A.C.I.T., Circle-1, Gwalior V. Shri Ramesh Kumar Gupta, Gwalior

ITA 457/AGR/2011

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0431 (ITAT-AGRA)
• Duration Of Justice: 7 year(s) 5 month(s) 8 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: 23-04-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 08-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: MANUJ SHARMA
• Keywords: Unexplained cash credit; Business income; Income from undisclosed sources; Set aside
• Section: 153A; 131; 69; 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. 457/AGRA/2011 ASSTT. YEAR : 2004-05 A.C.I.T., CIRCLE-1, VS. SHRI RAMESH KUMAR GUPTA , GWALIOR. FLAT NO. 303, TULSI VIHAR APTT., CHITNIS KI GOTH, MADHAVGANJ, LASHKAR, GWALIOR. (PAN : AKXPG 6315 R) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : S/SHRI RAJENDRA SHARMA & MANUJ SH ARMA, ADV. DATE OF HEARING : 23.04.2013 DATE OF PRONOUNCEMENT OF ORDER : 03.05.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), GWALIOR DATED 30.09.2011 FOR THE ASSESSMENT YEAR 20 04-05 ON THE FOLLOWING GROUNDS : 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(APPEALS) IS NOT JUSTIFIED IN DELETING T HE CASH CREDIT OF RS.10,01,000/- U/S. 68 OF THE INCOME TAX ACT, 1961. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN DELETING THE ADD ITION OF RS.1,00,000/-. ITA NO.457/AGRA/2011 2 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN DELETING THE ADD ITION OF RS.1,50,000/- . 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL AVAILABLE ON RECORD. 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE SEAR CH / SURVEY U/S. 132A/133A HAVE BEEN CONDUCTED ON 12.05.2008. THE ASSESSEE FIL ED RETURN OF INCOME DECLARING INCOME OF RS.50,000/- FROM BUSINESS ALONG WITH AGRI CULTURAL INCOME OF RS.45,000/- THE ASSESSEE SUBMITTED THAT NONE OF THE SEIZED DOC UMENTS AS MENTIONED IN VARIOUS ANNEXURES BELONG TO HIM. THE AO VIDE ORDER DATED 23 .12.2010 COMPLETED THE ASSESSMENT U/S. 153A OF THE IT ACT AND MADE THE ADD ITIONS OF RS.10,01,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT IN THE BANK ACCO UNT, INCOME FROM GALLA RS.1,00,000/-, INCOME FROM AGRICULTURE RS.1,50,000/ - AND HOUSEHOLD EXPENSES AT RS.1,50,000/- AND COMPUTED THE INCOME AT RS.14,51,0 00/-. ALL THE FOUR ADDITIONS WERE CHALLENGED BEFORE THE LD. CIT(A). THE APPEAL O F THE ASSESSEE HAS BEEN ALLOWED. HOWEVER, THE REVENUE HAS FILED THE PRESENT APPEAL CHALLENGING THE DELETION OF THREE ADDITIONS ONLY AS MENTIONED ABOVE . 4. THE FIRST GROUND OF APPEAL RELATES TO ADDITION O F RS. 10,01,000/- MADE ON ACCOUNT OF DEPOSITS MADE IN THE BANK ACCOUNT OF THE ASSESSEE TREATING IT AS ITA NO.457/AGRA/2011 3 UNEXPLAINED. IN THE ASSESSEES BANK ACCOUNT NO. 100 9510010007216 IN UNITED WESTERN BANK (NOW IDBI BANK), A CASH CREDIT OF RS. 10,01,000/- HAS BEEN MADE. AS PER THE ASSESSEE, THE SOURCE OF THE SAME IS SAID TO BE MONEY RECEIVED FROM MATAI SINGH TOMAR, SHRI ASHOK SINGH CHAUHAN AND SHR I HARNARAYAN SHARMA. AFFIDAVITS OF THESE 3 PERSONS- ALL BEING AGRICULTUR ISTS, HAVE ALSO BEEN FILED. AO HAS MADE THE ADDITION ON THE GROUND THAT THESE PERSONS HAVE NOT BEEN PRODUCED FOR VERIFICATION. REQUEST MADE BY THE ASSESSEE ON 22.12 .2010 FOR ADJOURNMENT SEEKING TIME FOR THEIR PRODUCTION HAS NOT BEEN ACCEPTED BY THE AO ON ACCOUNT OF EARLIER AND FREQUENT NONCOMPLIANCE ATTITUDE OF THE ASSESSEE AND MATTER BEING TIME BARRING. DURING THE COURSE OF APPEAL PROCEEDINGS AND AFTER P ERUSAL OF AFFIDAVITS AND RECORDS, THE ASSESSEE WAS DIRECTED TO PRODUCE THE THREE CRED ITORS. THEY HAVE BEEN PRODUCED ON 19.09.2011 ALONGWITH RELEVANT DOCUMENTARY DETAIL S. AO HAS ALSO BEEN GIVEN THE OPPORTUNITY TO CROSS EXAMINE THEM. ACCORDINGLY, AO HAS ALSO RECORDED THEIR STATEMENTS ON 19.09.2011 AND HAS SUBMITTED REMAND R EPORT ON 21.09.2011 MENTIONING CERTAIN DISCREPANCIES AND DEFECTS IN THE STATEMENTS OF THE ALLEGED CREDITORS AND REITERATING FOR CONFIRMATION OF ADDIT ION SO MADE. ASSESSEE ALSO FILED REJOINDER TO THE SAID REMAND REPORT VIDE LETTER DTD . 29.09.2011. ASSESSING OFFICERS REMAND REPORT GIVEN ON THE BASIS OF STATEMENTS OF T HE THREE CREDITORS IS AS UNDER:- AFTER TAKING THE STATEMENT OF THESE 3 PERSONS THE FOLLOWING FACTS CAME BEFORE THIS OFFICE WHICH PROVE THAT THE CASH CREDIT OF RS. 10,01,000/- IN THE UNITED WESTERN BANK A/C NO. 1009 510010007216 IS UNEXPLAINED AND BELONGS TO THE ASSESSEE ONLY. ITA NO.457/AGRA/2011 4 (I) SHRI MATAI SINGH TOMAR AND SHRI ASHOK SINGH CHA UHAN BOTH THE PERSON HAD THEIR BANK ACCOUNTS IN F.Y. 2003-04 BUT IT IS NOT UNDERSTANDABLE THAT WHY THEY KEPT THEIR MONEY ALONG WITH THE ASSESSEES BANK ACCOUNT. (II) ONE AFFIDAVIT WAS PRODUCED IN THE NAME OF SHRI ASHOK SINGH CHAUHAN BUT IN THE STATEMENT THE CONCERNED PERSON TOLD HIS ANOTHER NAME WHICH IS SHRI BISHAM PRATAP SINGH AND IN THE VOTERS IDENTITY CARD AND LAND POSSESSION CREDIT BOOK ONLY THE NAME BISHAM PRATAP SINGH AND IN THE VOTERS IDENTITY CARD AND LAND POSSESSION- CR EDIT BOOK ONLY THE NAME BISHAM PRATAP SINGH IS MENTIONED. (III) ASSESSEE BELONGS TO VILLAGE MIHONA WHILE THE AFFIDAVIT HOLDERS BELONGS TO ANOTHER VILLAGES. SO IT IS NOT POSSIBLE THAT THESE PERSONS KEPT THEIR MONEY ALONGWITH AVOIDING THE NEAREST SOC IAL NET WORKING BELONGS TO THEM. (IV) ALL THE THREE PERSONS PRODUCED POSSESSION AND CREDIT BOOK BUT IN THESE CREDIT BOOKS THERE IS NO SIGNATURE OF THE ISSUING O FFICER AND THE BOOK HOLDER. (V) IN THE STATEMENT THESE THREE PERSONS MENTIONED ABOUT THE APPROXIMATE AMOUNT WHICH IS DUE WITH THE ASSESSEE ON 19.09.2011 (1.50 LACS OF SHRI ASHOK SINGH, 2 LACS OF SHRI MATAI SINGH AND 1 LAC OF SHRI HAR NARAYAN SHARMA) BUT WHEN STATEMENT OF THE ASSESSEE WAS TAKEN JUST AFTER THE STATEMENT OF THESE 3 PERSONS AND HE WAS A SKED ABOUT THE DUE AMOUNT. BUT ASSESSEE DID NOT TELL ANYTHING ABOUT TH IS DUE AMOUNT ALONGWITH HIM. IT IS NOT POSSIBLE THAT THE ASSESSEE HAS LIABILITY OF RS. 3.5 LACS AND HE IS UNFAMILIAR WITH IT. (VI) THESE 3 PERSONS TOLD THAT THE MONEY WHICH THEY KEPT ALONGWITH THE ASSESSEE HAD THE SOURCE OF SALE OF GRAINS IN THE MA NDI BUT THEY COULD NOT PRODUCE ANY BILLS AND VOUCHERS OF THE SAME. (VII) SHRI MATAI SINGH TOMAR INVESTED RS. 3 LACS IN THE MARRIAGE OF HIS DAUGHTER IN 2006 BUT IN STATEMENT THIS FACT CAME TO NOTICE THAT HE DID NOT TAKE HIS MONEY BACK FROM THE ASSESSEE IN SPITE OF THE URGENCY OF THE MONEY. (VIII) ONE OF THESE PERSONS NAME SHRI ASHOK SINGH S IGNED ON THE STATEMENTS BUT THIS SIGNATURE DOES NOT MATCH WITH THE SIGNATUR E OVER THE AFFIDAVIT. ITA NO.457/AGRA/2011 5 ON THE BASIS OF ABOVE FACTS IT IS VERY CLEAR THAT THE CASH CREDIT IN THE BANK ACCOUNT OF THE ASSESSEE IS UNEXPLAINED AND THERE IS NO RELATION WITH THE ABOVE MENTIONED PERSONS OF IT. SO PLEASE CONSIDER MY SUBMISSION POSITIVELY IN THE INTEREST OF REVENUE. 4.1 ASSESSEES REJOINDER TO THE SAME IS REPRODUCED AS HEREUNDER:- THE OBSERVATIONS AND CONCLUDING REMARKS DISBELIEVI NG THE AMOUNT BELONGING TO THREE PERSONS BY THE LD. ASSIST ANT COMMISSIONER OF INCOME TAX ARE NOT JUSTIFIED. THE OBSERVATIONS A ND CONCLUDING REMARKS GIVEN BY THE LD. ASSISTANT COMMISSIONER OF INCOME TAX ARE SERIALLY NUMBERED FROM 1 TO 8 FOR ALL THE THREE PER SONS. HOWEVER, MY HUMBLE SUBMISSION TO THE COMMENTS OF THE LD. ASSIST ANT COMMISSIONER OF INCOME TAX FOR EACH PERSON SEPARATE LY IS BEING SUBMITTED AS UNDER: A. COMMENTS AND SUBMISSION WITH REFERENCE TO SHRI M ATAI SINGH TOMAR, VILLAGE- IMLAHA, DIST. BHIND SL.NO. COMMENTS OF LD. ACIT HUMBLE SUBMISSION 1. SHRI MATAI SINGH TOMAR HAD BANK ACCOUNT IN F.Y. 2003-04 BUT IT IS NOT UNDERSTANDABLE THAT WHY THEY KEPT THEIR MONEY ALONGWITH THE ASSESSEES BANK ACCOUNT. WHILE CONCLUDING AND COMMENTING, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS RELIED UPON THE FOLLOWING STATEMENT RECORDED BY HIM: IKZ&3& VKI ;S JDE UTNHDH CSAD KK[KK ES A HKH J[K LDRS FKS] YSFDU FQJ HKH VKIUS ;S JESK DQEKJ XQIRK DS IKL GH D;KSA J[KSA GSAA D`I;K LI'V DJSAA MRRJ& CSAD ESA DBZ CKJ :I;S&ISLS THAT, THE OBSERVATION IS NOT JUSTIFIED. THAT, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS GIVEN THE CONCLUDING REMARK BECAUSE ..IT IS NOT UNDERSTANDABLE... THIS CONCLUDING REMARK IS NOT JUSTIFIED BECAUSE IT IS SUBJECTIVE AND NOT OBJECTIVE. SHRI MATAI SINGH TOMAR NEVER KEPT HIS MONEY WITH THE ASSESSEES BANK ACCOUNT. IT IS WITH THE ASSESSEE/APPELLANT ONLY, WHO KEPT THE MONEY IN HIS BANK ACCOUNT. SHRI MATAI SINGH TOMAR DEPOSITED THE MONEY WITH THE APPELLANT JUST TO KEEP WITHOUT ANY FURTHER DIRECTION TO DEPOSIT OR NOT TO DEPOSIT THE MONEY IN BANK ACCOUNT. HOWEVER, THE DISBELIEVING BECAUSE OF NOT KEEPING THE MONEY IN PERSONAL BANK ITA NO.457/AGRA/2011 6 LE; IJ UGHA FEY IKRS GSA VKSJ JH JESK DQEKJ XQIRK LS VPNS LACA/K GSA] BLFY;S ESAUS MUDS IKL :I;S J[KSA GSAA IZ&4& VKIUS ;S :I;S VIUS FJ RSNKJKSA DS IKL D;KSA UGHA J[KSA TSLS VKIDS HKKBZ] LLQJKY I{K DS YKSX VKSJ VU; FJRSNKJ O UKRSNKJA D`IK;K LI' V DJSAA MRRJ& GEKJS T;KNKRJ FJ RSNKJ BEYKGK LS CKGJ JGRS GSA RFKK JESK TH DK BEYKGK ESA VKUK TKUK GKSRK JGRK GSA IZ&9& D`I;K VI US ,OA IFJOKJ DS LNL;KSA LS LACAF/KR CSAD [KKRKSA DS CKJS ESA TKUDKJH NSA ,OA ;G HKH CRK;SA ;S DC [KKSYS X;SA MRRJ& RHL O'K Z IWOZ GEKJS UKE LS LSUVY CSAD VKWQ BF.M;K] FEGKSUK CZKAP ESA GSA FTLDK [KKRK E 2571 GSA U;K UECJ EQ>S ;KN UGHA GSA ESJS IFJOKJ DS VU; LNL;KSA ESJS CSVS JH D`.KIKY FLAG RFKK JK?KOSUNZ FLAG DS HKH BLH CSD ESA [KKRS GSAA IZ&10& MI;QZDR CSAD [KKRS ESA O'K Z 2003&04 ESA VKIDS OSRU DS VYKOK VKSJ FDRUK YSU&NSU NTZ GSA MLDS CKJS ESA CRKB;SA MRRJ& EQ>S TGKA RD ;KN GS] ESJS OSRU DS VYKOK VKSJ DKSBZ YSU&NSU ESJS CSAD [KKRS ESA NTZ UGHA GSA ACCOUNT OF THE PERSON CONCERNED IS NOT JUSTIFIED BECAUSE IT IS A MATTER OF PERSONAL HABITS AND DEALINGS, WHICH MAY BE VERIFIED WITH THE ANSWER TO Q NO. 10 TO KEEP THE MONEY WITH ONE PERSON OR THE OTHER IS MATTER OF FAITH AND CONVENIENCE. THE PERSON CONCERNED HAS CATEGORICALLY MENTIONED THE REASON OF KEEPING THE MONEY WITH SHRI RAMESH KUMAR GUPTA I.E. THE APPELLANT AND NOT WITH THE BANK OR OTHER RELATIVES. RELIANCE IS PLACED ON : PARA 14:- TO SUM UP, WE ARE CLEARLY OF THE OPINION THAT THE ITO HAD NO MATERIAL WITH HIM WHICH COULD PROVE THE OWNERSHIP OF THE SEIZED AMOUNT OF RS. 1,05,000/- IN THE POSSESSION OF THE ASSESSEE AND IN HIS TURN THE ASSESSEE HAD SATISFACTORILY EXPLAINED HIS POSSESSION THEREOF. THE LD. CIT(A) HAS TAKEN QUITE A REASONABLE VIEW OF THE CIRCUMSTANCES AVAILABLE IN THIS CASE. IT WAS NOT UNWISE ON HIS PART TO OBSERVE THAT AS THE RUSTIC VILLAGERS HAD NOT YET DEVELOPED INVESTMENT HABITS BY KEEPING THEIR MONEY IN BANKS, THE TESTIMONY OF THE SEVEN PERSONS WAS NOT TO BE REJECTED ON THE GROUND THAT THEY DID NOT KEEP THEIR MONEY IN BANKS. IN OUR OPINION, THE LD. CIT(A) HAS GIVEN VERY COGENT REASONS FOR CANCELLING THE ADDITION AND WE FULLY AGREE WITH HIS VIEWS. WE, THEREFORE, SEE NO GOOD CAUSE TO UPSET HIS FINDING AND CONCLUSIONS. GOLCHA PROPERTIES (P) LTD. VS. ITO (1989) 28 ITD 386, RELEVANT PAGE 399 PARA 14 2. ONE AFFIDAVIT WAS PRODUCED IN THE NAME OF SHRI ASHOK SINGH CHAUHAN BUT IN THE STATEMENT THE CONCERNED PERSON TOLD HIS ANOTHER NAME WHICH IS SHRI BISHAM THIS PARA HAS NO RELEVANCE WITH THE AMOUNT DEPOSITED BY SHRI MATAI SINGH TOMAR. ITA NO.457/AGRA/2011 7 PRATAP SINGH AND IN THE VOTERS IDENTITY CARD AND LAND POSSESSION CREDIT BOOK ONLY THE NAME BISHAM PRATAP SINGH IS MENTIONED. 3. ASSESSEE BELONGS TO VILLAGE MIHONA WHILE THE AFFIDAVIT HOLDERS BELONGS TO ANOTHER VILLAGE. SO IT IS NOT POSSIBLE THAT THESE PERSONS KEPT THEIR MONEY ALONG WITH ASSESSEE AVOIDING THE NEAREST SOCIAL NETWORKING BELONGS TO THEM. WHILE CONCLUDING AND COMMENTING, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS RELIED UPON THE FOLLOWING STATEMENT RECORDED BY HIM: IKZ&4& VKIUS ;S :I;S VIUS FJ RSNKJKSA DS IKL D;KSA UGHA J[K SA TSLS VKIDS HKKBZ] LLQJKY I{K DS YKSX VKSJ VU; FJ RSNKJ O UKRSNKJA D`I;K LI'V DJSAA MRRJ& GEKJS T;KNKRJ FJS RSNKJ BEYKGK LS CKGJ JGRS GSA RFKK JESK TH DK BEYKGK ESA VKUK TKUK GKSRK JGRK GSA THAT, THE OBSERVATIONS IS NOT JUSTIFIED. THAT, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS GIVEN THE CONCLUDING REMARK BECAUSE IT IS NOT POSSIBLE.. THIS CONCLUDING REMARK IS NOT JUSTIFIED BECAUSE IT IS SUBJECTIVE AND NOT OBJECTIVE. THAT, THE PERSON CONCERNED SHRI MATAI SINGH TOMAR HAS CATEGORICALLY GIVEN THE REASON OF DEPOSITING/KEEPING THE MONEY WITH SHRI RAMESH KUMAR GUPTA I.E. THE APPELLANT AND NOT KEEPING THE MONEY WITH OTHER PERSONS. THEREFORE, THE CONCLUDING REMARKS ARE SUBJECTIVE AND NOT OBJECTIVE, WHICH ARE NOT PERMISSIBLE UNDER THE LAW. 4. ALL THE THREE PERSONS PRODUCED LAND POSSESSION AND CREDIT BOOK BUT IN THESE CREDIT BOOKS THERE IS NO SIGNATURE OF THE ISSUING OFFICER AND THE BOOK HOLDER. WHILE CONCLUDING AND COMMENTING, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS RELIED UPON THE FOLLOWING STATEMENT RECORDED BY HIM. IZ0&7& VKIDS }KJK IZLRQR HKW& VF/KDKJ ,OA _.K IQFLRDK DS DZEKAD 271111 ESA TKJHDRKZ VF/K DKJH DS GLRK{KJ UGHA GS RFKK D`'KD DS GLRK{KJ UGHA GSAA BLDK DKJ.K LI'V DJSAA M0& ;S IQFLRDK GESA 10&12 FNU IWOZ IVOKJH EKSGU JHOKLRO }KJK MIY C/K DJOK;H X;H GS VKSJ VU; VF/KDKFJ;KSA DS THAT, IT IS A MATTER RELATED TO ISSUING OFFICER. HOWEVER, IT IS SUBMITTED THAT THE ENTRIES RECORDED ARE DULY AUTHENTICATED BY THE OFFICER CONCERNED. TO PUT THE SIGNATURE BY THE ISSUING OFFICER AND BOOK HOLDER IS THE DUTY OF THE OFFICER CONCERNED. THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS NOT ESTABLISHED THAT THE RELEVANT RECORDS ARE FALSE, FORGED AND NOT CORRECT. IF THIS EVIDENCE IS MATERIAL, THEN THE LD. ACIT OUGHT TO HAVE EXAMINED THIS ASPECT ALSO WITH THE CONCERNED GOVERNMENT DEPARTMENT. BUT THIS HAS NOT BEEN DONE. THEREFORE, IN ABSENCE OF ANY CONTRARY FINDING AND MATERIAL, THE LD. ACIT IS NOT JUSTIFIED IN DISBELIEVING THE DOCUMENTS SUPRA. ITA NO.457/AGRA/2011 8 GLRK{KJ DS CKJS ESA EQ>S UGHA IRKA IZ0&8& BL HKW&IQFLRDK LS IWOZ CUK;H X;H VU; IQFLRDKVKSA DH FLFKFR DS CKJS ESA CRKB;SA M0& OS LKJH FDRKCSA ESJS IKL MIYC/K GSA ;S FDRKCSA YXHKX 10 O'KZ IQJKUH GSAA 5. IN THE STATEMENT, HE MENTIONED ABOUT THE APPROXIMATE AMOUNT WHICH IS DUE WITH THE ASSESSEE ON 19.09.2011 (RS. 2 LAKH OF SHRI MATAI SINGH) BUT WHEN STATEMENT OF THE ASSESSEE WAS TAKEN JUST AFTER THE STATEMENT OF THESE 3 PERSONS AND HE WAS ASKED ABOUT THE DUE AMOUNT. BUT ASSESSEE DID NOT TELL ANYTHING ABOUT HIS DUE AMOUNT ALONGWITH HIM. IT IS NOT POSSIBLE THAT THE ASSESSEE HAS LIABILITY OF RS. 3.5 LACS AND HE IS UNFAMILIAR WITH IT. WHILE CONCLUDING AND COMMENTING, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS RELIED UPON THE FOLLOWING STATEMENT RECORDED BY HIM: IZ0&2& FNUKAD 20-12- 2010 DKS BL DK;KZY; ESA IZLRQR KIFK& I= DS VUQLKJ VKIUS OKZ 2003&04 ESA 3- 50 YK[K :I;S JH JESK DQEKJ XQIRK] XZKE BEYKGK DKS MUDS IKL J[KUS DS FY;S FN;S FKS] FTUESA LS 1- 50 YK[K :I;S GEUS OKIL IZKIR FD;S GSA VKSJ VHKH HKH 2 YK[K :I;S MUESA CKDH GSAA C;KU& JESK DQEKJ XQIRK IKZ0&1& VKT FNUKAD 19-09- 2011 DKS VKIDKS ERBZ FLAG RKSEJ] HKH' E IZRKI FLAG MQZ VKKSD FLAG PKSGKU RFKK JH GFJ UKJK;U K EKZ RHUKSA O;FDR FTUDS UKE LS KIFKI= IZLRQR FD;S X;S GSA DKS FDRUS :I;S VKIDKS NSUK GSA THAT, THE CONCERNED SHRI MATAI SINGH TOMAR HAS CATEGORICALLY MENTIONED AND CONFIRMED THE AMOUNT OF DEPOSIT WITH THE APPELLANT AS WELL AS THE REMAINING AMOUNT AS ON DATE OF RECORDING THE STATEMENT. THE APPELLANT HAS ALSO CONFIRMED THE TRANSACTION OF KEEPING THE MONEY AND PAYABLE AS ON THE DATE OF RECORDING THE STATEMENT. ALTHOUGH, HE HAS NOT GIVEN THE EXACT AMOUNT AS ON THE DATE OF RECORDING THE STATEMENT BUT CONFIRMED THE TRANSACTION. THE REASON FOR NOT MENTIONING THE EXACT AMOUNT WAS NOT BRINGING THE RELEVANT PAPERS AT THE TIME APPELLANT WAS NEVER TOLD TO ATTEND THE OFFICE ALONGWITH THE RELEVANT DOCUMENTS. THEREFORE, THE APPELLANT ATTENDED THE OFFICE WITHOUT BRINGING ANY DOCUMENT AT THAT TIME. HOWEVER, THE APPELLANT HAS CATEGORICALLY CONFIRMED THE AMOUNT PAYABLE TO SHRI MATAI SINGH TOMAR AS ON THE DATE OF RECORDING THE STATEMENT. THEREFORE, IN VIEW OF THE ABOVE, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX IS NOT JUSTIFIED IN DISBELIEVING THE TRANSACTION BETWEEN BOTH THE PARTIES. ITA NO.457/AGRA/2011 9 M0& BL RJG DK DKSBZ FGLKC FDRKC ;KN UGHA GSA GKA EQ>S ISLS NSUS GSA Y SFDU FDRUS NSUS GSA ;S ESJS /;KU ESA UGHA GSA 6. THESE 3 PERSONS TOLD THAT THE MONEY WHICH THEY KEPT ALONGWITH THE ASSESSEE HAD THE SOURCE OF SALE OF GRAINS IN THE MANDI BUT THEY COULD NOT PRODUCE ANY BILLS AND VOUCHERS OF THE SAME. WHILE CONCLUDING AND COMMENTING, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS RELIED UPON THE FOLLOWING STATEMENT RECORDED BY HIM: IKZ0&14 VKIUS VIUS KIFKI= ESA FY[KK GS FD ESA VIUH QLY XYYK E.MH ESA UDN FCH DJRK GWAA D`I;K ;S CRK;AS FD ;S FDL E.MH DS CKJS ESA VKI CRK JGS GSAA VKSJ TKS HKHK E.MH ESA YSU&NSU DH JLHNSA GSA] MUDKS IZLRQR DJSAA M0& ESA VIUH QLY DH FCH FEGKSUK E.MH LS LACAF/KR GSA BLDH JLHN GESA DHKH UGHA FEYH GSA BLFY;S ESJS IKL DKSBZ JLHN UGHA GSA BRUS LKYKSA RD ESJK JLHNKSA LS DKSBZ DKE UGHA IM+KA IZ0&15& VKIDS IKL TKS HKH 40 CH? KK TEHU GSA OG VKIDKS DSLS IZKIR GQBZ VKSJ DC IZKIR GQBZA M0& 40 CH?KK TEHU EQ>S ESJS EKEK LO0 JH GKFDE FLAG DQ KOKGK] XZKE BEYKGK LS FEYH GSA 25 CH?KK TEHU 20&25 OKZ ESJS UKE DJ NH FKH ,OA 15 CH?KK TEHU OKZ 2010 ESA ESJS UKE LS GLRKARFJR GQBZ GSA THAT, THE CONCLUDING REMARK OF THE AD. ASSISTANT COMMISSIONER OF INCOME TAX FOR DISBELIEVING THE SOURCE OF MONEY DEPOSITED WITH THE APPELLANT MENTIONING THAT SHRI MATAI SINGH TOMAR COULD NOT PRODUCE ANY BILLS AND VOUCHERS OF SALE OF GRAINS AS SOURCE OF MONEY IS NOT JUSTIFIED. THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS NOT DOUBTED THE HOLDING OF AGRICULTURE LAND. SINCE, THE PERSON CONCERNED HAD SUBMITTED THE RELEVANT PAPERS REGARDING LAND HOLDING AND OTHER REVENUE DETAILS ALSO, HENCE, DISBELIEVING THE AGRICULTURAL AND SUBSEQUENTLY SALE OF CROPS IS NOT JUSTIFIED. RELIANCE IS PLACED ON: ASSESSEE HAS SUBMITTED COMPLETE DETAILS OF HIS AGRICULTURE HOLDING ALONGWITH THE ACTIVITIES CARRIED OUT BY HIM DURING THE RELEVANT PERIOD- SAME DULY SUPPORTED BY THE REVENUE RECORDS AND THE CERTIFICATE ISSUED BY THE AGRICULTURE OFFICE-THEREFORE, AO WAS NOT JUSTIFIED IN TREATING A PART OF THE AGRICULTURAL INCOME AS NON- AGRICULTURAL INCOME. KAMAL KISHORE CHANDAK VS. ITO (2006) 103TTJ(JD) 843 RELEVANT PAGE 848 THAT, THE PERSON CONCERNED HAS MENTIONED THE SOURCE OF MONEY AS SALE OF CROPS WHILE RECORDING THE STATEMENT BUT COULD NOT SUBMIT THE SALE RECEIPT OF CROP FOR THE REASON NOT KEEPING THE RECEIPT WITH HIM. MEANING THEREBY HE HAS GIVEN THE ORAL EVIDENCE SUPPORTED WITH LAND HOLDING AND OTHER RELEVANT RECORD. SINCE, THERE WAS NO RECEIPT WITH THE ASSESSEE BUT THE ITA NO.457/AGRA/2011 10 CONTENTION HENCE THE ORAL EVIDENCE REJECTED BY THE LD. ACIT MAINLY ON SUSPICION IS NOT JUSTIFIED. RELIANCE IS PLACED ON: AS REGARDS THE FAILURE OF THE ASSESSEE TO PRODUCE BOOKS OF ACCOUNTS, IT WAS MENTIONED IN THE STATEMENT OF THE CASE THAT THE HINDU UNDIVIDED FAMILY HAD NOT MAINTAINED ANY BOOKS OF ACCOUNTS. IF IT IS A FACT THAT THE ASSESSEE DID NOT MAINTAIN BOOKS OF ACCOUNTS, IT CAN HARDLY BE BLAMED FOR ITS FAILURE TO PRODUCE ACCOUNT BOOKS BEFORE THE INCOME TAX OFFICER. ALL THE ORAL AND DOCUMENTARY EVIDENCE PRODUCED BY THE ASSESSEE REJECTED BY THE TRIBUNAL MAINLY ON SUSPICION AND CONJECTURE WAS NOT LEGALLY SUSTAINABLE. THERE IS NO PRESUMPTION THAT WITNESSES APPEARING FOR AN ASSESSEE COME FORWARD TO GIVE FALSE EVIDENCE TO OBLIGE THE ASSESSEE. SHEO NARAIN DULI CHANDJI VS. CIT (1969) 72 ITR 766 (ALL.) B. COMMENTS AND SUBMISSION WITH REFERENCE TO SHRI B HISHM PRATAP SINGH, ALIAS SHRI ASHOK SINGH, VILLAGE- DAULATPURA, DIST. BHIND. SL.NO. COMMENTS OF LD. ACIT HUMBLE SUBMISSION 1. SHRI ASHOK SINGH CHAUHAN HAD BANK ACCOUNT IN F.Y. 2003-04 BUT IT IS NOT UNDERSTANDABLE THAT WHY THEY KEPT THEIR MONEY ALONGWITH THE ASSESSEES BANK ACCOUNT. WHILE CONCLUDING AND COMMENTING, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS RELIED UPON THE FOLLOWING STATEMENT RECORDED BY HIM: IZ&9& ' KIFKI= DS VUQLKJ VKIUS 2 YK[K LS 3 YK[K :I;S UXNH JH JESK DQEKJ XQIRK DS IKL J[KS FKSA BL JDE THAT, THE OBSERVATION IS NOT JUSTIFIED. THAT, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS GIVEN THE CONCLUDING REMARK BECAUSE ..IT IS NOT UNDERSTANDABLE.. THIS CONCLUDING REMARK IS NOT JUSTIFIED BECAUSE IT IS SUBJECTIVE AND NOT OBJECTIVE. SHRI BHISM PRATAP SINGH ALIAS SHRI ASHOK SINGH CHAUHAN NEVER KEPT HIS MONEY WITH THE ASSESSEES BANK ACCOUNT. IT IS WITH THE ASSESSEE/APPELLANT ONLY, WHO KEPT THE MONEY IN HIS BANK ACCOUNT. SHRI ITA NO.457/AGRA/2011 11 DK L=KSR D;K FKKA RFKK ;S JDE VU; FJRSNKJKSA ;K CSAD ESA D;KSA UGHA J[KH X;HA MRRJ& ;S :I;S [KSRH LS IZKIR VKENUH DS GSAA ESJK [KKRK 2003&04 ESA PECY {KS=H; XZKEH.K CSAD FEGKSUK ESA FKKA CSAD DH CTK; JESK TH LS YSU NSU DJUK GEKJS FY;S T;KNK VKLKU GSA BLFY;S ;S ISLS GEUS MUDS IKL J[KS GSAA IZ0&11& VKI XZKE NKSYRIQJK&LK UH DS JGUS OKYS GSA VKSJ JESK TH BEYKGK XZKE DS JGUS OKYS GSAA BLFY;S D`I;K CRK;SA FD VKIDS CHP :I;KSA DK YSU NSU D;KSA GQVKA M0& GE ,D GH XZKE IAPK;R DS JGUS OKYS GSA RFKK GEKJH [KSRH DH TEHU HKH VKLIKL GSA BLFY;S MUDS LKFK GEKJK YSU NSU VKLKU GSA BHISM PRATAP SINGH ALIAS SHRI SHRI ASHOK SINGH CHAUHAN DEPOSITED THE MONEY WITH THE APPELLANT JUST TO KEEP WITHOUT ANY FURTHER DIRECTION TO DEPOSIT OR NOT TO DEPOSIT THE MONEY IN BANK ACCOUNT. HOWEVER, THE DISBELIEVING BECAUSE OF NOT KEEPING THE MONEY IN PERSONAL BANK ACCOUNT OF THE PERSON CONCERNED IS NOT JUSTIFIED BECAUSE IT IS A MATTER OF PERSON HABITS AND DEALINGS. TO KEEP THE MONEY WITH ONE PERSON OR THE OTHER IS A MATTER OF FAITH AND CONVENIENCE. THE PERSON CONCERNED HAS CATEGORICALLY MENTIONED THE REASON OF KEEPING THE MONEY WITH SHRI RAMESH KUMAR GUPTA I.E. THE APPELLANT AND NOT WITH THE BANK OR OTHER RELATIVES. RELIANCE IS PLACED ON : PARA 14:- TO SUM UP, WE ARE CLEARLY OF THE OPINION THAT THE ITO HAD NO MATERIAL WITH HIM WHICH COULD PROVE THE OWNERSHIP OF THE SEIZED AMOUNT OF RS. 1,05,000/- IN THE POSSESSION OF THE ASSESSEE AND IN HIS TURN THE ASSESSEE HAD SATISFACTORILY EXPLAINED HIS POSSESSION THEREOF. THE LD. CIT(A) HAS TAKEN QUITE A REASONABLE VIEW OF THE CIRCUMSTANCES AVAILABLE IN THIS CASE. IT WAS NOT UNWISE ON HIS PART TO OBSERVE THAT AS THE RUSTIC VILLAGERS HAD NOT YET DEVELOPED INVESTMENT HABITS BY KEEPING THEIR MONEY IN BANKS, THE TESTIMONY OF THE SEVEN PERSONS WAS NOT TO BE REJECTED ON THE GROUND THAT THEY DID NOT KEEP THEIR MONEY IN BANKS. IN OUR OPINION, THE LD. CIT(A) HAS GIVEN VERY COGENT REASONS FOR CANCELLING THE ADDITION AND WE FULLY AGREE WITH HIS VIEWS. WE, THEREFORE, SEE NO GOOD CAUSE TO UPSET HIS FINDING AND CONCLUSIONS. GOLCHA PROPERTIES (P) LTD. VS. ITO (1989) 28 ITD 386, RELEVANT PAGE 399 PARA 14 ITA NO.457/AGRA/2011 12 2. ONE AFFIDAVIT WAS PRODUCED IN THE NAME OF SHRI ASHOK SINGH CHAUHAN BUT IN THE STATEMENT THE CONCERNED PERSON TOLD HIS ANOTHER NAME WHICH IS SHRI BHISHM PRATAP SINGH AND IN THE VOTERS IDENTITY CARD AND LAND POSSESSION CREDIT BOOK ONLY THE NAME BHISHM PRATAP SINGH IS MENTIONED. WHILE CONCLUDING AND COMMENTING, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS RELIED UPON THE FOLLOWING STATEMENT RECORDED BY HIM: IKZ0&1& D`I;K VIUK IW.KZ IFJP; NSAA M0& ESJK IWJK UKE HKH' E IZRKI FLAG MQZ V KKSD FLAG PKSGKU IQ= JH IWJU FLAG PKSGKU]FU0&NKSYRIQJKLKUH] FTYK& FHK.M GWAA ESJS IKL DKSBZ PAN DKMZ UGHA GS VKSJ U GH ESA VK;DJ NKRK GWAA IZ0&5& VKIDS }KJK IZLRQR HKW&VF/KDKJ ,OA _.K IQFLRDK - 827718] 827719 TKS FD HKKUQ IZRKI FLAG VKFN DS UKE LS GSAA BLESA VKIDK UKE HKH' E IZRKI FLAG FY[KK GS YSFDU [KLJK [KRKSUH] P-II QKEZ ESA VKIDK UKE HKH' E IZRKI FLAG MQZ V KKSD FLAG FY[KK X;KA D`I;K VKI FLFKFR DKS LI'V DJSAA M0& ;S LC IVOKJH DH XYRH DS DKJ.K GQVK GSA ESJK UKE HKHE IZRKI FLAG MQZ VKKSD FLAG GSA IZ0&6& VKIDS }KJK FNUKAD 20-12- 2010 DKS FOHKKX DS LE{K IZLRQR 'KIFKI= ES A VKIDK EQ[; UKE V KKSD FLAG PKSGKU FY[KK X;K GSA TCFD [KLJK] [KRKSUH P- II QKEZ ESA EQ[; UKE HKH' E IZRKI FLAG FY[KK X;K GSA D`I;K BL FOJKS/KKHKKL DKS THAT, THE OBSERVATION OF THE LD. ACIT IS NOT CORRECT BECAUSE IT IS NOT BASED ON THE SUPPORTING DOCUMENTS. THE PERSON CONCERNED HAS CATEGORICALLY MENTIONED THAT THE OFFICIAL NAME IN THE SCHOOL WAS SHRI BHISM PRATAP SINGH. WHEREAS HE WAS KNOWN AS BHISHM PRATAP SINGH ALIAS ASHOK SINGH CHAUHAN S/O SHRI POORAN SINGH CHAUHAN RESIDENT OF DAULATPURA (SANI) DIST. BHIND. HE HAS CATEGORICALLY MENTIONED HIS NAME, FATHERS NAME AND ADDRESS ALSO AS HIS IDENTITY. HIS BOTH THE NAMES ARE RECORDED IN KHASRA-KHATONI, P- II FORM ALSO, WHICH WERE ISSUED BY THE GOVT. DEPARTMENT. THEREFORE, ONCE THE PERSON CONCERNED HAS CATEGORICALLY MENTIONED HIS IDENTITY GIVING NAME, FATHERS NAME AND ADDRESS, HENCE THE CONTRARY FINDING BASED ON SUSPICION BY THE LD. ACIT IS NOT JUSTIFIED. ITA NO.457/AGRA/2011 13 LI'V DJSAA M0& LDWY ESA ESJK UKE HKH' E IZRKI FLAG FKKA ESAUS UOEH D{KK RD BLH UKE LS FK{KK XZG.K DH GSA ;S F K{KK ESAUS NHIW NEU FLAG HKNKSFJ;K MPPRJ EK/;FED FO|KY; FEGKSUK ESA XZG.K DH GSA UOHA D{KK LS ESAUS I<+KBZ NKSM+ NH FKHA ESJS IKL DKSBZ HKH EKDZ KHV ,OA VHLH MIYC/K UGHA GSAA 3. ASSESSEE BELONGS TO VILLGE MIHONA WHILE THE AFFIDAVIT HOLDERS BELONG TO ANOTHER VILLAGE. SO IT IS NOT POSSIBLE THAT THESE PERSONS KEPT THEIR MONEY ALONGWITH ASSESSEE AVOIDING THE NEAREST SOCIAL NETWORKING BELONGS TO THEM. WHILE CONCLUDING AND COMMENTING, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS RELIED UPON THE FOLLOWING STATEMENT RECORDED BY HIM: IZ0&11& VKI XZKE NKSYRIQJK&LKUH DS JGUS OKYS GSA VKSJ JESK TH BEYKGK XZKE DS JGUS OKYS GSAA BLFY;S D`I;K CRK;ASA FD VKIDS CHP :I;KSA DK YSU NSU D;KSA GQVKA M0& GE ,D GH XZKE IAPK;R DS JGUS OKYS GSA RFKK GEKJH [KSRH DH TEHU HKH VKLI KL GSA BLFY;S MUDS LKFK GEKJK YSU NSU VKLKU GSA THAT, THE OBSERVATION IS NOT JUSTIFIED. THAT, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS GIVEN THE CONCLUDING REMARK BECAUSE .IT IS NOT POSSIBLE.. THIS CONCLUDING REMARK IS NOT JUSTIFIED BECAUSE IT IS SUBJECTIVE AND NOT OBJECTIVE. THAT, THE PERSON CONCERNED SHRI BHISHM PRATAP SINGH ALIAS ASHOK SINGH CHAUHAN HAS CATEGORICALLY GIVEN THE REASON OF DEPOSITING/KEEPING THE MONEY WITH SHRI RAMESH KUMAR GUPTA I.E. THE APPELLANT EXPLAINING THAT THE TRANSACTIONS WITH THE APPELLANT ARE CONVENIENT BECAUSE BOTH ARE BELONGS TO SAME PANCHAYAT HAVING AGRICULTURAL LAND NEARER TO EACH OTHER: THEREFORE, THE CONCLUDING REMARKS ARE SUBJECTIVE AND NOT OBJECTIVE, WHICH ARE NOT PERMISSIBLE UNDER THE LAW. 4. ALL THE THREE PERSONS PRODUCED LAND POSSESSION AND CREDIT BOOK BUT IN THESE CREDIT BOOKS THERE IS NO SIGNATURE OF THE ISSUING OFFICER AND THE BOOK HOLDER. WHILE CONCLUDING AND COMMENTING, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS RELIED UPON THE FOLLOWING STATEMENT RECORDED BY HIM: IZ0&13& VKIDS }KJK IZLRQR HKW& VF/KDKJ THAT, IT IS A MATTER RELATED TO ISSUING OFFICER. HOWEVER, IT IS SUBMITTED THAT THE ENTRIES RECORDED ARE DULY AUTHENTICATED BY THE OFFICER CONCERNED. TO PUT THE SIGNATURE BY THE ISSUING OFFICER AND BOOK HOLDER IS THE DUTY OF THE OFFICER CONCERNED. THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS NOT ESTABLISHED THAT THE RELEVANT RECORDS ARE FALSE, FORGED AND NOT CORRECT. IF THIS ITA NO.457/AGRA/2011 14 ,OA _.K IQFLRDK ESA DKSBZ QKSVKS GHA YXK GS RFKK TKJHDRKZ VF/KDKJH DS GLRK{KJ HKH UGHA GS VKSJ U GH D`' KD DS GLRK{KJ GASAA D`I;K BLDK LI'VHDJ.K IZLRQR DJSAA M0& ;S LKJH XYFR;KA JKTLO FOHKKX DH GSAA EVIDENCE IS MATERIAL, THEN THE LD. ACIT OUGHT TO HAVE EXAMINED THIS ASPECT ALSO WITH THE CONCERNED GOVERNMENT DEPARTMENT. BUT THIS HAS NOT BEEN DONE. THEREFORE, IN ABSENCE OF ANY CONTRARY FINDING AND MATERIAL, THE LD. ACIT IS NOT JUSTIFIED IN DISBELIEVING THE DOCUMENTS SUPRA. 5. IN THE STATEMENT, HE MENTIONED ABOUT THE APPROXIMATE AMOUNT WHICH IS DUE WITH THE ASSESSEE ON 19.09.2011 (RS. 1.5 LAKH OF SHRI ASHOK SINGH) BUT WHEN STATEMENT OF THE ASSESSEE WAS TAKEN JUST AFTER THE STATEMENT OF THESE 3 PERSONS AND HE WAS ASKED ABOUT THE DUE AMOUNT. BUT ASSESSEE DID NOT TELL ANYTHING ABOUT HIS DUE AMOUNT ALONGWITH HIM. IT IS NOT POSSIBLE THAT THE ASSESSEE HAS LIABILITY OF RS. 3.5 LACS AND HE IS UNFAMILIAR WITH IT. WHILE CONCLUDING AND COMMENTING, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS RELIED UPON THE FOLLOWING STATEMENT RECORDED BY HIM: IZ0&10& JESK TH US VKIDKS FDRUS ISLS PQDK;S VKSJ FDRUK ISLK VHKH JESK TH DS IKL TEK GSA M0& JESK TH US EQ>S YXHKX OKZ 2004&05 ESA 1- 50 YK[K :I;S FN;S FKSA RFKK BL LE; MUDS IKL 1- 50 YK[K :I;S DS VKLIKL VKSJ TEK GSAA C;KU%& JESK DQEKJ XQIRKA IKZ0&1& VKT FNUKAD 19-09- 2011 DKS VKIDKS ERBZ FLAG RKSEJ] HKH' E IZRKI FLAG MQZ V KKSD FLAG PKSGKU RFKK JH GFJUKJK;.K ' KEKZ RHUKSA O;FDR FTUDS UKE LS ' KIFKI= IZLRQR FD;S X;S GSA DKS THAT, THE CONCERNED SHRI BHISHM PRATAP SINGH HAS CATEGORICALLY MENTIONED AND CONFIRMED THE AMOUNT OF DEPOSIT WITH THE APPELLANT AS WELL AS THE REMAINING AMOUNT AS ON DATE OF RECORDING THE STATEMENT. ALTHOUGH THE PERSON CONCERNED HAS MENTIONED THE APPROXIMATE AMOUNT OF RS. 1.5 LAKH AS DEPOSIT WITH THE APPELLANT, BUT HE HAS MENTIONED THE AMOUNT OF DEPOSIT ALSO. THE APPELLANT HAS ALSO CONFIRMED THE TRANSACTION OF KEEPING THE MONEY AND PAYABLE AS ON THE DATE OF RECORDING THE STATEMENT. ALTHOUGH, HE HAS NOT GIVEN THE EXACT AMOUNT AS ON THE DATE OF RECORDING THE STATEMENT BUT CONFIRMED THE TRANSACTION. THE REASON FOR NOT MENTIONING THE EXACT AMOUNT WAS NOT BRINGING THE RELEVANT PAPERS AT THE TIME OF RECORDING OF THE STATEMENT. THE APPELLANT WAS NEVER TOLD TO ATTEND THE OFFICE ALONGWITH THE RELEVANT DOCUMENTS. THEREFORE, THE APPELLANT ATTENDED THE OFFICE WITHOUT BRINGING ANY DOCUMENT AT THAT TIME. HOWEVER, THE APPELLANT HAS CATEGORICALLY CONFIRMED THE AMOUNT PAYABLE TO SHRI BHISHM PRATAP SINGH ALIAS ASHOK SINGH CHAUHAN. THEREFORE, IN VIEW OF THE ABOVE, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX IS NOT JUSTIFIED IN DISBELIEVING THE TRANSACTION BETWEEN BOTH THE PARTIES. ITA NO.457/AGRA/2011 15 FDRUS :I;S VKIDKS NSUK GSA M0& BL RJG DK DKSBZ FGLKC FDRKC ;KN UGHA GSA GKA EQ>S ISLS NSUS GSA YSFDU FDRUS NSUS GSA ;S ESJS /;KU ESA UGHA GSA 6. THESE 3 PERSONS TOLD THAT THE MONEY WHICH THEY KEPT ALONGWITH THE ASSESSEE HAD THE SOURCE OF SALE OF GRAINS IN THE MANDI BUT THEY COULD NOT PRODUCE ANY BILLS AND VOUCHERS OF THE SAME. WHILE CONCLUDING AND COMMENTING, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS RELIED UPON THE FOLLOWING STATEMENT RECORDED BY HIM: IZ0&12& VKIDS }KJK IZLRQR ' KIFKI= ESA VKIUS FY[KK GS FD VKI E.MH ESA QLY DH UXN FCH DJRS GSAA D`I;K CRK;SA ;S DFKU FDL E.MH LS LACF/KR GS RFKK BLDS FCY OKMPJ ;FN GSA RKS IZLRQR DJSAA M0& ESA FEGKSUK E.MH ESA QLY DH UXN FCH DJRK GWAA FCH LS LACAF/KR FDLH IZDKJ DH JLHNSA ESJS IKL UGHA GSAA THAT, THE CONCLUDING REMARK OF THE LD. ASSISTANT COMMISSIONER OF INCOME TAX FOR DISBELIEVING THE SOURCE OF MONEY DEPOSITED WITH THE APPELLANT MENTIONING THAT SHRI BHISHM PRATAP SINGH ALIAS ASHOK SINGH CHAUHAN COULD NOT PRODUCE ANY BILLS AND VOUCHERS OF SALE OF GRAINS AS SOURCE OF MONEY IS NOT JUSTIFIED. THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS NOT DOUBTED THE HOLDING OF AGRICULTURE LAND. SINCE, THE PERSON CONCERNED HAD SUBMITTED THE RELEVANT PAPERS REGARDING LAND HOLDING AND OTHER REVENUE DETAILS ALSO, HENCE, DISBELIEVING THE AGRICULTURAL AND SUBSEQUENTLY SALE OF CROPS IS NOT JUSTIFIED. RELIANCE IS PLACED ON: ASSESSEE HAS SUBMITTED COMPLETE DETAILS OF HIS AGRICULTURE HOLDING ALONGWITH THE ACTIVITIES CARRIED OUT BY HIM DURING THE RELEVANT PERIOD-SAME DULY SUPPORTED BY THE REVENUE RECORDS AND THE CERTIFICATE ISSUED BY THE AGRICULTURE OFFICE-THEREFORE, AO WAS NOT JUSTIFIED IN TREATING A PART OF THE AGRICULTURAL INCOME AS NON- AGRICULTURAL INCOME. KAMAL KISHORE CHANDAK VS. ITO (2006) 103 TTJ(JD) 843 RELEVANT PAGE 848 THAT, THE PERSON CONCERNED HAS MENTIONED THE SOURCE OF MONEY AS SALE OF CROPS WHILE RECORDING THE STATEMENT BUT COULD NOT SUBMIT THE SALE RECEIPT OF CROP FOR THE REASON NOT KEEPING THE RECEIPT WITH HIM. MEANING THEREBY HE HAS GIVEN THE ORAL EVIDENCE SUPPORTED WITH LAND HOLDING AND ITA NO.457/AGRA/2011 16 OTHER RELEVANT RECORD. SINCE, THERE WAS NO RECEIPT WITH THE ASSESSEE BUT THE CONTENTION SUPPORTED WITH OTHER RELEVANT RECORD, HENCE THE ORAL EVIDENCE REJECTED BY THE LD. ACIT MAINLY ON SUSPICION IS NOT JUSTIFIED. RELIANCE IS PLACED ON: AS REGARDS THE FAILURE OF THE ASSESSEE TO PRODUCE BOOKS OF ACCOUNTS, IT WAS MENTIONED IN THE STATEMENT OF THE CASE THAT THE HINDU UNDIVIDED FAMILY HAD NOT MAINTAINED ANY BOOKS OF ACCOUNTS. IF IT IS A FACT THAT THE ASSESSEE DID NOT MAINTAIN BOOKS OF ACCOUNTS, IT CAN HARDLY BE BLAMED FOR ITS FAILURE TO PRODUCE ACCOUNT BOOKS BEFORE THE INCOME TAX OFFICER. ALL THE ORAL AND DOCUMENTARY EVIDENCE PRODUCED BY THE ASSESSEE REJECTED BY THE TRIBUNAL MAINLY ON SUSPICION AND CONJECTURE WAS NOT LEGALLY SUSTAINABLE. THERE IS NO PRESUMPTION THAT WITNESSES APPEARING FOR AN ASSESSEE COME FORWARD TO GIVE FALSE EVIDENCE TO OBLIGE THE ASSESSEE. SHEO NARAIN DULI CHANDJ VS. CIT (1969) 72 ITR 766 (ALL.) 7. SHRI MATAI SINGH TOMAR INVESTED RS. 3 LAKHS IN THE MARRIAGE OF HIS DAUGHTER IN 2006 BUT IN STATEMENT THIS FACT CAME TO NOTICE THAT HE DID NOT TAKE HIS MONEY BACK FROM THE ASSESSEE IN SPITE OF THE URGENCY O F THE MONEY. NOT RELEVANT WITH SHRI BHISHM PRATAP SINGH ALIAS ASHOK SINGH CHAUHAN. 8. SHRI ASHOK SINGH SIGNED ON THE STATEMENTS BUT THIS SIGNATURE DOES NOT MATCH WITH THE SIGNATURE OVER THE AFFIDAVIT. WHILE CONCLUDING AND COMMENTING, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS RELIED UPON THE FOLLOWING THAT, THE OBSERVATION OF THE LD. ASSISTANT COMMISSIONER OF INCOME TAX IS NOT JUSTIFIED BECAUSE IT IS SUBJECTIVE AND NOT OBJECTIVE MENTIONING THAT THE SIGNATURE DOES NOT MATCH WITH THE SIGNATURE OVER THE AFFIDAVIT. THE LD. ASSISTANT COMMISSIONER OF INCOME SPECIFICALLY ASKED THE PERSON ITA NO.457/AGRA/2011 17 STATEMENT RECORDED BY HIM: IZ0&14& VKIDS }KJK FNUKAD 20-12- 2010 DKS IZLRQR ' KIFKI= VKSJ VKT FNUKAD 19-09- 2011 DKS FN;S X;S C;KU ESA TKS GLRK{KJ FD;S X;S GSA OS VKIL ESA ESY UGHA [KK JGS GSA] D`I;K BLDK LI' VHDJ.K NSAA M0& ;S NKSUKSA GLRK{KJ ESJS }KJK GH FD;S X;S GSAA CONCERNED REGARDING DIFFERENCE IN SIGNATURE WHILE RECORDING THE STATEMENT. THE PERSON CONCERNED HAS CATEGORICALLY MENTIONED AND CONFIRM THAT BOTH THE SIGNATURE ARE OF HIM ONLY. THE LD. ASSISTANT COMMISSIONER OF INCOME TAX IS NOT A HANDWRITING EXPERT. HE HAS ALSO NOT TAKEN ANY EXPERT OPINION ON THIS ISSUE. MOREOVER, ONCE THE PERSON CONCERNED HAS CATEGORICALLY CONFIRMED BOTH THE SIGNATURES, THEN MATTER ENDS LEAVING NO SCOPE OF AMBIGUITY. C. COMMENTS AND SUBMISSION WITH REFERENCE TO SHRI H ARNARAYAN SHARMA, VILLAGE- BIRKHADI, DIST. BHIND. SL.NO. COMMENTS OF LD. ACIT HUMBLE SUBMISSION 1. SHRI MATAI SINGH TOMAR AND SHRI ASHOK SINGH CHAUHAN BOTH THE PERSONS HAD THEIR BANK ACCOUNTS IN F.Y. 2003&04 BUT IT IS NOT UNDERSTANDABLE THAT WHY THEY KEPT THEIR MONEY ALONGWITH THE ASSESSEES BANK ACCOUNT. THIS PARA IS NOT RELATED TO SHRI HARNARAYAN SHARMA. 2. ONE AFFIDAVIT WAS PRODUCED IN THE NAME OF SHRI ASHOK SINGH CHAUHAN BUT IN THE STATEMENT THE CONCERNED PERSON TOLD HIS ANOTHER NAME WHICH IS SHRI BHISHM PRATAP SINGH AND IN THE VOTERS IDENTITY CARD AND LAND POSSESSION CREDIT BOOK ONLY THE NAME BHISHM PRATAP SINGH IS MENTIONED. THIS PARA IS NOT RELATED TO SHRI HARNARAYAN SHARMA. 