I.T.O.-1(1), Agra V. Smt. Neelam Gupta, Agra

ITA 400/AGR/2011

• Counselvise Citation: 40020314 RSA 2011
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-09-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 20-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KM ANURADHA
• Assessee Lawyers: ALOK FARSAIYA
• Keywords: Gift; Salary income; Principle of natural justice; Additional evidence; Cost of acquisition; Difference of opinion; Corroborative evidences; Revised return
• Section: 133(6); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 400/AGRA/2011 ASSTT. YEAR : 2006-07 INCOME-TAX OFFICER, VS. SMT. NEELAM GUPTA, 1(1), AGRA. VIPRASU, 1, NORTH VIJAY NAGAR COLONY, AGRA. (APPELLANT) (RESPONDENT) APPELLANT BY : KM. ANURADHA, JR. D.R. RESPONDENT BY : SH. ALOK FARSAIYA, C.A. DATE OF HEARING : 11.09.2012 DATE OF PRONOUNCEMENT OF ORDER : 21.09.2012 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-I, AGRA DATED 31.03.2011 FOR THE ASSESSMENT YEAR 2006- 07 ON THE FOLLOWING GROUNDS:- 1. THAT THE CIT(APPEALS)-I, AGRA HAS ERRED IN LAW AND ON THE FACTS IN DELETING THE ADDITION OF RS.11,60,000/- AS UNEXPLAINED MONEY U/S. 69A OF THE I.T. ACT, 1961 WITHOUT APPRECIATING THE FACTS THAT CREDITWORTHINESS OF SMT. SITA DEVI, POWER OF ATTORN EY HOLDER IS NOT PROVED. 2. THAT THE CIT(APPEALS)-I, AGRA HAS ERRED IN LAW AND ON THE FACTS IN DELETING THE ADDITION OF RS.1,00,000/- AS UNEXPLAINED MONEY U/S. 69A OF THE I.T. ACT, 1961 AS ALLEGED GIFT WITH OUT APPRECIATING THE CREDITWORTHINESS OF SMT. VIRENDRA KUMARI GUPTA MOTH ER IN LAW OF APPELLANT. ITA NO. 400/AGRA/2011 2 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILE D RETURN OF INCOME AT RS.1,12,593/-, WHICH WAS SELECTED FOR SCRUTINY. THE ASSESSEE DERIVES INCOME FROM SALARY, HOUSE PROPERTY AND INTEREST INCOME. THE ASS ESSEE WAS ASKED TO EXPLAIN THE SOURCE AND CASH DEPOSIT OF RS.11,60,000/- IN BANK O F RAJASTHAN LTD. DEHRADUN. THE ASSESSEE FILED WRITTEN EXPLANATION BEFORE THE A O, IN WHICH IT WAS EXPLAINED THAT THE AMOUNT WAS DEPOSITED OUT OF THE SALE PROCE EDS OF PROPERTY SOLD LAST YEAR, I.E., F.Y. 2004-05 RELEVANT TO ASSESSMENT YEAR 2005 -06. SHE WAS REQUIRED TO FURNISH EVIDENCE IN RESPECT OF HER CLAIM, I.E., TO FILE COP Y OF REGISTERED SALE DEED, WHICH IS ESSENTIAL DOCUMENT FOR SELLING OUT THE PROPERTY. IT WAS STATED THAT THE SAID PROPERTY WAS SOLD THROUGH POWER OF ATTORNEY GIVEN TO SMT. SI TA DEVI OF AGRA ON 04.04.2003 ON STAMP PAPER OF RS.50/-, WHICH WAS NOT A REGISTER ED DOCUMENT. THE AO FOUND THAT THE ADDRESS OF THE ASSESSEE IN THIS DOCUMENT S HOWS SHE IS RESIDENT OF NAGLA DHANI, TEHSIL FATEHABAD, AGRA WHILE THE ASSESSEE WA S RESIDING AT AGRA AND RESIDENT OF AGRA. FURTHER, IT WAS EXPLAINED ON BEHA LF OF THE ASSESSEE THAT THE ASSESSEE COULD KNOW THE SALE OF PROPERTY IN F.Y. 20 04-05 AND RECEIVED THE MONEY FROM SMT. SITA DEVI IN ASSESSMENT YEAR 2006-07 AND DEPOSITED THE MONEY IN CASH OF RS.11,60,000/- AS ABOVE. THE AO DID NOT ACCEPT T HE EXPLANATION OF THE ASSESSEE AS GENUINE BECAUSE OF THE FOLLOWING REASONS : (I). THE ASSESSEE HAS NOT PRODUCED COPY OF REGISTER ED DEED FOR SELLING OUT OF PROPERTY IN F.Y. 2004-05. ITA NO. 400/AGRA/2011 3 (II). THE ASSESSEE COULD NOT PRODUCE POWER OF ATTOR NEY PERSON FOR CROSS EXAMINATION OR VERIFICATION OF ABOVE STATED FACTS. (III). THE ASSESSEE HAS NOT DEPOSITED SALE PRICE OF PROPERTY / MONEY IN BANK ACCOUNT IN A REASONABLE TIME, I.E., IN F.Y. 2004-05 . (IV). TO WHOM PROPERTY HAS BEEN SOLD, NOT KNOWN TO THE ASSESSEE, IT IS NOT ACCEPTABLE. 2.1 DUE TO THE ABOVE REASONS, THE AO FOUND THAT THE ASSESSEE HAS CONCOCTED STORY TO COVER UP THE DEPOSIT OF CASH IN HER BANK A CCOUNT AS SHE HAS FAILED TO PROVE THE SAME. THE BURDEN IS UPON THE ASSESSEE TO PROVE THE TRANSACTION OF PROPERTY. THEREFORE, THE AMOUNT DEPOSITED IN THE BANK ACCOUNT WAS TREATED AS UNEXPLAINED MONEY U/S. 69A OF THE IT ACT AND ADDITION OF RS.11, 60,000/- WAS MADE TO THE INCOME OF THE ASSESSEE. 2.2. THE ASSESSEE ALSO EXPLAINED THAT SHE HAS RECEI VED CASH GIFT OF RS.1,00,000/- FROM HER MOTHER-IN-LAW ON OCCASION OF HER BIRTHDAY. THE ASSESSEE WAS DIRECTED TO EXPLAIN THE GENUINENESS OF THE GIFT AND CREDITWORTH INESS OF DONOR. THE ASSESSEE WAS REQUIRED TO FURNISH THE COPY OF THE BANK STATEMENT FROM WHERE THE DONOR HAS WITHDRAWN THE MONEY AND GIFTED TO THE ASSESSEE. THE ASSESSEE HAS FURNISHED COPY OF IT RETURN OF DONOR, WHICH DID NOT REFLECT THAT A NY GIFT HAS BEEN GIVEN TO THE ASSESSEE. THE ASSESSEE NEITHER FURNISHED CAPITAL AC COUNT OF DONOR NOR GIVEN CASH FLOW STATEMENT OF DONOR. THUS, THE CAPACITY OF THE DONOR TO GIVE GIFT WAS NOT ITA NO. 400/AGRA/2011 4 PROVED. THE AO, THEREFORE, TREATED THE SAME AS UNEX PLAINED MONEY AND ADDITION OF RS.1,00,000/- WAS MADE TO THE INCOME OF THE ASSESSE E. 2.3. BOTH THE ADDITIONS WERE CHALLENGED BEFORE THE LD. CIT(A) AND CERTAIN FRESH EVIDENCES WERE FILED AT THE APPELLATE STATE, WHICH WERE FORWARDED TO THE AO FOR VERIFICATION AND FILING THE REMAND REPORT. THE AO F URNISHED HIS REPORT DATED 07.02.2011, WHICH IS REPRODUCED IN THE IMPUGNED ORD ER AND READS AS UNDER : 'IN THIS REGARD IT IS SUBMITTED THAT AS PER THIS OF FICE LETTER DATED 17.01.2011, THE ASSESSEE WAS REQUIRED TO SUBMIT THE DETAILS/INFORMATION/DOCUMENTS ON CERTAIN POINTS. RE MINDER DATED 01.02.2011 WAS ALSO ISSUED TO THE ASSESSEE, BUT SHE DID NOT FILE THE REPLY. THE CA. SRI ALOK FARSAIYA ATTENDED ON 07.02. 2011 AND TOLD THAT HE HAD SUBMITTED HIS REPLY ON 8.12.2010, OTHER THAN THAT REPLY HE HAS NO REPLY OR DOCUMENT FOR SUBMITTING BEFORE T HE A. O. HENCE, ON THE BASIS OF ASSESSEE'S REPLY DATED 8.12. 