9911796707
TMI Blog2024 (8) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... by the A.O. Therefore, the averments contained in duly sworn affidavit are to be accepted as a correct unless the same are rebutted by the evidence. On this proposition, we found support from the decision of Mehta Parikh Company [ 1956 (5) TMI 4 - SUPREME COURT] , Dr. Prakash Rathi [ 2005 (10) TMI 252 - ITAT JODHPUR] , Labh Chand Bohra[ 2008 (4) TMI 731 - RAJASTHAN HIGH COURT] , Shrikumar [ 2008 (4) TMI 731 - RAJASTHAN HIGH COURT] and Union of India Vs Kamalaxmi Finance Corporation [ 1991 (9) TMI 72 - SUPREME COURT] Thus, we are of the considered view that the addition made by the ld. AO in the case of the assessee is directed to be deleted - Decided in favour of assessee. - Dr. S. Seethalakshmi, Judicial Member And Shri Rathod Kamlesh Jayantbhai, Accountant Member For the Appellant : Sh. Rajesh Goyal, CA For the Respondent : Sh. A. S. Nehra, Sr. DR ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 23/05/2023 [here in after NFAC ] for assessment year 2016-17 which in turn arise from the order dated 15.11.2018 passed under section 143(3) of the Income Tax Act, by ITO, Ward-2, Hmnga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agricultural income shown and assessed to be income chargeable to tax of other sources and was liable to tax. 3 In the fact and circumstances addition of Rs. 15.50 Lac being difference between Rs. 25.50 Lac shown as agri. income and that assessed to be income chargeable under section 69. 4 In the facts and circumstances CIT (A) was not justified to sustain interest charged under sections 234A, 234B and 234C. 4. Succinctly, the fact as culled out from the records is that assessee was deriving income exclusively from agriculture activities including sale of milk obtained from livestock of cows / buffalo kept in the field, khet and also in receipt of small income of interest on savings. Return of income was voluntarily filed as necessary for obtaining housing loan from the bank wherein income from sale of milk and its products at Rs. 2,25,000/- and income of Rs. 25.50 Lac from agriculture was shown. Large agricultural income was the reasons for selecting the case for limited scrutiny. The assessee explained and contended that showing large agricultural income of Rs. 25.50 Lac was due to innocent mistake in taking gross amount instead of net income, occurred on the part of the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment proceedings, it has been stated by the appellant that the gross income earned by the appellant during the year under consideration was Rs. 25.50 lakhs and the net income was around Rs. 10-12 lakhs. However, the documentary evidences in support of expenditure stated to be incurred to arrive net agricultural income were not submitted by the appellant. During the course of assessment proceedings also in the letter submitted before the assessing officer dated 23.10.2018, he stated that he was unable to produce / furnish the expenses of Electricity, Khad, Pesticides, labour etc or income, in the absence of accounts / details / records that were not maintained by the appellant. 6.7 In the submissions the appellant stated that he was holding land in his name, in the name of his family members and also taken lands from other persons on theka / batai. However, the appellant failed to submit documents in support of his contention that the appellant and his family members holding lands in addition to the supporting documentary evidences in support of land taken from other persons on theka / batai. 6.8 In view of the above, in the absence of documentary evidence in support of the content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g differential amount of Agricultural income shown and assessed to be income chargeable to tax of other sources and was liable to tax. Ground No.3 - In the fact and circumstances addition of Rs. 15.50 Lac being difference between Rs. 25.50 Lac shown as agri. income and that assessed to be income chargeable under section 69. Ground No.4 - In the facts and circumstances CIT(A) was not justified to sustain interest charged under sections 234A, 234B and 234C. Aforesaid grounds involve common issue against addition of Rs. 15.50 Lakhs made u/s 69 for the difference between agriculture income of Rs. 10 Lakhs accepted by AO and Rs. 25.50 Lakhs shown in the Return of Income which was chargeable to tax as income from other sources which was sustained by the CIT(A) NFAC without proper appreciation of salient facts and circumstances as detailed below: 1. Appellant enjoying mainly income from agriculture and its incidental job of selling milk and etc. has owned 46 Bigha irrigated agriculture lands at different nearby sites for which relevant documents were furnished during assessment. 2. The appellant, apart from its own lands, also used to cultivate the lands of other farmers taken on Theka / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as signed in a formal, casual and routine manner moreover it was mandatorily required to be signed by the assessee itself. (b) The assessee did not rectify the return of income was explained by reference to the legal provisions of section 139(5) of I. T. Act allowing to revise Return of Income which were filed within due date prescribed u/s 139(1) whereas Return of Income in instant case was filed late after expiry of due date moreover impugned mistake had come to notice only when instant case was being prepared for presentation during its hearing. (c) If the case was not picked for scrutiny under CASS the assessee would get capital of Rs. 25.50 Lac on account of agriculture income and the same would be used by the assessee in the coming years were sheer arbitrary hypothetical presumptions which was contrary to categorical averments in Para 6 of its Affidavit dated 15.02.2018 (Annexure-2) denying to have made investment in any moveable and immoveable properties by any of its family members during earlier two years and in coming years duly corroborated by details in all his bank accounts and on the other hand no cogent material or evidence showing Rs. 15.50 Lac either Capital or Inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss or Profession . (a) Addition of Rs. 15.50 Lakhs under section 69 was against its specific provisions itself because of assessee s contentions discussed in aforesaid clause (i) addition u/s 69 was made on basis of hypothetical assumption without cogent material showing utilization in actual investment or deposits etc. or its requirement, further phraseology of AO s observations to take income from agriculture at Rs. 10 Lakhs and to consider remaining agricultural income of Rs. 15.50 Lakhs, itself indicated that remaining amount being agriculture income was gross income. The appellant submits that the CIT(A) NFAC focusing on aforesaid contentions of the AO in para 7.2 and non-furnishing of evidence in respect of agricultural expenditure of Rs. 15.50 Lakhs and the lands taken from other persons on Theka / Batai, in para 7.3 had observed in its order that the assessee was not sure about the exact net income from agriculture even at the time of appeal proceedings and had always stated it to be Rs. 10 - 12 Lakhs however the CIT(A) NFAC had nowhere controvert contentions / explanations / averments in the affidavit of the appellant and had wrongly observed about non-furnishing of docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence vehemently argued that when the assessee has declared in the affidavit that he has no other source except the agricultural activity this fact declared by the assessee by way of affidavit is not rebutted. The content of the affidavit dated 15.02.2018 ( date of order is 15.11.2018) upon which the emphasis was supplied is extracted here in below: 9. Per contra, the ld. DR is also heard who has relied on the findings of the lower authorities. The ld. DR also opposed that the assessee has submitted the additional evidence in the form of land records and another affidavit of the person whose land is exploited by the assessee on sharing basis. These documents placed before the bench were never before the lower authority and therefore, the matter be set a side to the file of the ld. AO for verification of these additional evidence. Even the assessee has not separately moved an application for admission of these additional evidence. 10. We have heard the rival contentions and perused the material placed on record. The bench noted that the assessee derives income exclusively from agriculture activities including sale of milk obtained from livestock of cows / buffalo kept in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ld. AO though the ld. DR at the time of hearing of this appeal did not dispute the content of the affidavit dated 15.02.2018 wherein the assessee claimed that he has only source of agricultural activity and he has not invested or expended the alleged amount. Since this fact is not being disputed and the assessee was never cross examined by the A.O. Therefore, the averments contained in duly sworn affidavit are to be accepted as a correct unless the same are rebutted by the evidence. On this proposition, we found support from the decision of Hon ble Supreme Court in the case of Mehta Parikh Company Vs CIT 30 ITR, 181 (SC), Dr. Prakash Rathi Vs ITO 36 TW 1 (Jodh ITAT), ITO Vs Doctor Tej Gopal Bhatnagar 20 TW 368 (Jodh ITAT), Labh Chand Bohra Vs ITO 219 CTR 571 (Raj), Shrikumar Vs ITO 36 TTJ 538, Smt. Savitri Devi Vs ITO 11 ITD 422 Delhi, CTO Vs Kewal Ram Sumnomal Cavanduspur 92 STC 629 (Raj), ITO Vs Vardhaman Industries 99 TTJ 509 (Jodh ITAT), ACTO Vs Kishore Shyam Brajesh Kumar 93 STC 213 (Raj), Indo Malwa United Mill Limiked Vs State of MP 60 ITR 41 (SC), Late Mangilal Agarwal Vs ACIT 208 CTR 159 (Raj), CIT Vs Daulat Ram Rawat Mull 87 ITR 349 and Union of India Vs Kamalaxmi F ..... X X X X Extracts X X X X X X X X Extracts X X X X
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