Chittaranjan Das, Rourkela V. ITO, Rourkela

ITA 361/CTK/2010

• Counselvise Citation: 36122114 RSA 2010
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 19-07-2012
• Assessment Year: 1988-1989
• Appeal Filed On: 18-10-2010
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTYDR
• Assessee Lawyers: D PATI
• Keywords: Unexplained cash credit; Salary income; Source of fund; Valuation report

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , HONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO S . 361,362,363,364, 365,366,367,368,369 AND 370/CTK.2010 ( / A YS 1988 - 89, 1989 - 90,1990 - 91 AND 1991 - 92) SRI CHITTARANJAN DAS, M - 21, CHHEND COLONY, ROURKELA PAN: AFJPD 66 53 A - - - VERSUS - INCOME - TAX OFFICER, WARD 1, ROURKELA. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI D.PATI, AR / FOR THE RESPONDENT: / SHRI . S.C.MOHANTY,DR / DATE OF HEARING: 19.07.2012 / DATE OF PRONOUNCEMENT: 14.08.2012 / ORDER PER BENCH . THESE APPEALS FOR THE AYS 1988 - 89, 1989 - 90,1990 - 91 AND 1991 - 92 ARE PREFERRED BY THE ASSESSEE ON THE ORDERS OF THE LEARNED CIT(A) WHEN FOR THE AY 1988 - 89 APPE ALS HAVE BEEN PREFERRED BESIDES THE QUANTUM ADDITION FOR PENALTIES LEVIED U/SS.271(1)(A), 271(1)(C) AND 273 , FOR THE ASSESSMENT YEAR 1989 - 90 APPEAL , BESIDES THE QUANTUM IS ON PENALTY LEVIED AND CONFIRMED BY THE LEARNED CIT(A) U/S.271(1)(C) , FOR THE ASSESS MENT YEAR 1990 - 91 APPEAL HAS ALSO BEEN PREFERRED AGAINST LEVY OF PENALTY U/S.271(1)(C)AND SO ALSO FOR THE ASSESSMENT YEAR 1991 - 92. 2. WE PROPOSE TO TAKE OF ALL THESE APPEALS TOGETHER FOR THE SAKE OF CONVENIENCE AND BREVITY AS THE ISSUE REMAINS THE SAME INS OFAR AS THE ISSUE I.T.A.NOS. 361,362,363,364, 365,366,367,368,369 AND 370/CTK.2010 2 HAS BEEN DEALT WITH BY THE AO AND THE LEARNED CIT(A) ON RESTORATION BY THE LEARNED CIT(A) AS WELL AS THE TRIBUNAL EARLIER. 3. THE BRIEF FACTS AS HAVE BEEN BROUGHT ON RECORD ARE THAT THE ASSESSEE IS AN EMPLOYEE EARNING SALARY INCOME DURING THE IMPUGNED AYS WHEN HE WAS SUBJECTED TO SCRUTINY ASSESSMENTS ON THE BASIS OF THERE BEING THE DIFFERENCE BETWEEN THE COST OF CONSTRUCTION DECLARED BY THE ASSESSEE VIS - - VIS THE COST DETERMINED BY THE ASSESSING OFFICER IN RESPECT OF HOUSE PROPERTY. IN SUP PORT OF FUNDS UTILIZED FOR INVESTMENT, THE ASSESSEE PRODUCED RELEVANT DOCUMENTARY EVIDENCES OF PERSONAL LOANS TAKEN FROM FRIENDS AND RELATIVES AND OTHERS. WITH RESPECT TO THE PARTICIPATION OF GENERATION OF AGRICULTURAL INCOME WHICH BELONG ED TO THE FAMILY W ITHOUT ANY DOCUMENTATION. THE ASSESSING OFFICER ASKED THE ASSESSEE TO PROVE THE GENUINENESS AND CREDITWORTHINESS OF THE LOAN CREDITORS WHICH THE ASSESSEE FAILED TO COMPLY BUT FILED THE COPIES OF THE LOAN AGREEMENTS WHICH THE ASSESSING OFFICER FOUND DEFECTI VE INSOFAR AS THE ASSESSEE ON THE RESTORATION BY THE TRIBUNAL COULD NOT GET A PROPER RESPONSE FROM THE LOAN CREDITORS WHEN THE AO TRIED TO HOLD AN OPINION THAT THE ASSESSEE IS NOT ABLE TO ESTABLISH THE CASH CREDITS TO BE CONFIRMED FOR TAXATION U/S.68. FOR ALL THE YEARS, THE ASSESSEE AS THE MATTER PROGRESSED SUBSEQUENTLY GOT DELAYED INSOFAR AS THE ASSESSEE HAD BEEN INSISTING THAT HE HAD ESTABLISHED THE ONUS U/S.68 BY ESTABLISHING THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE LOAN CREDITORS AND AS THE TOTAL INVESTMENT COMPRISED ALL THE PART LOAN CREDITORS BEING THE RELATIVES WHO HAD AGRICULTURAL INCOME AS A FAMILY WHICH AGRICULTURAL INCOME EMANATING FROM LAND HOLDING OF MORE THAN 30 ACRES WAS NOT DISPUTED BY THE ASSESSING OFFICER. THE LEARNED COUNSEL HAS FILED A BULKY PAPER BOOK WHEREIN HE HAS FILED THE VARIOUS CORRESPONDENCES RESTING WITH THE ASSESSING OFFICER AND THE I.T.A.NOS. 361,362,363,364, 365,366,367,368,369 AND 370/CTK.2010 3 LEARNED CIT(A) WITH RESPECT TO THE DIRECTION OF THE TRIBUNAL IN TRYING TO ESTABLISH WHETHER THE CASE CREDITS CAN BE TAXED IN THE HANDS OF THE ASSESSEE INSOFAR AS THE ASSESSEE WAS NOT TO EXPLAIN THE VALUATION OF THE DVO. ACTUAL COST OF CONSTRUCTION INCURRED BY IT ON THE BASIS OF ITS OWN SOURCE OF INCOME ALONG WITH THE AMOUNTS BORROWED WHICH AMOUNTS WERE ON THE BASIS OF AGRICULTURAL INCOM E BELONGING TO THE ASSESSEE ON ACCOUNT OF UNDIVIDED SHARE OF INCOME WHICH IT HAD RENDERED FOR RATE PURPOSES. THE LEARNED COUNSEL FOR THE ASSESSEE HAS ALSO RELIED ON THE VARIOUS JUDICIAL PRONOUNCEMENTS WITH RESPECT TO THE APPEARANCE BEFORE THE AUTHORITIES O N THE SUMMONS ISSUED INSOFAR AS SECTION 68CLEARLY EMBARKS UPON THE FACT THAT ONCE THE ONUS HAS BEEN DISCHARGED, THE ASSESSING OFFICER HAS TO MAKE A FAIR ASSESSMENT BEYOND WHAT THE ASSESSEE COULD DISCHARGE. THE LEARNED COUNSEL FOR THE ASSESSEE HAS ALSO FILE D CITATIONS RELATING TO THE EXEMPTION OF AGRICULTURAL INCOME U/S.10(1) WHICH HAD ALSO DENIED BY THE ASSESSING OFFICER PERTAINING TO THE ASSESSEES SHARE WHEN THE JOINT FAMILY PROPERTY , WITHOUT ANY DIVISION , WAS ACCEPTABLE TO IT ON THE BASIS OF KHATIYANS WH ICH INCLUDED THE TOTAL INCOME BELONGING TO THE FAMILY INCLUDING SALARY ETC., WHICH ARE SUFFICIENT TO ESTABLISH THAT THE OTHER FAMILY MEMBERS WHO ALSO CONTRIBUTE FOR THE CONSTRUCTION OF THE PROPERTY CANNOT BE HELD AS UNEXPLAINED CASH CREDIT EVEN AFTER RESTO RATION BY THE LEARNED CIT(A) AND THE TRIBUNAL TO GIVE A SPECIFIC FINDING. IN THE BULKY PAPER BOOK, THE LEARNED COUNSEL FOR THE ASSESSEE HAS FILED THE FOLLOWINGS. I . LETTER DTD.18.09.2006 BY THE ASST. VALUATION OFFICER A LONG WITH VALUATION REPORT . II . LETTER OF TH E APPELLANT TO THE INCOME TAX OFFICER. III . ASSESSMENT ORDER FOR THE ASSESSMENT Y EAR 1988 - 89, 89 - 90, 90 - 91 AND 9 1 - 92 IV . LETTER DTD.16.09.1998, 21.12.1999 & 25.08.2000 OF THE APPELLANT SUBMITTED TO THE L D. CIT. V . APPEAL ORDER PASSED BY THE L D. CIT FOR THE ASSESSMENT YEAR 1988 - 89, 89 - 90,90 - 91 AND 91 - 92. I.T.A.NOS. 361,362,363,364, 365,366,367,368,369 AND 370/CTK.2010 4 VI . ORDER PASSED IN ITA NO.288/CTK/2002 AND ITA NO.376, 377 & 378/CTK 2002 PASSED BY THE ITAT. VII . AFFIDAVIT OF THE LOAN CREDITORS AND DONORS. VIII . INCOME CERTIFICATE ISSUED BY THE TAHASILDAR. IX . LETTER DTD.13.09.2004 ISSUED BY THE ID. ITO. X . LETTER DTD.24.09.2004, 11.10.2004 & 28.10.2005 OF THE APPELLANT TO THE ID. ITO. XI . STATEMENT OF THE LOAN CREDITORS RECORDED BY THE LD. ITO. XII . ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 1988 - 89, 89 - 90, 90 - 91 AND 91 - 92. XIII . APPEAL ORDER PASSED BY THE LD. CIT FOR T HE ASSESSMENT YEAR 1988 - 89, 89 - 90, 90 - 91 AND 91 - 92. 4. THE LEARNED COUNSEL FOR THE ASSESSEE INITIATING HIS ARGUMENTS SUBMITTED THAT THE CASH FLOW STATEMENT SUBMITTED BY THE ASSESSEE WOULD RELATE THAT THE AMOUNT SOUGHT TO BE TAXED AS INVESTMENT IN THE COST OF CONSTRUCTION FOR THE IMPUGNED AYS IS SUFFICIENT ON THE BASIS OF BORROWINGS FROM INDIVIDUALS WHO ARE RELATED TO THE ASSESSEE WHEN THE INVESTMENT OF THE DETAIL EARNING IS MUCH MORE THAN THE INVESTMENT ALONE IN THE COST OF CON STRUCTION. IT WAS NOT A CASE OF THE AO TO DISALLOW THE CASH CREDITS MAINLY BECAUSE IT FORM THE COST OF CONSTRUCTION WHEN UNDISPUTED FACT WAS THAT THE ASSESSEE HAD ALSO INVESTED FOR PERSONAL EXPENSES, BANK DEPOSITS, LIC, GPF ETC. HE POINTED OUT THAT THE LOANS CONTINUED TO BE REPAID WHI CH WAS CONSIDERED OTHERWISE B Y THE ASSESSING AUTHORITIES HOLDING A VIEW THAT THE CASH CREDIT HAS TO BE REPAID TO BE ALLOWED AS CASH CREDIT. HE POINTED OUT THAT OBVIOUSLY THE AMOUNT HAS BEEN BORROWED FROM THE CLOSE RELATIVES AND FRIENDS FOR INVESTMENT IN TH E COST OF CONSTRUCTION , IT WAS TO BE REPAID ONLY AFTER THE ASSESSEE WAS TO RETIRE AND RECEIVE LUMP SUM AMOUNT FROM THE EMPLOYMENT IN THE FORM OF GRATUITY, PROVIDENT FUND AND COMMUTED PENSION. THE INVESTMENT BY THE ASSESSEE IN THE VARIOUS ASSETS OVER AND AB OVE THE COST OF CONSTRUCTION THEREFORE WAS TO BE VIEWED IN LIBERAL SENSE AND NOT TO I.T.A.NOS. 361,362,363,364, 365,366,367,368,369 AND 370/CTK.2010 5 CONFINE ITSELF AS A HARNESS. I N RESPECT TO THE INDIVIDUAL LOAN CREDITORS HE SUBMITTED AS UNDER : ASSESSMENT YEAR 1988 - 89 : (A). LATE L3.N DAS S/O LATE CHITAMANI DAS OF VILL AGE TINA P.O. KULIGAN, P.S. KHANTAPADA I)IST BALASORE IS THE OWN BROTHER OF THE ASSESSEE. HE IS A RETIRED GOVT. EMPLOYEE AND ALSO AN AGRICULTURIST. HE HAS PAID A SUM OF RS.40,000/ - TO THE ASSESSEE BY MONEY TRANSFER FROM BALASORE ON 8.9.1987 AND IT WAS RE CEIVED BY THE ASSESSEE ON 14.09.87 IN S/B ACCOUNT NO. 6592 ON CENTRAL BANK , ROURKELA. ( ANNEXURE 4 SERIES OF PAGE 36) THE LOAN CREDITOR HAS EXPIRED. LEGAL H EIR OF THE DECEASED ( ..) SMT PARBATI DAS (D AUGHTER) APPEARED BEFORE THE LD A.O. AND STATEMENT WAS R ECORDED FROM HER. SHE CONFIRMED ABOUT THE LOAN GIVEN BY HER FATHER TO THE ASSESSEE ( ANNEXURE 12 SERIES PAGE 78). SMT PARHATI D AS HAS GIVEN THE AFFIDAVIT ON 07.08.2004 ALSO ADMITTED ABOUT THE LOAN GIVEN TO THE A SSESSEE ( ANNEXURE 7 SERIES PAG E 59 ). B. SRI SN. DAS BELONGS TO VILLAGE TINA, P.O. BARUNSINGH, PS. KHANTAPADA, D IST - BALASORE IS THE CAUSIN UNCLE OF THE ASSESSEE. LATE S N DAS WAS A RETIRED POSTAL EMPLOYEE. LATE S.N DAS HAD GIVEN A LOAN OF RS.30,000/ - BY MONEY TRANSFER FROM BALASORE ON 22.04.87 WHI CH WAS CREDITED III S/B ACCOUNT NO. 6592 OF THE ASSESSEE MAINTAINED IN CENTRAL BANK ROURKELA (ANNEXURE 4 SERIES PAGE 36). SMT PREMALATA DAS WIFE OF LATE S N DAS APPEARED BEFORE THE LD A.O. AND HER STATEMENT WAS RECORDED BY THE LD A.O . SMT PREMALATA DAS AD MITTED THE PAYMENT OF LOAN AND STATED THAT THE LOAN AMOUNT WAS GIVEN TO THE ASSESSEE OUT OF THE RETIRAL BENEFITS RECEIVED BY HER HUSBAND.(ANNEXURE 12 SERIES PAGE 78). SMT. PREMALATA DAS HAS GIVEN AFFIDAVIT ALSO ON 07.08.2004 ADMITTING ABOUT THE LOAN GIVEN TO THE ASSESSEE ( ANNEXURE 7 SERIES PAGE 61). I.T.A.NOS. 361,362,363,364, 365,366,367,368,369 AND 370/CTK.2010 6 AGRICULTURAL INCOME FROM HUF . 2. THE ASSESSEE IS A MEMBER OF HUF CONSISTING OF 5 CO - PARCENERS. THIRTY ACRES OF AGRICULTURAL LANDS BELONGS TO THE HUF FAMILY. SUCH LAND YIELDS INCOME OUT OF THE USE FOR PADDY CULT IVATION, COCOANUT PLANTATION, SEASONAL FOODS APART FROM GROWING VEGETABLES, FISHERIES AND DIARY PRODUCTS. THE LAND ARE IRRIGATED AND TRIPLE CROPLING. THE ASSESSEE HAS SUBMITTED THE RECORDS OF RIGHT DISPOSING THE AREA , MOZA, KHATAS NO. AND AREA OF THE LAND FOR THE ENTIRE THIRTY ACRE BEFORE THE T4D. A.O. THIS ITSELF WOULD PROVE THAT THE TOTAL INCOME FROM THE AGRICULTURAL PROPERTY WOULD NOT BE LESS THAN 75,000/ - PER ANNUM AND THE ASSESSEE HAS DERIVED THE INCOME OF RS. 15,000/ - AS HIS SHARE. (ANNEXURE 10PAGE6 6 ) ASSESSMENT YEAR 1989 - 90 : SRI N.N DAS IS THE OWN BROTHER OF THE ASSESSEE . SRI N.N DAS WAS WORKING AS JR. ENGINEER, P.W.D AND WAS IN GOVT SERVICE. HE HAS PAID A SUM OF R.S.20,000/ - TO THE ASSESSEE. SRI N DAS COULD NOT APPEAR BEFORE THE LD. A.O DUE TO HIS SERIOUS ILLNESS. AN AFFIDAVIT WAS GIVEN BY SRI N. DAS ABOUT THE PAYMENT OF LOAN VIDE DTD. 21.04.98 CONFIRMING THE AMOUNT GIVEN ON LOAN TO THE ASSESSEE. B. SRI MANORANJAN DAS IS THE BROTHER OF THE ASSESSEE WHO IS GOVERNMENT DOCTOR. THE WIFE OF MANORANJAN DA S IS ALSO A GOVERNMENT DOCTOR. SRI M.DAS IN HIS STATEMENT CONFIRMED ABOUT THE LOAN GIVEN TO HIS TO THE ASSESSEE. HE STATED THAT HE ADVANCED THE CASH LOAN OUT OF HIS SALARY SAVINGS AND SAVINGS OF HIS WIFE WHO IS ALSO A GOVERNMENT DOCTOR.( ANNEXURE 12 SERIES PAGE NO.82). C. SRI K R DAS IS ALSO THE BROTHER OF THE ASSESSEE AND WORKING AS JR. ENGINEER WITH SAIL, R.S.P, ROURKELA. HE HAS APPEARED THE LD. A.O AND STATED THAT HE HAS GIVEN LOAN AMOUNT OF LB. 10,000/ - TO THE ASSESSEE. HE HAS STATED THAT SUCH LOAN WAS GIVEN TO THE ASSESSEE OUT OF THE LOAN AMOUNT TAKEN BY HIM FROM CO - OPERATIVE SAIL, R.S.P ( ANNEXURE 12 SERIS PAGE83). SRI I.T.A.NOS. 361,362,363,364, 365,366,367,368,369 AND 370/CTK.2010 7 GYANARANJAN DAS. I - IC HAS GIVEN AN AFFIDAVIT ALSO. (ANNEXURE 7 SERIES PAGE 57.) D. SRI G.R D AS ALSO THE BROTHER OF THE ASSESSEE AND WAS WORKING AS AN ENGINEER WITH ORISSA STATE ELECTRICITY BOARD. HE HAS GIVEN LOAN AMOUNT OF RS.L0,000/ - OUT OF HIS SALARY SAVINGS. HE HAS SUBMITTED THE AFFIDAVIT (ANNEXURE 7 SERIES PAGE 58). HE HAS SUBMITTED WRITTEN CONFIRMATION ADMITTING ABOUT THE LOAN GIVEN BY HIM TO THE ASSESSEE. 2. AGRICULTURAL INCOME FROM HUF. THE ASSESSEE IS A MEMBER OF HUF CONSISTING OF 5 CO - PARCENERS. THIRTY ACRES OF AGRICULTURAL LANDS BELONGS TO THE HUF FAMILY. SUCH LAND YIELDS INCOME OUT OF THE USE FOR PADDY CULTIVATION, COCOANUT PLA NTATION, SEASONAL GOO DS APART FROM GROWING VEGETABLES, FISHRIES AND DIARY PRODUCTS. THE LAND ARE IRRIGATED AND TRIPLE CROPPING. THE ASSESSEE HAS SUBMITTED THE RECORDS OF RIGHT DISPOSING THE AREA, MON, KHATAS NO. AND AREA OF THE LAND FOR THE ENTIRE THIRTY A CRE BEFORE THE LD. A.O. THIS ITSELF WOULD PROVE THAT THE TOTAL INCOME FROM THE AGRICULTURAL PROPERTY WOULD NOT BE LESS THAN 75,000/ - PER ANNUM AND THE ASSESSEE HAS DERIVED THE INCOME OF RS. 15,000/ - AS HIS SHARE. (ANNEXUR E - 10 PAGE 66). ASSESSMENT YEAR 19 90 - 91: A. SRI S.C D AS IS THE BROTHER OF THE ASSESSEE WHO WAS WORKING WITH FE RTILIZER CORPORATION OF INDIA, TA L CHER. HE HAS GIVEN A LOAN OF RS.40,000/ - TO THE ASSESSEE . THE SAID LOAN AMOUNT WAS GIVEN OUT OF THE LOAN AMOUNT OUT FOR THE WITHDRAWAL FROM THE G PF ACCOUNT OF RS.42,000/ - . HE HAS SUBMITTED THE AFFIDAVIT DISCLOSING ABOU T THE LOAN GIVEN TO THE ASSESSEE. HE HAS BEFORE THE LD. A.O AND STATED THAT HE IS WORKING IN GOVT. SERVICE AS ASSISTANT GRADE II (0 ) PRESENTLY POSTED AT RAYAGADA. HE HAS STATED TO HAVE GIVEN THE LOAN TO THE ASSESSEE IN CASH OUT OF THE RECEIPT OF ARREAR AND CPF WITHDRAWAL. (ANNEXLJRE 2 SERIES PAGE 85). I.T.A.NOS. 361,362,363,364, 365,366,367,368,369 AND 370/CTK.2010 8 B. AGRICULTURAL INCOME FROM HUF. THE ASSESSEE IS A MEMBER OF HUF CONSISTING OF 5 CO - PARCENERS. THIRTY ACRES OF AGRICULTURAL LANDS BELONG S TO THE HUF FAMILY. SUCH LAND YIELDS INCOME OUT OL THE USE FOR PADDY CULTIVATION, COCOANUT PLANTATION, SEASONAL LODS APART FROM GROWING VEGETABLES, FISHRIES AND DIARY PRODUCTS. THE LAND ARE IRRIGATED AND TRIPLE CROP LING . THE ASSESSEE HAS SUBMITTED THE REC ORDS OF RIGHT DISPOSING THE AREA, MOZA, KHATAS NO. AND AREA OF THE LAND FOR THE ENTIRE THIRTY ACRE BEFORE THE LD. A.O. THIS ITSELF WOULD PROVE THAT THE TOTAL INCOME FROM THE A GRICULTURAL PROPERTY WOULD NOT B E LESS THAN 75,000/ PER ANNUM AND THE ASSESSEE HAS DERIVED THE INCOME OF RS. 1 5,000/ - AS HIS SHARE. (ANNEXURE 10 PAGE 66). ASSESSMENT YEAR 1991 - 92 : A. SRI M.K.MOHANTY HAS GIVEN A LOAN OF RS.20,000 TO THE ASSESSEE. SRI M.K.MOHANTY NOW SUFFERING FROM CANCER AND IS UNDER HOSPITALIZATION. SRI M.K.MOHANTY IS A BUSINESSMAN. IN THE AFFIDAVIT DTD. 20.07.98 HE HAS STATED THAT HE HAS GI VEN THE LOAN OF RS. 20,000/ - VI DE BEARER CHEQUE NO. 8441 DTD. 17.06.90 OF UNITED B ANK OF INDIA. THE ASSESSEE HAS RETURNED A SUM OF RS.10,000/ - TO SRI MOHANTY. 13. AGRICULTURAL I NCOME FROM HUF. THE ASSESSEE IS A MEMBER OF HUF CONSISTING OF 5 CO - PARCENERS. THIRTY ACRES OF AGRICULTURAL LANDS BELONGS TO THE HUF FAMILY. SUCH LAND YIELDS INCOME OUT OF THE USE FOR PADDY CULTIVATION, COCOANUT PLANTATION, SEASONAL FOODS APART FROM GROWIN G VEGETABLES, FISHRIES AND DIARY PRODUCTS. THE LAND ARE IRRIGATED AND TRIPLE CROPPING . THE ASSESSEE HAS SUBMITTED THE RECORDS OF RIGHT DISPOSING THE AREA, MOZA, KHATAS NO. AND AREA OF THE LAND FOR THE ENTIRE THIRTY ACRE BEFORE THE LD. A.O. THIS ITSELF WOU LD PROVE THAT THE TOTAL INCOME FROM THE AGRICULTURAL PROPERTY WOULD NOT BE LESS THAN 75,000/ - PER ANNUM AND THE ASSESSEE HAS DERIVED THE INCOME OF RS.15,000/ - AS HIS SHARE.(ANNEXURE 10 PAGE 66 ) I.T.A.NOS. 361,362,363,364, 365,366,367,368,369 AND 370/CTK.2010 9 5. THE LEARNED DR OPPOSED THE CONTENTION OF THE LEARNED COUNSE L AND ARGUED IN THE LINE OF FINDINGS OF THE AUTHORITIES BELOW. HE SUBMITTED THAT THE ASSESSEE HAD SUBMITTED ONLY THE XEROX COPIES OF THE LOAN AGREEMENTS AND THE STATEMENTS TAKEN APPEARED TO BE TUTORED. THE DEPONENTS DID NOT APPEAR TO BE MAN OF MEANS. IT WA S OPINED THAT THEY COULD NOT ADVANCE SUCH AMOUNTS. THE AGRICULTURAL INCOME WAS ONLY SUPPORTED BY TASHILDAR CERTIFICATE, NO OTHER DOCUMENTARY EVIDENCE WAS PRODUCED. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE IMPUGNED ORDERS OF THE AUTHORITIES BE LOW AND THE MATERIAL AVAILABLE ON RECORD. ON CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE INCLINED TO HOLD THAT MUCH WATER HAS FLOWN AFTER THE TRIBUNALS DIRECTION TO THE AO OR THE LEARNED CIT(A) WHICH TIME HAS TAKEN ITS TOLL INSOFAR AS THE ASSESSEE COULD NOT GENERATE MORE EVIDENCE AS REQUIRED BY THE AUTHORITIES BELOW ON THEIR DOUBTS AND OPINION . THE INITIATION OF HOLDING THE CASH CREDITS WAS ISOLATING THE COST OF CONSTRUCTION WHICH HAS NOT BEEN INFLATED BY THE DVO. IN OTHER WORDS, THE D VO HAS VALUED THE PROPERTY SAME AS DECLARED AS INVESTED BY THE ASSESSEE. IT BECOMES AN UNDISPUTED FACT THAT THE AMOUNT INVESTED THEREFORE WAS FROM KNOWN SOURCES OF INCOME WHICH WAS TO BE EXPLAINED BY THE ASSESSEE. IT WAS NEVER THE CASE OF THE ASSESSEE TO E STABLISH CASH CREDITS BEING LOANS FROM FRIENDS AND CLOSE RELATIVES WHO WERE ALSO CONTRIBUTING AND EARNING INCOMES ON THEIR OWN AS WELL AS FROM AGRICULTURE PRODUCTS WHICH HAVE BEEN DULY CERTIFIED BY THE TASILDAR IN THE NAME OF THE ASSESSEES GRANDFATHER AND BROTHERS. THE LOAN CREDITORS THEREFORE BECOME FRIENDLY LOANS AND ADJUSTMENT BETWEEN THE FAMILY WHEN NO BOOKS OF ACCOUNT ARE MAINTAINED BY THE ASSESSEE TO EITHER CLAIM THE LOANS OR NOT HOLD THE LOANS WORTH REPAYMENT WHICH THE LEARNED DR AND THE LEARNED CIT (A) HAVE BEEN I.T.A.NOS. 361,362,363,364, 365,366,367,368,369 AND 370/CTK.2010 10 INSISTING THAT THE ASSESSEE HAS NOT SCRUPULOUSLY FOLLOWED AS PER THE AGREEMENTS . WE ARE UNABLE TO SATISFY OURSELVES TO THIS PROPOSITION LEADING TO THE ANALYSIS THAT THE LOAN CREDITS WERE WORTHY OF ADDITION U/S.68. THE LOAN CREDITOR WHOSE DAUG HTER HAS ALSO GIVEN AFFIDAVIT THAT THE LOAN WAS GIVEN BY HER FATHER HAS BEEN NEGATED AS A SELF SERVING STATEMENT. THE AGRICULTURAL INCOME HAS BEEN DENIED WHEN THE TAHSILDAR RIGHTLY GAVE CERTIFICATE THAT THE LAND HOLDING IS UNDISPUTED. IT BECOME S AN ONEROUS TASK FOR THE ASSESSEE TO EXPLAIN CASH DEALINGS AFTER A LAPSE OF TIME THEREFORE CANNOT BE HELD AGAINST THE ASSESSEE INSOFAR AS THE LOAN CREDITORS HAVE APPEARED, THEY HAVE FILED AFFIDAVITS , THE Y AGREE TO THE PROPOSITION THAT THE ASSESSEE HAS OBTAINED LOANS AS PER THE AGREEMENTS AND THERE IS NO DENYING OF THE FACT THAT THE LOAN CREDITORS WERE WORTH Y TO GIVE LOAN S TO THE ASSESSEE HAVING RECEIVABLE INCOMES WHEN THE ASSESSEE HIMSELF BEING PART OF THE FAMILY IS ABLE TO GENERATE SUFFICIENT AGRICULTURAL INCOME WHI CH THE CO - OWNERS OF THE AGRICULTURAL INCOME ARE AWARE HAD AGREED TO CONTRIBUTE FOR CONSTRUCTION OF THE HOUSE OF THE ASSESSEE. IN ANY CASE, IT IS NOT THE CASE OF THE ASSESSING OFFICER THAT THE AMOUNT INVESTED AND BORROWED IS A FRIENDLY LOAN HAS TO BE REPAID INSOFAR AS THE ASSESSEE SAYS THAT IT WAS THE AMOUNT INVESTED IN THE CONSTRUCTION. THE OWN FAMILY ARRANGEMENT CANNOT BE DISPUTED AT THIS STAGE AS SUGGESTING THAT THEY ARE BOGUS. THE ASSESSEE HAS BEEN ABLE TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS INSO FAR AS THE CASH TRANSACTIONS COULD NOT BE CONSIDERED AS GENUINE TO THE EXTENT THAT THE BULK OF THE AGRICULTURAL INCOME WAS GENERATED IN CASH AND BEING BELONGING TO SUCH SOCIAL STRATA WERE DEALING IN CASH ONLY WHICH CANNOT BE HELD AGAINST THE ASSESSEE WHEN THE TOTAL HOUSE CONSTRUCTION IS NOT DISPUTED BY THE DEPARTMENT. IN THIS VIEW OF THE MATER, WE DO NOT FIND ANY MERIT IN THE CONTENTION AS SUSTAINED BY THE I.T.A.NOS. 361,362,363,364, 365,366,367,368,369 AND 370/CTK.2010 11 ASSESSING OFFICER ON FORMULATING HIS OPINION AFTER RESTORATION OF THE ISSUES BY THE TRIBUNAL UPHOLDING THE CONTENTION OF THE ASSESSING OFFICER AFTER RESTORATION OF THE ISSUES BY THE TRIBUNAL WHICH HAS BEEN FURTHER COMPLICATED BY THE LEARNED , UPHOLDING THE CONTENTION OF THE ASSESSING OFFICER TOTALLY OVERLOOKING THE FACT THAT THE CREDITORS ARE GENUINE, CRED ITWORTHY AT THAT TIME AND THEIR IDENTITY IS ESTABLISHED BY THE ASSESSEE BEYOND DOUBT. IT IS NOBODYS CASE FOR GENERATION OF AGRICULTURAL INCOME INSOFAR AS THE AGRICULTURAL INCOME INVESTED IN CASH IN THE CONSTRUCTION OF HOUSE PROPERTY IS THEREFORE TO BE ACC EPTED INSOFAR AS THE TAHSILDAR HAS CERTIFIED MORE THAN WHAT HAS BEEN INVESTED IN THE CONSTRUCTION. NO CORROBORATIVE EVIDENCE FOR CONTROVERTING THE FINDINGS AS SUBMITTED BY THE ASSESSEE HAVE BEEN BROUGHT O N RECORD BY EITHER OF THE LOWER AUTHORITIES. WE ARE, THEREFORE, INCLINED TO UPHOLD THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE WHO HAS FURNISHED VARIOUS DOCUMENTARY EVIDENCE WHICH HAVE BEEN DENIED ACCELPTANCE ON CONJECTURES AND SURMISES. IN VIEW OF THE ABOVE, WE ALLOW THE APPEAL OF THE ASSESSEE ON MERIT SO FAR AS THE QUANTUM APPEALS ARE CONCERNED BY SETTING ASIDE THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. IN VIEW THEREOF, THE CONSEQUENTIAL PENALTIES LEVIED ARE CANCELLED. 7. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. S D/ - SD/ - ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: 14.08.2012 ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY. I.T.A.NOS. 361,362,363,364, 365,366,367,368,369 AND 370/CTK.2010 12 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : SRI CHITTARANJAN DAS, M - 21, CHHEND COLONY, ROURKELA 2 / THE RESPONDENT: INCOME - TAX OFFICER, WARD 1, ROURKELA. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 10.08.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS P LACED BEFORE THE DICTATING MEMBER 13.08.2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S 14.08.2012 . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.08.2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FI LE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER ..