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TMI Blog2016 (5) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... ments were received by the assessee through banking channel. When the assessee transferring the immovable property through these agreements, there is no reason to doubt on the amount received by the assessee. Therefore, we reverse the order of the ld CIT(A). - Decided in favour of assessee. - ITA No. 379/JP/2014 - - - Dated:- 12-4-2016 - SHRI T.R.MEENA, AM SHRI LALIET KUMAR, JM For The Assessee : Shri Shravan Kr. Gupta (Adv) For The Revenue : Shri Ajay Mallik (Addl.CIT) ORDER PER T.R. MEENA, A.M. This is an appeal filed by the assessee against the order dated 27/03/2014 of the learned C.I.T.(A)-I, Jaipur for A.Y. 2009-10. The effective grounds of appeal are as under:- 1. That the impugned assessment order u/s 143(3) dated 23.12.2011 is bad in law and on facts of the case for want of jurisdiction and for various other reasons and hence the same may kindly be quashed. 2. ₹ 13,41,674/- : The Id. CIT(A) has grossly erred in law as well as on the facts of the case in sustaining the addition on account of agriculture income of ₹ 13,41,674/- as against of ₹ 33,75,000/- declared by the assessee and ₹ 11,49,995/- assessed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration was filed on 26/10/2009 declaring total income of ₹ 11,790/- alongwith agricultural income of ₹ 38,75,000/-. The case was scrutinized U/s 143(3) of the Income Tax Act, 1961 (in short the Act). The ld Assessing Officer observed that during the year under consideration, the assessee had shown net agricultural income of ₹ 38,75,000/- in his return of income. Since the assessee had shown huge agriculture income and filed both the returns for A.Y. 2008-09 and 2009- 10 on same date. The ld Assessing Officer issued questionnaire letter dated 12/01/2011, apart from other details, the assessee was required to file copy of Khasra Girdawari and jamabandi in support of agriculture income and copy of sale bills of agriculture produce and details of expenses incurred thereupon. The assessee only filed copy of Jamabandi and copies of Khasra Girdawari of land situated at village-38 P.B.N., Tehsil-Suratgarg, district- Sriganganagar. It was noticed by the Assessing Officer that the land was not owned by the assessee but either most of the land was registered in the name of other members of his family or original owners from whom the land was purchased by the assessee. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice U/s 131 of the Act to Shri Surendra Singh (Land Owner) to attend alongwith the identity proof and evidence of their land holding and supporting evidence of agriculture produced and expenses incurred for the period under consideration. However, the summon was returned back by the Postal Authorities with the remarks that the person not available on given address . Thereafter the ld Assessing Officer gave another opportunity to the assessee on 15/11/2011 to submit the required details to prove that he had carried out agricultural activity and also directed to produce Shri Surendra Singh for verification as he was not available on given address. On 28/11/2011, the assessee through letter has shown inability to produce any other documents in support of agricultural income and banking account transaction. Thereafter one more opportunity was given by the Assessing Officer on 05/12/2011. The assessee has also not maintained books of account. Thereafter the ld Assessing Officer found that the assessee had declared excessive agricultural income to regularize huge unaccounted money earned by him from undisclosed source. It is undisputed fact that the assessee was having some ancestral a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome in the hands of the appellant was estimated at ₹ 11,49,995/-. 4.2 In his response, the appellant has challenged this calculation and has stated that the estimation made by the AO is not based on facts. It is argued that as per the Inspector s report itself the net income from guava comes to ₹ 27,20,000/-. It is contended that the fact that the appellant had earned income from sale of guavas as well as sale of wheat/paddy has been confirmed as per the report of Inspector/ITO, Fatehabad. It is also submitted that there is no mention of income from sale of green fodder raised on the agricultural land. Moreover, the Agricultural Department of Fatehabad had also given its assessment of agricultural income which supports the appellant s claim regarding agricultural income. Hence, it is submitted that the view of the specialist i.e., Agricultural Department should be accepted and not that of the ITO/Inspector were not experts in the field of agriculture. 4.3 It is noted that there is no dispute so far as the fact of land holding and agricultural activities carried out on the land is concerned. The only dispute is about the estimation of agricultural income from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 20,33,326/-. The rest of the income shall be treated as income from other sources and taxed as such. The appeal on this ground is, accordingly, partly allowed. 5. Now the assessee is in appeal before us. The ld AR of the assessee has reiterated the arguments made before the ld CIT(A). It is submitted that there is not remained any dispute regarding the land holding by the assessee as well as land taken on lease and agriculture activity carried on by the assessee on these lands as was in the original assessment proceedings as the Id. AO himself admitted after the inquiry and statement of persons recorded by him from whom land has been taken on lease and land holding by the assessee as well as land taken on lease and agriculture activity carried on by the assessee on these lands. In the remand report the Id. AO has only discussed and estimated the Agriculture income of the land taken on lease. However he has not given any comment on agriculture income arises from his own land of 41.85 Bhigas, which was estimated by him at ₹ 5,00,000/-. But in A.Y. 2011- 12, it has been assessed by the Assessing Officer at ₹ 10,25,000/- U/s 143(3) of the Act. Statement of Shri Sure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee may be considered in true perspective and prayed to delete the addition confirmed by the ld CIT(A). 6. At the outset, the ld DR has vehemently supported the order of the ld CIT(A). 7. We have heard the rival contentions of both the parties and perused the material available on the record. The findings given by the lower authorities are contradictory even the assessee s submission is also contradictory. It is undisputed fact that ownership as well as agricultural activities done on own land and on leased land are not in dispute. Only the mater remained to be adjudicated that the agricultural income earned by the assessee. The ld CIT(A) has considered all the submissions made by the assessee, therefore, we confirm the part addition out of addition confirmed by the ld CIT(A) at ₹ 10 lacs in pace of ₹ 13,41,674/-. 8. In the result, the assessee s appeal is partly allowed on this ground. 9. The 3rd ground of the appeal is against confirming the addition of ₹ 40,60,000/- U/s 68 of the Act. The ld Assessing Officer observed that during the year under consideration, on perusal of bank account of assessee, it was found that huge transaction wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the AO. All these persons have admitted to having given amount of ₹ 4,65,000/- in all to the appellant. Hence, the addition to this extent is deleted. 6.2 So far as the case of the creditor Shri K.K. Jakhar is concerned, the claim of the appellant is that it was not a credit but advance in the course of normal business transaction relating to a property. There is, however, nothing on record to show that the appellant was a property dealer. The appellant has shown meagre income from house property and interest and has filed his return of ₹ 11,790/- only. Hence, it cannot be said that the appellant was involved in property dealing. Merely file of affidavit which is nothing but a self service document, does not discharge the onus which lies on the appellant to establish genuineness of the transaction. It is noted that the appellant has failed to give any evidence in his support at the assessment stage. The appellant has failed to produce Shri Jakhar even after sufficient opportunities were given to him in the course of remand proceedings. 6.3 Similarly, in the case of Shri Jagdish Yadav, it is noted that the appellant has changed his stand and now claims that name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee has submitted that the deposits in the bank account are on account of sale proceed agricultural income, from the sale of property of other persons being the assessee power of attorney holder, advance received for investment in property and one unsecured loans received. It is submitted that Shri K.K. Jhakar had given ₹ 26.60 lacs to the assessee for the purchase/investment in property. However, transaction could not be materialized, therefore, it is a liability of the assessee which has to be paid back but assessee s bank account had been attached by the department which can also not be refunded back in cash. In support of his contention, the assessee filed an affidavit of Shri K.K. Jhakar, which shows that the assessee has transferred ₹ 6,65,000/- in July 07, 2008, ₹ 20 lacs on July through cheque No. 115514 and 115515. The ld AR further argued that the assessee made an agreement with Sri K.K. Jhakar on 22nd December, 2008 to sale the plot No. 31-33 of Hanuman Vatika II, Tagore Nagar, Ajmer Road, Jaipur for ₹ 36.60 lacs. The assessee received ₹ 5.00 lacs vide cheque No. 115511 on 30/06/2008. Thus, total amount received from Shri K.K. Jhakar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hiness of the assessee had been proved by the assessee. The assessee filed affidavits during the course of assessment proceedings as well as appellate proceedings, which has not been considered. Therefore facts mentioned therein for have to be read as the fact binding upon the income tax authority. He relied on the decision in the case of Mehta Pareek Co. 30 ITR 181 (SC), ITO Vs Dr. Tejgopal Bhatnagar 20 TW 368 (Jp), Paras Cotton Company Vs. CIT (2003) 30 TW 168 (JD), CIT Vs Lunard Dimond Ltd. 281 ITR 1 (Del) and CIT Vs Bhawani Oil Mills (P) Ltd. 239 CTR 445. He further relied on the following case laws:- (i) Sohan Lal Sahu 29 TW 9(JP) (ii) CIT Vs Bhai Chand H. Gandhi 141 ITR 67 (Bom). (iii) Ms. Mayawati Vs DCIT 113 TTJ 178 (Del). (iv) CIT Vs P. Mohanakala (2007) 161 Taxman 169. (v) CIT Vs Real Time Marketing (P) Ltd. 306 ITYR 35 (Del). (vi) CIT Vs S.D. Investment Trading Co. 306 ITR 31 (Bom) (vii) CIT Vs Lovely Exports (P) Ltd. 216 CTR 195 (SC) (viii) Steller Investment Ltd. 192 ITR 287. Therefore, he prayed to delete the addition confirmed by the ld CIT(A). 12. At the outset, the ld DR has vehemently supported the order of the ld CIT(A). 13. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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