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TMI Blog2015 (5) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... es as well as the evidences produced by the assessee before the ld. First Appellate Authority in the shape of paper book, we are of the view that ld. First Appellate Authority has deleted the addition merely on the basis of surmises and presumptions which is not permissible under the law. In our considered view, the impugned order is not sustainable in the eyes of law, therefore, we cancel the impugned order - Decided in favour of revenue. - ITA No. 3647/Del./2011 - - - Dated:- 30-4-2015 - Shri R. S. Syal And Shri H. S. Sidhu,JJ. For the Petitioner : Shri K.V.S. Gupta, FCA For the Respondent : Shri P. Dam Kanunjna, Senior DR ORDER Per H. S. Sidhu, Judicial Member : The revenue has filed the present appeal against the order of the CIT (Appeals) -XXX, New Delhi dated 13.05.2011 for the assessment year 2008-09 on the following grounds :- On the facts and in the circumstances of the case and in law the Ld. CIT (Appeals) has erred in :- Deleing the addition of ₹ 23,57,000/- made by A.O. in deleting the addition the CIT (A) has failed to appreciate the fact that on a small land holding of 1.262 hectare of land agricultural produce to the tune of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer with remarks no such person at the given address . Lastly, the Assessing Officer, after examining the documentary evidence filed by the assessee, completed the assessment and made an addition of ₹ 23,57,000/- while processing the return u/s 143(3) of the Act on 27.12.2010. Aggrieved by the assessment order, the assessee filed the appeal before the ld. First Appellate Authority who by impugned order dated 13.05.2011 deleted the addition in dispute by allowing the appeal filed by the assessee. 3. Now, the revenue being aggrieved by the impugned order dated 13.05.2011 has filed the present appeal before us. 4. At the time of hearing, ld. DR relied upon the order passed by the Assessing Officer. On the contrary, ld. AR relied on the order of the ld. First Appellate Authority. He drew our attention to the paper book filed by the assessee containing pages 1 to 75 in which assessee has attached copy of F.No. 35 dated 24.01.2011 along with statement of facts grounds of appeals, copy of Bank A/c in PNB No. 84898 Rudrapur in the name of Mr. M S Grewal Mandeep Grewal, copy of reconciliation of AIR with cash deposit exceeding ₹ 10 Lakhs in PNB A/c No. 84898 submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Bilaspur, Distt. Rempur and ₹ 4,02,000/- on account of giving his AMRUD BAGH on lease to Sh Jamil Khan S/o Sher Khan, Ruderpur, Uttrakhand and about balance amount of ₹ 70,000/-, no explanation has been furnished. On test checking the truth the assessee, information u/s 133(6) was sought from two parties i.e. Murtza Khan and Sh Atim Khan Hamid Khan at the given addresses. The letter sent to Murtza Khan has been received back unserved with the remarks of the postal authority No Such Person at the given address . Sh Atim Khan and Hamid Khan did not furnish the required information sought for in the letter. The A R of the assessee was also informed about the facts that the required information has not been furnished by these two persons. He was further show caused that the deposits in cash of ₹ 23,57,000/- alleged to have been from sale of agriculture produce shall be treated as income from undisclosed sources and added to the total Income of the assessee vide order sheet entry dated 24.12.2010. The A R of the assessee did not furnish any reply to this query. Further, I am satisfied that the assessee has furnished inaccurate particulars of his income, hence pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout any evidence. The ld. First Appellate Authority has believed the version of the assessee which is contrary to the law and facts on the file. For the sake of convenience, it is very much relevant to reproduce the relevant portion of the impugned order passed by the ld. First Appellate Authority which is at paras 3 4 at pages 2 to 7 and the same is reproduced as under :- 3. The appellant was a gallantry award winner from Airforce. He retired from Airforce in the year 1985 and settled in a place in Bilaspur near Ruderpur of Nainital District of Uttrakhand. His pension income from military is exempt u/s 10(18) of the I.T. Act being a gallantry awardee receiver. In the 1970 war the appellant was imprisoned by Pakistan for one year and when he came back to India he was awarded a gallantry award. The assessee with his family is doing agricultural operation in about 53 hectres of agricultural land where he had multiple crops and mango, guava, orchard. He grew poplar trees for Plywood Industries on which the Tehsildar/ patwari of the local area had given a certificate of agricultural receipts of ₹ 30 lakhs per year. This certificate translation is produced as under:- Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 140.00 Crops Sale Proceeds 27-Jul-07 Cheque 21,640.00 Crops Sale Proceeds 04-Aug-07 Cheque 213,800.00 Crops Sale Proceeds 17-0ct-07 Cheque 20,000.00 Crops Sale Proceeds 22-0ct-07 Cheque 49,000.00 Crops Sale Proceeds 22-Mar-08 Cheque 19,526.00 Crops Sale Proceeds 3,88,106.00 3. Cash withdrawal from Bank (for agricultural expenses) Date Mode Amount Narration 01-Jun-07 Self Cheque 48,804.00 Diesel Payment 19-Jun-07 Self Cheque 100,000.00 Withdrawal for Agricultural Exp. 20-Jun-07 Self Cheque 100,000.00 Expenses towards Farming Agricultural 21-Jun-07 Self Cheque 100,000.00 Expenses towards Farming Agricultural 04-Jul-07 Self Cheque 10,000.00 Expenses towards Farming Agricultural 12-Jul-07 Self Cheque 100,000.00 Expenses towards Farming Agricultural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Grwal is the secretary in Ranbir Collective Cooperative Farming Society Ltd. He is the authorized person for doing all the agricultural activities on the land. 2) Further also, Mr.Grewal is also authorized person for doing all agricultural activities on the land related to Mini Collective Co-operative Society. Enclosed documents a. Certificate by assessee, patwari b. Computation of income 3) According to signed certificate and affidavit duly certified by assessee, patwari of lkehapal, around 30 lacs agricultural receipts from land during the F.Y. 4) Assessee shows approximately agriculture net income ₹ 25 lacs in his income tax return. 4. From the computation of agricultural income made by the appellant and his AR, it is found that the net agricultural income of the assessee is around ₹ 15 lakhs in the previous year related to assessment year 2008-09. The assessee had returned agricultural income of ₹ 25 lakhs in his returned of income which is on the excessive side. Since the assessee had a source of cash receipts of ₹ 30 lakhs from agricultural as receipts certified by the local Tehsildar, cash deposit of ₹ 23,57,0001- in the ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence in support of additional evidence. We find that ld. First Appellate Authority did not even indicated/ discussed about the additional evidence and the remand report of the Assessing Officer dated 14.03.2011 which the assessee has attached in the paper book at pages 53 to 55 of the paper book and rebuttal by the assessee to the remand report of the Assessing Officer dated 20.04.2011 which is at pages 56 to657 of the paper book. Meaning thereby, the ld. First Appellate Authority has not applied his mind while deleting the addition in dispute and the addition was dismissed merely on the basis of surmises and conjectures without any evidence. Therefore, the impugned order is not sustainable in the eye of law. 5.1 We further find that no doubt, the assessee was a gallantry award winner from Air Force and has been retired from Air Force in the year 1985 and is settled in a place in Bilaspur near Ruderpur of Nainital District of Uttrakhand. His main source of income is pension from Air Force, agricultural income and income from other sources. As per the record, the assessee is an owner of 1.262 hectares of land (as stated above) but the rest of the land belongs to Ranbir Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... measuring 42.92 hectares belonging to Ranbir Collective Cooperative Farming Society, the assessee has not established that he has received agricultural income from this farming society in spite of the fact that this land is belonging to Ranbir Collective Cooperative Farming Society. The assessee has also not produced any lease deed establishing that he is doing agriculture on the land measuring 42.92 hectares. Keeping in view of the facts and circumstances of the present case and the order passed by the revenue authorities as well as the evidences produced by the assessee before the ld. First Appellate Authority in the shape of paper book, we are of the view that ld. First Appellate Authority has deleted the addition merely on the basis of surmises and presumptions which is not permissible under the law. In our considered view, the impugned order is not sustainable in the eyes of law, therefore, we cancel the impugned order dated 13.05.2011 passed by the ld. First Appellate Authority and upheld the assessment order dated 27.12.2010 passed by the Assessing Officer u/s 143(3) of the Act by allowing the appeal filed by the revenue. 6. In the result, the appeal filed by the revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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