2010 THE REMAND REPORT IS SUBMITTED AS UNDER: 1. ASSESSEE HAS NOT SUBMITTED THE COPY OF PURCHASE DEE D AND SALE DEED OF THE LAND WHICH COULD PROVE THE OWNERSHIP OF LAND AS WELL AS SALE CONSIDERATION. THE ASSESSEE HAS SUBMITTED T HE COPY OF KHATONY WHICH SHOWS THAT SOME LAND HAS BEEN TRANSFE RRED BUT IT IS NOT ASCERTAIN FROM THE KHATONY THAT THE LAND WAS SO LD TO SOCIETY OR OTHER. 2. THE ASSESSEE COULD NOT PRODUCE THE PROOF OR SUPPORT ING EVIDENCE REGARDING SALE CONSIDERATION OF LAND THROUGH POWER OF ATTORNEY HOLDER FOR WHICH ASSESSEE HAD DEPOSITED A SUM OF RS . 10,00,000/- AND RS. 1,60,000/- IN HER ACCOUNT THE BANK OF RAJAS THAN LTD., DEHRADUN WHILE SHE HAD HER OTHER A/C IN VIJAY BANK, JEONI MANDI, AGRA (A/C NO. 5850) AGAINST THE SALE CONSIDE RATION OF LAND SITUATED AT NAGLA DHAMI, AGRA. ITA NO. 400/AGRA/2011 5 3. THE COPY OF BANK STATEMENT OF THE POWER OF ATTORNEY HOLDER SMT. SITA DEVI WAS NOT PRODUCED WHICH COULD PROVE THAT S MT. SITA DEVI HAD GIVEN THE AMOUNT OF RS.1,00,000/- AND RS.10,00, 000/- TO THE ASSESSEE AGAINST SALE CONSIDERATION OF LAND AFTER T WO YEARS. 4. REGARDING RECEIPT OF CASH GIFT OF RS. 1,00,000/- BY THE ASSESSEE FROM HER MOTHER-IN-LAW SMT. VIRENDRA KUMARI, IT IS SUBMITTED THAT THE CREDITWORTHINESS OF THE DONOR IS NOT PROVE D FROM THE BANK STATEMENT - VIJAYA BANK, JEONI MANDI, AGRA WHERE BALANCES ARE BELOW RUPEES ONE LAC EXCEPT RS.1,22,143/- ON 24.10. 03 WHICH WAS CREDITED AS TRANSFER ENTRIES. IT IS ALSO NOT ACCEPT ABLE THAT SMT. VIRENDRA KUMARI HAVING CASH WITH HER IN LACS OUT OF WHICH SHE HAS GIVEN OR GIFTED TO THE ASSESSEE SMT NEELAM GUPT A WHILE TRANSACTION OF SMALL ENTRIES ARE IN BANK PASS BOOK OF THE DONOR. HENCE ON THE BASIS OF ABOVE FACTS AS WELL AS WITHOU T SUPPORTING EVIDENCES, THE CASH DEPOSITED IN S. B. A/C BY THE ASSESSEE IN HER DEHRADUN ACCOUNT IS THE CONCOCTED STORY TO COVER UP THE DEPOSIT OF CASH RS. 11,60,000/- AND THE A.O. WAS RIGHT IN A DDING THIS AMOUNT OF RS. 11,60,000/- AS UNEXPLAINED MONEY U/S 69A OF THE ACT. FURTHER REGARDING RECEIPT OF CASH GIFT OF RS. 1,00,000/- THE CAPACITY OF THE DONOR DOES NOT PROVED. HENCE THE AD DITION OF RS. 1,00,000/- BY THE A.O. BY TREATING THE INCOME FROM OTHER SOURCES U/S 69A OF THE ACT WAS ALSO CORRECT. I RELIED UPON THE ORDER OF A.O. PASSED ON 22.12.2008.' 2.4 THE REMAND REPORT WAS CONFRONTED TO THE ASSESSE E FOR GIVING FURTHER COMMENTS, IN WHICH THE ASSESSEE MORE OR LESS REPEAT ED THE SAME SUBMISSIONS AND IT WAS SUBMITTED THAT THE ASSESSEE GAVE A POWER OF ATT ORNEY TO EXECUTE THE SALE DEED OF HER LAND AT VILLAGE KAKRETHA TO SMT. SITA DEVI. SAID ATTORNEY SOLD THE LAND FOR A CONSIDERATION OF RS.9,20,000/- TO SOME PERSON. SUBS EQUENTLY, WHEN THE ASSESSEE ITA NO. 400/AGRA/2011 6 CAME TO KNOW ABOUT THE FACT THAT THE ASSESSEE PUT H ER EFFORTS TO REALIZE THE MONEY FROM THE ATTORNEY AND AFTER COLLECTING THE SAME FRO M THE SAID ATTORNEY, THE ASSESSEE DEPOSITED THE SAME INTO HER BANK ACCOUNT. SINCE THE ASSESSEE WAS NOT KNOWING THE DATE AND OTHER PARTICULARS OF THE SALE, THEREFORE, THE DATE OF EXECUTION OF THE POWER OF ATTORNEY DATED 04.04.2003 WAS TAKEN AS THE DATE OF TRANSFER AND THE ASSESSEE FILED REVISED RETURN FOR THE ASSESSMENT YE AR 2004-05 SHOWING THE INCOME FROM CAPITAL GAINS ON THE SAID SALE OF LAND. COPY O F ACKNOWLEDGEMENT OF FILING THE REVISED RETURN FOR THE ASSESSMENT YEAR 2004-05 WAS FILED. IT WAS ALSO EXPLAINED THAT SIMILARLY, THE MOTHER-IN-LAW OF THE ASSESSEE, SMT. VIRENDRA KUMARI GUPTA GAVE POWER OF ATTORNEY TO THE SAME ATTORNEY TO EXECUTE T HE SALE DEED OF LAND AT VILLAGE KAKRETHA, WHICH WAS SOLD FOR A CONSIDERATION OF RS. 4,62,000/- TO SOME PERSON IN THE ASSESSMENT YEAR 2004-05 AND WHEN MOTHER-IN-LAW OF ASSESSEE ALSO REALIZED THAT PROPERTY HAS BEEN SOLD BY THE ATTORNEY, SHE REALIZE D THE MONEY AND RS.1,00,000/- WAS GIVEN TO THE ASSESSEE AS GIFT. SHE HAD ALSO FIL ED REVISED RETURN. IT WAS ALSO EXPLAINED THAT STATEMENT OF CASH AVAILABLE WITH THE ASSESSEE FROM 01.04.2003 TO 31.03.2006 HAS ALREADY BEEN SUBMITTED TO EXPLAIN AV AILABILITY OF CASH AND CASH FLOW STATEMENT WAS ALSO FILED. SINCE THE POWER OF A TTORNEY HOLDER BETRAYED THE ASSESSEE AND WAS NOT CO-OPERATING THE ASSESSEE, THE REFORE, THE ASSESSEE COULD NOT PRODUCE THE COPY OF SALE DEED BEFORE THE AO. THE AS SESSEE FILED CERTIFICATE OF DONOR OF GIVING THE GIFT. IT WAS, THEREFORE, EXPLAI NED THAT THE SOURCE OF BOTH THE ITA NO. 400/AGRA/2011 7 AMOUNTS HAS BEEN EXPLAINED AND THE ADDITION MAY BE DELETED. THE LD. CIT(A) ADMITTED THOSE ADDITIONAL EVIDENCES U/R. 46A. THE L D. CIT(A) FROM KHASRA AND KHATONI SUBMITTED BY THE ASSESSEE FOUND THAT THE LA ND IN QUESTION HAS BEEN SOLD TO SHRI BALAJI SEHKARI AWAS SAMITI LTD. THEREFORE, THE AO WAS DIRECTED TO MAKE FURTHER VERIFICATION FROM THE SAID SAMITI TO ASCERT AIN THE GENUINENESS OF SALE OF LAND CLAIMED TO HAVE BEEN MADE BY ASSESSEE AND HER MOTHE R-IN-LAW THROUGH THE SAME ATTORNEY. THE AO IN PURSUANCE TO THE DIRECTIONS OF THE LD. CIT(A) SUBMITTED FURTHER REMAND REPORT DATED 31.03.2011, WHICH IS RE PRODUCED IN THE APPELLATE ORDER AND READS AS UNDER : IN THIS REGARD, IT IS SUBMITTED THAT THE ASSESSEE SMT. NEELAM GUPTA W/O SHRI RAKESH KUMAR GUPTA THROUGH POWER OF ATTORN EY HOLDER SMT. SITA DEVI W/O SRI VEER PAL SINGH VILLAGE MOHAN NAGA R, NAGLA RAMBAL, TEH. & DISTT. AGRA HAS SOLD THE IMMOVABLE P ROPERTY ALONG WITH OTHER CO-SELLER SRI DR. SRI NARAIN GUPTA S/O S RI TOTA RAM R/O RAJPUT MOHALLA, FATEHABAD, TEHSIL AGRA TO SRI BALAJ I SEHKARI AVAS SAMITI LTD., AGRA THROUGH ITS SECRETARY SRI BANBARI LAL VILLAGE KAKRETHA, TEH. & DISTT. AGRA ON 16.12.2005 FOR RS. 27,50,000/-. FURTHER FROM THE OTHER SALE DEED DATED 16.12.2005 S MT. VIRENDRA KUMARI W/O SRI VINOD KUMAR R/O NAGLA DHANI, TEHSIL FATEHABAD, DISTT. AGRA THROUGH THE POWER OF ATTORNEY HOLDER SM T. SITA DEVI W/O SRI VEER PAL SINGH, R/O MOHAN NAGAR, NAGLA RAMBAL, TEH. & DISTT. AGRA ALONG WITH TWO OTHER CO-SELLER SRI NARAIN S/O SRI TOTA RAM AND SRI RAJEEV KUMAR S/O SRI HARIOM, FATEHABAD, AGRA HA VE SOLD THE LAND TO SRI BALAJI SEHKARI AVAS SAMITI LTD., AGRA ON 16. 12.2005 FOR RS. 27,00,000/-. ON PERUSAL OF THESE SALE DEEDS IT IS N OT CLEAR THAT HOW MUCH AMOUNT WAS PAID BY THE SOCIETY TO THESE SELLER S SEPARATELY AGAINST PURCHASE OF LAND. THE NOTICE U/S 133(6) OF I.T. ACT WAS ISSUED TO THE SOCIETY - SRI BALAJI SEHKARI AVAS SAMITI LTD ., AGRA ON 03.03.2011 WHERE THE SECRETARY OF THE SOCIETY SRI B ANBARI LAL WAS REQUIRED TO ATTEND BEFORE THE UNDERSIGNED 10.03.201 1. HOWEVER, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SRI ASHOK KUMAR AGRAWAL, ITA NO. 400/AGRA/2011 8 ADVOCATE ATTENDED ON 24.03.2011 AND SUBMITTED THE C OPY OF BOTH SALE DEEDS, COPY OF PASS BOOK OF THE SOCIETY OF CO-OPERA TIVE BANK LTD., AGRA AND COPY OF CHEQUES ISSUED TO THE SELLERS. AGA INST THESE BOTH SALE CONSIDERATION, THE SOCIETY HAS PAID THE FOLLOW ING CHEQUES TO THE SELLERS DURING F. Y. 2005-06. SL. NO WITHDRAWAL DATE NAME OF SELLER CHEQUE NO. & DATE AMOUNT OF CHEQUE 1. 17.11.05 S.N. GUPTA 1112/16.11.2005 RS. 15,00,000/- 2 16.12.05 SITA DEVI 1119/16.12.2005 RS. 17,83,333/- 3 16.12.05 SITA DEVI 1118/16.12.2005 RS. 9,00,000/- 4 16.12.05 RAJEEV KUMAR 1117/16.12.2005 RS. 9,00,000/- 55 16.12.05 SELF/CASH- ADVANCE 1114/16.12.2005 RS. 50,000/- 6 16.12.05 S.N. GUPTA 1113/16.12.2005 RS. 3,16,700/- THUS AGAINST THE SALE CONSIDERATION OF THE PROPERTY , SMT. NEELAM GUPTA AND SMT. VIRENDRA KUMARI GUPTA HAVE RECEIVED A SUM OF RS. 17,83,333/- AND RS. 9,00,000/- THROUGH THE POWER OF ATTORNEY HOLDER DURING F.Y. 2005-06. FURTHER, ON PERUSAL OF THE REPLY OF THE ASSESSEE DA TED 21.02.2011 WHICH WAS SUBMITTED BEFORE YOUR HONOUR BY THE ASSES SEE DURING THE COURSE OF APPELLATE PROCEEDINGS, IT WAS FOUND T HAT AS PER PARA SECOND OF THE FACTS OF THE CASE THAT THE ASSES SEE HAD SOLD THE PROPERTY DURING THE A. Y. 2004-05 AND ACCORDINGLY T AX HAS BEEN PAID ON CAPITAL GAIN DETERMINED ON SALE OF THE SAID LAND. IN THIS WAY, AS PER REPLY SUBMITTED BEFORE YOUR HONOUR, IT WAS ESTABLISHED THAT THE ASSESSEE SMT. NEELAM GUPTA AND HER MOTHER- IN-LAW SMT. VIRENDRA KUMARI HAVE SOLD THE SAID PROP ERTY DURING A.Y. 2004-05 AND THE CAPITAL GAIN SO ARISES ON SALE OF PROPERTY WAS SHOWN IN THE REVISED RETURN FILED BY THESE ASSE SSEES FOR A.Y. 2004-05. BUT AS PER SALE DEEDS DATED 16.12.2005 OBT AINED FROM THE OFFICE OF THE SUB-REGISTRAR, TEHSIL, AGRA, IT S HOWS THAT THESE PROPERTIES WERE SOLD DURING F. Y. 200506 FOR WHICH ASSESSEE HAS NOT SHOWN THE CAPITAL GAIN IN THEIR RETURNS FILED F OR A. Y. 2006- 07. SO FAR AS THE CASH DEPOSIT OF RS.11,60,000/- AND RS.1,00,000/- IN THE BANK ACCOUNT OF SMT. NEELAM GU PTA DURING F. Y. 2005-06 WAS TOLD AS THE AMOUNT BEING RECEIVED AFTER SALE OF PROPERTY DURING F. Y. 2003-04, AND THE ASSESSEE HAD RECOVERED ITA NO. 400/AGRA/2011 9 THIS AMOUNT FROM THE POWER OF ATTORNEY HOLDER SMT. SITA DEVI DURING F. Y. 2005-06 AND WAS DEPOSITED IN HER BANK ACCOUNT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE DID NOT PROVE THAT THESE CASH DEPOSITS WERE RELATED WIT H THE AMOUNT RECEIVED AGAINST SALE CONSIDERATION OF PROPERTY. THUS AS PER ASSESSEE'S REPLY, IT HAS BEEN ESTABLISH ED THAT THE ASSESSEE HAD ALSO SOLD SOME OF THE PROPERTY DURING F.Y. 2003-04 AND THE SALE CONSIDERATION HAS BEEN RECEIVED BY HER ACCORDINGLY. FURTHER THE ASSESSEE AS WELL AS HER MOTHER-IN-LAW S MT. VIRENDRA KUMARI HAVE ALSO SOLD THE LAND DURING F. Y. 2005-06 TO SRI BALAJI SEHKARI AVAS SAMITI LTD., AGRA AND THE SALE CONSIDERATION OF THEIR SHARES WERE DEPOSITED IN THEIR BANK ACCOUN TS. THUS THE AMOUNT SO DEPOSITED IN BANK ACCOUNT, RELATES AGAINST THE SALE CONSIDERATION OF LAND FOR THE F. Y. 2005-06 RELEVAN T TO A. Y. 200607 AND IT MAY NOT BE TO THE F. Y. 2003-04 RELEV ANT TO A. Y. 200405 AS TOLD BY THE ASSESSEE. IT HAS ALSO BEING E STABLISHED FROM THE SALE DEEDS THAT THE PROPERTY WAS SOLD DURI NG F. Y. 2005- 06 AND NOT IN F. Y. 2003-04. SO THE CAPITAL GAIN ARISES IN F. Y. 200506 MAY NOT BE TAKEN IN ADVANCE FOR F. Y. 2003-0 4, I.E. FOR A. Y. 2004-05. THIS WHOLE EPISODE SHOWS THE COOKED STORY MADE BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROC EEDINGS FOR TAKING THE BENEFIT OF RELIEF. THUS THE CASH DEPOSIT S IN BANK ACCOUNT OF THE ASSESSEE SHOWN DURING F.Y. 2005-06 M AY BE THE PART OF CAPITAL GAIN WHICH WAS ARISES AFTER SALE CO NSIDERATION OF LAND DURING F.Y. 2005-06 WHICH WAS ADDED BY THE THE N AO IN THE RETURN OF INCOME OF THE ASSESSEE. THUS THE ADDITION MADE BY THE THEN AO DURING A. Y. 2006-07 IS CORRECT IN THE EYES OF LAW AS THE ASSESSEE HAD NOT SHOWN THE CAPITAL GAIN ARISES IN H ER RETURN OF INCOME DURING A. Y. 2006-07. THE COPY OF BOTH SALE DEED DATED 16.12.2005 AND COPY OF CHEQUE & PASS BOOK ARE ENCLOSED HEREWITH FOR YOUR READY REFERENCE. THE REPORT ALONG WITH CASE RECORD OF THE ASSESSEE IN ONE VOLUME IS SENT HEREWI TH FOR YOUR KIND PERUSAL AND NECESSARY ACTION AT YOUR END.' 2.5 DURING THE HEARING BEFORE THE LD. CIT(A), THE A SSESSEE MAINTAINED THAT ONLY ONE PROPERTY WAS SOLD AT KAKRETHA IN ASSESSMENT YEA R 2004-05. THEREFORE, THE ASSESSEE EXPLAINED BOTH THE ADDITIONS. THE LD. CIT( A) CONSIDERING THE EXPLANATION ITA NO. 400/AGRA/2011 10 OF THE ASSESSEE, REMAND REPORT AND THE MATERIAL ON RECORD, DELETED BOTH THE ADDITIONS. HIS FINDINGS IN THE APPELLATE ORDER FROM PARA 5.11 TO 6 ARE REPRODUCED AS UNDER : 5.11. I HAVE GONE THROUGH ALL THE DETAILS COLLECTED BY THE AO DURING THE COURSE OF REMAND PROCEEDINGS AND THE ARGUMENTS PUT FORWARD BY THE AR DURING THE APPELLATE PROCEEDI NGS EXPLAINING THE SOURCE OF CASH DEPOSITED IN BANK ACCOUNT. I HAVE ALSO EXAMINED THE RETURN OF INCOME FOR A.Y. 2004-05. FRO M THE RETURN FOR A.Y. 2004-05, IT IS FOUND THAT