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TMI Blog1989 (6) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... d that there were the following three cash credits: (1) Sahu Munish chandra of Nagina Rs. 25,000 (2) Smt. Jeewan Jyoti w/o Sri Suresh Chandra Agarwal Rs. 25,000 (3) Smt. Ram Kishori w/o Sri Ram Prakash Rs. 5,000 Total Rs. 55,000 The following genealogical table would be helpful: . Not known . . Smt Kailasho Devi . . (died in 1975) . . | . Not known Munish Rameshwar Prasad Smt. Ram Kishoree alias Chandra Sahu alias Ramesh Chandra.. Smt. Kishore Devi.. Dr. Ram (Examined) Ganga Devi Prakash (Died in 1962-63 . | . | | | Suresh Chandra.. Smt. Subash Chandra Satish Chandra. Jeewan Jyoti (D/o Smt. (Examined) . Vijaya Laxmi and L. . . Radhey Raman Lal) . . The ITO took the view that these cash credit were unexplained whereas the learned AAC, treating them as explained, deleted the additions. 4. The rival submissions have been heard. The assessee had filed a letter dt. 5th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the amount of Rs. 25,000 pertaining to Sahu Munish Chandra of Nagina was rightly deleted by the learned AAC. 5. So far as Smt. Jeewan Jyoti is concerned, the case of the assessee was that Smt. Jeewan Jyoti had received a gift of Rs. 25,000 from her mother Smt. Vijay Laxmi on 6th April, 1974. This was confirmed by there affidavit. Smt. Vijay Laxmi had filed a return of gift accordingly on 5th Aug., 1975 which though not accepted by the GTO, Bareilly, had been accepted by the AAC, Bareilly in appeal vide his order dt. 26th April, 1978. However, the ITO treated this cash credit also as unexplained. The learned AAC however, deleted this addition also. 6. In reply to a query from the Bench the learned Departmental Representative was not able to state as to whether the Department had filed any appeal against the order d. 26th April, 1978 of the AAC, Bareilly accepting the gift made by Smt. Vijay Laxmi on 6th April, 1974 to Smt. Jeewan Jyoti. In view of the above material and affidavit, of which there is no rebuttal, the financial capacity of Smt. Vijay Laxmi to make the gift has to be taken as established. This is particularly so because Smt. Vijay Laxmi had deposed that sugar-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t., 1975 of the ITO under s. 132(5). The ITO was also influenced by the fact that Shri Subhash Chandra Agarwal was a minor aged 17 years and according to the ITO, he could not have done the business independently at that age. 10. However, the learned AAC held that the business of the assessee was separate from the business of Shri Subhash Chandra and therefore, deleted the addition. 11. The rival submissions have been heard in regard to this addition also. The first point is that at the time of the order under. 132(5) Shri Subhash chandra had not been examined by the ITO. Although it does not seem to be under dispute that Shri Subhash Chandra was aged 17 years at the relevant time but the books of account of the assessee were partly written by Shri Subhash Chandra. In fact the case of the assessee was that the books seized belonged to Subhash Chandra who was doing pawning business in his own name. The assessee had filed an affidavit from Subhash Chandra before the learned AAC. On this affidavit the learned AAC had asked for a report from the ITO for which purpose the ITO then examined Shri Subhash Chandra. In this statement Subhash Chandra confirmed that he had no business co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andra by crediting it to his savings bank account No. 8823 with the said bank. The learned AAC therefore, deleted the addition. 14. After hearing the rival submissions, it is felt that the order of the learned AAC was quite just and proper and does not need any interference. The learned AAC had verified from the records that the assessee had filed a map before the ITO giving building plant of Shri Subhash Chandra regarding this building. The factum of partial partition also stands established. Shri Subhash Chandra is being assessed in respect of the house property income from this building. Therefore, the order of the learned AAC on this point is confirmed. 15. The next point which merely forms part of the main issue discussed above was the same namely, whether Shri Subhash Chandra at the age of 17 years could be expected to do business independently in his individual capacity. This point taken by the Department in its appeal is also not tenable, the reasons being those discussed in the appeal for the asst. yr. 1975-76. CO. Nos. 77 78/Del/1987 16. For the asst. yrs. 1975-76 and 1976-77 the assessee is aggrieved since the income of Rs. 8,500 and Rs. 10,000 respecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Jyoti on the occasion of her marriage. 20. The rival submissions of both the sides have been heard on this point. The affidavit of Smt. Vijay Laxmi had been examined by the ITO before giving his report to the learned AAC. In the appeal for the asst. yr. 1975-76 gift of Rs. 25,000 has already been accepted on the basis of the order of the learned AAC and the certificate from the Cane Development Inspector. Even if Smt. Jeewan Jyoti was not produced, the statement of Smt. Vijay Laxmi duly corroborated the assessee's case. The additions based upon the orders under ss. 132(5) and 132(12) could, therefore, not be supported. Therefore having regard to the finding for the asst. yrs. 1975-76 and 1976-77 the additions in question would be incongruous and inconsistent with the case accepted by the learned AAC. These additions are, therefore, unwarranted and have to be deleted. ITA Nos. 750 to 754/Del/1985 21. The ground of the Department for the asst. yrs. 1977-78 to 1981-82, relates only to the deletion of the income relating to Shri Subhash Chandra in the hands of the assessee firm. The same has to be upheld in view of what has been held for the asst. yrs. 1975-76. ITA No, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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