Sh. Vakeel Singh Kansana, Gwalior V. ITO.-Range-3(1), Gwalior

ITA 96/AGR/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62831 (ITAT-AGRA)
• Duration Of Justice: 2 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 31-07-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 09-04-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: K C AGARWAL
• Keywords: Unexplained investment; Presumptive income; Unexplained expenditure; Business income; Income from undisclosed sources; Additional evidence

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. 96/AGRA/2010 ASSTT. YEAR : 2006-07 SHRI VAKEEL SINGH KANSANA, VS. INCOME-TAX OFFICE R, BM-192, SECTOR-B, RANGE 3(1), GWALIOR. DIN DAYAL NAGAR, GWALIOR. (PAN : AJJPK 2771 N). ITA NO. 113/AGRA/2010 ASSTT. YEAR : 2006-07 INCOME-TAX OFFICER, VS. SHRI VAKEEL SINGH KANSAN A, RANGE 3(1), GWALIOR. BM-192, SECTOR-B, DIN DAYAL NAGAR, GWALIOR. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K. C. AGARWAL, ADVOCATE REVENUE BY : SHRI A.K. SHARMA, JR. D.R. DATE OF HEARING : 31.07.2012 DATE OF PRONOUNCEMENT OF ORDER : 09.08.2012 ORDER PER BHAVNESH SAINI, J.M.: BOTH THE CROSS APPEALS ABOVE ARE DIRECTED AGAINST THE ORDER OF THE LD. CIT(A), GWALIOR DATED 09.12.2010 FOR THE ASSESSMENT YEAR 20 06-07. 2. THE APPEAL OF THE ASSESSEE WAS EARLIER DISMISSED IN DEFAULT VIDE ORDER DATED 02.05.2011. THE ASSESSEE MOVED M.A. NO. 20/AGRA/201 1, WHICH WAS ALLOWED VIDE ITA NO. 96 & 113/AGRA/2010 2 ORDER DATED 16.03.2012 AND EARLIER ORDER OF THE TRI BUNAL WAS RECALLED AND THE APPEAL OF THE ASSESSEE WAS ACCORDINGLY FIXED FOR HE ARING. SINCE BOTH THE CROSS APPEALS ARE CONNECTED, THEREFORE, BOTH WERE HEARD T OGETHER AND THE SAME ARE DISPOSED OF ISSUE-WISE AS UNDER : ISSUE NO.1 : 3. ON GROUND NO.1 IN DEPARTMENTAL APPEAL, THE REVEN UE CHALLENGED THE DELETION OF ADDITION OF RS.33,200/-. AS PER RETURN OF INCOME, THE ASSESSEE HAS DECLARED INCOME FROM DUMPERS AT RS.1,16,800/-.THE A SSESSEE SUBMITTED BEFORE THE AO THAT THERE IS NO NEED FOR HIM TO MAINTAIN THE BO OKS OF ACCOUNT, HENCE, THE SAME HAVE NOT BEEN MAINTAINED. THE ASSESSEE IN HIS AFFID AVIT DATED 30.06.2008 AGAIN REITERATED THAT HE HAS NOT MAINTAINED ANY BOOKS OF ACCOUNT AND RETURN HAS BEEN FILED TO AVAIL BANK LOAN REQUIRED FOR THE PURPOSE O F DUMPER. AS PER THE AO, SINCE THE ASSESSEE WAS NOT MAINTAINING BOOKS OF ACCOUNT, PROOF IN RESPECT OF RECEIPTS FROM DUMPER AND CORRESPONDING EXPENSES INCURRED, TH EREFORE, THE INCOME SHOWN BY THE ASSESSEE WAS NOT ACCEPTED. HENCE, THE ESTIMA TION OF INCOME HAS BEEN DONE AT RS.1,50,000/- IN PLACE OF RS.1,16,800/-, THEREBY MAKING ADDITION OF RS.33,200/-. DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE HAS SUBMITTED STATEMENT OF FACTS AND WRITTEN SUBMISSIONS TO SHOW THAT HE HAS OWNED FOUR DUMPERS DURING THE ASSESSMENT YEAR UNDER APPEAL. THE DETAILS OF THE SA ME ARE NOTED IN PARA 3.1 OF THE APPELLATE ORDER, WHICH SHOWS DUMPER NUMBER, DATE OF PURCHASE, DATE OF PASSING ITA NO. 96 & 113/AGRA/2010 3 AND THE MONTHS DURING WHICH DUMPERS WERE PLIED. THE TOTAL MONTHS COME TO 13 MONTHS, DURING WHICH FOUR DUMPERS WERE PLIED. THE A SSESSEE, THEREFORE, EXPLAINED THAT SINCE HE HAS PLIED FOUR DUMPERS FOR 30 MONTHS DURING THE YEAR, HIS INCOME WORKS OUT TO RS.1,05,000/- AS PER PROVISIONS OF SEC TION 44AE OF THE IT ACT (@ RS.3500/- PER DUMPER PER MONTH). SINCE THE ASSESSEE HAS DECLARED EXCESS INCOME OF RS.1,16,800/-, THE ADDITION MADE IS NOT WARRANTE D. COPY OF BANK STATEMENT WITH CREDIT ENTRIES ALONG WITH DETAILS FOR PURCHASE OF S AID DUMPERS WERE ALSO FILED. THE LD. CIT(A) ADMITTED THE SAME AS ADDITIONAL EVIDENCE AND REMAND REPORT FROM THE AO WAS CALLED FOR REGARDING THE SOURCE OF INVESTMEN T IN FOUR DUMPERS. THE AO MENTIONED THAT THE ASSESSEE HAS SHOWN INCOME FROM D UMPER AND NOT FROM DUMPERS, IMPLYING THEREBY THAT THE ASSESSEE DID NOT PLY FOUR DUMPERS DURING THE YEAR. THE AO ALSO SUBMITTED REGARDING THE INVESTMEN T IN PURCHASE OF DUMPERS THAT AS PER AFFIDAVIT OF THE ASSESSEE, THE ASSESSEE HAS NOT MENTIONED THAT HE HAS OWNED FOUR DUMPERS. THEREFORE, THE ADDITION IS JUSTIFIED. THE LD. CIT(A) ON CONSIDERATION OF THE DETAILS AND SUBMISSIONS OF BOTH THE PARTIES FOUND THAT THE ASSESSEE HAS NOWHERE MENTIONED THAT THE INCOME HAS BEEN COMPUTED OR DECLARED AS PER BOOKS OF ACCOUNT OR PROFIT AND LOSS ACCOUNT. THE ASSESSEE AL L THE WAY SUBMITTED THAT HE HAS NOT MAINTAINED ANY BOOKS OF ACCOUNT. THUS, THE INC OME HAS TO BE TAKEN AS PER PROVISIONS OF SECTION 44AE OF THE IT ACT. THE LD. C IT(A) FURTHER FOUND THAT IF THE PRESUMPTION OF THE AO HAD BEEN THAT THE ASSESSEE OW NED ONLY ONE DUMPER, WHICH HAD BEEN PLIED FOR 12 MONTHS DURING THE YEAR, THEN THE INCOME WOULD HAVE BEEN ITA NO. 96 & 113/AGRA/2010 4 RS.42,000/- ONLY. THE ASSESSEE HAS DECLARED RS.1,16 ,800/- INSTEAD OF RS.1,05,000/- AS PER SECTION 44AE OF THE IT ACT. THE ASSESSEE ALS O EXPLAINED THE INVESTMENT IN THE FOUR DUMPERS. THEREFORE, NO ADVERSE INFERENCE C AN BE DRAWN AGAINST THE ASSESSEE. THE LD. CIT(A) WAS SATISFIED WITH THE EXP LANATION OF THE ASSESSEE AND SOURCE OF INVESTMENT IN THE DUMPERS AND ACCORDINGLY , DELETED THE ADDITION OF RS.33,200/-. 4. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. SECTION 44AE IS TH E SPECIAL PROVISION FOR COMPUTING PROFIT AND GAINS FROM BUSINESS OF PLYING, HIRING OR LEASING GOODS CARRIAGES. IT IS APPLICABLE TO THE CASE OF THE ASSE SSEE BECAUSE THE ASSESSEE WAS ADMITTEDLY HAVING 4 DUMPERS DURING THE ASSESSMENT Y EAR UNDER APPEAL AND AS SUCH, IT WAS NOT MORE THAN 10 GOODS CARRIAGES. THE ASSESS EE DID NOT MAINTAIN ANY BOOKS OF ACCOUNT AND OTHER DETAILS OF INCOME FROM DUMPERS . THEREFORE, PRESUMPTIVE PROVISIONS OF SECTION 44AE WOULD APPLY IN THE CASE OF THE ASSESSEE AND INCOME HAS TO BE COMPUTED BY APPLYING RS.3500/- PER MONTH FOR EACH DUMPER DURING THE ASSESSMENT YEAR UNDER APPEAL. THE ASSESSEE HAS GIVE N DETAILS OF DATE OF PURCHASE AND DATE OF PASSING, WHICH IS NOTED IN PARA 3.1 OF THE APPELLATE ORDER, WHICH ESTABLISH THAT THE ASSESSEE PLIED FOUR DUMPERS FOR 30 MONTHS ONLY AND AS SUCH, THE INCOME OF THE ASSESSEE WOULD BE WORKED OUT TO RS.1, 05,000/- AS PER PROVISIONS OF SECTION 44AE AS AGAINST WHICH THE ASSESSEE HAS ALRE ADY DECLARED RS.1,16,800/- IN ITA NO. 96 & 113/AGRA/2010 5 THE RETURN OF INCOME. THEREFORE, THE LD. CIT(A) ON PROPER APPRECIATION OF FACTS AND LAW RIGHTLY DELETED THE ADDITION OF RS.33,200/-. IN THE RESULT, GROUND NO. 1 OF APPEAL OF THE REVENUE IS, ACCORDINGLY, DISMISSED. ISSUE NO.2: 5. THE ASSESSEE ON GROUND NO. 1 CHALLENGED THE CONF IRMATION OF ADDITION OF RS.2,04,986/- ON ACCOUNT OF 7.5% OF FREIGHT RECEIPT S OF RS.27,33,153/- (AMOUNT DEPOSITED IN BANK) AND RS.1,68,500/- AS AMOUNT RECE IVED FROM SHRI ARVIND SIKERWAR AGAINST FREIGHT (TOTALING TO RS.3,73,486/- ). THE REVENUE ON GROUND NO. 3 CHALLENGED THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION OF RS.23,59,667/- OUT OF ADDITION OF RS.27,33,153/-. THE AO MADE ADDI TION OF RS.27,33,153/- U/S. 69A OF THE IT ACT ON ACCOUNT OF ASSESSEES FAILURE TO EXPLAIN BANK ENTRIES IN TWO BANK ACCOUNTS DESPITE GIVING SPECIFIC OPPORTUNITIES . SAID ADDITION HAS BEEN MADE AS UNEXPLAINED CASH DEPOSITS DETECTED IN SAVING BAN K ACCOUNT NO. 881 AND CD ACCOUNT NO. 92 MAINTAINED BY THE ASSESSEE IN THE BA NK OF INDIA GWALIOR. THE ASSESSEE WAS GIVEN OPPORTUNITY TO EXPLAIN THE SAID CASH DEPOSIT OF RS.200000/- IN A/C. NO. 881 AND RS. 25,33,153/- IN CD ACCOUNT NO.9 2(TOTALING TO RS.27,33,153/-). ON THIS ISSUE THE ASSESSEE WAS GIVEN TIME TO EXPLAI N EACH CASH DEPOSITS BUT THE ASSESSEE DID NOT EXPLAIN THE SAME. THEREFORE, THE A O MADE ADDITION OF RS.27,33,153/- U/S. 69A OF THE IT ACT, HOLDING IT T O BE UNEXPLAINED MONEY IN BANK ACCOUNT OF THE ASSESSEE. DURING THE APPELLATE PROCE EDINGS, THE ASSESSEE HAS GIVEN ITA NO. 96 & 113/AGRA/2010 6 DETAILS OF THE SAID BANK ACCOUNTS ALONG WITH CASH D EPOSITS. THE AO WAS GIVEN OPPORTUNITY TO EXAMINE AND FILE HIS COMMENTS AT THE APPELLATE STAGE. AS PER REPORT OF THE AO, HE HAS MENTIONED THAT THE ASSESSEE HAS B EEN GIVEN ADEQUATE OPPORTUNITY TO EXPLAIN THE BANK DEPOSITS AND ON FAILURE OF THE ASSESSEE TO DO SO, THE ADDITION WAS CORRECTLY MADE AGAINST THE ASSESSEE. THE LD. C IT(A), ON PERUSAL OF THE DETAILS FOUND THAT THE ASSESSEE HAS SUBMITTED THAT THE AMOU NT OF RS.15,16,090/- IN ACCOUNT NO. CD-92 REPRESENTS THE RECEIPTS OUT OF FREIGHT RE CEIVED ON ACCOUNT OF PLYING OF DUMPERS. SIMILARLY, RS.40,000/- HAS BEEN MENTIONED AS FREIGHT RECEIPTS IN ACCOUNT NO. 881. SINCE THE ASSESSEE HAS DECLARED GROSS PROF IT RATE OF 7.5% IN HIS RETURN WHILE DECLARING INCOME OF RS.1,16,800/- FROM FREIGH T RECEIPTS, THE LD. CIT(A) APPLIED 7.5% OF THE FREIGHT RECEIPTS AND COMPUTED T HE INCOME OF THE ASSESSEE AT RS.2,04,986/- AND DIRECTED THAT THIS ADDITION WILL BE MADE INSTEAD OF ENTIRE AMOUNT OF RS.27,33,153/- TAKEN BY THE AO. THE LD. CIT(A) F URTHER FOUND THAT THE ASSESSEE HAS ALSO DECLARED AMOUNT OF RS.1,68,500/- IN HIS AC COUNT NO. CD-92 AS RECEIVED FROM SHRI ARVIND SIKERWAR. AS THE ASSESSEE HAS FAIL ED TO GIVE ANY DETAILS OR CONFIRMATION FOR THE SAME, THE SAME AMOUNT OF RS.1, 68,500/- WAS TREATED AS INCOME FROM UNDISCLOSED SOURCES IN THE CASE OF THE ASSESSEE AND THUS, TOTAL ADDITION WAS SUSTAINED IN A SUM OF RS.3,73,486/- AND THE ASS ESSEE WAS GRANTED RELIEF OF RS.23,59,667/-. THE REVENUE AS WELL AS THE ASSESSEE ARE IN APPEAL ON THIS ISSUE ON GROUND NO. 1 & 3, AS NOTED ABOVE. ITA NO. 96 & 113/AGRA/2010 7 6. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND REFERRED TO PB-11, WHICH IS STATEMEN T OF RECEIPT AND PAYMENT ENDING 31.03.2006 TO SHOW THAT THE TOTAL RECEIPTS B Y THE ASSESSEE FOR PLYING OF DUMPERS WAS MENTIONED AT RS.10,73,402/- AND THE CAP ITAL OF THE ASSESSEE WAS ONLY RS.4,33,525/- (PB-12) AND IN THE PRECEDING ASSESSME NT YEAR ENDING 31.03.2005, THE CAPITAL OF THE ASSESSEE WAS RS.2,96,255/- (PB-13). THEREFORE, THERE WAS NO BASIS TO MAKE ADDITION. HE HAS SUBMITTED THAT ONCE THE PROVI SIONS OF SECTION 44AE ARE APPLIED IN THE CASE OF ASSESSEE, NO FURTHER ADDITIO N SHOULD BE MADE AND RELIED UPON THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. NITIN SONI, 207 TAXMAN 332, IN WHICH IT WAS HELD THAT SECTION 4 4AE STIPULATES TAX ON PRESUMPTIVE INCOME AND AS SUCH THE ASSESSEE IS NOT REQUIRED TO MAINTAIN ANY BOOKS OF ACCOUNT AND FURTHER IN SUCH CASES, NO ADDITION C OULD BE MADE AS INCOME FROM OTHER SOURCES ON THE GROUND THAT THE ASSESSEE WAS N OT ABLE TO EXPLAIN THE DISCREPANCIES IN THE ACCOUNT BOOKS. HE HAS ALSO REL IED UPON THE DECISION OF HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE O F CIT VS. ANIL KUMAR ARYA, 310 ITR 205, IN WHICH IT WAS HELD THAT THE PROVISIO NS OF SECTION 44AE OF THE ACT WERE APPLICABLE ONLY TO THOSE ASSESSEES WHO DID NOT OWN MORE THAN 10 GOODS CARRIAGES. HE HAS ALSO REFERRED TO PB-16 & 17, WHIC H ARE THE DETAILS OF BANK TRANSACTIONS IN BANK ACCOUNT TO SHOW THAT ON DIFFER ENT DATES RS.1,68,500/- HAVE BEEN RECEIVED FROM SHRI ARVIND SIKERWAR AND SUBMITT ED THAT THE SAME AMOUNT ALSO REPRESENTS FREIGHT RECEIPTS. THEREFORE, NO SEPARATE ADDITION OF RS.1,68,500/- SHOULD ITA NO. 96 & 113/AGRA/2010 8 BE MADE AGAINST THE ASSESSEE. THIS ISSUE WAS RAISED BY THE CIT(A) AT THE APPELLATE STAGE. 7. ON THE OTHER HAND, THE LD. DR RELIED UPON THE OR DER OF THE AO AND SUBMITTED THAT SINCE THE AMOUNT WAS DEPOSITED IN CASH IN BANK ACCOUNT OF THE ASSESSEE AND THE ASSESSEE FAILED TO EXPLAIN THE BANK ENTRIES AND NO EVIDENCE WAS FURNISHED BEFORE THE AO, THEREFORE, WHOLE OF THE AMOUNT WAS CORRECTL Y TREATED AS UNEXPLAINED MONEY U/S. 69A OF THE IT ACT. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE DID NOT MAINTAIN A NY BOOKS OF ACCOUNT AND EVEN IN HIS SUBMISSIONS AND AFFIDAVIT FILED BEFORE THE AO, IT WAS ADMITTED THAT THE ASSESSEE DID NOT MAINTAIN ANY BOOKS OF ACCOUNT. THE ASSESSEE MAINTAINED ONLY FOUR DUMPERS DURING THE ASSESSMENT YEAR UNDER APPEAL. THEREFORE, THE INCOME WAS CORRECTLY COMPUTED BY APPLYING THE PROVISIONS OF SECTION 44AE OF THE ACT. EVEN ON GROUND NO. 1 OF THE DEPARTMENTAL APPEAL, WE HAVE CONFIRMED THE FINDINGS OF THE LD. CIT(A) THAT INCOME HAS TO BE COMPUTED BY APPLYING THE PROV ISIONS OF SECTION 44AE OF THE IT ACT. THE ASSESSEE EXPLAINED THAT SUBSTANTIAL REC EIPTS FROM FREIGHT WERE RECEIVED FROM DIFFERENT CUSTOMERS, WHICH IS DEPOSITED IN THE BANK ACCOUNTS OF THE ASSESSEE. THEREFORE, THE LD. CIT(A) CORRECTLY HELD THAT THE E NTIRE ADDITION OF RS.27,33,153/- SHOULD NOT BE MADE AND ONLY THE PROFIT IS TO BE EST IMATED. HOWEVER, THE LD. CIT(A) ITA NO. 96 & 113/AGRA/2010 9 FAILED TO NOTE THAT BY APPLYING THE PROVISIONS OF S ECTION 44AE, THE INCOME OF THE ASSESSEE HAD ALREADY BEEN COMPUTED AT RS.1,05,000/- WHICH WAS SUFFICIENT BUSINESS INCOME OF THE ASSESSEE, AS THE ASSESSEE HAS ALREADY DECLARED EXCESS INCOME OF RS.1,16,800/- IN THE RETURN OF INCOME. THEREFORE, F URTHER ADDITION OF RS.2,04,986/- BY APPLYING THE PROFIT RATE OF 7.5% IS CLEARLY UNJU STIFIED. RATHER, IT WOULD AMOUNT TO DOUBLE TAXATION OF COMPUTING THE BUSINESS INCOME OF THE ASSESSEE SEPARATELY AS AGAINST THE BUSINESS INCOME ALREADY COMPUTED U/S. 4 4AE OF THE IT ACT. THEREFORE, FURTHER ADDITION OF RS.2,04,986/- IS CLEARLY UNJUST IFIED. WE, ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DELETE THE ADDITION OF RS.2,04,986/-. THE LD. CIT(A), HOWEVER, CORRECTLY HELD THAT THE ADDITION O N ACCOUNT OF DEPOSITS IN THE BANK ACCOUNT SHOULD NOT BE CONSIDERED FOR THE PURPO SE OF MAKING THE ADDITION OF RS. 27,33,154/- BECAUSE IT CONTAINED SUBSTANTIAL FR EIGHT RECEIPTS. THEREFORE, THERE IS NO MERIT IN GROUND NO. 3 OF THE DEPARTMENTAL APPEAL . THE SAME IS DISMISSED. HOWEVER, THE LD. CIT(A) WAS JUSTIFIED IN MAINTAININ G ADDITION OF RS.1,68,500/-. ACCORDING TO THE ASSESSEE HE HAS DECLARED AN AMOUNT OF RS.1,68,500/- IN HIS ACCOUNT NO. CD-92 AS RECEIVED FROM SHRI ARVIND SIKE RWAR. THE DETAILS OF BANK TRANSACTIONS ARE NOTED IN PB-16 & 17 AND THE ASSESS EE RECEIVED FOLLOWING AMOUNTS FROM SHRI ARVIND SIKERWAR AS UNDER : (I). 15-APRIL 05 BY TRANS. CD-84 100000 (II). 30-MAY 05 BY TRANS. CD-84 20000 (III). 13-SEPT.05 BY TRANS. CD-84 25000 (IV). 05-OCT. 05 BY TRANS. CD-84 23500 ------------ ITA NO. 96 & 113/AGRA/2010 10 168500 ----------- THE ABOVE DETAILS ARE ALSO MENTIONED BY THE AO IN T HE ASSESSMENT ORDER. IT IS, THEREFORE, CLEAR THAT THE ASSESSEE DEPOSITED THE AB OVE AMOUNTS IN HIS BANK ACCOUNTS, WHICH IS STATED TO BE RECEIVED FROM SHRI ARVIND SIK ERWAR. THE LD. COUNSEL FOR THE ASSESSEE, HOWEVER, SUBMITTED THAT IT IS ALSO FREIGH T RECEIPT, BUT NO DETAILS OR CONFIRMATION FOR THE SAME HAVE BEEN FILED BEFORE TH E LD. CIT(A). THE ASSESSEE DID NOT SUBMIT ANY DETAILS BEFORE THE AO DESPITE GIVING SPECIFIC OPPORTUNITY. THE ASSESSEE SUBMITTED PART DETAILS BEFORE THE LD. CIT( A) FOR THE FIRST TIME, THEREFORE, THE LD. CIT(A) ON EXAMINATION OF DETAILS AND CONSID ERING THE REPORT OF THE AO RIGHTLY CONSIDERED THIS ISSUE IN THE APPELLATE ORDE R BEING THE ISSUE RAISED BY THE AO ALSO. THE LD. COUNSEL FOR THE ASSESSEE ADMITTED DUR ING THE COURSE OF ARGUMENTS THAT THE ASSESSEE DID NOT HAVE ANY RECEIPT TO SHOW THAT THE AMOUNT RECEIVED FROM SHRI ARVIND SIKERWAR WAS FREIGHT RECEIPTS AND ALSO ADMIT TED THAT THE ASSESSEE DID NOT FILE ANY EVIDENCE OR CONFIRMATION TO EXPLAIN THE AB OVE TRANSACTIONS WITH SHRI ARVIND SIKERWAR. SINCE THE DETAILS NOTED ABOVE SHOW THAT THE AMOUNTS WERE TRANSACTED FROM ASSESSEES ACCOUNT NO. CD-84, THERE FORE, THE BURDEN WAS OF THE ASSESSEE TO PROVE THAT IT WAS FREIGHT RECEIPTS. HOW EVER, THE ASSESSEE FAILED TO PROVE THAT IT WAS THE AMOUNT RECEIVED ON ACCOUNT OF FREIG HT. IN THE ABSENCE OF ANY EVIDENCE OR MATERIAL ON RECORD, IT IS DIFFICULT TO BELIEVE THAT IT WAS A FREIGHT RECEIPT. THE LD. CIT(A), THEREFORE, RIGHTLY TREATED THE AMOU NT OF RS.1,68,500/- AS INCOME FROM UNDISCLOSED SOURCES. THE LD. COUNSEL FOR THE A SSESSEE SUBMITTED THAT ONCE THE ITA NO. 96 & 113/AGRA/2010 11 INCOME HAS BEEN COMPUTED U/S. 44AE, NO FURTHER ADDI TION COULD BE MADE AS INCOME FROM OTHER SOURCES. IN THE CASE OF NITIN SON I (SUPRA) IT WAS HELD THAT NO ADDITION CAN BE MADE AS INCOME FROM OTHER SOURCES O NCE INCOME IS COMPUTED U/S. 44AE OF THE ACT ON THE GROUND THAT THE ASSESSEE WAS NOT ABLE TO EXPLAIN DISCREPANCIES IN THE BOOKS OF ACCOUNT. HOWEVER, THE ISSUE BEFORE US IS NOT SAME, AS IN THE INSTANT CASE, THE ADDITION HAS BEEN MADE ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES BEING UNACCOUNTED BANK DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE U/S. 69A OF THE ACT. HONBLE SUPREME COURT IN THE CASE OF CIT VS. DEVI PRASAD VISHWANATH PRASAD, 72 ITR 194 (SC) HELD THERE IS NOTHING IN LAW WHICH PREVENTS THE INCOME- TAX OFFICER IN AN APPROPRIATE CASE IN TAXING BOTH THE CASH CRED IT, THE NATURE AND SOURCE OF WHICH IS NOT SATISFACTORILY EXPLAINED, AN D THE BUSINESS INCOME ESTIMATED BY HIM UNDER SECTION 13 OF THE IND IAN INCOME-TAX ACT, 1922, AFTER REJECTING THE BOOKS OF ACCOUNT OF THE ASSESSEE AS UNRELIABLE. 8.1 CONSIDERING THE ABOVE DISCUSSION, IN THE LIGHT OF DECISION OF HONBLE SUPREME COURT, WE ARE OF THE VIEW THAT THE ADDITION OF RS.1,68,500/- HAS BEEN RIGHTLY MADE BY THE LD. CIT(A). WE, THEREFORE, CONF IRM THE ORDER OF THE LD. CIT(A) IN MAINTAINING THE ADDITION OF RS.1,68,500/-. IN TH E RESULT, THE DEPARTMENTAL APPEAL ON GROUND NO. 3 IS DISMISSED AND GROUND NO. 1 OF TH E APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA NO. 96 & 113/AGRA/2010 12 ISSUE NO. 3 : 9. ON GROUND NO. 2, THE ASSESSEE CHALLENGED THE ADD ITION OF RS.33,500/- AS INCOME FROM OTHER SOURCES AGAINST THE AGRICULTURAL INCOME AND THE REVENUE HAS RAISED GROUND NO. 4 CHALLENGING THE ORDER OF THE LD . CIT(A) IN HOLDING THE AGRICULTURAL INCOME OF RS.65,000/- AGAINST RS.98,50 0/-. THE AO MADE ADDITION OF RS.98,500/- AS INCOME FROM OTHER SOURCES INSTEAD OF AGRICULTURAL INCOME. THE AO NOTED THAT NO EVIDENCE IN SUPPORT OF THE AGRICULTUR AL INCOME HAS BEEN FILED. THE ASSESSEE HAS SUBMITTED FORM NO. P-II AND B-1 SHOWIN G THE DETAILS OF AGRICULTURAL LAND AND THE CROPS PRODUCED. SINCE NO EVIDENCE REGA RDING AGRICULTURAL ACTIVITIES PERFORMED, CROPS SOLD OR EXPENSES INCURRED HAVE BEE N GIVEN, THE AO MADE THE SAID ADDITION. IN THE REMAND REPORT THE AO HAS ALSO MENT IONED THAT FORM P-II SUBMITTED BY THE ASSESSEE PERTAINS TO FINANCIAL YEAR 2004-05 AND NOT FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL. CONSIDERING THE P AST HISTORY AND AGRICULTURAL INCOME DECLARED IN THE EARLIER YEAR, THE LD. CIT(A) FOUND THAT THE DEPARTMENT HAS ACCEPTED THE AGRICULTURAL INCOME IN EARLIER YEAR AN D ASSESSEE HAS SHOWN THE LAND IS IRRIGATED AND MUSTARD, JAWAR, WHEAT ETC. ARE PRODUC ED THEREIN. THEREFORE, ON THE BASIS OF PRECEDING ASSESSMENT YEAR 2005-06 IN WHICH THE AGRICULTURAL INCOME WAS DECLARED AT RS.63,000/-, THE AGRICULTURAL INCOME WA S ACCEPTED AT RS.65,000/- AND BALANCE ADDITION WAS MAINTAINED IN A SUM OF RS.33,5 00/- TREATING THE SAME AS INCOME FROM OTHER SOURCES. ITA NO. 96 & 113/AGRA/2010 13 10. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND REFERRED TO PB-2 TO SHOW THAT THE ASSESSEE WAS HAVING LAND HOLDING OF 33 BIGHAS. ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDER OF THE AO AND SUBMITTED THAT NO EVIDENCES OF SALE OF AGRIC ULTURAL PRODUCE OR EXPENSES INCURRED ETC. HAVE BEEN FILED. THEREFORE, THE LD. C IT(A) SHOULD NOT HAVE DELETED THE PART ADDITION. 11. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE D O NOT FIND ANY MERIT ON BOTH THE GROUNDS OF CROSS APPEALS. THE ASSESSEE FILED AF FIDAVIT BEFORE THE AO IN WHICH IT WAS ADMITTED THAT HE HAS NO SALE BILLS IN RESPECT O F THE SALE OF AGRICULTURAL PRODUCE. HOWEVER, LAND HOLDING OF THE ASSESSEE WAS SAME AND EVEN IN EARLIER YEAR THE DEPARTMENT ACCEPTED THE AGRICULTURAL INCOME DECLARE D BY THE ASSESSEE. FURTHER, THE DETAILS OF LAND HOLDING SUBMITTED SHOWS THAT AGRICU LTURAL PRODUCE HAS BEEN GROWN IN THE LAND OF THE ASSESSEE. THEREFORE, IN ABSENCE OF EVIDENCE REGARDING SALE OF AGRICULTURAL PRODUCE AND CONSIDERING THE PAST HISTO RY OF THE ASSESSEE, THE LD. CIT(A) RIGHTLY ESTIMATED THE AGRICULTURAL INCOME. W E, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A). WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). THE SAME IS CONFI RMED AND GROUND NO. 2 OF ASSESSEES APPEAL AND GROUND NO. 4 OF DEPARTMENTAL APPEAL ARE DISMISSED. ITA NO. 96 & 113/AGRA/2010 14 ISSUE NO.4 : 12. THE REVENUE ON GROUND NO. 2 CHALLENGED THE DELE TION OF ADDITION OF RS.90,000/- AND RS.30,000/- TOTALING TO RS.1,20,000 /-. THE AO MADE ADDITION OF RS.90,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT U/ S. 69B OF THE IT ACT. THE SAID ADDITION HAS BEEN MADE BY THE AO FOR PURCHASE OF DU MPER VIDE INVOICE DATED 09.05.2005 FOR RS.9,72,000/-. THE LOAN OF RS.8,82,0 00/- TAKEN FROM HDFC BANK HAS BEEN ACCEPTED BY THE AO AND THE REMAINING RS.90 ,000/- WAS ADDED FOR WANT OF DETAILS. THE AO DID NOT ACCEPT THE AGRICULTURAL INC OME AND ACCORDINGLY, ADDITION WAS MADE. FURTHER ADDITION OF RS.30,000/- WAS MADE ON ACCOUNT OF UNEXPLAINED EXPENDITURE ON ACCOUNT OF ROAD TAX, INSURANCE ETC. AND AS SUCH, ADDITION WAS MADE ON ESTIMATE BASIS. THE LD. CIT(A) CONSIDERING THE D ETAILS PRODUCED BEFORE HIM FOUND THAT THE ADDITION HAS BEEN WRONGLY MADE ON TH IS ISSUE AND ACCORDINGLY, DELETED THE SAME. 13. ON CONSIDERATION OF RIVAL SUBMISSIONS, WE DO NO T FIND ANY MERIT IN THE DEPARTMENTAL APPEAL ON THIS ISSUE. WE HAVE ACCEPTED THE AGRICULTURAL INCOME OF THE ASSESSEE, WHICH WAS ALSO AVAILABLE TO THE ASSESSEE IN PAST. THEREFORE, SUCH BENEFIT SHOULD BE GIVEN TO THE ASSESSEE, WHICH WAS DENIED B Y THE AO IN THE ASSESSMENT ORDER AND FURTHER ADDITION WAS MADE ON ESTIMATE BAS IS WITHOUT BRINGING ANY MATERIAL AGAINST THE ASSESSEE. THE LD. CIT(A) WAS S ATISFIED WITH THE DETAILS FURNISHED BY THE ASSESSEE AND NO INFIRMITY HAS BEEN POINTED OUT IN THE SAME. WE, ITA NO. 96 & 113/AGRA/2010 15 THEREFORE, DO NOT FIND ANY JUSTIFICATION TO INTERFE RE WITH THE ORDER OF THE LD. CIT(A). AS SUCH, GROUND NO. 2 OF APPEAL OF THE REVENUE IS D ISMISSED. 14. NO OTHER POINT IS ARGUED OR PRESSED. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED AND THE DEPARTMENTAL APPEAL IS DISMISSED. 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