ABHIMANYU SINGH, Jaipur v. ITO, Jaipur

ITA 399/JPR/2011 | 2006-2007
Pronouncement Date: 18-11-2011 | Result: Partly Allowed

Appeal Details

RSA Number 39923114 RSA 2011
Bench Jaipur
Appeal Number ITA 399/JPR/2011
Duration Of Justice 6 month(s) 16 day(s)
Appellant ABHIMANYU SINGH, Jaipur
Respondent ITO, Jaipur
Appeal Type Income Tax Appeal
Pronouncement Date 18-11-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 18-11-2011
Date Of Final Hearing 31-10-2011
Next Hearing Date 31-10-2011
Assessment Year 2006-2007
Appeal Filed On 02-05-2011
Judgment Text
1 ITA 399-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH A JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 399/JP/2011 ASSTT. YEAR : 2006-07. SHRI ABHIMANYU SINGH VS. THE INCOME-TAX OFFICER P/O M/S. MANU MOTORS WARD 3(1) PLOT NO. 10 K-5 C-SCHEME JAIPUR. QUEENS ROAD JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MAHENDRA GARGIEYA RESPONDENT BY : SHRI VINOD JOHARI DATE OF HEARING : 31.10.2011 DATE OF PRONOUNCEMENT : 18.11.2011. ORDER DATE OF ORDER : 18/11/2011. PER R.K. GUPTA J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2006-07. 2. THE EFFECTIVE GROUND OF THE ASSESSEE IS AGAINST CONFIRMING THE ADDITION OF RS. 35 98 640/- IN TREATING THE AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES. 3. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE DE RIVES INCOME FROM WORKSHOP OF FOUR WHEELER REPAIRS AND MAINTENANCE NAMELY M/S. MANU MOTORS. APART FROM INCOME FROM M/S. MANU MOTORS THE ASSESSEE HAS SHOWN RECEI PTS OF AGRICULTURAL INCOME OF RS. 35 98 640/-. THE AO HAS NOT ACCEPTED THE AGRICULTU RAL INCOME THEREFORE HE ASSESSED THE 2 SAME AS INCOME FROM OTHER SOURCES. WHILE TREATING THE AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES THE AO HAS MADE INVESTIGATION A S MENTIONED IN THE ASSESSMENT ORDER. 3.1. THE ASSESSEE HAS SHOWN THIS INCOME OF RS. 35 9 8 640/- FROM SALE OF POPULAR & EUCALYPTUS TREES (SAFEDA) AND SOME OTHER AGRICULTUR E PRODUCE. HOWEVER NO EVIDENCE ABOUT THE SALE OF AGRICULTURAL PRODUCE BY ASSESSEE COULD BE PRODUCED THEREFORE THE AO MADE INVESTIGATION. AS PER ORDER OF AO COPIES OF JAMABANDI ONLY IN RESPECT OF AGRICULTURAL LAND SITUATED AT SIRSA (HARYANA) ABOH AR (PUNJAB) AND JAYCHANDPURA (JAIPUR) WERE FILED. IT WAS CLAIMED THAT RS. 98 640/- WAS E ARNED FROM AGRICULTURAL LAND SITUATED AT JAIPUR. THE ASSESSEE HAS BEEN SHOWING THE AGRICULT URAL INCOME REGULARLY IN ITS RETURN OF INCOME THOUGH THE BOOKS OF ACCOUNTS WERE NOT MAINTA INED AND SALE OF CROP HAS BEEN MADE IN CASH. REMAINING INCOME WAS EARNED FROM AGR ICULTURAL LAND SITUATED AT FIROZPUR (PUNJAB) MEASURING 14 ACRES OF LAND AND 8 ACRES OF LAND SITUATED AT SIRSA (HARYANA). IT WAS CLAIMED THAT AN AGREEMENT WAS MADE WITH CONTRAC TOR SHRI RAES KHAN S/O SHRI ABDUL RAJJAK S/O JAGADARI DISTT. YAMUNA NAGAR TO CUT AND SALE THE TREES OF POPULAR/SAFEDA FOR A PAYMENT OF RS. 35 00 000/-. THIS CONSIDERATION WAS EXCLUSIVE OF ALL THE EXPENSES. ON PERUSAL OF AGREEMENT WITH SHRI RAES KHAN THE AO OB SERVED THAT AGREEMENT WAS EXECUTED ON 12.04.2005 AT JAGADHARI BUT IT WAS NOTARIZED AT JAIPUR ON 20.4.2005. THE ASSESSEE WAS ASKED TO PRODUCE SHRI RAES KHAN ALONG WITH HIS BOOK S AND SUPPORTING EVIDENCES AS WELL AS PROOF OF IDENTITY. THE ASSESSEE WAS ALSO ASKED TO FURNISH PROOF OF OWNERSHIP OF AGRICULTURAL LAND AND PROOF OF EXISTENCE OF TREES O N THAT LAND. SHRI RAES KHAN WAS PRODUCED WHOSE STATEMENT WAS RECORDED ON 12.12.20 08 AND ASSESSEE WAS GIVEN OPPORTUNITY TO CROSS EXAMINE SHRI RAES KHAN WHICH WAS AVAILED BY ASSESSEE. STATEMENT OF THE ASSESSEE WAS ALSO RECORDED ON 19.12.2008. T HE AO OBSERVED THAT SHRI RAES KHAN 3 DID NOT CARRY HIS PROOF OF IDENTITY WITH HIM. THE T HUMB IMPRESSION GIVEN BY SHRI RAES KHAN ALSO DID NOT MATCH WITH THE THUMB IMPRESSION A VAILABLE ON THE AGREEMENT. FROM THE STATEMENT OF SHRI RAES KHAN THE AO NOTED VARIO US DISCREPANCIES. THESE DISCREPANCIES AND SUBMISSIONS OF LD. A/R ON THE SAM E HAVE BEEN DISCUSSED BY AO WHICH ARE REPRODUCED BY LD. CIT (A) IN HIS ORDER ARE AS U NDER :- ABOUT THE PLACE WHERE AN AGREEMENT WAS ENTERED IN TO BOTH THE PERSONS DIFFER. AS PER SHRI RAIES KHAN THE AGREEMEN T WAS MADE AT THE APPELLANTS RESIDENCE AT RAMGARH (PUNJAB) WHEREAS A S PER THE APPELLANTS STATEMENT IT WAS MADE AT THE RESIDENCE OF SHRI RAI ES KHAN IN JAGADHARI (DISTT. YAMUNANAGAR). SHRI RAIES KHAN STATED THAT HE WAS INTRODUCED TO TH E APPELLANT BY THE TIMBER MERCHANT ONLY 15 DAYS BEFORE AGREEMENT. SHRI ABHIMANU SINGH STATE THAT HE GOT INTRODUCED THROUGH HIS BROTHER SH RI VINOD KUMAR WHO WAS KNOWN TO SHRI RAIES KHAN. SHRI RAIES KHAN WHO IS NOT ASSESSED TO TAX HAS ADMI TTED HIS ANNUAL INCOME OF RS.60000/- APPROXIMATELY BUT HE HAS ENTER ED INTO CONTRACT WITH THE APPELLANT FOR RS.35 LACS EXCLUDING ALL THE EXPE NSES. FOR A MAN OF NO MEANS THE POSSIBILITY OF AGREEMENT FOR RS.35 LACS D OES NOT APPEAR TO BE GENUINE. THE RECEIPT OF ADVANCE CLAIMED TO HAVE BEEN RECEIVE D FROM SHRI RAIES KHAN FROM TIME TO TIME WAS NOT FOUND WRITTEN AT ANY SALE BILL. SHRI RAIES KHAN COULD NOT GIVE DETAILS OF NUMBER OF TREES AVAILABLE AT THE LAND THOUGH HE HAS ENTERED INTO AN AGREEMENT FOR RS.35 LACS WHICH IS 60 TIMES OF HIS ANNUAL EARNINGS. SURPRISINGLY SHRI RAIES KHAN WAS NOT IN KNOW OF THE BASIC ESSENTIAL FACTS BEFORE ENTERING I NTO AGREEMENT SUCH AS 4 NUMBER OF TREES AGE OF TREES WIDTH AND LENGTH OF TREES TIME FRAME TO CUT TREES AND MARKETABILITY. SHRI RAIES KHAN COULD NOT EXPLAIN HOW HE WAS IN CON TACT WITH THE TIMBER MERCHANT AND WHAT RELATIONSHIP BETWEEN HIM A ND TIMBER MERCHANT WAS. WHY SUCH TIMBER MERCHANT WILL GIVE ADVANCE TO A PERSON WHO HAILS FROM LABOUR CLASS AND DOES NOT POSSESS SOUND FINANC IAL BACK GROUND. INSTEAD OF APPROACHING DIRECTLY TO THE APPELLANT TH E TIMBER MERCHANTS ARE CONTACTED SHRI RAIES KHAN WHO IS ALSO BEING PAID AD VANCE AMOUNT AND ADJUSTING THE SAME AT THE TIME OF TIMBER RECEIPTS F ROM HIM. SHRI RAIES KHAN STATE THAT THE DISTANCE BETWEEN THE TWO TREES 10-12 FT. AND IN FEW CASES IT WAS 6-8 FT. HOWEVER AS PER SH. ABHIMANU SINGH THE DISTANCE WAS ONLY 6-8 FT. SHRI RAIES KHAN DID NOT KNOW THE TOTAL SALE VALUE O F TREES. COPIES OF CERTAIN VOUCHERS FILED BY SHRI RAIES KHAN WERE S ELF MADE VOUCHERS AND WERE UN NUMBERED SIGNATURES OF THE SELLER I.E. SHRI RAIES KHAN ON THE PURCHASE VOUCHERS WERE MISSING IN ALL CASES. THE SA LE VALUE IN ANY OF TREES SHOULD BE MORE THAN RS.35 LACS AS AGREEMENT WAS RS. 35 LACS EXCLUDING EXPENSES. IT MEANS EXPENSES WERE TO BE BORNE BY SHR I RAIES KHAN. THE AO THEREFORE COULD NOT ACCEPT CONTRACT AS GENUINE CONTRACT. SHRI RAIES KHAN HAS NOT TAKEN ANY CONTRACT BEFORE O R AFTER THE SO CALLED AGREEMENT WITH THE APPELLANT. NO DETAILS OF PARTY WISE TIMBER MERCHANT WERE FOUND AVAILABLE EITHER WITH SHRI RAIES KHAN OR THE ASSESSEE. SHRI RAIES KHAN CLAIMED THAT HE HAD 20-25 LABORS FO R THE PURPOSE OF CUTTING TREES BUT WAS NOT FOUND HAVING NAY DETAI L OF THE PAYMENT MADE TO SUCH LABORS. 5 SHRI RAIES KHAN COUND NOT GIVE THE NUMBER TO TROLLE YS OF TIMBER GOT CUT BY HIM. THROUGH HE ADMITTED TO HAVE SOLD TI MBER ONLY AFTER GETTING ITS WEIGHT DONE. HE ALSO COULD NOT FURNISH THE WEIG HMENT SLIPS. SHRI RAIES KHAN COULD NOT PRODUCE THE ACCOUNTS OF T IMBER SOLD. SHRI RAIES KHAN COULD NOT SPECIFY HOW HE DETERMINED THAT THE VALUE OF TREES GROWN UPON THE LAND OF THE ASSESSEE WILL FETCH HIM MORE THAN 35 LACS. HE SIMPLY REPLIED THAT HE MADE GUESS AS HE WAS VERY EXPERIENCED PERSON IN THIS LINE THOUGH HE COULD NOT ADDUCE ANY EVIDENCE IN SUPPORT OF HIS EXPERIENCE. SEPARATE DETAIL OF POPULAR AND EUCALYPTUS TREES COU LD NOT BE GIVEN. FROM THE STATEMENT OF SH. ABHIMANU SINGH IT WAS OB SERVED THAT HE ADMITTED ABOUT PARTITION OF THE LAND IN PUNJAB & HA RYANA WHICH WAS ANCESTRAL LAND AND GOT 1/3 RD OF THE SAME. HOWEVER IN FY 2005-06 IT IS CLAIMED THAT HIS BROTHER GAVE HIM PUNJAB LAND FROM WHERE THE TREES W ERE GROWING AND SOLD FOR CONSIDERATION OF RS.35 LACS AND TOOK HARYANA LAND A S THEIR SHARE WHERE THEY WERE CULTIVATED RICE AND PADDY. THUS IT WAS CLAIME D THAT THE APPELLANT GOT RS.35 LACS FROM 32 ACRES LAND IN PUNJAB WHEREAS THE REMAINING TWO BROTHERS COULD