RADHEY RAM GODARA, Jaipur v. ITO, Jaipur

ITA 349/JPR/2016 | 2008-2009
Pronouncement Date: 29-11-2017 | Result: Partly Allowed

Appeal Details

RSA Number 34923114 RSA 2016
Assessee PAN ASJPG1986E
Bench Jaipur
Appeal Number ITA 349/JPR/2016
Duration Of Justice 1 year(s) 7 month(s) 20 day(s)
Appellant RADHEY RAM GODARA, Jaipur
Respondent ITO, Jaipur
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Partly Allowed
Bench Allotted Not Allotted
Tribunal Order Date 29-11-2017
Assessment Year 2008-2009
Appeal Filed On 08-04-2016
Judgment Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCHES JAIPUR JH HKKXPUN] YS[KK LNL; O JH DQY HKKJR] U;KF;D LN L; DS LE{K BEFORE: SHRI BHAGCHAND AM & SHRI KUL BHAR AT JM VK;DJ VIHY LA-@ ITA NO. 349/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI RADHEY RAM GODARA 361 JAMBESHWAR NAGAR QUEENS ROAD JPJR CUKE VS. THE ITO WARD- 3 (5) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ASJPG 1986 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SHRAWAN KUMAR GUPTA ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY: SHRI R.A. VERMA ADDL.CIT -DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 26/10/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 29/11/2017 VKNS'K@ ORDER PER BHAGCHAND AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)- I JAIPUR DATED 04-02-2016 FOR THE ASSESSME NT YEAR 2008-09 RAISING THEREIN FOLLOWING GROUNDS OF APPEAL. 1. THAT THE IMPUGNED ASSESSMENT ORDER U/S 143(3)/ 250/SET ASIDE DATED 14-03-2014 IS BAD IN LAW AND ON FACTS OF THE CASE FOR WANT OF JURISDICTION AND FOR VARIOUS OTHER REASONS AND HENC E THE SAME MAY KINDLY BE QUASHED. 2. RS.17 89 302/-: THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE ESTIMATING THE AGRICULT URE INCOME OF RS. 19 61 198/- AS AGAINST RS. 37 50 500/- DECLARED BY THE ASSESSEE AND THEREBY ERRED IN SUSTAINING THE ADDITION AT RS. 17 89 302/- BY TREATING ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 2 THE AGRICULTURE INCOME AS INCOME FROM OTHER SOURCES DESPITE THE EVIDENCES AVAILABLE ON RECORD. HENCE THE TREATMENT SO GIVEN BY THE AO AND ADDITION SO MADE BY THE AO AND PARTLY CONFIR MED BY THE LD. CIT(A) IS BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE AO MAY KINDLY BE DIRECTED TO TREAT ALL THE INCOME AS AGRICULTURE INCOME AS NOT INCOME FROM OTH ER SOURCES AND RESULTANT ADDITION MAY KINDLY BE DELETED IN FULL. 3.1 RS.99 06 000/-: THE LD. CIT(A) HAS GROSSLY ERRE D IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE ADDIT ION OF RS. 99 06 000/- ON ACCOUNT OF DEPOSIT IN HIS BANK ACCOUNT BY CHEQUE FROM VARIOUS PERSONS (I.E. RS. 47 03 000/- FROM SHRI SATISH/MADH U SHARMA RS. 35 00 000/- FROM SHRI MAHAVEER PRASAD RS. 2 03 000 /- FROM SHRI VIJAY CHAR AND RS. 15 00 000/-FROM SHRI SURJEET SINGH) WI THOUT CONSIDERING OR APPRECIATION OUR WRITTEN SUBMISSION AND EVIDENC ES AVAILABLE ON RECORD. HENCE THE ADDITION SO MADE BY THE AO AND CO NFIRMED BY THE LD. CIT(A) IS BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FATS ON THE RECORD AND HENCE THE SAME MAY KINDLY BE DELETED IN FULL. 3.2 THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN NOT ADMITTING THE ADDITIONAL EVIDENC ES. HENCE THE ADDITIONAL EVIDENCES SO NOT ADMITTED BY THE LD. CIT (A) IS BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE SAME MAY KINDLY BE CONSIDERED. 4. ALTERNATIVELY AND WITHOUT PREJUDICE TO ABOVE IT IS SUBMITTED THAT IF THE ADDITION ON ACCOUNT OF AGRICULTURE INCO ME IS SUSTAINED OR NOT THEN THE SET OFF OF THE SAME MAY KINDLY BE GIVEN AG AINST THE ADDITION ON ACCOUNT OF DEPOSIT IN THE BANK ACCOUNT IF ANY SUSTA INED. 5. THE AO ERRED IN LAW AS WELL AS ON THE FACTS OF T HE CASE IN CHARGING INTEREST U/S 234A & 234B. THE APPELLANT TO TALLY DENIES ITS LIABILITY OF CHARGING OF ANY SUCH INTEREST. HENCE THE INTEREST SO CHARGED BEING CONTRARY TO THE PROVISIONS OF LAW AN D FACTS MAY KINDLY BE DELETED IN FULL. 2.1 APROPOS GROUND NO. 1 OF THE ASSESSEE THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 3.1.2 I HAVE DULY CONSIDERED THE SUBMISSIONS OF T HE APPELLANT ASSESSMENT ORDER AND THE MATERIAL PLACED ON RECORD. VIDE ITS ORDER DATED 18- 10-2012 THE HON'BLE ITAT JAIPUR SET ASIDE THE MATT ER TO THE FILE OF THE AO FOR MAKING FRESH ASSESSMENT. IT WAS THE CONTENTION OF T HE APPELLANT THAT NO PROPER ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 3 OPPORTUNITY OF BEING HEARD WAS GIVEN TO IT BY THE A O WHILE FRAMING THE INSTANT ASSESSMENT ORDER UNDER CONSIDERATION. IT IS NOTED F ROM THE ASSESSMENT ORDER THAT NOTICES U/S 143(2)/ 142(1) WERE ISSUED BY THE AO ON 22-01-2014 REQUIRING THE APPELLANT TO FURNISH CERTAIN DETAILS AND TO PRO DUCE SOME PERSONS ON 4-02- 2014. THE WRITTEN SUBMISSIONS WERE FURNISHED BEFORE THE AO ON 03-02-2014 AND IT APPEARS THAT THE CASE WAS ADJOURNED FOR 12-0 2-2014 AND AGAIN FOR 19-02- 2014 AND FINALLY THE ASSESSMENT WAS COMPLETED ON 14 -03-2014. THUS IT IS EVIDENT THAT SUFFICIENT OPPORTUNITIES WERE PROVIDED BY THE AO TO THE APPELLANT TO EXPLAIN ITS CASE. HENCE THE CONTENTION OF THE A PPELLANT THAT NO PROPER OPPORTUNITY WAS PROVIDED BY THE AO IS WITHOUT ANY M ERIT AND DESERVES TO BE REJECTED. 2.2 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS OBSERVED THAT IN THE PR ESENT CASE THE ORIGINAL ASSESSMENT WAS COMPLETED ON 20.12.2010 WHICH REACH ED BEFORE THE ITAT JAIPUR BENCH JAIPUR AND THE ITAT JAIPUR BE NCH HAS RESTORED THE MATTER TO THE FILE OF THE AO VIDE ORDER DATED 18-10 -2012 IN ITA NO. 372/JP/2012 (PB126) WITH FOLLOWING OBSERVATION 3.12. WE THEREFORE KEEPING IN VIEW THE CONTRA RY STAND AND IN THE ABSENCE OF RELEVANT FACTS ON RECORD DEEM IT PRO PER TO SET-ASIDE THE IMPUGNED ORDER ON THESE ISSUE AND REMAND THE SAME T O THE FILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW AFTER PRO VIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN PURSUANT THERETO THE AO HAS ISSUED NOTICE ON 22.01.2014 AND PASSED ASSESSMENT ORDER ON 14.03.2014 (PAGE 2 OF ASTT. ORD ER). THE LD.AR OF THE ASSESSEE HAS DRAWN OUR ATTENTION THAT WHILE PASSIN G ASSESSMENT ORDER THE AO HAS NOT ISSUED THE DEMAND NOTICE U/S 156 ITNS 1 50 PENALTY NOTICE U/S 274 R.W.S. 271OF THE ACT FOR THE YEAR UNDER CO NSIDERATION I.E FOR ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 4 A.Y.2008-09. HE HAS ISSUED THE DEMAND NOTICE U/S 15 6 ITN 150 PENALTY NOTICE U/S 274 R.W.S 271OF THE ACT FOR A.Y. 2009-1 0. IT IS FURTHER NOTED THAT IN THE REMAND REPORT REPRODUCED AT PAGE NO.5 O F CIT(A)S ORDER IT HAS BEEN INDICATED THAT THE MISTAKES HAS BEEN RECT IFIED BY THE ASSESSING OFFICER HIMSELF ON 20.06.2014 THESE MISTAKES ARE T YPING MISTAKES AND NO COGNIZANCE IS REQUIRED. IN THIS VIEW OF THE MATTER THE GROUND NO. 1 OF THE ASSESSEE IS DISMISSED. 3.1 APROPOS GROUND NO. 2 OF THE ASSESSEE THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 3.2.2 DETERMINATION (I) I HAVE CAREFULLY PERUSED THE SUBMISSION OF THE APPELLANT ASSESSMENT ORDER AND THE MATERIAL PLACED ON RECORD. IT IS NOTED FROM THE ASSESSMENT ORDER THAT THE APPELLANT DECLARED AGRICU LTURE INCOME OF RS. 37 50 000/- IN HIS RETURN OF INCOME. THE APPELLANT HAS TAKEN 57 ACRES OF LAND ON LEASE BESIDES HAVING OWN LAND. THE AO ON TH E BASIS OF REPORT OF ITO FATEHABAD COMPUTED THE TOTAL AGRICULTURE IN COME FROM THE LEASE HOLD LAND AT RS. 21 91 798/- AND DETERMINED T HE SHARE OF THE APPELLANT IN THE SAID AGRICULTURE INCOME @ 50% I.E. 10 95 899/- AND HE TREATED THE REMAINING AMOUNT OF RS. 26 54 601/- OUT OF THE DECLARED AGRICULTURE INCOME OF RS. 37 50 500/- AS INCOME F ROM OTHER SOURCES. (II) DURING APPELLATE PROCEEDINGS IT WAS THE CONTE NTION OF THE APPELLANT THAT ITS SHARE IN THE AGRICULTURE INCOME FROM LEASE HOLD LAND WAS 2/3 RD AND NOT AS TAKEN BY THE AO. IT WAS SUBMITTED BY THE APPELLANT THAT ISSUE UNDER CONSIDERATION IS COVERED BY THE DECISION OF LD. CIT(A) IN THE CASE OF THE APPELLANT ITSELF FOR THE SUBSEQUENT ASSESSMENT YEAR I.E. 2009-10 VIDE ORDER DATED 27-03 -2014 THE LD. CIT(A)-1 JAIPUR HAS CONSIDERED 2/3 RD SHARE OF TOTAL AGRICULTURE INCOME FROM LEASEHOLD LANDS IN THE HANDS OF THE APPELLANT. AS THE FACTS OF THE CASE REMAINS THE SAME THEREFORE FOLLOWING THE PRI NCIPLE OF ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 5 CONSISTENCY IT IS HELD THAT THE APPELLANT SHARE IN THE AGRICULTURE INCOME FROM LEASEHOLD LANDS IS 2/3 RD AND NOT AS DETERMINED BY THE AO. THEREFORE THE AGRICULTURE INCOME OF THE APPELLANT IS DETERMINED AT RS. 14 61 198/- (BEING 2/3 RD OF RS. 21 91 798/-). (III) IT IS NOTED FROM THE ABOVE ORDER OF LD. CIT(A ) THAT FOR THE ASSESSMENT YEAR 2009-10 THE LD. CIT(A) AFTER CONSI DERING THE OVERALL FACTS OF THE CASE ESTIMATED THE INCOME FROM FODDER AT RS. 5 50 000/-. AS THE FACTS REMAINS THE SAME AND FOLLOWING THE PRI NCIPLE OF CONSISTENCY THE INCOME FROM FODDER IS ESTIMATED AT RS. 5 00 000/- FOR THE YEAR UNDER CONSIDERATION. IN VIEW OF THE ABOVE DISCUSSION THE TOTAL AGRICULTURAL INCOME OF THE APPELLANT IS ESTIMATED A T RS. 19 61 198/-. THE REST OF THE INCOME SHALL BE TREATED AS INCOME FROM OTHER SOURCES AND TAXED ACCORDINGLY. THE APPEAL ON THIS GROUND IS ACCORDINGLY PARTLY ALLOWED. 3.2 DURING THE COURSE OF HEARING THE LD.AR OF THE ASSESSEE PRAYED FOR DELETION OF ADDITION FOR WHICH THE LD.AR OF THE ASS ESSEE FILED THE FOLLOWING WRITTEN SUBMISSION. SUBMISSIONS: 1. FIRSTLY IT IS SUBMITTED THAT NOW THERE IS NO ANY D ISPUTE REMAINED REGARDING THE LAND HOLDING BY THE ASSESSEE AS WELL AS LAND TAKEN ON LE ASE AND AGRICULTURE ACTIVITY CARRIED ON BY THE ASSESSEE ON THESE LANDS AS THE AO HIMSELF ADMITTED AFTER THE INQUIRY AND STATEMENT RECORDED BY HIM. 2.1 SECONDLY IN THE IMPUGNED ASSESSMENT ORDER THE LD. AO AND THE LD.CIT(A) BOTH HAS ONLY DISCUSSED AND ESTIMATED THE AGRICULTURE INCOME OF THE LAND TAKEN ON LEASE. HOWEVER THEY HAS NOT GIVEN ANY CREDIT OF AGRICULTURE INCOME ARISES F ROM HIS OWN LAND. WHEN THE LD. AO HIMSELF HAS ACCEPTED THE AGRICULTURE INCOME OF RS. 10 25 000/- OF THE ASSESSEE FROM HIS OWN LAND FOR A.Y. 2011-12 VIDE ASSESSMENT ORDER U/S 142(1)/143(3) DT. 19.03.2014(PB164-165) WHICH IS PASSED ONLY AFTER 5 DAYS OF THIS IMPUGNED ORDER BY THE SAM E AO BECAUSE THE LEASE OF AGRICULTURE LAND HAS BEEN FINISHED IN THE YEAR 09-10 VIDE ANS TO Q NO. 1 5 OF STATEMENT OF SH. SURENDRA SINGH (PB150) RECORDED BY THE AO HIMSELF. HENCE AS PER THE AO & C IT(A) HIMSELF THE AGRICULTURE INCOME OF THE ASSESSEE COMES TO RS.29 86 198/-(RS.19 61 198/- ESTIMATED BY THE CIT(A) FOR LEASE LAND + RS.10 25 000/- FROM OWN LAND). 2.2 THE LOWER AUTHORITY NOWHERE DISPUTED OR DISPROVED THAT THE ASSESSEE HAS NOT OWNED HIS OWN AGRICULTURE LAND. THE SAID LANDS WERE IRRIGATED AND CAPABLE FOR GIVING YIELD ARE ALSO SUPPORTED BY THE COPY OF KHASRA GIRDAWRI. THE ASSESSEE MIGHT NOT HAVE KEPT ANY EVIDENCE WHATSOEVER TO SHOW THAT ANY AGRICULTURE ACTIVITY ON THE SAID LAND WAS DONE ITS PRODUCTIVITY IS SUPPORTED BY THE DOCUMENTARY EVIDENCES OF LAND HOLD ING STATED ABOVE. THE FACTS OF SALE OF RS.37 50 500/- AVAILABLE PRESUPPOSES THE AGRICULTUR E LAND WITH THE ASSESSEE WHICH COULD ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 6 DEMONSTRATE THE AVAILABILITY OF AGRICULTURE INCOME. REFER DR. G.G. DHIR V/S ACIT 129 TTJ 1 (AGRA) . AN ALLEGATION REMAINS A MERE ALLEGATION UNLESS PRO VED. SUSPICION CANNOT TAKE THE PLACE OF REALITY ARE THE SETTLED PRINCIPLES KINDLY 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). ALL THE ADDITION DESERVE DELETION ON THIS SUBMISSI ON ALONE. THE HONBLE ITAT HAS ESTIMATED THE AGRICULTURE INCOM E OF THE ASSESSEE IN A.Y. 2009-10 AT RS.. VIDE ORDER IN ITA NO. DT FURTHER THE AGREEMENT OF CULTIVATION IS VERY IMPORT ANT IN WHICH ALL THE DETAILS ARE CLEARLY MENTIONED (PB21-24) IN THIS AGREEMENT AS TH E NATURAL FERTILIZER SEEDS SHALL BE USED THE CROPS SHALL BE SOLD IN RETAILER IN THE OPEN MARKET TO THE FOOTKAR PERSONS ETC. IN THE CASE OF KAMAL KISHORE CHANDAK V/S ITO 10 3 TTJ 843(JD) IT HAS BEEN HELD THAT THE AVERMENT OF THE AFFIDAVIT FILED IN SU PPORT OF THE AGRICULTURE INCOME REMAINED UNCONTROVERTED. THE AO WAS NOT JUSTIFIED IN MAKING ADDITION BY REJECTING A PART OF THE AGRICULTURE INCOME SIMPLY ON THE BASIS OF NON AVAIL ABILITY OF SALE VOUCHERS BECAUSE AN AGRICULTURIST IS NOT REQUIRED TO MAINTAIN ANY BOOKS OF ACCOUNT. COPIES AS OF GIRDAWARI ARE ON RECORD WHICH PROVES THAT CROPS WERE GROWN ON THE L AND BELONGING TO THE ASSESSEE. HERE THE FACTS ARE SIMILAR TO THE PRESENT CASE. ALSO REFER S.V. HARIPRASAD V/S ITO 120 TTJ 1105(BANG). WHICH IS ALSO APPLICABLE IN THE PRESENT CASE. THE ASSESSEE HAS ALSO FILED STATEMENT SHOWING TH E SITUATION OF SUCH AGRICULTURE LANDS KHASARA NUMBER CHAK NUMBER AREA IN BHIGHA (PB 56- 76). HENCE AS PER THE AO AND CIT(A) HIMSELF THE AGRICULTURE INCOME OF THE ASSESSEE COME S TO RS.29 86 198/- AS STATED ABOVE. HENCE THE ADDITION REMAINS ONLY OF RS. 7 63 802/-. FOR WH ICH OUR SUBMISSIONS ARE AS UNDER. 3.1 NOW THE DISPUTE IS REMAINED ONLY ABOUT THE ESTIMAT ION OF AGRICULTURE YIELD RATE AND INCOME. IN THIS REGARD IT IS SUBMITTED THAT THERE W ERE TWO TYPE OF REPORT WERE AVAILABLE ON THE RECORD. ONE BY ITO FATEHBAD WHO SEND THE REPORT ON THE BASIS OF INSPECTOR REPORT WHO IS NOT A TECHNICAL PERSON. SECOND BY THE AGRICULTURE DEPARTM ENT AND MARKET WHO ARE THE TECHNICAL PERSON AND AUTHENTIC. 3.2 FIRSTLY WE WOULD LIKE TO DRAW YOUR KIND ATTENTION TOWARD THE REPORT OF THE INSPECTOR FATEHBAD. THE INSPECTOR IN HIS REPORT AT PARA LAST ON PAGE NO. 1 (PB162) STATED THAT AS PER MY PERSONAL EXPERIENCE AND AFTER LOOKING AROUND I FOUN D THAT HERE THE LAND IS FERTILE THE WATER IN FULL FOR IRRIGATION THE IRRIGATION IS DONE BY CANAL AND TUBEWELL BOTH CROP OF WHEAT THERE IS IN VERY GOOD POSITION THERE IS ALSO THE GARDEN OF GUVAVAS WHERE THE FRUIT (GUAVA) ARE IN VERY GOOD QUANTITY. 3.3. ON THE VERY SAME PAGE(PB162) THE INSPECTOR HAS REP ORTED THAT SH. SARDAR SINGH S/O SH. BHAJAN SINGH THIS TIME HAS TAKEN 33 ACRE LAND EXCEPT OR THERE APART TO GARDEN(GUVAVA GARDEN) AT THE RATE OF 51 000/- PER ACRE ON CONTRACT. IT M EANS THIS PERSON HAS NOT TAKEN THE GUAVA GARDEN ON CONTRACT HE HAS TAKEN ONLY LAND WHERE OTH ER CROPS I.E. WHEAT RICE/PADDY ETC. CULTIVATED. HOWEVER BY BOTH THE LD. AO HAVE MISUNDERSTOOD THAT SH. SURENDRA SINGH HAS GIVEN GUVAV GARDEN ON LEASE AT THE RATE OF 51 000/- PER ACRE. A ND WRONGLY ESTIMATED THE INCOME FROM GUVAVA AT THE RATE OF 32 500/- PER ACRE. ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 7 THE INSPECTOR IN HIS REPORT AT PAGE NO. 2 IN SECOND LAST PARA (PB163) STATED THAT SH. PARMANAND CONTRACTOR HAS TAKEN 15 ACRE OF GUVAVA GA RDEN FROM SH. SURENDRA SINGH AND OTHERS FOR THE RATE OF 15 LACS. SH. PARMANAND HAS ALSO STA TED ABOUT THE CROP OF GUVAVA THAT THERE ARE AVERAGE 100 TREES OF GUVAVA IN A ONE ACRE AND ONE T REE GIVES AVERAGE 150 KG GUVAVAS AND SOLD AT THE AVERAGE RATE OF RS. 10 PER KG. IT MEANS THERE W ERE THE CROP OF RS. 1 50 000/- PER ACRE(100X150X10). AND IN ONE YEAR THERE IS TWO CROP S OF GUVAVA. THUS IN ONE YEAR IT COMES RS. 3 00 000/-(RS.1 50 000/-X2) PER ACRE. AS PER THIS C ALCULATION THE PRODUCE OF GUVAVA IN 17 ACRE COMES TO RS. 51 00 000/- AND THE SHARE OF THE ASSES SEE COME TO RS. 34 00 000/- AND AFTER 15% EXPENSES I.E RS.6 80 000/- NET INCOME FROM GUVAVA C OMES TO RS.27 20 000/- ACCORDING THE INSPECTOR REPORT ITSELF AS AGAINST RS. 3 86 750/- T AKEN BY THE AO. HOWEVER THE AO HAS TAKEN ONLY RS. 32 500/- PER ACRE I.E ABOUT 9-10 TIME LESS ON THE BASIS OF LETTER OF THE ITO OF FATEHABAD WHO HAS STATED THAT AS REGARDS GARDEN OF GUVAVA IT HA S BEEN GIVEN ON LEASE OF RS. 50 000/- PER ACRE DURING THE CURRENT YEAR. THE AMOUNT OF LEASE RENT DURING THE YEAR 2008-09 IS ESTIMATED AT RS. 30 000/- TO 35 000/- PER ACRE. HOWEVER ON PERUSAL OF THE INSPECTOR REPORT IT IS C LEAR THAT THESE FACTS ARE NOT COMING FROM THIS REPORT THE ITO FATE HBAD HIMSELF ASSUMED THE SAME HIS OWN AND CONTRARY FROM THE REPORT ITSELF AS STATED ABOVE IN PARA 3.3. FURTHER IT IS SUBMITTED THAT NEITHER THE AO NOR THE INSPECTOR ARE TECHNICAL PERSONS NOR THEY HAVE BEEN BROUGHT ANY MATERIAL EVIDENCE ON RECORD IN SUPPORT OF THEIR CONTENTION REGARDING THE QUANTITY AND QUALITY OF PRODUCE SALE PRICE ETC EXCEPT VERBAL INQUIRY WHICH IS ALSO NOT FULLY CONSI DERED. IN THE CASE OF BADAR DURREZ AHMED JCIT-XI VS. DELHI HOUSING & FINANCE CORPORATION 84 CCH 079(DEL)HC IT HAS BEEN HELD THAT CIT AND TRIBUNAL ARE JUSTIFIED IN NOT RELYING ON TH E REPORT OF INSPECTOR WHERE HE HAD MADE ONLY VERBAL INQUIRIES HAD NOT COLLECTED ANY I NSTANCES OF ACTUAL SALES IN THE SAID AREAS AND THAT TOO WHEN INQUIRY RELATED TO HIS DATE OF VISIT . 4. THE FACTS NOT DENIED BUT ACCEPTED BY THE LOWER AUTHORITY: THE LAND BELONGS TO SH. SURENDRA SINGH AND HIS FAMILY. THE LEASE AGREEMENT BETWEEN THE ASSESSEE AND SH. SURENDRA SINGH HAS BEEN ACCEPTED. THE RATIO OF 1/3 RD AND 2/3 RD CONFIRMED BY SH. SURENDRA SINGH LANDLORD IN HIS THEIR STATEMENT RECORDED BY THE AO ITSELF AND NOT C ONTROVERTED BY THE LOWER AUTHORITY. FURTHER THE FACTS THAT THE LAND IS FERTILE THE WATER IN FULL F OR IRRIGATION THE IRRIGATION IS DONE BY CANAL AND TUBEWELL BOTH CROP OF WHEAT IS THERE IN VERY GOOD POSITION THERE IS ALSO THE GARDEN OF GUVAVA WHERE THE FRUIT (GUAVA) ARE IN VERY GOOD QUANTITY A S THE INSPECTOR HIMSELF STATED IN HIS REPORT (PB162). THE TYPES OF CROPS AS WHEAT PADDY/RICE G UVAVA ETC. HAVE BEEN ACCEPTED AND CONFIRMED. IN THE PRESENT CASE THE LOWER AUTHORITY HAVE ACC EPTED ONLY OF RS. 19 61 198/- AGRICULTURE INCOME ON THE BASIS OF OPINION OF ITO FATEHABAD AN D INSPECTOR REPORT WHO ARE NON-TECHNICAL PERSONS AS AGAINST RS. 37 50 000/-(BECAUSE THE ASSE SSEE HAS SHOWN TOTAL AGRICULTURE INCOME OF RS.37 50 500/- FROM BOTH THE LAND THE LD. AO HIMSEL F ACCEPTED AGRICULTURE INCOME OF RS.10 25 000/- FROM HIS OWN LAND IN A.Y. 11-12 HENC E THE AGRICULTURE INCOME FROM THE LEASE LAND COMES TO RS.27 25 500/-) DECLARED BY THE ASSESSEE O N THE BASIS OF THE INFORMATION/DETAILS FROM THE AGRICULTURE OR UDHAN DEPARTMENT OF FATEHBAD HAR IYANA REGARDING THE AVERAGE PRODUCTIVITY AND RATE OF AGRICULTURE PRODUCE IN TH E YEAR WHICH WERE FILED BEFORE THE AO (PB166-175) FOR READY REFERENCE WHO WERE THE TECHNI CAL PERSONS. WHEN THERE IS OPINION OF TECHNICAL PERSONS THAN THE OPINION OR ASSUMPTION OR ESTIMATION OF NON TECHNICAL PERSONS CANNOT BE RELIED UPON AND ACCEPTED. THE ASSESSEE HAD REQUESTED TO THE AO TO CONDUCT THE INQUIRY REGARDING THE AGRICULTURE YIELD IN THAT YEAR BY WAY OF AGRICULTUR E OR STATICS DEPARTMENT OR BY PATWARI WHO ARE THE TECHNICAL PERSON THE ASSESSEE WAS READY TO INC UR THE COST ON THIS ACCOUNT. BUT THE AO HAS FAILED TO DO SO RATHER MADE INQUIRY FROM NON TECHNI CAL PERSON. THE ASSESSEE HAS GOT THE INFORMATION/DETAILS FROM THE AGRICULTURE OR UDHAN D EPARTMENT OF FATEHBAD HARIYANA REGARDING THE AVERAGE PRODUCTIVITY AND RATE OF AGR ICULTURE PRODUCE IN THE YEAR. WHICH WERE ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 8 GIVEN TO THE AO AND IS BEING ENCLOSED(PB166-175) HE REWITH FOR READY REFERENCE. AS PER THESE DETAILS OR INFORMATION THE INCOME FROM AGRICULTURE COMES AS UNDER: AS THE ASSESSEE HAVING AGREEMENT OF 57 ACRE AGRICU LTURE LANDS AND AS PER PAPERS OF AGRICULTURE LAND HOLDING THE ASSESSEE HAS CULTIVATE D THE CROPS OF GUAVAS IN 17 ACRE LAND AND THE CROPS OF PADDY(RICE) AND WHEAT CULTIVATED IN 40 ACRE LANDS. THERE ARE TWO CROPS IN 40 ACRE ONE CROP OF PADDY IN KHARIF AND ONE CROPS OF W HEAT IN RAVI IN ONE YEAR. AND IN 17 ACRE THERE ARE TWO CROP OF GUAVAS. PADDY/RICE: IN THE YEAR THERE WAS AVERAGE YIELD OF PADDY WAS 4341 KG PER HECTARE AND IN ONE ACRE IT COMES TO 16.06 QNTL. (43.41X37/1 00) AND AS PER RATE OF 2504 PER QNTL. 16.06X2504=40214 AND IN 40 ACRE IT COMES RS.16 08 5 60/-. THIS IS ALSO SUPPORTED WITH THE STATEMENT OF SH. SURENDRA SINGH VIDE ANS TO Q.5 WHE REIN HE STATED THAT IN ONE ACRE THERE WAS AVERAGE YIELD IS 17-18 QNTL. (PB144)AND IN ANS TO Q . NO.18(PB151-152) HE STATED THAT THE RATE WAS RS. 5 000/- TO RS. 5500/- PER QNT. AND AS PER THIS IT COME TO 17X5000X40=34 00 000/-. WHEAT: IN THE YEAR THERE WAS AVERAGE YIELD OF WHEAT WAS 5120 KG PER HECTARE AND IN ONE ACRE IT COMES TO 18.94 QNTL. (51.20X37/100) AND AS PER RATE OF 1160 PER QNTL. 18.94X1160=21970 AND IN 40 ACRE IT COMES RS.8 78 80 0/- . THIS IS ALSO SUPPORTED WITH THE STATEMENT OF SH. SURENDRA SINGH VIDE ANS TO Q.5 WHE REIN HE STATED THAT IN ONE ACRE THERE WAS AVERAGE YIELD IS 20-22 QNTL. (PB144)AND IN ANS TO Q . NO.18(PB151-152) HE STATED THAT THE RATE WAS RS. 2 800/- TO RS. 3500/- PER QNT. AND AS PER THIS IT COME TO 20X2800X40=22 40 000/-. GUAVAS: IN THE YEAR THERE WAS AVERAGE YIELD OF GUAVAS WAS 2108 (TONES) OR 2108000 KG PER HECTARE AND IN ONE ACRE IT COMES TO 80.00 QNTL. (21080X37/100) AND AS PER RATE OF 1700 PER QNTL. 80X1700=136000 AND IN 17 ACR E IT COMES RS.23 12 000/- . THIS IS ALSO SUPPORTED WITH THE STATEMENT OF SH. SURENDRA SINGH VIDE ANS TO Q.11 WHEREIN HE STATED THAT IN ONE ACRE THERE WAS AVERAGE YIELD IS 80-90 QNTL. (PB 148). GREEN FODDER AND FODDER: FODDER AND GREEN FODDERS IN PADDY COME ABOUT RS.15 000/- PER ACRE AND IN 40 ACRE IT COMES TO RS. 6 00 000/-. FODDER AND GREEN FODDERS IN WHEAT COME ABOUT RS.20 000/- PER ACRE ANS IN 40 ACRE IT COMES TO RS. 8 00 000/-. FODDER AND GREEN FODDERS IN GUAVAS COME ABOUT RS.3 0 000/- PER ACRE AND IN 17 ACRE IT COMES TO RS. 5 10 000/-. THIS IS ALSO SUPPO RTED WITH THE STATEMENT OF SH. SURENDRA SINGH VIDE ANS TO Q.11 (PB148-149) THUS TOTAL INCOME FROM AGRICULTURE COMES TO RS. NAME OF CROP AS PER UDHAN DEPTT. AS PER STATEMEN T PADDY/RICE 1608560.00 34 00 000/- WHEAT 878800.00 22 40 000/- GUAVAS 2312000.00 23 12 000/- FODDER IN PADDY 600000.00 6 00 000/- FODDER IN WHEAT 800000.00 8 00 000/- FODDER IN GUAVAS 510000.00 5 10 000/- -------------------- -------------------- TOTAL: 67 09 360/- 95 62 000/- ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 9 -------------------- -------------------- THUS THE 2/3 RATIO OF THE ASSESSEE COMES TO RS. 44 72 906/- AND AFTER EXP ABOUT RS. 5 70 000/- IT COMES TO RS. 39 02 906/- AS PER UDHAN DEPARTMENT AS AGAINST RS. 27 25 500/- DECLARED BY THE ASSESSEE AND AS PER STATEMENT OF SH . SURENDRA SINGH IT COMES TO 63 74 666/- AND AT THE WORST 30% EXPENSES (19 12 340/-) AS PER THE AO THAN IT COMES TO 44 62 326/. FURTHER IT IS SUBMITTED THAT THE ASSESSEE HAS SOLD THEIR CROPS IN THE OPEN MARKET WHERE THE RATE IS HIGH THAN TO MANDI AND THE ASSESSEE HAS CULTIVAT ED HIGH QUALITY CROPS BY ORGANIC FERTILIZER VIDE ITS AGREEMENT AND STATEMENT OF LAND LORD VIDE (PB151-152). HENCE THE AGRICULTURE INCOME ARE MORE THAN TO ABOVE. WE HAVE URGED BEFORE THE LD. CIT(A) THAT IF HE IS HAVING ANY DOUBT ABOUT THE ABOVE WORKING OR INFORMATIONS AS PROVIDED BY THE ASSESSE E THE AO MAY KINDLY BE DIRECT TO CONDUCT THE INQUIRY AGAIN REGARDING THE AGRICULTURE YIELD IN TH AT YEAR BY WAY OF AGRICULTURE OR STATICS DEPARTMENT OR BY PATWARI THE ASSESSEE IS READY TO I NCUR THE COST ON THIS ACCOUNT. BUT DID NOT DO SO. FURTHER THE LD. AO HAS NOT REBUTTED THESE DETAILS AND OUR SUBMISSION WITH THE HELP OF ANY CONTRARY MATERIAL AND HE REPEATED THE THING AS ALRE ADY STATED IN THE ASSESSMENT ORDER AND THE ASSUMPTION MADE BY THE ITO FATEHABAD. HE HAS NOT BR ING ANY NEW MATERIAL OR EVIDENCES FROM ANY TECHNICAL OR EXPERT PERSON ON RECORD WHICH SUGG EST THAT THE CONTENTION OF THE ASSESSEE IS WRONG. THEREFORE IT IS PRAYED THAT KINDLY CONSIDER OUR SU BMISSIONS AND DETAILS IN TRUE PERSPECTIVE AND THE ADDITIONS SO SUSTAINED BY THE L D. CIT(A)MAY KINDLY BE DELETED IN FULL. ' THE ABOVE SUBMISSION WAS ALSO FILED BEFORE THE AO. HOWEVER THE LD. AO HAS TOTALLY IGNORED THE SAME. HENCE THE AGRICULTURE INCOME OF THE ASSESSEE SO DE CLARED MAY KINDLY BE ACCEPTED AND THE ADDITION OF RS.17 89 302/- SUSTAINED BY THE LD.CIT( A) MAY KINDLY BE DELETED IN FULL. 3.3 ON THE OTHER HAND THE LD. DR SUPPORTED THE ORD ER OF THE LOWER AUTHORITIES. 3.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS OBSERVED THAT THE ASSESS EE WAS HAVING OWN AGRICULTURE LANDS OF 41.85 BHIGA AND HE HAS ALSO TA KEN 57 HECTARE AGRICULTURE LANDS ON LEASE FROM SH. SURENDRA SINGH WHO HOLDS 35 ACRES(56 BHIGAS) OF AGRICULTURE LAND AT VILLAGE GIL LAN DISTT. FATEHBAD HARYANA AND LATE SMT. NIRMALA HOLDS 22 ACRES (35 B HIGAS) OF AGRICULTURE LAND AT VILLAGE GILLAN DIST. FATEHBAD HARYANA ON L EASE JOINTLY THROUGH ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 10 THE AGREEMENT DATED 28.06.2007 (PB 21-24) IN THE R ATIO 2/3 OF THE ASSESSEE AND 1/3 RD OF LAND OWNERS. THE ASSESSEE HAS DECLARED THE AGRICULTURE INCOME OF RS.37 50 500/- FROM BOTH THE LANDS. IN THE ORIGINAL ASSESSMENT THE AO HAS DISALLOWED ENTIRE AGRICULTUR E INCOME AND MADE THE ADDITION AS INCOME FROM OTHER SOURCES. IN THE R EMAND PROCEEDINGS THE AO HAS RECORDED THE STATEMENTS OF SH. SURENDRA SINGH WHO HAD ADMITTED THE FACTS OF LAND GIVEN ON LEASE TO THE AS SESSEE AND THE AO HAS ALSO MADE INQUIRY THROUGH THE INSPECTOR AND ESTIMAT ED THE AGRICULTURE INCOME OF RS.21 91 798/- FROM THE LAND TAKEN ON LEA SE (PARA 6.6 OF THE ASTT ORDER). THE AO HAS TAKEN THE RATIO IN PLACE OF 2/3 RD AND ASSESSED THE AGRICULTURE INCOME AT RS. 10 95 899/- AND MADE THE ADDITION OF RS.26 54 601/-. IN FIRST APPEAL THE LD. CIT(A) HAS ESTIMATED THE AGRICULTURE INCOME AT RS.19 61 198/- BY TAKING THE RATIO OF THE ASSESSEE IN 2/3 RD IN PLACE OF AND ALSO TAKEN THE ESTIMATED THE AGRICU LTURE INCOME FROM FODDERS AT RS.5 00 000/-. THUS THE CIT(A) HAS SUSTA INED THE ADDITION OF AGRICULTURE INCOME AT RS.17 89 302/- (RS. 37 50 500 MINUS RS. 19 61 198). IT IS ALSO NOTED THAT THERE IS NEITHER DISPUTE REGARDING THE HAVING AGRICULTURE LANDS (I.E. THE ASSESSEE'S OWN AND THE LAND TAKEN ON LEASE) NOR REGARDING THE RATIO OF CROP IN LEASE LAND. THE LD.AR OF THE ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 11 ASSESSEE SUBMITTED THAT LOWER AUTHORITIES HAS NOT GIVEN ANY CREDIT OF THE AGRICULTURE INCOME FROM HIS OWN LAND WHEN THE AO HAS ASSESSED THE AGRICULTURE INCOME OF THE ASSESSEE FROM HIS OWN LAN D AT RS. 10 25 000/- IN THE A.Y. 2011-12 UNDER SCRUTINY ASSESSMENT ORDER D ATED 19.03.2014 IN THE SAME MONTH WHEN THE PRESENT ASSESSMENT ORDER HA S BEEN PASSED (PBP 164-165). IT IS ALSO PERTINENT TO MENTION THAT IN THE A.Y. 2011-12 THERE WAS NO LEASE AND NOR AGRICULTURE INCOME FROM THE LE ASE LAND EXCEPT HIS OWN LANDS. THE LD.AR OF THE ASSESSEE ALSO FILED THE CROPS REPORT LIKE AVERAGE YIELD AND PRODUCTION OF CROPS IN DISTRICT F ATEHABAD AS WELL AS BLOCK FATEHABAD FROM THE OFFICE OF DY. DIRECTOR OF AGRICULTURE (PBP 167- 168).THE AR FURTHER STATED THAT THE ESTIMATION OF I NCOME SHOWN BY THE ASSESSEE WAS ON THE BASIS OF DOCUMENTS OF EXPERTS O R MARKETS AND UDHAN DEPARTMENT. TAKING INTO CONSIDERATION MATERIALS AVA ILABLE ON RECORD FACTS AND CIRCUMSTANCES OF THE CASE THE AGRICULTURE INCOME FROM THE ASSESSEES OWN LAND IS ESTIMATED AT RS. 9 00 000/- IN THIS YEAR WHEN THE SAME AO AT THE SAME TIME HAS ASSESSED THE AGRICULTU RE INCOME AT RS.10 25 000/- IN THE A.Y. 2011-12. IT IS ALSO NOTE D ON PERUSAL OF THE ORDERS THAT NO INCOME HAS BEEN TAKEN OR BENEFIT OF AGRICULTURE INCOME FROM HIS OWN LAND IS GIVEN TO THE ASSESSE WHEN HE IS HAVING 41.85 BHIGAS ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 12 AGRICULTURE LAND OF HIS OWN. IT IS ALSO NOTED THAT THE LD. CIT(A) HAS ESTIMATED THE INCOME FROM LEASE LAND AT RS.19 61 19 8/- ON THE BASIS OF INSPECTOR REPORT WHO IS NOT A TECHNICAL PERSON WHIL E THE ASSESSEE HAS BROUGHT ON RECORD THE REPORT AND DOCUMENTS FROM MAR KET COMMITTEE FATEHABAD AND AGRICULTURE DEPARTMENT FATEHABAD (PB P167 TO 175) HOWEVER ON THE OTHER SIDE THE ASSESSEE HAS NOT FI LED THE SALE BILLS AND PURCHASE BILLS. THUS LOOKING TO THE TOTALITY OF THE FACTS AND CIRCUMSTANCES THE CASE AND SURROUNDING CIRCUMSTANCES THE AGRICULT URE INCOME FROM LEASE LAND IS TAKEN AT RS.22 75 000/-.THUS THE TOTAL AGR ICULTURE INCOME IS ESTIMATED AT RS.31 75 000/- (RS. 9 00 000/- FROM OW N LAND + RS.22 75 000 FROM LEASE LANDS). ACCORDINGLY AN AMOU NT OF RS. RS.5 75 500/- IS DISALLOWED . THUS THIS GROUND NO. 2 OF APPEAL IS PARTLY ALLOWED. 4.1 APROPOS GROUND NO. 3.1 & 3.2 OF THE ASSESSEE T HE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDE R:- 3.3.2 DETERMINATION (I) I HAVE CAREFULLY PERUSED THE SUBMISSIONS OF THE APPELLANT ASSESSMENT ORDER AND THE MATERIAL PLACED ON RECORD. THE AO MODE ADDITION OF RS.99 06 000/- ON ACCOUNT OF UNEXPLAINE D CREDITS IN THE BANK ACCOUNT OF THE APPELLANT DURING THE YEAR UNDER CONSIDERATION. THE BREAKUP OF THE ABOVE AMOUNT OF RS. 99 06 000/- IS A S UNDER: ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 13 NAME AMOUNT SHRI SATISH SHARMA RS. 47 03 000/- SHRI MAHAVEER PRASAD RS. 35 00 000/- SHRI SURJIT SINGH RS. 15 00 000/- SHRI VIJAY CHAHAR RS. 2 03 000/- TOTAL RS. 99 06 000/- (II) DURING THE ASSESSMENT PROCEEDINGS THE AO REQ UIRED THE APPELLANT TO PRODUCE THE ABOVE MENTIONED FOUR PERSO NS HOWEVER THEY WERE NOT PRODUCED BEFORE THE AO INSTEAD A REQUEST WAS MADE BY THE APPELLANT TO THE AO TO ISSUE SUMMONS U/S L3L OF THE ACT TO THESE PERSONS WHICH WERE NOT ISSUED BY THE AO AS THE INIT IAL BURDEN IS ON THE APPELLANT TO EXPLAIN THE CREDIT ENTRIES IN ITS BANK ACCOUNT UNDER CONSIDERATION WITH APPROPRIATE EVIDENCES. HOWEVER NEITHER THE ABOVE FOUR PERSONS WERE PRODUCED NOR THEIR BANK ACCOUNTS WERE FILED BEFORE THE AO AND CONSEQUENTLY THE AO MADE ADDITION OF RS. 99 06 000/- TO THE INCOME OF THE APPELLANT AS UNEXPLAINED CREDITS. (III) DURING THE COURSE OF APPELLATE PROCEEDINGS A DETAILED SUBMISSION WAS FURNISHED BY THE APPELLANT WHICH WAS FORWARDED TO THE AO FOR OBTAINING HIS COMMENTS. VIDE HIS REMAND REPO RT DOTED 31.08.20.L5 AS REPRODUCED EARLIER THE AO SUBMITTE D THAT THE ADDITION OF RS. 99 06 000/- MADE BY THE AO IS JUSTIFIED. A C OPY OF THE REMAND REPORT OF THE AO WAS ALSO PROVIDED TO THE AR AND VI DE ITS LETTER DATED 14.09.2015 THE AR SUBMITTED ITS REJOINDER TO THE R EMAND REPORT WHICH HAS ALREADY BEEN REPRODUCED IN THIS ORDER. (IV) VIDE ORDER SHEET ENTRY DATED 14.09.2015 THE AR WAS REQUIRED TO FILE THE CERTIFIED COPIES OF THE RELEVANT BANK A CCOUNTS OF ABOVE FOUR PERSONS ALONG WITH EVIDENCES TO PROVE THE CREDITWOR THINESS OF THESE FOUR PERSONS. VIDE ITS REPLY DATED 22.12.2015 THE APPELLANT FILED ONLY THE COPIES OF THE BANK STATEMENTS (NOT CERTIFIED CO PIES) OF SH. SURJIT SINGH SH. MAHAVEER PRASAD SH. VIJAY CHAHAR AND SM T. MADHU SHARMA WIFE OF SH. SATISH SHARMA. THE AR HAS ALSO FILED A COPY OF AFFIDAVIT AND A LETTER OF SH. SURJIT SINGH DATED 29 .11.2015 AND MADE A REQUEST TO ADMIT THE SAME AS ADDITIONAL EVIDENCE U/ R 46AOF THE I.T RULES 1962. (V) THE COPY OF BANK ACCOUNT OF SMT. MADHU SHARMA WIFE OF SH. SATISH SHARMA CANNOT BE ADMITTED AS ADDITIONAL EVID ENCES AS THE NAME OF SMT. MADHU SHARMA APPEARS BEFORE ME FOR THE FIRS T TIME ON 22.12.2015 ITSELF I.E. THIS CONTENTION WAS NOT TAKE N BEFORE THE AO EVEN IN THE SET ASIDE ASSESSMENT PROCEEDINGS. IN VIEW OF THE DISCUSSION MADE ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 14 EARLIER IN THIS ORDER NOW THE ISSUE IN RESPECT OF UNEXPLAINED CREDITS FROM THESE FOUR PERSONS IS BEING DISCUSSED AS UNDER : 1. SHRI SATISH SHARMA (VI) DURING APPELLATE PROCEEDINGS A COPY OF THE A FFIDAVIT [PB-77] DATED 16.06.201L OF SH. SATISH SHARMA WAS SUBMITTED BY THE APPELLANT WHEREIN IT WAS STATED THAT HE PAID A SUM OF RS. 47 03 000/-DURING THE YEAR UNDER CONSIDERATION FROM HIS BANK ACCOUNT NO. 51020838449 WITH SBBJ AND OTHER BANKS. IT WAS FURTHER STATED THAT PA RT OF THE AFORESAID AMOUNT WAS PAID OUT OF LOAN TAKEN FROM VARIOUS BANK S AMOUNTING TO RS. 50 LAC. IT IS NOTED FROM PB-49 WHICH IS RELATIN G TO EXPLANATION OF ENTITIES APPEARING IN BANK STATEMENT OF THE APPELLA NT WITH OBC JAIPUR THAT THE APPELLANT HAD RECEIVED THE AMOUNTS FROM SH RI SATISH SHARMA AS UNDER:- DATE AMOUNT 25-05-2007 RS. 1 00 000/- RS. 10 00 000/- RS. 20 00 000/- 23-11-2007 RS. 16 03 000/- (VIA) FURTHER VIDE ITS LETTER DATED 22.01.2016 I T WAS SUBMITTED BY THE APPELLANT THAT IT RECEIVED THE FOLLOWING AMOUNT S FROM THE BANK ACCOUNT OF MADHU SHARMA WIFE OF SH. SATISH SHARMA. DATE AMOUNT 30-06-2007 RS. 9 77 000/- 03-07-2007 RS. 7 35 000/- 20-07-2007 RS. 17 16 000/- 23-11-2007 RS. 16 03 000/- TOTAL RS. 50 31 000/- (VIB) THE ABOVE TABLES REVEAL THAT THERE IS ONLY ON E COMMON ENTRY OF RS. 16 03 000/- ON 23.11.2007 ONLY WHEREAS THE DETA ILS OF RS. 31 LAC TAKEN FROM SHRI SATISH SHARRNA ON 25.07.2002 HAS NO T BEEN MENTIONED ANYWHERE IN THE LETTER DATED 22.01.2016. IT HAS BEE N MENTIONED EARLIER THAT IN HIS AFFIDAVIT SH. SATISH SHARMA STATED THAT HE HAD ADVANCED RS. 47 03 000/- FROM HIS BANK ACCOUNT NO. 51020838449 A FTER TAKING LOAN OF RS. 50 LAC FROM VARIOUS BANKS TO THE APPELLANT D URING THE YEAR UNDER CONSIDERATION. HOWEVER IT IS OBSERVED THAT THE SMT . MADHU SHARMA HAD ADVANCED A SUM OF RS.41 31 000/- TO THE APPELLA NT DURING THE YEAR UNDER CONSIDERATION AND NO CONFIRMATION OR ANY OTHE R EVIDENCE ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 15 INCLUDING THE CREDITWORTHINESS OF SMT. MADHU SHARMA WAS FILED EVEN DURING THE APPELLATE PROCEEDINGS. IT IS PERTINENT T O MENTION HERE THAT THE SUM OF RS.3L LAC RECEIVED BY THE APPELLANT ON 25.05 .2007 FROM SH. SATISH SHARMA IS NOT REFLECTED ANYWHERE IN THE REPL Y DATED 22.01.20L6 OF THE AR. IT HAS BEEN HELD IN A NUMBER OF CASES BY THE JUDICIAL AUTHORITIES THAT TRANSACTIONS THROUGH BANKING CHANN ELS ARE NOT SACROSANCT. THEREFORE LOOKING TO THE TOTALITY OF T HE FACTS AND CIRCUMSTANCES OF THE CASE IT IS HELD THAT THE APPE LLANT WAS NOT ABLE TO PROVE THE GENUINENESS OF THE ALLEGED LOAN OF RS. 47 03 000/- TAKEN FROM SH. SATISH SHARMA AND CREDITWORTHINESS OF SH. SATISH SHARMA AS NOBODY WILL GIVE ANY INTEREST FREE LOANS TO A PERSO N AFTER OBTAINING INTEREST BEARING LOAN FROM BANKS AND ALSO LOOKING T O THE FACT THAT THERE ARE INHERENT CONTRADICTION IN THE SUBMISSIONS MADE BY THE APPELLANT. THE APPELLANT FAILED TO DISCHARGE THE PRIMARY ONUS TO EXPLAIN THE CREDIT ENTRIES IN ITS BANK ACCOUNT AND THUS THE ADDITION O F RS. 47 03 000/- MADE BY THE AO AS UNEXPLAINED CREDITS IN THE BANK A CCOUNT OF THE APPELLANT IS HEREBY SUSTAINED. 2. MAHAVEER PRASAD (VII) DURING THE APPELLATE PROCEEDINGS THE APPELL ANT HAD FILED A COPY OF AFFIDAVIT DATED 16-06-20111 OF SHRI MAHAVEER PRA SAD WHEREIN IT WAS STATED THAT HE HAS PAID RS. 32 LAC TO THE APPELLANT DURING THE YEAR UNDER CONSIDERATION OUT OF HIS AGRICULTURE INCOME AND SAL E OF AGRICULTURE LAND FOR A TOTAL CONSIDERATION OF RS. 25 LAC. SHRI MAHAV EER PRASAD IS NOT ASSESSED TO INCOME TAX AS STATED IN ABOVE REFERRED AFFIDAVIT. ON A PERUSAL OF THE BANK ACCOUNT STATEMENT OF SHRI MAHAV EER PRASAD WITH OBC JAIPUR (PB 182 183 184) IT HAS BEEN OBSERVED THAT THERE WAS CASH DEPOSIT OF RS. 20 LAC RS. 4.5 LAC AND RS. 8.5 0 LAC ON 21-02- 2008 22-02-2008 AND 25-02-2008 RESPECTIVELY AND CH EQUES OF RS. 18.50 LAC RS. 4.5 LAC AND RS. 8.50 LAC WERE DEBITE D ON 21-02-2008 22-02-2008 AND 25-02-2008 RESPECTIVELY I.E. BEFORE ISSUE OF CHEQUES THERE WAS CASH DEPOSITS IN THE BANK ACCOUNT OF SHRI MAHAVEER PRASAD. IT MAY BE MENTIONED THAT AS PER THE COPIES OF TWO S ALE DEEDS DATED 02- 03-2007 (PB 95 TO 112) SHRI MAHAVEER PRASAD SOLD H IS AGRICULTURE LAND FOR A SUM OF RS. 25 LAC AND THE SALE CONSIDERA TION WAS RECEIVED THROUGH BANKING CHANNELS AND THUS IT IS CERTAIN THA T THE CASH DEPOSITS IN THE BANK ACCOUNT AS REFERRED ABOVE IN THE BANK AC COUNT OF SHRI MAHAVEER PRASAD IS NOT FROM THE SALE OF AGRICULTURE LAND AS CLAIMED IN THE AFFIDAVIT OF SHRI MAHAVEER PRASAD. (VIIA) FURTHER THE APPELLANT HAS NOT PRODUCED ANY EVIDENCE WHICH MAY PROVE THE CREDITWORTHINESS OF SHRI MAHAVEER PRA SAD. IT HAS BEEN HELD IN A NUMBER OF CASES BY THE JUDICIAL AUTHORITI ES THAT TRANSACTIONS THROUGH BANKING CHANNELS ARE NOT SACROSANCT. THEREF ORE LOOKING TO THE ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 16 TOTAL FACTS AND CIRCUMSTANCES OF THE CASE IT IS HE LD THAT THE APPELLANT WAS NOT ABLE TO PROVE THE GENUINENESS OF THE ALLEGE D LOAN OF RS. 35 LAC TAKEN FROM SHRI MAHAVEER PRASAD AND CREDITWORTHINES S OF SHRI MAHAVEER PRASAD WAS NOT ESTABLISHED. THE APPELLANT FAILED TO DISCHARGE THE PRIMARY ONUS TO EXPLAIN THE CREDIT ENTRIES IN I TS BANK ACCOUNT AND THUS THE ADDITION OF RS. 35 LAC MADE BY THE AO AS U NEXPLAINED CREDITS IN THE BANK ACCOUNT OF THE APPELLANT IS HEREBY SUST AINED. 3. VIJAY CHAHAR (VIII) DURING THE APPELLATE PROCEEDINGS IT WAS SU BMITTED THAT THERE WAS OPENING DEBIT BALANCE OF RS. 4 19 000/- AS ON 0 1-04-2007 AND OUT OF THE SAID OUTSTANDING SHRI VIJAY CHAHAR PAID RS. 25 000/- AND RS. 1 78 000/- ON 03-08-2007 AND 16-02-2008 FROM HIS SA VING BANK ACCOUNT WHICH WAS CREDITED IN THE BANK ACCOUNT OF T HE APPELLANT ON 03- 08-2007 AND 16-02-2008 RESPECTIVELY (PBP-43 AND 44A ). ON PERUSAL OF THE BANK ACCOUNT OF SHRI VIJAY CHAHAR WITH OBC JAIPUR IT WAS OBSERVED THAT THERE WAS CASH DEPOSIT OF RS. 25 000/ - AND RS. 1 78 000/- ON 02-08-2007 AND 16-02-2008 RESPECTIVELY. IN ITS A FFIDAVIT DATED 16- 06-2011 (PB-83 TO 85) IT WAS STATED BY SHRI VIJAY CHAHAR THAT HE IS ASSESSED TO INCOME TAX AND HE REPAID SUM OF RS. 2 0 3 000/- DURING THE YEAR UNDER CONSIDERATION TO THE APPELLANT OUT OF OP ENING CREDIT BALANCE OF RS. 4 19 000/-. HOWEVER THE APPELLANT HAS NOT F ILED ANY EVIDENCE REGARDING FURNISHING OF INCOME TAX RETURN BY SHRI V IJAY CHAHAR. THE APPELLANT HAS ALSO NOT FILED ANY EVIDENCE TO ESTABL ISH THE CREDITWORTHINESS OF SHRI VIJAY CHAHAR. (VIIIA) IT HAS BEEN HELD IN A NUMBER OF CASES BY T HE JUDICIAL AUTHORITIES THAT TRANSACTION THROUGH BANKING CHANNE LS ARE NOT SACROSANCT. FURTHER HAVING A PAN DOES NOT ESTABLIS H THE CREDITWORTHINESS OF ANY PERSON AS PAN IS ISSUED ON THE BASIS OF APPLICATION OF PERSON WITHOUT EXAMINING HIS/ HER CR EDITWORTHINESS. THEREFORE LOOKING TO THE TOTAL FACTS AND CIRCUMSTA NCES OF THE CASE IT IS HELD THAT THE APPELLANT WAS NOT ABLE TO PROVE THE G ENUINENESS OF THE ALLEGED LOAN OF RS. 2.03 LACS TAKEN FROM SHRI VIJAY CHAHAR AND CREDITWORTHINESS OF SHRI VIJAY CHAHAR WAS NOT ESTAB LISHED. THE APPELLANT FAILED TO DISCHARGE THE PRIMARY ONUS TO E XPLAIN THE CREDIT ENTRIES IN ITS BANK ACCOUNT AND THUS THE ADDITIONS OF RS2.03 LAC MADE BY THE AO AS UNEXPLAINED CREDITS IN THE BANK ACCOUNT O F THE APPELLANT IS HEREBY SUSTAINED. ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 17 4. SURJIT SINGH (IX) DURING THE APPELLATE PROCEEDINGS VIDE LETTER DATED 22-01-2016 IT WAS SUBMITTED BY THE A.R. THAT THE APPELLANT HAS GIVEN RS. 15 LAC ON 28-05-2007 TO SHRI SURJIT SINGH THROUGH DEMAND DRAF T WHICH WAS CREDIT IN THE CANARA BANK ACCOUNT OF SHRI SURJIT SINGH AT NEW DELHI ON 29- 05-2007. THE APPELLANT HAS ALSO FILED A COPY OF AFF IDAVIT DATED 29-11- 2015 AND ACKNOWLEDGEMENT IN ITR-4 OF SHRI SURJIT SI NGH FOR THE A.Y. 2008-09. (IXA) IT HAS ALREADY BEEN MENTIONED THAT THE AFFIDA VIT DATED 29-11- 2015 OF SHRI SURJIT SINGH FILED CANNOT BE GIVEN ANY COGNIZANCE AS IT WAS NOT ADMITTED AS ADDITIONAL EVIDENCE UNDER RULE 46A OF THE I.T. RULES. IT IS THEREFORE HELD THAT THE APPELLANT HAS FAILED TO SUBSTANTIATE CREDITWORTHINESS AND GENUINENESS OF ENTRIES OF RS. 15 LAC CREDITED IN ITS BANK ACCOUNT AS CLAIMED TO BE RECEIVED FROM SHR I SURJIT SINGH. HENCE THE ADDITION OF RS. 15 LAC IS HEREBY SUSTAIN ED. (X) IN VIEW OF THE ABOVE DISCUSSION THE TOTAL ADDI TION OF RS. 99 06 000/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINE D CREDIT ENTRIES IN THE BANK ACCOUNT OF THE APPELLANT IS SUSTAINED. HENCE THIS GROUND OF APPEAL IS REJECTED. 4.2 DURING THE COURSE OF HEARING THE LD.AR OF THE ASSESSEE PRAYED FOR DELETION OF ADDITION FOR WHICH THE LD.AR OF THE ASS ESSEE FILED THE FOLLOWING WRITTEN SUBMISSION. 1. FIRSTLY IT IS SUBMITTED THAT THE DEPOSITS IN THE B ANK ACCOUNT ARE ON ACCOUNT OF RECOVERY FROM THE PERSONS TO WHOM ADVANCES WERE GIV EN BY THE ASSESSEE IN THE EARLIER YEARS AND IN THIS YEAR AS CLEARLY APPEARING FROM TH E BANK STATEMENT OF EARLIER YEARS AND THIS YEAR AND FROM THE SALE PROCEED OF AGRICULT URE INCOME AND SOME UNSECURED LOANS RECEIVED FROM 2 PARTIES. AFTER FILLING ALL TH E EVIDENCES OF ALL THE PERSONS BEFORE THE LD. CIT(A). THE POSITION OF LOAN GIVEN AND TAKE N FROM THESE PERSONS COMES AS UNDER WITH THE BANK STATEMENTS SUPPORTED. REGARDING DEPOSITS IN BANK A/C: VIDE FOLLOWING CHART NAME OF THE PERSONS DATE & AMOUNT OF LOAN OR REPAYM ENT OF LOAN GIVEN BY THE ASSESSEE DATE AND AMOUNT OF RECOVERY OR RECEIVED OF LOAN BY ASSESSEE SURJEET SINGH 28.05.2007 RS.15 00 000/- THROUGH DD FROM 03.09.2007 RS.15 00 000/- THROUGH DD FROM ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 18 A/C NO. 09972151000172 OBC(PB43) CREDITED IN THE CANARA BANK A/C NO. 23317 OF SH. SURJEET SINGH ON 29.05.2007 (PB215) A/C OF SH. SURJEET SINGH (PB216) AND CREDITED IN TH E BANK A/C NO. 09972010008390 OF SH. ASSESSEE ON 06.09.200 7 (PB42) VIJAY CHAHAR OPENING DEBIT BALANCE OF RS.4 19 000/- AS ON 01.04.2007. RS. 25 000/- ON 03.08.2007 AND RS. 1 78 000/- ON 16.02.2008 FROM A/C NO. 09972011010105 OF SH. VIJAY CHAHER AND CREDITED IN THE BANK A/C NO. 0997201000172 OF . ASSESSEE ON 03.08.2007 A ND 16.02.2008 (PB43 AND 44A) MAHAVEER PRASAD ON 30.07.2007 RS. 16 00 000/- AND O N 03.12.2007 RS. 43 000/- FROM A/C NO. 04182151001498 (PB231) CREDITED IN THE BANK A/C OF SH. MAHAVEER (PB218 & 219) ON 30.07.2007 AND 03.12.2007 RS.18 50 000/- ON 22.02.2008 RS.4 50 000/- ON 25.02.2008 8 50 000/- ON 25.02.2008 RS.3 00 000/- ON 07.11.2007 AND RS.50 000/- ON 17.11.2007 FROM SH. MAHVEER SING BANK AND CREDITED IN THE BANK A/C 0997201000172 OF ASSESSEE A/C (PB44-44A) SATISH/MADHU SHARMA RS.8 13 600/- ON VARIOUS DATE FROM 09.06.2005 TO 10.10.2006 FORM A/C NO. 09972010008390 (PB37-42). AND ALSO PAID RS.5 94 000/- DURING THE YEAR. ALSO MADE REPAYMENT OF RS. 49 56 000/- ON VARIOUS DATE FROM 06.08.2008 TO 06.05.2010 FROM A/C NO. 0997201000172 OF ASSESSEE (PB227-232) RS. 9 77 000/- ON 30.06.2007 RS 7 35 000/- ON 03.07.2007. RS.17 16 000/- ON 20.07.2007 AND RS.16 03 000/- ON 23.11.2007 VIDE BANK A/C OF MADHU SHARMA (PB222-224) CREDITED IN THE BANK A/C NO. 04182151001498 & 0172 OF ASSESSEE (PB195-196) NAME OF THE PERSON NET LOAN AMOUNT 1. SURJEET SINGH NIL 2. VIJAY CHAHAR NIL 3. MAHAVEER PRASAD 18 57 000/- 4. SATISH/MADHU SHARMA 36 23 400/- TOTAL 54 80 400/- FOR BETTER APPRECIATION WE HAD EXPLAINED THE EACH T RANSACTION DETAILS OF EACH PERSON AS UNDER BEFORE THE LD. AO. A. SHRI SATISH/MADHU SHARMA (RS. 47 03 000/-): FIRSTLY WE CLARIFY THAT SMT. MADHU SHARMA IS THE WIFE OF SH. SATISH SHARMA AND T HE AMOUNT GIVEN TO THE ASSESSEE WAS FROM THE JOINT A/C OF MADHU SHARMA AND SATISH SHARMA. HENCE SATISH AND MADHU IS ONE. THE ASSESSEE HAD GIVEN LOA NS OF RS.8 13 600/- TO SH. SATISH SHARMA ON VARIOUS DATES IN EARLIER YEARS I.E FROM 09.06.2005 TO 10.10.2006 VIDE BANK STATEMENT OF THE ASSESSEE(PB37 -42). THUS THE ASSESSEE HAS RECEIVED THE LOAN ONLY OF RS. 42 17 400/- FROM SH. SATISH/MADHU SHARMA NOT OF RS. 50 31 000/- OR RS. 47 03 000/- (I.E RS. 8 13 600/- WAS RECOVERY OF LOAN GIVEN BY THE ASSESSEE TO SH. SATISH SHARMA IN EARLIER YEAR ). DURING THE YEAR ASSESSEE HAS REPAID OF RS. 5 94 400/- TO SH. SATISH SHARMA. HENCE THE LOAN REMAINED AT THE YEAR END IS ONLY OF RS. 36 23 400/-. SH. SATISH SHARMA ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 19 HAD GIVEN THIS LOAN TO THE ASSESSEE OUT FROM THE LO AN OF ABOUT RS. 50 LACS TAKEN BY HIM FROM THE DIFFERENT BANKS FOR THE PROOF LOAN BANK DETAILS OF SH. SATISH SHARMA ENCLOSED(PB114) WHICH IS ALSO CLEAR FROM THE BANK STATEMENTS OF MADHU/SATISH(PB222-224)THIS IS SHOWIN G LOAN AMOUNT CREDITED BEFORE AMOUNT GIVEN TO THE ASSESSEE. SH. SATISH SHA RMA IS ON SR. EXECUTIVE POST IN NAVYUG LTD AND HAVING HANDSOME SALARY HE A LSO HAVING INCOME FROM AGRICULTURE ETC.. THAT IS WHY LOOKING THE CAPACITY OR CREDITWORTHINESS OF SH. SATISH SHARMA THE VARIOUS BANK HAD GIVEN HUGE LOAN TO HIM OTHERWISE THE BANKS WOULD NOT GIVE HIM SUCH HUGE LOAN. HE IS REGU LAR INCOME TAX ASSESEE HIS PAN IS AKDPS0965M FOR THE SUPPORT WE HAD FILED AFFIDAVIT OF SH. SATISH SHARMA(PB77-79) NARRATING ALL THE ABOVE FACTS WHICH HAS NOT BEEN REBUTTED BY THE LD. AO TILL DATE. FURTHER THE ASSESSEE HAS ALSO MADE REPAYMENT OF RS. 49 56 000/- TO SH. SATISH SHARMA FROM THE 06.08.2008 TO 06.05.2010. TH US THERE IS NO LOAN AMOUNT IS OUTSTANDING AFTER 06.05.2010 IN THE ASSE SSEE. VIDE BANK STATEMENTS OF THE ASSESSE(PB227-232). B. SH. MAHAVEER PRASAD(RS.35 00 000/-): FIRSTLY SH. MAHAVEER PRASAD HAS TAKEN AMOUNT OF RS. 16 00 000/- ON 30.07.2007 AND R S. 43 000/- ON 03.12.2007 FROM THE ASSESSEE AND THEREAFTER HE HAS GIVEN AMOUNT OF RS. 35 00 000/- ON VARIOUS DATES I.E ON 07.11.2007 22. 02.2008 AND 25.02.2008 TO THE ASSESSEE. THUS THE ASSESSEE HAS TAKEN ONLY OF RS.18 57 000/- FROM SH. MAHAVEER PRASAD. SH. MAHAVEER PRASAD HAS GIVEN LOAN TO THE ASSESSEE OUT OF RS.25 00 000/- FROM THE SALE PROCEED OF HIS AGRICUL TURE LAND AND FROM THE AGRICULTURE INCOME AND SAVINGS. HE IS HAVING INCOME FROM THE AGRICULTURE AND AGRICULTURE PROPERTY SOLD. IN SUPPORT AN AFFIDAVIT OF SH. MAHAVEER PRASAD(PB80-82) SALE DEED OF TWO AGRICULTURE LAND O F SH. MAHAVEER PRASAD WAS ENCLOSED(PB 95-113). AS APPEARING FROM THE BANK STATEMENTS ITSELF. AS ASSESSEE HAD FILED THE AFFIDAVIT NARRATING ALL THE ABOVE FACTS WHICH HAS NOT BEEN REBUTTED BY THE LD. AO TILL DATE. FURTHER THE ALLEGATION OF THE LD. CIT(A) THAT BEFORE ISSUING THE CHEQUE TO THE ASSESSEE THER E WAS CASH DEPOSITS IN THE BANK ACCOUNT. HOWEVER THE LD. CIT(A) HAS IGNORED TH AT THERE WERE ALSO HUGE CASH WITHDRAWAL BEFORE DEPOSITING THE CASH AND ALS O HUGE DEPOSITS THROUGH THE CHEQUES. THERE WERE CONTINUOUS CHEQUE DEPOSITS CHEQUE ISSUING CASH DEPOSITS AND CASH WITHDRAWALS. THE LD. CIT(A) HAS I GNORED WHOLE BANK STATEMENTS. HENCE THE ALLEGATION OF THE LD. CIT(A) IS HALF HEARTEDLY AND SHOULD BE IGNORED. C. SH. VIJAY CHAHAR(RS.2 03 000/-): FIRSTLY THE ASSESSEE HAD GIVEN LOAN/ ADVANCES TO SH. VIJAY CHAHAR (SON OF THE SISTER OF ASSESSEE) IN THE EARLIER YEARS HENCE SH. VIJAY CHAHAR REPAID A SUM OF RS. 2 03 000/- OUT OF THE OPENING CREDIT OF RS. 4 19 000/- TO THE ASSESSEE. H ENCE THE ASSESSEE HAS NOT RECEIVED ANY LOAN FROM SH. VIJAY CHAHAR AS WRONGLY UNDERSTOOD BY THE AO BUT ALSO A RECOVERY FROM THE LOAN/ADVANCES GIVEN TO SH. VIJAY CHAAR. SH. ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 20 VIJAY CHAHAR IS CARRYING ON LEGAL PROFESSION SINCE LAST 10 YEARS. HE HAS REPAID THE SAID AMOUNT FROM THE INCOME OF LEGAL PRO FESSION AND AGRICULTURE. HE IS REGULAR INCOME TAX ASSESSEE AND HIS PAN NO. I S AEAPC6078A. IN SUPPORT AN AFFIDAVIT OF SH. VIJAY CHAHAR WAS FILED (PB 83-85) BEFORE THE AO NARRATING ALL THE ABOVE FACTS WHICH HAS NOT BEEN RE BUTTED BY THE LD. AO TILL DATE. THE ONLY ALLEGATION OF THE LD. CIT(A) THAT T HERE IS CASH DEPOSITS BEFORE ISSUING THE CHEQUE AND NOT FILED ITR THUS THIS IS NOT A LOAN. IT IS NOT WITH THE ASSESSEE TO PREVENT ANY PERSON IN DEPOSITING THE CA SH. D. SH. SURJEET SINGH(RS. 15 00 000): FIRSTLY THE ASSESSEE HAD GIVEN LOAN/ADVANCE OF RS.15 00 000/- TO SH. SURJEET SINGH ON DT. 28.05.2007 THROUGH DD OF RS. 9 00 000/- AN RS. 6 00 000/- FROM THE FUNDS OF RS. 30 00 000/- RECEIVED FROM OTHER PERSONS ON 25.05.20 07 VIDE BANK STATEMENT OF THE ASSESSEE(PB43). FOR REMOVAL OF DOUBT IT IS CLAR IFIED THAT THE ENTRY IN THE BANK STATEMENT IS RS. 9 02 528 AND RS. 6 01 685/- D UE TO THE DD CHARGES. AND SH. SURJEET SINGH HAS RETURNED THIS AMOUNT ON DT.06 /7.09.2007 TO THE ASSESSEE(PB42). HOWEVER THE LD. AO HAS IGNORED THE WITHDRAWALS FOR ADVANCE AS WELL AS RETURNED BACK AND HE ONLY CONSIDERED DEP OSIT WHICH IS NOT JUSTIFIED. SH. SURJEET IS HAVING HANDSOME INCOME FROM RENTAL W HICH GIVEN TO THE AMBANCY NEW DELHI AND AGRICULTURE INCOME. HE IS REG ULAR INCOME TAX ASSESSEE. IN SUPPORT THE ASSESSEE HAS TRIED TO OBTA INED AN AFFIDAVIT AND PAN NO OF HIM. BUT AT THAT TIME HIS FATHER HAS EXPIRED HENCE THE ASSESSEE HAS NOT OBTAINED THE SAME AT THAT NOW THERE IS SOME DISPUTE BETWEEN THE ASSESSEE AND HIM. HENCE THE ASSESSEE HAD REQUESTED TO THE AO TO ISSUE THE SUMMON U/S 131 OF THE ACT IN THE INTEREST OF NATURAL JUSTICE VIDE PAGE 11-12 OF THE ASSESSMENT ORDER BUT THE AO DENIED. HOWEVER THE TRANSACTION IS VERY CLEAR FROM THE BANK STATEMENT OF THE ASSESSEE ITSELF. IN FIRST APPEAL W E HAVE FILED THE AFFIDAVIT(PB212-213) BANK STATEMENT(PB214-216) AND ITR (PB217)OF SH. SURJEET SINGH WITH THE APPLICATION U/R 46A DT. 22.1 2.2015(PB208-211). HOWEVER THE LD. CIT(A) HAS REJECTED THE SAME BY NOT ADMITTING THESE VITAL EVIDENCES. THESE DOCUMENTS ARE IN SUPPORT OF OUR EA RLIER CONTENTIONS. THUS FROM THE ABOVE IT IS CLEAR THAT THE ASSESSEE H AS RECEIVED LOAN ONLY OF RS.54 80 000/- AT THE END OF YEAR FROM TWO PERSONS AS AGAINST WRONGLY CALCULATED BY THE AO AT RS. 99 06 000/- FROM FOUR PERSONS. WHICH HAS ALSO PAID BEEN IN THE SUBSEQUENT YEARS BY THE ASSESSEE. IN ITO V/S COMPUTER FORCE 136 TTJ 221(AHD-B)- ASSESSEE HAVING MADE PAYMENTS TO THE CREDITORS IN THE SUBSEQUENT YEARS WHICH IS C ORROBORATED BY THE LEDGER ACCOUNTS ADDITION IN RESPECT OF SUCH CREDITS CANNOT BE MADE. ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 21 HOWEVER THE LD. AO AND CIT(A) HAVE NOT REBUTTED AL L THESE VITAL FACTS AND EVIDENCES RATHER HE IGNORED THESE VITAL FACTS AND EVIDENCES. AND PROCEEDED ON OWN ASSUMPTION PRESUMPTIONS AND SUSPICION. AND IT IS WELL SETTLED LAW THAT NO ADDITION CAN BE MADE ON ASSUMPTION PRESUMPTIONS AND SUSPICION AS HELD AB OVE. HENCE FROM THE ABOVE THE IDENTITY GENUINENESS AND CREDITWORTHINESS ARE VERY CLERICALLY PROVING AND SUCH EVIDENCE ARE BEYOND ANY DOUBT. THE ASSESSEE HAD FILED THE ADDITIONAL EVIDENCES IN THE FORM OF 1. COPY OF AFFIDAVIT OF SH. SURJEET SINGH COPY OF IT RETURN AND BANK STATEMENT OF SH. SURJEET SINGH AND BANK STATEMENTS OF SH. VIJAY CHAHAR MAHAVEER PRASAD AN D MADHU/SATISH SHARMA AND ON EARLIER OCCASION THE WS HAS ALSO BEEN SENT BY THE L D. CIT(A) TO THE AO FOR HIS COMMENTS. ON BOTH THE OCCASION THE LD. AO HAS SEND HIS REMAND REPORT WITHOUT COMMENTING ON THE WS AND ADDITIONAL EVIDENCE. LOOK ING TO THE BOTH REMAND REPORT IT IS VERY CLEAR THAT THE LD. AO HAS NOT COMPLY THE DI RECTION OF HONBLE ITAT. IT IS ALSO CLEAR THAT HE HAS NOT STATED ANYTHING OR COMMENTED ON THE DOCUMENTS FILED BY THE ASSESSEE I.E HE HAS NOT SPEAK A SINGLE WORD ON THE MERIT OF THE ADDITIONAL EVIDENCE. HE HAS NEITHER REBUTTED THE CONTENTION OF THE ASSESSEE NOR DISPROVED THE SAME WITH THE HELP OF ANY EVIDENCE NOR HE BROUGHT ON RECORD ANY ADVERS E MATERIAL IN SUPPORT OF HIM IT MEANS HE IS FULLY SATISFIED ON THE MERIT OF THE CAS E. FURTHER IN THE APPLICATION U/R 46A WE HAVE ALREADY STATED THAT THE POWER OF THE CIT(A) ARE CO-TERMINUS AND ARE VERY VIDE WITH THOS E OF THE AO AND WHAT AO CAN DO HE CAN DO AND WHAT AO FAIL TO DO THAT ALSO HE CAN DO. DESPITE THESE THE LD. CIT(A) HAS NOT ADMITTED THE SAME WHICH IS AGAINST THE PRIN CIPAL OF NATURAL JUSTICE. HENCE THE ADDITIONS DESERVE TO BE DELETED. 2. SECONDLY IT IS SUBMITTED THAT THE AO MADE ADDITION U/S 68 AS APPEARING FROM THE ASSESSMENT ORDER AND S.68 SAYS- 68. WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR AND THE ASSESSEE OFFERS NO EXPLANATI ON ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT I N THE OPINION OF THE [ASSESSING] OFFICER SATISFACTORY THE SUM SO CREDITED MAY BE C HARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. AND IN THE PRESENT CASE THE AO MADE ADDITION ON THE BASIS OF BANK ACCOUNT U/S 68 AND THE BANK ACCOUNT IS NOT A BOOKS OF ACCOUNT AND IT IS NOT MAINTAINED BY THE ASSESSEE IT IS MAINTAINED BY THE BANK AND AS HELD IN VARIOUS CASES KINDLY REFER LATE SOHAN LAL SAHU 29 TW 9(JP) WHEREIN IT HAS BEEN HELD THAT BANK PASS BOOK & LOOSE PAPERS CANNOT BE TREATED AS ACCOUNT BOOK. CIT V/S BHAI CHAND H. GANDHI 141 ITR 67(BOM) WHERE BANK PASS BOOK NOT HELD BOOKS OF ACCOUNTS. ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 22 IN MS. MAYAWATI V/S DCIT 113 TTJ 178(DEL) IT HAS BEEN HELD THAT WHERE THE ASSESSEE DOES NOT MAINTAIN ANY BOOKS OF ACCOUNT S. 68 CANNOT BE INVOKED BALANCE SHEET OR STATEMENT OF AFFAIRS CANNOT BE EQUATED TO BOOKS OF ACCOUNT BANK PASS BOOK IS NOT A BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE W ITHIN THE MEANING OF S. 68 . HERE ALSO THE AO MADE ADDITION ON THE BASIS OF DEPO SIT IN BANK ACCOUNT. ALSO REFER JAWAHAR LAL OSWAL V/S ACIT 71 TTJ 240(CHD.) AND KIS HORE LAHOTI VS. ACIT 27 TW 164. IN THE CASE OF SHERATON APPARELS V/S CIT 25 6 ITR 20(BOM.) MEANING OF BOOKS OF ACCOUNT HAS BEEN DEFINED . 3. IF IT IS DEEMED THAT AO RIGHTLY MADE ADDITION U/S 6 8 THAN KINDLY CONSIDER FOLLOWING SUBMISSIONS 4. SOURCES EXPLAINED WITH EVIDENCE AND NOT REBUTTED BY THE AO: THE LOWER AUTHORITY ALLEGED THAT THE APPELLANT COULD NOT FILE SATISFACT ORY REPLY AND PRODUCE THE PERSONS TO PROVE THE GENUINENESS OF THE TRANSACTION AND TO PROVE THE CREDITWORTHINESS. HOWEVER THE APPELLANT HAS FULLY EXPLAINED THE SOURC ES OF SUCH DEPOSITS IN BANK ACCOUNT BEFORE THE LD. AO VIDE PARA2 OF ABOVE. IN S UPPORT ASSESSEE HAD FILED AFFIDAVIT I.T PARTICULARS OF THESE PERSONS(PB77-85) BANK STAT EMENTS(PB214-224). THESE PERSON DULY ACCEPTED OF GIVING MONEY TO THE APPELLANT AS A PPEARING FROM THE ABOVE DOCUMENTS. FROM THESE DOCUMENTS IT IS NOT APPEARING THAT THESE ARE BOGUS. THE LOWER AUTHORITY MERELY PROCEEDED ON HIS OWN SUSPICION WIT HOUT MAKING ANY ENQUIRY DESPITE THE REQUEST MADE BY THE ASSESSEE U/S 131 OR WITHOUT GIVING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS DIRECTED BY THE HONB LE ITAT. 5.1. ASSESSING OFFICER MUST FORM OPINION BY APPLYIN G HIS MIND - A BARE READING OF SECTION 68 SUGGESTS THAT THERE HAS TO BE CREDIT OF AMOUNTS IN THE BOOKS MAINTAINED BY THE ASSESSEE THAT SUCH CREDIT HAS TO BE OF A SUM D URING THE PREVIOUS YEAR AND THAT THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF SUCH CREDIT FOUND IN THE BOOKS OR THE EXPLANATION OFFERED BY THE ASSESSEE I N THE OPINION OF THE ASSESSING OFFICER IS NOT SATISFACTORY. IT IS ONLY THEN THE S UM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PR EVIOUS YEAR. THE EXPRESSION THE ASSESSEE OFFERS NO EXPLANATION MEANS WHERE THE ASS ESSEE OFFERS NO PROPER REASONABLE AND ACCEPTABLE EXPLANATION AS REGARDS TH E SUMS FOUND CREDITED IN THE BOOKS MAINTAINED BY THE ASSESSEE. IT IS TRUE THAT T HE OPINION OF THE ASSESSING OFFICER FOR NOT ACCEPTING THE EXPLANATION OFFERED BY THE AS SESSEE AS NOT SATISFACTORY IS REQUIRED TO BE BASED ON PROPER APPRECIATION OF MATE RIAL AND OTHER ATTENDING CIRCUMSTANCES AVAILABLE ON RECORD. THE OPINION OF T HE ASSESSING OFFICER IS REQUIRED TO BE FORMED OBJECTIVELY WITH REFERENCE TO THE MATERIA L AVAILABLE ON RECORD. APPLICATION OF MIND IS THE SINE QUA NON FOR FORMING THE OPINION - CIT V. P. MOHANAKALA [2007] 161 TAXMAN 169 / 291 ITR 278 (SC). ON PERUSAL OF ASSESSMENT ORDER IT IS CLEAR THAT THE AO DID NOT CONSIDER THE MATERIAL AVAILABLE ON RECORD. ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 23 5.2 IN THE CASE OF CIT V/S REAL TIME MARKETING (P) LTD 306 ITR 35 (DE L) IT HAS BEEN HELD THAT AO MADE THE ADDITION TOWARDS UNEXPL AINED CASH CREDIT ON THE BASIS THAT IT WAS THE ASSESSEES MONEY(RS. 22 97 000/-) W HICH WAS DEPOSITED IN CASH IN THE ACCOUNT OF FBSL AND ROUTED THROUGH DIFFERENT ACCOUN TS AND WAS RECEIVED AS UNSECURED LOAN BY THE ASSESSEE- ON APPEAL CONCURRE NT FINDINGS OF FACTS RECORDED BY THE CIT(A) AND TRIBUNAL THAT THERE IS NO MATERIAL T O LINK THE ASSESSEE WITH THE AMOUNT DEPOSITED IN CASH IN THE BANK ACCOUNT OF FBSL AND T HUS NO CASE IS MADE OUT FOR MAKING ADDITION HERE IS THE SAME FACTS AND POSITI ON. 5.3 IN THE CASE OF CIT V/S S.D. INVESTMENT & TRADING CO. 306 ITR 31(BO M) IT HAS BEEN HELD THAT THE EXPLANATION OF THE ASSESSEE THAT CASH DEPOSIT IN BANK ACCOUNT REPRESENTED ADVANCE AGAINST SALE OF AIR-CONDITIONER WAS SATISFACTORY AS THE PARTIES CONFIRMED LEDGER ENTRIES HENCE NO ADDITION IS CALLE D FOR. HERE IS ALSO SAME POSITION AS THE ASSESSEE RECEIVED AMOUNT FROM THE 3-4 PERSON S WHICH WERE DEPOSITED IN BANK THROUGH ACCOUNT PAYEE CHEQUE. 6.1 THE ABOVE MATTER IS COVERED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT V/S LOVELY EXPORTS (P) LTD 216 CTR 195(SC) WHEREIN IT HAS BEEN HELD THAT IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHARE HOLDERS WHOSE NAMES ARE GIVEN TO THE A O THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN THEIR INDIVIDUAL ASSESSMENT IN AC CORDANCE WITH LAW BUT IT CANNOT BE REGARDED AS UNDISCLOSED INCOME OF ASSESSEE COMPA NY FURTHER WE MAY SUBMIT THAT THE PRESENT CASE IS ALSO DIRECTLY COVERED BY THE DECISION OF CIT VS. FIRST POINT FINANCE LTD 286 ITR 477 (RAJ.) BY HOLDING THAT IT IS NOT DENIED THAT ALL THE SHARE HOLDERS/SHARE APPLICA NTS ARE GENUINELY EXISTING PERSONS. IT IS ALSO NOT DENIED THAT EACH OF THEM IS AN INCOM E TAX ASSESSEE AND THE COPIES OF THE RETURN OF THEIR INCOME WERE ALSO PLACED BEFORE THE AO BY THE ASSESSEE WHICH FACTS IS ALSO NOT DENIED . IN THESE CIRCUMSTANCES NO MATERI AL HAS BEEN BROUGHT ON RECORD EXCEPT INFERRING THAT THE INVESTOR IN THE OPINION O F THE AO WAS NOT CREDITWORTHY TO LINK THE ASSESSEE WITH SUCH INVESTMENT OF MONEY MADE BY THOSE PERSONS. THERE IS NO PRESUMPTION THAT THE ASSESSEE IS THE BENAMI OWNER O F THE INVESTMENT MADE BY THE EXISTING PERSONS. THE SHARE HOLDER FILED THEIR CON FIRMATION FROM SUCH INVESTORS HAS BEEN OBTAINED AND THEIR STATEMENT WERE ALSO RECORDE D. THE ASSESSEE DID DISCHARGE THE INITIAL ONUS CAST UPON IN THIS CASE. FURTHER IN THE CASE OF CIT VS. FIRST POINT FINANCE LTD (SUPRA) THE HONBLE HIGH COURT FOLLOWED THE FOLLOWING OBSERV ATION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF STELLER INVESTMENT LTD. 192 ITR 287 WHICH HAS NOW BEEN AFFIRMED BY THE HON'BLE SUPREME COURT ALS O IN THE CASE OF STELLER INVESTMENT 251 ITR 263. THE RATIO LAID DOWN IN THIS CASE WAS THAT SEC.68 SHALL NOT APPLY ON SHARE APPLICATION MONEY. '13 WE HAVE CONSIDERED THE RIVAL CONTENTIONS RELEVANT MATERIAL ON RECORD AS ALSO THE CITED DECISIONS. IN 192 ITR 2 87 STELLER INVESTMENT LTD. HONBLE DELHI HIGH COURT HAS LAID DOWN AS UNDER: ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 24 'IT IS EVIDENT THAT EVEN IF IT BE ASSUMED THAT THE SUBSCRIBERS TO (THE SUBSCRIBERS TO) THE INCREASED SHARE CAPITAL WERE NOT GENUINE NEVERTHELESS UNDER NO CIRCUMSTANCES CAN THE AMOUNT OF SHARE CAPITAL BE REGARDED AS UNDISCLOSED INCOME OF THE ASSESSEE. IT MAY BE THAT THERE ARE SOME BOGUS SHAREHOLDERS IN WHOSE NAM ES SHARES HAD BEEN ISSUED AND THE MONEY MAY HAVE BEEN PROVIDED BY S OME OTHER PERSONS. IF THE ASSESSMENT OF THE PERSONS WHO ARE ALLEGED TO HAVE REALLY ADVANCED THE MONEY IS SOUGHT TO BE REOPENED THAT WOULD H AVE MADE SOME SENSE BUT WE FAIL TO UNDERSTAND AS TO HOW THIS AMOUNT OF INCREASED SHARE CAPITAL CAN BE ASSESSED IN THE HANDS OF THE COMPANY ITSELF.' 7. INITIAL ONUS DISCHARGED: FURTHER IT IS SUBMITTED THAT EVEN ASSUMING S. 68 A PPLIES IT IS ONLY INITIAL ONUS WHICH LAY UPON THE ASSESSEE TO PROVE THE IDENTITY AND THE CAPACITY OF THE CREDITOR AND THE GENUINENESS OF THE TRANSACTION AND ONCE THIS INITIAL ONUS IS DISCHARGED IT SHIFTS TO THE AO TO REBUT/ D ISPROVE THE SAME FOR MAKING A VALID ADDITION U/S 68. KINDLY REFER CIT VS SHREE BARKHA SYNTHETICS 182 CTR 175 (RAJ). T HE HONBLE RHC AGAIN REITERATED THE SAME VIEW IN CIT VS. FIRST POINT FINANCE LTD 286 ITR 477 (RAJ.) HOLDING THAT THIS COURT HELD AFTER REFERRING TO TH E AFORESAID DECISIONS THAT ONCE THE INITIAL BURDEN HAS BEEN DI SCHARGED IN RESPECT OF THE IDENTITY OF INVESTORS ABOUT THEIR EXISTENCE AND THE CONFIRMAT ION FROM SUCH INVESTORS HAS BEEN OBTAINED THE BURDEN SHIFTS TO THE REVENUE TO PROVE OTHERWISE NOT ONLY THAT THE INVESTED AMOUNT DID NOT BELONG TO THE CREDITORS BUT FURTHER IT HAS TO PROVE THE SAID AMOUNT BELONGING TO THE ASSESSEE. THE ASSESSEE DID DISCHARGE THE INITIAL ONUS CAST UPON IN THIS CASE. I. IDENTITY ESTABLISHED: THE IDENTITY OF ALL THE PERSONS STOOD PROVED IN AS MUCH AS THE APPELLANT FILES NAME ADDRESS PAN BANK STATEMENTS AND AFFIDAVIT OF ALL THE PERSON. AS ALL THESE PERSON (EXCEPT ONE ) ARE IT ASSESSEE THUS IDENTITY IS VERIFIABLE. THUS THE IDENTITY OF ALL THE PERSONS STOOD ESTABLISHED. II. GENUINE TRANSACTION: GENUINENESS OF TRANSACTION IS ALSO DULY AND FULLY ESTABLISHED UNDER THE PECULIAR FACTS AND CIRCUMSTAN CES OF THE CASE IN AS MUCH AS THE RECEIPT OF THE SUBJECTED AMOUNTS WERE ADMITTEDLY DU LY HAVE BEEN RECEIVED BY ACCOUNT PAYEE CHEQES FROM THEM AS APPEARING FROM THEIR DOCU MENTS. ADMITTEDLY THERE ARE NO CASH TRANSACTIONS FROM WHOM AMOUNT RECEIVED OR PAID . III. CAPACITY PROVED: ALL THE PERSONS(EXCEPT ONE) ARE IT ASSESSEE AND FUL LY EXPLAINED THE SOURCES OF LOAN GIVEN THUS HAVING SUFFICIENT E ARNING AND FUNDS. THE ASSESSEE THUS DULY DISCHARGED THE INITIAL BURD EN LAY UPON IT TO WHICH EXTENT ONLY IT WAS RESPONSIBLE AS HELD EARLIER IN CIT VS. ORISSA CREDIT CORP. LTD. 159 ITR 78 (SC) HELD THAT INCOMECASH CREDITBURDEN OF PROOFASSESS EE HAD GIVEN THE NAMES AND ADDRESSES OF THE CREDITORSIT WAS IN THE KNOWLE DGE OF THE REVENUE THAT THE SAID CREDITORS WERE INCOME-TAX ASSESSEESTHEIR INDEX NUM BER WAS IN THE FILE OF THE REVENUEREVENUE APART FROM ISSUING NOTICES UNDER S. 131 AT THE INSTANCE OF THE ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 25 ASSESSEE DID NOT PURSUE THE MATTER FURTHERREVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WH ETHER THEY WERE CREDITWORTHY OR WERE SUCH WHO COULD ADVANCE THE ALLOWED LOANSTRIBU NAL CAME TO THE CONCLUSION THAT THE ASSESSEE HAS DISCHARGED THE BURDEN THAT LA Y ON HIM THEN IT COULD NOT BE SAID THAT SUCH A CONCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCEHIGH COURT WAS THEREFORE RIGHT IN REFUSING TO REFER TH E QUESTIONS SOUGHT FOR AND RECENTLY REFERRED IN CIT VS P. MOHAN KALA 291 ITR 279 (SC) . IDENTITY ESTABLISHED: IT IS FURTHER SUBMITTED THAT EVEN ASSUMING THE RATI O SO LAID DOWN IN THE CASE OF SOPHIA FINANCE LTD. 205 ITR 98 (DEL.) IS HELD APPLICABLE I. E . WHAT IS REQUIRED IS ONLY TO ESTABLISH THAT THERE EXISTED A SHAREHOLDER AND THE PAYMENT WAS REALLY MADE BY IT WHICH STANDS ESTA BLISHED IN THE PRESENT CASE AS WOULD APPEAR FROM THE ABOVE DOCUMENTS ENCLOSED. THUS IDENTITY OF ALL THESE PERSONS STOOD ESTABLISHE D BEYOND DOUBT. 8. ONUS WAS TO BE DISCHARGED BY THE AO : ON THE OTHER HAND WHEN THE ONUS NOW SHIFTS ON THE AO THE SAME WAS TO BE DISCHARGED BY H IM. THE LD. AO DESPITE HAVING ALL THE RELEVANT INFORMATIONS COULD NOT REBUT THE MATE RIAL AVAILABLE WITH HIM WITH THE EVIDENCE AND ALSO REQUEST FOR SUMMON HAS DENIED. HE HAS PROCEEDED ONLY ON SUSPICION. AN ALLEGATION REMAINS A MERE ALLEGATION UNLESS PROVED. SUSPICION CANNOT TAKE THE PLACE OF REALITY ARE THE SETTLED PRINCIPL ES KINDLY 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). ALL THE ADDITION DESERVES DELETION ON THIS SUBMISSION ALONE. THE AO NEITHER SPEAK A SINGLE WORD ON THE E VIDENCES FILED BY THE APPELLANT NOR REBUTTED THE SAME WITH THE HELP OF ANY SUPPORTING E VIDENCE. ALSO REFER CIT V/S KULWANT RAI 291 ITR 36( DEL). KINDLY REFER A VERY RECENT DECISION IN LABHCHAND BOHRA V/S ITO ( 2008) 8 DTR 44 (RAJ.)- HELD: CASH CREDIT- BURDEN OF PROOF- IDENTITY OF THE CREDI TORS ESTABLISHED AND THEY CONFIRMED THE CREDIT. THIS DISCHARGED THE BURD EN OF ASSESSEE TO PROVE GENUINENESS. HOWEVER CAPACITY OF THE LENDER TO ADVA NCEMENT MONEY TO ASSESSEE WAS NOT A MATTER WHICH THE ASSESSEE COULD BE REQUIRED T O ESTABLISH AND THAT WOULD AMOUNT TO CALLING UPON HIM TO ESTABLISH THE SOURCE OF SOUR CE. HENCE ADDITION CANNOT BE SUSTAINED. ALSO REFER KANHAIALAL JANGID VS. ACIT (2008) 8 DTR 38 (RAJ.) ( 217 CTR 354) HELD INCOME CASH CREDIT BURDEN OF PROOF ASSESSEE HAV ING FILED CONFIRMATION FROM THE CREDITOR AND HAVING PRODUCED THE CREDITOR BEFORE AO WHERE THE CREDITOR AFFIRMED ADVANCEMENT OF LOAN TO ASSESSEE NO ADDITI ON UNDER S. 68 COULD BE MADE IN THE HANDS OF ASSESSEE ON THE GROUND THAT THE CREDIT OR COULD NOT SATISFACTORILY EXPLAIN THE SOURCE OF LOAN- BURDEN ON THE ASSSESSEE IN SUCH CASES DOES NOT EXTEND TO PROVE THE SOURCE OF THE CREDITOR FROM WHERE HE MADE THE ADVAN CE TO THE ASSESSEE. ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 26 ALSO REFER ARAVALI TRADING CO. V/S ITO 8 DTR 199 HELD THAT ONCE THE EXISTENCE OF THE CREDITORS IS PROVED AND SUCH PERSONS OWN THE CR EDITS WHICH ARE FOUND IN THE BOOKS OF THE ASSESSEE THE ASSESSEE'S ONUS STAND DISCHARG ED AND THE LATTER IS NOT FURTHER REQUIRED TO PROVE THE SOURCES FROM WHICH THE CREDI TORS COULD HAVE ACQUIRED THE MONEY DEPOSITED WITH HIM AND THEREFORE THE ADDITIO N U/S 68 CANNOT BE SUSTAINED IN THE ABSENCE OF ANYTHING TO ESTABLISH THAT THE SOURC ES OF THE CREDITORS DEPOSITS FLEW FROM THE ASSESSEE ITSELF. 9. NO SUMMON U/S 131 DESPITE THE REQUEST: DURING THE COURSE ASSESSMENT PROCEEDINGS THE ASSESSEE STATED THAT THE PERSONA AR E OUT OF STATION AND REQUESTED TO ISSUE SUMMONS U/S 131 OF THE ACT TO THESE PERSONS V IDE PARA 7.3 PAGE 11 OF THE ASSESSMENT ORDER. HOWEVER THE LD. AO HAS NEITHER IS SUED THE SUMMON TO THESE PERSON DESPITE THE REQUEST MADE BY THE ASSESSEE NOR ALLOWE D THE TIME DESPITE THE DIRECTION OF THE HONBLE ITAT. THE LD. AO STATED THAT THE REQUEST OF THE ASSESSEE TO ISSUE THE SUMMONS IS NOT ACCEPTABLE AS PRIMA FACIE THE ASSESS EE WAS LIABLE TO PRODUCE THE PERSONS. HE ALLEGED THAT THE ASSESSEE HAS NOT MADE ANY EFFORT IN SPITE OF GIVING SEVERAL OPPORTUNITY OF BEING HEARD TO HIM. THE ACTION OF THE AO IN NOT ISSUING THE SUMMON IS I LLEGAL AND THE COURTS HAS DELETED THE ADDITION ONLY ON THIS REASONS. KINDLY REFER FOL LOWING JUDICIAL PRONOUNCEMENTS. 9.1. IN THE CASE OF CIT VS. ORISSA CREDIT CORP. LTD . 159 ITR 78 (SC) HELD THAT INCOMECASH CREDITBURDEN OF PROOFASSESSEE HAD GIV EN THE NAMES AND ADDRESSES OF THE CREDITORSIT WAS IN THE KNOWLEDGE OF THE REV ENUE THAT THE SAID CREDITORS WERE INCOME-TAX ASSESSEESTHEIR INDEX NUMBER WAS IN THE FILE OF THE REVENUEREVENUE APART FROM ISSUING NOTICES UNDER S. 131 AT THE INSTANCE OF THE ASSESSEE DID NOT PURSUE THE MATTER FURTHERREVENUE DID NOT EXAMINE T HE SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY WERE CRE DITWORTHY OR WERE SUCH WHO COULD ADVANCE THE ALLOWED LOANSTRIBUNAL CAME TO THE CONC LUSION THAT THE ASSESSEE HAS DISCHARGED THE BURDEN THAT LAY ON HIM THEN IT COULD NOT BE SAID THAT SUCH A CONCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENC EHIGH COURT WAS THEREFORE RIGHT IN REFUSING TO REFER THE QUESTIONS SOUGHT FOR 9.2 IN THE CASE OF CIT VS. VARINDER RAWLLEY (2014) 366 ITR 232 (P&H) HELD THAT IT HAS COME ON RECORD THAT THE ASSESSEE-RESPONDENT REC EIVED THE AMOUNT BY WAY OF AN ACCOUNT PAYEE CHEQUE. THE AMOUNT WAS RETURNED BY WA Y OF AN ACCOUNT PAYEE CHEQUE. THE TRANSACTIONS WERE REFLECTED IN THE BANK ACCOUNT S OF THE ASSESSEE AS WELL AS THE CREDITOR. THE FIRM M/S VISHNU JEWELLERS WAS AN INCO ME TAX ASSESSEE. ITS PAN CARD WAS PLACED ON RECORD. THE ASSESSEE HAD FILED THE CO PY OF THE ACCOUNT OF M/S VISHNU JEWELLERS IN HIS BOOKS OF ACCOUNT. THE ASSESSEE HAD ON THREE OCCASIONS INFORMED THAT THE FIRM WAS NOT UNDER HIS CONTROL AND HE IS UNABLE TO PRODUCE IT BEFORE THE ASSESSING OFFICER. HE HAD REQUESTED THE ASSESSING OFFICER TO DIRECTLY MAKE ENQUIRIES. IT APPEARS THAT NO ENQUIRY WAS MADE BY THE ASSESSING AUTHORITY . IF THE ASSESSING OFFICER HAD ANY ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 27 DOUBTS ABOUT THE ENTRY INSTEAD OF DRAWING ANY INFE RENCE THE ASSESSING OFFICER COULD HAVE SUMMON ED THE PROPRIETOR OF THE FIRM. NO ATTEMPT WAS MADE BY THE ASSESSING OFFICER TO ASCERTAIN THE FACTUM OF CLEARANCE OF CHE QUE FROM THE BANK AND SUBSEQUENT REFUND OF THE AMOUNT. ONCE IT IS SO IN OUR VIEW TH E ASSESSEE HAD SUFFICIENTLY DISCHARGED THE BURDEN WHICH LAY UPON IT TO EXPLAIN THE NATURE AND SOURCE OF THE CREDIT ENTRY APPEARING IN ITS ACCOUNTS AND THE BURDEN CLEA RLY SHIFTED IN THE PRESENT CASE ON TO THE DEPARTMENT TO PROVE TO THE CONTRARY AND HOLD THAT IN SPITE OF THE ASSESSEES EXPLANATION THE ENTRIES COULD STILL BE HELD TO REP RESENT THE ASSESSEES INCOME. THE ASSESSING OFFICER FAILED TO INVOKE THE PROVISIONS U NDER SECTION 131 OF THE ACT THE TRIBUNAL HAS RIGHTLY CONCLUDED THAT IT WAS SUFFICIE NT TO DELETE THE ADDITION. 9.3 ALSO REFER CIT V/S FAIR FINVEST PVT. LTD 357 ITR 146(DEL) WHERE IT HAS BEEN HELD INCOMECASH CREDITSHARE APPLICATION MONEYACCOMMOD ATION ENTRIES ADDITIONDELETION THEREOFADDITION ON ACCOUNT OF SH ARE APPLICATION MONEY RECEIVED DURING PREVIOUS YEAR WAS MADE TO INCOME OF ASSESSEE IN REASSESSMENT PROCEEDINGS ON BASIS OF INVESTIGATION REPORT RECEIV ED BY AOITAT UPHELD ORDER OF CIT(A) ALLOWING APPEAL OF ASSESSEEHELD THE LEAST THAT AO OUGHT TO HAVE DONE WAS TO ENQUIRE INTO MATTER BY IF NECESSARY INVOKING H IS POWERS U/ S 131 SUMMONING SHARE APPLICANTS OR DIRECTORSNO EFFORT WAS MADE IN THAT REGARDIN ABSENCE OF ANY SUCH FINDING THAT MATERIAL DISCLOSED WAS UNTRUSTWORTHY O R LACKED CREDIBILITY AO MERELY CONCLUDED ON BASIS OF ENQUIRY REPORT WHICH COLLECT ED CERTAIN FACTS AND STATEMENTS THAT INCOME SOUGHT TO BE ADDED FELL WITHIN DESCRIPT ION OF SECTION 68IMPUGNED ORDER UPHELDAPPEAL DISMISSED 9.4 IN CIT V/S ABDUL AZIZ 72 DTR 216(CHHATTISGARH)- HELD THAT NO INDEPENDED INQUIRY WAS MADE BY THE A AO TO DISPROVE THE CREDIT WORTHINESS OF THE CREDITORS AS ESTABLISHED BY THE AFFIDAVITS AND STATEMENT SHOWING SOURCE OF INCOME. HENCE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITIONS. 9.5. IN THE CASE OF PRAKASH CHAND NAHATA V/S CIT 30 1 ITR 134(MP) HELD THAT IN THE OBTAINING FACTUAL MATRIX THE SEMINAL QUESTI ON IS WHETHER THE SAID STATEMENT OF MOHD. RASHID COULD HAVE BEEN UTILISED AGAINST THE A SSESSEE WITHOUT CALLING HIM FOR CROSS-EXAMINATION. IT IS OF IMMENSE SIGNIFICANCE TH AT MOHD. RASHID HAS FILED AN AFFIDAVIT IN VARIANCE OF HIS ORIGINAL STATEMENT. TH AT APART THE AO HAS IGNORED THE AFFIDAVIT AND ASCRIBED REASONS HOW THE TRANSACTION WITH SAID MOHD. RASHID WAS NOT WORTH GIVING CREDENCE. THE GENUINENESS OF BILLS PRO DUCED BY THE ASSESSEE HAS NOT BEEN ACCEPTED EXCLUSIVELY ON THE BASIS THAT THE SAI D MOHD. RASHID WAS A SMALL BUSINESSMAN AND WAS NOT ASSESSED TO INCOME-TAX. THE AFORESAID CIRCUMSTANCES ELOQUENTLY SPEAK THAT THE ADDITION IN THE ORDER OF ASSESSMENT HAS BEEN MADE ON THE BASIS OF THE STATEMENT MADE BY MOHD. RASHID. THERE IS NO CAVIL THAT A PRAYER WAS MADE UNDER S. 131 OF THE ACT TO SUMMON SAID MOHD. RASHID FOR CROSS-E XAMINATION. THAT HAS NOT BEEN DONE. THE LANGUAGE EMPLOYED UNDER S. 131 OF THE ACT EMPOWERS THE AO TO ENSURE THE ATTENDANCE OF ANY PERSON. WHEN THE STATEMENT OF MOHD. RASHID WAS USED AGAINST THE ASSESSEE AND AN AFFIDAVIT WAS FILE D CONTROVERTING THE SAME WE ARE ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 28 DISPOSED TO THINK IT WAS OBLIGATORY ON THE PART OF THE AO TO ALLOW THE PRAYER FOR CROSS-EXAMINATION. THAT WOULD HAVE BEEN IN THE FITN ESS OF THINGS AND IN COMPLIANCE OF PRINCIPLES OF NATURAL JUSTICE. 10. IN VIEW OF THE AFORESAID WE ANSWER THE REFERENCE H OLDING THAT AS THE AO HAD NOT SUMMONED MOHD. RASHID THE PROPRIETOR OF M/S RASHID & CO. JABALPUR IN SPITE OF THE REQUEST MADE UNDER S. 131 OF THE ACT THE EVIDENCE OF SAID MOHD. RASHID COUL D NOT HAVE BEEN USED AGAINST THE ASSESSEE AND IN THE ABSE NCE OF AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD BY SUMMONING THE SAID WI TNESS THE ASSESSMENT ORDER IS VITIATED AND CANNOT BE SAVED AS THE ADDITION HAS BE EN MADE ON THE FOUNDATION OF HIS DEPOSITION. 11. IN VIEW OF THE ABOVE SUBMISSIONS THE ADDITION SO M ADE BY THE AO U/S 68 ON ACCOUNT OF ENTRIES IN THE BANK ACCOUNT IN THE NAME OF FOUR PERSONS MAY KINDLY BE DELETED IN FULL. 4.3 ON THE OTHER HAND THE LD. DR SUPPORTED THE ORD ERS OF THE LOWER AUTHORITIES. 4.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS OBSERVED THAT IN THE COU RSE OF ORIGINAL ASSESSMENT PROCEEDING THE AO OBSERVED THAT THERE WE RE HUGE BANK TRANSACTIONS WITH THE OTHER PARTIES AMOUNTS OF RS. 99 06 000/- WERE CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE ON VAR IOUS DATE MAINTAINED WITH ORIENTAL BANK OF COMMERCE IN THE NAME OF FOUR PERSONS(RS.47 03 000/- OF SH. SATISH KUMAR SHARMA RS.35 00 00/-OF SH. MAHAVEER PRASAD RS.2 03 000/- OF SH.VIJAY CHAHAR A ND RS.15 00 000/- OF SH. SURJEET SINGH) VIDE AT PAGE 9 OF THE ASSESSM ENT ORDER. THE AO REQUIRED THE ASSESSEE TO EXPLAIN THE ENTIRE AMOUNT CREDITED IN HIS BANK ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 29 ACCOUNT. IN RESPONSE THERETO THE ASSESSEE STATED TH AT THE DEPOSITS IN THE BANKS ARE OUT OF SALE OF AGRICULTURE PRODUCE RECOV ERY FROM ADVANCE GIVEN TO THESE PERSONS AND UNSECURED LOAN TAKEN FROM THE PARTIES. HOWEVER THE AO WAS OF THE VIEW THAT THE ASSESSEE COULD NOT FILE SATISFACTORY REPLY TO PROVE THE GENUINENESS OF THE TRANSACTIONS AND CREDI TWORTHINESS OF SUCH PARTIES. THEREFORE AMOUNT OF RS.99 06 000/- IS FOUN D AS UNEXPLAINED CREDIT IN THE BANK ACCOUNT OF THE ASSESSEE AND THE SAME IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4.4.1 IN FIRST APPEAL IN FIRST ROUND THE ASSESSEE FILED THE DETAILS OF THE BANK ACCOUNT AND ALSO FILED THE AFFIDAVIT OF PERSON COPY OF ACCOUNT OF SH. VIJAY CHAR SALE DEED OF AGRICULTURE LAND BY SH. MA HAVEER PRASAD LOAN DETAILS TAKEN BY SH. SATISH SHARMA. IN REMAND PROCE EDINGS FOR WANT OF SUFFICIENT TIME FULL DETAILS COULD NOT BE PRODUCE D. HENCE THE LD.CIT(A)- 1 JAIPUR HAS DECIDED THE MATTER AND CONFIRMED THE ADDITIONS MADE BY THE AO VIDE ORDER IN APPEAL NO.425/10-11 DATED 20.01.20 12. 4.4.2 AGAINST THE ORDER OF THE LD. CIT(A THE AS SESSEE FILED AN APPEAL BEFORE THE ITAT JAIPUR BENCH WHICH VIDE ORDER DA TED 18.10.2012 IN ITA NO. 372/JP/2012 WAS SET- SIDE TO THE LOWER AU THORITIES AND REMANDED BACK TO THE FILE OF THE AO FOR FRESH ADJUD ICATION IN ACCORDANCE ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 30 WITH LAW FOR RE-EXAMINATION ON THE ISSUE OF ADDITIO N MADE ON ACCOUNT OF DEPOSITS IN THE BANK BY GIVING FOLLOWING DIRECTION: WE THEREFORE DEEM IT FIT AND PROPER TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) ON THIS ISS UE AND REMAND BACK TO THE FILE OF THE AO FOR FRESH ADJUDIC ATION IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4.4.3 THE A/R HAS ARGUED BEFORE US THAT IN CONSEQ UENT THERETO THE AO HAS ISSUED NOTICE U/S 143(2)/142(1) ON 22.01.2014 A FTER 15 MONTHS FIXING THE CASE FOR 04.02.2014. IN RESPONSE THERETO THE AS SESSEE FILED DETAILED REPLY WITH THE DETAILS AND EVIDENCES VIDE LETTER DT . 03.02.2014 (PB137- 141). ON 12.02.02014 THE ASSESSEE FILED LETTER ST ATING THAT THE PERSON FOR RECORDING THEIR STATEMENTS HAVE BEEN CONTACTED BUT THEY ARE UNABLE TO APPEAR ON THIS DAY AS THEY ARE RESIDING OUT OF JAIP UR AND WERE BUSY IN THEIR AFFAIRS. THE AO ADJOURNED THE CASE ON 19.02.2 014. ON 19.02.2014 THE ASSESSEE STATED THAT THE PERSONS ARE OUT OF STA TION AND REQUESTED TO ISSUE SUMMONS U/S 131 OF THE ACT TO THESE PERSONS VIDE PARA 7.3 AT PAGE 11 OF THE ASSESSMENT ORDER. HOWEVER THE AO HAS NEIT HER ISSUED THE SUMMON TO THESE PERSON DESPITE THE REQUEST MADE BY THE ASSESSEE NOR ALLOWED THE TIME DESPITE THE DIRECTION OF THE HON'B LE ITAT. THE AO STATED THAT THE REQUEST OF THE ASSESSEE TO ISSUE TH E SUMMONS IS NOT ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 31 ACCEPTABLE AS PRIMA FACIE THE ASSESSEE WAS LIABLE T O PRODUCE THE PERSONS (PAGE 11 PARA 7.4 OF THE ASTT ORDER).THE AO OBSERVE D THAT THE PERSONS IN WHOSE NAME AMOUNTS WERE CREDITED INTO THE BANK ACCO UNT OF THE ASSESSEE COULD NOT BE EXAMINED. MOREOVER IN THE ABSENCE OF BANK STATEMENT OF THESE PARTIES CREDITWORTHINESS COULD NOT BE VERIFI ED. THE AO ALSO OBSERVED THAT MERELY SAYING THAT THE DEPOSITS IN T HE BANK ACCOUNT ARE ON ACCOUNT OF RECOVERY FROM THE PERSONS TO WHOM ADVANC ES WERE GIVEN BY THE ASSESSEE IN THE EARLIER YEARS AND THIS YEAR IS NOT SUFFICIENT EXPLANATION ESPECIALLY WHEN HUGE AMOUNTS WERE CREDITED IN HIS B ANK ACCOUNT ON REGULARLY BASIS (PAGE 12 OF ASTT ORDER). THUS THE A MOUNT OF RS.99 06 000/- ARE FOUND AS UNEXPLAINED CREDITS IN THE BANK ACCOUN T OF THE ASSESSEE AND THE AO IS ADDED THE SUM OF RS. 99 06 000/- TO THE TOTAL INCOME OF THE ASSESSEE. IN FIRST APPEAL THE ASSESSEE HAS FILED THE WRITTEN SUBMISSION AND EVIDENCES WHICH HAS BEEN SENT BY THE LD. CIT(A) TO THE AO FOR HIS COMMENTS. HOWEVER THE AO WITHOUT PROVIDING ADEQUAT E OPPORTUNITY TO THE ASSESSEE HAS SENT HIS REMAND REPORT DATED 31.0 8.2015 (PB204-207) IN WHICH HE HAS SUPPORTED THE ASSESSMENT ORDER PASSE D BY PREDECESSOR AO. THEREAFTER THE ASSESSEE HAS BEEN ABLE TO GET THE AF FIDAVITS ITR BANK STATEMENT OF SH. SURJIT SINGH AND BANK STATEMENTS O F THE OTHER THREE ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 32 PERSONS. HENCE THE ASSESSEE HAS FILED AN APPLICATIO N U/R 46A TO THE LD. CIT(A) ON 22.12.2015 (PBP 36 OF LD. CIT(A)S ORDER ) . THE LD. CIT(A) HAS SENT THESE EVIDENCE TO THE AO MENTIONING THAT ADDITIONAL EVIDENCE HAVE NOT BEEN ADMITTED. THE AO HAS SENT HIS SHORT REMAND REPORT DATED 23.12.2015 WHEREIN HE HAS MENTIONED THAT THE REMAN D REPORT IN THIS CASE HAS ALREADY BEEN SUBMITTED (PBP 35 OF LD. CIT(A)S ORDER). IN RESPONSE TO BOTH THE REMAND REPORT ASSESSEE FILED HIS COMMENT S OR REJOINDER DATED 18.01.2016 WHICH IS REPRODUCED AT PAGE 35-36 OF THE CIT(A) ORDER. . HOWEVER THE LD. CIT(A) HAS NOT ADMITTED ADDITION AL EVIDENCES VIDE HIS OBSERVATIONS AT PAGE 36-38 AND HAS CONFIRMED THE E NTIRE ADDITIONS OF RS.99 06 000/- . IT IS OBSERVED THAT THE AO HAS M ADE THE ADDITION ON ACCOUNT OF CASH CREDIT THROUGH CHEQUES IN BANK ACCO UNT. HOWEVER ON OBSERVATION OF THE ABOVE FACTS EVIDENCES BANK STA TEMENTS OF THE ASSESSEE AND ABOVE PERSONS IT IS CLEAR THAT THERE WAS ONLY CASH CREDIT ONLY OF RS.54 80 400/- INSTEAD OF RS. 99 06 000/-. THE DET AILED OBSERVATION IN EACH CASE ARE AS UNDER:-. IN THE CASE OF SH. SURJEET SINGH:- THE ASSESSEE HAD GIVEN LOAN/ADVANCE OF RS.15 00 000/- TO SH. SURJEET SINGH ON 28.05.2007 THROUGH DD OF RS. 9 00 000/- AND RS. 6 00 000/- VID E BANK ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 33 STATEMENT OF THE ASSESSEE PLACED AT (PB43). THE LD. AR CLARIFIED THE ENTRY IN THE BANK STATEMENT AS THE AMOUNT IS RS. 9 02 528 AND RS. 6 01 685/- DUE TO THE DD CHARGES. SH. SURJEET SINGH HAS RETURNED THIS AMOUNT ON 06/7.09.2007 TO THE ASSESSEE WHICH I S ALSO COMING IN THE BANK STATEMENTS OF THE ASSESSEE (PBP42). TH US THE AO HAS IGNORED THE WITHDRAWALS (DEBIT) FOR ADVANCE AS WELL AS RETURNED BACK (CREDIT) IN ASSESSES BANK ACCOUNT ITSELF WHIC H WERE BEFORE THE AO AND ON THE BASIS OF WHICH HE HAS MADE THE ADDITI ON. HENCE IT IS THE RECOVERY OF THE LOAN GIVEN THROUGH THE CHEQUE. THUS WHEN THERE IS NO LOAN TAKEN FROM SH. SURJEET SINGH THEN NO ADD ITION CAN BE MADE ON THIS ACCOUNT. IN THE CASE OF SH. VIJAY CHAHAR:- T HE ASSESSEE HAD GIVEN LOAN/ ADVANCES TO SH. VIJAY CHAHAR (SON OF THE SIST ER OF ASSESSEE) IN THE EARLIER YEARS. SH. VIJAY CHAHAR REPAID A SUM OF RS. 2 03 000/- TO THE ASSESSEE OUT OF THE OPENING CREDIT OF RS. 4 19 000/- IN THIS YEAR. THE ASSESSEE HAS NOT RECEIVED ANY LOAN FROM S H. VIJAY CHAHAR WHICH IS WRONGLY UNDERSTOOD BY THE AO AND I T IS A RECOVERY FROM THE LOAN/ADVANCES GIVEN TO SH. VIJAY CHAAR. SH. VIJAY CHAHAR IS CARRYING ON LEGAL PROFESSION SINCE LAST 10 YEARS. HE ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 34 HAS REPAID THE SAID AMOUNT FROM THE INCOME OF LEGAL PROFESSION AND AGRICULTURE. HE IS REGULAR INCOME TAX ASSESSEE AND HIS PAN NO. IS AEAPC6078A. IN SUPPORT OF THE SAME AN AFFIDAVIT OF SH. VIJAY CHAHAR WAS FILED (PB 83-85) BEFORE THE AO NARRATING ALL THE ABOVE FACTS WHICH HAS NOT BEEN REBUTTED BY THE AO. HENCE IT IS THE RECOVERY OF THE LOAN GIVEN THROUGH THE CHEQUE. THUS WHEN THERE IS NO LOAN TAKEN FROM SH. VIJAY CHAHAR THEN NO ADDITI ON CAN BE MADE ON THIS ACCOUNT. SHRI SATISH/MADHU SHARMA (RS.47 03 000/-): DURING THE COURSE OF HEARING BEFORE US THE LD.AR OF THE ASSES SEE STATED THAT SMT. MADHU SHARMA IS THE WIFE OF SH. SATISH SHARMA AND THE AMOUNT GIVEN TO THE ASSESSEE WAS FROM THE JOINT A/C OF MADHU SHARMA AND SATISH SHARMA IN SUPPORT HAS FILED THE C OPY OF BANK BANK PASS BOOK WHICH SHOWS THE NAME OF MADHU SHARMA AND SH. SHARMA OF THE SAME ACCOUNT NO. 51020838449. HENCE SATISH AND MADHU IS ONE ACCOUNT HOLDER. WE FIND THAT THE LD. CIT(A) HAS CORRECTLY POINTED OUT THAT THE AMOUNT OF RS.50 31 0 00/- HAS BEEN TAKEN FROM SH. SATISH/MADHU SHARMA AND NOT OF RS.47 03 000/- .FURTHER ON PERUSAL OF THE BANK STATEMENTS OF THE A SSESSE PLACED AT ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 35 (PB37-42) IT REVEALS THAT THE ASSESSEE HAD GIVEN LOANS OF RS.8 13 600/- TO SH. SATISH SHARMA ON VARIOUS DATES IN EARLIER YEARS I.E FROM 09.06.2005 TO 10.10.2006 AND ALSO OF RS.5 94 400/- DURING THE YEAR. THUS THE ASSESSEE HAS RECEIVED THE LOAN O NLY OF RS. 42 17 400/- FROM SH. SATISH/MADHU SHARMA NOT OF RS . 50 31 000/- OR RS. 47 03 000/- (I.E RS. 8 13 600/- WAS RECOVERY OF LOAN GIVEN BY THE ASSESSEE TO SH. SATISH SHARMA IN EARLIER YEAR A ND AFTER REPAYMENT OF RS.5 94 400/- DURING THE YEAR) THE LOA N REMAINED AT THE YEAR END WAS ONLY OF RS. 36 23 400/-. THUS NO A DDITION CAN BE MADE MORE THAN TO RS.36 23 400/- IN THE CASE OF SH . SATISH SHARMA. THE LD.AR STATED THAT SH. SATISH SHARMA H AD GIVEN THIS LOAN TO THE ASSESSEE FROM THE LOAN OF RS. 50 LACS TAKEN BY HIM FROM THE DIFFERENT BANKS AND FOR THE PROOF LOAN BA NK DETAILS OF SH. SATISH SHARMA WERE PLACED AT (PB114) WHICH IS ALSO CLEAR FROM THE BANK STATEMENTS OF MADHU/SATISH(PB222-224). THIS IS SHOWING LOAN AMOUNT CREDITED BEFORE THE AMOUNT GIVEN TO TH E ASSESSEE. IN OUR VIEW NO BANK GIVE SUCH HUGE LOAN TO ANY PERSON WITHOUT ANY CAPACITY. THE LD.AR HAS ALSO STATED THAT HE IS REG ULAR INCOME TAX ASSESEE HIS PAN IS AKDPS0965M FOR THE SUPPORT HE HAD FILED ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 36 AFFIDAVIT OF SH. SATISH SHARMA(PB77-79) NARRATING A LL THE ABOVE FACTS WHICH HAS NOT BEEN REBUTTED BY THE AO. THE A SSESSEE HAS STATED THAT THE AO HAS NOT PROVIDED THE SUFFICIENT OPPORTUNITY AND THE LD. CIT(A) HAS ALSO NOT ADMITTED THE DETAILS E VIDENCES. HENCE IN THE INTEREST OF EQUITY AND JUSTICE WE RESTORE THE ISSUE OF LOAN TO THE EXTENT OF RS.36 23 400/- OUTSTANDING AT THE YEA R END RELATING TO SH. SATISH/MADHU SHARMA TO THE AO TO VERIFY THE SAM E AFRESH BY GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSE. FURTHER THE ASSESSE HAS ALSO DRAWN OUR ATTENTION THAT THE A SSESSEE HAS ALSO MADE REPAYMENT OF RS. 49 56 000/- TO SH. SATISH SHA RMA FROM THE 06.08.2008 TO 06.05.2010. THUS THERE IS NO LOAN AMO UNT OUTSTANDING AFTER 06.05.2010 IN THE ASSESSEE CASE VIDE BANK STATEMENTS OF THE ASSESSE(PB227-232). HENCE THE AO IS ALSO DIRECTED TO VERIFY THIS FACTS ALSO AND ALLOW THE RE LIEF ACCORDINGLY. SH. MAHAVEER PRASAD(RS.35 00 000/-): DURING THE COURSE OF HEARING BEFORE US THE LD.AR OF THE ASSESSE HAS STATED THAT SH. MAHAVEER PRASAD HAS TAKEN AMOUNT OF RS.16 00 000/- ON 30.07.2007 AND RS. 43 000/- ON 03.12.2007 FROM THE ASSESSE VIDE BANK STATEMENTS OF ASSESSE(PB231) AND BANK STATEMEN TS OF SH. ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 37 MAHAVEER PRASAD AT (PB218-219)AND THEREAFTER HE HAS GIVEN AMOUNT OF RS.35 00 000/- ON VARIOUS DATES I.E ON 07 .11.2007 22.02.2008 AND 25.02.2008 TO THE ASSESSEE. THUS THE OUTSTANDING LOAN IN ASSESSEE FROM SH. MAHAVEER PRASAD WAS ONLY OF RS.18 57 000/-. HENCE IN CASE SH. MAHAVEER PRASAD A DDITION IF ANY CAN NOT BE MADE IN EXCESS TO RS.18 57 000/-. FOR 18 57 000/- WE HAVE SEEN THE BANK STATEMENTS OF ASSESSE AS WELL AS SH. MAHAVEER PRASAD AND FIND THAT SH. MAHAVEER PRASAD HAS GIVEN LOAN OF RS.18 57 000/- TO THE ASSESSEE OUT OF RS.25 00 000/ - FROM THE SALE PROCEED OF HIS AGRICULTURE LAND. IN SUPPORT THE AS SESSE HAS FILED AN AFFIDAVIT OF SH. MAHAVEER PRASAD PLACES AT (PB80-82 ) SALE DEED OF TWO AGRICULTURE LAND OF SH. MAHAVEER PRASAD PLACED AT (PB 95-113) AND BANK STATEMENTS OF ASSESSE AS WELL AS SH. MAHAV EER PRASAD. THE LD. CIT(A) HAS OBSERVED THAT BEFORE ISSUING THE CHEQUE TO THE ASSESSEE THERE WAS CASH DEPOSITS IN THE BANK ACCO UNT. HOWEVER ON PERUSAL OF THE BANK STATEMENT OF ASSESSE AS WELL AS SH. MAHAVEER PRASAD IT IS NOTED THAT THERE WERE ALSO HUGE CAS H WITHDRAWAL FROM THE BANK ACCOUNT OF SH. MAHAVEER PRASAD BEFORE DEPO SITING THE CASH IN HIS BANK ACCOUNT AND ALSO HUGE DEPOSITS THR OUGH THE ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 38 CHEQUES. THUS THERE WERE CONTINUOUS CHEQUE DEPOSITS CHEQUE ISSUING CASH DEPOSITS AND CASH WITHDRAWALS IN THE W HOLE YEARS. HENCE IN THE INTEREST OF EQUITY AND JUSTICE WE R ESTORE THE ISSUE OF LOAN TO THE EXTENT OF RS.18 57 000/- OUTSTANDING AT THE YEAR END RELATING TO SH. MAHAVEER PRASAD TO THE AO TO VERIF Y THE SAME AFRESH BY GIVING ADEQUATE AND REASONABLE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSE. HENCE THE AO IS ALSO DIRECTED TO VERIFY THIS FACTS ALSO ALLOW THE RELIEF ACCORDINGLY. THUS AFTER CONSIDERING VARIOUS FACTS STATED ABOVE A ND THE FACTUAL MATRIX OF THE CREDITORS THE GROUNDS NO. 3 AND 3.1 ARE PART LY ALLOWED FOR STATISTICAL PURPOSE. 5.1 THE GROUND NO. 4 OF THE ASSESSEE IS AS UNDER:- 4. ALTERNATIVELY AND WITHOUT PREJUDICE TO ABOVE IT IS SUBMITTED THAT IF THE ADDITION ON ACCOUNT OF AGRICU LTURE INCOME IS SUSTAINED OR NOT THEN THE SET OFF OF THE SAME MAY K INDLY BE GIVEN AGAINST THE ADDITION ON ACCOUNT OF DEPOSIT IN THE B ANK ACCOUNT IF ANY SUSTAINED. 5.2 DURING THE COURSE OF HEARING THE LD.AR OF THE ASSES SEE'S HAS FILED THE FOLLOWING FACTS AND SUBMISSIONS AS TO THE ISSUE IN QUESTION . ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 39 ALTERNATIVELY PLEA THAT WITHOUT PREJUDICE TO THE A BOVE WE ALSO WOULD LIKE TO SUBMIT THAT AT THE WORST IF THE ADDIT ION U/S 68 OR ON ACCOUNT OF DEPOSIT IN THE BANK ACCOUNT IN WHAT EXTENT IS SUSTA INED THAN THE SETOFF OUT OF RS.37 50 500/- ON ACCOUNT OF AGRICULTURE INCOME EIT HER SUSTAINED OR ACCEPTED MAY KINDLY BE ALLOWED. IN VIEW OF THE DECISION OF H ONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT V/S TYARYAMAL BAL CHAND 165 ITR 453(RAJ.) DHANDIA JEWELLERS V/S CIT 214 ITR 712(RAJ.). BECAUSE AS PER THE AO HIMSELF THERE WERE AVAILABILI TY OF RS.37 50 500/- EITHER BY THE INCOME FROM AGRICULTUR E INCOME OR FROM OTHER SOURCES. THE AO HAS NOT SHOWN UTILIZATION OF THESE FUNDS ANYWHERE EXCEPT DEPOSITS IN THE BANK ACCOUNT. IN FIRST APPEAL THE LD. CIT(A) HAS REJECTED OUR CLA IM AND THE JUDGMENT REFER BY HIM IS NOT ON TELESCOPING THE SAME WERE O N EXPLANATION OF CASH CREDIT ENTRIES. IT IS A SETTLED LAW THAT THE UNDISCLOSED INCOME ASS ESSED BY THE AUTHORITIES BELOW IS AVAILABLE TO THE ASSESSEE FOR THE PURPOSE OF EXPLAINING THE OTHER ADDITIONS/INVESTMENTS AND THE SAME WOULD ALSO BE AVAILABLE TO THE ASSESSEE FOR SET OFF PURPOSES IN RESPECT OF THE OTH ER ADDITIONS. THEREFORE THE UNDISCLOSED INCOME ASSESSED BY THE ASSESSING OFFICE R AT EVEN HIGHER AMOUNT WAS AVAILABLE TO THE ASSESSEE FOR THE PURPOSE OF EX PLAINING OTHER ADDITIONS/ INVESTMENTS. HAVING ASSESSED THE BANK DEPOSITS AS H IS UNDISCLOSED INCOME THE ASSESSING OFFICER CANNOT TAKE A STAND THAT SUCH INC OME DID NOT EXIST AND THEREFORE NOT AVAILABLE WITH THE ASSESSEE FOR SET OFF AGAINST UNDISCLOSED CASH INVESTMENT LOANS AND ADVANCES EXPENSES ETC. IN SU PPORT OF THE ABOVE PROPOSITION THE RELIANCE IS PLACED UPON THE FOLLOW ING JUDGMENTS: (A) S. KUPPUSWAMI MUDALIAR VS. C.I.T. [ 51 ITR 757 (MAD)] (B) ANANTHARAM VEERASINGHAIAH & CO. VS.C.I.T.[ 123 ITR 457 (SC)] C.I.T. VS. PREM CHAND JAIN [ 189 ITR 320 (P&H)] IN VIEW OF THE DECISIONS IN CIT V. RAM SANEHI GIAN CHAND [1972] 86 ITR 724 AND ANANTHARAM VEERASINGHAIAH & CO. V. CIT [1980] 123 ITR 457 C. (D) C.I.T. VS. TYARYAMAL BALCHAND 165 ITR 453 (RAJ.) IN THE PRESENT CASE THE ITO WAS WITHIN HIS RIGHT TO TAX THE AMOUNT OF RS.16 950 AS INCOME FROM UNDISCLOSED SOURCES EVEN THOUGH HE HAD ADDED THE AM OUNT OF RS.18 117 IN ADDITION TO THE PROFITS SHOWN BY THE ASSESSES IN IT S ACCOUNT BOOKS. HOWEVER THE ASSESSEE WAS WELL WITHIN ITS RIGHT TO PLEAD THAT TH E AMOUNT OF RS.16 950 WAS COVERED FROM THE INTANGIBLE INCOME ASSESSED AT RS.1 8 117 AND ADDED IN THE ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 40 INCOME OF THE ASSESSEE AND APART FROM THIS SINCE F OR THE LAST PRECEDING 3 YEARS SUBSTANTIAL ADDITIONS AMOUNTING TO RS.32 797 HAD BE EN ADDED THE AMOUNT OF RS.16 950 COULD HAVE BEEN TAKEN AS HAVING COME OUT OF SUCH INTANGIBLE ADDITIONS. ACCORDINGLY THE TRIBUNAL IN THE INSTANT CASE WAS R IGHT IN TREATING THE UNEXPLAINED CASH CREDIT ENTRIES TO THE EXTENT OF RS.16 950 AS C OVERED BY ADDED GROSS PROFIT IN THE SUM OF RS.18 117 ON THE BASIS OF THE ESTIMATE. HENCE IN VIEW OF THE ABOVE SUBMISSIONS THE ADDITIO N MAY KINDLY BE DELETED IN FULL. 5.3 ON THE OTHER HAND THE LD. DR SUPPORTED THE ORD ERS OF THE AUTHORITIES BELOW. 5.4 AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIALS AVAILABLE ON RECORD WE ARE OF THE CONSIDERED VIEW THAT IN THE AFRESH AS SESSMENT PROCEEDINGS THE AO AFTER VERIFYING ALL THE FACTS A ND ISSUE WHICH HAS BEEN RESTORED TO HIM AND IF ANY ADDITION IS REMAINED ON ACCOUNT OF DEPOSITS IN THE BANK THEN THE AO SHALL GIVE THE SETOFF TO THE EXTENTS OF AGRICULTURE INCOME OF RS.37 50 500/- OR ADDITION OF RS. 5 75 50 0/- ON ACCOUNT OF AGRICULTURE INCOME SUSTAINED. THUS GROUND NO. 4 OF APPEAL OF THE ASSESSE IS ALSO ALLOWED FOR STATISTICAL PURPOSE 6.1 THE GROUND NO. 5 OF THE ASSESSEE IS REGARDING C HARGING OF INTEREST U/S 234A AND 234 B OF THE ACT WHICH IS MANDATORY AN D CONSEQUENTIAL IN NATURE. ITA NO. 349/JP/2016 SHRI RADHEY RAM GODARA VS ITO WARD- 3(5) JAIPUR 41 7.0 IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 29 /11/ 2017. SD/- SD/- DQY HKKJR HKKXPUN (KUL BHARAT) ( BHAGCHAND) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 29/11/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI RADHEY RAM GODARA JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO WARD- 3(5) JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR ITAT JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 349/JP/2016) VKNS'KKUQLKJ@ BY ORDER LGK;D IATHDKJ@ ASSISTANT. REGISTRAR