THE APPELLANT HA S DECLARED SALE OF LAND AT KAKRETHA FOR A CONSIDERATION OF RS.9,25,000 /-SHOWING THE DATE OF SALE AS 04.04.2003 AND AFTER TAKING THE IND EXED COST OF ACQUISITION AT RS.2,18,780/-, CAPITAL GAIN OF RS.7, 06,220/- HAS BEEN DECLARED. FROM THE COPY OF THE AGREEMENT GIVING POW ER OF ATTORNEY TO SMT. SITA DEVI, IT HAS BEEN FOUND THAT THIS AGRE EMENT WAS EXECUTED ON 04.04.2003. THE CLAIM OF THE APPELLANT IS THAT SHE WAS NOT AWARE ABOUT THE DATE OF SALE OF THIS LAND BECAUSE THE ATTORNEY HOLDER DID NOT COOP ERATE WITH HER BEFORE SELLING OF THIS LAND AND SHE DID NOT INFORM AS TO WHEN THIS LAND WAS SOLD. H OWEVER, WHEN SALE OF THIS LAND CAME TO HER KNOWLEDGE, SHE DECLAR ED THE CAPITAL GAIN ON THE SALE OF THIS LAND GIVING THE DATE OF SA LE AS DATE OF SIGNING OF AGREEMENT WITH THE POWER OF ATTORNEY HOL DER AS ON 04.04.2003 AND I FIND THE SAME DATE IS GIVEN IN THE COMPUTATION OF CAPITAL GAIN FOR A.Y. 2004-05 AS CLAIMED BY THE APP ELLANT. THE LD. AR OF THE APPELLANT HAS EXPLAINED DURING THE APPELL ATE PROCEEDINGS THAT THE DATE OF SALE (04.04.2003) WAS TAKEN IN VIEW OF THE PROVISIONS OF SECTION 2(47)(V) AS THE EXACT DAT E OF SALE OF LAND WAS NOT KNOWN TO THE APPELLANT. SECTION 2(47)(V) PR OVIDES THE DATE OF TRANSFER IN RELATION TO THE PROPERTY SOLD IN VIE W OF PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882 WHICH PROVIDE S THAT IF POSSESSION OF THE PROPERTY IS GIVEN TO THE PURCHASE R, THE SALE OF THE PROPERTY CAN BE CONSIDERED FROM THAT DATE EVEN IF T HE CONSIDERATION IS RECEIVED SUBSEQUENTLY. THOUGH THE POWER OF ATTORNEY HOLDER IS NOT A PURCHASER OF PROPERTY IN E XACT SENSE, THE POSSESSION OF THE PROPERTY WAS TRANSFERRED FROM THE APPELLANT TO THE POWER OF ATTORNEY HOLDER AND IN ABSENCE OF THE KNOWLEDGE OF THE EXACT DATE OF SALE OF THE PROPERTY BY THE APPEL LANT DUE TO ITA NO. 400/AGRA/2011 11 DISPUTE WITH THE ATTORNEY HOLDER, IT APPEARS TO BE LOGICAL TO DECLARE THE SALE OF PROPERTY ON THE BASIS OF DATE OF EXECUT ION OF THE AGREEMENT WITH POWER OF ATTORNEY HOLDER AFTER THE A PPELLANT HAD COME TO THE KNOWLEDGE OF SALE OF THIS PROPERTY. THO UGH THE AO HAS CLAIMED THAT THE PROPERTY SHOWN TO HAVE BEEN SOLD I N A.Y. 2004-05 IS DIFFERENT PROPERTY AND ACTUAL SALE OF THIS PROPE RTY HAS TAKEN PLACE ON 16.12.2005 AND, THEREFORE, THE ACTUAL CAPI TAL GAIN ON SALE OF THIS PROPERTY HAS ARISEN IN A.Y. 2006-07 WHICH W AS NOT DECLARED BY THE APPELLANT BUT NO EVIDENCE WAS PRODUCED BY TH E AO AS TO WHICH OTHER PROPERTY WAS SOLD BY THE APPELLANT IN A Y 2004-05. IN ABSENCE OF ANY POSITIVE EVIDENCE PRODUCED BY THE AO WITH REGARD TO A DIFFERENT PROPERTY SOLD BY THE APPELLANT IN A. Y. 2004-05, THE ARGUMENT TAKEN BY THE AO REGARDING SALE OF SOME OTHER PROPERTY IN A.Y. 2004-05 CANNOT BE ACCEPTED. 5.12 IN VIEW OF THE DETAILS AND EVIDENCES COLLECTE D BY THE AO DURING APPELLATE STAGE, I FIND THAT ONLY ONE PROPERTY WAS SOLD BY THE APPELLANT I.E. LAND AT KAKRETHA AND SHE HAS GIVEN A VALID EXPLANATION FOR SHOWING CAPITAL GAIN ON SALE OF THIS PROPERTY I N A.Y. 2004-05 DESPITE THE FACT THAT THIS PROPERTY WAS SOLD IN SUB SEQUENT YEAR RELATING TO AY 2006-07. THEREFORE, I AM INCLINED TO ACCEPT T HE ARGUMENT OF THE LD. AR THAT THE CAPITAL GAIN WAS DECLARED ON THE SA LE OF LAND AT KAKRETHA IN THE ASSESSMENT YEAR 2004-05 ON THE BASI S OF THE DATE OF SIGNING OF POWER OF ATTORNEY HOLDER AGREEMENT PRIOR TO THE ASSESSMENT YEAR IN WHICH THE LAND WAS ACTUALLY SOLD BECAUSE OF ACTUAL DATE OF SALE WAS NOT KNOWN TO THE APPELLANT DUE TO DISPUTE WITH POWER OF ATTORNEY HOLDER. THE AO HAS ALSO FAILED TO PRODU CE ANY EVIDENCE THAT THE SALE CONSIDERATION RECEIVED BY THE APPELLA NT ON SALE OF THE PROPERTY AT KAKRETHA FOR WHICH CAPITAL GAIN WAS DEC LARED IN A.Y. 2004-05, WAS UTILIZED IN SOME OTHER MANNER. HOWEVE R, IRRESPECTIVE OF DISPUTING THE FACT OF DECLARATION OF CAPITAL GAI N ON SALE OF LAND AT KAKRETHA IN AY 2004-05 BY THE APPELLANT AS EXPLAINE D BY THE LD. AR BEFORE ME AND ALSO SHOWN IN THE RETURN OF INCOME FO R AY 2004-05, THE AO HAS ADMITTED IN HIS REPORT SUBMITTED ON 31.03.20 11 THAT THE CASH DEPOSITS IN BANK ACCOUNT OF THE ASSESSEE SHOWN DURI NG F.Y. 2005-06 MAY BE THE PART OF CAPITAL GAIN WHICH HAS ARISEN AF TER SALE CONSIDERATION OF LAND WAS RECEIVED BY HER DURING F. Y. 2005-06. THEREFORE, AS FAR AS SOURCE OF DEPOSIT OF CASH OF R S.11,60,000/-IN THE BANK ACCOUNT OF THE APPELLANT IS CONCERNED, IT IS F AIRLY PROVED AFTER AN ITA NO. 400/AGRA/2011 12 ENQUIRY WAS CONDUCTED BY THE AO DURING THE REMAND S TAGE THAT THIS CASH WAS DEPOSITED OUT OF THE SALE CONSIDERATION OF THE LAND. IN VIEW OF THESE FINDINGS, I AM INCLINED TO ACCEPT THE EXPL ANATION OF THE APPELLANT THAT THE CASH RECOVERED BY HER FROM THE A TTORNEY HOLDER ON SALE OF LAND AT KAKRETHA WAS USED IN DEPOSITING THE CASH IN HER BANK ACCOUNT. FOR THE PURPOSE OF EXPLAINING THE CASH DEP OSITS OF RS.11,60,000/- IN BANK ACCOUNT, SHE HAS ALSO FILED A CASH FLOW STATEMENT FROM 01.04.2003 TO 31.03.2006 SHOWING THA T THE CASH RECEIVED ON SALE OF PROPERTY AT KAKRETHA ALONGWITH THE CASH RECEIVED BY HER FROM RENT AND OTHER INCOME WERE USED IN DEPO SITING OF CASH IN THE BANK ACCOUNT. NO ADVERSE COMMENT HAS BEEN OFFER ED BY THE AO ON THIS CASH FLOW STATEMENT. THEREFORE, I FIND THAT TH E APPELLANT WAS ABLE TO EXPLAIN THE DEPOSITS OF CASH OF RS. 11,60,000/- IN HER BANK ACCOUNT THROUGH THIS CASH FLOW STATEMENT. COPY OF THIS CASH FLOW STATEMENT IS ANNEXED WITH THIS ORDER IN ANNEXURE A-1 (3 PAGES) F OR A READY REFERENCE. 5.13 AS REGARDS TO THE GIFT RECEIVED FROM THE MOTHE R-IN-LAW, SMT. VIRENDRA KUMARI GUPTA, IT IS CLEAR THAT SHE HAS ALS O RECEIVED MONEY ON SALE OF LAND AT KAKRETHA AND AS EXPLAINED BY THE ID. AR THAT THE SAME MONEY WAS UTILIZED IN GIVING GIFT OF RS.L LAC TO THE APPELLANT AND THE AO ALSO COULD NOT BRING ANY EVIDE NCE TO SHOW THAT THE MONEY RECEIVED BY SMT. VIRENDRA KUMARI GUP TA ON SALE OF LAND WAS UTILIZED IN SOME OTHER MANNER. THEREFORE, THE SUBMISSION OF THE ID. AR EXPLAINING THE SOURCE OF GIFT RECEIVE D FROM HER MOTHER-IN-LAW IS FOUND TO BE ACCEPTABLE. THERE IS N O DISPUTE ABOUT THE IDENTITY OF THE DONOR AND SHE IS ALSO ASSESSED TO TAX. THEREFORE, DEPOSIT OF RS.1,00,000/- IN THE BANK ACCOUNT OF THE APPELLANT EXPLAINED AS GIFT FROM THE MOTHER-IN-LAW IS FOUND T O BE REASONABLY EXPLAINED IN ABSENCE OF ANY EVIDENCE COLLECTED BY T HE AO CONTRARY TO THIS EXPLANATION. 5.14 IN VIEW OF THE FINDINGS AS DISCUSSED IN AFORES AID PARAS, I FIND THAT THE APPELLANT HAS BEEN ABLE TO EXPLAIN AS FAR AS THE SOURCE OF DEPOSIT OF CASH OF RS.11,60,000/-IN HER BANK ACCOUN T IS CONCERNED OUT OF THE SALE PROCEED OF LAND AT KAKRETHA VILLAGE ON WHICH CAPITAL GAIN HAS ALREADY BEEN PAID IN AY 2004-05 ON THE BASIS OF ITA NO. 400/AGRA/2011 13 DATE OF EXECUTION OF POWER OF ATTORNEY HOLDER AGREE MENT AND RS. 1,00,000/- SHOWN AS RECEIPT OF GIFT FROM MOTHER-IN- LAW IS ALSO FOUND TO BE EXPLAINED AND THEREFORE, NO ADDITION ON ACCOUNT OF CASH DEPOSIT MADE IN HER BANK ACCOUNT TOTALING TO R S.12,60,000/-, AS MADE IN THE ASSESSMENT ORDER, HAS BEEN FOUND TO BE SUSTAINABLE AND THEREFORE, I DELETE THE ADDITION OF RS.12,60,00 0/- MADE IN THE ASSESSMENT ORDER ON ACCOUNT OF UNEXPLAINED MONEY. A CCORDINGLY, GROUND NOS. 2 TO 4 ARE ALLOWED. GROUND NO.1 IS GENE RAL IN NATURE CONTENDING THAT ORDER PASSED BY THE AO IS BAD IN LA W AND AGAINST THE PRINCIPLE OF NATURAL JUSTICE. AS I HAVE ALREADY DECIDED OTHER GROUNDS OF APPEAL ON MERIT, THIS GROUND IS NOT REQU IRED TO BE ADJUDICATED UPON AS BEING GENERAL IN NATURE. 5.15 ON THE BASIS OF THE DETAILS SUBMITTED BY THE A O DURING REMAND STAGE, THOUGH IT HAS BEEN FOUND THAT THE CAS H DEPOSIT MADE IN THE BANK ACCOUNT OF THE APPELLANT IS EXPLAINED A ND NECESSARY RELIEF WAS PROVIDED AS EXPLAINED IN THE PREVIOUS PA RA, IT HAS ALSO BEEN FOUND THAT SMT. SITA DEVI SOLD TWO LANDS AT KA KRETHA AS POWER OF ATTORNEY HOLDER OF SMT. NEELAM GUPTA AND S MT. VIRENDRA KUMARI GUPTA FOR RS. 27,50,000/- AND RS. 2 7,00,000/- RESPECTIVELY. OUT OF THE TOTAL SALE PROCEEDS OF RS. 54,50,000/-, RS.26,83,333/- WAS PAID TO SMT. SITA DEVI, RS.18,16 ,700/- TO SHRI S.N. GUPTA AND RS. 9,00,000/- TO RAJEEV KUMAR THROU GH CHEQUE AND RS.50,000/- IN CASH AS ADVANCE AS PER THE REPOR T SUBMITTED BY THE AO VIDE HIS LETTER DATED 31.03.2011. SO FAR, AS PER THE DETAILS SUBMITTED BY THE LD. AR DURING THE APPEAL PROCEEDIN G, OUT OF THE ABOVE SALE PROCEEDS, ONLY RS. 9,25,000/- IN THE HAN D OF THE APPELLANT (SMT. NEELAM GUPTA) AND RS.4,62,000/- IN THE HAND OF SMT. VIRENDRA GUPTA HAS BEEN OFFERED FOR TAXATION U NDER THE HEAD LONG TERM CAPITAL GAIN FOR THE AY 2004-05 ON THE BA SIS OF THE DATE OF EXECUTION OF THE POWER OF ATTORNEY HOLDER A GREEMENT AND PROVISION OF SECTION 2(47)(V). BUT NO DETAILS ARE A VAILABLE AS TO HOW THE BALANCE AMOUNT OF SALE PROCEED OF THIS LAND HAS BEEN OFFERED FOR TAXATION. THEREFORE, THE AO IS DIRECTED TO MAKE NECESSARY ENQUIRY FROM SMT. SITA DEVI TO ASCERTAIN AS TO HOW MUCH AMOUNT WAS PAID BACK BY HER TO THE APPELLANT (SMT. NEELAM GUPTA) AND SMT. VIRENDRA GUPTA OUT OF THE TOTAL SAL E PROCEED OF THE LANDS FOR WHICH SHE WAS GIVEN POWER OF ATTORNEY BY THEM AND HOW MUCH AMOUNT WAS RETAINED BY HER AND WHETHER FOR THE AMOUNT ITA NO. 400/AGRA/2011 14 RETAINED BY HER AS BEING HER BUSINESS PROFIT, ANY T AX WAS PAID OR NOT. SHE SHOULD ALSO BE EXAMINED TO FIND OUT AS TO WHAT FOR PAYMENTS WERE MADE TO SHRI S.N. GUPTA AND SHRI RAJE EV KUMAR AND THEN BOTH THESE PERSONS SHOULD BE CALLED TO FIN D OUT AS TO IN WHAT MANNER THE AMOUNT RECEIVED BY THEM OUT OF ABOV E SALE PROCEEDS WERE OFFERED FOR TAXATION. AFTER COLLECTIN G THE ABOVE INFORMATION, IF IT IS FOUND THAT ANY AMOUNT OF INCO ME HAS ESCAPED ASSESSMENT IN THE HAND OF ANY OF THE ABOVE MENTIONE D PERSONS INCLUDING THE APPELLANT, THE AO SHALL TAKE NECESSAR Y ACTION KEEPING IN VIEW THE PROVISIONS OF SECTION 150 OF TH E INCOME-TAX ACT. IF ANY PARTICULAR PERSON IS NOT ASSESSED WITH THE AO, THE RELEVANT INFORMATION FOR TAKING NECESSARY ACTION SH OULD BE FORWARDED TO THE CONCERNED ASSESSING OFFICER. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR THE GRO UNDS TAKEN IN APPEAL AND NECESSARY DIRECTION IS ISSUED IN PARA 5. 15 TO EXAMINE THE TAXABILITY OF THE SALE PROCEEDS OF THE LAND AT KAKRETHA FOR WHICH DETAILS WERE COLLECTED BY THE AO DURING THE A PPEAL PROCEEDING. 3. THE LD. DR RELIED UPON THE ORDER OF THE AO AND S UBMITTED THAT OBJECTIONS OF THE AO HAVE NOT BEEN SATISFIED BY THE ASSESSEE. ACC ORDING TO THE REMAND REPORT FILED BY THE AO, THE PROPERTY WAS SOLD ON 16.12.200 5. THEREFORE, ANNEXURE A1, I.E., CASH FLOW STATEMENT FOR 01.04.2003 TO 31.03.2 004 SHOWING THE AMOUNT OF RS.9,25,000/- BY THE ASSESSEE IS INCORRECT BECAUSE THE CAPITAL GAIN WOULD FALL IN THE ASSESSMENT YEAR 2006-07. THE LD. DR SUBMITTED THAT NO EVIDENCE HAS BEEN FURNISHED OF RECEIPT OF CASH BY THE ASSESSEE FROM T HE POWER OF ATTORNEY HOLDER. WHEN THE POWER OF ATTORNEY HOLDER HAS NOT GIVEN COP Y OF SALE DEED TO THE ASSESSEE, THERE IS NO QUESTION OF BELIEVING THAT SMT. SITA DE VI, POWER OF ATTORNEY HOLDER WOULD GIVE HUGE CASH TO THE ASSESSEE WITHOUT EXECUT ING ANY DOCUMENT. THE LD. DR ITA NO. 400/AGRA/2011 15 REFERRED TO PAGE 3 OF THE PAPER BOOK, WHICH IS POWE R OF ATTORNEY DATED 04.04.2003 IN WHICH IT IS MENTIONED THAT NO POSSESSION OF THE PROPERTY HAS BEEN HANDED OVER TO SMT. SITA DEVI. IT WAS ALSO SUBMITTED THAT THE DONO R HAS MAINTAINED BANK ACCOUNT, BUT GIFT WAS NOT GIVEN OUT OF THE BANK ACCOUNT AND AS PER REMAND REPORT, FURNISHED BY THE AO LESS THAN RS.1,00,000/- WAS FOUND IN HER BANK ACCOUNT. THEREFORE, IT WOULD PROVE THAT THE DONOR HAS NO SOURCE OF INCOME TO GIVE ANY GIFT AND SIMILARLY THAT SHE HAS RECEIVED AMOUNT FROM SMT. SITA DEVI ON SALE OF PROPERTY. THEREFORE, THE LD. CIT(A), WITHOUT ANY BASIS, DELETED BOTH THE ADDITIONS. THE LD. DR HEAVILY RELIED UPON THE FINDINGS OF THE AO. 4. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND REFERRED TO PAPER BO OK PAGE 1, WHICH IS REPLY FILED BEFORE THE AO AND SUBMITTED THAT WHEN THE CAPITAL G AIN WAS SHOWN IN ASSESSMENT YEAR 2004-05 ON FILING REVISED RETURN AND LAND VALU E AT KAKRETHA SOLD ON 04.04.2003 WAS MENTIONED AT RS.9,25,000/-, THE ASSE SSEE EXPLAINED THE SOURCE OF DEPOSIT OF CASH IN THE BANK ACCOUNT. COPIES OF REVI SED RETURN ARE FILED AT PAGE 5 & 6 OF THE PAPER BOOK, WHICH WAS FILED MUCH EARLIER THA N THE FILING OF THE RETURN FOR THE ASSESSMENT YEAR UNDER APPEAL. HE HAS SUBMITTED THAT WHEN THE ASSESSEE WAS NOT AWARE OF SALE OF LAND BY ATTORNEY, THE DATE OF SALE AS PER POWER OF ATTORNEY DATED 04.04.2003 WAS CORRECTLY TAKEN, WHICH WAS SUPPORTED BY CASH FLOW STATEMENT. ITA NO. 400/AGRA/2011 16 THERE WAS NO OTHER INCOME WITH THE ASSESSEE. HE HAS SUBMITTED THAT AO, HOWEVER, IN THE REMAND PROCEEDINGS COLLECTED EVIDENCES THAT LAND WAS SOLD ON 16.12.2005 WHICH FALL IN ASSESSMENT YEAR 2006-07, WOULD FURTHE R SUPPORT THE CASE OF THE ASSESSEE. HE HAS SUBMITTED THAT SMT. SITA DEVI, ATT ORNEY WAS NOT WILLING TO HAND OVER COPY OF SALE DEED TO THE ASSESSEE. HE HAS ADMI TTED THAT NO REQUEST WAS MADE U/S. 131 TO THE AO TO SUMMON SMT. SITA DEVI FOR EXA MINATION AND FURTHER THE ASSESSEE DID NOT TAKE ANY ACTION AGAINST THE ATTORN EY IN THE CIVIL COURT. HE HOWEVER, ADMITTED THAT THOUGH THE ASSESSEE PRODUCED SUFFICIE NT PROOF TO EXPLAIN THE CASH DEPOSIT, BUT NO EVIDENCE WAS FURNISHED THAT THE CAS H WAS RECEIVED FROM SMT. SITA DEVI, THE POWER OF ATTORNEY HOLDER. AS REGARDS THE GIFT, HE HAS SUBMITTED THAT IT AS A GIFT IN CASH GIVEN BY MOTHER IN LAW AND COPY OF GIF T CERTIFICATE WAS FILED BEFORE THE AO (PB-13). SHE ALSO OBTAINED MONEY FROM SALE OF PR OPERTY FROM SITA DEVI. THEREFORE, GENUINE GIFT WAS PROVED ALONG WITH CREDI TWORTHINESS OF THE DONOR. HE HAS RELIED UPON THE ORDER OF THE LD. CIT(A) FOR DEL ETING BOTH THE ADDITIONS. HE HAS SUBMITTED THAT THE LD. CIT(A) ON PROPER APPRECIATIO N OF FACTS AND MATERIAL ON RECORD, RIGHTLY DELETED BOTH THE ADDITIONS. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE FINDINGS OF THE AUTHORITIES BELOW AND CONSIDERED THE MATERIAL ON RE CORD. AS REGARDS THE DEPOSIT OF RS.11,60,000/- IN CASH IN THE BANK ACCOUNT OF ASSES SEE, THE AO HAS GIVEN SPECIFIC ITA NO. 400/AGRA/2011 17 FINDING FOR DISBELIEVING THE CLAIM OF THE ASSESSEE BECAUSE THE ASSESSEE HAS NOT PRODUCED COPY OF REGISTERED SALE DEED AND EVEN SMT. SITA DEVI, ATTORNEY WAS NOT PRODUCED FOR VERIFICATION. FURTHER, THE ASSESSEE WA S NOT AWARE OF THE NAMES OF THE PURCHASERS AND THAT THE ASSESSEE DID NOT DEPOSIT TH E SALE PRICE IN HER BANK ACCOUNT WITHIN THE REASONABLE PERIOD. EVEN AT THE APPELLATE STAGE, THE ASSESSEE HAS NOT SUBMITTED COPY OF PURCHASE DEED AND SALE DEED OF TH E LAND TO PROVE THE OWNERSHIP OF THE LAND AS WELL AS THE SALE CONSIDERATION. ONLY COPY OF KHATONI WAS FILED TO SHOW THAT SOME LAND HAS BEEN TRANSFERRED TO SHRI BA LAJI SAHKARI AVAS SAMITI LTD. SINCE THE ASSESSEE TOOK THE PLEA BEFORE THE AUTHORI TIES BELOW THAT THE AMOUNT DEPOSITED IN THE BANK ACCOUNT IS THE SALE PROCEEDS OF PROPERTY SOLD IN F.Y. 2004-05, THEREFORE, THE BASIC DOCUMENT TO PROVE THAT THE PRO PERTY WAS HELD BY THE ASSESSEE AND SOLD THROUGH POWER OF ATTORNEY ARE THE TITLE DE ED HELD BY THE ASSESSEE AND SOLD TO OTHER PARTIES SUBJECT TO CONSIDERATION. HOWEVER, THE ASSESSEE DID NOT PRODUCE THE TITLE DEED AND SALE DEED OF THE PROPERTY IN QUESTIO N AT ANY STAGE AND ALSO DID NOT MAKE ANY REQUEST TO THE AO TO SUMMON SMT. SITA DEVI FOR EXAMINATION. AS SUCH, THE AO HAS RIGHTLY DRAWN ADVERSE INFERENCE AGAINST THE ASSESSEE. THE LD. CIT(A) WHOLLY ON IRRELEVANT CONSIDERATION DID NOT TAKE INT O CONSIDERATION SUCH FACTS WHILE DECIDING THE APPEAL OF THE ASSESSEE. THE ASSESSEE D ID NOT FILE ANY CONFIRMATION FROM THE ATTORNEY AND IF THE VERSION OF THE ASSESSE E IS TO BE ACCEPTED THAT SMT. SITA DEVI, ATTORNEY HAD BETRAYED THE ASSESSEE AND WAS NO T CO-OPERATING WITH THE ITA NO. 400/AGRA/2011 18 ASSESSEE IN NOT GIVING THE COPY OF SALE DEED, IT IS HIGHLY UNBELIEVABLE THAT SUCH PERSON WOULD HAND OVER HUGE CASH BEING THE SALE CON SIDERATION OF LAND TO THE ASSESSEE WITHOUT EXECUTING ANY DOCUMENT. THE ASSESS EE DID NOT FURNISH ANY EVIDENCE BEFORE THE AUTHORITIES BELOW THAT SMT. SIT A DEVI, ATTORNEY ACTUALLY GAVE CASH IN QUESTION TO THE ASSESSEE ON SELLING THE PRO PERTY. NO DETAILS OF SALE OF LAND WERE EVEN INTIMATED TO THE ASSESSEE. SINCE NO EVIDE NCE WAS FURNISHED BY THE ASSESSEE THAT SHE ACTUALLY RECEIVED CASH FROM SMT. SITA DEVI, THE POWER OF ATTORNEY HOLDER, THE LD. CIT(A) SHOULD NOT HAVE DELETED THE ADDITION. FURTHER THE CONDUCT OF THE ASSESSEE IN NOT TAKING ANY ACTION AGAINST SMT. SITA DEVI WOULD SPEAK AGAINST THE ASSESSEE THAT SHE CONCOCTED ENTIRE STORY TO COV ER UP THE BANK DEPOSITS. FURTHER THE ASSESSEE DID NOT TAKE ANY ACTION FOR PRODUCTION OF SMT. SITA DEVI AT ASSESSMENT STAGE, AS NO REQUEST WAS MADE EVEN TO SUMMON HER FO R EXAMINATION OR CROSS EXAMINATION U/S. 131 OF THE IT ACT. ACCORDING TO T HE SECOND REMAND REPORT DATED 31.03.2011, SMT. SITA DEVI, ATTORNEY HOLDER RECEIVE D AMOUNTS OF RS.17,83,333/- AND RS.9,00,000/- FROM SHRI BALAJI SEHKARI AVAS SAM ITI LTD. THROUGH CHEQUE ON 16.12.2005, BUT NO EVIDENCE WAS PRODUCED THAT THIS AMOUNT WAS WITHDRAWN FROM HER BANK ACCOUNT TO GIVE THE SAME TO THE ASSESSEE. THE CASH DEPOSIT IN THE ACCOUNT OF THE ASSESSEE HAS NO CO-RELATION WITH THE DEPOSIT S MADE IN THE BANK ACCOUNT OF SMT. SITA DEVI. FURTHER, THE LD. CIT(A) REFERRED TO ANNEXURE-A1, I.E., CASH FLOW STATEMENT IN ORDER TO ACCEPT THE EXPLANATION OF THE ASSESSEE FOR HAVING POSSESSION ITA NO. 400/AGRA/2011 19 OF CASH OF RS.9,25,000/-. IT IS CLEAR THAT SUCH CAS H FLOW STATEMENT IS ALSO INCORRECT AND SHOULD NOT HAVE BEEN RELIED UPON BY THE LD. CIT (A). AS PER ANNEXURE A1, IT WAS PREPARED BY THE ASSESSEE FOR 01.04.2003 TO 31.0 3.2004 AND RS.9,25,000/- HAS BEEN SHOWN ON SALE OF LAND AT KAKRETHA, BUT AS PER THE REMAND REPORT AND EXPLANATION OF THE SAMITI, THE LAND WAS SOLD TO SAM ITI ON 16.12.2005, I.E., IN THE ASSESSMENT YEAR 2006-07 AND THEREFORE, THE CLAIM OF ASSESSEE OF SHOWING CAPITAL GAINS IN ASSESSMENT YEAR 2004-05 IS ALSO INCORRECT AND THE EXPLANATION OF THE ASSESSEE OF RECEIPT OF AMOUNT IN CASH FROM SMT. SIT A DEVI IS ALSO INCORRECT. FURTHER, NO CAPITAL GAIN HAS BEEN SHOWN IN THE RELEVANT ASSE SSMENT YEAR 2006-07 WOULD ALSO SUPPORT THE CASE OF THE AO. THE ASSESSEE BEFORE THE AO ALSO ADMITTED THAT SHE COULD KNOW SALE PROPERTY IN F.Y. 2005-06 RELEVANT T O THE ASSESSMENT YEAR 2006-07, THEREFORE, THERE IS NO QUESTION OF SHOWING ANY CAPI TAL GAINS IN ASSESSMENT YEAR 2004-05. THE ASSESSEE HAS ALSO FAILED TO EXPLAIN TH AT THE AMOUNT ALLEGEDLY SHOWN TO HAVE BEEN RECEIVED IN ASSESSMENT YEAR 2004-05 RE MAINED IN POSSESSION OF ASSESSEE IN CASH DESPITE THE ASSESSEE WAS MAINTAINI NG BANK ACCOUNT AND THE ASSESSEE FAILED TO EXPLAIN WHY THE CASH WAS NOT DEP OSITED IN THE BANK IMMEDIATELY ON RECEIPT OF THE AMOUNT FROM SMT. SITA DEVI. IT IS ALSO RELEVANT TO MENTION HERE THAT THE ASSESSEE IS RESIDENT OF AGRA AND THE PROPE RTY IS ALSO STATED TO BE SITUATED AT AGRA AND THE ASSESSEE ALSO MAINTAINED ONE BANK ACCO UNT AT AGRA WITH VIJAYA BANK, BUT THE AMOUNT IN QUESTION, I.E., RS.11,60,000/- WA S NOT DEPOSITED IN THE BANK ITA NO. 400/AGRA/2011 20 ACCOUNT AT AGRA, BUT IT WAS DEPOSITED IN CASH IN BA NK OF RAJASTHAN LTD. AT DEHRADUN. MAKING DEPOSIT IN CASH ALSO CLEARLY POINT ED OUT THAT THE ASSESSEE CONCOCTED THE ENTIRE STORY TO COVER UP THE UNACCOUN TED CASH DEPOSIT IN THE BANK ACCOUNT. DURING THE COURSE OF ARGUMENTS, BOTH THE P ARTIES EXPLAINED THAT THE CASE OF ASSESSEE WAS SELECTED FOR SCRUTINY ON GETTING INFOR MATION THAT THE ASSESSEE DEPOSITED UNACCOUNTED CASH IN BANK ACCOUNT WITH BAN K OF RAJASTHAN LTD. AT DEHRADUN. THE ABOVE CONDUCT OF THE ASSESSEE IS UNNA TURAL AND SPEAKS AGAINST HERSELF AND FULLY SUPPORTS THE CASE OF THE ASSESSIN G OFFICER. HONBLE SUPREME COURT IN THE CASE OF CIT VS SHRI DURGA PRASAD MORE, 82 ITR 540 AND IN THE CASE OF SMT. SUMATI DAYAL VS CIT 214 ITR 801, HELD THAT THE COURTS AND TRIBUNALS HAVE TO JUDGE THE EVIDENCES BEFORE THEM BY APPLYING THE TEST OF HUMAN PROBABILITIES AFTER CONSIDERING THE SURROUNDING CIRCUMSTANCES. IF THE SAID TEST IS APPLIED TO THE FACTS AND CIRCUMSTANCES OF THE CASE, IT IS CLEARLY ESTABL ISHED THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF CASH DEPOSITED BY HER IN H ER BANK ACCOUNT WITH BANK OF RAJASTHAN LTD. AT DEHRADUN. IT MAY ALSO BE NOTED TH AT POWER OF ATTORNEY HOLDER HAS NO BETTER TITLE THAN THE TITLE HELD BY THE OWNER OF THE PROPERTY. THE ATTORNEY ACTS ON BEHALF OF THE OWNER. SINCE NO POSSESSION WAS GIVEN TO THE ATTORNEY IN THIS CASE, THEREFORE, THE FINDINGS OF THE LD. CIT(A) FOR TRANS FER OF PROPERTY IS WHOLLY IRRELEVANT AND ARE NOT SUSTAINABLE IN LAW. THE SHOWING OF CAPI TAL GAINS, IN THE FACTS AND CIRCUMSTANCES NOTED ABOVE FOR THE ASSESSMENT YEAR 2 004-05 HAS, THUS, NO RELEVANCE ITA NO. 400/AGRA/2011 21 FOR DECIDING THE MATTER IN ISSUE. THE LD. CIT(A) ON WHOLLY IRRELEVANT CONSIDERATION AND WITHOUT HAVING ANY EVIDENCE TO EXPLAIN THE SOUR CE OF CASH DEPOSITED BY ASSESSEE WRONGLY DELETED THE ADDITIONS. THUS, THE O RDER OF THE LD. CIT(A) IS CLEARLY PERVERSE IN NATURE. THE BURDEN UPON THE ASSESSEE IS NOT DISCHARGED TO EXPLAIN THE UNACCOUNTED MONEY. SOURCE OF DEPOSIT OF CASH IN BAN K ACCOUNT OF THE ASSESSEE HAS NOT BEEN EXPLAINED TO THE SATISFACTION OF THE AO AS PER LAW. THEREFORE, THE LD. CIT(A) SHOULD NOT HAVE DELETED THE ADDITION. NO ALT ERNATE CONTENTION WAS RAISED BEFORE THE AUTHORITIES BELOW. FURTHER, THERE IS ENT IRE UNACCOUNTED DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. THEREFORE, THERE IS N O QUESTION OF REDUCING THE ADDITION AS PER ALTERNATE CONTENTION OF THE ASSESSE E. WE ACCORDINGLY, SET ASIDE THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION OF RS.11,60,000/- AND RESTORE THE ORDER OF THE AO. IN THE RESULT, GROUND NO. 1 OF APP EAL OF THE REVENUE IS ALLOWED. 6. AS REGARDS GIFT RECEIVED BY THE ASSESSEE FROM HE R MOTHE-IN-LAW, SMT. VIRENDRA KUMARI GUPTA, THE AO FOUND THAT THE ASSESS EE FAILED TO PROVE THE GENUINENESS OF THE GIFT AND CREDITWORTHINESS OF THE DONOR. DESPITE THE DONOR WAS MAINTAINING THE BANK ACCOUNT, NO AMOUNT WAS WITHDRA WN FROM THE BANK ACCOUNT FOR GIVING GIFT TO THE ASSESSEE. THE AO IN THE FIRS T REMAND REPORT SPECIFICALLY NOTED THAT THE ASSESSEE HAS FAILED TO PROVE CREDITWORTHIN ESS OF THE DONOR BECAUSE IN HER BANK ACCOUNT WITH VIJAYA BANK, AGRA, HER BANK BALAN CE WAS BELOW RS.1,00,000/-. ITA NO. 400/AGRA/2011 22 NO AMOUNT WAS WITHDRAWN FROM THE BANK ACCOUNT TO GI VE AS GIFT. COPY OF INCOME- TAX RETURN OF THE DONOR WAS FURNISHED BUT NO CAPITA L ACCOUNT AND CASH FLOW STATEMENT OF DONOR WAS FURNISHED AND EVEN IN THE RE TURN OF INCOME, THE GIFT TO THE ASSESSEE WAS NOT REFLECTED. THE ASSESSEE MERELY FUR NISHED GIFT CERTIFICATE WHICH IS NOT SUFFICIENT TO PROVE THE GENUINE GIFT IN THE MAT TER. THE ASSESSEE EXPLAINED THAT THE DONOR ALSO RECEIVED THE AMOUNT IN QUESTION FROM SMT. SITA DEVI, ATTORNEY FOR THE PURPOSE OF GIVING GIFT TO THE ASSESSEE. FURTHER , NO SUCH EVIDENCE IN THIS REGARD HAS BEEN FURNISHED AND ON THE SAME REASONING WE HAV E SET ASIDE THE ORDER OF THE LD. CIT(A) IN THE CASE OF ASSESSEE. THEREFORE, IT IS UN BELIEVABLE THAT THE DONOR WOULD HAVE RECEIVED THE AMOUNT IN QUESTION FROM SMT. SITA DEVI, POWER OF ATTORNEY HOLDER. THUS, THE OBJECTIONS OF THE AO HAVE BEEN IG NORED BY THE LD. CIT(A) WHILE DELETING THE ADDITION. NO EVIDENCE OR MATERIAL WAS PRODUCED BEFORE THE AUTHORITIES BELOW FOR SHOWING ANY LOVE AND AFFECTION. SINCE NO SUFFICIENT EVIDENCE HAS BEEN FILED BEFORE THE AUTHORITIES BELOW TO PROVE THE GEN UINENESS OF THE GIFT AND THE ASSESSEE ALSO FAILED TO PROVE CREDITWORTHINESS OF T HE DONOR, THEREFORE, IT IS CLEAR THAT THE GIFT IN THE MATTER IS NOT GENUINE GIFT AND ARRA NGED AFFAIRS OF THE ASSESSEE. HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANI L KUMAR 292 ITR 552 HELD IN THE CASE OF GIFTS MERE IDENTIFICATION OF THE DON OR AND SHOWING THE MOVEMENT OF THE GIFT AMOUNT THROUGH BAN KING CHANNELS IS NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE GIFT . SINCE THE CLAIM OF GIFT IS MADE BY THE ASSESSEE, THE ONUS LIES ON HIM NOT ONLY TO ESTABLISH THE IDENTITY OF THE PERSON MAKING THE GIFT BUT ALSO HIS CAPACITY TO MAKE SUCH A GIFT. IN ASSESSMENT PROCEEDINGS FOR THE ASSE SSMENT YEAR 1995- ITA NO. 400/AGRA/2011 23 96 THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD RECEIVED TWO GIFTS OF RS.10 LAKHS EACH FROM N. R. E. ACCOUNTS OF TWO DONORS, NAMELY V AND D. THE ASSESSING OFFICER FOUND THAT THE ASSES SEE COULD NOT DISCHARGE HIS ONUS OF PROVING THE CREDIT-WORTHINESS OF THE DONORS AND HELD THAT THE AMOUNT OF RS.20 LAKHS WHICH HAD BEEN DECLARED BY THE ASSESSEE AS GIFT, WAS IN FACT HIS INCOME AND ADDED TO HIS TOTAL INCOME UNDER SECTION 68. THE ADDITION WAS DELETED BY THE C OMMISSIONER (APPEALS) AND THIS WAS UPHELD BY THE TRIBUNAL. ON A PPEAL TO THE HIGH COURT: HELD THAT THERE WAS NOTHING ON RECORD TO SHO W AS TO WHAT WAS THE FINANCIAL CAPACITY OF THE DONORS, WHAT WAS THE CREDIT-WORTHINESS OF THE DONORS, WHAT KIND OF RELATIONSHIP THE DONORS HA D WITH THE ASSESSEE, WHAT WERE THE SOURCES OF FUNDS GIFTED TO THE ASSESSEE AND WHETHER THEY HAD THE CAPACITY OF GIVING LARGE AMOUN TS OF GIFT TO THE ASSESSEE. FURTHER, THE ASSESSEE WAS ASKED TO APPEAR IN PERSON BEFORE THE ASSESSING OFFICER, BUT NEVER APPEARED. THE ADDI TION OF RS.20 LAKHS WAS JUSTIFIED. 6.1 THE HONBLE SUPREME COURT IN THE CASE OF CIT VS P. MOHANKALA 291 ITR 278 HELD THE ASSESSEE RECEIVED FOREIGN GIFTS FROM ONE COMMON DONOR. THE PAYMENTS WERE MADE TO THEM BY INSTRUMENTS ISSUE D BY FOREIGN BANKS AND CREDITED TO THE RESPECTIVE ACCOUNT OF THE ASSESSEES BY NEGOTIATION THROUGH A BANK IN INDIA. MOST OF THE CH EQUES SENT FROM ABOARD WERE DRAWN ON THE CITIBANK, N. A. SINGAPORE. THE EVIDENCE INDICATED THAT THE DONOR WAS TO RECEIVE SUITABLE CO MPENSATION FROM THE ASSESSEES. ON THIS MATERIAL THE ASSESSING OFFIC ER HELD THAT THE GIFTS THOUGH APPARENT WERE NOT REAL AND ACCORDINGLY TREAT ED ALL THOSE AMOUNTS WHICH WERE CREDITED IN THE ACCOUNT BOOKS OF THE ASSESSEES AS THEIR INCOME APPLYING SECTION 68 OF THE INCOME-TAX ACT, 1961. THE ASSESSEES DID NOT CONTEND THAT EVEN IF THEIR EXPLAN ATION WAS NOT SATISFACTORY THE AMOUNTS WERE NOT OF THE NATURE OF INCOME. THE COMMISSIONER (APPEALS) CONFIRMED THE ASSESSMENT. ON FURTHER APPEAL, THERE WAS A DIFFERENCE OF OPINION BETWEEN T HE TWO MEMBERS OF THE APPELLATE TRIBUNAL AND THE MATER WAS REFERRED T O THE VICE PRESIDENT WHO CONCURRED WITH THE FINDINGS AND CONCL USION OF THE ASSESSING OFFICER AND THE COMMISSIONER (APPEALS). O N APPEAL THE HIGH COURT RE-APPRECIATED THE EVIDENCE AND SUBSTITU TED ITS OWN ITA NO. 400/AGRA/2011 24 FINDINGS AND CAME TO THE CONCLUSION THAT THE REASON S ASSIGNED BY THE TRIBUNAL WERE IN THE REALM OF SURMISES, CONJECTURE AND SUSPICION. ON APPEAL TO THE SUPREME COURT: HELD, REVERSING THE DE CISION OF HIGH COURT, THAT FINDINGS OF THE ASSESSING OFFICER, THE COMMISSIONER (APPEALS) AND THE TRIBUNAL WERE BASED ON THE MATERI AL ON RECORD AND NOT ON ANY CONJECTURES AND SURMISES. THAT THE MONEY CAME BY WAY OF BANK CHEQUES AND WAS PAID THROUGH THE PROCESS OF BA NKING TRANSACTION WAS NOT BY ITSELF OF ANY CONSEQUENCE. T HE HIGH COURT MISDIRECTED ITSELF AND ERRED IN DISTURBING THE CONC URRENT FINDINGS OF FACT. 6.2. HONBLE PUNJAB AND HARYANA HIGH COURT IN THE C ASE OF YASH PAL GOEL VS CIT 310 ITR 75 HELD HELD, DISMISSING THE APPEAL THAT THE FINANCIAL POS ITION OF M. SUGGESTED THAT HE NEITHER HAD THE CAPACITY TO MAKE THE GIFT NOR THE SOURCE FROM WHERE THE GIFT WAS MADE. NO REASON WHAT SOEVER HAD BEEN ASSIGNED FOR GIFTING SUCH A HUGE AMOUNT BY M TO THE ASSESSEE. M NEVER VISITED THE HOME OF THE ASSESSEE AND HENCE THERE WA S NO LOVE AND AFFECTION. IT WAS NOTHING BUT A SUBTERFUGE TO AVOID INCOME-TAX. THE TRANSACTIONS WERE NOT GENUINE ONES. 6.3 CONSIDERING THE ABOVE DISCUSSION, IT IS CLEAR T HAT THE ASSESSEE FAILED TO PROVE CREDITWORTHINESS OF THE DONOR AND GENUINE GIFT IN T HE MATTER. THE ASSESSEE IN THE CASE OF THE DONOR ALSO EXPLAINED THAT SMT. SITA DEV I, ATTORNEY HOLDER SOLD THE LAND FOR A CONSIDERATION OF RS.4,62,000/- IN ASSESSMENT YEAR 2004-05 OUT OF WHICH THE DONOR REALIZED AMOUNT OF RS.1,00,000/- AND GAVE IT TO THE ASSESSEE AS GIFT, BUT WHY THE CASH WAS KEPT FOR A LONG PERIOD WITHOUT DEPOSIT ING IN THE BANK ACCOUNT OF THE DONOR, WAS NOT EXPLAINED, WOULD ALSO A POINT TO THE EFFECT THAT IT WAS NOT A GENUINE GIFT IN THE MATTER. THE LD. CIT(A) WRONGLY DELETED THE ADDITION OF RS.1,00,000/-. ITA NO. 400/AGRA/2011 25 WE, ACCORDINGLY, SET ASIDE THE ORDER OF THE LD. CIT (A) AND RESTORE THE ORDER OF THE AO. IN THE RESULT, GROUND NO. 2 IS ALSO ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY