NARENDRA PRATAP SINGH, MUMBAI V. ITO 21(3)(4), MUMBAI

ITA 3488/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2682 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 15-05-2014
• Court: TRIBUNAL
• Assessee Lawyers: BHUMIKA VORA
• Keywords: Unexplained cash credit; Salary income; Onus to prove
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & RAMLAL NEGI (JM) I.T.A. NO. 3488 /MUM/ 20 1 4 (ASSESSMENT YEAR 20 1 0 - 11 ) MR. NARENDRA PRATAP SINGH 102/3, GANESH NAGAR PANCHKUTIR, POWAI MUMBAI - 400 076. VS. ITO 21(3)(4 ) MUMBAI ( APPELLANT ) ( RESPONDENT ) PAN NO . AOTPS6888P ASSESSEE BY MS. BHUMIKA VORA DEPARTMENT BY SHRI AKHILENDRA PRATAP YADAV DATE OF HEARING 23.6 . 201 6 DATE OF PRONOUNCEMENT 27.7 . 201 6 O R D E R PER B.R. BASKARAN (AM) : - THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 28 - 02 - 2014 PASSED BY LD CIT(A) - 32, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2010 - 011. THE ASSESSEE IS AGGRIEVED BY THE DECISION RENDERED BY LD CIT(A) ON THE FOLLOWING ISSUES: - (A) ASSESSMENT OF AGRICULTU RAL INCOME DECLARED BY THE ASSESSEE. (B) ASSESSMENT OF UNEXPLAINED CASH CREDIT. 2. THE ASSESSEE HAS DECLARED SALARY INCOME AND INCOME FROM OTHER SOURCES. THE AO NOTICED THAT THE ASSESSEE HAS ALSO DECLARED AGRICULTURAL INCOME OF RS.2.00 LAKHS. THE ASSESSE E ALSO CLAIMED TO HAVE RECEIVED A SUM OF RS.15.00 LAKHS FROM THE ESTATE OF HER MOTHER. THE AO EXAMINED THE EXPLANATIONS OF THE ASSESSEE WITH REGARD TO THE ABOVE SAID TWO ITEMS. SINCE HE WAS NOT CONVINCED WITH THE SAME, HE ASSESSED BOTH THE ABOVE SAID ITE MS AS INCOME OF THE ASSESSEE. THE LD CIT(A) ALSO CONFIRMED THE SAME. 2 3. THE FIRST ISSUE RELATES TO THE REJECTION OF CLAIM OF AVAILABILITY OF AGRICULTURAL INCOME. THE ASSESSEE FILED A DOCUMENT CALLED KISAN BAHI SHOWING AGRICULTURAL LANDS HELD BY HIM A ND HIS TWO BROTHERS. THE ASSESSEE DID NOT FURNISH ANY EVIDENCE TO SUBSTANTIATE THE DETAILS OF AGRICULTURAL PRODUCE RAISED BY HIM. THE ASSESSEE SUBMITTED THAT HE HAS RENTED OUT THE LAND TO TWO PERSONS, ONE OF WHOM WAS HIS BROTHER AND HAS RECEIVED A SUM OF RS.1.00 LAKH EACH FROM EACH OF THEM. IN SUPPORT OF THE SAME HE FILED AFFIDAVITS OBTAINED FROM THEM. HOWEVER, IN THE AFFIDAVIT FURNISHED BY THE BROTHER OF THE ASSESSEE, IT WAS STATED THAT THE ASSESSEE IS OWNER OF THE LAND. THE SAID DEPOSITION WAS IN CONTR ADICTION TO THE KISAN BAHI RECORD. THE AO FURTHER NOTICED THAT THE ASSESSEE HAS DECLARED AGRICULTURAL INCOME AT RS.175,000/ - IN THE EARLIER YEAR (WRONGLY MENTIONED AS RS.17,500/ - IN THE ORDER OF LD CIT(A)). UNDER THESE SET OF FACTS, THE AO CAME TO THE CONCLUSION THAT THE ASSESSEE HAS FAILED TO PROVE THE AGRICULTURAL INCOME AND ACCORDINGLY ASSESSED THE SAME AS INCOME FROM OTHER SOURCES. THE LD CIT(A) ALSO CONFIRMED THE SAME. 4. THE LD A.R REITERATED THE CONTENTIONS MADE BEFORE THE TAX AUTHORITIES A ND THE LD D.R SUPPORTED THE ORDERS PASSED BY TAX AUTHORITIES. 5. THERE IS NO DISPUTE THAT THE ASSESSEE WAS HOLDING AGRICULTURAL LAND IN HIS NATIVE PLACE ALONG WITH HIS TWO BROTHERS. THE EXTENT OF LAND HELD BY HIM IS NOT BROUGHT ON RECORD. FURTHER TH E ASSESSEE HAS ALSO FAILED TO FURNISH ANY EVIDENCE IN SUPPORT OF CLAIM OF RAISING OF AGRICULTURAL PRODUCE. AT THE SAME TIME, IT REMAINS A FACT THAT THE ASSESSEE HAS BEEN DECLARING AGRICULTURAL INCOME IN THE EARLIER YEARS ALSO AND THE SAID FACT HAS BEEN BR OUGHT ON RECORD BY THE AO. HENCE, IN OUR VIEW, THE REJECTION OF ENTIRE AMOUNT OF AGRICULTURAL INCOME MAY NOT BE PROPER IN THE FACTS AND CIRCUMSTANCES OF THE CASE. IN THE INSTANT YEAR, THE ASSESSEE HAS FURNISHED A DOCUMENT CALLED KISAN BAHI TO PROVE THE AGRICULTURAL HOLDING AND TWO AFFIDAVITS OBTAINED FROM THE CULTIVATORS OF LAND, ONE 3 OF WHICH IS ASSESSEES OWN BROTHER. THE SAID BROTHER IS ALSO ONE OF THE CO - OWNERS OF THE LAND. BUT THE FACT REMAINS THAT THE ASSESSEE HAS DECLARED AGRICULTURAL INCOME TO THE TUNE OF RS.1,75,000/ - IN THE ASSESSMENT YEAR 2008 - 09, WHICH IS EVIDENCED BY THE COPY OF CAPITAL ACCOUNT RELATING TO THE YEAR ENDING 31.3.2008 PLACED IN THE PAPER BOOK. 6. HOWEVER, IN OUR VIEW, THE DOCUMENTS FURNISHED BY THE ASSESSEE MAY NOT BE S UFFICIENT TO SUBSTANTIATE THE CLAIM OF AGRICULTURAL INCOME. UNDER THESE SET OF FACTS, WE ARE OF THE VIEW THAT THIS ISSUE MAY BE SET TO REST BY MAKING AN ESTIMATE. HENCE, ON A CONSPECTUS OF THE MATTER, WE ARE OF THE VIEW THAT THE AGRICULTURAL INCOME MAY B E ESTIMATED AT RS.1,50,000/ - AND THE SAME, IN OUR VIEW, WOULD PUT THIS ISSUE AT REST. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE AND DIRECT THE AO TO ADOPT THE AGRICULTURAL INCOME AT RS.1,50,000/ - AND REFRAME THE ASSESSMENT ACCO RDINGLY. 7. THE NEXT ADDITION RELATES TO THE ADDITION OF RS.15.00 LAKHS CLAIMED TO HAVE BEEN RECEIVED AS PER THE WILL FROM THE ESTATE OF MOTHER OF THE ASSESSEE. THE SAID CLAIM WAS REJECTED, SINCE THE ASSESSEE COULD NOT ADDUCE ANY EVIDENCE TO SUPPORT THE CLAIM THAT HER MOTHER WAS IN POSSESSION OF CASH. FURTHER, THE AO NOTICED THAT THE EIGHT DEMAND DRAFTS HAVE BEEN TAKEN BY DIFFERENT PERSONS FROM THREE DIFFERENT CITIES TO SEND THE ABOVE SAID AMOUNT OF RS.15.00 LAKHS TO THE ASSESSEE. THE MOTHER OF THE ASSESSEE WAS ALSO NOT ASSESSED TO TAX. THE ASSESSEE EXPLAINED THAT HIS FATHER EXPIRED IN 1990 LEAVING 10 ACRES OF FERTILE LAND AND A CASH OF RS.2.00 LAKHS. THE MOTHER OF THE ASSESSEE EXPIRED IN 2009 AND SHE HAS MAINTAINED THE LAND AND ALSO USED THE CASH AVAILABLE WITH HER FOR MONEY LENDING AND THUS ACCUMULATED THE CAPITAL TO RS.15.00 LAKHS. SHE HAD KEPT THE CASH IN THE HANDS OF HIS TWO BROTHERS AND HER RELATIVES. SINCE THE ASSESSEE WAS IN NEED OF MONEY IN CONNECTION WITH THE PURCHASE OF A PROPERTY IN MU MBAI, HIS MOTHER HAS BEQUEATHED THE CASH TO THE ASSESSEE AND HE HAS COLLECTED THE ABOVE 4 SAID AMOUNTS. THE AO ESTIMATED THE APPROXIMATE DOMESTIC EXPENSES OF THE ASSESSEES MOTHER ON THE BASIS OF MONTHLY PER CAPITA EXPENDITURE (MPCE) RELEASED BY PLANNING CO MMISSION AND THE NUMBER OF FAMILY MEMBERS AND CAME TO THE CONCLUSION THAT THE ASSESSEES MOTHER COULD NOT HAVE SAVED THE MONEY AT ALL. ACCORDINGLY THE AO ASSESSED THE AMOUNT OF RS.15.00 LAKHS AS INCOME OF THE ASSESSEE. THE LD CIT(A) ALSO CONFIRMED THE SA ME. 8. THE LD A.R SUBMITTED THAT THE ASSESSEES MOTHER DID NOT FILE HER INCOME TAX RETURN, SINCE THE TOTAL INCOME WAS LESS THAN THE TAXABLE LIMIT. FURTHER, SINCE SHE WAS RESIDING IN A VILLAGE, SHE COULD NOT USE BANKING FACILITIES. SHE FURTHER SUBMITT ED THAT THE ASSESSEES CLAIM OF RECEIPT OF MONEY FROM HER MOTHERS ESTATE HAS NOT BEEN DISPROVED. ON THE CONTRARY, THE LD D.R SUBMITTED THAT THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS OF PROOF PLACED UPON HIM U/S 68 OF THE ACT. 9 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WE NOTICE THAT THE ASSESSEE HAS FURNISHED COPIES OF RATION CARD TO PROVE THE IDENTITY OF HER MOTHER AND A COPY OF WILL TO SUPPORT THE CLAIM. BUT THE FACT REMAINS THAT THE ASSESSEES MOTHER DID NOT HAVE BANK ACCO UNT. FURTHER, IT IS NOTICED THAT THE AMOUNT OF RS.15.00 LAKHS HAS BEEN TRANSMITTED TO MUMBAI BY WAY OF EIGHT DEMAND DRAFTS TAKEN FROM THREE DIFFERENT CITIES. EXCEPT THE COPY OF RATION CARD AND THE DETAILS OF DEMAND DRAFTS, THE ASSESSEE HAS NOT FURNISHED ANY OTHER EVIDENCE. UNDER SEC. 68 OF THE ACT, THE INITIAL BURDEN OF PROOF IS PLACED UPON THE ASSESSEE TO PROVE THE IDENTITY OF THE CREDITOR, CREDIT WORTHINESS OF THE CREDITOR AND THE GENUINENESS OF TRANSACTIONS. IN OUR VIEW, THE ASSESSEE COULD NOT BE SAI D TO HAVE BEEN PROVED THE CASH CREDIT OF RS.15.00 LAKHS AND IN NORMAL CIRCUMSTANCES, THE ADDITION SHOULD BE SUSTAINED. HOWEVER, IN THE INSTANT CASE, THE ASSESSEE HAS PRODUCED COPY OF WILL OF THE MOTHER AND ITS GENUINENESS HAS NOT BEEN EXAMINED BY THE AO. HENCE, WE ARE OF THE VIEW THAT THE CLAIM OF 5 RECEIPT OF MONEY FROM HER MOTHER CANNOT BE ALTOGETHER REJECTED AND AT THE SAME TIME, THE CLAIM OF RECEIPT OF RS.15.00 LAKHS CANNOT ALSO BE ACCEPTED MERELY ON THE BASIS OF WILL. ACCORDINGLY, WE ARE OF THE VIEW T HAT THIS ISSUE ALSO REQUIRED TO BE SETTLED BY ESTIMATING THE POSSIBLE AMOUNT OF RECEIPT FROM THE MOTHER OF THE ASSESSEE. SINCE THE ASSESSEE IS ALSO HAVING TWO BROTHERS, IN OUR VIEW, A SUM OF RS.5.00 LAKHS CAN BE CONSIDERED TO HAVE BEEN RECEIVED BY THE ASS ESSEE. WE ARE OF THE VIEW THAT THIS ESTIMATE WOULD PUT THIS ISSUE TO REST. ACCORDINGLY, WE SET SIDE THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE AND DIRECT THE AO TO ACCEPT THE RECEIPT THROUGH WILL TO THE EXTENT OF RS.5.00 LAKHS AND REFRAME THE ASSESSMENT ACCORDINGLY. 10 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 27 .7.2016 SD/ - SD/ - (RAMLAL NEGI ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 27 / 7 / 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS