGAINST THE ORDER OF LD. CIT(A) DATED 28.03.2014. 2.1 BRIEFLY STATED, THE FACTS OF THIS CASE ARE THAT ORIGIN ALLY THIS ASSESSEE NAMELY SMT. PREMLATA JANGID W/O SHRI PUNA RAM JANGID ORIGINALLY FILED HER RETURN OF INCOME (ROI) FOR A.Y. 2006 - 07 ON 31.10.2006, DECLARING TOTAL INCOME OF RS. 55,95,819/ - . IN THIS GROUP (JANGID GROUP) A SEARCH U/S 132 OF THE INCOME TAX A CT, 1961 (THE ACT 3 FOR SHORT) WAS CONDUCTED ON 15/16 - 12 - 2009, ESPECIALLY AT THE RESIDENCE OF SHRI PUNA RAM JANGID. DURING THIS SEARCH CERTAIN INCRIMINATING DOCUMENTS BELONGING TO THE ASSESSEE WERE FOUND AND SEIZED. CONSEQUENTLY, NOTICE US/ 153C / 142(1) O F THE ACT WAS ISSUED TO THE ASSESSEE. SOME PAPERS WERE FOUND TO BELONG TO SMT. PREM LATA JANGID. ACCORDINGLY, THE ASSESSEE RESPONDED NOTICE U/S 153C OF THE ACT AND FILED HER ROI ON 10.10.2011 DECLARING TOTAL INCOME OF RS. 55,95,619/ - FOR A.Y. 2006 - 07. SIMI LAR NOTICE WERE SENT FOR OTHER ASSESSMENT YEARS AND SHE LIKEWISE COMPLIED BY FILING HER ROIS. AS A RESULT, ASSESSMENT ORDER WAS COMPLETED U/S 153C R.W.S. 153A AND 143(3) OF THE ACT ON 29.12.2011 AT A TOTAL INCOME OF RS. 95,53,360/ - AS UNDER: - RETURNED INC OME RS. 55,95,620/ - ADD: ADDITION ON ACCOUNT OF AGRICULTURAL INCOME DISALLOWED [PARA 5] RS. 1,39,706/ - ADD: ADDITION AS PER PARA 6 RS. 30,78,034/ - ADD: ADDITION AS PER PARA 7 RS. 3,00,000/ - ADD: ADDITION AS PER PARA 8 RS. 4,40,000/ - RS. 95,53,360/ - 2.2 AGGRIEVED, THE ASSESSEE PREFERRED APPEAL AND LD. CIT(A) HAS GIVEN PART RELIEF. NOW, BOTH P A RTIES HAVE FILED THEIR RESPECTIVE APPEALS. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS IN HER APPEAL : - 4 1. THE ID. CIT(A) HA S ERRED IN MAKING ADDITION OF RS.1,39,706/ - ON ALLEGED UNEXPLAINED AGRICULTURE INCOME SHOWN BY THE APPELLANT. THE ID. CIT(A) HAS ALSO ERRED IN REJECTING THE APPELLANT CLAIM THAT THE ADDITION WAS OUTSIDE THE SCOPE OF SECTION 153A. 2. THE ID. CIT(A) HAS E RRED IN SUSTAINING THE ADDITION OF RS.3,00,000/ - U/S 68 IN RELATION TO UNSECURED LOAN TAKEN FROM SNEHLATA MEHTA. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS. 3. THE ID. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.4,40,000 / - ON ACCOUNT OF ALLEGED UNEXPLAINED ADVANCE FOR SALE OF LAND. NO SUCH ADVANCE WAS RECEIVED DURING THE YEAR AND THE SAME WAS ONLY OPENING BALANCE. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS. 4. THE ID. CIT(A) HAS ERRED IN MAKING ENHANCEM ENT OF INCOME ASSESSED BY MAKING FOLLOWING ADDITIONS TO THE ASSESSED INCOME. THE ENHANCEMENT OF INCOME SO MADE IS BAD IN LAW AND BAD ON FACTS. A. THE ID. CIT(A) HAS ERRED IN RELYING UPON HIS FINDINGS GIVEN IN THE CASE OF SH. PUNA RAM JANGID FOR MAKING ENHANC EMENT OF INCOME IN THE HANDS OF APPELLANT, WITHOUT GIVING ANY SHOW CAUSE IN THE CASE OF THE APPELLANT. 5 B. THE ID. CIT(A) HAS ERRED IN MAKING ADDITION OF RS. 8,34,932/ - ON ACCOUNT OF ALLEGED UNEXPLAINED INCOME RECEIVED FROM ANSALS. C. THE ID. CIT(A) HAS ALSO E RRED IN RELYING UPON THE MATERIAL GATHERED BEHIND THE BACK OF THE ASSESSEE WHICH IS ALSO NOT FORMING PART OF THE RECORDS OF THE APPELLANT. D. I. THE ID. CIT(A) HAS ERRED IN MAKING ENHANCEMENT OF INCOME BY RS. 7,26,000/ - ON ACCOUNT OF ALLEGED INCOME THROUGH ANSALS. THE ADDITION MADE ON THE BASIS OF REMAND REPORT OF THE ID. A.O., IS BAD IN LAW AND BAD ON FACTS. II. THE ID. A.O. HAD NO POWER TO MAKE FURTHER ENHANCEMENT OF INCOME AFTER COMPLETING ASSESSMENT. III. THE REMAND REPORT ON ISSUES NOT COVERED UNDER APPEAL W ITHOUT ANY DIRECTION WAS NOT IN ACCORDANCE WITH THE PROVISION OF LAW. E. I. THE ID. CIT(A) HAS ERRED IN MAKING ENHANCEMENT OF INCOME BY RS. 4,05,775/ - ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN PURCHASE OF LAND. II. THE ID. CIT(A) HAS ALSO ERRED IN OBS ERVING THAT THE ALLEGED UNEXPLAINED INVESTMENT WAS ADMITTED WHICH IS INCORRECT ON FACTS AND IS ALSO BAD IN LAW. 6 F. THE ENHANCEMENT OF INCOME BY RS. 19,56,707/ - MADE BY THE ID. CIT(A) IS WHOLLY BAD IN LAW AND BAD ON FACTS. 5. THE ID. CIT(A) HAS ERRED IN NOT GRANTING TELESCOPING EFFECT OF INCOME ALREADY SURRENDERED BY THE APPELLANT IN THE VARIOUS YEARS AND HAS ALSO FURTHER ERRED IN NOT GRANTING TELESCOPING EFFECT OF THE ADDITIONS SUSTAINED. 6. THE INTEREST CHARGED U/S 234B AND 234C IS BAD IN LAW AND BAD ON FACTS. 7. THE APPELLANT PRAY FOR SUITABLE COSTS. 8. THE APPELLANT CRAVES LIBERTY TO ADD, AMEND, ALTER, AND MODIFY ANY OF THE GROUND OF APPEAL ON OR BEFORE ITS HEARING BEFORE YOUR HONOUR. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL : - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), ALWAR HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITIONAL EVIDENCES UNDER RULE 46A OF THE I.T. RULES, 1962 IGNORING THE FACT THAT REASONABLE AND SUFFICIENT OPPORTUNITIES WERE GIVEN BY THE AO TO THE ASSESSEE THROUGH QUE RY LETTERS, SUBSEQUENT NOTICES ISSUED DURING THE ASSESSMENT PROCEEDINGS BUT THE ASSESSEE HAS FAILED TO FURNISH ANY DETAILS OR EVIDENCES; 7 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), ALWAR HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE ADDITION MADE BY THE AO ON ACCOUNT OF THE OPENING BALANCE OF CAPITAL A/C OF RS. 30,78,034/ - TREATED AS UNEXPLAINED U/S 68 OF THE I.T. ACT, 1961 IGNORING THE FACT THAT THE CARRIED FORWARD BALANCES OF THE SAID CAPI TAL A/C WAS NOT ESTABLISHED/ SUBSTANTIATED AS PER THE DETAILS, RETURNS OF INCOME ETC. FILED FOR THE A.Y. 2005 - 06 AND EARLIER A.YS. 2.3 WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE ENTIRE RECORD INCLUDING PAPER BOOK / WRITTEN SUBMISSIONS PRODUCED BY THE PARTI E S. 2.4 THE GROUND NO. (1) OF ASSESSEES APPEAL IS REGARDING ADDITION OF RS. 1,39,706/ - ON ACCOUNT OF DISALLOWANCE OF AGRICULTURAL INCOME. THE FACTS APROPOS THIS GROUND ARE THAT THE ASSESSEE HAS SHOWN AGRICULTURAL INCOME OF RS. 1,39, 716/ - . THE A.O. HAS DISALLOWED THIS INCOME FOR WANT OF ANY PROOF. THE LD. CIT(A) HAS FOLLOWED SUIT. BEFORE US BOTH THE PARTIES HAVE REITERATED THEIR EARLIER ARGUMENTS. THE SUBMISSIONS OF LD. A.R. THAT AS PER EX HIBIT. 6 FOUND DURING SEARCH THE FACTUM OF AGRICULTURAL INCOME WAS FOUND DURING SEARCH ITSELF, IS FOUND TO BE CORRECT. THIS EXHIBIT 6 WAS FOUND FROM THE FARM HOUSE. THE DETAILS OF AGRICULTURAL LAND HOLDING ARE ENCLOSED A PAPER BOOK 31 WHICH HAVE NOT 8 BEEN REFUTED BY THE DEPARTMENT. THE ASSESSEE AN D HER HUSBAND OWN AND POSSESS 280 BIGHAS OF AGRICULTURAL LAND. THUS, THIS IS A VALID CLAIM AND CANNOT BE REJECTED, SUMMARILY, AS HAS BEEN DONE BY THE A.O. AND LD. CIT(A). WE ALLOW GROUND NO. (1) OF ASSESSEES APPEAL AND ORDER DELETION OF ADDITION OF RS. 1, 39,706/ - BY TREATING IT ASSESSEES AGRICULTURAL INCOME. 2.5 GROUND NO. (2) OF ASSESSEES APPEAL IS REG A R DING ADDITI O N OF RS. 3 LAKHS MADE U/S 6 8 OF THE ACT. THE FACTS APROPOS THIS GROUND ARE THAT THE ASSESSEE HAS GIVEN A LOAN OF RS. 3 LAKHS TO THE FIRM. SINCE, THE FIRM FAILED TO PROVE THE INGREDIENTS OF SECTION 68 OF THE ACT THE A.O. HAS ADDED RS. 3 LAKHS IN THIS ASSESSEES HANDS. AFTER HEARING BOTH SIDES, WE HAVE FOUND THAT THIS LOAN STANDS CONFIRMED BY A COPY OF STATEMENT OF CONFIRMATION FILED WHICH IS ENCLOSED A PAPER BOOK 35, AND FROM THE COPY OF THE BOOKS OF LOAN (COPY ENCLOSED A PAPER BOOK ( 69). A COPY OF BANK STATEMENT, ENCLOSED A PAPER BOOK PAGE 70 - 72, AND A COPY OF BANK STATEMENT WHERE REPAYMENT IS REFLECTED (PAPER BOOK 70), AND A COPY OF I.T. RE TURN FILED FOR A.Y. 2006 - 07 OF THE C R EDITOR, PAPER BOOK 74. FURTHER A COPY OF PAN CARD (PAPER BOOK 75) AND COPY OF DRIVING LICENCE (PAPER BOOK 76) ALSO SUBSTANTIATE THE CLAIM OF THE ASSESSEE. ADMITTEDLY, NO EVIDENCE WAS FOUND DURING SEARCH. IN VIEW OF THE 9 JUDGMENT OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL INDIA VS. ACIT, REPORTED IN (2013) 259 CTR (RAJ) 281, WHEREIN IT HELD THAT SCOPE OF ASSESSMENT U/S 153A OF THE ACT IS TO BE CONFINED ONLY TO MATERIAL FOUND DURING SEARCH. ACCORDINGLY, WE ORD ER TO DELETE THIS ADDITION AND ALLOW GROUND NO. (2) OF ASSESSEES APPEAL. 2.6. GROUND NO. (3) RELATES TO ADDITION OF RS. 4,40,000/ - ON ACCOUNT OF ADVANCE RECEIVED FORWARDS SALE OF LAND. THE FACTS OF THIS GROUND ARE THAT THE ASSESSEE - FIRM, OF THIS GROUP, HAS SHOWN AN AMOUNT OF RS. 4,40,000/ - AS ADVANCE TOWARDS SALE OF LAND UNDER THE HEAD CURRENT LIABILITIES. THE ASSESSEE WAS PUT TO PROOF OF THIS AMOUNT. HOWEVER, THE A.O. WAS NOT SATISFIED BY THE EVIDENCE FILED BY THE ASSESSEE. THE LD. CIT(A) HAS FOLLOWED SUIT. BEFORE US BOTH THE PARTIES HAVE REITERATED THEIR EARLIER ARGUMENTS. AFTER HEARING BOTH PARTIES VIS - - VIS THE AVAILABLE RECORD WE HAVE FOUND THAT THIS AMOUNT OF RS. 4,40,000/ - REPRESENTS THE OPENING BALANCE BROUGHT FORWARD FROM EARLIER YEAR. A COPY O F RELEVANT ACCOUNT IS ENCLOSED AT PAPER BOOK PAGE 58. IT IS AN UNDENIABLE FACT THAT NO NEW ADVANCE WAS RECEIVED DURING THE RELEVANT YEAR. THEREFORE, THIS AMOUNT CANNOT BE ADDED IN A.Y. 2006 - 07. WE FIND SUPPORT FROM THE DECISION S RENDERED IN THE CASES OF CI T V S PARMESHWAR BOHRA 301 ITR 404 AND ITO VS ARVIND KUMAR CHOUDHARY IN ITA NO. 10 288/LKW/2013 DATED 10.01.2014, COPIES OF WHICH ARE ENCLOSED, AND WHICH LD. A.R. HAS PLACED RELIANCE. CONSEQUENTLY, THIS ADDITION CANNOT BE SUSTAINED AND IS HEREBY DELETED. GROUN D NO. (3) OF ASSESSEES APPEAL STAND ALLOWED. 2.7. THE GROUND NO. (4) OF ASSESSEES APPEAL IS REGARDING ENHANCEMENT MADE BY LD. CIT(A) ON THE BASIS OF REMAND REPORT OF THE AO, BEYOND THE REFERRED ISSUES. THIS TOTAL ENHANCEMENT IS OF RS. 19,66,707/ - COMPR ISING OF THREE ADDITIONS : - (I) O F RS. 8,34,932/ - (II) OF RS. 7,26,000/ - (III) OF RS. 4,05,775/ - THE SUBMISSIONS OF LD. A.R. ARE SUMMARIZED AS UNDER: - A. THE ID. CIT(A) WAS NOT JUSTIFIED IN MAKING ENHANCEMENT OF INCOME ON THE BASIS OF REMAND REPORT OF THE ID. AO GIVEN IN THE CASE OF SH. PUNA RAM JANGID. THE SUBJECT MATTER OF REMAND PROCEEDINGS CAN BE ONLY ON THE ISSUES REFERRED TO THE AO FOR VERIFICATION, AND IT CANNOT TRAVEL BEYOND SUCH JURISDICTION. B. IN THE CASE OF THE APPELLANT ALSO THE REMAND REPORT WAS CALLED FOR, AND THERE IS NO SUGGESTION FOR ANY SUCH ENHANCEMENT OF INCOME IN THE CASE OF THE APPELLANT. C. ANY ADVERSE REPORT GIVEN ON ANY ISSUE WITHOUT CONFRONTING THE APPELLANT IN THE CASE OF HER HUSBAND SH. PUNARAM CANNOT BE 11 TREATED AS ANY EVIDENCE ACCEPTABLE IN THE EYE OF LAW. D. THE RE - FRAMING OF ASSESSMENT FAILS TO COMPLY THE PROCEDURE OF MAKING OF THE ASSESSMENT IN SEARCH RELATED CASES. E. THE ADDITION PROPOSED ALSO VIOLATES STATUTORY REQUIREMENT OF SECTION 153D, MAKING OF AN ASSESSMENT BEYOND LIMITATION PERIOD, AND IS ALSO CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE. F. THE ID. AO HAD ALSO IN HIS REMAND REPORT SUBMITTED IN THE CASE OF SH. PUNA RAM JANGID HAD SUGGESTED ONLY ONE ADDITION OF RS. 7,26,000/ - AND NO ADDITION IN RELATION TO RS. 8,34,932/ - WAS PROPOSED BY AO A LSO. THEREFORE EVEN ACCORDING TO AO, THERE WAS NO ADDITION CALLED FOR RS. 8,34,932/ - . G. IN THE CASE OF PUNA RAM JANGID, THE ID. AO MADE SOME DIRECT ENQUIRY FROM ANSALS, AND ON THE BASIS OF THE SAME HE MADE CERTAIN ADDITION IN THE CASE OF SH. PUNA RAM. H. IN A PPEAL PROCEEDINGS IT WAS FOUND THAT ADDITION WAS UNJUSTIFIED IN THE CASE OF PUNA RAM, AS SALE WAS BEING MADE BY THE APPELLANT, THEREFORE SUCH MATERIAL HAD BEEN USED IN THE CASE OF THE APPELLANT TO MAKE THIS ENHANCEMENT. I . EVEN ON THE BASIS OF SUCH MATE RIAL IT WOULD BE QUIET EVIDENT THAT NO ADDITION IS BEING CALLED FOR. THE ANSALS HAD SEND COPIES OF ALL AGREEMENTS, AND SHARE OF THE APPELLANT TO BE PAID BY THEM, AND A STATEMENT OF ACCOUNT INDICATING THE TOTAL PAYMENT MADE BY THEM TO THE APPELLANT. J. YOU R KIND ATTENTION IS INVITED TOWARDS PAGE 125 OF THE P B WHICH CONTAINS THE TOTAL ACCOUNT OF THE APPELLANT, WHICH IS AS 12 UNDER : TOTAL SALE CONSIDERATION BY ANSLAS RS. 2,71,54,524/ - SHARE OF ASSESSEE IN THE SAID SALE RS. 91,51,468/ - LESS : SHARE OF BROKERAGE PAID BY APIL FOR SALE ON BEHALF OF APPELLANT RS. 5,01,683/ - NET AMOUNT PAYABLE TO APPELLANT RS. 86,49,785/ - AMOUNT SHOWN TO BE RECEIVED BY THE APPELLANT SHOWN AS SALE CONSIDERATION IN A.Y. 2006 - 07 RS. 57, 73,304/ - SHOWN AS INCOME IN A.Y. 2006 - 07 RS. 3,25,000/ - SHOWN AS SALE CONSIDERATION IN AY 2007 - 08 RS. 22,67,270/ - REFUND OF SECURITY DEPOSIT THROUGH CHEQUE ON 14.7.2012. TOTAL RECEIPTS SHOWN BY THE APPELLANT RS. 86,90,57 4/ - EXCESS INCOME SHOWN BY THE APPELLANT RS. 40,789/ - K. THE ID. CIT(A) WHILE MAKING THE ENHANCEMENT HAD ERRED IN NOT CONSIDERING THE DEDUCTION ON ACCOUNT OF BROKERAGE OF RS. 5,01,683/ - BEING PAID BY ANSALS AND DEDUCTED OUT OF THE AMOUNT PA YABLE TO THE APPELLANT, AND HAS FURTHER ERRED IN NOT CONSIDERING THE AMOUNT OF SECURITY DEPOSIT OF RS. 3,25,000/ - REFUNDED TO ANSALS I. FURTHER THE ADDITION OF EXCESS INCOME OF RS. 49,038/ - IS THE AMOUNT CLAIMED BY ANSALS AS PAID EXCESSIVE LIABLE TO BE RE FUNDED, WHICH THE ASSESSEE HAD ALREADY SHOWN AS HIS INCOME. THE ADDITION OF THIS AMOUNT IS T HEREFORE APPARENTLY INCORRECT. 13 M. IN VIEW OF ABOVE FACTS, THE ENTIRE ADDITION OF RS. 8,34,932/ - DESERVES TO BE DELETED. N. SIMILARLY, IN RELATION TO ADDITION O F RS. 7,26,000/ - ENHANCED IT IS SUBMITTED THAT THE SAME IS ALSO APPARENTLY INCORRECT. YOUR KIND ATTENTION IS INVITED TOWARDS REMAND REPORT OF THE ID. AO IN THE CASE OF PUNA RAM JANGID IN THIS REGARD. THE ENTIRE SALE WAS BEING MADE BY ANSALS, AND THEY REMIT TED THE SHARE OF THE APPELLANT. WHATEVER, PAYMENT HAS BEEN MADE BY ANSALS, HAD BEEN DULY ENTERED AS INCOME IN THE BOOKS OF THE APPELLANT, WHICH HAD BEEN FULLY VERIFIED. O. THE APPELLANT HAD RECEIVED ONLY HER SHARE IN RELATION TO THE TOTAL SALE OF DEVELOPE D LAND MADE BY ANSALS ON HER BEHALF AND HER SHARE BEING ONLY 30% OF THE TOTAL SALE CONSIDERATION. THE ENTIRE SALE CONSIDERATION CANNOT BE TREATED AS INCOME OF THE APPELLANT. THE TOTAL SALE CONSIDERATION HAD BEEN RECEIVED BY THE APPELLANT AND SHARE OF HER I NCOME HAD BEEN DULY SHOWN WHICH STANDS FULLY VERIFIED. P. THE INVESTMENT IN LAND AT CHAYAN HAD ALREADY BEEN SHOWN IN THE BALANCE SHEET AS ON 31.3.2006 AT RS. 4,05,775 (P.B. 46). THE PURCHASE IS ALSO DULY SHOWN IN THE BOOKS OF THE ASSESSEE F OR THE YEAR UNDE R CONSIDERATION. Q. THE DETAILS IN RELATION TO PURCHASE OF THIS PROPERTY WAS ALSO SUBMITTED TO THE ID. AO IN LETTER DT. 24.11.11 (P.B. 37 - 40). R. COPY OF CASH BOOK OF THE APPELLANT FOR THE CURRENT YEAR (P.B.50). 14 S. COPY OF LEDGER ACC OUNT IN RELATION TO PURCHASE OF THIS PROPERTY WAS ALSO SUBMITTED AT P.B. 59 T. THUS THE ENTIRE ADDITION OF RS. 7,26,000/ - AND RS. 8,34,932/ - AND RS. 4,05,775/ - ENHANCED BY ID. CIT(A) DESERVES TO BE DELETED. THE LD. CIT(DR) SHRI O.P. MEENA HAS VEHEMENTLY SUPPORTED THE AC TION OF THE LD. CIT(A) WHO HAS ENHANCED ASSESSEES INCOME AS ABOVE BASED ON THE R.R. OF THE A.O. 2.8 AFTER CONSIDERING RIVAL SUBMISSIONS AND AF T ER THE PERUSAL OF THE RECORD, WE HAVE FOUND THAT ALL THESE THREE AMOUNTS HAVE ALREADY BEEN SHOWN BY THE ASSESS EE OR ELSE THEY STAND EXPLAINED. THE ABOVE SUBMISSION OF LD. A.R. IN ITEMS (A) TO (T), AS ABOVE, CLEARLY ESTABLISH THE CONTENTION OF LD. A.R. THUS, ENTIRE ADDITION, FOR WHICH NO SPECIFIC NOTICE FOR ENHANCEMENT WAS GIVEN BY LD. CIT(A) STANDS DELETED. ACCOR DINGLY WE ALLOW GROUND NO. (4) OF ASSESSEES APPEAL. 2.9 SINCE, WE HAVE DELETED ALL THE ADDITION GROUND NO. (5) REGARDING ALLOWING TELESCOPING REMAINS OF ACADEMICALS. 2.10 GROUND NO. (6) CANNOT BE ALLOWED AS IT IS A CASE OF SEARCH. 15 2.11 INTEREST U/S 2 34B AND 234C HAVE TO BE CHARGED AS PER THE PROVISIONS OF ACT. 2.12 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 3. IN THE REVENUES APPEAL GROUND NO. (1) IS REGARDING ADMISSION OF ADDITIONAL EVIDEN CE. THE RELEVANT FACTORS OF THESE GROUN DS CAN BE SUMMARIZED AS UNDER: - A. THE ID. A.O. IN THE QUERY LETTER DT. 23.12.11, WHICH WAS RECEIVED ON 25.12.11, REQUIRED COMPLIANCE ON 28.12.11. ON 29.12.11 THE ID A.O. PASSED THE ORDER. B. THE ADDITIONAL EVIDENCES SUBMITTED TO THE ID. CIT(A) WERE FORWARDED TO THE ID. A.O., WHO HAD EXAMINED THE DETAILS AND INFORMATION SUBMITTED FOR MORE THAN A YEAR. THE ADDITIONAL EVIDENCE WERE PROVIDED TO AO FROM CIT(A) VIDE LETTER DATED 5.2.13. REMAND REPORT WAS SUBMITTED ON 24.2.14. VARIOUS HEARINGS WERE CONDUCTED BY THE AO. C. NO INCRIMINATING MATERIAL WAS FOUND IN SEARCH, IT WAS THEREFORE THE PRIMARY ONUS ON THE AO TO PRO VE BY EVIDENCE THAT THE CREDITS REPRESENTS INCOME. THE PURPOSE OF ASSESSMENT IS TO PROPERLY APPRECIATE THE FACTS, AND IF THE DETAILED FACTS WERE BEING MA DE AVAILABLE THE SAME SHOULD NOT BE DENIED. D. THE ID. CIT(A) HAD VALIDLY ACCEPTED THE ADDITIONAL EVIDENCES, AND IN THIS REGARD RELIANCE IS PLACED ON FOLLOWING DECISIONS : 16 A) CIT VS. KANPUR COAL SYNDICATE(1964) 53 ITR 225 (SC) B) CIT VS. PIONEER PRES S (P) LTD. (200 1) 170 CTR (MAD ) 152 C) CIT VS. K. RAV INDRANATHAN NAIR (2003) 184 CT R (KER) 46 : (2004) 265 ITR 217 (KER) D) CIT VS. SURETECH HOSPITAL & RESEARCH CENTRE LTD. (2007) 293 ITR 53 (BOM) E) CIT VS. PARIMAL KANTI CHANDA (2007) 291 ITR 77 (GAU) F) CIT VS. PODDAR SWADESH UD YOG (P) LTD. (2007) 295 ITR 252 (GAU) G) ACIT VS. VENKATESHWAR ISPAT (P) LTD. (2009) 319 ITR 393 (CHHATTISGARH) H) SMT. PRABHAVATI S. SHAH VS. CIT (1998) 231 ITR 1 (BOM) I) ITO VS. INDUSTRIAL ROADWAYS ITAT, MUMBAI 'K' BENCH (2007) 112 TTJ (MUMBAI) 157 J. SURMUKH SINGH VS. ITO (2008) 115 TTJ (ASR) 852 K. ANMOL COLOURS INDIA (P) LTD. VS. ITO (2009) 121 TTJ (JP) 269 L. SHAHRUKH KHAN VS. DCIT (2007) 13 SOT 61 (MUMBAI) M. ITO VS. DWARKA PRASAD VS. ITO (1998) 60 TTJ (PAT) (TM) 292 IN THE CASE OF DCIT V S M /S. PANCHMUKHI VISHWAKARMA IN I.T.A. NO. 357/JODH/2014 FOR A.Y. 2007 - 08 , IT HAS BEEN HELD AS UNDER: 2.4 SINCE MAJOR ISSUES HAVE BEEN RAISED IN REVENUES APPEAL, WE WILL DEAL ITS GROUND FIRST, AND WHEREVER NECESSARY THE CONNECTED GROUNDS OF ASSESSEES APPEAL WILL BE SIMULTANEOUSLY DEALT WITH. THROUGH THE FIRST GROUND THE REVENUE HAS CHALLENGED THE ADMISSION OF ADDITIONAL EVIDENCE STATING THAT THESE HAVE NOT BEEN ADMITTED IN TERMS OF RULE 46 A OF THE I.T. RULES, 1962. IT WAS ARGUED THAT THE A.O. HAD GIVEN REASONABLE AND SUFFICIENT OPPORTUNITIES TO THE ASSESSEE THROUGH LETTERS, QUERY LETTERS, BUT THE ASSESSEE FAILED TO FURNISH REQUISITE DETAILS OR EVIDENCE, THEREFORE, IT IS PRECLUDED FROM RAISING SUCH ADDITIONAL EVIDENCE ON THE BASIS OF THE LD. CIT(A) HAS DELETED MOST OF THE ADDITIONS. THE LD. CIT(DR) SHRI O.P. MEENA, VEHEMENTLY ARGUED AND ALSO 17 SUBMITTED THROUGH WRITTEN SUBMISSIONS (W.S.) THAT THE LD. CIT(A) HAS INCORRECTLY ADMITTED THESE EVIDENCES. ON THE OTHER HAND LD. A.R . SHRI AMIT KOTHARI ASSISTANCE BY SHRI DEEPAK ARORA VOCIFEROUSLY DEPENDED ACTIONS OF BOTH THE ASSESSEE AND THE LD. CIT(A) IN RESPECTIVELY PRODUCING AND ADMITTING THEM. 2.5 AFTER CONSIDERING RIVAL SUBMISSIONS, WE HAVE FOUND THAT GROUND NO. (1) OF REVENUE S APPEAL IS CONNECTED WITH GROUND NO. 2 AND 3 OF REVENUES APPEAL. WE HAVE CAREFULLY TREADED THROUGH THE ENTIRE RECORD INCLUDING THE LETTERS DATED 17.10.2011 COPY PLACED AT PAPER BOOK PAGE 23 - 30; LETTER DATED 25.11.2011 COPY PLACED AT PAPER BOOK PAGE 31 - 4 6, LETTER DATED 26.11.2011 COPY ENCLOSED AT PAPER BOOK 47 - 53, COPY OF LETTER DATED 28.12.2011 COPY OF WHICH ENCLOSED AT PAPER BOOK PAGE 54 - 67. WE HAVE ALSO GONE THROUGH THE COY OF WRITTEN SUBMISSIONS FILED BY THE ASSESSEE BEFORE THE A.O. WE HAVE ALSO GONE THROUGH THE COPY OF LETTER DATED 07.10.2011 WHICH WAS PRODUCED BEFORE US BY LD. CIT(DR) TO STATE THAT THE A.O. HAD DEMANDED EXPLANATION FROM THE ASSESSEE REGARDING VARIOUS DETAILS. THIS IS A LENGTHY QUERY LETTER RUNNING INTO 7 PAGES AND REQUIRING THE ASSES SEE TO PRODUCE EVIDENCE REGARDING 52 ITEMS. THROUGH THIS LETTER THE A.O. HAS DIRECTED THE ASSESSEE TO SUBMIT REPLY BY 17.10.2011. THE ASSESSEE FILED ITS REPLY VIDE LETTER DATED 17.10.2011. AS WE HAVE STATED THE ASSESSEES LETTERS DATED 25.11.2011, 26.11.20 11 AND 28.12.2011 ARE ON RECORD. IN FACT THE ASSESSEE HAD REPLIED AND SUBMITTED MANY EVIDENCE/ PROOF AS DESIRED BY A.O. THE A.O. STATED PROCEEDING WITH ASSESSMENT PROCEEDINGS, PROPERLY, ON 07.10.2011 AND VERY LITTLE TIME WAS LEFT UPTO 31.12.2011, BY WHICH THE ASSESSMENT ORDER WAS TO BE FRAMED. WE HAVE, IN FACT, FOUND THAT 18 EFFECTIVELY NO ADDITIONAL EVIDENCE WAS PRODUCED BEFORE LD. CIT(A). WHATEVER EVIDENCE WERE ALREADY PRODUCED BEFORE THE A.O. WHICH HE COULD NOT EXAMINE DUE TO PAUCITY OF TIME AND THE ASSESSE E PREFERRED TO PRODUCE THEM AGAIN IN DETAIL ALONGWITH WRITTEN SUBMISSIONS, WAS SENT TO A.O. THE A.O. WAS GIVEN OPPORTUNITY TO INVESTIGATE HIS REMAND REPORT (R.R.). THE A.O. HAS AGAIN INVESTIGATED INTO THE MATTER AND AFTER RELYING ON THE R.R. THE LD. CIT(A) HAS DECIDED HIS APPEAL. THE SUBMISSION OF THE DEPARTMENT WAS THAT THE ASSESSEE WAS SELECTIVE IN SUPPLYING INFORMATION. WE FAIL TO UNDERSTAND AS TO HOW THE ASSESSEE WAS SELECTIVE IN ANSWERING WHEN THE 4 LETTERS MENTIONED ABOVE CLEARLY SPEAK ABOUT ASSESSEE S CO - OPERATION DURING ASSESSMENT PROCEEDINGS. THE DECISION ON WHICH A.O. HAS RELIED IN HIS WRITTEN SUBMISSIONS ARE ENTIRELY DISTINGUISHABLE. THE ASSESSEE HAS BEEN DENIED AMPLE OPPORTUNITIES TO EXPLAIN ITS CASE AS WE HAVE DISCUSSED ABOVE. IN VIEW OF OUR ABOVE DECISION , WE ARE NOT IN AGREEMENT WITH LD. CIT(DR) THAT THE ADDITIONAL EVIDENCE HAVE BEEN ADMITTED IN CONTRAVENTION OF RULE 46A. ACCORDINGLY, WE CANNOT ALLOW GROUND NO. (1) OF REVENUES APPEAL AND DISMISS THE SAME. 3.1 GROUND NO. (2) IS REGARDING O PENING CAPITAL ADDITION. THE FACTS APROPOS THIS GROUND ARE THAT ON PERUSAL OF ACCOUNTS AND OTHER DETAILS FURNISHED BY THE ASSESSEE THE A.O. HAS NOTICED THAT OPENING BALANCE OF 19 CAPITAL AT RS. 33,46,739/ - HAS BEEN SHOWN BY THE ASSESSEE BUT IT IS NOT SUPPORTE D BY DOCUMENTS. HENCE HE HAS ADDED TOTAL SUM OF RS. 30,78,034/ - WITH REFERENCE TO RETURN OF INCOME FILED FOR A.YS. 2004 - 05 AND 2005 - 06. THE LD. CIT(A), ON THE CONTRARY HAS DELETED THIS ADDITION. THE REVENUE HAS RAISED A GROUND AGAINST THIS DELETION. 3.2 WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE ENTIRE RECORD. BOTH THE PARTIES HAVE REITERATED THEIR EARLIER ARGUMENTS. THE OPENING BALANCE OF CAPITAL CANNOT BE TREATED AS INCOME OF PARTICULAR YEAR ESPECIALLY WHEN ASSESSMENT PROCEEDINGS FOR A.YS. 2004 - 05 AND 2005 - 06 WERE BEING COMPLETED PURSUANT TO ACTION US/ 153A. ALL THE ASSETS AND THE LIABILITIES RECORDED IN THE BALANCE SHEET FOR THIS ASSESSMENT YEAR ARE FULLY VERIFIABLE AND HOW THE BALANCE CAN BE THEN TREATED AS ASSESSEES INCOME OF THIS YEAR. THE ASSESSEE IS, ADMITTEDLY, ASSESSED TO TAX REGULARLY AND SINCE THE YEAR 1991. THEREFORE, HER CAPITAL S ON 1.3.2005 CANNOT BE TAKEN AS N I L, AS HAS BEEN DONE BY THE A.O. THE LD. CIT(DR) COULD NOT POINT OUT TO SOME OTHER EVIDENCE. WE DONT FIND ANY I NFIRMITY IN THE IMPUGNED FINDING OF LD. CIT(A) AND CONFIRM THE SAME. 20 THE FOLLOWING JUDGMENTS, RELIED ON BY LD . A.R., SUPPORT ASSESSEES CASE : - A. CIT V. PRAMESHWAR BOHRA (2007) 208 CTR (RAJ) 218 (P.B. 32) B . ITO V. NASIR KHAN J. MAHADIK ITA NO. 153/MUM /2010 DT. 30.11.2011. C. SMT. KAMLA DEVI SETHIA V. ITO (2000) 67 TTJ (JD) 219. (P.B. 33) D. ITO V. PRAKASH CHAND (2006) 100 TTJ (JD) 639 (P.B. 34) 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND THAT OF THE DEPARTMENT IS DISMISSED . ITA NO. 243 AND 359/JODH/2014 (A.Y. 2007 - 08) 5. THESE APPEALS HAVE BEEN FILED AGAINST THE ORDER OF LD. CIT(A) DATED 28.03.2014. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN HER APPEAL : - 1. THE ID. CIT(A) HAS ERRED IN MAKING ADDITION OF RS. 1,77,7 25/ - ON ALLEGED UNEXPLAINED AGRICULTURE INCOME SHOWN BY THE APPELLANT. THE ID. CIT(A) HAS ALSO ERRED IN REJECTING THE APPELLANT CLAIM THAT THE ADDITION WAS OUTSIDE THE SCOPE OF SECTION 153A. 2. THE ID . CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.6 ,50,000/ - U/S 68 IN RELATION TO UNSECURED LOAN OF RS.4,00,000/ - TAKEN FROM J.P. JANGID AND RS.2,50,000/ - TAKEN FROM SHYAM SUNDER SHARMA. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS. 21 3. THE ID. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS .8,35,000/ - ON ACCOUNT OF UNEXPLAINED ADVANCE FOR SALE OF PROPERTY. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS. 4. THE ID. CIT(A), HAS ERRED IN SUSTAINING THE ADDITION OF RS.7,80,000/ - FOR ALLEGED CAPITAL CONTRIBUTION TO M/S MAHALAXMI DEVELOP ERS. THE ADDITION SO SUSTAINED ON ACCOUNT OF CAPITAL CONTRIBUTION TO FIRM IS BAD IN LAW AND BAD ON FACTS. 5. THE ID. CIT(A) HAS ERRED IN NOT GRANTING TELESCOPING EFFECT OF INCOME ALREADY SURRENDERED BY THE APPELLANT IN THE VARIOUS YEARS AND HAS ALSO FURTH ER ERRED IN NOT GRANTING TELESCOPING EFFECT OF THE ADDITIONS SUSTAINED. 6. THE INTEREST CHARGED U/S 234B AND 234C IS BAD IN LAW AND BAD ON FACTS. 7. THE APPELLANT PRAY FOR SUITABLE COSTS. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS : - 1. ON THE FACT S AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), ALWAR HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITIONAL EVIDENCES UNDER RULE 46A OF THE I.T. RULES, 1962 IGNORING THE FACT THAT REASONABLE AND SUFFICIENT OPPORTUNITIES WERE GIVEN BY THE AO TO THE ASS ESSEE THROUGH QUE RY LETTERS, SUBSEQUENT NOTICES ISSUED DURING THE ASSESSMENT PROCEEDINGS BUT THE ASSESSEE HAS 22 FAILED TO FURNISH ANY DETAILS OR EVIDENCES; 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), ALWAR HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE ADDITION MADE BY THE AO ON ACCOUNT OF CONTRIBUTION TO CAPITAL A/C OF RS. 5 0,8 0 , 000 / - OUT OF RS. 58,80,000/ - TREATED AS UNEXPLAINED CREDIT U/S 68 OF THE I.T. ACT, 1961 IGNORING THE FACT THAT THE ADDITIONS TO THE SAID CAPITAL ACCUNT WERE NOT ESTABLISHED/ SUBSTANTIATED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS. 5.1 WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE ENTIRE RECORD. 5.2 THE FIRST GROUND OF ASSESSEES APPEAL IS REGARDING ADDITION OF RS.1,77,725/ - MAD E ON ACCOUNT OF DISALLOWANCE OF AGRICULTURAL INCOME. THE FACTS, THE REASONS FOR ADDITION AND THE ARGUMENTS OF THE PARTIES IN REGARD TO THIS ADDITION ARE ALMOST SAME AND SIMILAR TO A.Y. 2006 - 07, THEREFORE, WITH SIMILAR REASONING WE ORDER TO DELETE THIS ADDI TION, IN THIS YEAR, AS WELL AND ALLOW GROUND NO. (1) OF THE APPEAL. 5.3 GROUND NO. (2) IS REGARDING SUSTAINED ADDITION OF RS. 6,50,000/ - . THE FACTS APROPOS THIS GROUND ARE THAT ASSESSEE - FIRM HAS SHOWN UNSECURED LOANS OF RS. 4 LAKHS FROM J.P. JANGID AND R S. 2.5 LAKHS FROM 23 SHYAM SUNDER SHARMA WHICH ARE NEW CASH CREDITS IN THIS YEAR. SINCE, AS PER THE A.O. THE ASSESSEE COULD NOT PROVE ALL THE INGREDIENTS OF SECTION 68, HE HAS ADDED A SUM OF RS. 6.5 LAKHS IN HER HANDS. THE LD. CIT(A) HAS ALSO CONFIRMED THIS A DDITIONS. 5.4 BEFORE US IT WAS ARGUED BY LD. A.R. THAT ALL THE REQUIRED PARAMETERS LIKE IDENTITY OF AND THE CREDITWORTHINESS OF THE CREDITORS AND THE GENUINITY OF THE DEPOSITS HAVE BEEN ESTABLISHED WITH THE HELP OF EVIDENCE LIKE CONFIRMATIONS, BANK STATE MENTS, COPY OF ACCOUNT IN THE BOOKS OF THE ASSESSEE INDICATING REPAYMENT OF LOAN AND THE FACT THAT DEPOSIT AS WELL AS REPAYMENT A RE THROUGH BANKING CHANNEL. THE COPIES OF REQUISITE PROOF ARE ENCLOSE DIN THE PAPER BOOK. 5.5 ON THE OTHER HAND LD. CIT(DR) H AS ARGUED THAT THE ASSESSEE DID NOT PRODUCE REQUISITE PROOF BEFORE A.O. AND BEFORE CIT(A) WHATEVER WAS PRODUCED IS NOT ENOUGH TO EXPLAIN THESE DEPOSITS. HE HAS FULLY RELIED ON THE REASONS GIVEN FOR MAKING ADDITION BY THE A.O. AND THE REASONS GIVEN BY THE C IT(A) FOR SUSTAINING THIS ADDITION. 24 5 .6 AFTER COGITATING RIVAL SUBMISSION WE HAVE FOUND THAT DURING SEARCH INCRIMINATING EVIDENCE WAS FOUND REGARDING THIS ADDITION, THEREFORE, THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF JAI STEEL INDIA (SUP RA) APPLIES. APART FROM THIS CONFIRMATIONS OF THE PARTIES AS DISCUSSED ABOVE HAVE BEEN FILED, THE COPIES OF WHICH ARE ENCLOSED AT PAPER BOOK PAGES 64, 131, 133, 63 OF LD. ARS PAPER BOOK. THE TRANSACTIONS OF DEPOSIT AND ALSO OF REPAYMENT ARE FOUND TO HAVE BEEN ROUTED THROUGH THE BANKING CHANNELS. THE DEPOSITORS HAVE CONFIRMED THEIR RESPECTIVE DEPOSITS AND HAVE ALSO EXPLAINED THEIR SOURCE OF DEPOSITS. ACCORDINGLY, WE ARE OF THE CONSIDERED OPINION THAT THE ENTIRE ADDITION OF RS. 6 . 5 LAKHS STANDS DELETED. WE A LLOW GROUND NO. (2) OF ASSESSEES APPEAL. 6. GROUND NO. (3) OF ASSESSEES APPEAL IS REGARDING ADVANCE RECEIVED TOWARDS THE SALE OF PROPERTY OF RS. 8,35,000/ - . THE FACTS, THE REASONS FOR ADDITION AND THE ARGUMENTS OF THE PARTIES ARE ON THE SAME LINES AS I T WERE IN A.Y. 2006 - 07. THE CASE OF THE DEPARTMENT IS NO PROPER EXPLANATION HAS BEEN FURNISHED BY THE ASSESSEE TO PROVE THIS ALLEGED ADVANCE. HOWEVER, WE HAVE FOUND THAT INITIALLY THE ASSESSEE RECEIVED AN AMOUNT OF RS. 8 LAKHS AS ADVANCE TOWARDS SALE OF AG RICULTURAL LAND SITUATED AT VILLAGE KHOKHARIYA. AN AMOUNT OF RS. 25 2,88,000/ - WAS RECEIVE D ON 22.02.2008 AND FINALLY THE SALE WAS MADE ON 28.06.2008 FOR A TOTAL CONSIDERATION OF RS. 24,50,000/ - . THE ASSESSEE HAD SHOWN ADVANCE RECEIPT OF RS. 8,35,000/ - IN THE ORIGINAL ROI SUBMITTED BEFORE THE DATE OF SEARCH. FURTHER ADVANCE WAS ALSO RECEIVED IN THE SUBSEQUENT Y E ARS. THE SALE IS PROVED BY THE SALE DEED, COPY OF WHICH IS ENCLOSED AT PAPER BOOK PAGES 76 TO 88. THE BANK STATEMENT PROVES PART ADVANCE WHICH WAS REFU NDED BY CHEQUE. ACCORDINGLY, WE ORDER DELETION OF RS. 8,35,000/ - AND ALLOW GROUND NO. (3) OF ASSESSEES APPEAL. 6.1 GROUND NO. (4) IS REGARDING CAPITAL CONTRIBUTION OF RS. 7,80,000/ - TO BE FIRM M/S. MAHALAXMI DEVELOPERS. AS PER THE A.O. THE SOURCE OF THI S CONTRIBUTION TO THE FIRM IS NOT EXPLAINED. BUT AS PER THE ASSESSEE ITS SOURCE IS FROM OUT OF ADVANCE RECEIVED TOWARDS THE SALE OF AGRICULTURAL LAND. A SUM OF RS. 2.5 LA KHS WAS DEPOSITED IN THE BANK OUT OF THIS ADVANCE ON 17.04.2007. IN OUR OPINION THE AD VANCE RECEIPT STAND EXPLAINED AND THE FIRM HAS ACCEPTED CAPITAL CONTRIBUTION BY HER. THEREFORE, THIS ADDITION IS UNCALLED FOR AND DESERVES TO BE DELETED. 26 6.2 IN REVENUES APPEAL GROUND NO. (1) IS REGARDING ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46A. THIS GROUND IS DISMISSED IN THE SAME MANNER AS WE HAVE DONE IN OTHER APPEAL. 6.3 GROUND NO. (2) REGARDING DELETION OF CAPITAL CONTRIBUTION TO THE FIRM M/S. PANCHMUKHI VISHWAKARMA, IS DISMISSED IN THE SAME MANNER AS WE HAVE DONE IN OTHER APPEALS. THE SOU RCE OF CAPITAL CONTRIBUTION STAND PROVED WITH THE HELP OF FOLLOWING EVIDENCE : A. THE ID. CIT(A) AFTER APPRECIATING THE FACTS OF THE CASE, HAD RIGHTLY DELETED THE ADDITION MADE FOR CAPITAL CONTRIBUTION MADE TO THE FIRM. B. ACCOUNT COPY OF THE FIRM P.B. 69 C. DO CUMENTS IN SUPPORT OF SOURCE OF MONEY GIVEN TO THE FIRM SUBMITTED AT P.B. 70 - 75. D. RS. 2,30,000/ - COPY OF CASH BOOK SUBMITTED WAS GIVEN OUT OF CASH BALANCE AVAILABLE AT RS. 6,36,601/ - (P.B. 70). E. RS. 10,00,000/ - VIDE CH. NO. 191503 DT. 28.12.06 WAS GIVEN OUT OF BANK BALANCE OF RS. 11,18,747/ - AVAILABLE WITH THE ASSESSEE. (P.B. 71) F. RS. 8,00,000/ - ON 26.3.07 WAS OUT OF BANK ACCOUNT, AND THE SOURCE WAS RS. 8,00,000/ - RECEIVED FROM PUNA RAM JANGID THROUGH CHEQUE WHICH IS ACCEPTED DEPOSIT, (P.B. 72) 27 G. RS. 1 5,00,000/ - ON 16.1.2007 WAS OUT OF OVERDRAFT ACCOUNT WITH CANARA BANK OUT OF LIMIT AVAILED FROM BANK. (P.B. 73). H. REGULAR BOOKS OF ACCOUNTS WERE PRODUCED, AND NO SPECIFIC DISCREPANCY HAD BEEN OBSERVED IN SUCH BOOKS OF ACCOUNTS. I. REGULAR ASSESSEE, AND COM PLETE ACCOUNTS PRODUCED. ALL ENTRIES ARE FULLY VERIFIABLE. WE ARE NOT IN AGREEMENT WITH LD. CIT(DR) THAT NO EVIDENCE WAS FILED BY THE ASSESSEE AND THAT R.R. CALLED BY LD. CIT(A) DOES NOT SUPPORT THIS DELETION. THE FACTS ARE OTHERWISE, AS DISCUSSED ABOVE. ACCORDINGLY, WE CONFIRM THIS DELETION AND DISMISS GROUND NO. (2) OF REVENUES APPEAL. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND THAT OF THE REVENUE IS DISMISSED. ITA NO. 244/JODH/2014 (A.Y. 2008 - 09) 7. FOR A.Y. 2008 - 09 ONLY A SSESSE E HAS FILED APPEAL AND REVENUE IS NOT IN APPEAL. THIS APPEAL HAS BEEN FILED AGAINST THE ORDER OF LD. CIT(A) DATED 28.03.2014. IN THIS YEAR FOLLOWING GROUNDS HAVE BEEN RAISED : - 28 1. THE ID. CIT(A) HAS ERRED IN SUSTAININ G ADDITION OF RS. 3,88,000 / - ON ACCOUN T OF UNEXPLAINED ADVANCE FOR LAND AND HAS ERRED IN ENHANCING THE ADDITION FROM RS. 3,53,000/ - TO RS. 3,88,000/ - . THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS . 2 (A) . THE ID . CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 13,44,225 / - ON A CCOUNT OF PROFIT ON SALE OF AGRICULTURAL LAND WHICH WAS CLAIMED TO BE EXEMPT AS NOT FAILING WITHIN THE DEFINITION OF CAPITAL ASSETS. 2(B) THE LD. CIT(A) HAS ERRED IN TREATING THE SAME AS BUSINESS INCOME WHILE THE SAME WAS ALWAYS SHOWN AS INVESTMENT AND WAS LONG TERM GAIN ARISING TO THE APPELLANT. 2(C) THE SALE OF ADMITTEDLY AGRICULTURAL LAND SITUATED OUTSIDE THE SPECIFIED LIMITS IS OUTSIDE THE PURVIEW OF TAX. 3 . T HE ID. CIT(A) HAS ERRED IN NOT GRANTING TELESCOPING EFFECT OF INCOME ALREADY SURRENDERED BY THE APPELLANT IN THE VARIOUS YEARS AND HAS ALSO FURTHER ERRED IN NOT GRANTING TELESCOPING EFFECT OF THE ADDITIONS SUSTAINED. 6. THE INTEREST CHARGED U/S 234B AND 234C IS BAD IN LAW AND BAD ON FACTS. 7. THE APPELLANT PRAY FOR SUITABLE COSTS. 29 7.1 WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE ENTIRE RECORD. THE FACTS LEADING TO THIS APPEAL ARE SAME AS ARE IN OTHER YEARS. 7.2 THE FIRST GROUND IS REGARDING ADDITION OF RS. 3,88,000/ - . THE FACTS, THE REASONS FOR ADDITION ETC ARE SAME AN D SIMILAR AS WAS IN THE EARLIER YEAR. THEREFORE, WITH SIMILAR REASONING THIS ADDITION IS LIKELY TO BE DELETED OF ADVANCE RECEIVED TOWARDS SALE OF PROPERTY AND ENHANCEMENT MADE BY LD. CIT(A). THE A.O. HAS MADE ADDITION IN THIS ACCOUNT OF RS. 3,53,000/ - AND LD. CIT(A) HAS ENHANCED IT TO RS. 3,88,000/ - . THE A.O. HAS NOT ACCEPTED ALLEGED ADVANCE OF RS. 3,53,000 / - RECEIVED. THE COMPLETE FACTS ARE CONTAINED IN PAR A (6) OF THE AOS ORDER AND WE REPRODUCE THE SAME FOR PROPER UNDERST ANDING OF THIS ISSUE, AS UNDER: SIMILARLY DURING THE YEAR UNDER CONSIDERATION THE ASS ESSEE FIRM HAS SHOWN AN AMOUNT OF RS. 10,88, 000/ - AS AGAINST THE AMOUNT OF RS. 8,35,000/ - IN THE PREVIOUS YEAR UNDER THE CURRENT LIABILITIES, FURTHER AN AMOUNT OF RS. 1 , 00 , 000/ - IS SHOWN AS ADVANCE FOR AGRICULTURE LAND UNDER THE HEAD OF CURRENT LIABILITIES. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED .TO FILE PROOF REGARDING IDENTITY, GENUINENESS AND 30 CREDITWORTHINESS IN RESPECT OF ADVANCES FOR SALE OF PROPERTY SHOW N IN HIS BALANCE SHEET. BUT THE ASSESS HAS F AILED TO TILE ANY DETAILS PROOFS/ TO SUBSTANTIATE ITS CLAIMED ADVANCE. EVEN THE ASSESSEE HAS NOT TILED THE CONFIRMATION, COMPLETE ADDRESS. PAN. THE AO WHERE THE PERSON ASSESSED EVEN AFTER VARIOUS OPPORTUNITIES HAVE BEEN GIVEN. HENCE, KEEPING IN VIEW THE ABOVE FACTS IT IS QUITE CLEAR THAT THE ASSESSEE HAS FAILED TO PROVE THE IDENTITY OF THE PERSON, CREDITWORTHINESS OF THE GIVER AND GENUINENESS OF THE TRANSACTIONS SHOWN AS ADVANCE FOR AGRICULTURE LAND OF RS. 100000/ - AND INCREAS E IN THE AMOUNT AS ADVANCE FOR PROPERTY I.E. 2,53,000/ - (1088000/ - - RS. 8.35.000/ - ) AND AS SUCH THE SAME IS TREATED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. AS AGAINST T HIS THE LD. CIT(A) HAS HELD AS UNDER: - IN VIEW OF THE ABOVE DISCUSSION, I FIND THAT THE APPELLANT HAS FAILED TO DISCHARGE THE ONUS U/S 68 OF THE IT ACT AND COULD NOT FURNISH THE NAME, ADDRESS, CONFIRMATION OR OTHER CREDIBLE EVIDENCE IN THE FORM OF SUBSEQU ENT SALE DEEDS WHERE SUCH AMOUNTS ARE STATED TO HAVE BEEN RECEIVED. THE APPELLANT HAS RATHER INTRODUCED THE CASH IN ITS BOOKS ON VARIOUS DATES TO EXPLAIN CERTAIN CREDITS BUT NO SUBSTANTIVE COULD BE FILED IN SUPPORT OF SUCH RECEIPTS. THE APPELLANT HAS FAILE D TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE 31 CREDITORS WHO HAVE GIVEN THE MONEY AS ADVANCE. ACCORDINGLY, I CONFIRM THE ADDITION OF RS. 3,88,000 UNDER THIS HEAD. 7.3 THE ADDITION OF RS. 2,88,000/ - IS OUT OF THE SAME TRANSACTION FOR WHI CH THE ADDITION WAS MADE IN A.Y. 2007 - 08 AND WHICH WE HAVE DELETED . THE ARGUMENTS OF THE PARTIES ARE SAME IN THIS YEAR ALSO. THEREFORE, WE TAKE A SIMILAR VIEW AND ALLOW GROUND NO. (1) OF ASSESSEES APPEAL. WE MAY FURTHER ADD THAT AS PER THE STATEMENT OF AC COUNTS (COPY ENCLOSED AT PAPER BOOK PAGE 68) THE ASSESSEE RECEIVED ADVANCE OF RS. 1 LAKH AGAINST SALE OF AGRICULTURAL AND REPAID THE SAME ON 12.06.2008. THIS FACT HAS BEEN DISCLOSED AND SHOWN IN THE ORIGINAL RETURN OF INCOME (ROI) (COPY ENCLOSED AT PAPER B OOK PAGE 44) . APART FROM THIS NO INCRIMINATING MATER IAL WAS FOUND DURING SEARCH TO SUGGEST THAT THE SAME WAS AN EXPLAINED MONEY OF THE ASSESSEE. ACCORDINGLY WE DELETE THE ENTIRE ADDITION OF RS. 3,88,000/ - AND ALLOW GROUND NO. (1). 7.4 GROUND NO. (2) OF THI S APPEAL IS REGARDING CONFIRMED ADDITION OF RS. 13,44,225/ - . THE FACTS APROPOS THIS GROUND ARE THAT ON EXAMINATION OF THE ACCOUNTS IT WAS NOTICED THAT THE ASSESSEE HAS SHOWN PROFIT ON SALE OF AGRICULTURAL LAND OF RS. 13,44,225/ - AND HAS CLAIMED IT EXEMPT . SHE HAS ADDED THIS RECEIPT TO HER CAPITAL ACCOUNT. AS PER THE A.O. SHE DID NOT PRODUCE SALE DEED OR ANY DOCUMENT TO PROVE ALLEGED RECEIPT 32 FROM THE SALE OF AGRICULTURAL LAND SITUATED AT VILLAGE C HAYAN. SHE HAS CLAIMED THAT THIS LAND WAS SOLD FOR CONSIDERAT ION OF RS. 17,50,000/ - AND HAS EARNED A PROFIT OF RS. 13,44,250/ - THEREFROM. THEREFORE, THE A.O. HAS ADDED RS. 17,50,000/ - U/S 69 ON ACCOUNT OF UNEXPLAINED INVESTMENT. IN APPEAL THE LD. CIT(A) HAS CONFIRMED ADDITION OF RS. 13,44,225/ - BEING THE PROFIT EARN ED ON SALE OF LAND IN THE PERIOD UNDER CONSIDERATION AND HAS OBSERVED THAT REMAINING AMOUNT OF RS. 4,05,775/ - HAS TO BE MADE IN A.Y. 2006 - 07 BECAUSE THE DATE OF PURCHASE OF THIS PROPERTY IS 12.04.2005. 7.5 IT HAS BEEN ARGUED BY LD. A.R. THAT SHE OWNED AN D POSSESSED AGRICULTURAL LAND AT VILLAGE CHAYAN. HE ADMITTED THAT IN THE ORIGINAL ROI THIS FACT WAS NOT DISCLOSED AND IT WAS ONLY AN INADVERTENT ACTION AS IT WAS THOUGH T THIS RECEIPT IS NOT TAXABLE AT ALL. HOWEVER, IN THE ROI FILED IN RESPONSE TO NOTICE IS SUED U/S 153C OF THE ACT THE ASSESSEE HAS DISCLOSED EVERYTHING AND IN THIS REGARD HE HAS REFERRED TO THE COPY OF STATEMENT OF ACCOUNTS ENCLOSED AT P A GE 76 OF HIS PAP E R BOOK. A C O PY OF SALE DEED IS ALSO INCLUDED IN HIS PAPER BOOK. ACCORDING TO HIM THIS AGRI CULTURAL LAND WAS PURCHASED ON 12.04.2005 AND THIS LAND IS SITUATED BEYOND THE PRESCRIBED LIMITS OF THE MUNICIPALITY. THE LAND WAS USED FOR 33 AGRICULTURAL ACTIVITIES. HE HAS FURTHER RELIED ON HIS WRITTEN SUBMISSIONS AND PAPER BOOK. 7.6 PER CONTRA LD. CIT(D R) HAS NOT ONLY SUPPORTED THE ORDERS OF AUTHORITIES BELOW AND H A S RELIED ON HIS WRITTEN SUBMISSIONS BUT HAS ALSO SUBMITTED A S UNDER: - IN THIS CONNECTION, IT IS SUBMITTED THAT: (I). THE APPELLANT HAS CLAIMED THAT SHE HAD SOLD AGRICULTURAL LAND AT VILLAGE - CHHAYAN, DISTT. POKHRAN FOR RS. 17,50,000/ - ON WHICH PROFIT OF RS. 13,44,225/ - WAS CLAIMED TO BE EXEMPT, ON THE GROUND THAT SUCH AGRICULTURAL LAND DOES NOT FALL WITHIN THE DEFINITION OF TAXABLE CAPITAL ASSET. THE SAID AGRICULTURAL LANDS SITUATED AT POKHRA N IS NOT THE SPECIFIED AREA AND THE LAND BEING AGRICULTURAL LAND, THE GAIN AROSE ON SUCH SALE OF AGRICULTURAL LAND WERE NOT LIABLE TO TAX AND THUS CHALLENGED THE ADDITION. PHOTOCOPY OF SOME OF THE SALE DEEDS ARE ANNEXED AT PAGES OF THE PAPER BOOK BUT THE AGGREGATE VALUE OF ALL SUCH SALE DEEDS DO NOT COMES TO RS. 17,50,000/ - AS CLAIMED BY THE APPELLANT. THUS, THE TRANSACTION IS NEITHER PROVED IN FULL NOR SUBSTANTIATED EVEN AT THE REMAND STAGE. THUS, THERE IS NO MERIT IN THE APPELLANTS CONTENTIONS/ CLAIM. (II). ON SCRUTINY OF THE SEIZED PAPERS/ DOCUMENTS ETC. SEIZED FROM THE RESIDENCE OF THE APPELLANTS HUSBAND AND ASSESSEE, IT WAS ASCERTAINED THAT THE COPIES OF THE ORIGINAL RETURNS OF INCOME 34 FILED U/S 139(1) WITH THE ENCLOSURES FOR THE A.Y. 2008 - 09, AS PER ANNEXURE AS - 3 (PARTY NO.3 - RESIDENCE), WHICH SHOWS THAT IN THE SAID RETURN, NEITHER IN THE COMPUTATION O F TOTAL INCOME NOR IN THE P &L A/ C, NOR IN CAPITAL A/C ANY INCOME/ GAIN FROM THE SALE OF ANY AGRICULTUR AL LANDS SITUATED AT VILLAGE - CHHAYAN, POKHARAN HAS BEEN REFLECTED. FURTHER, NO INCOME AS PROFIT FROM SALE OF ANY SUCH AGRICULTURAL LANDS AT CHHAYAN HAS BEEN SHOWN IN THE COMPUTATION OF TOTAL INCOME EITHER AS TAXABLE INCOME OR EVEN AS AN EXEMPT INCOME NOR THE INFORMATION SUBMITTED UNDER THE HEAD DETAIL S OF EXEMPT INCOME WITH THE RETURN OF INCOME FILED IN RESPONSE TO NOTICES U/S 153C OF THE I.T. ACT, 1961. THUS, THIS IS NOT A CLAIM ORIGINALLY MADE. (II I). THE APPELLANT IS IN FACT IN THE BUSINESS OF REAL ESTATE, TRADING AND DEVELOPMENT OF LANDS/ PLOTS ETC. THUS, THE APPELLANTS MAIN PURPOSE FOR PURCHASE OF ANY LANDS WHETHER AGRICULTURAL OR OTHER, WAS TO VENTURE INTO THE BUSINESS OF TRADING OR DEVELOPMENT ETC. OF SUCH LANDS/ PROPERTIES ETC. AS SUCH, THE APPELLANT HAS WRONGLY AND INTENTIONALLY HAD SHOWN AGRICULTURAL LANDS AS 'AGRICULTURAL LANDS ', WHICH IN FACT WERE THE STOCK - IN - TRADE OF THE APPELLANT. THE SAID AGRICULTURE LAN DS WERE STOCK - IN - TRADE OF THE A PPELLANT. THEREFORE, THE SAME REQUIRES TO BE TREATED AS STOCK - IN - TRADE ONLY AND ENTIRE PROFITS REQUI RE TO BE TAXED AS BUSINESS RECEIPTS/ INCOME. 35 (IV) DURING THE REMAND PROCEEDINGS, THE APPELLANT VIDE HER LETTER DATED 16/01/2014, HAS SUBMITTED A COPY OF THE CERTIFICATE ISSUED BY THE PATWARI OF VILLAGE - CHHAYAN DATED 13/01/2014 MENTIONING THAT THE LAND SITUA TED AT KH. NO. 406 IS AN AGRICULTURE LAND AND IS SITUATED AT THE DISTANCE OF 50 KMS. FROM POKHRAN. THE SAID CERTIFICATE IS WITHOUT ANY OFFICIAL DISPATCH NUMBER/ S. NO. OR ANY OFFICIAL LETTERHEAD ETC. AND HENCE THE VALIDITY/ AUTHENTICITY OF THE SAME IS NOT PROVED. (V) DURING THE COURSE OF THE ASSESSME NT PROCEEDINGS U/S 153C OF THE I .T. ACT, 1961, COPIES OF THE REVISED CAPITAL A/C, BALANCE SHEET ETC. HAVE BEEN FURNISHED WHICH CONTAIN ENTRIES DIFFERENT FROM THE ORIGINAL CAPITAL A/C AND BALANCE SHEETSEIZED DU RING THE SEARCH OPERATION. THE DIFFERENCE IN BOTH THE ACCOUNTS IS SUMMARIZED A S UNDER: , THUS, FROM THE FACTS REFLECTED FROM THE SEIZED PAPERS AS SUMMARIZED AS PER ABOVE TABLE IT IS CLEARLY EMERGING THAT THE TRANSACTION OF SALE OF THE SAID AGRICULTURE LANDS WERE NOT ACCOUNTED FOR AS PER ANY COPY OF THE INCOME - TAX RETURNS FILED U/ S 139(1) AS WELL AS U/S 153CFOR THE YEAR UNDER CONSIDERATION. THUS, THE ORIGINAL INVESTMENT MADE IN THE SUBJECT AGRICULTURAL LANDS ARE ALSO NOT PROVED TO BE MADE OUT OF ANY DISCLOSED/ DESCRIPTION BALANCE AS PER ORIGINAL CAPITAL A/C, BALANCE SHEET REVISED BALANCE AS PER REVISED CAPITAL A/C, BALANCE SHEET REMARKS OPENING BALANCE OF CAPITAL A/C 74,20, 832/ - 87,92,654/ - BALANCE INCREASED CLOSING BALANCE OF CAPITAL A/C 67,41,572/ - 94,94,630/ - BALANCE INCREASED TOTAL OF BLANCE SHEET 1,17,78,537/ - 1,40,12,595/ - BALANCE INCREASED PROFIT ON SALE OF AGRICULTURE LANDS NIL 13,44,225/ - SALE CONSIDERATION RS. 1 7,50,000/ - 36 ACCOUNTED SOURCES AS THE SAME WAS NOT REFLECTED IN THE ORIGINAL RETURNS AND BALANCE SHEETS ETC. AS PER RETURN U/S 139(1). HENCE, THE ENTIRE SALE PROCEEDS CLAIMED AS RECEIVED PARTLY IN CASH AND PARTLY THROUGH CHEQUES DEPOSITED INTO BANK A/CS WERE ALL UNACCOUNTED TRANSACTIONS OF INVESTMENTS AS WELL AS SALE AND HENCE HELD TO BE T REATED AS UNEXPLAINED RECEIPTS WHICH WERE INVESTED AS CASH AND DEPOSIT INTO THE APPELLANTS BANK A/CS, AMOUNTING TO RS. 17,50,000/ - . THEREFORE, THE SAID ADDITION DESERVES TO BE UPHELD EVEN ON THIS SINGLE FACT/GROUND/BASIS. (V) IN ORDER TO ASCERTAIN THE TAXABI LITY OF THE SALE OF AGRICULTURAL LANDS THAT THE PROFITS FROM SALE OF LAND WERE SUBJECTED TO NORMAL TAX OR CAPITAL GAINS TAX OR EXEMPT, IT HAS TO BE ESTABLISHED THAT THE LANDS IN QUESTION WERE AGRICULTURE LANDS AND THAT SUCH LANDS WERE NOT SITUATED WITHIN 8 KMS. OF THE MUNICIPAL LIMITS AS LAID DOWN UNDER THE PROVISIONS OF SECTION 2(14)(III) OF THE I.T. ACT, 1961. IN THE PRESENT CASE THE TWIN CONDITIONS STIPULATED ABOVE HAVE NOT BEEN SATISFIED OR FULFILLED. IN THIS CASE, THE ORIGINAL INVESTMENT AND THE PRESEN T TRANSACTIONS OF SALE ARE FOUND TO BE TOTALLY UNEXPLAINED. (VI) THE QUESTION OF ASCERTAINING WHETHER THE LAND WAS SITUATED WITHIN 8 KMS. OR BEYOND 8 KMS. WAS ONLY THE SECOND CONDITION. THE FIRST CONDITION BEING THAT THE LANDS SHOULD HAVE BEEN AGRICULTURAL LAN DS ONLY. THE LANDS IN THE PRESENT CASE WERE NOT AT ALL THE AGRICULTURAL LANDS IN NATURE AS NOT EVEN A SINGLE PROOFS/ EVIDENCES REGARDING CARRYING ON OF ANY CULTIVATION/ AGRICULTURAL ACTIVITY TO PRODUCE ANY AGRICULTURAL 37 PRODUCE THEREON HAVE NOT BEEN FURNISH ED BY THE APPELLANT DURING THE ASSESSMENT OR EVEN DURING THE REMAND PROCEEDINGS. THE APPELLANT HAS FAILED TO PROVE/ SUBSTANTIATE THAT ANY CULTIVATION/ AGRICULTURA L ACTIVITY TO PRODUCE ANY AGRICULTURAL PRODUCE/ CROP ETC. HAVE BEEN CARRIED OUT BY THE APPELLA NT. THUS, THE APPELLANTS CLAIM CANNOT BE FOUND ACCEPTABLE EVEN ON THIS GROUND ALSO. IT IS, THEREFORE, SUBMITTED THAT THE SUBMISSIONS OF THE APPELLANT DOES NOT HAVE ANY BASIS/MERIT IN VIEW OF THE FACTS OF THE CASE AND, THIS ROUND OF APPEAL OF THE ASSESSEE DESERVES TO BE REJECTED. FURTHER, IN VIEW OF THE ABOVE DISCUSSION IT IS MOST HUMBLY SUBMITTED THAT THE A.O. WAS JUSTIFIED IN HIS ACTION TO TREAT THE AFORESAID SALE PROCEEDS RECEIVED AGAINST SALE OF AGRICULTURAL LAND AT RS. 17,50,000/ - AS UNEXPLAINED RECEI PTS AND TO ADD THE SAME TO THE TOTAL INCOME. THE SAME DESERVES TO BE CONFIRMED AS SUCH EVEN AFTER CONSIDERIN G THE OVERALL FACTS AND EVIDENCES SUBMITTED DURING THE REMAND PROCEEDINGS. THEREFORE, THIS ISSUE MAY KINDLY BE DECIDED AFTER CONSIDERIN G THE ABOVE F ACTS AND SUBMISSION ON MERITS. IN VIEW OF THE ABOVE, IT IS SUBMITTED THAT THE LD. CIT(A) HAS RIGHTLY CONFIRMED THE SAID ADDITION AND HENCE THE HONBLE ITAT MAY KINDLY BE REQUESTED TO UPHOLD THE ORDER OF THE LD. CIT(A) . 38 7.7 AFTER CONSIDERING RIVAL SUBM ISSIONS WE HAVE FOUND THAT THE LAND SOLD IS AN AGRICULTURAL LAND AND IS NOT A CAPITAL ASSET IN TERM OF ITS SITES AND USE. THE ASSESSEE DID NOT DISCLOSE THE FACTUM OF PURCHASE AND SALE OF THIS AGRICULTURAL LAND AND ONLY AFTER SEARCH THE ASSESSEE HAS DISCLOS ED THIS FACT. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE FILED COPIES OF REVISED CAPITAL ACCOUNT, BALANCE SHEET ETC., AS DISCUSSED IN THE ABOVE PARA. IN FACT THE DEPARTMENT IS NOT CLAMORING THAT THE LAND IN QUESTION IS NOT AGRICULTURAL ONE AS THE ASSES SEE HAS NOT PRODUCED ANY EVIDENCE REGARDING ANY AGRICULTURAL ACTIVITIES HAVING BEEN CARRIED OUT THEREIN AND THE PROOF FILED TO ESTABLISHED THAT THIS LAND IS SITUATED BEYOND 8 KMS FROM THE M. C. LIMITS HAS BEEN POOH POOHED ON THE REASONING THAT THE CERTIFIC ATE IS NOT PROPERLY PREPARED AND IS DOUBTFUL. WE ARE NOT IN AGREEMENT WITH THIS LIN E OF ARGUMENT OF LD. CIT(DR), BECAUSE THE A.O. OR THE LD. CIT(A) HAVE NOT CONCLUDED THAT THE LAND IS NOT AGRICULTURAL LAND. RATHER FROM THE RECORDS INCLUDING SALE DEED ETC. THIS FACT GETS ESTABLISHED ON RECORD. THE SITES OF THE LAND ALSO BRING THIS LAND OUT OF THE DEFINITION OF CAPITAL ASSET PRESCRIBED IN SECTION 2(14) OF THE ACT. THE PROOF OF AGRICULTURAL ACTIVITIES BEING CARRIED ON THIS LAND OR NOT NEVER HAS BEEN A ISSUE BEFORE, RATHER, AS STATED ABOVE IT GETS ESTABLISHED FROM THE EVIDENCE FILED BY THE ASSESSEE. NOW CONSIDERING TO AN IMPORTANT ASPECT OF THIS ISSUE THAT THE 39 ASSESSEE GROUP BEING ENGAGED IN THE BUSINESS OF RE A LTORS THIS LAND H A S TO BE PRESUMED AS A PART OF ST OCK IN TRADE AND NOT AS AN INVESTMENT FOR WHICH EXEMPTION IS AVAILABLE. WE ARE NOT GOING TO ACCEPT THIS LINE OF ARGUMENT OF THE DEPARTMENT B ECAUSE THE ASSESSEE HAS ESTABLISHED INTENTIONS CLEARLY AND THERE IS NO ANY IOTA OF PROOF TO DEVELOP REASONING ON THO SE LINES. THIS LAND WAS NEVER INCLUDED IN THE STOCK IN TRADED AS IT IS NOT EVIDENT EITHER BY THE SEIZED DOCUMENTS OR OTHERWISE. THE REASONING GIVEN BY LD. CIT(A) THAT ON L Y BECAUSE THIS INVESTMENT WAS DETECTED DURING SEARCH AND NEVER DISCLOSED BEFORE THE D EPARTMENT, THEREFORE, IT HAS TO BE NECESSARILY HELD THAT IT IS STOCK IN TRADE, IS ALSO AGAINST ALL CANNONS OF LAW. THE DECISIONS MAKER HAS TO CONSIDER ALL THE RELEVANT ARGUMENTS ON THE ISSUE BEFORE TAKING A VERDICT. THIS ASSET HAS BEEN SHOWN AS A FIXED AS SET IN THE BALANCE SHEET, AS AN INVESTMENT IN AGRICULTURAL LAND. A C ERTIFICATE ISSUED BY THE HALKA P ATWARI IS ENCLOSED AT PAPER BOOK PAGE 204. THIS CERTIFICATE CLEARLY ESTABLISHED THAT THE LAND IN QUESTION IS SITUATED AT ABOUT 50 KMS FROM THE NEAREST M.C. AND FALLS IN THE GR A M PANCHYAT AREA. THE LD. A.R. HAS PLACED RELIANCE ON MANY JUDGMENTS REFERRED TO AS AT PAGES 244 TO 253 OF THE PAPER BOOK AND ON THE THIRD MEMBER ORDER IN THE CASE OF SUPRIYA KANW A R IN ITA NO. 362/JU/2010 DATED 13.05.2014 REPORTED IN (2 014) 149 ITD 1 (TM). ALL THESE JUDGMENTS SUPPORT OUR 40 ABOVE CONCLUSION. THE DECISION IN THE CASE OF 249 ITR 378 REPORTED IN NOORSINGH VS. UOI & OTHERS [ MAD ] IS DISTINGUISHABLE ON FACTS OF THIS CASE AND THE FACTS OBTAINING IN TH IS CASE. ACCORDINGLY, WE ORD ER THE DELETION OF THE IMPUGNED ADDITION AND ALLOW GROUND NO. (2) OF THIS APPEAL. 7.8 THE GROUND NO. 3, 4, 5, AND 6 ARE DISPOSED O F F IN THE SAME MANNER A S WE HAVE DONE IN A.Y. 2007 - 08 AND, THEREFORE, WE ALLOW THIS APPEAL OF THE ASSESSEE IN ITA NO. 244/JODH /2014 (A.Y. 2008 - 09). ITA NOS. 245 AND 360/JODH/2014 (A.Y. 2009 - 10) 8. THESE ARE CROSS APPEALS FILED AGAINST THE ORDER OF LD. CIT(A) DATED 28.03.2014. IN ASSESSEES APPEAL FOLLOWING GROUNDS HAVE BEEN RAISED : - 1.(A) THE ID. CIT(A) HAS ERRED IN SUSTAININ G ADDITION OF RS. 3,88,000 / - ON ACCOUNT OF UNEXPLAINED ADVANCE FOR LAND AND HAS ERRED IN ENHANCING THE ADDITION FROM RS. 3,53,000/ - TO RS. 3,88,000/ - . THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS . (B) THE LD. CIT(A) HAS ERRED IN TREATING TH E SAME AS BUSINESS INCOME WHILE THE SAME WAS ALWAYS SHOWN AS INVESTMENT AND WAS LONG TERM GAIN ARISING TO THE APPELLANT. 41 2(A). THE LD. CIT(A) HAS ERRED IN OBSERVING THAT THE INDEXED COST OF SALE OF HOUSE HAD BEEN WRONGLY CLAIMED BY RS. 71,988/ - AND LONG TE RM GAIN DESERVES TO BE INCREASED BY SUCH AMOUNT. THE ADDITION WAS BAD IN LAW AND BAD ON FACTS. (B) THE ID . CIT(A) HAS ERRED IN OBSERVING THAT THE DEDUCTION U/S 54 CLAIMED AT RS. 4,50,000/ - WAS NOT CORRECT AND DIRECTING TO DISALLOW WHICH IS BAD IN LAW AN D BAD ON FACTS AND IS NOT ARISING FROM THE APPEAL. (C) THE DIRECTION TO ABOVE ENHANCEMENT OF INCOME IS BAD IN LAW AND BAD ON FACTS. 3. T HE ID. CIT(A) HAS ERRED IN NOT GRANTING TELESCOPING EFFECT OF INCOME ALREADY SURRENDERED BY THE APPELLANT IN THE VARIO US YEARS AND HAS ALSO FURTHER ERRED IN NOT GRANTING TELESCOPING EFFECT OF THE ADDITIONS SUSTAINED. 4 . THE INTEREST CHARGED U/S 234B AND 234C IS BAD IN LAW AND BAD ON FACTS. 5 . THE APPELLANT PRAY FOR SUITABLE COSTS. 8.1 WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE ENTIRE RECORD. 42 8.2 THE FACTS OF GROUND NO. (1) OF ASSESSEES APPEAL ARE THAT ON PERUSAL OF ACCOUNTS AND OTHER DETAILS IT WAS NOTICED BY AO THAT DURING THE Y E AR THE ASSESSEE HAS SHOWN PROFIT ON THE SALE OF AGRICULTURAL LAND FOR CONSIDERATION OF RS. 40,18,500/ - (RS. 22,26,500 + RS. 17,92,000) AND HAS CLAIMED IT EXEMPT. THE ASSESSEE HAS ALSO SHOWN PROFIT ON THE SALE RECEIPT OF RS. 15,04,500/ - FROM A RESIDENTIAL HOUSE, IN THE P&L ACCOUNT. AFTER AVAILING INDEXATION BENEFIT THE AS SESSEE HAS SHOWN CAPITAL GAIN ON THE SALE OF THE RESIDENTIAL HOUSE. ON THE MAIN PREMISE THA T THE ASSESSEE - GROUP IS THAT OF REALTORS THE A.O. HAS TREATED THE PROFIT ON SALES AS HER BUSINESS INCOME, WHICH HAS RESULTED INTO AN ADDITION OF RS. 40,18,500/ - . THE ASSESSEE ASSAILED THIS ADDITION BUT IN VAIN. THE LD. CIT(A) HAS HELD THUS : - 5.10. I HAVE GONE THROUGH THE ASSESSMENT ORDER AS WELL AS SUBMISSIONS MADE BY THE AR AND FIND THAT AN ADDITION OF RS. 40,18,500 WAS MADE BY THE AO ON ACCOUNT OF SALE OF LAND MA DE BY THE APPELLANT. SINCE, THE APPELLANT DEALS IN THE BUSINESS OF PURCHASE AND SALE OF LAND THEREFORE THE CLAIM MADE BY THE ASSESSEE THAT PROFIT ON SALE OF AGRICULTURAL LAND IS EXEMPT FROM TAX WAS REJECTED BY THE AO. FURTHER, NO EVIDENCE IN SUPPORT OF SUC H TRANSACTIONS OF SALE AND PURCHASE WERE FILED BEFORE THE AO TO SUBSTANTIATE ITS CLAIM. 43 5.1 1. IN THE COURSE OF APPELLATE PROCEEDINGS, IT IS STATED THAT THE PROFIT HAS BEEN ON S ALE OF AGRICULTURAL LAND AT VILLAGE - ANGANWA, VILLAGE - KHOKHARIYA AND VILLAGE BA SNI BAGELA. THIS AGRIC ULTURAL LAND DOES NOT FALL WITH IN THE DEFINI TION OF TAXABLE CAPITAL ASSET AND HENCE NO TAX IS PAYABLE ON THE CAPITAL IS EARNED BY THE APPELLANT. IT IS ALSO SUBMITTED THAT - (I) AGRICULTURAL LAND AT VILLAGE - KHOKHARIYA WAS SOLD FOR RS. 24,50,000 ON .8 - 06 - 2008 AND AGAINST THIS LAND ADVANCE OF RS. 8 LACS WAS RECEIVED IN A.Y. 2007 - 08 AND OF RS. 2,88,000 WAS RECEIVED IN A.Y. 2008 - 09. NET INCOME ON SALE OF LAND WAS SHOWN AT RS. 22,26,500 IN A.Y. 2009 - 10. HOWEVER, AO HAS ALREADY MADE ADDI TIONS U/S 68 OF THE IT ACT ON ACCOUNT OF ADVANCES RECEIVED AGAINST THE SALE OF THIS LAND IN THE EARLIER YEARS. (II) SIMILARLY, PROFIT HAS BEEN DECLARED ON SALE OF AGRICULTURAL LAND AT VILLAGE - BASNI BAGELA TO OIL DAS & CO. AND THE PROFIT OF RS. 5,58,000 HAS B EEN DECLARED AS INCOME FOR A.Y. 2009 - 10. (III) FURTHER, PROFIT OF RS. 12,34,000 HAS BEEN DECLARED AGAINST SALE OF AGRICULTURAL LAND AT VILLAGE - ANGANWA FOR A.Y. 2009 - 10. 5.12. THE APPELLANT HAS FILED A COPY OF THE CERTIFICATES FROM THE PATWARI DATED 10 - 01 - 2014 STATI NG THAT AGRICULTURAL LAND AT KHASRA NO. 193 VILLAGE - ANGANWA AND KHASRA NO. 1, 2, 13 & 14 AT VILLAGE - KHOKHARIYA, GRAM PANCHAYAT SURPURA IS AGRICULTURAL LAND AND IS SITUATED OUTSIDE THE CITY LIMITS OF JODHPUR. A COPY OF THE CERTIFICATE WAS ALSO FILED BEFORE THE AO BY THE APPELLANT IN THE COURSE OF REMAND PROCEEDINGS. HOWEVER, NO SUCH CERTIFICATE 44 COULD BE FILED WITH REGARD TO THE AGRICULTURAL LAND AT VILLAGE - BASNI BAGHELA. FURTHER, THE AUTHENTICITY OF THE CERTIFICATES FILED FOR THE OTHER TWO AGRICULTURAL LAND HOLDINGS HAS ALSO BEEN DOUBTED BY THE AO IN THE REMAND REPORT AS THE SAID CERTIFICATES DO NOT CARR Y ANY DISPATCH NUMBER, OFFICIAL SEAL ETC. 5.13. IN THE COURSE OF PROCEEDINGS, IT IS SUBMITTED BY THE APPELLANT THAT INVESTMENT MADE IN THE AGRICULTURAL LAND WAS S HOWN BY THE APPELLANT IN THE BALANCE SHEET AS INVESTMENTS UNDER THE HEAD FIXED ASSETS IN THE ITRS FILED AFTER SEARCH AND IS THEREFORE, ENTITLED TO CLAIM THE GAINS EARNED ON THE SALE OF LAND AS EXEMPT FROM TAX. 5.14. IN VIEW OF THE ABOVE DISCUSSION, I FIND THAT SINCE THE APPELLANT HAS BEEN ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF LAND AND HAS BEEN CONSISTENTLY MAKING SUCH TRANSACTIONS INVOLVING THE AGRICULTURAL LAND ALSO. THE CONTENTION OF THE APPELLANT THAT THE PROPERTY HAS BEEN DECLARED UNDER THE HEAD FI XED ASSETS - INVESTMENTS DOES NOT HOLD GOOD, AS THIS HAS BEEN SO DECLARED IN THE RETURNS OF INCOME FILED AFTER THE SEARCH. THIS ASSET WAS NOT DECLARED AT ANY POINT OF TIME IN THE BALANCE SHEET FILED BEFORE THE SEARCH. THE FACTUAL ANALYSIS OF THE CASE SUGGE ST THAT THE APPELLANT HAS BEEN MAKING DEALINGS IN PURCHASE AND SALE OF LAND AND THEREFORE, THE SAID TRANSACTIONS DO TAKE THE CHARACTER OF BUSINESS TRANSACTIONS. THE INTENTION OF THE APPELLANT AS MAY BE SEEN / INFERRED FROM THE PAPERS/ DOCUMENTS SEIZED IS C LEARLY TO MAKE PROFITS ON SALE / PURCHASE OF 45 AGRIC ULTURAL LAND. THE APPELLANT HAS NOT DECLARED THE PURCHASE OF AGR ICULTURAL LAND AT VILLAGE - AANGAMVA IN THE ITR FILED BEFORE THE SEARCH. TH IS FACT HAS BEEN CONFIRMED IN THE REMAND REPORT AS REPRODUCED ABOVE . IT M AY ALSO BE RELEVANT TO MENTION THAT THE APPELLANT HAS PURCHASED LARGE TRACT OF LAND IN VILLAGE - BASNI BAGHELA, WHICH HAS BEEN DEVELOPED IN PARTNERSHIP (MOU) WITH ANSALS AND HUGE PROFITS HAVE BEEN EARNED ON THAT PROJECT. ACCORDINGLY, I HOLD THAT FOLLOW ING ADDITIONS SHALL BE MADE TO THE INCOME OF THE APPELLANT UNDER THE HEAD INCOME FROM BUSINESS AND NO EXEMPTION ON ACCOUNT OF SALE OF AGRICULTURAL LAND SHALL BE AVAILABLE TO THE APPELLANT. : - (I) UNEXPLAINED PROFIT ON SALE OF LAND AT VILLAGE - AANGANWA OF RS. 1 2,34,000 SHALL BE TAXED AS INCOME OF THE APPELLANT FOR THE PERIOD UNDER CONSIDERATION AS THE PURCHASE OF PROPERTY WAS NEVER DECLARED BY THE APPELLANT. HOWEVER, THE UNEXPLAINED INVESTMENT OF RS. 2,16,000 MADE FOR THE PURCHASE OF PROPERTY SHALL BE TAXED IN A .Y. 2005 - 06. THE AO MAY TAKE NECESSARY ACTION IN THIS REGARD AS CONSIDERED APPROPRIATE. (II) PROFIT ON SALE OF LAND AT VILLAGE - KHOKHARIYA OF RS. 22,26,500 SHALL BE TAXED AS INCOME OF THE APPELLANT FROM BUSINESS FOR THE PERIOD UNDER CONSIDERATION. HOWEVER, THE SUBMISSIONS OF THE APPELLANT ARE FOUND TO BE CORRECT AS AN ADDITION OF RS. 8 LACS IN A.Y. 2007 - 08 AND OF RS. 2.88 LACS IN A.Y. 2008 - 09 HAVE ALREADY BEEN MADE ON ACCOUNT OF UNEXPLAINED 46 ADVANCE RECEIVED AGAINST SALE OF PROPERTY. THEREFORE, AFTER GIVING CRED IT FOR THE SAME, THE NET ADDITION TO BE MADE TO THE INCOME OF THE APPELLANT IN THIS YEAR WOULD BE RS. 11,38,500. FURTHER, AS REGARDS THE PURCHASE OF PROPERTY IS CONCERNED, THE AO MAY TAKE NECESSARY ACTION IN A.Y. 2004 - 05 AS CONSIDERED APPROPRIATE. (III) PROFIT ON SALE OF LAND AT VILLAGE - BASNI BAGHELA OF RS. 5,58,000 SHALL BE TAXED AS INCOME OF THE APPELLANT FROM BUSINESS FOR THE PERIOD UNDER CONSIDERATION. 5.15. THE QUESTION OF WHETHER THE LAND IS SITUATED WITHIN 8 KMS OF CITY/ MUNICIPAL LIMITS OR NOT, IS NOT RELEVA NT AND IS JUST TO MISLEAD THE ARGUMENTS BECAUSE IN THE FACTS AND CIRCUMSTANCES OF THIS CASE THE ISSUE WHICH IS RELEVANT IS THE CONDUCT OF THE APPELLANT AND THE NATURE, VOLUME AND FREQUENCY OF TRANSACTIONS WHICH HAVE BEEN CARRIED OUT BY THE APPELLANT. IN VI EW OF THE ABOVE DISCUSSION, I CONFIRM THE ADDITION OF RS. 29,30,500 ON ACCOUNT OF SALE OF LAND OUT OF THE TOTAL ADDITION OF RS 40,18,500 MADE BY THE AO UNDER THIS HEAD. ACCORDINGLY, THE APPELLANT WOULD GET A RELIEF OF RS. 10,88,000 ON THIS ACCOUNT. 8.3 B EFORE US BOTH PARTIES HAVE REITERATED THEIR EARLIER ARGUMENTS. THE GIST OF LD. ARS ARGUMENTS IS AS UNDER: - 47 T HE DETAILS OF LONG TERM GAIN ARISING ON SALE OF AGRICULTURE LAND WHICH IS OUTSIDE THE MUNICIPAL LIMITS AND NOT FALLING UNDER THE DEFINITION OF CAP ITAL ASSETS DURING THE YEAR UNDER CONSIDERATION IS AS UNDER : DESCRIPTION DATE OF PURCHASE AMOUNT DATE OF SALE AMOUNT GAIN ON SALE OF AGR.LAND 'AGR.LAND AT ' ANGANWA K.NO.193 08.09.04 2,16,000/ - (P.B. 66, 67 - 72) 28.06.08 14,50,000/ - (P.B. 73, 7 4 - 79) 12,34,000/ - AGR.LAND AT KHOKHERIYA K. NO. 1,12,13 AND 14 01.03.04 2,23,500/ - (P.B. 53, 54 - 57) 28.06.08 24,50,000 (P.B. 58, 59 - 65) 22,26,500 AGR. LAND AT BASNI BAGHELA K.NO.74 21.03.06 5 5, 42,000/ - (P.B. 87, 88 - 95) 08.07.08 11, 11, 00,00 0/ - (P.B. 80, 81 - 86) 5,58,00 0 TOTAL 9,81,500/ - 50,00,000/ - 40,18,500/ - A. THE SAID AGRICULTURE LAND SOLD AT VILLAGE KHOKHARIYA, ANGANWA AND BASNI BAGHLA WERE SITUATED OUTSIDE THE MUNICIPAL LIMITS OF JODHPUR WHICH IS NOT BEING DISPUTED. B. THE ID. AO AND CIT(A) TREATED THE SAME AS TAXABLE GAIN ON THE GROUND THAT THE APPELLANT IS ALSO CARRYING ON REAL ESTATE ACTIVITIES THEREFORE SUCH SALE WOULD BE REGARDED AS BUSINESS INCOME, TO DENY THE EXEMPTION TO THE APPELLANT. C. THE ASSESSEE HERSELF HAD NEVER CARRI ED OUT ANY ACTIVITIES OF REAL ESTATE BUSINESS EXCEPT THE TRANSACTION WITH ANSALS, WHERE ALSO NO DEVELOPMENT WORK WAS CARRIED OUT BY ANSALS ONLY, AND THE APPELLANT HAD RECEIVED HER SHARE AGAINST THE LAND GIVEN. 48 D. THE APPELLANT HAD NEVER TREATED THESE INVEST MENTS IN AGRICULTURE LAND AS A STOCK IN TRADE, AND THE SAME WERE ALWAYS SHOWN AS FIXED ASSET IN THE BALANCE SHEET. E. AFTER MAKING INVESTMENT IN THESE LANDS NO OTHER EXPENDITURE ON ANY KIND OF DEVELOPMENT ACTIVITIES WAS BEING CARRIED OUT ON THESE LANDS. F. CERTIFICATE FROM PATWARI WAS ALSO SUBMITTED TO INDICATE THAT THE AGRICULTURE LAND ARE SITUATED OUTSIDE THE MUNICIPAL LIMITS OF JODHPUR. THUS THE SAME DOES NOT FALL IN THE DEFINITION OF CAPITAL ASSET, (P.B. 130 - 131) G. RELIANCE IS PLACED ON FOLLOWING DECI SIONS AT P.B. 174 - 183. H. THE ISSUE IS ALSO COVERED IN FAVOUR OF THE ASSESSEE BY THE THIRD MEMBER DECISION OF HON'BLE ITAT JODHPUR BENCH IN THE CASE OF SUPRIYA KANWAR IN ITA NO. 362/JU/2010 ORDER DATED 13 TH MAY, 2014. THE GIST OF SUBMISSION OF LD. CIT(DR ) IS AS UNDER: - IN THIS CONNECTION, IT IS SUBMITTED THAT: 49 (I) ON SCRUTINY OF THE SEIZED PAPERS/ DOCUMENTS ETC. SEIZED FROM THE RESIDENCE OF THE APPELLANTS HUSBAND AND ASSESSEE, IT WAS ASCERTAINED THAT THE COPIES OF THE ORIGINAL RETURNS OF INCOME FIL ED U/S 139(1) WITH THE ENCLOSURES FOR THE A.Y. 2008 - 09, AS PER ANNEXURE AS - 3 (PARTY NO.3 - RESIDENCE), WHICH SHOWS THAT IN THE SAID RETURN, COPY OF BALANCE SHEET OR ANNEXURE C TO THE BALANCE SHEET, NO AGRICULTURE LAND AT ANGANWA IS REFLECTED. HOWEVER, IN TH E BALANCE SHEET FILED DURING THE ASSESSMENT PROCEEDINGS IN RETURN OF INCOME U/S 153CFORTHE A.Y. 2008 - 09, THE SAID AGRICULTURE LAND AT ANGANWA OF RS. 2,16,000/ - HAS BEEN INCLUDED. THUS, THE ORIGINAL INVESTMENT MADE IN THIS AGRICULTURE LAND AT RS. 2,16,000/ - IS NOT REFLECTED IN HER BOOKS OF ACCOUNTS AS EXPLAINED/ ACCOUNTED FOR. THUS, THE TRANSACTION IS NEITHER PROVED NOR SUBSTANTIATED EVEN AT THE REMAND STAGE. THUS, THERE IS NO MERIT IN THE APPELLANT'S CONTENTIONS/ CLAIM. HENCE THE ENTIRE SALE CONSIDERATION R ECEIVED OF RS. 14,50,000/ - IN RESPECT OF THIS TRANSACTION REQUIRES TO BE TREATED AS UNEXPLAINED RECEIPT/ INCOME. (I) THE APPELLANT IS IN FACT IN THE BUSINESS OF REAL ESTATE, TRADING AND DEVELO PMENT OF LANDS/ PLOT S - ETC. THUS, THE APPELLANTS MAIN PURPOSE FOR P URCHASE OF ANY LANDS WHETHER AGRICULTURAL OR OTHER, WAS TO VENTURE INTO THE BUSINESS OF TRADING OR DEVELOPMENT ETC. OF SUCH LANDS/ PROPERTIES ETC. AS SUCH, THE APPELLANT HAS WRONGLY AND INTENTIONALLY HAD SHOWN AGRICULTURAL LANDS AS AGRICULTURAL LANDS ', W HICH IN FACT WERE THE STOCK - IN - TRADE OF THE 50 APPELLANT. THE SAID AGRICULTURE LAN DS WERE STOCK - IN - TRADE OF THE A PPELLANT. THEREFORE, THE SAME REQUIRES TO BE TREATED AS STOCK - IN - TRADE ONLY AND ENTIRE PROFITS REQUIRE TO BE TAXED AS BUSINESS RECEIPTS/ INCOME. ( II I). DURING THE REMAND PROCEEDINGS, THE APPELLANT VIDE HER LETTER DATED 16/01/2014, HAS SUBMITTED COPIES OF TWO CERTIFICATES ISSUED BY THE PATWARI OF VILLAGE - SURPURA DATED 10/01/2014 )PAGES 29 - 30) STATING THAT THE LAND SITUATED AT (I). KH. NO. 193(STRIK EN OFF/ CORRECTED BUT NOT INITIALED) OF VILLAGE ANGANWA AND (II). KH. NO. 1,2,13,14 OF VILLAGE KHOKHARIYA ARE AGRICULTURAL LANDS AND DONOT COME UNDER THE LIMITS OF JO DHPUR MUNICIPAL LIMITS. NO ANY S UCH CERTIFICATE IN RESPECT OF THE THIRD LAND HAS BEEN SUBM ITTED. THE SAID CERTIFICATE IS WITHOUT ANY OFFICIAL DISPATCH NUMBER/ S.NO. OR ANY OFFICIAL LETTERHEAD ETC. AND ALSO CORRECTIONS MADE WITHOUT ANY INITIALS ETC. HENCE THE VALIDITY/ AUTHENTICITY OF THE SAME IS NOT PROVED. (IV) IN ORDER TO ASCERTAIN THE TAXABILITY OF THE SALE OF AGRICULTURAL LANDS THAT THE PROFITS FROM SALE OF LAND WERE SUBJECTED TO NORMAL TAX OR CAPITAL GAINS TAX OR EXEMPT, IT HAS TO BE ESTABLISHED THAT THE LANDS IN QUESTION WERE AGRICULTURE LANDS AND THAT SUCH LANDS WERE NOT SITUATED WITHIN 8 KMS . OF THE MUNICIPAL LIMITS AS LAID DOWN UNDER THE PROVISIONS OF SECTION 2(14)(III) OF THE I.T.ACT, 1961. IN THE PRESENT CASE THE TWIN CONDITIONS STIPULATED ABOVE HAVE NOT BEEN SATISFIED OR FULFILLED. IN THIS CASE, THE ORIGINAL 51 INVESTMENT AND THE PRESENT TRA NSACTIONS OF SALE ARE FOUND TO BE TOTALLY UNEXPLAINED. (V) THE QUESTION OF ASCERTAINING WHETHER THE LAND WAS SITUATED WITHIN 8 KMS. OR BEYOND 8 KMS. WAS ONLY THE SECOND CONDITION. THE FIRST CONDITION BEING THAT THE LANDS SHOULD HAVE BEEN AGRICULTURAL LANDS ON LY. THE LANDS IN THE PRESENT CASE WERE NOT AT ALL THE AGRICULTURAL LANDS IN NATURE AS NOT EVEN A SINGLE PROOFS/ EVIDENCES REGARDING CARRYING ON OF ANY CULTIVATION/ AGRICULTURAL ACTIVITY TO PRODUCE ANY AGRICULTURAL PRODUCE THEREON HAVE NOT BEEN FURNISHED BY THE APPELLANT DURING THE ASSESSMENT OR EVEN DURING THE REMAND PROCEEDINGS. THE APPELLANT HAS FAILED TO PROVE/ SUBSTANTIATE THAT ANY CULTIVATION/ AGRICULTURA L ACTIVITY TO PRODUCE ANY AGRICULTURAL PRODUCE/ CROP ETC. HAVE BEEN CARRIED OUT BY THE APPELLANT. T HUS, IT IS ESTABLISHED THAT THE SUBJECT LANDS WERE STOCK - IN - TRADE OF THE APPELLANT. THUS, THE APPELLANTS CLAIM CANNOT BE FOUND ACCEPTABLE EVEN ON THIS GROUND ALSO. IT IS, THEREFORE, SUBMITTED THAT THE SUBMISSIONS OF THE APPELLANT DOES NOT HAVE ANY BASIS/ MERIT IN VIEW OF THE FACTS OF THE CASE AND, THIS GROUND OF APPEAL OF THE ASSESSEE DESERVES TO BE REJECTED. FURTHER, IN VIEW OF THE ABOVE DISCUSSION IT IS MOST HUMBLY SUBMITTED THAT THE A.O. WAS JUSTIFIED IN HIS ACTION TO TREAT THE AFORESAID SALE PROCEEDS R ECEIVED AGAINST SALE OF AGRICULTURAL LAND AT RS. 40,18,500/ - AS UNEXPLAINED RECEIPTS AND TO ADD THE SAME TO 52 THE TOTAL INCOME. IN THIS CONNECTION IT IS FURTHER SUBMITTED THAT THE AGRICULTURAL LAND CLAIMED AT ANGANWA WA S NOT ACQUIRED AS PER ASSESSEE S ORIGIN AL BALANCE SHEET AND HENCE WAS U NACCOUNTED AS SUCH THE REMAINING SALE PROCEEDS OF RS.2,16,000/ - FURTHER REQUIRES TO BE ADDED AS UNACCOUNTED RECEIPTS AND THE ADDITION DESERVES TO BE ENHANCED TO RS. 42,34,500/ - (RS. 40,18,500/ - +RS. 2,16,000/ - ). THE SAME DESE RVES TO BE CONFIRMED AS SUCH EVEN AFTER CONSIDERING THE OVERALL FACTS AND EVIDENCES SUBMITTED DURING THE REMAND PROCEEDINGS. THEREFORE , THIS ISSUE MAY KINDLY BE DECIDED AFTER CONSIDERING THE ABOVE FACTS AND SUBMISSION ON MERITS. IN VIEW OF THE ABOVE, IT IS SUBMITTED THAT THE LD. CIT(A) HAS RIGHTLY CONFIRMED THE SAID ADDITION AN D HENCE THE HONBLE ITAT MAY KINDLY BE REQUESTED TO UPHOLD THE ORDER OF THE LD. CIT[A] 8.4 AFTER CONSIDERING THE ABOVE SUBMISSIONS IN THE LIGHT OF THE RECORDS BEFORE US WE HAVE F OUND THAT THE LAND SOLD IS DEFINITELY AN AGRICULTURAL LAND. THE PRESUMPTION OF THE AUTHORITIES BASED ON REGULAR BUSINESS OF THIS GROUP AND THAT OF THE ASSESSEE OF RELATORS CANNOT BE TAKEN AS AN OVERRIDING FACTOR TO DECIDE THE FATE OF THIS RECEIPT. THE OTH ER RELEVANT PI E CES OF EVIDENCE CANNOT BE IGNORED. IT IS NOTICED SHE, INDIVIDUALLY, HAS NEVER FOUND TO HAVE CARRIED OUT ANY ACTIVITIES IN REAL 53 ESTATE BUSINESS EXCEPT FOR ONE TRANS A CTION WITH ANSALS, IN WHICH SHE HAS RECEIVED HER S HARE AGAINST THE SALE. THER E IS NO EVIDENCE ON RECORD TO POINT TOWARDS THE FACT THAT SHE HAS TREATED ANY OF THESE INVESTMENTS AS A STOCK IN TRADE AND THE SAME WERE ALWAYS SHOWN AS FIXED ASSET IN HER BALANCE SHEET OF THAT YEAR. NO DEVELOPMENTAL WORK HAS BEEN CARRIED ON THESE LANDS AFTER THEIR PURCHASE AND IT IS AN UNDENIABLE FACT. CERTIFICATE FROM THE PATWARI ESTABLISHES THAT THE LAND IN QUESTION IS NOT ONLY AGRICULTURAL LAND BUT ALSO SITUATED BEYOND 8 KMS OF THE M.C. LIMITS. NO CONTRARY EVIDENCE HA S BEEN BROUGHT ON RECORD BY THE AO . THE DECISIONS RELIED ON SUPPORT THE CONTENTION OF LD. A.R. THEREFORE, WE ORDER DELETION OF THE IMPUGNED ADDITION AND ALLOW GROUND NO. (1) OF ASSESSEES APPEAL. 8.5 THE FACTS APROPOS GROUND NO. (2) OF ASSESSEES APPEAL ARE THAT THE ASSESSEE SOLD HER RES IDENTIAL HOUSE, IN WHICH FORMERLY HER FAMILY USED TO RESIDE. THE GAIN ARISING ON THIS SALE HAS BEEN SHOWN AS LONG TERM CAPITAL GAINS (LTCG), WHICH IS EXHIBITED IN COMPUTATION INCOME FILED AND ENCLOSED AT PAPER BOOK PAGES 35 AND 36. THE CAPITAL ACCOUNT AND P&L ACCOUNT ARE ENCLOSED AT PAPER BOOK PAGE 38. THE GAIN ON THE SALE OF RESIDENTIAL HOUSE IS RS. 15,04,500/ - . THE AO HAS ADDED A SUM OF RS. 9,77,807/ - AFTER DISALLOWING CLAIM OF LTCG. THE LD. CIT(A) HAS 54 DISCUSSED THIS ISSUE IN PARAS 6 TO 6.11 (PAGES 12 TO 16) OF HIS ORDER AND HAS DIRECTED TO DELETE THIS ADDITION. HOWEVER, HE HAS DIRECTED THE AO TO COMPUTE THE TAX LIABILITY ON LTCG OF RS. 11,44,941/ - AFTER DISCLOSING CLAIM OF DEDUCTION OF RS. 4,50,000/ - MADE U/S 54 OF THE ACT AND INDEXED COST OF SALE OF HOU SE CLAIMED AT RS. 71,988/ - . THE ASSESSEE HAS RAISED GROUND NOS. 2(A) AND 2(B) IN THIS REGARD. THE LD. CIT(A) CALLED FOR R.R., WHICH ARE IN PARA 6.3 AT PAGE 13 - 14 OF HIS ORDER. THE REVENUE HAS ALSO TAKEN A CONNECTED GROUND. THE GIST OF LD. ARS ARGUMENTS AR E AS UNDER: - A. THE SAID AGRICULTURE LAND SOLD AT VILLAGE KHOKHARIYA, ANGANWA AND BASNI BAGHLA WERE SITUATED OUTSIDE THE MUNICIPAL LIMITS OF JODHPUR WHICH IS NOT BEING DISPUTED. B. THE ID. AO AND CIT(A) TREATED THE SAME AS TAXABLE GAIN ON THE GROUND THAT THE A PPELLANT IS ALSO CARRYING ON REAL ESTATE ACTIVITIES THEREFORE SUCH SALE WOULD BE REGARDED AS BUSINESS INCOME, TO DENY THE EXEMPTION TO THE APPELLANT . C. THE ASSESSEE HERSELF HAD NEVER CARRIED OUT ANY ACTIVITIES OF REAL ESTATE BUSINESS EXCEPT THE TRANSACTION WITH ANSALS, WHERE ALSO NO DEVELOPMENT WORK WAS CARRIED OUT BY ANSALS ONLY, AND THE APPELLANT HAD RECEIVED HER SHARE AGAINST THE LAND GIVEN. 55 D. THE APPELLANT HAD NEVER TREATED THESE INVESTMENTS IN AGRICULTURE LAND AS A STOCK IN TRADE, AND THE SAME WERE A LWAYS SHOWN AS FIXED ASSET IN THE BALANCE SHEET. E. AFTER MAKING INVESTMENT IN THESE LANDS NO OTHER EXPENDITURE ON ANY KIND OF DEVELOPMENT ACTIVITIES WAS BEING CARRIED OUT ON THESE LANDS. F. CERTIFICATE FROM PATWARI WAS ALSO SUBMITTED TO INDICATE THAT THE AG RICULTURE LAND ARE SITUATED OUTSIDE THE MUNICIPAL LIMITS OF JODHPUR. THUS THE SAME DOES NOT FALL IN THE DEFINITION OF CAPITAL ASSET, (P.B. 130 131 G. RELIANCE IS PLACED ON FOLLOWING DECISIONS AT P.B. 174 - 183. H. THE ISSUE IS ALSO COVERED IN FAVOUR OF TH E ASSESSEE BY THE THIRD MEMBER DECISION OF HON'BLE ITAT JODHPUR BENCH IN THE CASE OF SUPRIYA KANWAR IN ITA NO. 362/JU /2010 ORDER DATED 13 TH MAY, 2014. THE LD. CIT(DR) HAS RELIED ON HIS WRITTEN SUBMISSIONS WHICH READS AS UNDER: - (2) DEDUCTION U/S 54 CLAIMED A T RS. 4,50,000/ - OUT OF PROFIT ON SALE OF RESIDENTIAL PROPERTY - RS. 9,77, 807/ - : AN ADDITION OF RS. 9,77,807/ - WAS MADE BY THE AO ON THE BASIS OF PROFIT ON SALE OF RESIDENTI AL PROPERTY AFTER DISALLOWING CLAIM OF LTCG. THE LD. 56 CIT(A) HAS DISCUSSED THE ISSUE IN PARAS 6 TO 6.11 (PAGE 12 - 16) OF HIS APPELLATE ORDER AND HAS DIRECTED TO DELETE THE ADDITION AND HAS DIRECTED TO COMPUTE THE TAX LIABILITY ON THE LTCG OF RS. 11,44,941/ - AND ALSO AFTER DISALLOWING THE WRONG CLAIM OF DEDUCTION OF RS. 4,50,000/ - MADE U/S 54 OF THE I.T. ACT, 1961 AND INDEXED COST OF SALE OF HOUSE AT RS. 71,988/ - . THE ASSESSEE HAS RAISED GROUND NO. 2 A. AND 2 B. THE LD. CIT(A) HAS ALSO REPRODUCED THE AOS COMMENTS OFFERED IN THE REMAND REPORT AS ALSO REPRODUCED IN PARA 6.3 (PAGES 13 - 14), BU T HAS NOT APPRECIATED AND CONSIDERED THE COMMENTS OFFERED BY THE AO. THIS GROUND HAS ALSO BEEN TAKEN IN THE REVENUES APPEAL RELATING TO THE GROUND NO. 3 OF PROFIT OF RS. 9,77,807/ - ON SALE OF RESIDENTIAL HOUSE. THE COMMENTS OFFERED ABOVE AND THE COMMENTS OF THE REMAND REPORTS REPRODUCED IN THE REVENUES APPEAL MAY ALSO KINDLY BE CONSIDERED HERE ALSO. IN VIEW OF THE ABOVE, IT IS SUBMITTED THAT THE HONBLE ITAT MAY KINDLY BE REQUESTED TO CONSIDER THE REVENUES APPEAL ON THIS GROUND AND ALLOW THE REVENUES G ROUND ON THIS ISSUE AND ALSO TO UPHOLD THE ADDITION MADE IN THE ASSESSMENT ORDER . (3) BENEFIT OF TELESCOPING EFFECT : AS DISCUSSED IN THE APPELLATE ORDER, THE LD. CIT(A) HAS DECIDED THE ISSUE/ GROUND KEEPING IN VIEW ALL THE FACTS AND CIRCUMSTANCES OF THE CASE A ND HAS THUS, RIGHTLY REJECTED THE APPELLANTS CLAIM REGARDING GRANT OF BENEFIT OF TELESCOPING EFFECT IN THIS CASE. IN VIEW OF THESE FACTS, THE APPELLANTS CASE DOES NOT DESERVE TO BE ELIGIBLE FOR 57 ANY TELESCOPING BENEFIT FURTHER. IN VIEW OF THE ABOVE, IT I S SUBMITTED THAT THE LD. CIT(A) HAS RIGHTLY REJECTED THE APPELLANTS GROUND AND HENCE THE HONBLE ITAT MAY KINDLY BE REQUESTED TO UPHOLD THE ORDER OF THE LD. CIT(A) ON THIS ISSUE ALSO. 8.6 AFTER CONSIDERING RIVAL SUBMISSIONS WE HAVE FOUND THAT THE LD. CI T(A) HAS CORRECTLY TREATED THE SALE OF RESIDENTIAL HOUSE AS L TCG AS AGAINST RELATING AS BUSINESS INCOME BY THE AO. IN FACT WORKING OF COST BY THE ASSESSEE AN INADVERTENT MISTAKE IS COMMITTED. IN FACT THE CORRECTNESS OF INDEXATI O N OF COST AND DENIAL OF DEDU CTION U/S 54 OF THE ACT FOR RENOVATION OF EXISTING RESIDENTIAL HOUSE WERE NOT THE SUBJECT UNDER APPEAL BEFORE HIM, AND ARE NOT IN DISPUTE AT ALL. HOWEVER, THE EXEMPTION U/S 54 IS AVAILABLE TO THE ASSESSEE IN ITS TERMS. SECTION 54 OF THE ACT READS AS UNDER: - [SUBJECT TO THE PROVISIONS OF SUB - SECTION (2), WHERE, IN THE CASE O F AN ASSESSEE 21 BEING AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY], THE G AIN ARISES FROM THE TRANSFER OF A LONG - TERM CAPITAL ASSET 22 [***], BEING OR 23 LANDS APPURTENANT THERETO, AND BEING A RESIDENTIAL HOUSE, THE OF WHICH IS CHARGEABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY IN THIS SECTION REFERRED TO AS THE ORIGINAL ASSET), AND THE ASSESSEE HAS WITHIN A PERIOD OF 24 [ONE 58 YEAR BEFORE OR TWO YEARS AFTER THE DATE ON WHICH THE R TOOK PLAC E PURCHASED 25 ], OR HAS WITHIN A PERIOD OF THREE YEARS AFTER THAT THE DATE IS CO NSTRUCTED, A RESIDENTIAL HOUSE, THEN], INSTEAD OF THE CAPITAL GAIN BEING TO INCOME - TAX AS INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSFER TOOK :: SHALL BE DEALT WITH IN ACCORD ANCE WITH THE FOLLOWING PROVISIONS OF THIS THAT IS TO SAY, (I) IF THE AMOUNT OF THE CAPITAL GAIN 26 [IS GREATER THAN THE COST OF 27 [THE RESIDENTIAL HOUSE] SO PURCHASED OR CONSTRUCTED (HEREAFTER IN THIS SECTION REFERRED TO AS THE NEW ASSET)], THE DIFFERE NCE BETWEEN THE AMOUNT OF THE CAPITAL GAIN AND THE COST OF THE NEW ASSET SHALL BE CHARGED UNDER SECTION 45 AS THE INCOME OF THE PREVIOUS YEAR; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSET ANY CAPITAL GAIN ARISING FROM ITS TRANSFER WITHIN A PERIOD OF THREE YEARS OF ITS PURCHASE OR CONSTRUCTION, AS THE CASE MAY BE, THE COST SHALL BE NIL; OR II) IF THE AMOUNT OF THE CAPITAL GAIN IS EQUAL TO OR LESS THAN THE COST OF THE NEW ASSET, THE CAPITAL GAIN SHALL NOT BE CHARGED UNDER SECTION 45; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSET ANY CAPITAL GAIN ARISING FROM ITS TRANSFER WITHIN A PERIOD OF THREE YEARS OF ITS PURCHASE OR CONSTRUCTION, AS THE CASE MAY BE, THE COST SHALL BE REDUCED BY THE AMOUNT OF THE CAPITAL GAIN. THE AMOUNT OF T HE CAPITAL GAIN WHI CH IS NOT APPROPRIATED BY THE TOWARDS THE PURCHASE OF THE NEW ASSET MADE WITHIN ONE 59 YEAR BEFORE THE DATE ON WHICH THE TRANSFER OF THE ORIGINAL ASSET TOOK PLACE, OR WHICH IS NOT UTILISED FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET B EFORE THE DATE OF FUR - A? THE RETURN OF INCOME UNDER SECTION 139, SHALL BE DEPOSITED BY HIM BEFORE FURNISHING SUCH RETURN [SUCH DEPOSIT BEING MADE IN ANY CASE NOT LATER THAN THE DUE DATE APPLICABLE IN THE CASE OF THE ASSESSEE FOR FURNISHING THE RETURN OR IS UNDER SUB - SECTION (1) OF SECTION 13 9] IN AN ACCOUNT IN ANY SUCH BANK OR INSTITUTION AS MAY BE SPECIFIED IN, AND UTILISED IN ACCORDANCE WITH, ANY SCHEME 30 V. R - : CENTRAL GOVERNMENT MAY, BY NOTIFICATION IN THE OFFICIAL GAZETTE, FRA MED IN THIS BEHALF AND S UCH RETURN SHALL BE ACCOMPANIED BY PROOF OF SUCH DEPOSIT: THE PURPOSES OF SUB - SECTION (1), THE AMOUNT, IF ANY, ALREADY UTILISE D BY THE ASSESSEE FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET TOGETHER W ITH THE AMOUNT SO DEPOSITED SHALL BE DEEMED TO BE TH E COST OF THE NEW ASSET THUS CONDITION S OF SECTION 54 ARE FOUND FULFILLED. THE INVESTMENT HAS BEEN DULY SHOWN IN THE BOOKS BY THE ASSESSEE AND WERE PRODUCED BEFORE THE A.O. A COPY OF BALANCE SHEET IS ENCLOSED AT PAPER BOOK PAGE 39. EVEN THE LATE SUBMISSI ON OF ROI WOULD NOT DISENTITLE THE BENEFIT WHICH IS AVAILABLE IN THE ACT. IN ROI FILED IN RESPONSE TO SECTION 153A THIS DEDUCTION CAN BE LEGALLY CLAIMED. MAKING A NEW CLAIM IS PROHIBITED WHEN A REVISED RETURN IS FILED. THEREFORE, WE ALLOW GROUND NO. (2) OF ASSESSEES APPEAL. 60 8.7 GROUND NO. 3, 4, 5 AND 6 ARE DISPOSED OFF IN THE SAME WAY AS THESE WERE DECIDED IN THE EARLIER ASSESSMENT YEAR. 8.8 ACCORDINGLY WE PARTLY ALLOW THIS APPEAL OF THE ASSESSEE FOR A.Y. 2009 - 10. 9. IN REVENUES APPEAL GROUND NO. 1 IS DISMISSED WITH THE SAME REASONING WITH WHICH WE HAVE DISCUSSED SIMILAR GROUNDS RAISED IN OTHER ASSESSMENT YEARS AND OTHER APPEALS OF THIS GROUP. 10. THE LD. CIT(A) HAS CORRECTLY DELETED THE PROTECTIVE ADDITION MADE IN HER HANDS FOR THE FOLLOWING REASO NING : - A. THE ADDITION WAS RIGHTLY DELETED BY THE LD. CIT(A). THE ADDITION WAS MADE ON THE BASIS OF VALUATION REPORT OF THE VO, MADE IN THE CASE OF PUNA RAM JANGID, AND EVEN WITHOUT CONSIDERING THE INVESTMENT ALREADY SHOWN IN THE BOOKS BY SHRI PUNA RAM . DETAILS ARE GIVEN AT LD. CIT(A) ORDER PAGE 21. THE VALUE ON CONSTRUCTION SHOWN BY THE VO FOR THE YEAR WAS MADE IN THE CASE OF THE ASSESSEE. B. THE INVESTMENT OF RS. 8,23,793/ - SHOWN BY ASSESSEES HUSBAND HAS ALSO NOT BEEN CONSIDERED. THE DIFFERENCE WAS ONLY RS. 1,12,860/ - . THE SAID ADDITION HAD BEEN SUSTAINED IN THE CASE OF PUNA RAM WHERE THE SAME IS BEING CONTESTED. 61 C. EVEN IF DEDUCTION FOR SELF SUPERVISION AND ON ACCOUNT OF VALUATION TO BE MADE AS PER LOCAL PWD SCHEDULE IS GRANTED DEDUCTION OF AT LEAST 20% DESERVES TO BE ALLOWED IN THE VALUATION MADE BY THE VO . IF THE SAME IS ALLOWED, THE INVESTMENT ALREADY SHOWN IS MORE THAN EVEN THE VALUATION MADE AND NO ADDITION IS WARRANTED. D. IN ANY CASE, SINCE THE INVESTMENT IN CONSTRUCTION WAS BEING MADE BY PUNA RAM, THE ADDITION MADE ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE WAS RIGHTLY DELETED. HENCE, WE CANNOT ALLOW GRO UND NO. (2) OF REVENUES APPEAL. 11. GROUND NO. (3) OF REVENUES APPEAL IS REGARDING OF ADDITION OF RS. 9,77,807/ - MADE ON ACC OUNT OF LTCG ON THE SALE OF RESIDENTIAL HOUSE. THIS GROUND ALREADY STANDS DECIDED ALONGWITH GROUND NO. (2) OF ASSESSEES APPEAL. THUS, WE DISMISS REVENUES APPEAL. 12. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. 62 13. TO SUM UP, ALL THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED AND THAT OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH SEPTEMBER, 2014 . SD/ - SD/ - (N.K. SAINI) (HAR I OM MARATHA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 26 TH SEPTEMBER, 2014 VL / COPY FORWARDED TO : - 1. ASSESSEE 2. REVENUE 3. CIT, JODHPUR . 4. CIT (A), JODH PUR. 5. CIT,DR, ITAT, JODHPUR. BY ORDER, AR, ITAT, JODHPUR.