I.T.O., Ward-1(4), Aligarh V. Sh. Baijendra Kumar Sharma, Aligarh

ITA 41/AGR/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0723 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 3 month(s) 10 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-07-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 06-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Gift; Opportunity of being heard; Corroborative evidences; Set aside
• Section: 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. 41/AGRA/2013 ASSTT. YEAR : 2003-04 INCOME-TAX OFFICER, VS. SRI BAIJENDRA KUMAR SHAR MA, WARD 1(4), ALIGARH. S/O SRI J.P. SHARMA, 2/475,CHANDHANIYA, ALIGARH. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.K. MISHRA, JR. D.R. RESPONDENT BY : NONE DATE OF HEARING : 09.07.2013 DATE OF PRONOUNCEMENT OF ORDER : 12.07.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), GHAZIABAD DATED 05.11.2012 FOR THE ASSESSMENT YEAR 2003-04 ON THE FOLLOWING GROUNDS : 1. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION AMOUNTING TO RS.9,00,000/- ON ACCOUNT OF DISALLOWANCE OF THE ALLEGED GIFTS IGNORING THE FACT THAT SUFFICI ENT OPPORTUNITY WAS PROVIDED TO THE ASSESSEE BUT COULD NOT SUBSTANTIATE THE GENUINENESS, CREDITWORTHINESS AND CAPACITY OF THE ALLEGED DONORS . EVEN THE TRANSACTION HAVE NOT BEEN MADE THROUGH BANK AND REC EIPT OF THE ALLEGED GIFTS HAS BEEN DECLARED MERELY THROUGH CASH TRANSACTION. ITA NO. 41/AGRA/2013 2 2. . THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.82,600/- ON ACCOUNT OF DISALLOWA NCE ON AGRICULTURAL INCOME, IGNORING THE FACT THAT ASSESSM ENT OF THE AO FOR AGRICULTURE INCOME I.E. 2,000/- PER ANNUM PER KACHA BIGHA IS QUITE FAIR AND REASONABLE CONSIDERING THE LOCALITY OF LAN D. 3. . THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.24,200 ON ACCOUNT OF LOW INCOME DECLARED FROM JOB WORK, IGNORING THE FACT THAT NO MACHINE OR TOOL S HAVE BEEN SHOWN BY THE ASSESSEE IN ANY OF THE RECORD FILED BE FORE THE DEPARTMENT. 2. WE HAVE HEARD THE LD. DR AND PERUSED THE FINDING S OF THE AUTHORITIES BELOW. NONE PRESENT ON BEHALF OF THE ASSESSEE DESPI TE NOTIFYING THE DATE OF HEARING TO THE ASSESSEE THROUGH REGISTERED POST. PR IOR TO THE DATE FIXED FOR HEARING ON 07.05.2013, THE APPEAL WAS ADJOURNED ON THE REQU EST OF THE ASSESSEE. THEREFORE, DESPITE SERVICE OF NOTICE, NONE PRESENT ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING OF APPEAL ON 09.07.2013. THEREFORE, THE ASSESSEE IS PROCEEDED EXPARTE. 3. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS FILED RETURN OF INCOME AT RS.55,800/- ALONG WITH AGRICULTURAL INCOME OF RS .1,34,600/-. THE ASSESSEE HAS SHOWN RECEIPTS OF GIFTS OF RS.9,00,000/- FROM VARIO US PERSONS. THE ASSESSEE WAS, THEREFORE, DIRECTED TO PRODUCE ALL SEVEN ALLEGED DO NORS ALONG WITH THEIR IDENTITY PROOF AND SOURCE OF GIFT. THE ASSESSEE FILED AFFIDA VITS OF THE ALLEGED DONORS WITH ITA NO. 41/AGRA/2013 3 DECLARATION OF MAKING GIFT ALONG WITH DETAILS OF LA ND HOLDING AND SALES OF AGRICULTURAL PRODUCE. HOWEVER, NONE OF THE DONORS W ERE PRODUCED FOR EXAMINATION BEFORE THE AO. THE AO FOUND THAT ALL TH E SEVEN DONORS ARE RESIDENT OF DIFFERENT VILLAGES, BUT THEY HAVE PURCHASED THE STAMPS FROM ONE STAMP VENDOR FROM ALIGARH ON THE SAME DAY. ALL THE AFFIDAVITS HA VE BEEN TYPED BY ONE PERSON ON THE SAME COMPUTER DESPITE ALL THE DONORS ARE FRO M DIFFERENT PLACES. ONE OF THE DONORS, MR. MADAN LAL USED GREEN INK PEN WHICH WAS ALSO USED BY ANOTHER DONOR SHRI LACHHI RAM. THEREFORE, THESE FACTS WERE NOT ON LY SURPRISING BUT UNBELIEVABLE. SIMILAR WAS THE POSITION WITH REGARD TO SHRI SHYAM LAL SHARMA. NO OCCASION OF MAKING GIFT HAS BEEN PROVED. NO SOURCE OF EARNING OF AGRICULTURAL INCOME WAS FILED. THE AO CONSIDERING THE TOTALITY O F THE FACTS AND CIRCUMSTANCES, FOUND THAT THE ASSESSEE HAS FAILED TO PROVE IDENTIT Y, CAPACITY AND CREDITWORTHINESS OF ALL THE DONORS. THEREFORE, GENUINENESS OF THE GI FT REMAINED UNPROVED. ALL THE GIFTS ARE NOT MADE THROUGH BANKING CHANNEL AND ARE CASH TRANSACTIONS. RS.9,00,000/- WAS, THEREFORE, HELD AS INCOME FROM U NDISCLOSED SOURCES AND ADDITION WAS ACCORDINGLY MADE. WRITTEN SUBMISSION O F THE ASSESSEE IS REPRODUCED IN THE APPELLATE ORDER. THE LD. CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE BECAUSE THE AFFIDAVIT, GIFT DECLARATION AND AGRICUL TURAL LAND HOLDING WILL PROVE THE CREDITWORTHINESS OF THE DONORS. THE LD. CIT(A) ALSO HELD THAT RELATIONSHIP AND ITA NO. 41/AGRA/2013 4 PROOF OF LAND HOLDING HAS BEEN FILED. THEREFORE, TH E ASSESSEE HAS FULFILLED THE REQUIREMENT OF SECTION 68 OF THE IT ACT AND ACCORDI NGLY, ADDITION WAS DELETED. 4. ON CONSIDERATION OF THE SUBMISSIONS OF LD. DR IN THE LIGHT OF FACTS NOTED BY THE AO WE DO NOT FIND ANY JUSTIFICATION FOR THE LD. CIT(A) TO HAVE DELETED THE ADDITION. IT IS WELL SETTLED THAT THE ASSESSEE HAS TO PROVE THE IDENTITY OF THE DONOR, THEIR CREDITWORTHINESS AND GENUINENESS OF THE GIFT IN THE MATTER ALONG WITH OCCASION OF MAKING GIFT AND THE RELATIONSHIP WITH T HE ASSESSEE TO PROVE LOVE & AFFECTION WITH THE ASSESSEE. THE AO HAS GIVEN SPECI FIC FINDINGS AGAINST THE ASSESSEE WHICH CREATED DOUBT ABOUT THE GENUINENESS OF THE GIFT. NONE OF THE ABOVE CONTENTIONS OF THE VALID GIFT