Nemajirao Dharerao Deshmuk, SOLAPUR V. Income Tax Officer, Ward-1(2), Solapur. , Solapur.

ITA 459/PUN/2023

AI Insights

The case involves an appeal by Nemajirao Dharerao Deshmukh against the order of the Commissioner of Income Tax (Appeals) confirming an assessment made by the Income Tax Officer under sections 144 and 147 of the Income Tax Act. The assessment was based on the alleged non-filing of income tax returns despite substantial cash deposits in the assessee's bank account, which were treated as income. The assessee, an agriculturist, argued that these deposits were from agricultural income, supported by 7/12 extracts. The Tribunal found that the Revenue did not rebut this claim effectively and thus allowed the appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 134421 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-06-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 20-04-2023
• Other Referred Cases: Parimisetti Seetharmamma Vs. CIT 57 ITR 532 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift
• Section: 148; 144; 250; 13

Judgement Text

आयकर अपीलीय अिधकरण ” ए” Ɋायपीठ पुणेमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES “A” :: PUNE BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.459/PUN/2023 िनधाᭅरण वषᭅ / Assessment Year : 2012-13 Nemajirao Dharerao Deshmuk, At-Post Malkavathe, South Solapur, Solapur – 413001. PAN: AKXPD 0754 D Vs The Income Tax Officer, Solapur. Assessee/ Appellant Respondent /Revenue Assessee by None Revenue by Shri Ramnath P Murkunde – DR Date of hearing 08/06/2023 Date of pronouncement 27/06/2023 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This appeal is filed by the assessee directed against the order of ld.Commissioner of Income Tax(Appeals) National Faceless Appeal Centre[ld.CIT(A)] order under section 250 of the Act, dated 17.02.2023 emanating from the order under section 144 r.w.s 147 of the Income Tax Act, dated 07.12.2019. The assessee has raised following grounds of appeal : “1. In the facts and circumstances of the case and law, the Ld.ITO (CIB) has carried out the asst u/s 144(1) of the I.T.Act, 1961, is without jurisdiction and bad in law, void ab initio, null & void. The same may please be annulled. ITA No.459/PUN/2023 Nemajirao Dharerao Deshmukh [A] 2 2. In the facts & circumstance of the case & in law, the impugned order of assessment made by the Ld. ITO u/s 144 is devoid of facts, arbitrary, perverse, based on surmises and conjecture and being devoid of merits & facts, the same may please be deleted. 3. In the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in confirming the impugned assessment is devoid of merits and facts, the same may please be nullified. 4. Without prejudice to preceding all grounds, in the facts and circumstances of the case and in law, the impugned asstt made by the Ld. ITO (CIB) u/s 144 is devoid of fact, arbitrary, perverse, based on surmises and conjecture and confirmed by Ld. C1T(A) being devoid of merits & facts, the same may please be deleted. 5. The appellant craves the permission to add, amend, modify, alter, revise, substitute, delete any or all grounds of appeal, if deemed necessary at the time of hearing of the appeal before the Hon'ble bench. 6. Any other equitable and just order including award of cost, that may be deemed fit and proper or necessary in the interest of the appellant by the Hon’ble Bench may please be passed in the matter.” Brief facts of the case : 2. As mentioned in the assessment order, in this case, the ITO- 1(2), Solapur, Assessing Officer(AO) received information on NMS Data that assessee had deposited cash of Rs.16,59,031/- in savings bank account with State Bank of India(SBI) and did not file any Return of Income. The AO issued notice under section 148 of the Act. The AO sent the notice to the assessee by Speed Post. As per the assessment order, assessee failed to comply the notice, hence, AO passed an order under section 144 r.w.s 147 of the Act, treatingthe total deposits of Rs.18,32,900/- as income of the assessee. ITA No.459/PUN/2023 Nemajirao Dharerao Deshmukh [A] 3 Aggrieved by the assessment order, assessee filed an appeal before the ld.CIT(A) in the Form No.35. The assessee pleaded in the Form No.35 that assessee is a 75 year old and suffering from illness. Assessee also enclosed copy of medical certificate along with Form No.35. Before the ld.CIT(A), assessee pleaded that he is an agriculturist for the last 60 years and entire income is agricultural income. Assessee filed copies of 7/12 extracts before the ld.CIT(A). However, ld.CIT(A) confirmed the addition on the ground that no details were filed by the assessee. Aggrieved by the order of the ld.CIT(A), the assessee filed appeal before this Tribunal. Submission of ld.Authorised Representative (ld.AR) : 3. At the time of hearing, no one appeared on behalf of assessee. Submission of ld.Departmental Representative (ld.DR) : 4. The ld.DR relied on the order of the Lower Authorities. Findings & Analysis : 5. We have heard ld.DR for the Revenue and perused the records. It has been claimed by the assessee in Form No.35 filed before the ld.CIT(A) that assessee is an agriculturist for the last 60 years. Assessee is a Senior Citizen(DoB : 20-12-1949). The assessee had filed copies of 7/12 extracts before the ld.CIT(A) to demonstrate that ITA No.459/PUN/2023 Nemajirao Dharerao Deshmukh [A] 4 assessee is an agriculturist. Assessee had filed copies of these 7/12 extracts along with Form No.36 before this Tribunal. On perusal of these form 7/12, it is observed that assessee has been cultivating the land and 7/12 extracts have duly recorded the agricultural produce. As per 7/12 extracts filed by assessee, the assessee owns following lands : S.No. Gat No. Area Crop Source of Water 1 84 16 Hectares 01R Jawar Well in the Field 2 49 13 Hectares 56R Jawar 3 31 Hectares 16R Jawar, Cereals 4 87 11 Hectares 80R Jawar, Cereals Well in the Field 5.1 Thus, assessee owns more than 71 Hectares land as per 7/12 extract submitted by the assessee. Assessee also has well in the field for irrigation. The 7/12 extracts duly recorded crops cultivated by assessee from time to time. Thus, in these facts and circumstances of the case, it is undisputed that assessee is an agriculturist, regularly cultivating more than 71 Hectares of land which seems to be very well irrigated. The assessee has pleaded that deposits made by the assessee in the bank account are from his agriculture income. However, the ld.CIT(A) and ld.AO has not rebutted the assessee’s claim that the source of deposits made in the bank accounts was agricultural income. The assessee has discharged his primary onus by filing copies of 7/12 extracts. The 7/12 extracts are revenue ITA No.459/PUN/2023 Nemajirao Dharerao Deshmukh [A] 5 records maintained by an Independent Government Authority. Therefore, the genuineness of the 7/12 extracts cannot be doubted. Once the assessee has discharged his primary onus, the burden of proof shifts to Revenue. In this case, Revenue has not brought on record any positive evidence to rebut the assessee’s claim. Revenue has not brought on record any evidence to prove that the source of cash deposits is not agricultural income but otherwise. 6. The Hon’ble Supreme Court in Parimisetti Seetharmamma Vs. CIT 57 ITR 532 (SC) has held as under : Quote “By sections 3 and 4 the Act imposes a general liability to tax upon all income. But the Act does not provide that whatever is received by a person must be regarded as income liable to tax. In all cases in which a receipt is sought to be taxed as income, the burden lies upon the department to prove that it is within the taxing provision. Where however a receipt is of the nature of income, the burden of proving that it is not taxable because it falls within an exemption provided by the Act lies upon the assessee. The appellant admitted that she had received jewellery and diverse sums of money from Sita Devi and she claimed that these were gifts made out of love and affection. The case of the appellant was that the receipts did not fall within the taxing provision : it was not her case that being income the receipts were exempt from taxation because of a statutory provision. It was therefore for the department to establish that these receipts were chargeable to tax.”Unqoute. 6.1 Thus, the Hon’ble Supreme Court has held that it is on the Revenue to prove that receipt is taxable. ITA No.459/PUN/2023 Nemajirao Dharerao Deshmukh [A] 6 6.2 In the case under consideration, the assessee has discharged primary onus by filing 7/12 extracts before the ld.CIT(A) to prove his source of income as agricultural income. Once assessee has discharged his onus, it is for the Revenue to prove that the receipts were taxable. As mentioned earlier, in this case, Revenue has not brought on record any evidence to prove that cash deposits were taxable income of the assessee. Therefore, respectfully following the Hon’ble Supreme Court(supra), we direct the AO to delete the addition of Rs.18,32,900/-. Accordingly, grounds of appeal raised by the assessee are allowed. 7. In the result, appeal of the assessee is allowed. Order pronounced in the open Court on 27 th June, 2023. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 27 th June, 2023/ SGR* आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, “ए” बᱶच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.