DEVENDRA KUMAR MEENA, Jaipur V. ITO, Jaipur

ITA 436/JPR/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1958 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 30-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P P MEENA JCIT DR DHK
• Keywords: Unexplained investment; Source of fund; Additional evidence; Question of law; Non compliance
• Section: 131; 68; 69

Judgement Text

ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 1 VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 436/JP/2015 & 219/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07 & 2007-08 SHRI DEVENDRA KUMAR MEENA A-32, JAIKISHAN COLONY, TONK PHATAK JAIPUR CUKE VS. THE ITO WARD- 6(3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AHFPM 7317 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI ANIL SHARMA, CA JKTLO DH VKSJ LS@ REVENUE BY :SHRI P.P. MEENA, JCIT- DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21/09/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 27 /10/2017 VKNS'K@ ORDER PER BHAGCHAND, AM BOTH THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST SEPARATE ORDERS OF THE LD. CIT(A)-2, JAIPUR DATED 16-03-2015 AND 28-1 2-2015 FOR THE ASSESSMENT YEARS 2006-07 AND 2008-09 RESPECTIVELY RAISING THER EIN FOLLOWING GROUNDS:- ITA NO. 436/JP/2015 A.Y.2006-07 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN NOT ADMITTING THE ADDITI ONAL EVIDENCES SUBMITTED BY THE ASSESSEE U/R 46A OF I.T. RULES, 19 62. ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 2 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN NOT CONFIRMING THE ADDI TION OF RS. 33,14,000/- AGAINST THAT OF RS. 36,14,000/- MADE BY THE AO TOWARDS CASH DEPOSITS INTO THE BANK AND PAYMENT MAD E FOR PURCHASE OF LAND, HOLDING THE SAME AS UNEXPLAINED I NVESTMENT U/S 69 OF THE ACT. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN NOT JUSTIFIED IN ESTIMA TING THE AGRICULTURE INCOME OF THE ASSESSEE AT RS. 3,00,000/ - FROM 16 BIGHA OF AGRICULTURE LAND HELD BY THE ASSESSEE AND THEREBY DELETING THE RELEVANT ADDITION TO THAT EXTENT ONLY. ITA NO. 219/JP/2016 A.Y.2007-08 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) IS NOT JUSTIFIED IN NOT JUSTIFIED IN CONFIR MING THE ADDITION OF RS. 25,56,440/- AS UNEXPLAINED INVESTME NT U/S 69 OF THE I.T. ACT, 1961 TOWARDS CASH DEPOSITED INTO THE BANK AND PAYMENT MADE FOR PURCHASE OF AGRICULTURE LAND. 2.1 FIRST OF ALL, THE APPEAL OF THE ASSESSEE IN ITA NO.436/JP/2015 FOR THE ASSESSMENT YEAR 2006-07 IS TAKEN UP FOR ADJUDICATIO N. 3.1 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE HAS NOT PRESSED THE GROUND NO. 3. HENCE, THE SAME IS DISMISSED BEING NO T PRESSED. 4.1 APROPOS GROUND NO. 1 AND 2 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 3.6 I HAVE PERUSED THE FACTS OF THE CASE, THE AS SESSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. THE APPELLANT HAS MAD E CASH DEPOSITS IN HIS BANK ACCOUNT OF RS. 21,50,000/- DURING THE YEAR AND HAS ALSO MADE CASH PAYMENT OF RS. 14,64,000/- FOR PURCHASE OF AGRICULTURAL LAND, DURI NG THE YEAR. THE APPELLANT HAS ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 3 STATED THAT THE SOURCE OF ABOVE CASH DEPOSITS IN BA NK AND CASH PAYMENT OF AGRICULTURAL LAND IS (A) AGRICULTURAL INCOME AND AD VANCES RECOVERED OF RS. 20,00,000/-; AND (B) BANK WITHDRAWALS OF RS. 17 ,50,000/-. 4. EXPLANATION RELATING TO BANK WITHDRAWALS OF RS. 17, 50,000/ - 4.1 AS REGARDS, THESE BANK WITHDRAWALS OF RS. 17,5 0,000/- MADE BY THE APPELLANT IN F.Y. 2005-06, IT WAS SEEN THAT THESE W ITHDRAWALS HAVE BEEN MADE BY CHEQUE WHICH CANNOT PRIMA FACIE EXPLAIN CASH DEPOSI TS IN THE BANK ACCOUNT OR CASH PAYMENTS FOR PURCHASE OF LAND. DURING ASSESSME NT PROCEEDINGS, IT WAS STATED BY THE ASSESSEE THAT THESE WITHDRAWALS MADE BY CHEQ UES WERE GIVEN TO LAND OWNERS AS ADVANCES FOR PURCHASE OF LAND WHICH WAS S UBSEQUENTLY RECEIVED BACK IN CASH FROM THEM ON CANCELLATION OF AGREEMENT. THE AS SESSING OFFICER HAS RIGHTLY POINTED OUT IN THE ASSESSMENT ORDER THAT NO EVIDENC ES HAVE BEEN GIVEN BY THE ASSESSEE IN SUPPORT OF THIS CONTENTION. IT IS TO BE NOTED THAT EVEN BASIC DETAILS LIKE NAME AND ADDRESSES OF THE PERSONS TO WHOM ADVANCES HAVE BEEN GIVEN BY CHEQUE, WERE NOT FURNISHED DURING ASSESSMENT PROCEEDINGS. D URING APPELLATE PROCEEDINGS, IT WAS STATED THAT THE ABOVE BANK WITHDRAWALS THROU GH CHEQUE WERE GIVEN AS ADVANCE, AMOUNTING TO RS. 12,50,000/-, FOR PURCHASE OF THREE PLOTS OF LAND. IN SUPPORT THEREOF, THE APPELLANT SUBMITTED ADDITIONAL EVIDENCES IN THE FORM OF AGREEMENTS AND SUBSEQUENT CANCELLATION AGREEMENTS F OR TWO PLOTS OF LAND FOR WHICH ADVANCE OF RS. 8,50,000/- HAD BEEN GIVEN. WIT H RESPECT TO THE THIRD PLOT OF LAND, NO DOCUMENTARY EVIDENCE WAS FURNISHED, HOWEVE R NAME AND ADDRESS OF THE CONCERNED PERSONS WAS GIVEN. 4.2 WITH RESPECT TO THE ADMISSIBILITY OF THE ADDI TIONAL EVIDENCE SUBMITTED DURING APPEAL PROCEEDINGS, AS DISCUSSED ABOVE, I DO NOT AGREE WITH THE CONTENTION OF THE APPELLANT THAT SUFFICIENT OPPORTUNITY WAS NO T GIVEN DURING ASSESSMENT PROCEEDINGS. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF CASH DEPOSITS AND CASH PAYMENTS VIDE NOTICE DATED 30.07.2013, IN RESP ONSE TO WHICH THE ASSESSEE FILED REPLIES DATED 25.11.2013, 05.12.2013 ETC. LEA DING TO FINALIZATION OF ASSESSMENT ONLY ON 20.02.2014. FROM THE ABOVE IT CA N BE SEEN THAT SUFFICIENT OPPORTUNITIES WERE GIVEN TO THE ASSESSEE TO ADDUCE NECESSARY EVIDENCES TO DISCHARGE HIS ONUS U/S. 69 OF THE I.T. ACT. HOWEVER , THE ASSESSEE DID NOT SUBMIT EVEN THE BASIC AND BARE MINIMUM DETAILS IN THE FORM OF NAMES AND ADDRESSES OF THE PERSONS TO WHOM THE ADVANCES HAD BEEN GIVEN. IN VIEW OF THE ABOVE DISCUSSION, IT IS HELD THAT THE APPELLANT WAS NOT P REVENTED BY SUFFICIENT CAUSE FROM PRODUCING BEFORE THE ASSESSING OFFICER, EVIDENCES R ELEVANT TO THE ABOVE GROUNDS OF APPEAL. THEREFORE, THE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCES UNDER RULE 46A IS NOT ACCEPTED AND THE ADDITIONAL EVIDENC ES ARE NOT ADMITTED. ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 4 4.3 EVEN OTHERWISE, THE ADDITIONAL EVIDENCES SUBMI TTED BY THE APPELLANT DO NOT HAVE EVIDENTIARY VALUE SINCE THE PERSONS, TO WHOM A DVANCES ARE SAID TO HAVE BEEN GIVEN, WERE WITNESSES OF THE APPELLANT, BUT HE WAS UNABLE TO PRODUCE THEM IN SPITE OF BEING SPECIFICALLY ASKED BY THE ASSESSING OFFICE R TO DO SO, DURING REMAND PROCEEDINGS. DURING INQUIRIES MADE BY THE ASSESSING OFFICER, IT WAS SEEN THAT ONE OF THE PERSONS (PHOOLA DEVI) TO WHOM ADVANCE OF RS. 5,00,000/- WAS GIVEN, WAS NOT EXISTING AT THE ADDRESS GIVEN BY THE APPELLANT. THUS, DURING APPEAL PROCEEDINGS SATISFACTORY EXPLANATION WITH RESPECT T O BANK WITHDRAWALS OF RS. 12,50,000/- HAS NOT BEEN FURNISHED BY THE APPEL LANT. THE APPELLANT HAS RELIED ON THE JUDGEMENT IN THE CASE OF ORISSA CORPORATION PVT. LTD. 159 ITR 78 (SC) TO SUPPORT HIS CASE. HOWEVER, THE FACTS OF THE APPELLA NTS CASE ARE DIFFERENT FROM THE CASE LAW CITED IN SO FAR AS IN THE CASE LAW CITED - (A) NAMES & ADDRESSES OF THE ALLEGED CREDITORS HAD BEEN SUBMITTED. IN THE APPELL ANTS CASE, NAMES & ADDRESSES WERE NOT SUBMITTED DURING ASSESSMENT PROCEEDINGS AN D THE ADDITIONAL EVIDENCES SUBMITTED DURING APPEAL PROCEEDINGS HAVE NOT BEEN A DMITTED. FURTHERMORE, IT WAS SEEN DURING REMAND PROCEEDINGS THAT THE NAMES & ADD RESSES OF SOME OF THESE PERSONS WHO HAD RETURNED BACK THE ADVANCE IN CASH W ERE FALSE, (B) PAN / GIR NO. OF THE ALLEGED CREDITORS HAD BEEN SUBMITTED IN THE CASE LAW CITED ABOVE. HOWEVER, IN THE INSTANT CASE, NO PAN / GIR NO. HAVE BEEN SUB MITTED. THEREFORE, THE RATIO OF THE ABOVE CASE LAW CANNOT BE APPLIED IN THIS CASE. HENCE, THE EXPLANATION OF THE ASSESSEE REGARDING SOURCE, TO THE EXTENT OF RS. 12, 50,000/-, TO BE OUT OF ADVANCES, BY CHEQUE TO LAND OWNERS, RETURNED BACK IN CASH, CA NNOT BE ACCEPTED. 4.4 WITH RESPECT TO THE EXPLANATION REGARDING THE BALANCE BANK WITHDRAWALS BY CHEQUE OF RS. 5,00,000/-, IT HAS BEEN STATED BY THE APPELLANT THAT THE EARLIER BANK WITHDRAWALS BY CHEQUE HAD BEEN GIVEN TO FRIEND S / RELATIVES WHICH HAVE BEEN RETURNED BACK IN CASH. HERE AGAIN, THE APPELLANT HA S NOT SUBMITTED EVEN THE BASIC DETAILS REGARDING NAMES & ADDRESSES OF THE PERSONS TO WHOM THESE ADVANCES HAD BEEN GIVEN. THEREFORE, THIS EXPLANATION OF THE APPE LLANT IS NOT SUBSTANTIATED OR BACKED BY ANY EVIDENCE WHATSOEVER AND IS THEREFORE, NOT SATISFACTORY. 4.5 THEREFORE, IN VIEW OF THE ABOVE DISCUSSION, TH E EXPLANATION FURNISHED BY THE APPELLANT WITH REGARD TO BANK WITHDRAWALS OF RS . 17,50,000/- IS NOT SATISFACTORY AND CANNOT BE ACCEPTED. 5. EXPLANATION RELATING TO AGRICULTURAL INCOME, OTHER INCOME AND RETURN OF ADVANCES OF RS. 20,00,000/-. 5.1 IT HAS BEEN STATED BY THE APPELLANT THAT HE HA D ENTERED INTO AN AGREEMENT TO PURCHASE 16 BIGHAS OF AGRICULTURAL LAND IN THE YEAR 2003, FROM WHICH HE HAS GENERATED AGRICULTURAL INCOME. THE ASSESSING OFFICE R HAS REJECTED THIS EXPLANATION ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 5 OF THE ASSESSEE ON THE FOLLOWING GROUNDS- A. NO KHATONI HAS BEEN PRODUCED BY THE ASSESSEE. B. EVEN KHASRA GIRDWARI HAS NOT BEEN PRODUCED WHI CH WOULD SHOW THE CROPS GROWN BY THE ASSESSEE. C. NO DETAILS HAVE BEEN FURNISHED REGARDING THE C ROPS GROWN, AND EXPENDITURE INCURRED ON SEEDS, FERTILIZERS ETC. NO EVIDENCE OF CARRYING OUT BASIC AGRICULTURAL OPERATIONS, HAVE BEEN SUBMITTED. D. NO AGRICULTURAL INCOME HAS BEEN DISCLOSED BY T HE ASSESSEE IN THE RETURNS OF INCOME FILED. E. THE SALE BILLS OF AGRICULTURAL PRODUCE SUBMITT ED BY THE ASSESSEE PERTAIN TO SUBSEQUENT YEARS AND NO SALE BILLS PERTAIN TO THE Y EAR UNDER CONSIDERATION OR THE PRECEDING YEARS. 5.2 THE APPELLANT HAS NOT BEEN ABLE TO CONTROVERT THE ABOVE GROUNDS, RAISED BY THE ASSESSING OFFICER FOR REJECTING THE AGRICULTURA L INCOME. THE ONLY CONTENTION OF THE APPELLANT IS THAT HE OWNS AGRICULTURAL LAND PUR CHASED THROUGH A SALE DEED (SUBMITTED BEFORE THE ASSESSING OFFICER) AND THEREF ORE, IT CANNOT BE DISPUTED THAT HE IS ENGAGED IN AGRICULTURE. THE APPELLANT HAS ALS O CITED THE CASE OF HIS FATHER - SHRI KALU RAM MEENA, WHERE ON SIMILAR FACTS OF AGRI CULTURAL LAND HOLDING OF 8 BIGHAS, THE ASSESSING OFFICER HAS ACCEPTED THE EXPL ANATION OF THE ASSESSEE WITH REGARD TO AGRICULTURAL INCOME, TO THE TUNE OF RS. 1 ,90,000/'-. LOOKING TO THE FACTS THAT THE APPELLANT HAS NOT SUBMITTED ANY EVIDENCE W ITH RESPECT TO AGRICULTURAL INCOME, DURING THIS YEAR OR THE PRECEDING YEARS EXC EPT FOR THE AGREEMENT TO PURCHASE 16 BIGHAS OF AGRICULTURAL LAND IN 2003, AS ALSO THE FACTS IN THE CASE OF KALU RAM MEENA, THE EXPLANATION OF THE APPELLANT WI TH RESPECT TO AGRICULTURAL INCOME CAN BE ACCEPTED ONLY TO THE TUNE OF RS. 3,00 ,000/- BASED ON A LIBERAL ESTIMATION OF AGRICULTURAL INCOME. REGARDING THE EX PLANATION THAT THE SOURCE OF THE BALANCE AMOUNT OF BANK DEPOSITS AND CASH PAYMENTS I S OUT OF OTHER INCOME AND RETURN OF OLD LOANS, THE SAME IS NOT ACCEPTABLE AS NO BASIC DETAILS WHATSOEVER ABOUT THE NATURE OF OTHER INCOME AND NAMES & ADDRES SES OF THE PERSONS TO WHOM THESE ADVANCES HAD BEEN GIVEN, HAVE BEEN FURNISHED BY THE ASSESSEE EITHER DURING ASSESSMENT PROCEEDINGS OR APPEAL PROCEEDINGS. 6. IN VIEW OF THE ABOVE DISCUSSION, IN PARAS 3, 4 & 5 ABOVE, THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLA INED CASH DEPOSITS IN BANK OF RS. 21,50,000/- AND UNEXPLAINED CASH PAYMENTS FOR P URCHASE OF LAND AMOUNTING TO RS. 14,64,000/-, U/S. 69 OF THE I.T. ACT, IS UPHELD TO THE EXTENT OF RS. 33,14,000/-, U/S. 69 OF THE I.T. ACT. THE ASSESSING OFFICER IS D IRECTED TO DELETE THE BALANCE ADDITION OF RS. 3,00,000/-. THE ABOVE GROUND IS PAR TLY ALLOWED. ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 6 4.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE PRAYED FOR DELETION OF ADDITION CONFIRMED BY THE LD. CIT(A) FOR WHICH T HE LD.AR OF THE ASSESSEE FILED THE FOLLOWING WRITTEN SUBMISSION. GROUND NO.1 &2 : 1.THE AO DURING THE COURSE OF ASSESSMENT PROCEEDING S OBSERVED THAT ASSESSEE HAS MADE CASH DEPOSITS OF RS.2150000/- IN HIS BANK ACCOUNT AND MADE CASH PAYMENT OF RS.1464000/- ON 18.03.2006 FOR PURCHASE OF AGRICUL TURE LAND AT VILLAGE GUNAWATA, TEHSIL AMER. (PAGE NO.3 OF THE ASSESSMENT ORDER.) 2.THE ASSESSEE VIDE HIS LETTER DATED 25.11.2013 (PB NO. 12-14) EXPLAINED BEFORE THE AO THAT THE RELEVANT DEPOSITS IN TO THE BANK ACCOUNTS AND CASH PAYMENT FOR PURCHASE OF LAND HAVE BEEN MADE OUT OF EARLIER WITHDRAWALS FROM THE BANK OF RS.1750000/- AND AGRICULTURAL INCOME/ RECOVERY OF OLD LOANS OF RS.20 00000/-. 3.THE ASSESSEE SUBMITTED DATE WISE DETAILS OF BAN K WITHDRAWALS OF RS.1750000/- (PARA-4 ON PAGE NO.3 OF THE ASSESSMENT ORDER). 4. THE ASSESSEE FURTHER VIDE LETTER DATED 05.12.200 3 (PB NO.15) EXPLAINED THAT THE RELEVANT CHEQUES OF WITHDRAWALS HAVE BEEN ISSUED IN FAVOUR OF CERTAIN LAND OWNERS AS ADVANCE AND LATTER ON RELEVANT AGREEMENTS HAVE BEEN CANCELLED, IN SUCH CASES THE CASH RECEIVED TOWARDS REFUND OF ADVANCE HAS BEEN DEPOSIT ED IN TO THE BANK. 5. THE AO REJECTED THE PLEA OF THE ASSESSEE IN RESP ECT OF THE EARLIER BANK WITHDRAWAL ON THE GROUND: (PARA (F) ON PAGE NO.7 OF THE ASSESSMEN T ORDER) (I) THAT THE SAME HAVE BEEN MADE THROUGH CHEQUES A ND THE ASSESSEE MIGHT HAVE UTILIZED THE SAME FOR OTHER PURPOSES. (II) NO DETAILS OR EVIDENCES IN RESPECT OF SUCH C LAIM OF THE ASSESSEE HAVE BEEN TENDERED DURING THE COURSE OF ASSESSMENT PROCEEDING S. 6. THE ASSESSEE DURING THE COURSE OF APPELLATE PROC EEDINGS SUBMITTED THE DETAILS OF WITHDRAWALS TO THE EXTENT OF RS.1250000/- AND COPY OF RELEVANT AGREEMENTS /CANCELLATION AGREEMENTS ALONG WITH APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46 OF IT RULES 1962 (PB NO.16-18): (I) AGREEMENT DATED 20.04.2005 WITH PHOOLA DEVI ALO NG WITH ITS CANCELLATION ENDORSEMENT ON 20.12.2005.(PB NO.19-26) ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 7 (II) CANCELLATION AGREEMENT DATED 05.01.2006 WITH R AM PHOOL AND OTHERS (PB NO.27). DATE CH. NO. PAYEE/PURPOSE AMOUNT DATE OF CANCELLATION OF AGREEMENT/ RECEIPT OF CASH BACK DATE OF CASH DEPOSITED IN BANK 27.04.05 126751 PHOOLA DEVI W/O LADURAM, VILLAGE-LUNIAWASH, TEHSIL SANGANER, JAIPUR, AGREEMENT FOR PURCHASE OF LAND 500000/- 20.12.05 31.12.05 14.10.05 126760, 126762 126763 RAMPHOOL, LALA, RAWAN, NANDA AND PRABHATI, VILLAGE KACHERAWALA, TEHSIL AMER , JAIPUR, RS.70000/- EACH. AGREEMENT FOR PURCHASE OF LAND 350000/- 05.01.06 10.01.06 15.02.06 126769 RAMCHANDRA, JAGDISH, RAMKARAN AND KAUSHLYA DEVI, VILLAGE- GUNAWATA, TEHSIL AMER JAIPUR RS.200000*2 400000/- THE AMOUNT RECEIVED BACK, WITHOUT ANY WRITTEN AGREEMENT. 23.03.06 TOTAL 1250000/- 7. THE LD. CIT (A) SENT THE ADDITIONAL EVIDENCES FO R COMMENT OF THE AO AND THE AO VIDE HIS REMAND REPORT DATED 04.03.2015 (PB NO.28-31 ) REQUESTED FOR NOT ADMITTING THE ADDITIONAL EVIDENCES ON THE GROUND: (I) THAT THE SUFFICIENT OPPORTUNITY TO PRODUCE SUCH DETAILS AND EVIDENCES WERE GIVEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS. ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 8 II) THE ASSESSEE DURING THE REMAND PROCEEDINGS HAS NOT PRODUCED THE RELEVANT PERSONS FOR THEIR PERSONAL EXAMINATION. 8. THE ASSESSEE VIDE REJOINDER DATED 04.12.2014 (PB NO.32-33) REQUESTED FOR ADMISSION OF ADDITIONAL EVIDENCES AND TO ACCEPT THE RELEVANT CLAIM OF THE ASSESSEE. 9. THE LD. CIT (A) REJECTED THE APPLICATION FOR ADM ISSION OF ADDITIONAL EVIDENCES ON THE SAME GROUND AS TAKEN BY THE AO AND ALSO REJECTED TH E RELEVANT EXPLANATION OF THE ASSESSEE. 10. THE ASSESSEE DURING THE COURSE OF REMAND PROCEE DINGS HIMSELF REQUESTED FOR ISSUING SUMMONS AND THE SAME WERE DULY SERVED TO THE RESPEC TIVE PARTIES AT THE GIVEN ADDRESSES EXCEPT SMT. PHOOLA DEVI WHOSE SUMMON COULD NOT BE S ERVED DUE TO HER DEATH. 11. THE ASSESSEE BY SUBMITTING THE DOCUMENTARY EVID ENCES IN SUPPORT OF HIS CLAIM HAS DISCHARGED THE BURDEN LYING UPON HIM IN RESPECT OF THE REFUND OF RELEVANT ADVANCES OF RS.1250000/- AND THE AO HAS NOT DISPROVED THE SAME. 12.THE ASSESSEE CANNOT BE BLAMED FOR NON COMPLIANCE OF SUMMONS BY THE WITNESSES AND CLAIM OF THE ASSESSEE CANNOT BE REJECTED ON THE SAM E GROUND. 13.THE AO HAS NOT BROUGHT ANYTHING ON RECORD TO PRO VE THAT THE CHEQUES OF RELEVANT AMOUNT WERE ISSUED FOR ANY OTHER PURPOSE AND THE AM OUNT THEREOF HAS NOT BEEN RETURNED IN CASH AS CLAIMED BY THE ASSESSEE. 14. IT HAS BEEN HELD BY HON. SUPREME COURT IN CIT V. ORISSA CORPORATION PVT LTD., THAT IN THIS CASE THE ASSESSEE HAD GIVEN THE NAMES AND A DDRESSES OF THE ALLEGED CREDITORS. IT WAS IN THE KNOWLEDGE OF THE REVENUE THAT THE SAID C REDITORS WERE THE INCOME-TAX ASSESSEES. THEIR INDEX NUMBER WAS IN THE FILE OF TH E REVENUE. THE REVENUE, APART FROM ISSUING NOTICES UNDER SECTION 131 AT THE INSTANCE O F THE ASSESSEE, DID NOT PURSUE THE MATTER FURTHER. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY WERE CREDIT-WORTHY OR WERE SU CH WHO COULD ADVANCE THE ALLEGED LOANS. THERE WAS NO EFFORT MADE TO PURSUE THE SO-CA LLED ALLEGED CREDITORS. IN THOSE CIRCUMSTANCES, THE ASSESSEE COULD NOT DO ANY FURTHE R. IN THE PREMISES, IF THE TRIBUNAL CAME TO THE CONCLUSION THAT THE ASSESSEE HAS DISCHA RGED THE BURDEN THAT LAY ON HIM THEN IT COULD NOT BE SAID THAT SUCH A CONCLUSION WAS UNREAS ONABLE OR PERVERSE OR BASED ON NO EVIDENCE. IF THE CONCLUSION IS BASED ON SOME EVIDEN CE ON WHICH A CONCLUSION COULD BE ARRIVED AT, NO QUESTION OF LAW AS SUCH ARISES. 15.THIS IS APPARENT FROM THE RELEVANT DETAILS THAT THERE IS A DIRECT NEXUS BETWEEN THE AMOUNT AND DATE OF CANCELLATION AGREEMENT WITH THA T OF THE CASH DEPOSITS IN TO THE BANK AND THEREBY IT IS DULY ESTABLISHED THAT THAT THE A MOUNT WITHDRAWN FROM BANK OF RS.1250000/- AS MENTIONED ABOVE HAS BEEN UTILIZED F OR RE DEPOSITING THE SAME IN TO BANK ACCOUNT OF THE ASSESSEE. ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 9 16.THE AMOUNT WITHDRAWN FROM BANK VIDE CH. NO.12676 8 OF RS.500000/-ON 02.01.2006, WAS INITIALLY PAID AS LOAN TO SOME FRIEND/RELATIVE WHICH WAS RECEIVED BACK IN CASH AND THE SAME HAS BEEN UTILIZED BY THE ASSESSEE FOR MAKING C ASH PAYMENT TOWARDS PURCHASE OF LAND ON 18.03.2006.THE ASSESSEE IN SPITE OF HIS BEST EFF ORTS COULD NOT COLLECT THE DETAILS FROM HIS BANK ACCOUNT ABOUT THE INITIAL PAYEE TO WHOM TH E LOAN/ADVANCE WAS GIVEN. 17. THEREFORE THE RELEVANT CLAIM OF THE ASSESSEE TH AT THE EARLIER WITHDRAWALS OF RS.1750000/- FROM THE BANK HAVE BEEN UTILIZED FOR C ASH DEPOSITS IN TO THE BANK, MAY KINDLY BE ACCEPTED AND THE RELEVANT ADDITION SUSTAI NED BY LD. CIT(A) MAY KINDLY BE DELETED. 4.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORDER O F THE AO. 4.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE AO FOUND THAT THE ASSESSEE DURING THE R ELEVANT PREVIOUS YEAR HAS MADE CASH DEPOSITS OF RS.21,50,000/-IN HIS BANK ACCOUNT AND MADE CASH PAYMENT OF RS.14,64,000/-FOR PURCHASE OF CERTAIN LAND. THE ASS ESSEE SUBMITTED CASH FLOW STATEMENT BEFORE THE AO SHOWING CASH INFLOW OF RS.3 7.50 LAKHS FOR MAKING SUCH CASH DEPOSITS/PAYMENTS. THE ASSESSEE CLAIMED EARLIE R BANK WITHDRAWALS OF RS.17.50 LAKHS AND AGRICULTURE/OTHER INCOME AND REC OVERY OF ADVANCES OF RS.20.00LAKHS. THE ASSESSEE VIDE LETTER DATED 05.12 .2013 PLACED AT PB PAGE NO.15 , EXPLAINED IN RESPECT OF BANK WITHDRAWALS THAT THE CHEQUES HAVE BEEN GIVEN TO LAND OWNERS AS ADVANCE AND LATTER ON THE AGREEMENTS HAV E BEEN CANCELLED, IN SUCH CASES CASH RECEIVED BY THE ASSESSEE HAS BEEN DEPOSI TED IN HIS BANK ACCOUNT. THE AO IN THE ABSENCE OF ANY SPECIFIC DETAILS REJECTED EXPLANATION OF THE ASSESSEE AND ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 10 HELD THE CASH DEPOSIT/PAYMENT AS UNEXPLAINED AND MA DE ADDITION OF THE SAME TO RETURNED INCOME. THE ASSESSEE SUBMITTED COPY OF CER TAIN AGREEMENTS/DETAILS BEFORE LD. CIT(A) AS ADDITIONAL EVIDENCES IN SUPPORT OF HI S CLAIM OF REFUND OF ADVANCES OF RS.12,50,000/- ON CANCELLATION OF RELEVANT AGREEMEN TS. THE LD.CIT(A) AFTER OBTAINING REMAND REPORT OF THE AO DID NOT ADMIT THE ADDITIONAL EVIDENCES AND REJECTED EXPLANATION OF THE ASSESSEE ON THE GROUND THAT SUFFICIENT OPPORTUNITIES WERE GIVEN IN ASSESSMENT PROCEEDINGS TO ADDUCE THE EVIDENCES AND THE ASSESSEE DURING THE REMAND PROCEEDINGS COULD NOT PRODUCE THE PERSONS BEFORE THE AO TO WHOM ADVANCES WERE GIVEN. HOWEVER THE LD. CIT(A) AF TER ALLOWING CLAIM OF AGRICULTURE INCOME OF RS.3,00,000/- SUSTAINED ADDI TION TO THE EXTENT OF RS.33,14, 000/-. THE LD.AR REITERATED ON THE APPLIC ATION FILED BEFORE LD. CIT(A) U/R 46A OF IT RULES 1962 PLACED AT P.B. PAGE NO.16-18 AND SUBMITTED THAT THE ADDITIONAL EVIDENCES FILED BEFORE THE LD. CIT(A) AR E RELEVANT FOR DISPOSAL OF THE CLAIM OF THE ASSESSEE. THEREFORE LD. CIT(A) IS NOT JUSTIFIED IN NOT ADMITTING THE ADDITIONAL EVIDENCES AS TO CLAIM OF THE ASSESSEE. T HE LD.AR FURTHER SUBMITTED THAT THE RECEIPT OF CASH OF RS.12,50,000/-IS EVIDENT FRO M THE CANCELLATION AGREEMENTS PLACED AT PB PAGE NO.19-27 AND DETAILS MENTIONED IN APPLICATION U/R 46A . IT IS EVIDENT FROM THE AGREEMENT DATED 20.04.2005 PLACED AT PB PAGE NO.19-26 , THAT THE ASSESSEE PAID ADVANCE OF RS.5,00,000/- TO PHOOLI DE VI VIDE CH NO.126751 AND AS PER ENDORSEMENT DATED 20.12.2005 (PB PAGE NO.26) THE SAID AGREEMENT WAS ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 11 CANCELLED AND THE ADVANCE OF RS.5,00,000/-WAS REFUN DED TO THE ASSESSEE BY WAY OF CASH PAYMENT. IT IS ALSO EVIDENT FROM THE ANOTHER A GREEMENT DATED 05.01.2006 PLACED AT PB PAGE NO.27 THAT THE ADVANCE OF RS.3,50,000/-PAID TO RAM PHOOL AND OTHERS WAS CANCELLED AND THE ADVANCE OF RS.3,50,00 0/- WAS REFUNDED TO THE ASSESSEE BY WAY OF CASH PAYMENT. THE ASSESSEE HAS F ILED DETAILS OF ANOTHER ADVANCE OF RS.4,00,000/-PAID TO RAM CHANDRA AND OTHERS VIDE CH. NO.126769 WHICH WAS ALSO REFUNDED TO THE ASSESSEE BY WAY OF CASH PAYMEN T (PBP-11). THE ASSESSEE HAS PROVIDED NECESSARY DETAILS IN SUPPORT OF HIS CLAIM AND THE AO IN REMAND PROCEEDINGS HAS NEITHER DOUBTED THE GENUINENESS OF THE RELEVANT AGREEMENTS/DETAILS NOR GIVEN ANY CONTRADICTORY FINDING. THE CLAIM OF T HE ASSESSEE DULY SUPPORTED BY DOCUMENTARY EVIDENCES CANNOT BE REJECTED SIMPLY FOR THE REASON THAT THE ASSESSEE COULD NOT PRODUCE THE WITNESSES PERSONALLY THAT TOO AFTER LAPSE OF SEVERAL YEARS FROM THE RELEVANT POINT OF TIME. THEREFORE LD. CIT( A) IS NOT JUSTIFIED IN NOT ADMITTED THE ADDITIONAL EVIDENCES AND IN REJECTING THE EXPLANATION OF THE ASSESSEE TO THE EXTENT OF RS.12,50,000/-RELATING TO REFUND O F ADVANCES ON CANCELLATION OF RELEVANT AGREEMENTS. AS TRANSPIRED FROM THE RECORD, THE ASSESSEE APART FROM HIS EXPLANATION TO THE EXTENT OF RS.12,50,000/-, HAS NO T SUBMITTED ANY OTHER DETAILS/EVIDENCES. THUS UNDER THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION OF RS.12,50,000/- IS HEREBY DELETED AN D THE BALANCE ADDITION OF RS.20,64,000/-IS SUSTAINED. ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 12 5.1 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE HAS NOT PRESSED THE GROUND NO. 3.HENCE, THE SAME IS DISMISSED BEING NOT PRESSED. 6.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. 7.1 NOW THE APPEAL OF THE ASSESSEE IN ITA NO. 219/JP/20 16 FOR THE ASSESSMENT YEAR 2007-08 IS TAKEN UP FOR ADJUDICATION WHEREIN T HE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APPEAL. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) IS NOT JUSTIFIED IN NOT JUSTIFIED IN CONFIR MING THE ADDITION OF RS. 25,56,440/- AS UNEXPLAINED INVESTME NT U/S 69 OF THE I.T. ACT, 1961 TOWARDS CASH DEPOSITED INTO THE BANK AND PAYMENT MADE FOR PURCHASE OF AGRICULTURE LAND. 8.1 APROPOS SOLITARY GROUND OF THE ASSESSEE, THE FA CTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 3.3 I HAVE PERUSED THE FACTS OF THE CASE, THE ASSES SMENT ORDER AND THE SUBMISSION OF THE APPELLANT. THE APPELLANT HAD MADE CASH DEPOSIT OF RS.9,20,000/- IN THE SAVING BANKS ACCOUNTS IN SBI, TONK ROAD, JAIPUR AND ALSO MADE CASH PAYMENT OF RS 19,29,960/- FOR PURCHASE OF LAND AT GUNEWATA. IN RESPONSE TO NOTICE U/S 148, THE ASSESSEE HAS REQUES TED THAT THE ORIGINAL RETURN FILED MAY BE TAKEN AS RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 148. THE APPELLANT HAS STATED THAT THE SOURCE OF ABOVE CASH DEPOSITS AND CASH PAYMENT OF AGRICULTURAL LAND IS FROM AGRICULTURAL INCOME AND A DVANCES RECEIVED FOR SALE OF AGRICULTURAL LAND. EXPLANATION REGARDING SOURCE OF RS.30 LACS FOR INVESTMENT AND PURCHASE OF LAND, THE ASSESSEE CLAIMED THAT AN AMOU NT OF RS.30 LACS HAS BEEN RECEIVED FOR AN AGREEMENT TO SALE DATED 25.07.2006 FROM SMT. DIWAN SOLANKI, SHRI SURESH SOLANKI AND SHRI RAKESH SOLANKI RESIDEN T OF PALAM VILLAGE, DELHI. IN SUPPORT OF THE TRANSACTIONS, SHRI SURESH SOLANKI AND DIWAN SOLANKI WERE PRODUCED AS WITTINESS FOR THIS TRANSACTION. IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE VALUE OF LAND AS PER THIS AGREEMEN T WAS TAKEN AT RS.30 LACS PER BIGHAS WHEREAS IN ANOTHER AGREEMENT DATED 30.11.200 6, RELATING TO LAND SITUATED ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 13 CLOSE TO THIS LAND, THE RATE HAVE BEEN TAKEN AT RS. 5 LACS PER BIGHA. THE ASSESSING OFFICER WAS NOT CONVINCED AS THE ASSESSEE COULD NOT EXPLAIN THE HUGE DIFFERENCE IN PRICE FOR SIMILAR LAND. FURTHER SHRI SURESH SOLA NKI AND RAKESH SOLANKI WHEN PRODUCED BEFORE THE ASSESSING OFFICER, AGREED TO AD VANCING IN CASH BUT DID NOT PRESENT ANY SOURCES FOR THIS CASH. THE BANK ACCOUNT S OF THESE PEOPLE ALSO DID NOT SHOW ENOUGH CASH AND THEIR INCOME TAX RETURN HA VE BEEN FILED FOR A LOW INCOME OF RS.1,28,000/- AND RS. 1,28,000/- RESPECTI VELY AND THE BALANCE SHEET AND OTHER PAPERS WERE NOT PRODUCED. FURTHER, WHILE SHRI SURESH SOLANKI APPEARING ON BEHALF OF SHRI DIWAN SOLANKI, STATED T HAT HE HAS RECEIVED BACK THE CASH AMOUNT OF RS.20 LACS, SHRI RAKESH SOLANKI STAT ED THAT THE SAME HAD NOT BEEN RECEIVED. THUS, THERE WAS CONTRADICTION IN THE STATEMENT OF THE PARTIES WHO HAD SIGNED THE AGREEMENT. FURTHER IT IS SEEN THAT E VEN AFTER ELEVEN YEARS, THE AGREEMENT HAS NOT BEEN CONCLUDED AND THE AMOUNTS HA VE NOT BEEN RETURNED AND THE ASSESSEE COULD PRODUCE NO EVIDENCE IN THIS REGA RD. IT IS FURTHER SEEN, THAT THE ASSESSEE HAS DEPOSITED RS.9,20,000/-IN CASH IN THE BANK. THE SOURCE FOR THIS AMOUNT WAS EXPLAINED AS THE ADVANCE OF RS.30 LACS TAKEN FOR AGREEMENT TO SELL THE LAND. THE ASSESSING OFFICER HAS OPINED THAT IF IT WAS SO, THE AMOUNT WOULD HAVE BEEN DEPOSITED IN THE SAME DATE IN THE BANK ON WHICH THEY WERE RECEIVED. FURTHER AS ALREADY DISCUS SED IN EARLIER PARAS, THE THEORY OF ADVANCE RECEIVED FOR LAND COULD NOT BE PROVED AN D HAS NOT BEEN ACCEPTED. DUE TO THE ABOVE REASONS AND CONTRADICTIONS, THE TRANSA CTIONS CANNOT BE ACCEPTED AND HAVE NOT BEEN SUPPORTED BY EVIDENCES BY THE ASSESSE E IN SPITE OF SEVERAL OPPORTUNITIES IN THE APPELLANT PROCEEDINGS ALSO. TH E ASSESSEE HAS SIMPLY REITERATED THE FACTS, AS STATED IN ASSESSMENT PROCEEDINGS. IT WAS NOT ENOUGH TO PROVE THE IDENTITY OF THE PARTIES TO THE AGREEMENT AND SINCE THEY WERE NOT FOUND TO HAVE THE MEANS TO ADVANCE SUCH AMOUNTS, THE SAME CANNOT BE A CCEPTED. HENCE THE EXPLANATION OF THE ASSESSEE THAT THESE AMOUNTS RELA TED TO ADVANCES RECEIVED FOR SALE OF LAND CANNOT BE ACCEPTED. CLAIM FOR AGRICULTURAL INCOME OF RS.2,93,520/-. WIT H REGARDS TO THIS, THE ASSESSEE HAS STATED THAT HE ALONGWITH HIS BROTHER A ND MOTHER HAVE PURCHASED THE PROPERTY FOR RS.30 LACS AND THE SAME IS BEING USED FOR AGRICULTURE. AS EVIDENCE OF THE SAME, HE PRODUCED SOME PURCHASE BILLS OF THE PRODUCE AND GIRDAWARI OF THE AGRICULTURAL LAND. THE ASSESSING OFFICER DID NO T ACCEPT THE CLAIM OF AGRICULTURAL INCOME BECAUSE NO SUCH CLAIM HAD BEEN MADE BY THE ASSESSEE EITHER IN THE ORIGINAL RETURN OF INCOME FILED NOR I N THE RETURN FILED IN RESPONSE TO NOTICE U/S 148. SECONDLY, THE ASSESSING OFFICER FOUND THAT THIS LAND HAD NOT BEEN REGISTERED IN THE NAME OF THE ASSESSEE EVEN AF TER ELEVEN YEARS OF THE TRANSACTION. FURTHER, THE ASSESSEE WOULD HAVE BEEN 20 YEARS OF AGE AT THAT TIME AND HENCE WOULD NOT HAD THE REQUISITE SOURCES TO PU RCHASE THE LAND. THE APPELLANT HAS NOT BEEN ABLE TO CONTROVERT THE A BOVE FINDINGS OF THE ASSESSING OFFICER FOR REJECTING THE AGRICULTURAL IN COME. THE ONLY CONTENTION OF ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 14 THE ASSESSEE IS THAT HE OWNS AGRICULTURAL LAND WHIC H IS EVIDENCED BY THE PURCHASE DEED. THE APPELLANT HAS ALSO CITED THE CASE OF HIS FARTHER SHRI KALU RAM MEENA WHERE ON SIMILAR FACTS OF AGRICULTURAL LAND HOLDING OF EIGHT BIGHAS, THE ASSESSING OFFICER HAS ACCEPTED EXPLANATION OF THE ASSESSEE WI TH REGARD TO AGRICULTURAL INCOME TO THE TUNE OF RS. 1,19,000/- . FURTHER, IN THE PREVIOUS YEAR, THE A.Y. 2006-07, MY PREDECESSOR, THE CIT(A)-2 VIDE ORDER DA TED 16.03.2015 HAD ACCEPTED AGRICULTURAL INCOME OF AN AMOUNT OF RS. 3. 00 LACS. IN VIEW OF THE ABOVE, THE CLAIM OF THE ASSESSEE REGARDING THE AGRI CULTURAL INCOME OF RS. 2,93,520/- IS ACCEPTED. SINCE, THE TRANSACTIONS OF CASH DEPOSIT AND CASH PAYMENT FOR PURCHASE OF LAND COULD NOT BE EXPLAINED BY THE ASSESSEE, THE AM OUNTS REFLECTED AS RECEIVED WOULD BE ITS UNEXPLAINED INCOME AND APPLICABILITY O F ANY PARTICULAR SECTION WOULD BE IN CONSEQUENTIAL RELIANCE IS PLACED ON 41 TAXMANN.COM123 (MUMBAI - TRIB.) IN THE CASE OF ALLIANCE HOTELS VS. ASSISTA NT COMMISSIONER OF INCOME TAX -12(1). IN THE PRESENT CASE, THE ABOVE RATIO AP PLIES SQUARELY. SINCE THE AMOUNTS REFLECT INVESTMENTS, THE SAME ARE BEING ADD ED U/S 69 OF THE I.T. ACT. THE ASSESSING OFFICER HAS ADDED AN AMOUNT OF RS.3 0,00,000/- UNDER SECTION 68 AS UNEXPLAINED INVESTMENT. HOWEVER ,IN V IEW OF THE ABOVE DISCUSSION, THE SECTION FOR UNEXPLAINED INVESTMENT WOULD BE SEC TION 69, THE ADDITION IS CONSIDERED TO BE MADE UNDER SECTION 69 OF THE I.T. ACT. IT IS SEEN THAT THE UNEXPLAINED INVESTMENTS ARE O F AN AMOUNT OF RS.9,20,000/- WHICH WERE THE CASH DEPOSITS IN THE B ANK AND RS. 19,29,960/- FOR UNEXPLAINED INVESTMENT MADE IN CASH FOR PURCHASE OF LAND AT GURNAVATA, TOTALLING TO RS.28,49,960/-. THE ASSESSING OFFICER HAS ADDED THE ENTIRE SUM OF RS.30,00,000/- WHICH THE ASSESSEE CLAIMED TO HAVE R ECEIVED AS ADVANCE AND TO EXPLAIN THE SOURCE FOR CASH DEPOSITS AND CASH PAYME NT FOR PURCHASE OF LAND. SINCE, THESE TWO COMPONENTS ARE FOR A SUM OF RS.28,49,960/ -, THE ADDITION U/S 69 OF THE I.T. ACT 1961, IS RESTRICTED TO THIS AMOUNT. FURTHE R, SINCE AGRICULTURAL INCOME HAS BEEN ACCEPTED TO THE TUNE OF RS.2,93,520/-, SUCH FU RTHER CREDIT WILL BE GIVEN AND THE THUS ADDITION U/S 69 OF THE I.T. ACT IS RESTRIC TED TO RS.25,56,440/- (RS.28,49,960 - RS.2,93,520). 8.2 DURING THE COURSE OF HEARING THE LD.AR OF THE ASSES SEE PRAYED FOR DELETION OF ADDITION CONFIRMED BY THE LD. CIT(A) FOR WHICH THE ASSESSEE HAS FILED THE FOLLOWING WRITTEN SUBMISSION. ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 15 GROUND NO.1 : 1.THE AO DURING THE COURSE OF ASSESSMENT PROCEEDING S OBSERVED THAT THE ASSESSEE HAS MADE THE CASH DEPOSITS IN HIS BANK ACCOUNT AND ALSO MADE CASH PAYMENTS FOR PURCHASE OF AGRICULTURE LAND AT VILLAGE GUNAWATA, TEHSIL AMER, JAIPUR AS FOLLOWS: DATE CASH DEPOSITS IN BANK CASH PAYMENT FOR PURCHASE OF LAND TOTAL 10.07.2006 320000/- 320000/- 31.07.2006 310000/- 310000/- 07.10.2006 400000/- 400000/- 30.11.2006 1930960/- 1930960/- 02.12.2006 210000/- 210000/- TOTAL 1240000/- 1930960/- 3170960/- (PARA 2 (II) ON PAGE NO.2 OF THE ASSESSMENT ORDER. ) 2.THE ASSESSEE VIDE HIS LETTER DATED 24.12.2014 (PB NO.20-21) EXPLAINED BEFORE THE AO THAT THE RELEVANT DEPOSITS IN TO THE BANK ACCOUNTS AND CASH PAYMENT TOWARDS PURCHASE OF LAND HAVE BEEN MADE OUT OF THE ADVANCE RECEIVED AG AINST SALE OF LAND OF RS. 3000000/- AND OTHER INCOME OF RS.391000/-. 3.THE ASSESSEE IN SUPPORT OF HIS CLAIM SUBMITTED COPY OF AGREEMENT DATED 25.07.2006 ( PB NO.22-24) EXECUTED BETWEEN THE ASSESSEE AND (I) SMT. DEEWAN SOLANKI W/O SHRI RAMESH SOLANKI (II) SHRI SURESH SOLANKI S/O SHRI NA ND RAM SOLANKI AND (III) RAKESH SOLANKI S/O SHRI DALEL SINGH SOLANKI, FOR SALE OF HIS AGRICULTURE LAND AT VILLAGE GUNAWATA EVIDENCING RECEIPT OF RS.3000000/- AS ADVANCE TOWAR DS THE SAME AND CERTAIN SALES SLIPS OF AGRICULTURE PRODUCE. 4. THE ASSESSEE HAS PRODUCED BEFORE THE AO SHRI SUR ESH SOLANKI AND RAKESH SOLANKI THE PURCHASERS OF THE LAND PERSONALLY FOR THEIR EXAMINA TION ALONG WITH THEIR BANK STATEMENTS, IT RETURNS ETC. PAN CARDS ETC. ( BANK STATEMENT AND PAN CARD OF SURESH SOLANKI (PB NO.25-27) (BANK STATEMENT OF RAKESH SOLANKI PB NO.28-30) ( BANK STATEMENT AND PAN CARD OF SMT. DEEWAN SOL ANKI PB NO.31-33) ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 16 9. THE AO REJECTED THE CLAIM OF THE ASSESSEE AND MA DE ADDITION OF RS.3503520/- TO RETURNED INCOME. 10. THE LD. LD. CIT (A) AFTER ALLOWING SET OFF OF A GRICULTURE INCOME SUSTAINED THE ADDITION TO THE EXTENT OF RS.2556440/-. 11. THE CLAIM OF THE ASSESSEE IN RESPECT OF THE REC EIPT OF ADVANCE OF RS.3000000/- AGAINST SALE OF AGRICULTURE LAND HAS BEEN REJECTED BY THE A O ON ALLEGING THAT : ALLEGATION OF THE AO: (I) THE ASSESSEE HAS SOLD THE RELEVANT LAND ON 25.0 7.2006 @ RS. 3000000/-PER BIGHA WHEREAS PURCHASED OTHER NEARBY LAND VIDE REGISTERED DEED ON 30.11.2006 @ RS.500000/- PER BIGHA. THEREFORE RELEVANT AGREEMENT DATED 25.07 .2006 IS FAR FROM REALTY. SUBMISSION: (I)THE ASSESSEE BELONGS TO LOCAL AREA HAVING GOOD K NOWLEDGE OF AGRICULTURE LANDS, ITS BUYERS AND SELLERS ETC. (II) THE PRICES/VALUE OF SUCH LAND DEPENDS ON VARIO US FACTORS OF NEED, UTILITY, TIMING , FUTURE PROSPECTS, TERMS AND CONDITIONS ETC. AND VAR IES FROM CASE TO CASE. (III)THE ASSESSEE HAD UNDERTAKEN TO GET THE SAME LA ND CONVERTED IN TO RESIDENTIAL LAND BEFORE THE FINAL PAYMENT AND REGISTERED SALE DEED. THEREFORE THE RELEVANT ALLEGATION/ OBSERVATION OF THE A IS NOT JUSTIFIED. ALLEGATION OF THE AO: (II) THE PURCHASERS PRODUCED BY THE ASSESSEE COULD NOT EXPLAINED THEIR SOURCE OF FUNDS AND SUCH CASH WITHDRAWALS WERE NOT FOUND IN THEIR B ANK STATEMENTS. SUBMISSION: (I) SHRI SURESH SOLANKI AND RAKESH SOLANKI HAVE CAT EGORICALLY ADMITTED THAT THEY HAVE EXECUTED THE RELEVANT AGREEMENT DATED 25.07.2006 AN D PAID RS.3000000/- TO THE ASSESSEE AS ADVANCE. (II)THE PURCHASERS ARE ASSESSED TO INCOME TAX HAVIN G BANK ACCOUNTS AND PAN CARDS ETC. (III) THE CASH WITHDRAWALS FOR RELEVANT PAYMENT H AS NOT BEEN FOUND IN THE BANK STATEMENTS OF THE PURCHASERS, HOWEVER IT IS EVIDEN CED FROM THE TRANSACTIONS APPEARING IN THEIR BANK ACCOUNTS THAT THEY ARE HAVING SUFFICIENT SOURCES OF FUNDS AND IT CANNOT BE SAID THAT THEY HAVE NO MEANS FOR PAYING RELEVANT ADVANCE OF RS.3000000/-AGAINST AGREEMENT DATED 25.07.2006. ALLEGATION OF THE AO: ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 17 (III) THE RELEVANT TRANSACTION HAS NOT BEEN COMPLET ED EVEN AFTER LAPSE OF SEVEN YEARS FROM THE DATE OF RELEVANT AGREEMENT. SUBMISSION: THE RELEVANT LAND HAS NOT BEEN CONVERTED IN TO RESI DENTIAL LAND AS UNDERTAKEN BY THE ASSESSEE THEREFORE THE AGREEMENT DATED 25.07.2006 H AS NOT BEEN MATURED TILL DATE. ALLEGATION OF THE AO: (IV) THE ASSESSEE HAS DEPOSITED DIFFERENT AMOUNTS I N HIS BANK ON DIFFERENT DATES, HAD THE ASSESSEE WOULD HAVE RECEIVED THE ADVANCE OF RS.30 0000/- IT WOULD HAVE BEEN DEPOSITED ON SINGLE DAY. SUBMISSION: THE ASSESSEE HAS DEPOSITED DIFFERENT AMOUNTS IN HIS BANK ACCOUNT ON DIFFERENT DATES AS CONSIDERED CONVENIENT AND NECESSARY AND SIMPLY FOR THE REASON THAT THE ENTIRE AMOUNT OF RS.3000000/- HAS NOT BEEN DEPOSITED ON SINGLE DAY T HE RECEIPT OF THE SAME AGAINST AGREEMENT DATED 25.07.2006 CANNOT BE DOUBTED. 12.WITHOUT PREJUDICE TO THE SUBMISSION CITED ABOVE IT IS HUMBLY SUBMITTED THAT EVEN IF IT IS ASSUMED THAT THE APPELLANT COULD NOT EXPLAINED T HE SOURCE OF FUNDS OF THE PURCHASERS FOR PAYING ADVANCE FOR PURCHASE OF LAND PURSUANT TO AGREEMENT DATED 25.07.2006, THE SAID ADVANCE PAID BY THE PURCHASERS OF LAND CANNOT BE HE LD AS UNEXPLAINED SIMPLY ON THE BASIS OF THE SAME. 13. IT IS NOT THE BURDEN OF THE ASSESSEE TO EXPLAIN THE SOURCE OF FUNDS OF THE PURCHASERS PAYING ADVANCE FOR PURCHASE OF LAND. THE BURDEN LYI NG UPON THE ASSESSEE U/S 68 OF THE ACT, IS TO EXPLAIN THE SOURCE OF THE CREDIT FOUND I N HIS BOOKS OF ACCOUNTS NOT THE SOURCE OF THE SOURCE. IF THE ASSESSEE IS ENFORCED TO EXPLAIN THE SOURCE OF FUNDS OF THE PURCHASERS, IT SHALL AMOUNT TO ENFORCE THE ASSESSEE TO EXPLAIN THE SOURCE OF THE SOURCE. 