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TMI Blog2015 (6) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities. The gift was made the assessee’s father and surprisingly debtors affidavits are filed. Therefore, it was desirable that father himself was properly examined as to details of years of lending money and receiving back so as to explain the availability of amount at the time of gift. If the rate of interest was 15% to 18%, it is quite likely that father’s income could have been taxable income in earlier years. The assessee was very selective in giving effective explanation and evidence before the AO despite adequate opportunities. In the absence contents of application for additional evidence, the remand report and looking at the vagueness in the affidavits, we are of the view that proper assessment can be framed only by setting aside the appeals back to the file of the AO to decide the same afresh after giving a reasonable opportunity of being heard to the assessee. The assessee shall cooperate and produce all the materials which is asked for by the AO. With these observations, both the appeals are set aside to the file of the AO to decide the same afresh in accordance with law. - Decided in favour of assessee and the Revenue for statistical purposes. - ITA No. 1018/JP/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and out of them he has gifted a sum of ₹ 20,00,000/- to Shri Kuleep Sharma in cash. The AO accepted assessee s version about the sale of agricultural land by him for the remaining amounts AO was of the view that the assessee has not fully demonstrated the financial capacity of his father. The other cash deposits in the account represent his income from property business. The gift deed filed by the assessee was only an afterthought to justify the cash available with his father. The facts that father retained the old sale proceeds of agricultural land and used them for money landing business was not believed. Similarly sources of other deposits were not accepted. Consequently, a sum of ₹ 22,42,000/- was added to the assessee's income. 3.2 Aggrieved, the assessee preferred first appeal; wherein it was contended that qua the amount of ₹ 10.00 lacs given by the father of the assessee; an amount of ₹ 4.28 was received by him by sale of agricultural land in the year 1996. Besides, the father of the assessee carried over money lending activities to earn interest from other agriculturists at his native place. The amount of ₹ 20 lacs was thus accumu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee's father while deleting the addition of ₹ 10.00 lacs. 3.6 Apropos assessee's appeal, the ld. Counsel for the assessee drew our attention to the synopsis of financial transactions as mentioned in the written submission and contends that neither the AO nor the ld. CIT(A) has considered the following aspect. (a) The presumptive basis of computation of income u/s 44AD is just for the sake of administrative convenience/ simplification of system/ thumb rule for benchmarking and not a universal truth or yardstick that person engaged in the civil construction cannot make more profit than 8% of contract work. (b) Further in case of cash flow consideration, inflow may be higher than the net income due to anything i.e. (a) amount received towards the material supplied but not paid to the supplier. (b) payment received towards labour payment but not paid by the contractor to the labour/ subcontractor. (c) Towards advance received against work order or at stage of work completion etc. (c) Same way consideration towards loan instalment, please note that all the loans had been taken by the assessee in the previous years and the repayment was scheduled at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any cash flow statement. Therefore, the evidence claimed by the assessee to his advantage are not coming out from the record. The donor was the father of the assessee, it is ironical that instead of producing the donor his debtors are produced. Despite adequate opportunities no such evidence or affidavits were filed before AO and by a design they have been filed at the stage of first appeal before ld. CIT(A). The copy of application for admission of fresh evidence is not filed by the assessee nor ld. CIT(A) has given reasons for conclusion that assessee was prevented by sufficient reasons before AO. The financial year in question is 2007-08 and the affidavits have been sworn by the debtors during 27-07-11 to 25-07-2011 i.e. after the assessment order, the names of these debtors were not given to the AO. Thus the affidavits are nothing but a make believe evidence and an afterthought. The debtors nowhere specified when the loans were taken and when repaid so as to draw any view about availability of cash for the alleged gift. Thus entire edifice of the order is based on unverified, vague and specious pleas and the relief given by the ld. CIT(A) at ₹ 10.00 lacs is without pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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