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TMI Blog2021 (7) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... ven the money to the assessee which not disproved by the authority. The Assessing officer has not found any contradiction in the affidavits, statements and agreements etc. The assessee has also proved, identity (not denied by the AO), genuineness which the ld. AO not disputed, Capacity has also been proved by the assessee by filling various material evidences as above and has not been doubted as he did not speak a single word on the capacity of the donor. The persons fully explained the sources of gift given by him with the material evidences We are of the view that the assessee has proved the source of source of deposit in his savings bank account, therefore, we direct the A.O. to delete the addition made qua this issue. - Decided in favour of assessee. - ITA No. 173/JP/2019 - - - Dated:- 30-6-2021 - Shri Sandeep Gosain, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri Shravan Kr. Gupta (Adv) For the Revenue : Smt. Monisha Choudhary(Addl.CIT) ORDER PER: SANDEEP GOSAIN, J.M. This is the appeal filed by the assessee against the order of the ld. CIT(A)-3, Jaipur dated 23/01/2019 for the A.Y. 2014-15. The grounds taken by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice u/s 148 of the Act, the assessee has filed his return of income on 17.07.2017 declaring total income of ₹ 1,93,250/-. During the course of assessment proceedings, the Assessing Officer asked the assessee to explain the immediate source of cash deposit of ₹ 26 lakhs. In response thereto the assessee submitted that the cash deposit was only of ₹ 13.00 lakhs not of ₹ 26.00, in support of which, the assessee filed bank statement which has not been denied by the Assessing Officer. Regarding this cash deposits assessee stated that he had received cash gift of ₹ 13,00,000/- from his father Sh. Chhotu Ram Yadav. Thereafter, Assessing Officer asked the assessee to furnish the evidence of creditworthiness of the Sh. Chhotu Ram Yadav, father of the assessee, for making such gift and also for Gift deed and also asked to produce Sh. Chhotu Ram Yadav in person for examination. In response to the query of the Assessing Officer, assessee filed an affidavit of Sh. Chhotu Ram Yadav on dated 31.08.2017, which is placed at PB 13-15 regarding the Gift made by him to the assessee. Wherein he has stated that he has sold his agriculture land on 25.07.2013 and out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein the ld. CIT(A) has stated that (i) the affidavit filed by his father was without any date also not mentioned the amount of sale consideration of land and in the affidavit (ii) in the sale deed dated 21.08.2013 the sale consideration was mentioned of ₹ 4,85,651/- from the Ram Sahay and there was no mentioned of the sale of agreement dated 25.07.2013, whereas the sale agreement was made in the name of Sh. Kailash Chand Saini and sale deed in the name of Sh. Ram Sahay. That is why sale agreement is not reliable. 5. Now the assessee is in appeal before the ITAT on the grounds mentioned above. The ld AR appearing on behalf of the assessee has reiterated the same arguments as were raised before the ld. CIT(A) and also relied upon the written submissions filed before the Bench and the same is reproduced below: 1. Correct facts and surrounding circumstances: 1.1 At the very outset it is submitted that correct facts which either not considered by the lower authorities or if considered ignored the same despite available before them. As the appellant-assessee is belongs to a very rural area a small dhani in Srimadhopur Tehsil District Sikar and not much liter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sh. Chhoturam Yadav on 31.08.2017(PB16-18). In the statement Sh. Chooturam Yadav has clearly stated all the real facts as in Ans to Q-6 that he had given ₹ 13.00 lakhs in cash to his son Sh. Kailash Chand Yadav in July 2013 as gift (PB17). In Ans to Q7 his explained the source of cash gift of ₹ 13.00 that he has sold his 4 bhiga Agriculture land about of ₹ 20.00 lakhs out of which he has given ₹ 13.00 to his son as gift. In Ans to Q 8 regarding the document of Gift he has stated that I am farmer not much literate and don t know about the written documents but regarding of gift I am giving my Affidavit on stamp of ₹ 100/-. In Ans to Q-9 regarding the difference between Sale consideration of ₹ 20.00 lakhs and consideration of ₹ 4,85,651/- mentioned in the sale deed. Sh. Chhoturam has clearly stated that it is correct that the sale consideration of ₹ 4,85,651/- is mentioned in the sale deed but I have received about ₹ 20.00 Lakhs against this land sold. In Ans to Q-10 regarding the sale agreement with Sh. Kailash Chand Saini and Sale deed registered in the name of Sh. Ram Sahai Saini, Sh. Chhoturam clearly state that Sh. Kailsa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement dt. 25.07.2013 bank statement of the assessee and also by the affidavit of his father and statements of his father. The lower authorities have denied various vital evidences as two sale agreements dt. 25.06.2013, 25.07.2013, affidavit, statements of father recorded by the ld. AO himself, which cannot be said self serving evidences and the ld. AO nowhere found any contradiction in these evidences. He has only relied the sale deed get executed by the purchaser in the name of his father. The ld. AO could have issued the summon to his father but he did not do so. These vital evidences and details cannot be ignored where there is no any material and evidences to rebut the same. And the lower authorities have not rebutted the same by any of material and evidences. There is no evidence on record that the assessee has received the said ₹ 13.00 cash from any other source than to this sale consideration/gift. 4. Further the contention made in the letter of affidavit should be accepted as truth unless rebutted. Because these affidavits have not been rebutted by lower authority by bring any contrary evidence or without examining. It is very settled legal position that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In light of the above, it can be concluded that an affidavit is a document of extreme importance and value. Although, it can be signed by Principal Officers as well as their authorized representatives, it is expected that it is signed only by persons who are fully aware of the facts and circumstances of the case. Affidavit is treated as evidence within the meaning of Section 3 of The Evidence Act. In the case of Prashant Vs. Muncipal Council Bhadravat AIR 2009 BOM 144 it has been held The provisions of Civil Manual, Chapter XXVI, para 506 read thus - 506. The person who may administer oaths to deponents must be duly authorised under Section 139 of the Civil Procedure Code to do so. It would thus mean that the persons who may administer oath to the deponents are to be the persons who are authorized under Section 139 of C.P.C. to do so. Therefore, the result is obvious that the Notaries are authorized to administer oath to the deponents.11 The affidavits which are to be under the Code, can be sworn by on administering the oath to the deponents by any Notary appointed under the Notaries Act and under Order 18, Rule 4 of the C.P.C., there is no bar requiring to exclude the affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the settled legal position that no addition can be the basis of suspicion, assumptions and presumption. An allegation remains a mere allegation unless proved. Suspicion may be strong however cannot take the place of reality, are the settled principleskindly refer Dhakeshwari Cotton Mills 26 ITR 775 (SC) also refer R.B.N.J. Naidu v/s CIT 29 ITR 194 (Nag), Kanpur Steel Co. Ltd. v/s CIT 32 ITR 56 (All).Also refer CIT v/s KulwantRai 291 ITR 36( Del). In CIT v/s Shalimar Buildwell Pvt Ltd 86 CCH 250(All) it has been held that the AO made the addition merely on suspicion which was not desirable in the eye of law. 9. No provisions has been applied by the ld. AO: The ld. AO made the addition on account of undisclosed income from other sources but he has not invoked or applied any provisions of law. The ld. AO has not stated under what provision of law he has made addition whether, under business or trading income as assessee do trading of milk, or u/s 56 or u/s 68 or 69. Thus the addition so made without any provision of is also against the law and liable to be deleted on this ground alone 10. Here we would like to submit that while doing a judicious act by a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he gift given to the assessee with various evidences. Despite these the ld.AO has proceeded only on assumption, presumptions and suspicion. An allegation remains a mere allegation unless proved. Suspicion cannot take the place of reality, are the settled principles. He relied on the following case laws: i. Dhakeshwari Cotton Mills 26 ITR 775 (SC) ii. R.B.N.J. Naidu v/s CIT 29 ITR 194 (Nag), iii. Kanpur Steel Co. Ltd. v/s CIT 32 ITR 56 (All). iv. Labhchand Bohra V/s ITO (2008) 8 DTR 44 (Raj.) v. Kanhaialal Jangid vs. ACIT (2008) 8 DTR 38 (RAJ.), (217 CTR 354) vi. Aravali Trading Co. v/s ITO 8 DTR 199 vii. CIT V/S Abdul Aziz 72 DTR 216(Chhattisgarh) viii. Commissioner of Income Tax-I Vs. M/s. ARL Infratech, Ltd., (D.B. Income Tax Appeal No. 24/2014) decided on 28.09.2016 (Raj.) ix. Muralidhar Lahoriaml v/s CIT 280 ITR 512(Guj.) With regard to reopening of the case, the ld. AR has submitted that the reasons recorded itself was wrong, incorrect and without material on record at the time of recording of reasons. Because in the reasons recorded the ld. AO mentioned that as per information during the F.Y. 2013-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sh. Kailash Chand Yadav. Further the ld. AR has also submitted that that for sale of agriculture land Sh. Chhoturam has executed an agreement with Sh. Kailash Chand Saini S/o Sh. Ram Sahay Saini on 25.06.2013, in which it is clearly mentioned the rate of ₹ 5,11,000/- per bhigha for 4 bhiga agriculture land and he has received advance of ₹ 5,11,000/- and decided to get the registry on 25.07.2013 on the stamp and duly notarized with witness and decided to give the rest amount on 25.07.2013, copy of the same has been placed at PB19-21. However, when on 25.07.2013 the registry could not be executed due to some strike in registry office, both the party has again executed an sale agreement on 25.07.2013 because on 25.07.2013 the purchaser had given the rest due amount of ₹ 15,23,000/- to Sh. Chhhoturam Yadav and Sh. Chhoturam Yadav had given the physical possession of the land to the purchaser on 25.07.2013, copy of which is placed at PB-22-24, hence it was necessary to make a new agreement for both the parties and there was no difference regarding the contents and terms and condition of the both the agreements. Except some later development as receiving whole sale cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bogus and when the donor itself has been examined by the Assessing Officer. When the Assessing officer himself stated that the summon issued to Sh. Kailash Chand Saini has return with the remark Unclaimed , Which shows that Sh. Kailash Chand Saini did not took the said summon with the malafide intention to avoid his presence, by one or other reasons, in which there was no default of the assessee or which was not in the hands of the assessee, the true transaction supported with the evidences cannot be denied in absence of any other contrary evidences on record. Thus the Assessing Officer could not revert facts of date of cash deposits on 27.07.2013 in the bank account which was supported by the sale agreement dated 25.07.2013, bank statement of the assessee and also by the affidavit of his father and statements of his father. The lower authorities have not stated that these documents are after thought and after the date of deposits. The assessee has furnished various evidences as two sale agreements dated 25.06.2013 and 25.07.2013 respectively, affidavit, statements of father recorded by the AO. All these cannot be said self-serving evidences and the AO nowhere found any contradic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by him from any other source-Deposition of witness of sale deed, Bank Manager and evidence filed with regard to valuation of property was more than sufficient to prove assessee s stand-Also, in case of one of purchaser, AO had made an addition on substantial basis, as his income-AO had not given any reasons to discard statement of witnesses, deposit of entire sale consideration in bank and deposition of Bank Manager-Revenue s appeal dismissed We also draw strength from the decision in the case of Daulat Ram Rawat Mal 87 ITR 349 (SC), CIT v/s Bedi Co. P Ltd 230 ITR 580 (SC). The assessee has also proved, identity (not denied by the AO), genuineness which the ld. AO not disputed, Capacity has also been proved by the assessee by filling various material evidences as above and has not been doubted as he did not speak a single word on the capacity of the donor. The persons fully explained the sources of gift given by him with the material evidences. As A/R also submitted that Sh. Chhoturam is also having income from other sources, agriculture etc as he was 55 years old farmer. Thus when the Assessing Officer himself recorded the statement of the person thus, duly discharged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and only because their applications have a PAN number and the payment through cheque with credit worthiness and their worth was not examined. The Assessing Officer while considering the same has relied upon the inspector report. However, the same was not allowed to be cross-examined by the assessee. 5. Taking into consideration the aforesaid facts, the Tribunal in para 2.6, observed as under:- Adverting, the facts of the given case, we are of the considered opinion that all the share applicants stand identified. The assessee has provided PANs of the share applicants. The mode of payment has also been made explained. There is no direct or indirect relation between the assessee company and the share applicants. The statements recorded during survey has got no evidentiary value and the law is very much settled on this issue. In any case, even under the provisions of Section 68 of the Act, the assessee cannot be forced to prove the source of the source. The law on this subject is also settled by numerous decisions. The alleged report of the Inspector of the Department who is stated to have visited at the given addresses of the share applicants was never put or confront ..... X X X X Extracts X X X X X X X X Extracts X X X X
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