14.AS HELD BY HONBLE JURISDICTIONAL HIGH COURT IN LABH CHAND BOHRA VS ITO 219 CTR 571, SO FAR AS CAPACITY OF THE LENDER IS CONCERNED, IN OUR VIEW ON THE FACE OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN DAULAT RAMS CASE AND OTHER JUDGMENTS , CAPACITY OF THE LENDER TO ADVANCE MONEY TO THE ASSESSEE WAS NOT A MATTER WHICH COULD BE REQUIRED OF THE ASSESSEE TO BE ESTABLISHED, AS THAT WOULD AMOUN T TO CALLING UPON HIM TO ESTABLISH SOURCE OF THE SOURCE. 15. THEREFORE THE CLAIM OF THE ASSESSEE TOWARDS REC EIPT OF RS.3000000/- AS ADVANCE AGAINST SALE OF LAND VIDE AGREEMENT DATED 25.07.200 6, MAY KINDLY BE ACCEPTED AND THE ADDITION OF RS.2566440/-CIT(A) MAY KINDLY BE DELETE D. 8.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER OF THE LD. CIT(A). ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 18 8.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE AO OBSERVED THAT THE ASSESSEE DURING T HE RELEVANT PREVIOUS YEAR HAS MADE CASH DEPOSITS OF RS.12,40,000/-IN HIS BANK AC COUNT AND MADE CASH PAYMENT OF RS.19,30,960/- FOR PURCHASE OF CERTAIN LAND. THE ASSESSEE EXPLAIN ED BEFORE THE AO THAT THE RELEVANT CASH DEPOSITS INTO THE BANK AC COUNTS AND CASH PAYMENT TOWARDS PURCHASE OF LAND HAVE BEEN MADE OUT OF THE ADVANCE RECEIVED AGAINST SALE OF LAND OF RS. 30,00,000/- AND AGRICULTURE INCOME OF RS.2,93,520/-. THE ASSESSEE IN SUPPORT OF HIS CLAIM SUBMITTED COPY OF AGREEME NT DATED 25.07.2006 EXECUTED BETWEEN THE ASSESSEE AND SMT. DEEWAN SOLANKI, SHRI SURESH SOLANKI AND SHRI RAKESH SOLANKI FOR SALE OF HIS AGRICULTURE LAND (PB P 22-24). THE ASSESSEE ALSO PRODUCED SHRI SURESH SOLANKI AND RAKESH SOLANKI BEF ORE THE AO FOR THEIR EXAMINATION ALONG WITH THEIR BANK STATEMENTS, IT RE TURNS ETC. PAN CARDS ETC. THE AO REJECTED THE CLAIM OF THE ASSESSEE TOWARDS RECEI PT OF ADVANCE OF RS.30,00,000/- AGAINST SALE OF LAND ON THE GROUND THAT THE PURCHAS ERS COULD NOT PROVE THEIR CAPACITY TO GIVE SUCH ADVANCE AND GENUINENESS OF TH E TRANSACTION. THE AO ALSO REJECTED THE CLAIM OF THE ASSESSEE OF AGRICULTURE I NCOME AND HELD THE SAME AS TAXABLE INCOME FROM OTHER SOURCES (PAGE 2 TO 5 OF A SSESSMENT ORDER). THUS THE AO MADE ADDITION OF AGRICULTURE INCOME OF RS.2,93,520/ -AS INCOME FROM OTHER SOURCES AND OF RS.30,00,000/-AS UNEXPLAINED DEPOSIT U/S 68 OF THE IT ACT 1961. THE LD. CIT(A) AFTER ALLOWING CLAIM OF AGRICULTURE INCOME O F RS.2,93,520/- SUSTAINED ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 19 ADDITION OF RS.28,49,960/-AS UNEXPLAINED INVESTMENT U/S 69 OF THE ACT. THE LD.AR RELIED ON THE AGREEMENT DATED 25.07.2006 PLACED AT P.B. PAGE NO. 22-24, BANK STATEMENTS, IT RETURNS, PAN CARDS ETC. OF THE PURCH ASERS OF THE LAND PLACED AT PB PAGE NO.25-33 .THE LD.AR ALSO RELIED ON STATEMENTS OF SHRI SURES H SOLANKI AND RAKESH SOLANKI REFERRED BY THE AO AT PAGE NO.4 OF T HE ASSESSMENT ORDER. IT IS EVIDENT FROM THE AGREEMENT DATED 25.07.2006 THAT TH E PURCHASERS OF THE LAND PAID ADVANCE OF RS.30,00,000/- TO THE ASSESSEE FOR PURCH ASE OF AGRICULTURE LAND OF THE ASSESSEE AT VILLAGE GUNAWATA, PATWAR- LABANA, TEHSI L-AMER, DISTT-JAIPUR. IT IS ALSO EVIDENT FROM THE ASSESSMENT ORDER ITSELF THAT THE P URCHASERS PERSONALLY APPEARED BEFORE THE AO, FILED THEIR IT RETURNS, BANK STATEME NT AND PAN CARDS ETC AND CATEGORICALLY ADMITTED THAT THEY HAVE PURCHASED THE RELEVANT LAND AND PAID ADVANCE OF RS.30,00,000/-TO THE ASSESSEE BY WAY OF CASH PAY MENT. AS APPEARS FROM THE TRANSACTIONS CONTAINED IN THE BANK ACCOUNTS OF THE PURCHASERS, IT CANNOT BE SAID THAT THEY HAVE NO MEANS FOR PAYING RELEVANT ADVANCE . THERE IS A WEIGHT IN THE SUBMISSION OF THE LD.AR THAT THE BURDEN LYING UPON THE ASSESSEE U/S 68 OF THE ACT, IS TO EXPLAIN THE SOURCE OF FUNDS AND NOT THE SOURC E OF THE SOURCE, THEREFORE IT IS NOT THE BURDEN OF THE ASSESSEE TO EXPLAIN THE SOURCE OF FUNDS OF THE PURCHASERS PAYING ADVANCE FOR PURCHASE OF THE LAND. THE HONBLE JURIS DICTIONAL HIGH COURT IN THE CASE OF LABH CHAND BOHRA VS ITO 219 CTR 571 HELD THAT SO FAR AS CAPACITY OF THE LENDER IS CONCERNED, IN OUR VIEW ON THE FACE OF THE JUDGMENT OF THE HONBLE ITA NO. 436/JP/2015 SHRI DEVENDRA KUM AR MEENA VS ITO, WARD- 6(3),JAIPUR 20 SSUPREME COURT IN DAULAT RAMS CASE AND OTHER JUDGM ENTS , CAPACITY OF THE LENDER TO ADVANCE MONEY TO THE ASSESSEE WAS NOT A MATTER W HICH COULD BE REQUIRED OF THE ASSESSEE TO BE ESTABLISHED, AS THAT WOULD AMOUNT TO CALLING UPON HIM TO ESTABLISH SOURCE OF THE SOURCE. IN THIS VIEW OF THE MATTER, T HE ADDITION OF RS.28,49,960/- MADE BY THE LOWER AUTHORITIES IS DELETED. THUS SOLITARY GROUND OF THE ASSESSEE I S ALLOWED. 9.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO.436/JP/2015 IS PARTLY ALLOWED AND THAT OF ITA NO.219/JP /2016 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 /10/201 7. SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27/10/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI DEVENDRA KUMAR MEENA,JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 6(3), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 436/JP/2015 ) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR