Prakashchand Khelchand Agarwal, Pune V. ITO, Ward 8(1), Pune

ITA 329/PUN/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93813 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 01-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 01-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE: SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO. 328 /PN/201 3 ASSESSMENT YEAR : 20 0 9 - 10 CHIMANLAL SHAMBHURAM AGARWAL, MURLIDHAR NIWAS, PLOT NO. 157, SECTOR NO. 4, PCNTDA, MOSHI, PUNE-412105 VS. INCOME TAX OFFICER, WARD 8(1), PUNE (APPELLANT) (RESPONDENT) PAN NO. AATPG2098K ITA NO. 329/PN/2013 ASSESSMENT YEAR : 2009 - 10 PRAKASHCHAND KHELCHAND AGARWAL, MURLIDHAR NIWAS, PLOT NO. 157, SECTOR NO. 4, PCNTDA, MOSHI, PUNE-412105 VS. INCOME TAX OFFICER, WARD 8(1), PUNE (APPELLANT) (RESPONDENT) PAN NO. AATPG2099J REVENUE BY: SHRI B.C. MALAKAR ASSESSEE BY: SHRI PRAMOD SHINGTE DATE OF HEARING : 01-06-2015 DATE OF PRONOUNCEMENT : 10-06-2015 ORDER PER VIKAS AWASTHY, JM:- THE APPEALS HAVE BEEN FILED BY THE ASSESSEES AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-V, PUNE DATED 07-12- 2012 FOR THE ASSESSMENT YEAR 2009-10 IN THEIR RESPECTIVE CASES. SIN CE, FACTS OF BOTH THE CASES ARE SIMILAR, THE APPEALS ARE TAKEN UP TOGETHER FOR ADJUDICATION. FOR THE SAKE OF CONVENIENCE THE FACTS ARE TAKEN FROM IT A NO. 328/PN/2013. 2 ITA NOS. 328 & 329/PN/2013, A.Y. 2009-10 2. THE BRIEF FACTS OF THE CASE ARE: THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 ON 29-03-2010 DECLARING TOTAL INCOME OF RS.5,67,160/-. THE CASE OF THE ASSESSEE WAS S ELECTED FOR SCRUTINY AND NOTICE U/S. 143(2) WAS ISSUED TO THE ASSESSE E ON 18-08-2010. DURING THE COURSE OF SCRUTINY ASSESSMENT THE ASSESSING OFFICER OBSERVED CASH DEPOSITS ON VARIOUS DATES TOTAL AMO UNTING TO RS.25,87,500/-IN THE SAVING BANK ACCOUNTS (RS.17,83,000/- IN RUPEE CO-OPERATIVE BANK AND RS.8,04,500/- IN STATE BANK OF INDIA ) OF THE ASSESSEE DURING THE PERIOD RELEVANT TO ASSESSMENT YEAR IN APPEAL. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF CASH DEPOS ITS. THE ASSESSEE EXPLAINED THE SOURCE OF CASH DEPOSITS AS SALES PROCEEDS OF LIVE STOCK, AGRICULTURE PRODUCE, SALE OF TREES AND OLD HOUSEHOLD FURNITU RE. NOT CONVINCED WITH THE SUBMISSION OF THE ASSESSEE THE ASSESS ING OFFICER MADE ADDITION OF RS.24,10,500/- IN THE CASE OF ASSESSEE IN I TA NO. 328/PN/2013. THE ASSESSEE IN ITA NO. 329/PN/2013 ALLEGEDLY RECEIVED THE AMOUNT OF RS.30,27,323/- FROM HIS FATHER SHRI KHELCHAND AGAR WAL. IT IS PERTINENT TO MENTION HERE THAT THE ASSESSEE IN ITA NO. 328/PN/2013, SHRI CHIMANLAL SHAMBHURAM AGARWAL IS THE BROTHER OF SHRI KHELCHAND AGARWAL. THE SOURCE OF RECEIPTS AND THE EXPLANATION FURN ISHED FOR CASH DEPOSIT IS SAME AS EXPLAINED IN ITA NO. 328/PN/2013. THE ASSESSING OFFICER MADE ADDITION OF RS.30,21,450/- IN THE HANDS OF ASSES SEE IN ITA NO. 329/PN/2013. AGGRIEVED BY THE ASSESSMENT ORDERS DATED 26-12-2011, THE ASSESSEES PREFERRED APPEALS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) IN THEIR RESPECTIVE CASES. THE COMMISSIONER OF I NCOME TAX (APPEALS) AFTER EXAMINING THE FACTS OF THE CASE REJECTED T HE CONTENTIONS OF THE ASSESSEES AND CONFIRMED THE ASSESSMENT ORDER. 3 ITA NOS. 328 & 329/PN/2013, A.Y. 2009-10 NOW, THE ASSESSEES HAVE COME IN SECOND APPEAL BEFORE TH E TRIBUNAL IMPUGNING THE FINDINGS OF THE COMMISSIONER OF INCOM E TAX (APPEALS). 3. SHRI PRAMOD SHINGTE APPEARING ON BEHALF OF THE ASSESSE E SUBMITTED THAT THE ASSESSEES WERE CO-OWNER OF AGRICULTU RAL LAND MEASURING 178 KANALS AND 14 MARLA IN VILLAGE KARSA DODA, SU B-TEHSIL NIGADH, DISTT. KARNAL, HARYANA. THE ASSESSEE IN ITA NO. 32 8/PN/2013 ARE FOUR BROTHERS. BOTH THE ASSESSEES ARE CLOSELY RE LATED TO EACH OTHER. THE ASSESSEES MIGRATED TO PUNE AROUND 10-12 YEARS BA CK. THEY HAD THEIR AGRICULTURAL LAND AND LIVE STOCK IN THEIR NATIVE VILLAGE. THE OTHER TWO BROTHERS OF THE ASSESSEE WHO STAYED BACK WERE MA NAGING THE AGRICULTURAL LAND AND LIVE STOCK OF THE ASSESSEES. THE ASS ESSEE DECIDED TO DISPOSE OFF THEIR JOINT AGRICULTURAL PROPERTY ALONG WITH LIVE STOCK. THERE WERE SOME SHESHAM TREES ON THE AGRICULTURAL LAND. THE ASSESSEES SEPARATELY SOLD STANDING CROP AND SHESHAM TREES BEFORE DISPOSING OF AGRICULTURAL LAND. THE ASSESSEES ALSO SOLD THEIR LIVE STOCK. THE SALE CONSIDERATION OF AGRICULTURAL LAND WAS TRANSFERRED IN THE AC COUNTS OF THE RESPECTIVE ASSESSEES THROUGH BANK DRAFT. THE CONSIDER ATION FROM SALE OF STANDING CROP, SHESHAM TREES AND LIVE STOCK WERE RECEIVE D IN CASH. THE SAME WERE DEPOSITED IN THE SAVING BANK ACCOUNTS OF THE RESPECTIVE ASSESSEES. THE LD. AR FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSEE IN ITA NO. 328/PN/2013 HAD ALSO SOLD HIS OLD HOU SEHOLD FURNITURE AT PUNE FOR WHICH HE RECEIVED RS.1,77,000/-. THE AUTHORITIES BELOW HAVE ONLY ACCEPTED THE CASH RECEIVED FROM SALE OF OLD HOUSEHOLD GOODS, DESPITE THE FACT THAT CONFIRMATION STATEMENTS OF T HE PERSONS TO WHOM STANDING CROP, SHESHAM TREES AND LIVE STOCK/CATTLE WERE SOLD WERE PLACED ON RECORD. THE ASSESSEE HAD ALSO PLACED ON RECO RD THE STATEMENT OF SARPANCH OF THE VILLAGE IN SUPPORT OF HIS SUBMISSIONS. HOW EVER, THE AUTHORITIES BELOW HAVE BRUSHED ASIDE ALL THE EVIDENCES PR ODUCED BY THE ASSESSEE. 4 ITA NOS. 328 & 329/PN/2013, A.Y. 2009-10 4. ON THE OTHER HAND SHRI B.C. MALAKAR REPRESENTING THE DEPARTMENT VEHEMENTLY SUPPORTED THE ORDER OF COMMISSIONER OF INCO ME TAX (APPEALS). THE LD. DR SUBMITTED THAT THE EVIDENCE PRODUCED BY THE ASSESSEES IN THE FORM OF STATEMENT OF VILLAGES SARPANCH A ND THE STATEMENTS OF THE VENDEES OF LIVE STOCK, SHESHAM TREES AND CROP ARE SELF SERVING AND LACK AUTHENTICITY. THE LD. DR FURTHER CONTENDE D THAT THE ASSESSEE HAS NOT BEEN ABLE TO SHOW FROM ANY COGENT E VIDENCE, THE PRESENCE OF SHESHAM TREES AND THE CROP BEFORE THE SALE OF AGRICULTURAL LAND. THE LD. DR SUBMITTED THAT THE ORDER OF THE COMMISSIO NER OF INCOME TAX (APPEALS) IS WELL REASONED AND DETAILED THEREFORE IT SHOULD BE SUSTAINED. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF BOTH THE SIDES AND HAVE PERUSED THE ORDERS OF THE AUT HORITIES BELOW. THE ADDITIONS IN RESPECT OF BOTH THE ASSESSEES HAVE BEEN MA DE ON ACCOUNT OF CASH DEPOSITS IN THEIR RESPECTIVE SAVING BANK ACCOUNTS. IN THE CASE OF ASSESSEE IN ITA NO. 328/PN/2013 THE CASH HAS BEEN DEP OSITED ON VARIOUS DATES IN SAVING BANK ACCOUNTS MAINTAINED WITH RUP EE CO-OPERATIVE BANK AND STATE BANK OF INDIA. IN ITA NO. 3 29/PN/2013 THE AMOUNTS HAVE BEEN CREDITED IN THE SAVING BANK ACCO UNT OF THE FATHER OF THE ASSESSEE. THE CONTENTION OF THE LD. AR IS THAT TH E CASH AMOUNTS CREDITED IN THE SAVING BANK ACCOUNTS ARE SALE PROCEEDS OF STANDING CROP, SHESHAM TREES AND LIVE STOCK. THE ASSESSEES HAVE ALLEGE DLY RECEIVED CASH FROM FOLLOWING SOURCES: ITA NO. 328/PN/2013 SALE OF CROP SALE OF SHESHAM TREES SALE OF LIVE STOCK SALE OF HOUSEHOLD FURNITURE TOTAL RS.8,86,603/- RS.10,20,000/- RS.5,55,000/- RS.1,77,000/- RS.26,38,603/- 5 ITA NOS. 328 & 329/PN/2013, A.Y. 2009-10 ITA NO. 329/PN/2013 SALE OF CROP SALE OF SHESHAM TREES SALE OF LIVE STOCK SALE OF HOUSEHOLD FURNITURE TOTAL RS.13,99,323/- RS.10,50,000/- RS.87,800/- - RS.25,3 7,123/- THE ASSESSEES HAVE GIVEN THE NAME AND CONFIRMATION LETTE RS OF THE PERSONS TO WHOM TREES, CROP AND LIVE STOCK HAVE BEEN SOLD. 6. WE AGREE WITH THE OBSERVATIONS OF THE AUTHORITIES BELO W THAT THE DOCUMENTS FURNISHED BY THE ASSESSEE IN SUPPORT OF THEIR CONTENTIONS ARE NOT FULL PROOF AND THE VERACITY OF THE DOCUMENTS FURNISH ED IS NOT ESTABLISHED. WE FIND THAT THE ASSESSING OFFICER HAS ALSO NOT EXERCISED HIS JURISDICTION TO VERIFY THE GENUINENESS OF THE DOCUMENT S PRODUCED BY THE ASSESSEE. IN OUR CONSIDERED VIEW THERE WERE DEFICIEN CIES ON THE PART OF THE ASSESSEE AS WELL AS REVENUE TO ASCERTAIN THE AUT HENTICITY OF THE TRANSACTIONS. THE ASSESSEE HAS NOT PLACED ON RECORD REVENUE RECORDS VIZ. JAMABANDI, KHASRA GIRDWARIES ETC. TO SUBSTANTIATE THE PRESENCE OF SHESHAM TREES, THE NATURE OF CROP AND THE EXTENT OF CR OP GROWN ON THE AGRICULTURAL LAND JOINTLY HELD BY THE ASSESSEES AND THEIR BROTHER S. 7. AS FAR AS LIVE STOCK IS CONCERNED, WE DO NOT FIND FORCE IN THE ARGUMENT OF THE LD. AR OF THE ASSESSEES. IT IS AN ADMIT TED FACT THAT THE ASSESSEES HAVE MIGRATED TO PUNE (MAHARASHTRA) 10-12 YE ARS BACK. IT WOULD BE HIGHLY IMPROBABLE THAT IN THE ABSENCE OF THE ASS ESSEES ANYONE WILL TAKE CARE OF LIVE STOCK FOR SUCH A LONG PERIOD IN THE NATIVE VILLAGE. MORE SO, WHEN THE ASSESSEES HAVE NO INTENTION TO RETUR N TO THEIR ROOTS IN NEAR FUTURE, IT WOULD BE IMPLAUSIBLE TO MAINTAIN LIVE STOCK IN N ATIVE VILLAGE. THEREFORE, WE CONFIRM THE ADDITION IN RESPECT OF CAS H RECEIPTS FROM THE SALE OF LIVE STOCK. 6 ITA NOS. 328 & 329/PN/2013, A.Y. 2009-10 8. IN THE FACTS OF THE CASE, WE DEEM IT APPROPRIATE TO R EMIT THE FILE BACK TO THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH A FTER CONSIDERING THE RELEVANT DOCUMENTS. THE ASSESSEE IS DIRECTED TO FUR NISH REVENUE RECORDS TO SHOW THE PRESENCE OF TREES AND CROP ON TH E AGRICULTURAL LAND JOINTLY OWNED BY THE ASSESSEES. THE ASSESSING OFFICER SHA LL ALSO MAKE AN EFFORT TO VERIFY AUTHENTICITY OF THE DOCUMENTS/STATEMENTS PLACED ON RECORD BY THE ASSESSEE IN SUPPORT OF HIS CLAIM. THE AS SESSING OFFICER SHALL DECIDE THIS ISSUE AFRESH AFTER AFFORDING OPPORTUNITY OF H EARING TO THE ASSESSEE, IN ACCORDANCE WITH LAW. THE APPEALS OF THE ASSESSEES ARE PARTLY ALLOWED FOR STAT ISTICAL PURPOSE IN THE AFORESAID TERMS. ORDER PRONOUNCED ON WEDNESDAY, THE 10 TH DAY OF JUNE, 2015 AT PUNE SD/- SD/- (R.K. PANDA) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 10 TH JUNE, 2015 RK/PS COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - V, PUNE 4 THE CIT - V, PUNE 5 6 THE DR, ITAT, B BENCH, PUNE. GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE