Smt. Rama Yadav, New Delhi V. ACIT (OSD), Dehradun

ITA 3559/DEL/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7863 (ITAT-DELHI)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 22-12-2011
• Assessment Year: 1997-1998
• Appeal Filed On: 15-07-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Keywords: Reopening of assessment; Gift; Onus to prove; Reassessment proceedings
• Section: 131; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : F : NEW DELHI BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI K.G. BANSAL, ACCOUNTANT MEMBER ITA NOS. 3558 TO 3563/DEL/2011 ASSESSMENT YEARS : 1996-97 TO 2001-02 RAMA YADAV, C/O M/S RRA TAXINDIA, D-28, SOUTH EXTENSION PART I, NEW DELHI. PAN : AAXPY4644F VS. ACIT (OSD), RANGE-I, DEHRADUN. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHWANI TANEJA/SHRI TARUN KUMAR, ADVOCATES REVENUE BY : SHRI SURENDER PAL, SR. DR O R D E R PER R.P. TOLANI, JUDICIAL MEMBER: THIS IS A GROUP OF APPEALS FILED BY THE ASSESSEE A GAINST THE ORDERS PASSED BY CIT(APPEALS)-II, DEHRADUN VIDE ORDERS DAT ED 27-1-2-11 ON THE REASSESSMENT ORDERS PASSED U/S 143 (3)/147 BY ACIT( OSD), DEHRADUN. VARIOUS GROUNDS ARE RAISED INCLUDING THE GROUNDS CH ALLENGING THE REOPENING OF ASSESSMENTS. THE ASSESSEE HAS NOT PRESSED GROUN DS RELATING TO REOPENING OF ASSESSMENT. THOUGH VARIOUS ISSUED ARE RAISED IN MEMO OF APPEALS, LEARNED ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 2 COUNSEL FOR THE ASSESSEE CONTENDS THAT ONLY THE FOL LOWING GROUNDS BE TREATED FOR CONSIDERATION UNDER THESE APPEALS:- I) ONE COMMON GROUND RAISED IN ASSESSMENT YEAR 1996 -97 AND 1998-99 AS IN RESPECT OF AMOUNT RECEIVED BY THE ASS ESSEE OUT OF THE WILL OF THE DECEASED FATHER-IN-LAW SHRI RAM BHAROSE Y LAL YADAV AT RS 19.05 LAC IN ASSESSMENT YEAR 1996-97 AND RS 8.95 LAC IN ASSESSMENT YEAR 1998-99. IIA) THE OTHER COMMON GROUND RAISED IN ALL THE YEAR S PERTAINS TO ESTIMATION OF COMBINED AGRICULTURAL INCOME OF ASSES SEE AND HER HUSBAND:- A.Y. SHOWN BY THE ASSESSEE (RS.) ASSESSED BY THE ASSESSING OFFICER. (RS.) ADDED AS INCOME FROM OTHER SOURCES (RS.) 1996-97 85,000/- 79,000/- 6,000/- 1997-98 1,33,000/- 82,000/- 51,000/- 1998-99 1,75,000/- 86,500/- 88,500/- 1999-2000 1,83,000/- 89,800/- 93,500/- 2000-01 1,90,000/- 93,300/- 1,05,450/- 2001-02 2,75,000/- 1,28,500/- 1,46,000/- IIB) AMOUNT OF RS. 8 LACS RECEIVED IN AY 2000-01 BY ASSESSEE FROM HER BROTHER SHRI YASHPAL SINGH OUT OF ARREARS OF HER PA ST AGRICULTURAL INCOME. 1.1 THE THIRD COMMON GROUND IS THE AMOUNT OF ADVANC ES RECEIVED BY THE ASSESSEE FOR AGREEMENT TO SELL FOLLOWING AGRICULTUR AL LAND: ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 3 A.Y. AMOUNT AREA IN BIGHA RATE PER BIGHA NAME OF VENDEE/RELATION 1997-98 3,75,000 2.0 RS.1,85,000 SMT. UMA YADAV/SISTER 1998-99 4,60,000 2.5 RS.1,84,000 SHRI YASH PAL SINGH/BROTHER 1999-2000 5,75,000 3.0 1,91,666 SHRI RAMESH CHAND/BROTHER IN LAW 2000-01 4,68,000 2.5 RS.1,87,200 SHRI ZIA KHAN/UNRELATED 2. BRIEF FACTS ARE THAT THE ASSESSING OFFICER RECEI VED INFORMATION FROM CO-ORDINATION CELL OFFICE, DEHRADUN THAT THE ASSESS EE HAD INVESTED IN FDRS IN HER OWN NAME AND IN THE NAME OF OTHER FAMILY MEM BERS. ON THIS BASIS REASONS WERE RECORDED AND NOTICES U/S 148 WERE ISSU ED ON 31.07.2002. IN RESPONSE THERETO, THE ASSESSEE FILED RETURNS OF INC OME AND DURING THE COURSE OF REASSESSMENT PROCEEDINGS FILED CASH FLOW STATEME NTS TO EXPLAIN THE RELEVANT INVESTMENTS IN THESE YEARS. ACCORDING TO THE ASSESSEE THESE INVESTMENTS WERE MADE OUT OF FOLLOWING SOURCES:- A. AMOUNTS RECEIVED AS SUCCESSOR TO THE WILL OF HER FATHER IN LAW LATE SHRI RAM BHAROSEY LAL YADAV CLAIMED TO BE A PROSPE ROUS LAND LORD, RENOWNED CITIZEN/ FREEDOM FIGHTER OF THE AREA AND H EADED A PROSPEROUS FAMILY. B. AGRICULTURAL INCOME OF HERSELF AND HUSBAND. C. ADVANCES RECEIVED AS CONSIDERATION OF AGREEMENT TO SELL, PIECES OF HER AGRICULTURAL LAND. 3. THE ASSESSEE WAS REQUIRED BY AO TO SUBSTANTIATE THE CLAIM OF RECEIPT OF RS.19.05 AND 8.95 LACS UNDER THE WILL OF LATE SH RI RAM BHAROSEY LAL YADAV DATED 7-7-93, WHICH WAS COMPLIED. IN THIS REG ARD MATTER WAS REFERRED BY AO TO THE JOINT DIRECTOR OF INCOME TAX (INV.), A GRA TO INVESTIGATE THE ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 4 GENUINENESS OF WILL AND AGRICULTURE HOLDINGS CLAIME D BY THE ASSESSEE IN HER NAME AND IN THE NAME OF HER HUSBAND. THE REPORT DAT ED 21-1-2003 WAS SUBMITTED BY ADI (INV.), WHICH IS PLACED ON PAPER B OOK. 3.1. THE JOINT DIRECTOR (INV.), AGRA, AFTER CONDUCT ING DISCREET INQUIRIES AND AFTER QUESTIONING A NUMBER OF PERSONS OF THAT A REA, SENT AN EXHAUSTIVE REPORT. RELEVANT PARTS OF THAT REPORT DATED 21-2-03 ARE BEING REPRODUCED HEREUNDER:- KINDLY REFER TO THE CONFIDENTIAL LETTER F.NO. ITO/ WD- 1(2)/DDN/2002-03/DATED 13.12.2002 OF THE ITO, WARD 1 (2), 83, TAGORE VILLA, DEHRADUN ADDRESSED TO YOUR GOODSELF A ND ENCLOSING THERE WITH CERTAIN PHOTO COPIES OF KHASRA -KHATAUNI AND A PHOTO COPY OF THE WILL FOR VERIFICATION OF THEIR GENUINENESS. 2. AS PER DIRECTION, THE FOLLOWING PERSONS WERE SUM MONED U/S 131(1A) OF THE IT AT, 1961AND THEIR STATEMENTS ON O ATH WERE RECORDED. ORIGINAL COPIES OF THEIR STATEMENTS ARE ALSO ENCLOSED HEREWITH:- S/SHRI 1. YASHPAL SINGH S/O SHRI SUKHDEO SINGH, R/O RUPDHA NI, TEH ALIGANJ, DISTT. ETAH. 2. RAMESH CHANDRA, S/O LATE CHAUDHARY RAM BHAROSEY LAL, VILL. & POST JAIMNAI, THE SHIKOHABAD, DISTT. FIROZA BAD. 3. NAWAB SINGH YADAV, S/O LATE SHRI AMRIT SINGH YAD AV, EX-PRINCIPAL, SHRI NEHRU SMARAK HIGHER SECONDARY SC HOOL, KHATUAMAI (MADANPUR), TEH. SHIKOHABAD, AND R/O YADA V COLONY, SHIKOHABAD, DISTT. FIROZABAD. 4. SURESH BABU YADAV, S/O SHRI DILALSA RAM YADAV, R /O 15/9, LABOUR COLONY, SHIKOHABAD, DISTT. FIROZABAD. 5. VIMLESH S/O SHRI VINOD YADAV, SERVANT, ORIGINALL Y BELONGS TO VILL & POST VILASPUR, THE. JASRANA, DISTT. FIROZ ABAD. 6. BHWAN CHANDRA S/O LATE SHRI DHANI RAM, SERVANT, ORIGINALLY BELONGS TO VILL. KALONA, TEH. RANI KHET, DISTT. ALMORA. ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 5 7. JEEVAN S/O SHRI GAYA PRASAD, SERVANT, ORIGINALLY BELONGS TO MADHAV GANJ, SHIKOHABAD. THE SUMMONS ISSUED U/S 131 (1A) OF IT ACT, 1961 TO FOLLOWING PERSONS, WHOSE NAMES ARE APPEARING IN THE KHASRA-KH ATAUNI OF VILL. CHITAWALI LAND, WERE RETURNED UNSERVED WITH T HE POSTAL REMARK IS NAAM KAA KOI VYAKTI..MEIN NAHIN HAI (1) SMT. MOHNI MAHESHWARI, W/O SH. HARENDRA KUMAR, VILL. & POST CHITAWALI, TEHSIL SHIKOHABAD, DISTT. FIROZABAD . (2) PANKAJ S/O SHRI RAM PRAKASH, VILL. & POST CHITA WALI, DISTT. FIROZABAD AND (3) SMT. SUDESH KUMARI, W/O SHRI ASARFI LAL, R/O MO HAMMAD MAH, SHIKOHABAD TOWN, DISTT. FIROZABAD. . (A) THE ENQUIRIES WERE CONDUCTED TO VERIFY THE GENU INENESS OF WILL OF LATE SHRI RAM BHAROSEY LAL. S/SHRI SU RESH BABU, ADVOCATE AND NAVAB SINGH WHO HAD WITNESSED THE WIL L HAVE CONFIRMED THAT LATE RAM BHAROSEY LAL AND MADE A WI LL. THEY HAVE ALSO CONFIRMED THE CONTENTS OF THE WILL. BUT THEY SHOWED THEIR INABILITY TO STATE WHETHER THE WILL WAS GOT R EGISTERED OR NOT. S/SHRI VIMLESH, BHUWAN CHAND AND JEEVAN, SERVANTS, IN THEIR STATEMENT ON OATH, HAVE ADMITTED TO HAVE RECEIVED R S.17,000/-, 17,000/- AND RS.16,500/- RESPECTIVELY FROM SHRI RAM ESH CHANDRA IN CASH AFTER ABOUT ONE MONTH OF THE DEATH OF LATE SHRI RAM BHAROSEY LAL AS INAM FOR THEIR SERVICE TO THE DECEASED SHRI RAMESH CHANDRA, ELDER BROTHER OF SHRI RAJEEV Y ADAV, HAS ADMITTED IN HIS STATEMENT ON OATH RECORDED ON 6.1.2 003 THAT ENTIRE MOVABLE AND IMMOVABLE PROPERTY LEFT BY HIS L ATE FATHER WAS DIVIDED AMONGST THE COSHARES AS PER WILL OF T HE DECEASED S/SHRI SURESH BABU, ADVOCATE AND NAWAB SINGH HAVE S TATED THAT SINCE THEY HAVE NEVER HEARD ABOUT ANY DISPUTE IN TH E FAMILY REGARDING THE DIVISION OF THE ASSETS LEFT BY THE DE CEASED, THEY ARE OF THE VIEW THAT THE ASSETS MIGHT HAVE BEEN DISTRIB UTED AS PER WILL. THE ENQUIRY FURTHER REVEALED THAT THE SAID WILL IS AN UNREGISTERED WILL AND NONE OF THE PERSONS HAVE AD MITTED TO HAVE SEEN THE MOVEABLE ASSETS MENTIONED THEREIN. T HE ENTIRE CASH OF RS.30,50,000/- AND GOLD & SILVER ORNAMENTS MENTIONED IN THE WILL IS STATED TO BE KEPT AT HOME. HOWEVER, NO EVIDENCE COULD BE FURNISHED FOR THE SAME. FROM THE ABOVE ST ATED FACTS, IT ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 6 IS HARDLY BELIEVABLE THAT ANY PERSON MAY KEEP HUGE AMOUNT OF CASH AMOUNTING TO RS.30,50,000/-GOLD ORNAMENTS WEIG HING 5 KGS. AND SILVER ORNAMENTS WEIGHING 10 KGS. AT HOME, PARTICULARLY WHEN (1) THERE HAS BEEN VIDE EXPANSION OF BANK BRANCHES EVEN IN SMALL TOWN (2) KEEPING OF SUCH MOV EABLE ASSETS AT HOME IS NOT SAFE BECAUSE SHIKOHABAD TEHSIL IS A CRIMINAL AREA (3) THE DECEASED HAD GOT CONSTRUCTED A KOTHI IN SHI KOHABAD TOWN BY MAKING HUGE INVESTMENT, AND (4) HE HAD PERFORMED SOCIAL LIABILITIES IN MARRIAGE OF HIS TWO SONS AND THREE D AUGHTERS AND OTHER FAMILY MEMBERS. IT IS ALSO A MAJOR FACTOR TH AT LATE RAM BHAROSEY LAL HAD NEVER BEEN ASSESSED TO WEALTH TAX. IN ABSENCE OF ANY DOCUMENTARY EVIDENCE, THE AVAILABILITY OF CA SH OF RS.30,50,000 AND GOLD AND SILVER ORNAMENTS WEIGHING 5 KGS AND 10 KGS RESPECTIVELY WITH LATE RAM BHAROSEY LAL COUL D NOT BE ASCERTAINED. (B) THE INSPECTOR WAS DEPUTED TO CONDUCT LOCAL ENQU IRY ABOUT HOUSE NO.570, NAI BASTI, SHIKOHABAD, DISTT. F IROZABAD. HIS REPORT DATED 13.1.2003 IS ENCLOSED. THIS HOUSE IS STATED TO BE GOT CONSTRUCTED BY LATE SHRI RAM BHAROSEY LAL IN TH E YEARS 1980 AND 1981 ON A PLOT OF LAND MEASURING ABOUT 500 SQ. YRS. IT IS A THREE STOREYED BUILDING AND LOOKS LIKE A KOTHI. AT PRESENT THREE SONS OF SHRI RAMESH CHANDRA NAMELY S/SHRI VINOD KUM AR, ALOK KUMAR AND ARUN KUMAR ARE STATED TO BE RESIDING IN T HIS BUILDING ALONG WITH THEIR FAMILIES. SINCE IT IS AN OLD BUIL DING, NO COMMENTS ARE BEING OFFERED WITH REGARD TO INVESTMEN T MADE THEREIN. (C) NO EVIDENCE COULD BE BROUGHT ON RECORD TO ESTAB LISH THAT LATE RAM BHAROSEY LAL HAD EVER TAKEN LOAN FOR ANY PURPOSE. FROM THE ABOVE STATED FACTS, IT IS HARDLY BELIEVABLE THAT ANY PERSON MAY KEEP HUGE AMOUNT OF CASH AMOUNTING TO RS.30,50,000/-, GOLD ORNAMENTS WEIGHING 5 KGS. AND SILVER ORNAMENTS WEIGHING 10 KGS. AT HOME, PARTICULARLY WHEN (1) THERE HAS BEEN VIDE EXPANSION OF BANK BRANCHES EVEN IN SMALL TOWN, (2) KEEPING OF SUCH MOVEABLE ASSETS AT HOME IS NOT SAFE BECAUSE SHIKOHABAD TEHSIL IS A CRIMINAL AREA, (3) THE DECEASED HAD GOT ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 7 CONSTRUCTED A KOTHI IN SHIKOHABAD TOWN BY MAKING HUGE INVESTMENT, AND (4) HE HAD PERFORMED SOCIAL LIABILITIES IN MARRIAGE OF HIS TWO SONS AND THREE DAUGHTERS AND OTHER FAMILY MEMBERS. IT IS ALSO A MAJOR FACTOR THAT LATE RAM BHAROSEY LAL HAD NEVER BEEN ASSESSED TO WEALTH-TAX. IN ABSENCE OF ANY DOCUMENTARY EVIDENCE, THE AVAILABILITY OF CASH OF RS.30,50,000/- AND GOLD AND SILVER ORNAMENTS WEIGHING 5 KGS AND 10 KGS. RESPECTIVELY WITH LATE RAM BHAROSEY LAL COULD NOT BE ASCERTAINED. THE INSPECTOR WAS DEPUTED TO CONDUCT LOCAL ENQUIRY ABOUT HOUSE NO.570, NAI BASTI, SHIKOHABAD, DISTT. FIROZAB AD. HIS REPORT DATED 13.1.2003 IS ENCLOSED. THIS HOUSE IS STATED TO BE GOT CONSTRUCTED BY LATE SHRI RAM BHAROSEY LAL IN THE YE ARS 1980 AND 1981 ON A PLOT OF LAND MEASURING ABOUT 500 KQ. YDS. IT IS A THREE STORIED BUILDING AND LOOKS LIKE A KOTHI. AT PRESEN T THREE SONS OF SHRI RAMESH CHANDRA NAMELY S/SHRI VINOD KUMAR, ALOK KUMAR AND ARUN KUMAR ARE STATED TO BE RESIDING IN THIS BU ILDING ALONG WITH THEIR FAMILIES. SINCE IT IS AN OLD BUILDING, NO COMMENTS ARE BEING OFFERED WITH REGARD TO INVESTMENT MADE THEREI N. NO EVIDENCE COULD BE BROUGHT ON RECORD TO ESTABLISH TH AT LATE RAM BHAROSEY LAL HAD EVER TAKEN LOAN FOR ANY PURPOSE. . THE ITI HAS MADE LOCAL ENQUIRY FROM SOME LEKHPALS WHO WERE PRESENT AT TEHSIL HEADQUARTER, SHIKOHABAD ON THE DA TE OF HIS VISIT. HE HAS REPORTED THAT IN SHIKOHABAD AREA, MOS TLY POTATO CROP IS PRODUCED. HE HAS REPORTED AVERAGE EXPENDIT URE ON THIS CROP AT ABOUT RS. 5,000/- TO RS. 6,000/- PER BIGHA AND THE INCOME DEPENDS UPON THE OPPORTUNITY AVAILED FOR SAL E OF POTATOES. KEEPING IN VIEW THE STATEMENT OF SHRI YAS HPAL SINGH AND THE REPORT OF THE ITI, NET SAVING OF RS. 1,500/ - PER BIGHA PER ANNUM APPEARS TO BE REASONABLE. (D) TO ENQUIRE INTO THE STATUS OF S/SHRI YASHPAL S INGH, RAMESH CHANDRA AND SMT. RAMA YADAV, THEIR ANNUAL IN COME AND HOUSE-HOLD EXPENSES ETC. ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 8 3.2 THE ASSESSEE IN RESPONSE TO THIS REPORT FILED D ETAILED REPLY DATED 12.12.2003, SOME RELEVANT PARAS OF THE REPLY READ A S UNDER. WE WOULD LIKE TO DRAW YOUR KIND ATTENTION TO THE F AT THAT SHRI RAM BHAROSEY LAL YADAV BELONGED TO A WELL TO DO FAM ILY WHICH WAS ANCESTRALLY VERY SOUND IN TERMS OF WEALTH . SHRI RAM BHAROSEY LAL YADAV LIVED IN THE RURAL AREA OF FIROZ ABAD (UP). THERE IS NO BANK IN THE NEAR BY AREA. THE CLOSED B ANK IS 10 KM AWAY. MOREOVER, AS THIS AREA IS A CRIMINAL INFLICT ED AREA, ALL ASSETS ARE KEPT UNDER ONES OWN POSSESSION. BANKING, ETC IS NOT COMMON PRIMARILY ON THE FACT THAT THE EMPLOYEES OF THE BANKS BEING LOCAL DISCLOSE THE DETAILS OF BANK TRANSACTIO NS TO THE PUBLIC AT LARGE. THIS LEADS TO KIDNAPPING AND CONS EQUENTLY GIVING OF RANSOMS. WEALTH IN THE HOUSE WAS WELL GU ARDED AS NECESSARY ARMS WERE AVAILABLE. AS SUCH MR. RAM BHAROSLEY LAL YADAV DID NOT MAINTAI N ANY BANK ACCOUNT. ALL MONEY THAT WAS TRANSFERRED AS PER HIS WILL WAS IN CASH. MADAM, HERE WE WOULD LIKE TO POINT O UT THAT A DETAILED EXAMINATION HAS BEEN DONE BY THE DEPARTMEN T IN CONNECTION WITH THE AUTHENTICITY OF THE WILL AND T HE LAND HOLDINGS OF YOUR ASSESSEE. THE OFFICE OF THE ADI A GRA CONDUCTED SPOT INQUIRIES, VERIFIED THE RECORDS WITH THE LAND RECORDS DEPARTMENT, EXAMINED UNDER OATH THE WITNESS ES TO THE WILL WHO WERE PERSONS OF GREAT REPUTE OF THE AREA, RECORDED THE STATEMENTS OF THE CO-RECIPIENT OF THE WILL AND OTHE R FAMILY MEMBERS AND THE SERVANTS OF LATE SHRI RAM BHAROSEY LAL YADAV. THE DETAILED REPORT IN THIS CONNECTION IS W ITH YOUR GOODSELF. 3.3. THE ASSESSING OFFICER ON THE BASIS OF THIS REP ORT HELD THAT THE CLAIM OF ASSESSEE TO HAVE INVESTED A SUM OF RS. 90,500/- IN ASSESSMENT YEAR 1996-97 AND AN AMOUNT OF RS. 8.95 LAC IN ASSESSMENT YEAR 19 98-99 OUT OF THE WILL EXECUTED BY THE SAID SHRI RAM BHAROSEY LAL YADAV WA S NOT BELIEVABLE AND THE AMOUNT IN QUESTION WERE ACCORDINGLY ADDED AS AS SESSEE'S UNDISCLOSED INCOME. THIS ADDITION HAS BEEN CONFIRMED BY CIT(A). ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 9 3.4. APROPOS ASSESSEES CLAIM OF HER OWN AGRICULT URAL INCOME AS WELL AS AGRICULTURAL INCOME OF HER HUSBAND SHRI RAJIV YADAV , THE ASSESSING OFFICE HELD THAT THE CLAIM OF AGRICULTURAL INCOME OF THE A SSESSEE AND HUSBAND WAS TO BE ESTIMATED TAKING THE YIELD OF 2000-01 AS BASE YE AR AND BY APPLYING THE COST INFLATION INDEX AS PUBLISHED BY THE CBDT, AGRI CULTURAL INCOME OF THE ASSESSEE AND HUSBAND WAS TO BE ESTIMATED. RELEVANT OBSERVATIONS FOR A.Y. 1996-97 ARE AS UNDER: KEEPING IN VIEW ABOVE FACTS AGRICULTURE INCOME OF SH. RAJEEV YADAV IS BEEN ESTIMATED BY APPLYING COST INFLATION INDEX NO. OF THE RELEVANT YEAR AS THE ASSESSEE COULD NOT FURNISH ANY DOCUMENTARY EVIDENCE EXCEPT CONFIRMATION FROM SH. R AMESH CHAND, THE BROTHER OF SH. RAJEEV YADAV. COST INFLAT ION INDEX NO. OF FINANCIAL YEAR 1999-00 RELEVANT TO A.Y. 2000 -01 IS 389 AND COST INFLATION INDEX NO. OF PREVIOUS YEAR RELEV ANT TO A.Y. 1996-97 IS 281. 3.5. THIS RESULTED IN DIFFERENCE BETWEEN AGRICULTUR AL RECEIPTS DECLARED BY THE ASSESSEE AND ADOPTED BY THE ASSESSING OFFICER. THE ADDITIONS ON ACCOUNT OF AGRICULTURAL INCOME HAVE BEEN REDUCED BY LD. CIT (APPEALS) HOLDING THE AOS ESTIMATE TO BE EXCESSIVE. THE DIFFERENCE IS HELD TO BE INCOME FROM OTHER SOURCES OF THE ASSESSEE AND ACCORDINGLY THE R EMAINING ADDITIONS ARE CHALLENGED IN THESE APPEALS. 3.6. ASSESSEES CLAIM OF RECEIVING ADVANCES FROM SA LE OF PIECES OF AGRICULTURAL LAND IN RESPECTIVE YEARS WAS DISBELIEV ED, LIKE WISE CLAIM OF AMOUNT OF RS 8 LACS PROVIDED BY SHRI YASHPAL SINGH OUT OF ASSESSEES ACCUMULATED PAST AGRICULTURAL INCOME WAS ALSO REJEC TED. THESE ADDITIONS HAVE BEEN CONFIRMED BY CIT(A). 3.7. AGGRIEVED, THE ASSESSEE IS BEFORE US. ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 10 4. LD. COUNSEL CONTENDS THAT THE ASSESSING OFFICER HAS MADE THE ADDITIONS IN RESPECT OF THE AMOUNT RECEIVED BY THE ASSESSEE OUT OF THE WILL OF HER DECEASED FATHER IN LAW ON PRESUMPTIONS AND SURM ISES. FOR EXPLAINING THE INVESTMENTS MADE BY THE ASSESSEE IN PURCHASE OF FDR S FOR EVERY YEAR ASSESSEE FILED CASH FLOW STATEMENTS WHICH ARE ON TH E RECORD. TO VERIFY THE WILL AND ITS CONTENTS AND AGRICULTURAL HOLDINGS, DE TAILED INQUIRIES WERE MADE BY ADIT, AGRA WHOSE REPORT IS ALSO PLACED ON THE PA PER BOOK. AO HAS MERELY RELIED ON SOME DOUBTS RAISED BY ADIT, AGRA ON THE GENUINENESS OF THE WILL, IGNORING THE UNCONTROVERTED STATEMENTS ON OATH OF WITNESSES, BENEFICIARIES AND OTHER PERSONS. THE WILL HAS BEEN DISCARDED ON THE BASIS OF SURMISES, CONJECTURES AND PRESUMPTIVE PREPONDERANCE S OF PROBABILITIES. IT IS SIGNED BY WITNESSES WHO ARE DULY IDENTIFIED AND BOT H WITNESSES I.E. NAWAB SINGH YADAV (EX PRINCIPAL) AND SURESH YADAV (ADVOCA TE) ARE EXAMINED ON OATH BY THE ASSESSING OFFICER. IN THEIR STATEMENTS ON OATH THEY HAVE CONFIRMED THE EXECUTION OF WILL, RELEVANT CIRCUMSTA NCES AND ASPECTS OF IMPLEMENTATION. THE STATEMENTS AND THE REPORT SUBMI TTED BY ADIT, AGRA STATE THE FACT THAT THESE TWO WITNESSES VERIFIED T HE WILL IN QUESTION WHICH WAS SIGNED IN THEIR PRESENCE AS THE LAST AND FINAL WILL OF SHRI RAM BHAROSEY LAL YADAV. 4.1. THE WILL CONTAINED VARIOUS BENEFICIARIES INCLU DING THE ASSESSEES HUSBAND, HER BROTHERS AND HOUSE-HOLD SERVANTS. THE OTHER RECIPIENTS/BENEFICIARIES OF THE WILL I.E., SHRI RAM ESH CHANDRA YADAV BROTHER IN LAW OF THE ASSESSEE WERE ALSO EXAMINED WHO VERIF IED THE WILL TO BE TRUE AND CORRECT. THREE OTHER SERVANTS OF THE FAMILY HOUSEHOLD OF SHRI RAM BHAROSEY LAL YADAV ALSO WERE BENEFICIARIES WHO ALSO DEPOSED ABOUT THE CORRECTNESS OF THE WILL AND THE FACT OF HAVING REC EIVED THE AMOUNT AS ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 11 MENTIONED IN THE WILL OF SHRI RAM BHAROSEY LAL YADA V. WITH ALL THIS MATERIAL AVAILABLE ON RECORD AND IN THE ABSENCE OF ANY CONTRADICTION IN ANY OF THE STATEMENT, THE WILL CANNOT BE HELD TO BE AN AFTERTHOUGHT. 4.2. IT IS PLEADED THAT THE ASSESSING OFFICER HAS HELD THE WILL TO BE NOT GENUINE ON PRESUMPTIONS WITHOUT CONTROVERTING THE C OPIOUS EVIDENCE ON RECORD OR POINTING OUT ANY DEFECT, CONTRADICTION O R INFIRMITY IN THE STATEMENTS ON OATH. IT HAS BEEN HELD AS NOT BELIE VABLE, BY FOLLOWING OBJECTIONS:- I) THE WILL WAS NOT REGISTERED WITH ANY REGISTERING AUTHORITY NOR HAS BEEN CERTIFIED BY THE NOTARY OR OTHER SIMIL AR AGENCY MORE SO WHEN ONE OF THE WITNESSES SHRI RAM BABOO YADAV WAS A CIVIL ADVOCATE AND THE OTHER WAS A RETIRED PRINCIPAL. IT IS NOT UNDERSTOOD AS TO WHY THEY DID NOT ADVISE THE TESTATOR TO GET IT R EGISTERED. ITS AUTHENTICITY IS NOT THEREFORE, PROVED BEYOND DOUBTS . II) LATE SHRI RAM BHAROSEY LAL YADAV WAS A FARMER A ND APPEARS TO BE MARGINALLY QUALIFIED AND WAS OF 79 YE ARS OF AGE. BUT SIGNATURES ON THE WILL HAVE BEEN MADE IN A VERY FAS T FLOW. MOREOVER, AVAILABILITY OF HUGE CASH OF RS.30,50,000/- APPEARS TO BE QUITE IMPOSSIBLE PARTICULARLY IN VIEW OF THE FACT THAT TH E AREA IS BADLY AFFECTED BY CRIMINAL ACTIVITIES. III) SHRI RAM BHAROSLEY LAL YADAV HAD TWO SONS AND THREE DAUGHTERS. THE WILL OF RS.28,00,000/- IN FAVOUR OF THE ASSESSEE AND HER HUSBAND OUT OF TOTAL AVAILABLE CASH OF RS.30,50 ,000/- APPEARS TO BE QUITE ABNORMAL IN VIEW OF HUMAN PSYCHOLOGY AND PROB ABILITIES. ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 12 IV) CASH OF RS.30,50,000/- GOLD JEWELLERY OF 5 KG A ND SILVER JEWELLERY OF 10 KGS HAS BEEN MENTIONED IN THE WILL WHICH WAS CLEARLY CHARGEABLE TO WEALTH TAX. SHRI RAM BHAROSEY LAL YA DAV WAS NEVER ASSESSED TO INCOME TAX AND WEALTH TAX. 5 KG GOLD A ND 10 KG SILVER ORNAMENTS HAVE BEEN ALLEGEDLY PASSED ONTO THREE DAU GHTERS OF LATE SHRI RAM BHAROSEY LAL YADAV I.E. SMT. PRABHA, PUSHP ALATA AND KANTA. ONE THIRD SHARE OF ABOVE ORNAMENTS IS ALSO CHARGEABLE TO WEALTH TAX IN RESPECTIVE HANDS OF DAUGHTERS. THE A SSESSEE COULD NOT SET FOURTH ANY EVIDENCE TO SUBSTANTIATE THAT ANY OF THE DAUGHTERS OF LATE SH. RAM BHAROSEY LAL YADAV HAS EVER BEEN ASSESSED T O WEALTH TAX. V) LATE SH. RAM BHAROSEY LAL YADAV HAD CONSTRUCTED A LARGE BUILDING IN SHIKOHABAD IN 1982, WHICH WOULD HAVE EX HAUSTED HIS FUNDS IN CONSTRUCTION OF BUILDING. MORE SO NO LOAN WAS TAKEN FOR CONSTRUCTION OF BUILDING. 4.3. LD COUNSEL FOR THE ASSESSEE ASSAILS THESE FIND INGS AND CONTENDS THAT: I. THERE IS NO LAW WHICH PRESCRIBED REGISTRATION OF A WILL IN INDIA, IT ONLY REQUIRES THAT THE TESTATOR SHOULD BE IN A S TATE TO DEPOSE A WILL, WHICH SHOULD BE IN WRITING AND ATTESTED BY TWO WITN ESSES. ALL THESE CONDITIONS ARE FULFILLED, BOTH THE WITNESSES HAVE B EEN EXAMINED ALONG WITH CO BENEFICIARIES, THEY ALL HAVE CONFIRMED THE WILL. THERE IS NO OBLIGATION ON WITNESSES ADVISE THAT THE WILL REGIST ERED MORE SO IN A VILLAGE. THEREFORE NO ADVERSE INFERENCE CAN BE DRAW N FROM THIS OBSERVATION OR FINDING BY AO. ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 13 II. IF THERE WAS ANY ISSUE ABOUT THE SIGNATURE OF L ATE SHRI RAMBHAROSEY, AO COULD HAVE REFERRED TO A HAND WRITING EXPERT. HE CAN NOT ASSUME THE ROLE OF A HANDWRITING EXPERT AND HOLD THE SIGNA TURE TO BE FORGED MERELY ON THE ASSUMPTION THAT HE WAS MARGINALLY QUA LIFIED. MORE SO IT HAS NOT BEEN DISPUTED THAT HE WAS A LEADING CITIZEN OF AREA AND FREEDOM FIGHTER. THEREFORE, NO ADVERSE INFERENCE CA N BE DRAWN FROM THIS OBSERVATION. III. AS PER INDIAN LAW, ANY TESTATOR CAN MAKE A WIL L AS PER TERMS FOR DISTRIBUTION AMONG HEIRS AS AGREEABLE TO HIM. NO AD VERSE INFERENCE CAN NOT BE DRAWN OF THE FACT THAT MORE CASH WAS GI VEN TO ASSESSEE AND HER HUSBAND AND LAND AND ORNAMENTS TO OTHERS. ASSES SEES FAMILY WAS LIVING AWAY FROM THE REMAINING FAMILY. AS PER SHRI RAMBHAROSEYS UNDERSTANDING AND WISHES IT WAS APPROPRIATE TO GIVE MORE CASH TO THEM IN LIEU OF LAND. THUS THE ABNORMALITY AS POINT ED OUT BY AO NEITHER EXISTS NOR HAS ANY LEGAL OR CIRCUMSTANTIAL CONSEQUENCE. IV. THE ASSESSEE CANNOT BE HELD RESPONSIBLE OR LIAB LE FOR NON FILING OF INCOME TAX AND WEALTH TAX RETURNS OF LATE SHRI RAMB HAROSEY OR HIS DAUGHTERS. BESIDES THIS CANNOT INVALIDATE A VALID A ND DULY EXECUTED WILL. V. ADVERSE INFERENCE HAS BEEN DRAWN FROM THE FACT T HAT SHRI RAMBHAROSEY CONSTRUCTED A THREE STORIED KOTHI IN TH E VILLAGE WITHOUT ANY BANK LOAN IN 1981. IT CORROBORATES THE CONTENTI ON THAT IN VILLAGES PROSPEROUS FAMILIES GENERALLY DONT TRANSACT WITH B ANKS. IN VILLAGES UNLIKE CITIES, HOUSES ARE CONSTRUCTED IN SIMPLE/ CO UNTRY STYLE UNDER SELF SUPERVISION. THUS ADVERSE INFERENCE CAN NOT BE DRAWN THAT HIS FUNDS WERE EXHAUSTED; IT IS A PURE SURMISE ON THE P ART OF AO. ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 14 4.4. LD COUNSEL ON THE BASIS OF THESE ARGUMENTS CON TENDS THAT THERE IS NO JUSTIFICATION OR BASIS IN AOS CONCLUSION AND ADDITI ONS HOLDING THAT WILL IS NOT GENUINE. LD CIT(A) INSTEAD OF DECIDING THE ISSUE IN AN OBJECTIVE MANNER DISMISSED THE GROUND BY FOLLOWING SWEEPING OBSERVAT IONS: THE ABOVE CONTENTIONS OF THE LD. AO ARE TO THE POI NT AND NO APPELLATE AUTHORITY CAN DARE IGNORE THE OBLIGATION OF THE TESTATOR TO HE FILED A RETURN UNDER THE WEALTH TAX ACT IF, A DMITTEDLY, HE WAS KEEPING RS. 30,50,000/- WITH HIM AS CASH IN HAN D AND 5 KG. OF GOLD AND 10 KG. OF SILVER JEWELLERY OVER AND ABO VE THE CASH AMOUNT. THE APPELLATE AUTHORITIES WOULD CERTAINLY B E SEEN AS AIDING AND ABETTING IN TAX EVASION IF THEY ARE TO I GNORE THE EVIDENCE AVAILABLE TO THE EFFECT THAT THE TESTATOR IN THIS CASE OUGHT TO HAVE FILED A RETURN UNDER THE WEALTH TAX A CT, PAID TAXES ON WEALTH AND THE APPELLATE AUTHORITIES WOULD NOT LIKE THEMSELVES TO BE SHOWING ANY KEENNESS TO ACCEPT THE FABRICATED STORY OF RECEIVING THE UNEXPLAINED MONEY UNDER A WI LL. IT IS, THEREFORE, TO BE NECESSARILY HELD THAT THE ENTIRE S TATEMENT OF THE APPELLANT IS UNTRUE, NO MATTER WHAT KIND OF OVER-MA NIPULATED EVIDENCE IS ADDUCED TO PROVE THE CORRECTN4ESS OF TH E WILL. THE SIMPLE QUESTION IS WHY AN IDENTICAL WILL WITH IDENT ICAL BEQUEATHMENT WAS NOT LEFT IN FAVOUR THE TWO SONS AN D THE OTHER DAUGHTERS? THIS QUESTION VEERS ROUND THE PREPONDERA NCE OF HUMAN PROBABILITY, A TEST ON WHICH THE CLAIM OF THE APPELLANT ROUNDLY FAILS. NOT TO TALK OF THE HARD EVIDENCE OF THE APPELLANT NOT BEING A WEALTH-TAX ASSESSEE AND THAT ALONE GOES TO PROVE THAT HE COULD NOT HAVE LEFT THE CLAIMED AMOUNT UNDE R A WILL. THE ADDITION MADE BY THE LD. AO IS, THEREFORE, UPHELD. 4.5. IT IS VEHEMENTLY ARGUED THAT CIT(A) HAS RELIE D ON PROBABILITIES AND ASSUMPTIONS BY TERMING THE WILL AS AN OVER MANIPUL ATED EVIDENCE. THE EVIDENCE RELIED BY ASSESSEE IS TO BE CONTROVERTED O N THE BASIS OF COGENT COUNTER EVIDENCE OR PICKING CONTRADICTIONS IN THE E VIDENCE FURNISHED. THE SAME CANNOT BE DISCREDITED WITHOUT POINTING ANY CON TRADICTION AND ON MERE PRESUMPTIONS. SUCH OBSERVATIONS AND REFERENCES TO P ROBABILITIES BASED ON ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 15 PRESUMPTION CANNOT DISCARD THE CREDIBLE EVIDENCE FI LED BY THE ASSESSEE. IT IS PLEADED THAT THESE ADDITIONS DESERVE TO BE DELETED. 5. APROPOS ADDITIONS ON THE BASIS OF AGRICULTURE I NCOME, IT IS PLEADED THAT AUTHORITIES BELOW HAVE RECORDED CONTRADICTORY FINDINGS. ASSESSEE FILED DETAILED EXPLANATION SUPPORTING THE CLAIM OF AGRICU LTURAL INCOME INCLUDED IN THE CASH FLOW STATEMENTS BELONGING TO HER AND HUSBA ND SHRI RAJIV YADAV. PART OF THE SAME IS AS UNDER: 2. REGARDING THE AGRICULTURAL INCOME, WE WOULD LIK E TO POINT OUT THAT BOTH MRS. RAMA YADAV & MR. RAJIV YAD AV BELONG TO AGRICULTURIST BACKGROUND. MRS. YADAV HAS SUM TOTAL OF 80 BIGHAS OF LAND IN HER NAME & MR. RAJIV YADAV HA S 90 BIGHAS OF AGRICULTURAL LAND IN HIS NAME. THESE LAND S ARE SITUATED AT THEIR RESPECTIVE PARENTAL VILLAGES. COPIES OF KH ASRA & KHATONIES TO SUPPORT THIS FACT WERE ATTACHED WITH T HE WRITTEN SUBMISSION FOR THE ASSTT. YEAR 1996-97 AS ANNEXURE 3 THERETO. AS BOTH RAMA YADAV & HER HUSBAND DID NOT STAY IN TH EIR VILLAGES THEIR LAND HOLDINGS WERE LOCKED AFTER THEI R CLOSE FAMILY MEMBERS. MR. YADAVS LAND WAS LOOKED AFTER BY HIS ELDER BROTHER MR. RAMESH CHAND YADAV. MR. RAJIV YADAVS F ATHER ON HIS DEATH LEFT BEHIND AGRICULTURAL LAND, HOUSE, TRA CTORS AND JEWELLERY TO BE DIVIDED BETWEEN HIS TWO SONS (MR. R AJIV YADAV & MR. RAMESH CHAND YADAV). COPY OF THIS WILL WAS AP PENDED WITH THE WRITTEN SUBMISSION FOR THE ASSTT. YEAR 199 6-97 AS ANNEXURE 4 THERETO. MR. RAMESH CHAND YADAV CULTIVAT ED THE SAID AGRICULTURAL LAND OF MR. RAJIV YADAV, ALL EXP ENDITURE ON CROPS I.E. FERTILIZERS, SEEDS, LABOUR WERE MET BY M R. RAMESH CHAND YADAV, HE ALSO OBTAINED THE ALE PROCEEDS OF T HESE CROPS. FROM TIME TO TIME HE WOULD GIVE MR. RAJIV YADAV HI S SHARE HIS SHARE OF AGRICULTURAL INCOME DEPENDING ON THE OUTPU T. HOWEVER HER EWE WOULD LIKE TO POINT OUT THAT AS THIS DEALIN G WAS BETWEEN BROTHERS AND ESPECIALLY WHEN ONE BROTHER DID ALL TH E OPERATIONS AND THE OTHER BROTHER ENJOYED THE RETURNS THEREFROM WHAT EVER WAS GIVEN TO MR. RAJIV YADAV FROM HIS ELDER BROTHE R WAS TAKEN AS FINAL. REGARDING MANDI SIMITI HE WOULD LIKE TO B RING TO YOUR KIND ATTENTION THAT IN JAIMAI DISTT FEROZABAD MANDI SAMITI WAS ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 16 NOT APPLICABLE FOR THE YEAR IN QUESTION. AS SUCH MA NDI SAMITHI RECEIPTS DOES NOT COME IN QUESTION. MRS. RAMA YADAVS TOO HOLDS ANCESTRAL AGRICULTURAL L AND IN RUPDHANI DISTT. ETAH. THIS LAND IS LOOKED AFTER AND CULTIVATED BY HER BROTHER MR. YASHPAL SINGH. IN HER CASE TOO A LL EXPENSES ETC. ARE BORNE & MET BY HER BROTHER AND ALL SALE PR OCEEDS ARE COLLECTED BY HIM. FROM TIME TO TIME AMOUNTS WERE GI VEN TO HER AS NET RECEIPTS FROM AGRICULTURAL OPERATIONS ON HER LAND. IN DISTT. ETAH FOR THE YEAR IN QUESTION, NO MANDI SAMITHI WAS APPLICABLE. THUS FROM THE ABOVE IT IS CLEAR THAT BOTH MRS. YADA V & MR. YADAV HAD ANCESTRAL AGRICULTURAL LAND. BOTH THESE L ANDS ARE CANAL IRRIGATED OWN TRACTORS ARE USED FOR CULTIVATI ON. YOUR GOODSELF CAN ALSO VERIFY THIS FROM THE WILL OF MR. RAJIV YADAVS FATHER WHEREIN HE LEFT BEHIND TWO TRACTORS FOR HIS TWO SONS. ON BOTH THESE LANDS, THREE CROPS ARE REAPED IN A YEAR. POTATO, GARLIC, WHEAT, PEAS, MUSTARD & CHANA FROM THE MAJOR CROP PRODUCED ON THESE LANDS. SIR, KEEPING IN VIEW THE L AND HOLDING THE AMOUNT OF AGRICULTURAL INCOME FULLY JUSTIFIES I TSELF. 3) DURING THE YEAR IN CONSIDERATION AGRICULTURAL IN COME OF RS. 1,75,000/- WAS RECEIVED BY MR. RAJIV YADAV. COP Y OF CONFIRMATION FOR THE SAME ARE BEING APPENDED HEREWI TH AS ANNEXURE 3 SHOWING NET RECEIPTS FROM AGRICULTURAL O PERATIONS. 5.1. MORE IMPORTANTLY THE ISSUE ABOUT INVESTIGATION INTO THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE IN CASH FLOW STATEM ENT WAS ALSO REFERRED BY AO TO ADIT(AGRA). THE AUTHORITY HAS SUBMITTED A DE TAILED REPORT ABOUT THE AGRICULTURAL LAND OWNED BY ASSESSEE AND HER HUSBAND , ESTIMATED YIELD AND FAMILY DETAILS. FOLLOWING FACTS EMERGE FROM THE REP ORT ON THE AGRICULTURAL INCOME ASPECT: A. ASSESSEE BELONGS TO VERY AFFLUENT AGRICULTURAL F AMILIES FROM PATERNAL AND IN LAWS SIDES. SHE WAS GIFTED 62.5 BIG HAS OF AGRICULTURAL LAND ON 18.3.70 FROM HER MATERNAL GRAN D ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 17 MOTHER. FURTHER SHE PURCHASED 16 BIGHAS OF AGRICULT URAL LAND IN 1984. B. THE TOTAL HOLDING OF AGRICULTURAL LAND IS AS UND ER: (I) ASSESSEE SMT. RAMA YADAV 80 BIGHAS (II) HUSBAND SHRI RAJIV YADAV 90 BIGHAS 170 BIGHAS C. IN AN STATEMENT ON OATH ASSESSEES BROTHER YASH PAL SINGH CONFIRMED THAT HE WAS TAKING CARE OF THESE FERTILE AGRICULTURAL LAND AND CARRYING OUT AGRICULTURAL OPERATIONS. THE AREA BEING CRIMINAL INFESTED CROP WAS SOLD TO LOCAL PURCHASERS AND NOT TAKEN TO MANDI WHICH WAS 40 KMS. AWAY. D. LEKHAPAL REPORTED THAT IN SHIKOHABAD AREA POTAT O CROP WAS GROWN WHICH YIELDS RS. 6000/- PER BIGHA. HOWEVER, O N AN AVERAGE NET SAVING OF RS. 1,500/- PER BIGHA WAS REA SONABLE. 5.2. IN AY 1996-97 THOUGH CIT(A) HELD THAT AO COU LD HAVE IGNORED THE SMALL DISCREPANCY OF RS. 6,000/-, STILL AN ADDITION OF RS. 5000/- HAS BEEN RETAINED WITHOUT ANY BASIS. 5.3. IN AY 1997-98 AND SUBSEQUENT YEARS - AO HAS E STIMATED THE AGRICULTURE INCOME OF ASSESSEE AND HER HUSBAND BY A MECHANICAL FORMULA OF ADOPTING YIELD ON COST INFLATION INDEX CALCULATION. IGNORING THE CULTIVATED LAND AREA OF 170 BIGHAS (90 BIGHAS OF HUSBAND AND 8 0 BIGHAS OWNED BY ASSESSEE) AND ADIS REPORT WHICH IS BASED ON THE EV IDENCE OF TEHSIL LEKHAPAL WHICH CONFIRMS RS. 1,500/- PER BIGHA TO BE A REASONABLE AGRICULTURAL INCOME. CIT(A) HAS MERELY HELD THAT AS SESSES WRITTEN SUBMISSIONS DO NOT OVERCOME AOS CONTENTIONS. THUS BOTH THE AUTHORITIES HAVE FAILED TO APPRECIATE PROPER FACTS ON THIS ISSU E. THE CLAIM OF AGRICULTURAL INCOME IS SUPPORTED BY THE REPORT OF ADI, STATEMENT OF SHRI YASHPAL SINGH ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 18 AND REPORT OF LEKHAPAL. AO THOUGH RELIES ON THE ADI S REPORT ON THE ISSUE OF WILL AT THE SAME TIME DISCARDS THE REASONABLENESS O F AGRICULTURAL INCOME OF RS. 1500/- PER BIGHA. 5.4. IT IS PLEADED THAT AUTHORITIES BELOW HAVE FAIL ED TO DISLODGE THE MATERIAL AND EVIDENCE AVAILABLE ON RECORD IN SUPPORT OF AGRI CULTURE RECEIPT. AO HAS ADOPTED A MECHANICAL METHOD OF LINKING THE AGRICULT URAL INCOME WITH COST INFLATION INDEX. 6. APROPOS THE AMOUNT OF RS. 8 LACS SHOWN IN THE C ASH FLOW STATEMENT AS ACCUMULATED SAVINGS OF PAST AGRICULTURAL OPERATIONS LD. COUNSEL CONTENDS THAT SHRI YASHPAL SINGH BROTHER OF THE ASSESSEE WAS IN CHARGE OF THE MANAGEMENT OF AGRICULTURAL FIELDS, OPERATION, SALE OF PRODUCE AND REALIZATION THEREOF. AS PER HIS STATEMENT THE AGRICULTURAL REC EIPTS WERE HANDED OVER TO HIS SISTER FROM TIME TO TIME. THIS METHODOLOGY. IT IS COMMON IN AGRICULTURAL FAMILIES TO SAFEGUARD THE INTEREST OF AGRICULTURAL OPERATIONS OF MARRIED DAUGHTERS OF THE FAMILY. YASHPAL SINGHS STATEMENT ON OATH CONFIRMS HIS MANAGEMENT OF AGRICULTURAL OPERATIONS, THUS IDENTI TY AND SOURCE OF INCOME I.E. AGRICULTURAL LANDS AND SHRI YASHPAL SINGH ARE IDENTIFIED AND TRANSACTIONS CONFIRMED. AO HAS HELD IT TO BE UNBELIEVABLE ON THE REASONS THAT CREDITWORTHINESS OF SHRI YASHPAL SINGH IS NOT PROVE D AND TRANSACTION IS NOT THROUGH BANKING CHANNELS BESIDES SHRI YASHPAL SINGH HAS BEEN HANDING OVER THE AGRICULTURAL INCOME REGULARLY THEN WHY THERE WE RE UNPAID PAST SAVINGS. 6.1. CIT(A) HELD IT TO BE UNBELIEVABLE BY FOLLOWING OBSERVATIONS: AS REGARDS, THE CLAIM OF RECEIPT OF RS. 8 LACS FRO M SHRI YASHPAL SINGH, THE BROTHER OF THE APPELLANT, A CLAI M IN RESPECT OF WHICH THE ADDITION OF RS. 8 LACS IS AGITATED AT GROUND NO. (2), THE AO HAS NOT BELIEVED THE ARGUMENT OF SHRI YASHP AL SINGH THAT AGRICULTURAL INCOME OF VARIOUS YEARS PRIOR TO 1994 ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 19 CONTINUED TO ACCUMULATE AND FROM THAT ACCUMULATED S OURCE A CONSOLIDATED AMOUNT OF RS. 8 LACS WAS GIVEN TO THE APPELLANT DURING THE INSTANT ASSESSMENT YEAR. AS AGAINST THIS VIEW OF THE AO, THE WRITTEN SUBMISSIONS DO NOT BRING OUT THAT S HRI YASHPAL SINGH WAS ACTUALLY GROWING CASH CROPS AND ACCUMULAT ING THE SALE PROCEEDS OVER THE YEARS. SIMILARLY, THERE IS N O EVIDENCE SHOWING THAT SHRI YASHPAL SINGH WAS CULTIVATING THE LANDS OF THE APPELLANT AS CLAIMED. THE WHOLE EXPLANATION IN THE WRITTEN SUBMISSIONS REPRODUCED HEREINBEFORE IS MORE LIKE A STORY INTENDED TO BE TOLD TO SOMEONE WHO COULD BUY IT. TH ERE IS NO CORROBORATIVE EVIDENCE IN THE FOR OF ACCOUNTS ETC. WHICH COULD SUBSTANTIATE THE CLAIM. SINCE AGRICULTURAL INCOME I S NO TAXABLE AND SOME FAMILY MEMBERS OWN AGRICULTURAL LANDS, AN EXPLANATION HAS BEEN PREPARED WHICH IS DESIGNED TO SUBSTITUTE FOR A CORROBORATIVE EVIDENCE. SUCH AN EXPLANATION I S, THEREFORE, NOT ACCEPTABLE. THE ADDITION MADE IS, THEREFORE, UP HELD. 6.2. LD COUNSEL CONTENDS THAT AUTHORITIES BELOW HAV E BEEN IGNORING A VITAL FACT THAT THE AGRICULTURAL LANDS ARE SITUATE IN VIL LAGES AND THE AREA IS CRIMINAL INFESTED WHERE PEASANTS DONT BELIEVE IN BANKING SY STEM FOR THEIR OWN REASONS. MOST OF THE TRANSACTION ARE CARRIED OUT IN CASH, PEOPLE BELIEVE IN SELF CARE AND CASH DEALINGS, WHICH IS INDICATED IN THE ADIT(AGRA) REPORT ALSO. THE SOURCE OF RECEIPT I.E. AGRICULTURAL LANDS ARE N OT DISPUTED, THE MANAGER OF THE AGRICULTURAL OPERATIONS SHRI YASHPAL SINGH HAS TESTIFIED TO THIS EFFECT BY GIVING DETAILS ABOUT THE NATURE OF CROP AND ESTIMAT E OF YIELD. LEKHPALS CORROBORATIVE REPORT IS MENTIONED BY ADI(AGRA) IN H IS REPORT. AS THE RECORD STANDS ASSESSEE HAS DISCHARGED HER ONUS WHICH HAS N OT BEEN EFFECTIVELY REBUTTED AND ADDITION HAS BEEN MADE ON GENERAL ASSU MPTIONS. THERE IS NO QUESTION OF CREDITWORTHINESS OF SHRI YASHPAL SINGH, THE AMOUNT REPRESENTS ASSESSEES PAST AGRICULTURAL SAVINGS LYING WITH HIM . THE ASSESSEE HAVING DISCHARGED HER PRIMARY ONUS IN EXPLAINING THIS CRED IT, THE ADDITION SHOULD BE DELETED. ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 20 7. LAST ISSUE PERTAINS TO ADDITIONS OF CREDITS IN C ASH FLOW STATEMENT ON ACCOUNT OF ADVANCES RECEIVED FROM AGREEMENT TO SELL PIECES OF AGRICULTURAL LANDS. LD COUNSEL FOR THE ASSESSEE, IN RESPECT OF E ACH ADVANCE CONTENDS THAT: I. AY 97-98 - SMT. UMA YADAV- SISTER: SHE IS MARRIE D IN A RICH FAMILY AND LIKE ASSESSEE SHE ALSO INHERITED REGULARLY CULT IVATED AGRICULTURAL LAND FROM PATERNAL SIDE. NECESSARY CONFIRMATION ABO UT THE ADVANCE ALONG WITH HER ADDRESS AND DETAILED REPLY WAS FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT IS PERTINENT T O MENTION THAT THE DETAILS ABOUT HER RELATION WITH ASSESSEE, HER F AMILY STATUS ETC. FINDS MENTION IN THE ADIS REPORT ALSO. LD AO WITHOU T REFUTING HER IDENTITY, AGRICULTURAL HOLDING AND INCOME HAS SUMMA RILY HELD THAT HER CREDITWORTHINESS IS NOT PROVED. SINCE ADIS REPO RT WAS BEING CALLED NOTHING PREVENTED AO F INVESTIGATING THIS AS PECT ALSO. ASSESSEE DISCHARGED HER PRIMARY ONUS BY ESTABLISHI NG IDENTITY, AND CREDITWORTHINESS OF THE PURCHASER/SISTER; THE A DDITION CAN NOT BE MADE ONLY ON ASSUMPTIONS. II. AY 98-99 SHRI YASHPAL SINGH YADAV- BROTHER- IT IS PLEADED THAT YASHPAL SINGH IS ASSESSEES BROTH ER, SINCE BEGINNING HE IS IN CHARGE OF CARRYING AGRICULTURAL OPERATIONS ON THE LANDS OF FAMILY MEMBERS INCLUDING ASSESSEE. HE LIVES IN THE VILLAGE ONLY. HE ALSO INHERITED VAST AGRICULTURAL L AND WHICH ARE REGULARLY CULTIVATED. THESE FACTS ARE DULY MENTIONE D IN THE ADIS REPORT TO THE EFFECT THAT SHRI YASHPAL SINGH STAYS IN THE VILLAGE FOR AGRICULTURAL OPERATIONS AND IN THAT PAR T OF THE COUNTRY TRANSACTION ARE GENERALLY CARRIED ON CASH BASIS . A SSESSEE DISCHARGED HER PRIMARY BURDEN OF PROVING THE IDENT ITY, GENUINENESS AND CREDITWORTHINESS BY FILING THE CONF IRMATION. HIS LAND HOLDINGS ARE ON RECORD AND WAS ALWAYS READ Y FOR EXAMINATION BY AUTHORITIES. IF AO WAS NOT SATISFIED , THIS ISSUE ALSO SHOULD HAVE BEEN REFERRED TO ADI AGRA ALONG W ITH OTHER INQUIRIES. ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 21 III. AY 99-2000- SHRI RAMESH CHANDRA YADAV- BROTHER IN LAW- MR. RAMESH CHAND YADAV IS HUSBANDS BROTHER). HE AL SO INHERITED A VAST LAND CONSEQUENT TO EXECUTION OF WILL, WHICH AR E REGULARLY CULTIVATED BY AGRICULTURAL OPERATIONS. FOR INVESTIG ATION INTO THE WILL AND AGRICULTURAL INCOME HE WAS ALSO EXAMINED BY ADI AGRA AND STATEMENT ON OATH WAS RECORDED. THESE FACTS ARE DUL Y MENTIONED IN THE ADIS REPORT. HE STAYS IN VILLAGE JAIMAI TO CONTROL AND SUPERVISE AGRICULTURAL OPERATIONS AND HAS STATED THAT TRANSAC TIONS IN THAT PART OF THE COUNTRY ARE CARRIED IN CASH. HIS ADDRESS, IDENT ITY, CREDITWORTHINESS FIGURES IN THE ADIS REPORT ITSELF. WRITTEN CONFIRM ATION ACCEPTING THE ADVANCE FOR PURCHASE OF LAND IS ON RECORD. THUS THE ASSESSEE DISCHARGED ITS PRIMARY ONUS OF PROVING AS CONTEMPLA TED BY SEC 68. IF AT ALL THE LD. AO WAS NOT SATISFIED THIS ISSUED SHO ULD HAVE BEEN REFERRED TO ADI AGRA OR SUMMONED HIM ON HIS OWN. TH E ASSESSEE HAVING DISCHARGED THE PRIMARY STATUTORY BURDEN CAN NOT BE MADE TO SUFFER FOR THE NON CONDUCTING OF APPROPRIATE INQUIR IES BY THE DEPARTMENT. (IV) APROPOS AOS OBJECTION- IT IS NOT UNDERSTOO D AS TO HOW THE ASSESSEE HAS RECEIVED ADVANCE AGAINST 10 BIGHAS OF LAND WHILE THE LAND UNDER HER OWNERSHIP WAS ONLY 5.32 BIGAS. LD COUNSE L POINTS OUT THAT THE AOS OBJECTION IS NOT CORRECT AS COLLECTIVELY 17 0 BIGAS OF LAND WERE HELD BY SH. RAJIV YADAV & MRS. RAMA YADAV. ADVANCE S WERE RECEIVED FOR DIFFERENT PIECES OF LAND IN DIFFERENT YEARS. THEIR LAND HOLDING AT VILLAGE CHITAVALLI EXCEEDED THE LAND AGR EED TO BE SOLD. EVIDENCE OF THE OWNERSHIP OF LAND IS SUBMITTED BEF ORE THE LD. AO AT THE TIME OF THE ASSESSMENT PROCEEDINGS. ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 22 (V) LD. AO HAS OBJECTED THAT ALL THE CONFIRMATIONS BEAR THE DATE 1- 11-2002. THESE CONFIRMATIONS WERE ISSUED AT THE SPECIFIC RE QUEST OF ASSESSEE TO FURNISH THE SAME TO AO, AS SUCH THE DATE OF 1-11-20 02 WAS PUT ON THEM. THIS DOES NOT MEAN THAT THE TRANSACTIONS WERE EXECUTED ON THIS DAY, IT MERELY MEANS THE DATE OF ISSUE OF THE CONFI RMATION LETTERS. (VI) FROM THE STATEMENTS AND RECORD IT WILL EMERGE THAT BOTH THE FAMILIES ARE AT CORDIAL TERMS, THIS IS THE ESSENCE OF RELATIONSHIP IN RURAL INDIA WHERE THE WORD OF HONOR AND SENSITIVITY OF RE LATIONSHIP IS PARAMOUNT. SINCE THE ADVANCES WERE RECEIVED FROM CL OSE FAMILY MEMBERS THERE WAS NO URGENCY OF EXECUTING A WRITTEN OR REGISTERED AGREEMENT. THE PAPER FORMALITIES WILL BE COMPLETED AS AND WHEN THE TRANSACTIONS ARE FULLY MATERIALIZED. NON EXECUTION OF THE WRITTEN AGREEMENT BETWEEN TWO CLOSE RELATIVES IN THESE FACT S AND CIRCUMSTANCES CANNOT BE USED TO DENY WRITTEN CONFI RMATIONS AS AFTER THOUGHT. MORE SO WHEN AO COULD HAVE INCLUDED THIS A SPECT IN INVESTIGATION CONDUCTED THROUGH ADI AGRA. (VII) LD. AO HAS OBSERVED IN HIS ORDER, IN REGARD TO IMMOVABLE PROPERTY THERE IS INCREASING TREND OF PRI CE BUT IN THE CASE OF ASSESSEE THE RATE OF LAND PER BIGHA HAS VAR IED TO THE DOWNWARD TREND WHICH IS AN ABNORMAL PHENOMENON. IT IS PLEADED THAT LAND HAS BEEN AGREED TO BE SOLD TO SISTER, BROTHER AND BROTH IN LAW AT NEARLY SAME RATES. THE PRICE CANNOT BE SUBJECT MATTER OF HARD BARGAIN BETWEEN CLOSE FAM ILY ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 23 MEMBERS. BESIDES THAT THE LAND IN QUESTION IS SITUA TED AT MAINPURI ROAD, WHICH IS ON AGRA HIGHWAY WITH THE IN CREASED COMMERCIAL ACTIVITY ON THE HIGHWAY THE LAND RATES S HOT UP IN 1995-96 AND THEREAFTER THEY HAVE BEEN STAGNANT. EVE N AO HAS NOT GIVEN ANY PARALLEL SALE INSTANCES TO JUSTIFY HI S ADVERSE OBSERVATION. (IX) AY 2000-2001- SHRI ZIA KHAN- THIS ADVANCE OF RS. 4.68 LAKHS FOR 2.5 BIGAS OF LAN D SITUATED AT MAINPURI ROAD VILLAGE CHITAWALI, TEHSIL SHIKOHABAD, DISTT. FIROZABAD WAS RECEIVED FROM SHRI NAWAB ZIA KHAN. TH IS CONFIRMATION DISCLOSING HIS FULL IDENTITY & ADDRESS WAS FURNISHED. HE STAYS IN VILLAGE BHADURGARH, A RURAL AREA AND AD VANCE WAS GIVEN IN CASH. HE HAS CONFIRMED THIS TRANSACTIONS WITH FU LL ADDRESS AND IDENTITY. ASSESSEE DISCHARGED THE PRIMARY BURDEN OF PROVING THE INGREDIENTS OF SEC 68, IF AO WAS NOT SATISFIED, HE COULD HAVE SUMMONED HIM OR ENTRUSTED THE INVESTIGATION TO ADI AGRA. 7.1. LD COUNSEL PLEADS THAT AO HAS GIVEN UNJUSTIFIE D IMPORTANCE TO IRRELEVANT FACTS AS PREPONDERANCE OF PROBABILITIES AND FAILED TO APPRECIATE FOLLOWING CRUCIAL FACTS: I. THAT THE COMBINED HOLDING OF THE LAND OWNED BY A SSESSEE AND HER HUSBAND IN VILLAGE CHITAWALI IS MORE THAN 10 BI GHAS AGREED TO BE SOLD BY THE ASSESSEE. II. IF THERE WAS ANY DOUBT ON THESE ASPECTS, AO SHO ULD HAVE REFERRED IT FOR INVESTIGATION BY ADI AGRA ALONG WIT H OTHER ISSUES. AO IGNORED THE EVIDENCE I.E. CONFIRMATIONS ALONG WITH LAND HOLDINGS OF THESE PERSONS, NEITHER ASSESSEE WA S ASKED TO ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 24 PRODUCE THEM, NOR SUMMONS WERE ISSUED. IMPORTANTLY WHEN THE INVESTIGATIONS WERE CARRIED OUT THROUGH ADI AGRA ON THE FUND FLOW STATEMENT OF ASSESSEE; INVESTIGATIONS ON THE L AND ADVANCES ALSO SHOULD HAVE BEEN MADE. SINCE SAME WITNESSES WE RE CALLED FOR EXAMINATION IT WOULD HAVE SAVED THE TROUBLE, BO TH FOR THE DEPARTMENT AND ASSESSEE. III. ASSESSEE HAS BEEN CONSTANTLY PLEADING THAT THE GENERAL MODE OF TRANSACTIONS IN THIS PART OF THE COUNTRY WAS CA SH; INSTEAD OF APPRECIATING THIS FACT IN PROPER PERSPECTIVE, AO HA S TAKEN A STIFF STAND BY MAKING ADDITIONS REPEATEDLY ON THE REASON THAT THESE ARE CASH TRANSACTIONS. IV. ALL THE PURCHASERS I.E. SMT. UMA YADAV, S/SHRI YASHPALSINGH, RAMESH CHANDRA AND ZIA KHAN HAVE CONF IRMED THE ADVANCES GIVEN TO ASSESSEE FOR PURCHASE OF AGRI CULTURAL LAND ALONG WITH THEIR LAND HOLDINGS, THEIR IDENTITY HAS NOT BEEN DISPUTED. V. NON FURNISHING OF INCOME TAX AND WEALTH TAX RETU RNS BY LATE SHRI RAMBHAROSEY AND HIS DAUGHTERS CANNOT BE U SED AGAINST ASSESSEE AS SHE HAD NO CONTROL ON THEIR RETURNS. 8. LD DR ON THE OTHER HAND VEHEMENTLY CONTENDS THA T: I. THE ASSESSEE IN ORDER TO SUBSTANTIATE HER FUND F LOW DETAILS HAS CREATED THE GAMUT OF EVIDENCE AS AN AFTER THOUGHT. II. THE ALLEGED WILL EXECUTED BY LATE SHRI RAM BHAR OSEY YADAV IS UNBELIEVABLE. AFTER CONSTRUCTION OF A 3 ST ORIED KOTHI IN THE YEAR 1981 IN THE VILLAGE, IT DOES NOT APPEAL TO REASONS THAT AN AMOUNT OF LIQUID CASH OF RS. 30.5 LAKCS WILL BE KEPT AT HOME ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 25 ALONG WITH 5 KGS. OF GOLD ORNAMENTS AND 10 KGS OF S ILVER UTENSILS. III. THESE ASSETS WERE NOT KEPT EVER IN ANY BANK. T HUS THE ENTIRE EVIDENCE IS BASED ON PERSONAL HANDLING OF TH E ASSETS THUS THERE WAS NO INDEPENDENT EVIDENCE TO SUPPORT THE CL AIM. THE EXCUSE OF VILLAGE BEING CRIMINAL AREA IS NOT SUBSTA NTIATED AND IT CANNOT BE JUSTIFIED AS A REASON FOR ABSENCE OF IND EPENDENT EVIDENCE. IV. NONE OF THE WITNESSES TO THE WILL OR BENEFICIAR IES HAVE SEEN THE ASSETS, THEREFORE, THEIR EXISTENCE REMAINS UNSUBSTANTIATED. V. NO WEALTH OR INCOME TAX RETURN WAS FILED BY LAT E SHRI RAM BHAROSEY YADAV OR BENEFICIARIES OF THE WILL. VI. AO & CIT(A) HAVE RIGHTLY APPLIED THE PREPONDERA NCE OF PROBABILITIES AND HUMAN CONDUCT WHILE EXAMINING THE GENUINENESS OF THE WILL. VII. REPORT OF ADI AGRA IS RELIED ON. 8.1. LD DR FURTHER CONTENDS THAT THE CLAIM OF AGRIC ULTURAL INCOME OF THE ASSESSEE IS NOT BASED ON ANY EVIDENCE. AUTHORITIES BELOW HAVE RIGHTLY ESTIMATED THE AGRICULTURAL INCOME OF THE ASSESSEE A ND HER HUSBAND TO ARRIVE AT THE AVAILABILITY OF FUNDS WITH HER. 8.2. APROPOS THE CLAIM ABOUT THE CREDIT IN THE FUND FLOW STATEMENT IN RESPECT OF RS. 8 LACS PROVIDED BY BROTHER YASHPALSI NGH OUT OF THE ASSESSES PAST AGRICULTURAL INCOME SAVINGS, IT IS PLEADED THA T THE SAME IS BASELESS. IF THE ASSESSEE HAD REQUIREMENT OF FUNDS IN THAT CASE SHE WOULD HAVE ASKED THE BROTHER TO RETURN THE SAVINGS INSTEAD OF SELLING HE R AGRICULTURAL LAND. BESIDES ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 26 AS PER THE STATEMENT OF YASHPALSINGH, AGRICULTURAL INCOME WAS REGULARLY SENT TO HIS SITTER. NO EVIDENCE HAS BEEN PRODUCED TO EST ABLISH AS TO WHICH YEAR THESE AGRICULTURAL SAVINGS PERTAIN, THEREFORE, THE ADDITION HAS BEEN RIGHTLY MADE. 8.3. COMING TO THE ADVANCES FOR LAND, LD DR CONTEND S THAT: I. ASSESSEE HAS CLAIMED TO HAVE RECEIVED AMOUNTS O F ADVANCES FOR SALE OF AGRICULTURAL LANDS; FROM SISTE R- UMA YADAV 3.75 LACS; BROTHER-YASHPALSINGH 4.60 LACS; BROTHER IN LAW- RAMESH CHANDRA 5.75 LACS. LIKEWISE FROM ONE SHRI ZI A KHAN 4.68 LACS. II. EXCEPT CONFIRMATION OF SAME DATE I.E. 1-11-200 2 FROM ALL THESE PERSONS, NEITHER ANY AGREEMENT TO SALE NOR AN Y OTHER EVIDENCE HAS BEEN FILED TO SUBSTANTIATE THE PROPOSE D SALE. III. ALL THESE TRANSACTIONS ARE IN CASH AND THESE P ERSONS ARE CLAIMED TO BE AGRICULTURIST. NEITHER THEIR BANK ACC OUNTS NOR ANY OTHER INDEPENDENT CREDIBLE EVIDENCE HAS BEEN BROUGH T ON RECORD. IV. THERE ARE NO DETAILS AS TO WHICH ADVANCE IS FO R ASSESSEE LAND AND WHICH FOR HUSBANDS. 8.4. LD DR THUS PLEADS THAT ALL THE TRANSACTIONS AR E BASED ON SELF CREATED EVIDENCE, WITHOUT SPECIFIC DETAILS AND ON GENERAL A SSUMPTIONS. THE BURDEN TO PROVE CASH CREDITS LIES ON THE ASSESSEE, WHICH IS N OT DISCHARGED. IN THIS EVENTUALITY ADDITIONS HAVE BEEN RIGHTLY MADE. 9. LD COUNSEL IN REJOINDER CONTENDS THAT: (I) THE WILL IS AN INDEPENDENT EVIDENCE WHICH IS CONFIRMED BY AS MANY AS SEVEN PERSONS VIZ. YASHPALS INGH, RAMESHCHANDRA, NAWABSINGH YADAV- EX PRINCIPAL, SURE SH BABU ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 27 YADAV- ADVOCATE, VIMLESH YADAV, BHAWAN CHANDRA. JEE VAN. NONE OF THE STATEMENT HAS BEEN CONTROVERTED BY ADI AGRA OR AO. (II) THE WILL IS DULY EXECUTED, PROPERLY IMPLEMENTE D. ASSESSEE IS LADY AND CANNOT DEMAND EVIDENCE FROM TH E FAMILY BEYOND THIS LIMIT. THEREFORE, THERE IS NO BASIS IN HOLDING THE WILL TO BE FAKE OR BOGUS. ASSESSEE HAS INHERITED TH E AMOUNT BY DUE PROCESS OF LAW, IT CAN NOT BE WISHED AWAY ON RAISING OBJECTIONS ON ASSUMPTIONS. (III) APROPOS AGRICULTURAL INCOME IT IS PLEADED THA T AO HAS NOT DISPUTED THE LAND HOLDINGS OF ASSESSEE AND HER HUSB AND, AGRICULTURAL OPERATIONS ARE REGULARLY HELD BY BROTH ER YASHPALSINGH WHOSE STATEMENT ON OATH IS ON RECORD A ND NOT CONTROVERTED BY ADIT. (IV) THE ESTIMATE HAS BEEN ARRIVED AT ONLY BY APPLY ING COST INFLATION INDEX WHICH IS MERELY A MECHANICAL METHOD USED ONLY FOR THE PURPOSES OF GOVT. PARAMETERS ON DEARNESS B ASED ON CERTAIN COMMODITIES AND CIRCUMSTANCES. THIS MECHANI CAL FORMULA CAN NOT BE APPLIED TO ASSESSES AGRICULTURAL OPERATION WHICH DEPEND ON MANY FACTORS. (V) THE ESTIMATE IS ARBITRARY AND UNJUST, IT IS TRI TE LAW THAT ASSESSES CLAIM SHOULD BE ACCEPTED UNLESS THE CONTRA RY IS PROVED WHOSE BURDEN LIES ON THE DEPARTMENT. THERE BEING NO QUESTION ABOUT THE LAND HOLDING, FERTILITY OF LAND, CASH CRO PS AND REGULAR AGRICULTURAL OPERATIONS AND REASONABLE YIELD OF RS. 1500/- PER BIGHA, THE ESTIMATE OF AUTHORITIES BELOW IS UNJUST, ARBITRARY AND BASELESS. ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 28 (VI) APROPOS ADVANCES IT IS PLEADED THAT ASSESSEE D ISCHARGED HER PRIMARY ONUS OF ESTABLISHING THE IDENTITY, GENU INENESS AND CREDITWORTHINESS OF THE ADVANCES RELATED OPERATION. INVESTIGATIONS WERE ALREADY ENTRUSTED TO ADI AGRA; IF AO HAD ANY DOUBTS ON THE BURDEN DISCHARGED BY THE ASSESSEE , ISSUES ABOUT ADVANCES ALSO SHOULD HAVE BEEN GOT INVESTIGAT E. AO CANNOT TAKE A STAND OF NEITHER INVESTIGATING THE MA TTER NOR REBUTTING THE BURDEN DISCHARGED BY THE ASSESSEE AND GOING AHEAD WITH THE ADDITIONS. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. NOTICES U/S 148 WERE ISSUED TO ASSESSEE FOR ALL THESE YEARS ON THE INFORMATION RECEIVED FROM THE CO-ORDIN ATION CELL. THE ISSUE ABOUT VALIDITY AND GENUINENESS ARE NOT BEFORE US AS THEY SAME HAVE NOT BEEN PRESSED AND ONLY GROUNDS MENTIONED HAVE BEEN PRES SED BEFORE US. 9.1. THE ISSUES REVOLVE AROUND THE ASSESSES FUND F LOW STATEMENT TO SUBSTANTIATE THE SOURCE OF FDRS PURCHASED IN OWN AN D FAMILY MEMBERS NAMES. IT IS PERTINENT TO MENTION THAT AO CHOSE ONL Y TO GET THE ISSUE ABOUT WILL AND AGRICULTURAL HOLDINGS TO BE INVESTIGATED B Y THE ADI AGRA, REPORT WAS ACCORDINGLY SUBMITTED DATED. 21-1-2003 ON THESE ASPECTS. 9.2. COMING TO THE ISSUE ABOUT GENUINENESS OF THE W ILL, LEARNED COUNSEL FOR THE ASSESSEE HAS COUNTERED THE OBSERVATIONS OF AO AS MENTIONED ABOVE. IN OUR CONSIDERED VIEW THE CONTENTION OF LEARNED CO UNSEL FOR THE ASSESSEE HAS SUBSTANCE INASMUCH AS INDIAN LAW DOES NOT PRESC RIBE REGISTRATION OF THE WILL, IT SHOULD BE IN WRITING, ATTESTED BY TWO WITN ESS; THERE IS NO REQUIREMENT OF ANY REGISTRATION OR NOTARIZATION THEREOF. IN THI S CASE THE WILL IS IN WRITING ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 29 AND DULY ATTESTED BY TWO WITNESSES, THEREFORE, NO A DVERSE INFERENCE CAN BE DRAWN ON THE ASPECT THAT WITNESS DID NOT ADVICE FOR REGISTRATION OF THE SAME. 9.3. APROPOS THE ISSUE OF FLOW OF SIGNATURE OF LATE SHRI RAM BHAROSEY LAL YADAV, IN OUR VIEW, THE AO IS NOT AN HANDWRITING EX PERT, THEREFORE, THE OBSERVATION AMOUNTS TO A SURMISE. BESIDES, LATE S HRI RAM BHAROSEY LAL YADAV IS NOT DISPUTED TO BE A FREEDOM FIGHTER AND A N AFFLUENT LANDLORD, HE IS HELD TO BE MARGINALLY QUALIFIED. IN OUR VIEW, FLOW OF WRITING AS POINTED OUT BY AO CANNOT BE HELD TO BE DETERMINATIVE TO DISCARD THE WILL, IN THE ABSENCE OF ANY OPINION OF THE HANDWRITING EXPERT. 9.4. ADI HAS EXAMINED THE WITNESSES SHRI NAWAB SING H YADAV, EX- PRINCIPAL AND SHRI SURESH BABU YADAV ADV., THEY HA VE DEPOSED THE WILL TO BE GENUINE, BEARING SIGNATURES OF DECEASED AND ABOU T THE DISTRIBUTION OF ASSETS. THIS FACT HAS FURTHER BEEN CONFIRMED BY THE SONS OF THE DECEASED AND THE SERVANTS WHO ARE ALSO BENEFICIARIES OF THE WILL . IN OUR VIEW, THIS WRITTEN RECORD AND STATEMENTS CANNOT BE IGNORED WITHOUT POI NTING OUT ANY CONTRADICTIONS OR INCONSISTENCIES THEREIN. 9.5. THE ASSESSEE CANNOT BE HELD RESPONSIBLE FOR TH E NON-FILING OF INCOME- TAX AND WEALTH-TAX RETURNS BY THE DECEASED AND HIS DAUGHTERS AFTER THE DISTRIBUTION OF THE ASSETS OF THE DECEASED, CONSEQ UENTLY, NO ADVERSE INFERENCE CAN BE DRAWN ON THIS COUNT. THE FACT THAT LATE SHRI RAM BHAROSEY LAL YADAV CONSTRUCTED A THREE STOREYED VILLAGE HOUS E IN 1981 CANNOT BE HELD AS ASSUMPTION THAT HE MUST HAVE EXHAUSTED ALL THE S AVINGS EVEN AFTER A PERIOD OF 12 YEARS IN 1993. 9.6. IN OUR CONSIDERED OPINION, ON THE BASIS OF MAT ERIAL EXISTING ON RECORD IT CANNOT BE HELD THAT WILL WAS FAKE OR AN AFTER T HOUGHT. AOS ADVERSE INFERENCE IS NOT BASED ON ANY COGENT EVIDENCE BUT ON ASSUMPTIONS AND ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 30 PROBABILITIES. IN OUR CONSIDERED VIEW WHEN THE DIRE CT EVIDENCE IS AVAILABLE THE ISSUE CANNOT BE DECIDED ON ASSUMPTION WITHOUT C ONTRADICTING THE STATEMENTS ON RECORD. CONSEQUENTLY THE ADDITIONS IN RESPECT OF THE AMOUNT ARISING OUT OF THE WILL ARE DELETED. 9.7. COMING TO THE SECOND ISSUE I.E. ESTIMATION OF AGRICULTURAL INCOME, ADIT(INV.), AGRA INVESTIGATED ABOUT THE LAND HOLDIN GS OF THE ASSESSEE AND HER HUSBAND, WHICH REVEALED THAT THE ASSESSEE OWNED ABOUT 80 BIGHAS OF LAND OUT OF THE SOURCES MENTIONED THEREIN. STATEMENT OF SHRI YASHPAL SINGH WAS RECORDED, AS MENTIONED ABOVE, WHO STATED THAT THE A GRICULTURAL PRODUCES, LIKE WHEAT, POTATO, LAHSUN, PEAS, MUSTARD, CHANA ETC. WE RE GROWN ON FERTILE LAND. 9.8. LEKHPAL OF VILLAGE STATED THAT NET SAVINGS PER BIGHA REASONABLY CAME TO ABOUT RS. 1500/- AFTER MEETING THE AGRICULTURAL EXPENSES. THE ADITSREPORT ENDS WITH A NOTE, KEEPING IN VIEW THE STATEMENT OF SHRI YASHPAL SINGH AND THE REPORT OF THE LEKHPAL, NET SA VING OF RS. 1500/- PER BIGHA PER ANNUM APPEARS TO BE REASONABLE. THE REPO RT OF THE INVESTIGATING OFFICER ITSELF SUGGEST THAT AGRICULTURAL INCOME AT RS. 1500/- PER BIGHA WAS REASONABLE. WE SEE NO MATERIAL ON RECORD TO GO BEYO ND THE REPORT OF THE ADIT ON THIS ASPECT. AO HAS ADOPTED A YARDSTICK OF ESTIMATING THE AGRICULTURAL INCOME ON THE BASIS OF COST INFLATION INDEX WHICH, IN OUR CONSIDERED VIEW, MAY BE USEFUL FOR CAPITAL GAIN PU RPOSES BUT CANNOT BE A YARDSTICK FOR ESTIMATING THE ASSESSEES AGRICULTUR AL INCOME. 9.9. IT EMERGES FROM THE RECORD THAT THE ASSESSEE O WN 80 BIGHAS OF LAND AND HER HUSBAND 90 BIGHAS AGGREGATING 170 BIGHAS. F ROM THE REPORT OF LEKHPAL AND ADIT, AVERAGE NET AGRICULTURAL INCOME I S REASONABLY ESTIMATED AT RS. 1500/- PER BIGHA WHICH WORKS OUT TO RS. 2,55 ,000/-. IN OUR VIEW, THE ESTIMATE AS SUGGESTED BY LEKHPAL AND ADIT (AGRA, IS REASONABLE. THE ONE ADOPTED BY AO IS PURELY MECHANICAL BASED ON COST IN FLATION INDEX. THE RELIEF ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 31 GIVEN BY LD. CIT(APPEALS) IS NOT ON ANY CONSISTENT BASIS AND CANNOT BE CALLED A BETTER ESTIMATE AS COMPARED WITH FIELD INV ESTIGATION. IN VIEW OF THESE FACTS WE ARE INCLINED TO ALLOW THE AGRICULTUR AL INCOME AS CLAIMED BY ASSESSEE. THIS GROUND IS ALLOWED. 9.10. APROPOS THIRD ISSUE I.E. THE ADVANCES RECEIVE D QUA THE ALLEGED AGREEMENT TO SELL THE LAND, IN OUR CONSIDERED VIEW, WHEN THE MATTER ABOUT WILL AND AGRICULTURAL INCOME WAS REFERRED TO ADIT ( INV.), IT WAS DESIRABLE TO REFER ADVANCE FROM SALE OF LAND ALSO BY SOME IN VESTIGATION. AS THE RECORD STANDS, THERE ARE CONFIRMATIONS OF SMT. RAMA YADAV AND ZIA KHAN ALONG WITH CONFIRMATIONS AND STATEMENT OF , SHRI YASHPAL SINGH (BROTHER), SHRI RAMEESH CHAND YADAV (BROTHER-IN-LAW). ADVERSE INFER ENCE DRAWN BY THE AO RESTS ONLY ON THE BASIS THAT ALL THE TRANSACTIO NS ARE IN CASH AND THESE PERSONS DO NOT HAVE SUFFICIENT CREDITWORTHINESS. IT HAS BEEN VEHEMENTLY ARGUED THAT NEITHER THE CONFIRMATIONS ARE CONTROVER TED NOR THE PERSONS WERE CALLED OR ASKED QUESTIONS DURING INVESTIGATIONS IN THIS RESPECT. EXCEPTING DOUBTING THE CONFIRMATIONS, ADDITIONS HAVE BEEN MAD E WITHOUT FURTHER INQUIRIES. 9.11. SIMILARLY, THE ISSUE ABOUT AMOUNT OF RS. 8 LA CS, CASH GIVEN BY SHRI YASHPAL SINGH TO HER SISTER OUT OF ARREARS OF PAST AGRICULTURAL INCOME, IS ALSO TO BE EXAMINED BY TAKING APPROPRIATE STATEMENT OF SHRI YASHPAL SINGH. THE CONFIRMATION AVAILABLE ON RECORD ALONG WITH THE AGR ICULTURAL LAND HOLDINGS OF THESE PERSONS HAS BEEN REJECTED ON THE BASIS OF THE SE ADVERSE INFERENCES. IN OUR VIEW, WHEN THE CONFIRMATIONS, CREDITORS AND THE IR LAND RECORDS ARE AVAILABLE AND THE MATTER WAS PARTLY REFERRED FOR I NVESTIGATIONS, IT WOULD HAVE BEEN DESIRABLE THAT THEY ARE EXAMINED TO ASCERTAIN THE BONA FIDES OF THESE ADVANCES. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE ARE INCLINED TO SET ITA NOS. 3558 TO 3563/DEL/11 RAMA YADAV 32 ASIDE THESE ISSUES BACK TO THE FILE OF AO TO DECID E THE SAME AFRESH IN ACCORDANCE WITH LAW. WE ORDER ACCORDINGLY. 10. IN THE RESULT, ASSESSEES APPEALS ARE PARTLY AL LOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 15-06-20 12. SD/- SD/- [K.G. BANSAL] [R.P. TOLANI] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 15-06-2012. MP COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES