9911796707
TMI Blog2020 (2) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... ducing the buyers who have advanced the money to the assessee against the purchase of his agricultural land as insisted by the Ld. Income Tax Officer. That during personal deposition of the buyers Mr. Jai Ram Nagar and Mr. Shri Chand, they have confirmed that they have paid the advance to the assessee against the purchase of his agricultural land and also explained the sources of their income. That Mr. Jai Ram Nagar has also shown his withdrawal from his bank account justifying the payment made to the assessee which was totally ignored by the Ld. Income Tax Officer on the pretext that the date of withdrawal by Mr. Jai Ram Nagar and date of deposit by the assessee does not match, whereas at no time during his personal deposition Mr. Jai Ram Nagar has stated he has paid the amount to the assessee immediately after withdrawal from his bank account to the assessee. 3. That the assessee has discharged his onus by producing the parties with whom he has entered into agreement for sale of his agricultural land and from whom he has received the advance and deposited the same in his bank account. That by producing the buyers and confirmation from them that they have paid the amount to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly not made the personal deposition of his real brother Mr. Brahma Nand Sharma and his real sister-in-law Mrs. Bhagwati. That it was explained that Mr. Brahma Nand Sharma, brother of the assessee was expired on 24.04.2009 and the copy of gift deed , affidavit of legal heir, identity proof of legal heir and the donor and sources of gift given to the assessee. That it was explained to the Ld. Income Tax Officer that the real sister in law of the assessee, Mrs. Jagwati Sharma wife of Mr. Likhiram Sharma, brother of the assessee was expired on 27.11.2011 and due to tradition in the family , elder lady Mrs. Bhagwati cannot be produced for personal deposition and requested to depute the official staff to record the statement, if necessary. That the Ld. Income Tax Officer has not taken any steps to record the statement of legal heir of late Mr. Brahmna Nand Sharma and Mrs. Bhagwati for the reasons better known to him and wrongly presumed that these persons have capacity of payment of gift of Rs. 25,000/- each, totally ignoring the age of the donors , their relationship with the assessee and occasion of such gift. That Ld. Income Tax Officer has also erred in ignoring the fact that even t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explain the cash deposit stating that on 19/04/2008, Rs. 1 lakh is the sum received against sale of agricultural land. Cash deposit of Rs. 1 lakh on 30/04/2008 is also an advance against the sale of agricultural land. Cash deposit of Rs. 3 lakhs on 30/4/2008 is also advanced against sale of agricultural land. Cash deposit of Rs. 5 lakhs on 5/5/2008 is also advanced against sale of agricultural land. All these advances were received from Shri Jairam Nagar. For the sum of Rs. 24,50,000/- deposited on 17/06/2008 assessee explained that Rs. 10 lakhs is out of cash withdrawn from bank on 02/06/2008 and further sum is received as advanced against sale of agricultural land, cash gift received from various persons. Other cash deposits were stated to be deposited out of the cash withdrawal made on earlier dates. The learned Assessing Officer asked the assessee to produce all those persons from whom advance against sale of agricultural land was received as well as the persons who have gifted sums to assessee. The learned Assessing Officer also recorded statement of certain persons and found that these persons are of very low means and could not have given an advance or gift to the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d submitted that such ground cannot be raised that it is neither a jurisdictional ground nor a ground which goes to the root of the matter. It is merely a challenge to the Assessing Officer's action of taxing the amount deposited in the bank account in cash under Section 68 of the Income Tax Act. 9. We have carefully considered the rival contention and find that assessee can raise any additional ground of appeal which is technical in nature. As the additional ground raised by the assessee goes to the root of the matter that whether any addition can be made under section 68 of the Act in case of the assessee was not maintaining the books of accounts when the money is deposited in his bank account. In view of the decision of the Hon'ble Supreme Court in National Thermal Power Co Ltd (supra), we admit the additional ground raised by the assessee. 10. As the additional ground raised by the assessee is required to be adjudicated first, as it goes to the root of the assessment made by the learned assessing officer. On the issue of the additional ground, it was submitted that the invocation of section 68 in the present casein absence of proper books of account of the assessee is invalid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentative vehemently supported the order of the lower authorities. 14. We have carefully considered the rival contentions and also perused the orders of the lower authorities. Admittedly, assessee has deposited cash of Rs. 2450000/- in the bank account of the assessee in cash. Source of the cash as explained by the stating that he has received Rs. 1,000,000/- from Mr Jayaram Nagar as advance against the sale of land, out of which the learned assessing officer has accepted the genuineness to the extent of Rs. 300,000/- and made the addition of Rs. 700,000/- as unexplained cash credit. The learned CIT(A) enhance to Rs. 1,000,000/- thereby making an enhancement to the income of the assessee of Rs. 300,000/-. Further, the assessee also explained that Rs. 1,000,000/- have been received from Mr Sri Chand, out of which the learned Assessing Officer accepted the genuineness and creditworthiness of the party to the extent of Rs. 100,000/- and made an addition of Rs. 900,000/- which was enhanced by the learned CIT(A) to Rs. 1,000,000/-. Further, with respect to Shri Likhiram Sharma where the assessee contended that he has received gift of Rs. 100,000/- and AO accepted the identity and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at that when monies are deposited in bank account, relationship that is constituted between the bank and the customer is of creditor and not the trustee and beneficiary. Therefore, it is not as if the bank passbook is maintained by the bank as an agent of the customer, nor can it be said that the passbook is maintained by the bank under the instructions of the customers. In view of this, the bank passbook supplied by the bank to the assessee cannot be regarded as a books maintained by the assessee under instructions. Accordingly, it was held that cash credit for the previous year shown in the assessee‟s bank passbook issued to him by the bank, but not shown in the cashbook maintained by him for that year, does not fall within the ambit of section 68 of the income tax act. The facts in that case are that assessee did maintain the books of accounts , certain sums were found in the bank account of the assessee but were not found in the regular cashbook submitted by the assessee. In the circumstances, the honourable High Court stated so. Further, the assessment year involved in that case is 1962 - 63. Admittedly on that date definition of the "books of accounts‟ as prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year 2004 - 05 is also dismissed." 16. In view of above facts and respectfully following the decision of the coordinate bench we hold that the cash deposited by the assessee in his bank account is also covered under section 68 of the income tax act. Thus the additional ground raised by the assessee is dismissed. 17. Coming to the merits of the case the learned Commissioner of income tax appeal has decided the above issue holding as under:- "4. During appeal proceedings the counsel of the appellant attended and made following written submission:- "Brief Facts The appellant has voluntarily filed his return of income declaring income of Rs. 90,200/- on 13.10.2009 The assessment has been framed by the Ld. Income Tax Officer, Ward 1(3), Ghaziabad after adding a sum of Rs. 19,97,650/- on account of unexplained cash credit and assessed at Rs. 20,87,570/-. That during the year under consideration, assessee has deposited cash of Rs. 37,92,000/- in his savings bank account with Bank of Baroda. The Ld. Assessing Officer has asked to file the justification and sources of cash deposited in bank account along with complete cash flow statement. Assessee has submitted the complete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jai Ram Nagar has stated he has paid the amount to the assessee immediately after withdrawal from his bank account to the assessee but only explained that the amount has been paid to the assessee after withdrawal as Cash from Bank Account. That since the property under consideration was ancestral and No objection from all the family members were required to register the property in the buyers name, which was refused by the other family members and ultimately, assessee has returned back the amount advanced by Mr. Jai Ram Nagar partially in the current financial year and partially in the beginning of next financial year, which was confirmed by him during his personal deposition. That Mr. Shri Chand has also confirmed that he has paid the amount to the assessee during his personal deposition and also confirmed that the Original' papers of the property was lying with him till the time of payment made by the assessee which was totally ignored by the Ld. Assessing officer. Since both the person(s) from whom amount received by the assessee has confirmed on oath and during personal deposition also, No amount can be considered as unexplained and can be treated as Income of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00,000/- which was given to the assessee on his 25th Marriage anniversary. That on one hand Ld. Assessing Officer has accepted the fact that the assessee has received the amount as Gift on 25th Marriage anniversary but on another hand allowed only partial amount due the fact that the donors does not have capacity to pay such gifts whereas all the income and assets in form of agricultural land of the Donors was duly explained and the evidences were also submitted by the assessee and by the donors also during their personal deposition before the Ld. Income Tax Officer. That the assessee has discharged his onus by providing the identity, relationship with donors, Occasion of the Gift and Capacity of the Donors and also their confirmation in form of affidavit(s), Gift Deed and also during their personal deposition which was duly ignored by the Ld. Income Tax Officer while assessing the income 6f the assessee. That the Ld. Income Tax Officer has erred in presuming that the assessee ha3 intentionally not made the personal deposition of his real brother Mr. Brahma Nand Sharma and his real sister-in-law Mrs. Bhagwati. That it was explained that Mr. Brahma Nand Sharma, brother of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffered the same for taxation. However the Ld. Income Tax Officer has not only included the same but also included the Bank Interest of Rs. 10,000/- earned by his wife, Mrs. Sunita Sharma, whose bank statement was asked by the Ld. Income Tax Officer. That the Ld. Income Tax Officer has erred in levying Interest U/s 234 A & U/s 234 B of the Income Tax Act, 1961. That at No instance the Ld. Income Tax Officer has pointed out any defect in the return filed by the assessee nor found any sources of income from which assessee -has generated cash which can be treated as unexplained. That the Ld. Income Tax Officer has also erred in not providing any opportunity nor any show cause notice has been issued by him before making the assessment, hence principal of natural justice has been overlooked by the Ld. Income Tax Officer. Case Laws on which assessee has relied on Cash Credit 1. CIT v. East Coast Commercial Co. Ltd (1967) 63 ITR 449 (SC) 2. Dhakeswari Cotton Mills Ltd v. CIT (1954) 26 ITR 782 (SC)t 3 DhirajilalGirdharilal v. CIT (1954) 26 ITR 736 (SC). 4. M/s Straptex (India) Limited vs Deputy Commissioner Of IncomeTax reported in 84 ITD 320 by the IT AT, Bombay 5. Mohd. So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B.N.J. Naidu v. CIT (1956) 29 ITR 194 (Nag), Chunilal Tikamchand Coal Co. Ltd. v. CIT (1955) 27 ITR 602 (Pat), Mehta Parikh & Co. v. CIT (1956) 30 ITR 181 (SC), Lalchand BhagatAmbica Ram v. CIT (1959) 37 ITR 288 (SC), Sri Ram Tandon v. CIT (1961) 42 ITR 689 (All) and Kanpur Steel Co. Ltd. v. CIT (1957) 32 ITR 56 (All)]. 36. Mehta Parikh & Co. v. CIT (1956) 30 ITR 181 (SC) and Lalchand Bhagat Ambica Ram v. CIT (1959) 37 ITR 288 (SC)]. 37. ITO v. Suresh Kalmadi (1988) 32 TTJ (Pune-Trib)(TM) 300. 38. [DCIT v. Rohini Builders (2002) Case laws on which assessee has relied on Gifts. 1 ITOv.DharamVirTuli (2003) 81 TTJ (Chd-Trib) 1028. Similarly in ITO v. MatadinSnehlata (HUF) (2004) 90 ITD 203 (All-Trib) 2. ITO v.DharamVirTuli (2003) 81 TTJ (Chd-Trib) 1028 and ITO v. MatadinSnehlata (HUF) (2003) 81 TTJ (All-Trib) 995 &SurajBhan Bajaj v. ITO (2006) 102 TTJ (Dcl- Trib) 665. 3. Mrs. RanjanaKatyal v. Asstt. CIT (2008) 19 (II) ITCT. 507 (DelTrib) : (2008) 113 TTJ (Del-Trib) 479 4. Smt. SonuAgarwal v. ITO (2009) 28 (II) ITCL 324 (Luck-Trib) : (2009) 29 SOT 478 (Luck-Trib) 5. CIT v. Mayawati (2011) 338 ITR 563 (Del): (2011) 201 Taxman 1 (Del): (2011)243 CTR (Del) 9. 6. CIT v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was noticed by the A.O that the; assessee during the year under consideration has deposited cash of Its. 37,92,000/- in his saving bank account no. 307501000000066 at Bank of Baroda, Indirapuram, Ghaziabad. On being asked to furnish the detail and justification for these cash deposits, the assessee submitted the detail as per chart given at pa'ge no. 2 of the assessment order. In this chart the assessee explained the source of deposit of Rs. 10,00,000/- as advance received against sale of agricultural land from Shri Jai Ram Nagar S/o Shri Asha Ram R/o VillKanawani on different dates i.e. Rs. 1,00,000/- on 19.04,2008, Rs. 1,00,000/- on 30.04.2008, Rs. 3,00,000/- on 30.04.2008 and Rs. 5,00,000/- on 05.05.2008 respectively. On being asked, the assessee produced Sh. Jai Ram Nagar whose statement on oath was recorded on 05.12.2011. In his statement Shri Jai Ram Nagar though admitted to have given cash advance of Rs. 10,0, 000/- to the assessee on different dates but could not corelate the same from his bank statement and stated the source of sum advanced as income from agriculture some of which was being deposited in bank and also available at residence. Sh. Jai Ram Nagar stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h him at residence. However, he could not justify the availability of Rs. 10,0, 000/- with him on the date of advance. Regarding agreement for purchase/sale of agriculture land, Shri Sri Chand in his statement admitted that the agreement was executed on Stamp Paper but he could not give the names of the witnesses and the Advocate who got the agreement prepared. Further, the facts of this so called agreement are different as the same is executed on plain paper and there is no signature of any witness. Therefore, this fact again goes to prove that this is a cooked-up storey and the so called agreement has been prepared later-on to justify the cash deposits in the account of assessee before the Income-tax Deptt. Further Shri Sri Chand could also not prove his credit-worthiness and genuineness of transaction. He is also not assessed to income-tax and had no means to advance such a huge money to the assessee. Therefore, the A.O has rightly concluded that the amount of Rs. 10,00,000/- shown to have received as advance for sale of land from Shri Sri Chand is the unexplained cash credit and added to the income u/s 68 of I.T.Act, 1961. To justify the other cash credits, the assessee claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars that they were referring land as owned by you and three brothers family. IV. Furnish all details of sale of land as partly negotiated in agreement dated 17.06.2008 and there-after upto 31.03.2013 with copy of sale deeds/agreement etc. V. Prove ownership in land from which agriculture income had been shown in return. VI. Furnish photo-copy of purchase deed of Plot in the name of your wife Smt. Sunita Sharma including back portion of purchase-deed (showing seal of registering authorities) for ascertaining of facts and date of registration. Copy of document as given to said Sh. Sri Chand may also be filed. However, no compliance to the aforesaid letter has been made as neither any-body attended on the date fixed i.e. 03.06.2013 nor any written reply or detail as called far was received. In view of all the facts, narrated above it is proved beyond doubt that all the above amounts were unexplained cash credits of the assessee and the persons from whom advances/gifts have been shown are all of no means and just to accommodate the assessee, the creditworthiness of the persons and genuineness of transactions could not be established/proved. The assessee has relied upon vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the file of the assessee. That after every statement, assessee has clearly asking the assessing officer in writing to provide him the opportunity, if any contrary has been observed by him, which is evident from the copies of reply filed during the assessment proceedings which were produced before your good self and the same are also available with the Ld. Income Tax Officer. That at No time , the Ld. Assessing officer has asked to deposit the fees to obtain the copies of the statement recorded. It is only when your good self has directed them to provide the statement(s) to the assessee, then the Ld. Assessing Officer has asked to deposit the fee to obtain the statement(s) and provided to the assessee. It is also important to mention that No show cause Notice has been ever issued by the Ld. Income Tax Officer regarding the conclusion he has made out of the statement(s) recorded and used against the assessee whereas assessee was regularly asking to provide the opportunity to explain in writing through his submissions. That the Ld. Assessing officer has also raised the question of the amount of the agreement entered by the assessee with his prospective buyers which was also total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted the assessment proceedings again by issuing the Letter to the persons whose statements were recorded during the assessment proceedings to cover up the mistake which was committed during the assessment proceedings by not providing the statements or show cause to the assessee, even after the repetitive requests made during the assessment proceedings and post assessment proceedings. 4. That the Ld. Income Tax Officer has provided the copies of Statements(s) recorded during the assessment proceedings after the directions given by yourself which were used against the assessee for making additions after deposit of requisite fees. 5. That the letter dated 13.05.2013 was issued to all the persons whose statement was earlier recorded fixing the date of hearing on 17.05.2013 which were received by the persons on 31.05.2013 (i.e., after the date of hearing). 6. That again No opportunity was provided to the assessee to provide the letters issued to the persons to produce in support of his claim made during the assessment proceedings. 7. That during the assessment proceedings, assessee has himself produce the person(s) from whom advance against the property and gifts from relatives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase of agricultural land and paid the amount to the assessee and as per Answer to Question No. 25, he has confirmed that he has received back the amount from the assessee. b. Mr. Shri Chand As per Answer to Question No. 3 at page 4 and Answer to Question No. 2 at page 5, Mr, Shri Chand has confirmed that he had entered into an agreement with the assessee for purchase of agricultural land and paid the amount to the assessee and also mentioned the purpose for which such agreement was entered. c. Mr. Likhi Ram (Brother of Assessee) As Per Answer to Question No. 2 at Page 3, Mr. Likhi Ram has confirmed that he has made a gift of Rs. 1,00,000/- on the 25th Marriage Anniversary of the assessee. d. Mr. Balkishan Sharma (Nephew of Assessee) As Per Answer to Question No. 2 at Page 2, Mr. Balkishan Sharma has confirmed that he has made a gift of Rs. 50,000/- on the 25th Marriage Anniversary of the assessee. e. Mr. Dhaneshwar (Nephew of Assessee) As Per Answer to Question No. 12 , Mr. Dhaneshwar has confirmed that he has made a loan of Rs. 1,00,000/- to the assessee. 13. That the analysis emerges from all the questions asked by the Ld. Assessing officer reveals that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crepancies in the statement recorded and has also given an opportunity to the appellant to prove/furnish following details:- "I. All sort of authentic and documentary evidences to prove legal igts in 890 sq. meters land and as stated to be negotiated as per agreement dated 17.06.2008 and latest copy of Khasra and Khatauni relating to land as owned by four brothers including you. What was total area of land belonged to family with reference to Bighas. II. Furnish authentic reason as to why terms/conditions specified in agreement dated 17.06.2008 were violated and what was follow up by said parties with whom said agreement was entered into. Photocopy of agreement may also be filed which was admitted by Sh. Sri Chand on stamp paper in his statement recorded on 16.12.2011 at para 5. III. Furnish details of lands as admitted to be owned by your family members in their statements for earning income from whom gifts in cash were admitted ot have received by you and from their depositions it appears that they were referring land as owned by you and three brothers family. IV. Furnish all details of sale of land as partly negotiated in agreement dated 17.06.2008 and thereafter upto 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ource lies upon the assessee and he is required to explain the genuineness of the credit entry. (iv) Section 68 enacts a golden rule of evidence which is not in dispute, i.e., if any sum is found credited in the books of account of an assessee, the onus is on him to explain the said entry. The principle embodied in Section 68 is only a statutory recognition of what was always understood to be the law based upon the rule that the burden of proof is on the taxpayer to prove the genuineness of borrowings since the relevant facts are exclusively within his knowledge. Even before the enactment of Section 68, this rule of evidence was applicable vide Kate Khan Mohammed Hanif CIT [1963] 50 ITR 1 (SC) iv) Though the Assessing Officers, often, acts on confirmatory letters as evidence, the onus does not get discharged merely by such confirmatory letters as found in CIT Vs. United Commercial and Industrial Co. (Pvt.) Ltd. (1991) 187 ITR 596 (Cal). (vi) In the case of Kama! Motors v. CIT [2003] 131 Taxman 155 (Raj.), it was held that the responsibility is on the assessee to discharge the onus that the cash creditor is a man of means to allow the cash credit. (vii) The burden to prove t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfied that the appellate authorities have not dealt with the matter properly. " (x) Delhi High Court in the case of CIT vs. Oasis Hospitalities Pvt. Ltd., 333 ITR 119 (Delhi)(201 I), that "The initial onus is upon the assessee to establish three things necessary to obviate the mischief of Section 68. Those are: (i) identity of the investors; (ii) their creditworthiness/investments; and (iii) genuineness of the transaction. Only when these three ingredients are established prima facie, the department is required to undertake further exercise." (xi) Credits in accounts claimed as advance received towards sale of shops and affidavit filed from such creditors - But none of them were produced before the Assessing Officer for authenticating their signature and explaining the contents of the affidavit - Possession of shops not handed over or money was not returned even after lapse of considerable time Addition under Section 68 upheld. (Krishan Kumar Jhamb Vs ITO & Anr (P&H) 17 DTR 249). (xii) Hon. Supreme Court in CIT v. Durga Prasad More [1971] 82 ITR 540 , at pages 545-547 made a reference to the test of human probabilities stating that "this raises the question whether the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fault with the Tribunal for not swallowing that story. If that story is found to be unbelievable as the Tribunal has found, and in our opinion rightly, then the position remains that the consideration for the sale proceeded from the assessee and, therefore, it must be assumed to be his money. It is surprising that the High Court has found fault with the Income- tax Officer for not examining the wife and the father-inlaw of the assessee for proving the department‟s case. All that we can say is that the High Court has ignored the facts of life. It is unfortunate that the High Court has taken a superficial view of the onus that lay on the department. "...Science has not yet invented any instrument to test the reliability of the evidence placed before a Court or Tribunal. Therefore, the Courts and Tribunals have to judge the evidence before them by applying the test of human probabilities. Human minds may differ as to the reliability of a piece of evidence. But, in that sphere, the decision of the final fact-finding authority is made conclusive by law." (p. 545) (xiii) In Som Nath Maini v. CIT [2008] 306 ITR 414 (Punj. & Har.) the assessee in his return declared loss from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are over. If on verification, the AO cannot contact the share applicants, or the information becomes unverifiable, the onus shifts back to the assessee. At that stage, if it falters, the consequence may well be an addition u/s 68 (xvi) In Shankar Ghosh v ITO [1985] 23 TTJ (Cal.) 20 the assessee failed to prove the capacity of the person from whom he had allegedly taken loan. Further the assessee could not explain the need for the loan and the manner in which the loan amount was spent. The creditor issued two letters demanding repayment but did nothing on non compliance therewith.- such letters did not therefore carry any conviction about the explanation of the assessee. Loan amount was rightly held as assessee‟s own undisclosed income. (xvii) In the case of Sumati Dayal 214 ITR 801(SC) it has been held that, where any sum is found credited in the books of the assessee for any previous year, the same may be charged to income-tax as the income of the assessee of that previous year if the explanation offered by the assessee about the nature and source thereof is, in the opinion of the Assessing Officer, not satisfactory. In such case there is prima facie evidence against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en amount merely for the purpose of making the returned income into a round figure.) as per following discussion for each creditor: (i) Brahmanand Sharma: He is real brother of assessee. Gift of Rs. 1 lac was shown from him. He could not be produced for examination as he had expired. (ii) Smt. She is sister of assessee. She was not produced for examination considering her age and family traditions. Gift of Rs. 1 lac had been claimed to have been received from her. In these two cases the AO has held that the gifts are not proved on account of non production of these persons. He has however made addition of Rs, 150000 holding that the Rs. 50000 could be considered explained as regards source. Such action of AO is not justified. Once the transaction is held to be not proved, no part relief can be given on .account of creditworthiness. Therefore the addition is enhanced to Rs. 2Iac. (iii) Jairam Nagar: Rs. 10 lac were shown to have been received against purchase of land by him from the assessee. From his statement the AO has found that there is gap between the date of amount having been given by Jairam Nagar and deposit in bank account of assessee. Shri Jairam has not sold any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not proved and addition of Rs. 50000 is justified and upheld. (vi) Likhi Ram Sharma: The facts are similar to that of Bal kishan. He too has claimed to have given gift on occasion of marriage anniversary after taking a loan of Rs. 25000 from his brother in law. Once the gift is not proved, making addition of Rs. 75000 only and not full amount of Rs. 100000/- is not justified. In facts and circumstances of the case addition is enhanced to Rs. 100000. (vii) Dhaneshwar Sharma: He has claimed to have given loan of received back. The fact is that the said loan is claimed to have been given in cash and there is no proper source of funds. The claim has been rightly rejected by the assessing Officer. The addition of Rs. 100000 is confirmed. 7.5 In facts and circumstances of the case and legal position as above as applicable to these facts, applying above judgements and the test of human probability as propounded in cases of Durga Prasad, Sumati Dayal and Som Nath Maini v. CIT (Supra), it is held that the assessee has failed to discharge the onus cast upon him u/s 68 and has thus failed to prove the genuineness of the transaction and the creditworthiness of the creditors. The groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show the names of the witness to the sale agreement, shows that assessee has failed to show the creditworthiness of the depositors against sale of land as well as of the gift. In view of this we do not find any infirmity in the order of the learned assessing officer in making the addition u/s 68 of the income tax act to the extent of INR 1,975,000 out of the total cash deposit of Rs. 24.50 Lacs in the bank account of the assessee. In view of this ground No. 1 of the appeal of the assessee is dismissed. 20. Coming to ground No. 3 of the appeal with respect to the addition of Rs. 22365/- on account of bank interest the learned Assessing Officer has noted in paragraph No. 2 of the assessment order that assessee has a savings bank interest income which is chargeable to tax under that income from other sources. No arguments were advanced by the assessee on this ground of appeal. We also do not find any infirmity in making the addition in the hands of the assessee as assessee has earned net bank interest of Rs. 22365/-. Accordingly ground No. 3 of the appeal of the assessee is dismissed. 21. Accordingly appeal of the assessee is partly allowed. Order pronounced in the open court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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