3. ASSESSEE BELONGS TO VILLAGE MIHONA WHILE THE AFFIDAVIT HOLDERS BELONG TO ANOTHER VILLAGE. SO IT IS NOT POSSIBLE THAT THESE PERSONS KEPT THEIR MONEY ALONGWITH ASSESEE AVOIDING THE NEAREST SOCIAL NETWORKING BELONGS TO THEM. THIS QUESTION WAS NOT ASKED WITH SHRI HARNARAYAN SHARMA. 4. ALL THE THREE PERSONS PRODUCED LAND POSSESSION AND CREDIT BOOK BUT IN THESE CREDIT BOOKS THERE IS NO SIGNATURE OF THE THIS QUESTION WAS NOT ASKED WITH SHRI HARNARAYAN SHARMA. ITA NO.457/AGRA/2011 18 ISSUING OFFICER AND THE BOOK HOLDER. 5. IN THE STATEMENT, HE MENTIONED ABOUT THE APPROXIMATE AMOUNT WHICH IS DUE WITH THE ASSESSEE ON 19.09.2011 (RS. 1 LAKH OF SHRI HARNARAYAN SHARMA) BUT WHEN STATEMENT OF THE ASSESSEE WAS TAKEN JUST AFTER THE STATEMENT OF THESE 3 PERSONS AND HE WAS ASKED ABOUT THE DUE AMOUNT. BUT ASSESSEE DID NOT TELL ANYTHING ABOUT HIS DUE AMOUNT ALONGWITH HIM. IT IS NOT POSSIBLE THAT THE ASSESSEE HAS LIABILITY OF RS. 3.5 LACS AND HE IS UNFAMILIAR WITH IT. WHILE CONCLUDING AND COMMENTING, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS RELIED UPON THE FOLLOWING STATEMENT RECORDED BY HIM: IZ0&2& O'KZ 2003&04 ESA VKIUS F DRUS :I;S JESK DQEKJ XQIRK DKS FN;SA MLDK VKT DH RKJH[K ESA D;K FGLKC FDRKC GS VKSJ ;S ISLS MUDKS D;KSA FN;SA M0& GEUS MDR O'KZ ESA 2- 50 YK[K :I;S FN;SA VHKH YK[K :I;S MUDS IKL GEKJS TEK GSAA GEKJK FDLH CSAD ESA DKSBZ [KKRK UGHA GSA BLFY;S JESK TH LS YSU NSU DJRS GSAA C;KU%& JESK DQEKJ XQIRKA IZ0&1& VKT FNUKAD 19-09- 2011 DKS VKIDKS ERBZ FLAG RKSEJ] HKH' E IZRKI FLAG MQZ V KKSD FLAG PKSGKU RFKK JH GFJUKJK;U 'K EKZ RHUKSA O;FDR FTUDS UKE ;S ' KIFKI= IZLRQR FD;S X;S GSA DKS FDRUS :I;S VKIDKS NSUK GSA M0& BL RJG DK DKSBZ FGLKC FDRKC ;KN UGHA GSA GKA EQ>S ISLS NSUS GSA YSFDU THAT, THE CONCERNED SHRI HARNARAYAN SHARMA HAS CATEGORICALLY MENTIONED AND CONFIRMED THE AMOUNT OF DEPOSIT WITH THE APPELLANT AS WELL AS THE REMAINING AMOUNT AS ON DATE OF RECORDING THE STATEMENT. THE APPELLANT HAS ALSO CONFIRMED THE TRANSACTION OF KEEPING THE MONEY AND PAYABLE AS ON THE DATE OF RECORDING THE STATEMENT. ALTHOUGH, HE HAS NOT GIVEN THE EXACT AMOUNT AS ON THE DATE F RECORDING THE STATEMENT BUT CONFIRMED THE TRANSACTION. THE REASON FOR NOT MENTIONING THE EXACT AMOUNT WAS NOT BRINGING THE RELEVANT PAPERS AT THE TIME OF RECORDING OF THE STATEMENT. THE APPELLANT WAS NEVER TOLD TO ATTEND THE OFFICE ALONGWITH THE RELEVANT DOCUMENTS. THEREFORE, THE APPELLANT ATTENDED THE OFFICE WITHOUT BRINGING ANY DOCUMENT AT THAT TIME. HOWEVER, THE APPELLANT HAS CATEGORICALLY CONFIRMED THE AMOUNT PAYABLE TO SHRI HARNARAYAN SHARMA. THEREFORE, IN VIEW OF THE ABOVE, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX IS NOT JUSTIFIED IN DISBELIEVING THE TRANSACTION BETWEEN BOTH THE PARTIES. ITA NO.457/AGRA/2011 19 FDRUS NSUS GSA ;S ESJS /;KU ESA UGHA GSA 6. THESE 3 PERSONS TOLD THAT THE MONEY WHICH THEY KEPT ALONGWITH THE ASSESSEE HAD THE SOURCE OF SALE OF GRAINS IN THE MANDI BUT THEY COULD NOT PRODUCE ANY BILLS AND VOUCHERS OF THE SAME. WHILE CONCLUDING AND COMMENTING, THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS RELIED UPON THE FOLLOWING STATEMENT RECORDED BY HIM: IKZ0&3& VKI FDL E.MH ESA FCH DJRS GSAA FCH LS LACAF/KR JLHNSA IZLRQR DJSAA M0& ESA FEGKSUK E.MH ESA FCH DJRS GS AA FCH LS LACAF/KR DKSBZ JLHN GEKJS IKL UGHA GSA THAT, THE CONCLUDING REMARK OF THE LD. ASSISTANT COMMISSIONER OF INCOME TAX FOR DISBELIEVING THE SOURCE OF MONEY DEPOSITED WITH THE APPELLANT MENTIONING THAT SHRI MATAI SINGH TOMAR COULD NOT PRODUCE ANY BILLS AND VOUCHERS OF SALE OF GRAINS AS SOURCE OF MONEY IS NOT JUSTIFIED. THE LD. ASSISTANT COMMISSIONER OF INCOME TAX HAS NOT DOUBTED THE HOLDING OF AGRICULTURE LAND. SINCE, THE PERSON CONCERNED HAD SUBMITTED THE RELEVANT PAPERS REGARDING LAND HOLDING AND OTHER REVENUE DETAILS ALSO, HENCE, DISBELIEVING THE AGRICULTURAL AND SUBSEQUENTLY SALE OF CROPS IS NOT JUSTIFIED. RELIANCE IS PLACED ON: ASSESSEE HAS SUBMITTED COMPLETE DETAILS OF HIS AGRICULTURE HOLDING ALONGWITH THE ACTIVITIES CARRIED OUT BY HIM DURING THE RELEVANT PERIOD-SAME DULY SUPPORTED BY THE REVENUE RECORDS AND THE CERTIFICATE ISSUED BY THE AGRICULTURE OFFICE-THEREFORE, AO WAS NOT JUSTIFIED IN TREATING A PART OF THE AGRICULTURAL INCOME AS NON- AGRICULTURAL INCOME. KAMAL KISHORE CHANDAK VS. ITO (2006) 103TTJ(JD) 843 RELEVANT PAGE 848 THAT, THE PERSON CONCERNED HAS MENTIONED THE SOURCE OF MONEY AS SALE F CROPS WHILE RECORDING THE STATEMENT BUT COULD NOT SUBMIT THE SALE RECEIPT OF CROP FOR THE REASON NOT KEEPING THE RECEIPT WITH HIM. MEANING THEREBY HE HAS GIVEN THE ORAL EVIDENCE SUPPORTED WITH LAND HOLDING AND OTHER RELEVANT RECORD. SINCE, THERE WAS NO RECEIPT WITH THE ASSESSEE BUT THE CONTENTION SUPPORTED WITH OTHER RELEVANT RECORD, HENCE THE ORAL EVIDENCE REJECTED BY THE LD. ACIT MAINLY ON SUSPICION IS ITA NO.457/AGRA/2011 20 NOT JUSTIFIED. RELIANCE IS PLACED ON: AS REGARDS THE FAILURE OF THE ASSESSEE TO PRODUCE BOOKS OF ACCOUNTS, IT WAS MENTIONED IN THE STATEMENT OF THE CASE THAT THE HINDU UNDIVIDED FAMILY HAD NOT MAINTAINED ANY BOOKS OF ACCOUNTS. IF IT IS A FACT THAT THE ASSESSEE DID NOT MAINTAIN BOOKS OF ACCOUNTS. IT CAN HARDLY BE BLAMED FOR ITS FAILURE TO PRODUCE ACCOUNT BOOKS BEFORE THE INCOME TAX OFFICER. ALL THE ORAL AND DOCUMENTARY EVIDENCE PRODUCED BY THE ASSESSEE REJECTED BY THE TRIBUNAL MAINLY ON SUSPICION AND CONJECTURE WAS NOT LEGALLY SUSTAINABLE. THERE IS NO PRESUMPTION THAT WITNESSES APPEARING FOR AN ASSESSEE COME FORWARD TO GIVE FALSE EVIDENCE TO OBLIGE THE ASSESSEE. SHEO NARAIN DULI CHANDJ VS. CIT (1969) 72 ITR 766 (ALL.) 7. SHRI MATAI SINGH TOMAR INVESTED RS. 3 LAKHS IN THE MARRIAGE OF HIS DAUGHTER IN 2006 BUT IN STATEMENT THIS FACT CAME TO NOTICE THAT HE DID NOT TAKE HIS MONEY BACK FROM THE ASSESSEE IN SPITE OF THE URGENCY OF THE MONEY. NOT RELEVANT WITH SHRI HARNARAYAN SHARMA. 8. SHRI ASHOK SINGH SIGNED ON THE STATEMENTS BUT THIS SIGNATURE DOES NOT MATCH WITH SIGNATURE OVER THE AFFIDAVIT. NOT RELEVANT WITH SHRI HARNARAYAN SHARMA. IT IS FURTHER SUBMITTED THAT ALL THE THREE PERSONS NAMELY SH. MATAI SINGH TOMAR, SH. BHISHM PRATAP SINGH AND SH. HARNARAYAN SHARMA HAD C ONFIRMED THE TRANSACTIONS BY WASY OF AFFIDAVIT AND THEREAFTER ATTENDING THE OFFI CE WHILE RECORDING THE STATEMENT BY THE LD. ASSISTANT COMMISSIONER OF INCOME TAX. SINCE ALL THE THREE PERSONS HAVE ATTENDED THE OFFICE AND CONFIRMED THE TRANSACTIONS, THEN THE ADD ITION IS NOT JUSTIFIED. ITA NO.457/AGRA/2011 21 4.2 THE LD. CIT(A) CONSIDERING THE EXPLANATION OF T HE ASSESSEE AND REMAND REPORT OF THE AO DELETED THE ADDITION OF RS.10,01,0 00/-. THE FINDINGS OF THE LD. CIT(A) IN PARA 3.3 AND 3.4 OF THE APPELLATE ORDER A RE REPRODUCED AS UNDER : 3.3 APPELLANTS SUBMISSIONS ALONGWITH ASSESSMENT OR DER AND AOS REMAND REPORT HAVE BEEN CONSIDERED CAREFULLY A ND ARE FOUND ACCEPTABLE. IN MY VIEW, THE APPELLANT HAS DULY DISC HARGED THE ONUS REQUIRED U/S 68 REGARDING IDENTITY AND CREDITWORTHI NESS OF THE CREDITORS ALONGWITH GENUINENESS OF TRANSACTIONS WHE REBY THE FACT REGARDING DEPOSIT OF RS. 10,00,000/- WITH THE APPEL LANT HAS BEEN CATEGORICALLY CONFIRMED BY THE CREDITORS ALONGWITH THE APPELLANT HIMSELF. ALL THE THREE PERSONS ARE AGRICULTURISTS, WHO HAVE PRODUCED REQUIRED DOCUMENTARY EVIDENCE REGARDING THEIR AGRIC ULTURAL HOLDINGS, CORPS GROWN ETC. A.O. HAS NOT ACCEPTED THE EXPLANAT ION MOSTLY ON SURMISES AND PRESUMPTIONS. NO MATERIAL HAS BEEN BRO UGHT ON RECORD BY THE AO TO PROVE THE OWNERSHIP OF THE AMOUNT OF R S. 10,01,000/- WITH THE APPELLANT. THE EXPLANATION AND TESTIMONY O F THE CREDITS AND THE APPELLANT CANNOT BE REJECTED SOLELY ON THE GROU ND THAT THEY DID NOT KEEP THEIR MONEY IN BANKS, BUT RATHER CHOOSE TO DEP OSIT IT WITH THE APPELLANT. ORAL EVIDENCE OF THE CREDITORS SUPPORTED WITH LAND HOLDINGS AND OTHER RELEVANT DOCUMENTS CANNOT BE REJECTED SOL ELY ON THE GROUND THAT RECEIPTS FOR SALE OF CROPS HAVE NOT BEEN PRODU CED. IT IS A SETTLED LAW THAT THE APPELLANT NEED NOT TO PROVE THE SOURC E OF SOURCE. 3.4 . FURTHER, A.O. HAS MADE THE IMPUGNED ADDITION U/S. 6 8 WHICH IS NOT FOUND APPLICABLE TO THE APPELLANTS CA SE. AS PER SECTION 68 OF THE I.T. ACT WHERE ANY SUM IS F0UND CREDITED IN THE BOOKS OF AN APPELLANT MAINTAINED FOR ANY PREVIOUS YEAR AND THE APPELLANT OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE A.O., SATISFACTORY, THEN THE SUM SO CREDITED IS TO BE CHARGED TO INCOME TAX AS T HE INCOME OF THE APPELLANT FOR THE PREVIOUS YEAR. IN THE APPEAL UNDE R CONSIDERATION, THE APPELLANT HAS NOT MAINTAINED ANY BOOKS OF ACCOUNTS FOR THE RELEVANT PREVIOUS YEAR; NEITHER THE A.O. HAS REFERRED TO THE SAME IN HIS RECORDS OR IN THE ASSESSMENT ORDER. THE BANK STATEMENT/BANK PASS BOOK HAVE BEEN HELD TO BE NOT THE BOOKS MAINTAINED BY THE APP ELLANT. IT HAS BEEN HELD BY HONBLE DELHI HIGH COURT IN CASE OF MS. MAY AWATI VS. DY. CIT (2008) 113 TTJ (DEL) THAT WHERE THE APPELLANT D OES NOT MAINTAIN ITA NO.457/AGRA/2011 22 ANY BOOKS OF ACCOUNTS, SECTION 68 CANNOT BE INVOKED , AS THE BALANCE SHEET OR STATEMENT OF AFFAIRS CANNOT BE EQUATED TO BOOKS OF ACCOUNTS. ALSO, NO CORRESPONDING DOCUMENTARY EVIDENCE MUCH LE SS INCRIMINATING MATERIAL HAS BEEN FOUND DURING THE CO URSE OF SEARCH OPERATIONS IN SUPPORT OF THE IMPUGNED CASH CREDITS, THE SOURCE OF WHICH HAS BEEN EXPLAINED BY THE APPELLANT. IN VIEW OF ALL THE FACTS MENTIONED ABOVE, A.O. IS NOT FOUND JUSTIFIED IN MAKING THE IMPUGNED ADDITION BY TREATI NG BANK DEPOSITS AS UNEXPLAINED. ACCORDINGLY, ADDITION OF RS.10,01,000/ - IS, HEREBY, DELETED. 5. THE LD. DR RELIED UPON THE ORDER OF THE AO AND S UBMITTED THAT THE ASSESSEE MADE HUGE CASH DEPOSIT IN HIS BANK ACCOUNT, SOURCE OF WHICH COULD NOT BE EXPLAINED. THE ASSESSEE LATER ON HAS GIVEN NAMES OF THREE PERSONS WHO HAVE GIVEN RS.10,00,000/- TO HIM BUT THEY HAVE ALSO NOT EXPLAI NED THEIR SOURCE OF INCOME TO ADVANCE ANY LOAN TO THE ASSESSEE. THUS, THE ASSESSE E HAS FAILED TO PROVE CREDITWORTHINESS OF CREDITORS AND GENUINENESS OF TH E TRANSACTION. THEREFORE, THE LD. CIT(A) SHOULD NOT HAVE DELETED THE ADDITION. SECTIO N 69 IS ATTRACTED IN THE CASE OF THE ASSESSEE EVEN IF NO BOOKS OF ACCOUNT ARE MAINTA INED. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND REFERRED TO THE DOCUMENTS FILED IN THE PA PER BOOK FROM PAGES 3 TO 36 IN RESPECT OF THE ABOVE THREE CREDITORS. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED THE MATERIAL AVAIL ABLE ON RECORD. THE HONBLE ITA NO.457/AGRA/2011 23 CALCUTTA HIGH COURT IN THE CASE OF BHARATI PVT. LTD . VS CIT, 111 ITR 951 HELD AS UNDER: IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE INCOM E-TAX OFFICER FOUND THAT THE ASSESSEE HAD SHOWN RS.20,000 AS LOAN IN ITS BOOKS TAKEN FROM TWO PARTIES. THE ASSESSEE PRODUCED THE ALLEGED CONFIRMATORY LETTERS FROM THOSE PARTIES BEFORE THE INCOME-TAX OFFICER IN SUPPORT OF THE TWO LOANS. THE INCOME-TAX OFFICER SERVED NOTICES UNDER SECTION 131 OF THE INCOME TAX ACT, 1961, ON THE ALLEGED CREDITORS AND SINCE THOSE NOTICES CAME BACK UNSERVE D, THE INCOME-TAX OFFICER TREATED THE LOAN AS ASSESSEES INCOME FROM UNDISCLOSED SOURCES. THE APPELLATE ASSISTANT COMMISSIONER DISMI SSED THE ASSESSEES APPEAL ON THE GROUND THAT THE ASSESSEE C OULD NOT EVEN ESTABLISH THE IDENTITY OF THE PARTIES. ON FURTHER A PPEAL BY THE ASSESSEE, THE APPELLATE TRIBUNAL HELD THAT MERE FILING OF CON FIRMATORY LETTERS DID NOT DISCHARGE THE ONUS THAT LAY ON THE ASSESSEE AND THERE WAS NO MATERIAL ON THE RECORD TO ESTABLISH THE IDENTITY OF THE CREDITORS: HELD, THAT THE TRIBUNAL HAD TAKEN ALL THE RELEVANT FACTS INTO CONSIDERATION AND THE CONCLUSION ARRIVED AT BY THE TRIBUNAL THAT THE LOANS REPRESENTED THE ASSESSEES INCOME FROM UNDISC LOSED SOURCES WAS NOT PERVERSE OR UNREASONABLE. 6.1 THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS UNITED COMMERCIAL AND INDUSTRIAL CO. (P) LTD., 187 ITR 596 HELD AS UN DER: THE PRIMARY ONUS LIES ON THE ASSESSEE TO PROVE THE NATURE AND SOURCE OF CREDITS IN ITS ACCOUNT. IT IS NECESSARY F OR THE ASSESSEE TO PROVE PRIMA FACIE THE IDENTITY OF HIS CREDITORS, TH E CAPACITY OF SUCH CREDITORS TO ADVANCE THE MONEY AND LASTLY THE GENUI NENESS OF THE TRANSACTIONS. ONLY WHEN THESE THINGS ARE PROVED BY THE ASSESSEE PRIMA FACIE AND ONLY AFTER THE ASSESSEE HAS ADDUCED EVIDENCE TO ESTABLISH THE AFORESAID FACTS DOES THE ONUS SHIFT O N TO THE DEPARTMENT. IT IS NOT ENOUGH TO ESTABLISH THE IDENTITY OF THE C REDITORS. MERE PRODUCTION OF THE CONFIRMATION LETTERS BEFORE THE I NCOME-TAX OFFICER ITA NO.457/AGRA/2011 24 WOULD NOT BY ITSELF PROVE THAT THE LOANS HAVE BEEN OBTAINED FROM THOSE LOAN CREDITORS OR THAT THEY HAVE CREDIT-WORTHINESS. HELD, THAT, IN THE INSTANT CASE, THE TRIBUNAL MISDI RECTED ITSELF IN HOLDING THAT THE TRANSACTIONS WERE GENUINE SIMPLY B ECAUSE SOME OF THE TRANSACTIONS WERE MADE BY CHEQUES. THE ASSESSEE HAD FAILED TO PROVE THE CREDIT-WORTHINESS OF THE ALLEGED LENDERS. A NUM BER OF OTHER ASSESSEES HAD ALSO ADMITTED THAT LOANS OBTAINED FRO M THESE BANKERS AGAINST HUNDIS WERE NOT GENUINE AND SUCH HUNDI LOAN S REALLY REPRESENTED THEIR OWN CONCEALED INCOME. THE ASSESSE E HAD NOT DISCHARGED ITS BURDEN OF PROVING THAT THE LOANS IN QUESTION WERE GENUINE. 6.2 THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF M/S. PRECISION FINANCE PVT. LTD., 208 ITR 465 HELD AS UNDER :- EVEN THE LOAN THROUGH BANK CANNOT BE ACCEPTED AS G ENUINE UNLESS THE IDENTITY AND CREDITWORTHINESS OF THE CRE DITORS ARE PROVED. MERE PAYMENT OF ACCOUNT PAYEE CHEQUE IS NOT SACROSA NCT NOR CAN IT MAKE A NON-GENUINE TRANSACTION GENUINE. 6.3 THE HONBLE SUPREME COURT IN THE CASE OF DURGA PRASAD MORE, 82 ITR 540 AND SUMATI DAYAL, 214 ITR 801 HELD THAT THE COURTS AND TRIBUNAL HAVE TO JUDGE THE EVIDENCES BEFORE THEM BY APPLYING THE TEST OF H UMAN PROBABILITIES AFTER CONSIDERING THE SURROUNDING CIRCUMSTANCES. 6.4 CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF ABOVE DECISION, WE ARE OF THE VIEW THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DELET ING THE ADDITION. IT IS WELL SETTLED LAW THAT THAT THE BURDEN IS UPON THE ASSESSEE TO PR OVE IDENTITY OF THE CREDITORS, THEIR CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION . THE BURDEN IN THIS CASE HAS, HOWEVER, NOT BEEN DISCHARGED BY THE ASSESSEE THROUG H RELIABLE AND COGENT ITA NO.457/AGRA/2011 25 EVIDENCE. THE AO HAS SPECIFICALLY STATED IN HIS REM AND REPORT THAT SHRI MATAI SINGH TOMAR AND SHRI ASHOK SINGH CHAUHAN MAINTAINED THEIR BANK ACCOUNT IN F.Y. 2003-04 RELEVANT TO ASSESSMENT YEAR UNDER APPE AL, BUT IT IS NOT UNDERSTANDABLE WHY THEY KEPT THEIR MONEY ALONG WITH THE ASSESSEES BANK ACCOUNT. THE AO HAS, THEREFORE, RAISED A SERIOUS DOUBT ABOUT THE GENUINE NESS OF THE TRANSACTIONS WHICH HAVE NOT BEEN SATISFACTORILY EXPLAINED BY THE ASSES SEE. IT IS HIGHLY IMPROBABLE THAT BOTH THESE CREDITORS DESPITE MAINTAINING THEIR BANK ACCOUNTS HAVE NOT KEPT THEIR CASH MONEY IN THEIR BANK ACCOUNTS, BUT HAVE GIVEN T O THE ASSESSEE TO KEEP THEIR AMOUNT IN HIS BANK ACCOUNT. IT WOULD SHOW THEIR UNN ATURAL CONDUCT IN KEEPING THE MONEY WITH THE ASSESSEES BANK ACCOUNT. THE LD. CIT (A) INSTEAD OF APPRECIATING THE CONTENTION OF THE AO WITHOUT ANY REASONS REJECT ED THE SAME. THEREFORE, FINDING OF THE LD. CIT(A) CANNOT BE SUSTAINED IN LAW. THE L D. CIT(A) ALSO FAILED TO TAKE NOTE OF THE FACT THAT THE ASSESSEE DID NOT TELL ANY THING ABOUT THE AMOUNT WITH HIM. ALL THE THREE CREDITORS CLAIMED THE SOURCE OF MONEY ADVANCED TO THE ASSESSEE BEING THE SALE OF GRAIN IN MANDI BUT THEY COULD NOT PRODU CE ANY BILLS OR VOUCHERS FOR THE SAME. ALL THE PERSONS ARE STATED TO BE AGRICULTURIS TS AND PRODUCED SOME EVIDENCES OF THEIR AGRICULTURAL LAND HOLDING, BUT IN THEIR ST ATEMENT NONE OF THE CREDITORS HAS BEEN ABLE TO PRODUCE ANY BILLS AND VOUCHERS OF SALE OF AGRICULTURAL PRODUCE. ALL WERE STATED TO BE KEEPING CASH AND CASH ADVANCED TO THE ASSESSEE. THEREFORE, IN THE ABSENCE OF ANY EVIDENCE OF SALE OF AGRICULTURAL PRO DUCE OR THE AMOUNT WHICH THEY ITA NO.457/AGRA/2011 26 COULD HAVE SAVED WITH THEM WOULD CLEARLY SUGGEST TH AT THE CREDITORS DID NOT HAVE ANY EVIDENCE TO EXPLAIN SOURCE OF MONEY ADVANCED TO THE ASSESSEE. THE CREDITORS HAVE ONLY FILED THEIR VAGUE AFFIDAVIT ALONG WITH CO PY OF SOME REVENUE RECORDS SHOWING THEIR OWNERSHIP OF AGRICULTURAL LAND, BUT N ONE OF THEM HAVE PRODUCED ANY EVIDENCE TO PROVE THEIR CREDITWORTHINESS. THE LD. C IT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE MERELY BECAUSE THE CREDITORS IN STATEM ENTS HAVE CONFIRMED GIVING OF LOAN TO THE ASSESSEE. MERE FILING OF CONFIRMATION L ETTER/AFFIDAVIT DOES NOT DISCHARGE THE ONUS THAT LAY ON THE ASSESSEE TO PROVE CREDITWO RTHINESS OF THE CREDITORS AND GENUINENESS OF THE TRANSACTIONS IN THE MATTER. THE ABOVE DECISIONS OF HONBLE CALCUTTA HIGH COURT REPRODUCED ABOVE, SQUARELY APPL Y AGAINST THE ASSESSEE. AT THE MOST, BY PRODUCING THE CREDITORS AT THE APPELLATE S TAGE AND FILING OF THEIR AFFIDAVIT AND OWNERSHIP OF AGRICULTURAL LAND WOULD PROVE THE IDENTITY OF THE CREDITORS, BUT THE SAME WOULD NOT PROVE THEIR CREDITWORTHINESS AND GEN UINENESS OF THE TRANSACTION. THE SPECIFIC OBJECTIONS RAISED BY THE AO IN THE REM AND REPORT HAVE NOT BEEN TAKEN INTO CONSIDERATION BY THE LD. CIT(A) AT THE TIME OF DECIDING THE ISSUE. THE ASSESSEE HAS MADE DEPOSIT OF THE HUGE CASH IN HIS BANK ACCOU NT. THEREFORE, THE PROVISIONS OF SECTION 69 WOULD ALSO ATTRACT IN THIS CASE. IN THE ABSENCE OF ANY EVIDENCE TO PROVE THE CREDITWORTHINESS OF THE CREDITORS AND GENUINENE SS OF THE TRANSACTION, IT IS DIFFICULT TO BELIEVE THAT THE ONUS LAY UPON THE ASS ESSEE HAS BEEN DISCHARGED. THE LD. CIT(A) WAS, THEREFORE, NOT JUSTIFIED IN DELETING TH E HUGE ADDITION AGAINST THE ITA NO.457/AGRA/2011 27 ASSESSEE. THE ORDER OF THE LD. CIT(A) IS, THEREFORE , SET ASIDE AND THE ORDER OF THE AO IS RESTORED. GROUND NO. 1 OF APPEAL OF THE REVEN UE IS ALLOWED. 7. ON GROUND NO. 2, THE REVENUE CHALLENGED THE DELE TION OF ADDITION OF RS.1,00,000/- ON ACCOUNT OF GALLA INCOME. AS PER TH E AO, SINCE THE ASSESSEE HAS HIMSELF ACCEPTED THAT HE WAS INVOLVED IN GALLA BUSI NESS FROM THE ASSESSMENT YEAR 2001-02 ONWARDS AND THE RETURN FILED BY HIM DOES NO T SHOW THE SAME SEPARATELY, THEREFORE, THE AO HAS ESTIMATED THE SAME INCOME AT RS.1,00,000/-. THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(A) THAT WITH REGARD TO BUSINESS OF GALLA, THE ASSESSEE IN HIS STATEMENT EXPLAINED THAT GALLA BUSINESS WAS DONE ON SMALL BASIS IN EARLIER YEARS AND THIS HAS BEEN DISCONTINUED. THE ASSESSEE HAS FURNISHED RETURN OF INCOME DECLARING INCOME FROM BUSINESS AT RS.50,000/-. THER EFORE, THE ADDITION OF RS.1,00,000/- IS HIGHLY UNJUSTIFIED. THE LD. CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE THAT THE ASSESSEE DECLARED BUSINESS INCOME OF RS.50,000/- AND THERE WAS NO BASIS TO ESTIMATE THE BUSINESS INCOME OF ASSESSE E AT RS.1,00,000/- AND ACCORDINGLY, DELETED THE ADDITION. 8. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) IN DELET ING THE ADDITION. NO MATERIAL WAS FOUND AGAINST THE ASSESSEE TO ESTIMATE THE INCOME F ROM GALLA BUSINESS AT ITA NO.457/AGRA/2011 28 RS.1,00,000/-. IN THE ASSESSMENT YEAR THE ASSESSEE HAS ALREADY DECLARED BUSINESS INCOME OF RS.50,000/-. THEREFORE, THE LD. CIT(A) ON PROPER APPRECIATION OF FACTS CORRECTLY DELETED THE ADDITION. GROUND NO. 2 OF APP EAL OF THE REVENUE IS ACCORDINGLY DISMISSED. 9. ON GROUND NO. 3, THE REVENUE CHALLENGED THE DELE TION OF ADDITION OF RS.1,50,000/-. ACCORDING TO THE STATEMENT RECORDED OF THE ASSESSEE, THE ASSESSEE ACCEPTED THAT HE HELD 7.5 BIGHAS OF AGRICULTURAL LA ND IN BHIND AND IS USED FOR AGRICULTURAL PURPOSE WITH THE HELP OF SALARIED LABO UR. THE ASSESSEE HAS DECLARED GROSS INCOME ONLY OF RS.50,000/- AND DID NOT SHOW I NCOME FROM AGRICULTURAL ACTIVITIES. THE ASSESSEE COULD NOT PRODUCE ANY RELE VANT DOCUMENT REGARDING THIS INCOME, THEREFORE, RS.1,50,000/- IS ESTIMATED KEEPI NG IN VIEW THE CASH CROPS LIKE MUSTARD AND SOYABEEN. THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(A) THAT THE AO WAS NOT JUSTIFIED IN MAKING IMPUGNED ADDITION IN CO MPUTATION PART WITHOUT GIVING REBATE FROM TAX. IT WAS ALSO SUBMITTED THAT THE AD DITION IS MADE WITHOUT ANY INCRIMINATING DOCUMENT BEFORE THE AO. THE LD. CIT(A ) ON PERUSAL OF THE RETURN OF INCOME FOUND THAT THE ASSESSEE HAS DECLARED AGRICUL TURAL INCOME AT RS.45,000/- THOUGH THE AO MENTIONED THE SAME AS NIL. THE ASSESS EE PRODUCED DOCUMENTARY EVIDENCE OF HOLDING OF AGRICULTURAL LAND AND ESTIMA TE OF AGRICULTURAL INCOME, ITA NO.457/AGRA/2011 29 THEREFORE, IN ABSENCE OF ANY MATERIAL ON RECORD, FU RTHER ADDITION OF RS.1,50,000/- WAS FOUND UNJUSTIFIED AND ADDITION WAS DELETED. 10. ON CONSIDERATION OF THE FACTS OF THE CASE AND I N THE ABSENCE OF ANY EVIDENCE ON RECORD AGAINST THE ASSESSEE, WE DO NOT FIND ANY BASIS TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). GROUND NO. 3 OF APPEAL OF THE RE VENUE IS, ACCORDINGLY, DISMISSED. 11. IN THE RESULT, THE DEPARTMENTAL APPEAL IS PARTL Y ALLOWED. 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