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TMI Blog2015 (5) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... apart from incurring expenditure in electricity charges, printing of stationery, travelling, etc. The assessee has also paid bonus to employees employed by him. According to learned senior counsel, since the payments made by the assessee towards expenditure is not in dispute, the same has to be allowed, therefore, the Commissioner of Income-tax (Appeals) is not justified in restricting the claim of the assessee to 40 per cent. of the gross receipts. 4. On the contrary, Smt. Latha V. Kumar, the learned Departmental representative submitted that the assessee is a document writer and stamp vendor in Anchal town. A search was conducted under section 132 of the Act at the residential premises of the assessee and simultaneously survey was also conducted at the office premises of the assessee at Market Junction, Anchal. According to the learned Departmental representative, several incriminating materials were found during the course of search and survey operations. The assessee is not maintaining any books of account. Before the search, according to the learned Departmental representative the assessee filed return of income for the assessment year 2003-04 disclosing total income of Rs. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal do not find any infirmity in the order of the lower authority. Accordingly, the same is confirmed for all the assessment years under appeals. 6. The next ground of appeal is with regard to opening cash balance. 7. Shri T. M. Sridharan, learned senior counsel for the assessee submitted that the assessee has filed detailed cash flow statement before the Assessing Officer. For the assessment year 2003-04, the assessee has shown a sum of Rs. 5 lakhs as opening cash balance including cash balance of Rs. 66,369. According to learned senior counsel, the effective cash balance was Rs. 4,33,655. The assessee has also received agricultural income apart from document writing. According to learned senior counsel, the total professional and agricultural income for the financial year ending on March 31, 2002 was Rs. 1.5 lakhs. The balance Rs. 2.83 lakhs was from accumulated savings of the assessee and his wife. Referring to the assessment order, learned senior counsel submitted that the Assessing Officer disallowed the entire opening cash balance and worked out a deficiency of Rs. 3,51,450. According to learned senior counsel, the investment and availability of funds would show that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me shown in the cash flow statement. According to learned senior counsel, the Assessing Officer rejected the claim of the assessee and held that the theory of agricultural income is only with an intention to increase the availability of cash or explaining the investment. According to learned senior counsel, the assessee has declared agricultural income to the extent of Rs. 1,53,251 for the assessment year 2003-04. The Assessing Officer failed to give credit for the agricultural income shown in the return of income. 12. On the contrary, Smt. Latha V. Kumar, the learned Departmental representative submitted that the assessee is not disclosing any income from agricultural activity. The assessee claimed before the Assessing Officer that the agricultural land stands in the name of his wife, therefore, the agricultural income was not included in his return of income. When the assessee claims that the agricultural income belongs to his wife it cannot be included in his total income and that he cannot take any credit for the agricultural income earned by his wife. The material found during the course of search operation shows the agricultural receipt and not income. According to the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to learned senior counsel, the assessee estimated the household expenses at Rs. 1 lakhs in the cash flow statement. However, the Assessing Officer found that the assessee admitted the household expenses at Rs. 10,000 per month. According to learned senior counsel, the assessee has admitted only Rs. 10,000 during the course of statement recorded under section 132(4), therefore, the estimation of household expenses at Rs. 2 lakhs is not justified. 16. On the contrary, Smt. Latha V. Kumar, the learned Departmental representative submitted that the assessee's son is studying in engineering college. He admitted that he had paid Rs. 2 lakhs towards capitation fee for admission. The assessee is also paying tuition fees and meeting other expenses for maintaining family. On the basis of the statement recorded under section 132(4), the average expenditure of the assessee comes to Rs. 2 lakhs per annum. Therefore, the Commissioner of Income-tax (Appeals) has rightly confirmed the addition made by the Assessing Officer. 17. We have considered the rival submissions on either side and also perused the material available on record. No doubt, while examining the assessee admitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Income-tax (Appeals), however, deleted the addition only to the extent of Rs. 5 lakhs and confirmed the addition to the extent of Rs. 7 lakhs. According to learned senior counsel, since the amount was received from Shri Thomas, a non-resident Indian, the addition is not justified. 