HAVE BEEN PROVE D BY THE ASSESSEE. EVEN NONE OF THE DONORS HAVE BEEN PRODUCED BEFORE THE AO FOR EXAMINATION IN ORDER TO FIND OUT TRUTH AND GENUINENESS OF THE TRANSACTION IN THE MATTER. ACCORDING TO SECTION 250(6) OF THE IT ACT, THE LD. CIT(A) SHALL HAVE TO PASS REASONED ORDER ON THE POINT IN ISSUE. THE LD. CIT(A) HAS NOT PASSED ANY R EASONED ORDER ON THE SAME AND MERELY IN A BRIEF ORDER DELETED THE ADDITION OF RS. 9,00,000/-. THE LD. CIT(A) EVEN DID NOT MENTION THE NAMES OF THE DONORS IN THE APPE LLATE ORDER AS TO WHAT EVIDENCES HAVE BEEN FILED TO PROVE THE IDENTITY OF THE DONORS, THEIR CREDITWORTHINESS AND GENUINENESS OF THE GIFT IN THE MATTER WITH OCCASION OF GIFT ITA NO. 41/AGRA/2013 5 AND WHETHER THERE ARE EVIDENCE OF ANY LOVE AND AFFE CTION BETWEEN THE ASSESSEE AND THE DONORS. THE LD. CIT(A) DID NOT CONSIDER THE OBJECTIONS OF THE AO WHICH HAVE CREATED A DOUBT REGARDING GENUINENESS OF THE G IFT IN THE MATTER. THE LD. CIT(A) WAS, THEREFORE, REQUIRED TO GIVE SPECIFIC FI NDING OF FACT ON ALL THE ABOVE INGREDIENTS OF GENUINE GIFT IN THE MATTER, WHICH TH E LD. CIT(A) HAS FAILED TO DO SO. CONSIDERING THE ABOVE DISCUSSION, WE SET ASIDE THE ORDER OF THE LD. CIT(A) ON GROUND NO. 1 AND RESTORE THIS ISSUE TO HIS FILE WIT H DIRECTION TO RE-DECIDE THIS GROUND BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE LD. CIT(A) SHALL PASS REASONED ORDER GIVING COMPLETE FACTS AND DISCUSSING THE EVIDENCES IN THE APPELLATE ORDER. IN THE RESULT , GROUND NO.1 OF APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 5. ON GROUND NO. 2, THE LD. CIT(A) DELETED THE ADDI TION OF RS.82,600/- ON ACCOUNT OF AGRICULTURAL INCOME. THE ASSESSEE HAS SH OWN 26 KACHCHA BIGHAS OF AGRICULTURAL LAND AND DECLARED AGRICULTURAL INCOME OF RS.1,34,600/-. THE DETAILS OF SALES OF DIFFERENT CROPS HAVE BEEN FURNISHED, BUT T HE ASSESSEE FAILED TO FURNISH SUPPORTING DOCUMENTARY EVIDENCES IN CONNECTION WITH THE ALLEGED SALES OF AGRICULTURAL PRODUCE. THEREFORE, THE AGRICULTURAL I NCOME TO THE EXTENT OF RS.52,000/- WAS HELD GENUINE AND ADDITION OF RS.826 00/- WAS MADE. THE LD. ITA NO. 41/AGRA/2013 6 CIT(A) FOUND THAT THE ASSESSEE HAS FURNISHED ENOUGH DETAILS AND EVEN BASIS OF AVERAGE YIELD IS AROUND RS.4500 5000 PER KACHCHA BIGHA, WHICH IS GENERALLY ACCEPTED. THEREFORE, THE ADDITION WAS DELETED. 6. ON CONSIDERATION OF THE SUBMISSIONS OF THE LD. D R IN THE LIGHT OF FINDINGS OF AO, WE ARE OF THE VIEW THAT THIS ISSUE ALSO REQU IRES RECONSIDERATION AT THE LEVEL OF THE LD. CIT(A). THE AO SPECIFICALLY FOUND THAT T HE ASSESSEE HAS FAILED TO FURNISH SUPPORTING DOCUMENTARY EVIDENCES IN CONNECT ION WITH THE ALLEGED SALES OF AGRICULTURAL PRODUCE. THE LD. CIT(A) DID NOT DISCUS S IN THE APPELLATE ORDER AS TO WHAT ENOUGH DETAILS WERE FURNISHED BY THE ASSESSEE ON THIS ISSUE. THE LD. CIT(A) WITHOUT GIVING ANY BASIS AS TO HOW THE AVERAGE YIEL D IS ACCEPTED OF RS.4500 5000 AND WITHOUT GIVING REASONS DELETED THE ADDITIO N. THUS, NO REASONS HAVE BEEN GIVEN ON THIS ISSUE. WE, THEREFORE, SET ASIDE THE O RDER OF THE LD. CIT(A) ON THIS ISSUE AND RESTORE THIS ISSUE TO HIS FILE WITH THE D IRECTION TO RE-DECIDE THIS ISSUE IN THE LIGHT OF FINDINGS OF THE AO BY GIVING REASONABL E AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. CIT(A) SHALL A LSO DISCUSS ALL EVIDENCES ON RECORD FILED BY THE ASSESSEE WHILE ARRIVING AT THE DECISION IN THE MATTER. IN THE RESULT, GROUND NO. 2 OF APPEAL OF THE REVENUE IS AL LOWED FOR STATISTICAL PURPOSES. ITA NO. 41/AGRA/2013 7 7. ON GROUND NO. 3, THE REVENUE CHALLENGED THE DELE TION OF ADDITION OFRS.24200/- ON ACCOUNT OF LOW INCOME DECLARED FROM JOB WORK. THE ASSESSEE HAS DECLARED JOB WORK INCOME OF RS.55,800/-. THE ASSESS EE WAS DIRECTED TO EXPLAIN THE NATURE OF JOB UNDERTAKEN BY ASSESSEE. THE ASSES SEE HAS NOT SHOWN ANY MACHINE OR TOOL. THEREFORE, THE CLAIM OF ASSESSEE W AS NOT ACCEPTED AND INCOME FROM JOB WORK WAS ESTIMATED AT RS.80,000/- AND ADDI TION OF RS.24200/- HAS BEEN MADE. THE LD. CIT(A) DELETED THE ADDITION BECAUSE N O CONCRETE REASONS HAVE BEEN MENTIONED BY THE AO WHILE ESTIMATING THE INCOME FRO M JOB. 8. ON CONSIDERATION OF THE SUBMISSIONS OF THE LD. D R, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE ASSESSEE HAS SHOWN JOB WORK INCOME OF RS.55,800/- AND CLAIMED THAT JOB WORK IS DONE BY USING TWO HAND PRESSES. THE AO, THEREFORE, FOUND THAT NO MACHINES OR TOOLS HAVE BEEN SHOWN BY THE ASSESSEE. THEREFORE, THE INCOME WAS ESTIMATED A T HIGHER FIGURE. WHEN THE CONTENTION OF THE ASSESSEE WAS NOT ACCEPTED BY THE AO THAT HE IS DOING JOB WORK FROM TWO HAND PRESSES AND NO MACHINES OR TOOLS HAVE BEEN SHOWN BY THE ASSESSEE WOULD MEAN THAT THE ASSESSEE WOULD NOT HAVE EARNED EXCESSIVE INCOME IN THE JOB WORK. THEREFORE, INSTEAD OF REDUCING THE INCOME ON THIS ISSUE, THE AO SHOULD NOT HAVE ENHANCED THE INCOME TO A HIGHER FIGURE WITHOUT ANY BASIS OR REASON. THE LD. ITA NO. 41/AGRA/2013 8 CIT(A), THEREFORE, FINDING THAT THERE IS NO BASIS O R SUPPORTING EVIDENCE TO MAKE ADDITION, RIGHTLY DELETED THE ADDITION. GROUND NO. 3 OF THE DEPARTMENTAL APPEAL IS ACCORDINGLY DISMISSED. 9. IN THE RESULT, THE DEPARTMENTAL APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 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