22. On the contrary, Smt. Latha V. Kumar, the learned Departmental representative submitted that the assessee claimed that he purchased teak plantation for Rs. 30 lakhs along with Shri Thomas. The assessee claimed before the Assessing Officer that Rs. 50 lakhs was invested by him and the balances Rs. 50 lakhs was paid by Mr. Thomas directly from his NRE account maintained with State Bank of Travancore, Anchal. The assessee has also claimed that the cash withdrew from NRE account on March 29, 2005, was Rs. 20 lakhs. The Commissioner of Income-tax (Appeals) having found that a sum of Rs. 5 lakhs was received from NRE account, confirmed the addition to the extent of Rs. 7 lakhs. 23. We have considered the rival submissions on either side and also perused the material available on record. The Commissioner of Income-tax (Appeals) found that a sum of Rs. 5 lakhs was transferred from the NRE account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs was paid in cash and that the source for making the advance is his own earning apart from receipt of Rs. 2 lakhs from his son. Referring to the claim of the assessee that the amount was withdrawn from NRE account of Shri Thomas, the learned Departmental representative submitted that the NRE account does not show any withdrawal of Rs. 20 lakhs. According to the learned Departmental representative, Shri Thomas withdrew the amounts ranging from Rs. 50,000 to Rs. 4 lakhs on regular intervals. Therefore, the claim of the assessee that the amount withdrawn from NRE account of Shri Thomas was used for giving advance for purchase of property is not correct. As per the learned Departmental representative, the total withdrawal from the NRE account as on February 21, 2006, was Rs. 9,20,000. Therefore, according to the learned Departmental representative, the Assessing Officer has rightly made the addition. 27. We have considered the rival submissions on either side and also perused the material available on record. The Commissioner of Income-tax (Appeals), after considering the remand report submitted by the Assessing Officer found that the assessee has explained the source for Rs. 18 lak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have considered the rival submissions on either side and also perused the material available on record. The assessee claims that a sum of Rs. 65,000 was received from his son. It is not in dispute that the assessee's son was earning income. Even during examination the assessee explained the source for making advances for purchase of property. He claimed that he has received a sum of Rs. 2 lakhs from his son. No question was asked by the Revenue authorities about the source of receipt from his son. Noinvestigation was made by the authorities and no material was brought on record to establish that the assessee's son could not have earned that money. In the absence of any material, this Tribunal is of the considered opinion that the assessee could have received Rs. 65,000 from his son. Because of close relationship between father and son no documentary evidence could be expected in view of the smallness of the amount. Therefore, this Tribunal is of the considered opinion that addition of Rs. 65,000 said to have been received from the assessee's son is not justified. Accordingly addition of Rs. 65,000 is deleted. 32. The next ground of appeal for the assessment year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal representative. 39. The assessee claims that he has received Rs. 7,65,000 from his son, ShriAnil Govind. However, the Assessing Officer excluded Rs. 3,65,000 out of Rs. 7,65,000. During the proceedings before the Commissioner of Income-tax (Appeals), the assessee explained that Rs. 4 lakhs was transferred by cheque on November 13, 2008. An amount of Rs. 90,000 was transferred on April 8, 2008, by way of cheque. The Commissioner of Income-tax (Appeals) by taking into consideration all these transactions by way of cheques restricted the addition to the extent of Rs. 2,75,000. In the absence of any material this Tribunal is of the considered opinion that the Commissioner of Income-tax (Appeals) has rightly restricted the addition to the extent of Rs. 2,75,000. Therefore, this Tribunal do not find any infirmity in the order of the lower authority. Accordingly, the same is confirmed. 40. The next ground of appeal for the assessment year 2009-10 is with regard to addition of Rs. 1,40,000 towards cash received from the assessee's daughter. 41. We heard Shri T. M. Sridharan, learned senior counsel and Smt. Latha V. Kumar, the learned Departmental representative. 42. The assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to pay advances and the full settlement would be made only after marriage functions are over. This is for the reason that no one could estimate the expenditure exactly in respect of expenses which have to be incurred. For example in respect of food and other arrangements, the assessee has to make advance at the time of booking to the concerned person whereas the actual settlement would be made only after the marriage. Therefore, this Tribunal is of the considered opinion that merely because the assessee's son withdrew the money from bank after the marriage, it does not mean that the same would not have been used for meeting the marriage expenses. This Tribunal is of the considered opinion that the amount withdrawn after the marriage might have been used for settling the marriage expenses. Therefore, the addition of Rs. 1,75,000 is not justified. Accordingly, the Assessing Officer is directed to delete the addition of Rs. 1,75,000. 47. In the result, the appeals for the assessment years 2003-04, 2004-05 and 2005-06 are dismissed ; and appeals for the assessment years 2006-07, 2007-08 and 2009-10 are partly allowed. The order pronounced in the open court on this January 9, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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