GET ONLY 7-12 LACS FROM 24 ACRES LAND IN HARY ANA. REGARDING AGRICULTURAL INCOME FROM JAIPUR LAND SHRI ABHIMANU SINGH CLAIMED THAT THE LAND WAS GIVEN ON BATAI BUT NAME O F THE PERSONS COULD NT BE GIVEN. IT WAS CLAIMED THAT HALF OF THE AGRICULTURAL PRODUCES OF HIS SHARE WERE SOLD OUT IN OPEN MARKET BUT THE DETAILS OF SALE OF HIS AGRICULTURE PRODUCES COULD NOT BE GIVEN. NO EXPLANATION COULD BE GIVEN WHY TIMBER MERCHANT D ID NOT MAKE PAYMENT TO SHRI RAIES KHAN THROUGH CHEQUE AND WHY H E ALSO DID NOT PAY TO THE TIMBER MERCHANTS THOUGH CHEQUE. 6 3.2. WITH THE ABOVE OBSERVATIONS THE AO HELD THAT THE ASSESSEE WAS HAVING UNACCOUNTED INCOME WHICH HE INVESTED IN THE PROPERT Y BY WAY OF CONSTRUCTION BUT FOR THE PURPOSE OF EVADING THE TAX HE OPTED TO SHOW IT IN THE GARB OF AGRICULTURAL INCOME. ACCORDINGLY THE CLAIM OF THE ASSESSEE OF ENTIRE AGR ICULTURAL INCOME WAS NEGATED AND THE INCOME SHOWN BY ASSESSEE WAS TREATED AS INCOME FROM OTHER SOURCES. 4. DETAILED SUBMISSIONS WERE FILED BEFORE LD. CIT ( A) WHICH ARE REPRODUCED IN THE ORDER OF LD. CIT (A) AT PAGES 5 & 6 ARE AS UNDER :- CONTENTION OF THE AR IS THAT THE APPELLANT HAS FUR NISHED COPIES OF LAND HOLDING SHOWING OWNERSHIP AND POSSESSION OF 25 ACRES OF LAND AT 3 DIFFERENT PLACES. COPY OF AN AGREEMENT ENTERED WITH SHRI RAIES KHAN OF JAGADARI WAS ALSO SUBMITTED. THE AFFIDAVITS OF THE TWO WITNESSES IN THE PRESENCE OF WHOM THE AGREEMENT WAS EXECUTED WERE AL SO SUBMITTED TO PROVE THE FACT OF EXECUTION OF THE SAID AGREEMENT. THE AO HAS FAILED TO DISPROVE THE AGREEMENT. FROM THE STATEMENT OF SHRI RAIES KHAN THE AO COULD NOT DISPROVE CONTENTION OF THE APPELLANT. AS PER THE AGREEMENT ON THE LAND OF 25 ACRES SAPHEDA TREES WERE GROWN WHIC H SHRI RAIES KHAN HAS AGREED TO PURCHASE FOR RS.35 LACS AND ACCORDING LY AN ADVANCE OF RS.5 LACS WAS PAID. IT IS IMMATERIAL THAT HOW MR. R AIES KHAN GOT INTRODUCED TO THE ASSESSEE AND WHAT IS HIS FINANCIA L POSITION WHERE HE HAS ENTERED INTO A CONTRACT AND COMPLETED THE TERMS OF THE AGREEMENT AND PAID ON ADVANCE OF RS.5 LACS. COPIES OF PROPER INVO ICES OF TIMBER MERCHANT WERE ALSO FILED WITH COMPLETE NAME AND ADD RESS AND TIN NO. OF BUYERS. AFFIDAVITS FROM 3 TIMBER MERCHANT WERE F ILED WHEREIN ALL THE BUYERS HAVE CONFIRMED HAVING MADE PURCHASES THROUGH SHRI RAIES KHAN. RELIANCE WAS PLACE ON VARIOUS CASE LAWS INCLUDING T HE FOLLOWING: 1. KAMALKISHORE VS.36 TW 6 ITD (JU) 2. CIT VS. SRM COTTON & OIL MILLS 174 TAXMAN 503 (P&H) 7 NO DOUBT THE AO ASKED THE ASSESSEE TO PRODUCE BUYER S BUT THE APPELLANT COULD NOT PRODUCE THEM. THE PREVAILING TR ADE PRACTICE OF PROCUREMENT OF GOODS THROUGH MIDDLEMAN/AGENT WAS AL SO IGNORED BY THE AO. HOWEVER THE FACT OF NON PRODUCTION WAS DUE TO THEIR FULL TIME BUSINESS ENGAGEMENT AT THEIR PLACES AND ONE CAN UND ERSTAND THAT AFTER COMPLETING OF CERTAIN BUSINESS TRANSACTION NO ONE IS UNDER AN OBLIGATION TO COOPERATE. FURTHER AFTER A LAPSE OF TIME IT IS PRA CTICALLY DIFFICULT TO COMPEL THE WITNESS. AS SUCH THE AO COULD HAVE ISSUED SUMMO NS TO THEM THE AO HAS OBSERVED THAT FRO GETTING SAPHEDA TREES PERMISS ION WAS REQUIRED UNDER SOME LAWS BUT HE HAS FAILED TO SPELL OUT ANY SPECIF IC PROVISIONS OF LAW. EVEN ASSUMING IT WAS SO IT CANNOT BE INFERRED THAT THE APPELLANT DID NOT CARE SAPHEDA TREES IF NO SUCH PERMISSION WAS OBTAIN ED. A DETAILED SUBMISSION WAS FILED ON VARIOUS OBSERVATIONS MADE B Y THE AO. THE FACT OF GROWING SAPHEDA TREES IS NOT NECESSARILY ENTERED BY HAS FAILED TO IDENTIFY ANY DISCLOSED INCOME OR THE SOURCE THEREOF. THE APP ELLANT HAS BEEN SHOWING AGRICULTURAL INCOME IN THE PAST. THE AO HAS NOT BROUGHT ANY EVIDENCE SHOWING LESSER MARKET RATE THAN THE RATE S HOWN BY THE APPELLANT. THE FACT OF RECEIPTS OF RS.35 LACS UNDER AGREEMENT COULD NOT BE DISPROVED. ABSENCE OF ACCOUNT BY SHRI RAIES KHAN WAS NOT VERY IMPORTANT. SHRI RAIES KHAN WAS MAINLY OF THIS LINE AND HAS BEEN WOR KING FOR LAST SEVERAL YEARS. THE AO PROCEEDED UNDER WRONG NOTION THAT SHR I RAIES KHAN WAS THE BUYER THOUGH HE ACTED AS A CONDUIT AND HE HAS A CCEPTED RECEIVING ADVANCES ON BEHALF OF TIMBER MERCHANTS. WITH THIS IT WAS SUBMITTED THAT THE SALE OF SAPHEDA TREES SHOWN AS AN AGRICULTURAL INCOME SHOULD HAVE BEEN ACCEPTED BY THE AO. EARLIER COPIES OF 3 AFFIDAVITS FIELD ON BEHALF OF T IMBER MERCHANTS AND TWO AFFIDAVITS ON BEHALF OF WITNESSES OF THE AG REEMENT ALONGWITH A CERTIFICATE OF PATWARI WERE FORWARDED TO THE AO FOR HIS REMAND REPORT AS THE SAME WERE FILED FIRST TIME DURING THE COURSE OF HEARING OF APPEAL THE 8 REMAND REPORT WAS OBTAINED WHEREIN THE AO HAS MENTI ONED THAT THE APPELLANT HAS FAILED TO PRODUCE THE PERSONS FOR EXA MINATION WHOSE AFFIDAVITS WERE FILED BY HIM AS ADDITIONAL EVIDENCE S. THE AO THEREFORE HAS RECOMMENDED TO REJECT THE ADDITIONAL GROUND OF APPEAL AND CONFIRMED HIS ACTION. ON THE ISSUE OF ADMISSION OF ADDITIONAL EVIDENCES I T CANNOT BE DENIED THAT THE EVIDENCES IN THE FORM OF CERTIFICAT E OF PATWARI AS WELL AS AFFIDAVITS FILED ON BEHALF OF CLAIMED TIMBER MERCHA NTS GO TO THE ROOT OF THE ISSUE AND THEREFORE EVIDENCES MAY BE ADMITTED. 5. AFTER CONSIDERING THE SUBMISSIONS THE LD. CIT ( A) GAVE THE FOLLOWING FINDINGS :- CONTENTION OF THE AR IS CONSIDERED. FROM THE EXAMI NATION OF SHRI RAIES KHAN THE AO HAS CONCLUDED THAT HE DID NOT PO SSES KNOWLEDGE OF BUSINESS OF TIMBER AND HE WAS A MAN OF NO PAST EXPE RIENCE AND WAS NOT FOUND CAPABLE OF HOLDING BIG CONTRACTS. AS THE AGRE EMENT WAS CLAIMED TO HAVE BEEN SIGNED BY SHRI RAIES KHAN ONUS WAS ON TH E APPELLANT TO PROVE HIS FINANCIAL SOUNDNESS. THE PLEA THAT HE WAS WORKI NG AS A CONDUIT CANNOT BE ACCEPTED AS IT IS SH. RAIES KHAN WHO HAS ENTERED INTO AN AGREEMENT WITH THE APPELLANT AND NOT ANY TIMBER DEALER. HE CO ULD NOT GIVE ANSWER WHEN HE WAS ASKED BASIS OF DETERMINING THE VALUE OF SAPHEDA TREES AT RS.35 LACS. HE WAS HELD AS A MAN OF SMALL MEANS AND NOT CAPABLE OF ENTERING INTO SUCH BIG CONTRACTS. THE APPELLANT ALS O FAILED TO GIVE ANY DOCUMENT IN THE FORM OF KHASRA GIRDAWARI SHOWING TH E DETAILS OF AGRICULTURE PRODUCES WHICH INCLUDES TIMBER. NO WEIG HMENT SLIP OCTROI SLIP TRANSPORT SLIP PETROL AND DIESEL BILLS WERE MADE AVAILABLE. DETAILS OF THE ADVANCES RECEIVED FROM ACTUAL TIMBER DEALERS BY SHRI RAIES KHAN COULD NOT BE GIVEN. EVEN THE BASIC DETAILS LIKE NUM BER OF TREES GROWN THEIR SIZE AND AGE COULD NOT BE GIVEN CORRECTLY. QU ANTUM OF TOTAL PRODUCTION OF AGRICULTURAL GOODS AND ITS SALE COULD NOT BE ASCERTAINED AND 9 THEREFORE NET AGRICULTURAL INCOME DECLARED BY THE APPELLANT REMAINS UNVERIFIABLE. NO BOOKS OF ACCOUNT WERE PRODUCED IN RESPECT OF AGRICULTURAL INCOME AND THUS THE CLAIM OF AGRICULTURAL INCOME MA DE BY THE APPELLANT REMAINS TO BE CONCLUSIVELY PROVED. CONSIDERING CONT RADICTIONS IN STATEMENTS OF RAIS KHAN CIRCUMSTANTIAL EVIDENCES A BSENCE OF BOOKS OF ACCOUNTS ABSENCE OR RECEIPTS OF SALE OF AGRICULTUR AL PRODUCES AND NON PRODUCTION OF THE CLAIMED TIMBER MERCHANTS THE ACT ION OF AO IS APPROVED. THE AO HAS RIGHTLY CONSIDERED THE CLAIM OF AGRICULT URAL INCOME OF RS.3598640/- AS INCOME FORM OTHER SOURCES. THE ADDI TION MADE BY AO IS THEREFORE CONFIRMED. SO FAR AS IMPACT OF ADDITIONAL EVIDENCES ADMITTED D URING THE HEARING OF APPEAL IS CONCERNED AS THE APPELLANT FAI LED TO SUBSTANTIATE THE ADDITIONAL EVIDENCE BY NOT PRODUCING THE ALLEGED TI MBER MERCHANTS THE CLAIM OF INCOME FORM SALE OF SAFEDA COULD NOT BE PR OVED AND ADDITION OF THE CLAIMED AGRICULTURE INCOME AS INCOME FROM OTHER SOURCES MADE BY THE AO IS HEREBY CONFIRMED. 6. NOW THE ASSESSEE IS IN APPEAL HERE BEFORE THE TR IBUNAL. 7. THE CONTENTIONS RAISED BEFORE LD. CIT (A) WERE R EITERATED HERE BEFORE THE TRIBUNAL. COPY OF WRITTEN SUBMISSIONS WAS ALSO FIL ED BY LD. A/R. 8. ON THE OTHER HAND THE LD. D/R HAS STRONGLY PLAC ED RELIANCE ON THE ORDER OF AO AS WELL AS ON THE ORDER OF LD. CIT (A). 9. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD WE FIND THAT THERE IS NO INFIRMITY IN THE FINDING OF LD. CI T (A). WE HAVE ANALYZED ALL THE RELEVANT DOCUMENTS I.E. COPY OF AGREEMENT COPY OF PAYMENT R ECEIPTS COPY OF SALE OF TIMBER WOOD AND COPY OF STATEMENT OF SHRI RAES KHAN AS WELL AS ASSESSEE. AFTER ANALYZING ALL THESE EVIDENCES/DOCUMENTS WE FIND THAT AO HAS RIGHTLY RE JECTED THE CONTENTION OF THE ASSESSEE. 10 VARIOUS DISCREPANCIES/CONTRADICTIONS NOTED BY THE A O HAVE BEEN DISCUSSED IN THE ORDER OF LD. CIT (A) AT PAGES 2 TO 4. FIRST OF ALL THERE WA S A CONTRADICTION IN THE STATEMENT OF SHRI RAES KHAN AS WELL AS IN THE STATEMENT OF ASSESSEE. AS PER STATEMENT OF SHRI RAES KHAN THE AGREEMENT WAS ENTERED AT THE RESIDENCE OF ASSES SEE AT RAMGARH (PUNJAB) WHEREAS ASSESSEE IN HIS STATEMENT HAS STATED THAT THE AGREE MENT WAS ENTERED AT THE RESIDENCE OF SHRI RAES KHAN AT JAGADHARI DISTRICT YAMUNANAGAR. IT IS FURTHER NOTED THAT AS PER STATEMENT OF SHRI RAES KHAN THE THUMB IMPRESSION W AS OBTAINED ON THE AGREEMENT AT THE RESIDENCE OF ASSESSEE AT RAMGARH WHEREAS THE LD. CO UNSEL OF ASSESSEE IN HIS REPLY IT HAS BEEN STATED THAT SHRI RAES KHAN WAS BROUGHT HERE AT JAIPUR AND AGREEMENT WAS SIGNED AND NOTARIZED AT JAIPUR. THEREFORE AFTER TAKING IN TO CONSIDERATION ALL THESE CIRCUMSTANCES IT IS CLEARLY ESTABLISHED THAT THIS AGREEMENT IS NO T A PROPER AGREEMENT. IT IS FURTHER NOTED THAT THE PERSON NAMED RAES KHAN WAS PRODUCED BEFORE AO WHOSE STATEMENT WAS RECORDED. HE WAS NOT HAVING ANY PROOF OF IDENTITY T HAT HE IS RAES KHAN. THE THUMB IMPRESSION OF ALLEGED RAES KHAN WAS OBTAINED BY THE AO ON THE STATEMENT RECORDED AND IF THE THUMB IMPRESSION OBTAINED ON THE AGREEMENT A S WELL AS ON PAYMENT RECEIPTS THEN IT IS SEEN THAT THERE IS A DIFFERENCE IN BOTH THE THUM B IMPRESSION. THIS DIFFERENCE IS CLEARLY SEEN AS BOTH THE THUMB IMPRESSION ARE OF A DIFFEREN T PERSON. IT IS CLEARLY PROVED THAT THE PERSON NAMED SHRI RAES KHAN WHO WAS PRODUCED BEFORE THE AO WAS NOT THE SAME PERSON WHO GAVE HIS THUMB IMPRESSION ON THE AGREEMENT AND RECEIPTS ISSUED BY THE ASSESSEE FOR TAKING PAYMENTS FROM SHRI RAES KHAN. IT IS FURTHER SEEN THAT THE PAYMENT OF RS. 5 00 000/- WAS SHOWN RECEIVED ON 12.04.2005 RS. 7 00 000/- ON 20.11.2005 RS. 8 00 000/- ON 2.12.2005 RS. 10 00 000/- ON 1.1.20 06 AND RS. 5 00 000/- ON 28.3.2006. THESE PAYMENTS HAVE BEEN MADE BY SHRI RAES KHAN TO THE ASSESSEE AS PER COPIES OF 11 RECEIPTS PLACED ON RECORD AT PAGES 22 TO 29. IT IS FURTHER SEEN THAT SIGNATURE OF TWO WITNESSES HAS BEEN OBTAINED. HOWEVER NO WITNESS WH ATSOEVER WAS PRODUCED BEFORE THE AO OR ANY CONFIRMATION WAS FILED BY THE WITNESSES P ROVING THAT THE SAID RAES KHAN HAS ENTERED INTO AGREEMENT OR HAS MADE PAYMENTS TO THE ASSESSEE. COPY OF AGREEMENT IS PLACED AT PAGES 20 AND 21. THUMB IMPRESSION ON AGR EEMENT AS WELL AS ON RECEIPTS MAY BE SAID TO BE TALLIED BUT IT CANNOT BE SAID THAT TH E THUMB IMPRESSION OBTAINED ON STATEMENT RECORDED OF THE PERSON NAMED RAES KHAN IS TALLIED A S SIZE OF THUMB IMPRESSION IS TOTALLY DIFFERENT FROM THE SIZE OF THUMB IMPRESSION OBTAINE D ON AGREEMENT AS WELL AS ON RECEIPTS. PRINT OF THUMB IMPRESSION IS ALSO DIFFERENT. THERE FORE THE AOS CONTENTION SEEMS TO BE CORRECT THAT THE PERSON WHO WAS PRODUCED BEFORE HIM WAS NOT THE RAES KHAN WHO PURCHASED THE POPULAR/SAFEDA TREES FROM THE ASSESSE E. IT IS FURTHER SEEN THAT AS PER AGREEMENT ENTERED BETWEEN THE ASSESSEE AND SHRI RAE S KHAN ON 12.4.2005 THE ASSESSEE SOLD POPULAR/SAFEDA TREES TO SHRI RAES KHAN FOR A S UM OF RS. 35 00 000/- GROWN ON 25 ACRES OF LAND AT RAMGARH. HOWEVER IN THE BILLS FO R SALE OF SAFEDA TREES IT IS SHOWN THAT GOODS HAVE BEEN RECEIVED FROM THE ASSESSEE I.E. SHR I ABHIMANYU SINGH. THIS FACT IS ALSO A CONTRADICTORY FACT. BEFORE THE AO IT WAS STATED THAT SHRI RAES KHAN WAS A MIDDLE MAN. HOWEVER THIS FACT IS NOT MENTIONED IN THE AGREEMEN T THAT HE IS A MIDDLE MAN AND SALE OF TREES TO VARIOUS PARTIES ENTERED AT YAMUNANAGAR. I T IS FURTHER SEEN THAT THERE IS NO SIGNATURE ON THE SALE BILL ON BEHALF OF THE ASSESSE E. IT IS FURTHER SEEN THAT THE SALE BILL OBTAINED FROM ONE ASHOK KUMAR & CO. IT IS SIGNED B Y ONE ASHOK WHEREAS THE PRINTING VOUCHER SHOWS RECEIVERS SIGNATURE. RECEIVER MEANS PAYMENT RECEIVER AS IN THIS RECEIPT IT HAS BEEN SHOWN THAT AMOUNT HAS BEEN PAID TO SHRI AB HIMANYU. 12 10. IT IS FURTHER SEEN THAT IT HAS BEEN STATED BY S HRI RAES KHAN BEFORE AO THAT HE EMPLOYED 15/20 LABOURERS AND TRANSPORTED THE SAID G OODS TO THE DESTINATION THROUGH TRACTOR TROLLY. HOWEVER IT IS NOT CLEAR THAT THE CONCERNED TRACTOR TROLLY BELONGS TO WHOM NEITHER NUMBER OF TRACTOR TROLLY OR REGISTRATION NU MBER OR THE NAME OF THE OWNER. IT IS ALSO NOT CLEAR WHO HAS PAID THE RENT TO THE OWNER O F TRACTOR TROLLY. IT IS FURTHER SEEN THAT NO WHERE IT IS CLEARLY MENTIONED THAT WHO MADE THE PAYMENT TO 15/20 LABOURERS FOR CUTTING TREES FROM THE FIELD BELONGING TO THE ASSES SEE. IN THE RECEIPT IT IS SHOWN THAT A PARTICULAR AMOUNT IS PAID AFTER DEDUCTING COMMISSIO N @ 6%. COMMISSION OF 6% IS A MEAGER AMOUNT AND IT CANNOT BE SAID THAT THE COMMIS SION PAYMENT IS SUFFICIENT TO MAKE THE PAYMENT TO LABOURERS AS WELL AS TO MEET THE TR ANSPORTATION EXPENDITURE. IT IS ALSO NOT MENTIONED WHAT AMOUNT HAS BEEN SAVED BY SHRI RAES K HAN AND HOW HE IS A MIDDLE MAN AS THERE IS NO AGREEMENT BETWEEN THE ASSESSEE AND T HE BUYERS OF TIMBER WOOD. THOUGH ASSESSEE HAD TRIED TO MAKE HIS CASE BY FILING AFFID AVITS OF THE PARTNERS OR PROPRIETOR OF VARIOUS CONCERNS I.E. U.P. TIMBER TRADERS ASHOK KU MAR & CO. AND M/S. NEW PARKARTI TIMBERS. 10.1. WE HAVE SEEN THE COPIES OF AFFIDAVITS PLACED IN THE PAPER BOOK AT PAGES 1 TO 5 AND FOUND THAT SIGNATURES ARE DIFFERENT AS AS PER SALE BILL THE SIGNATURES ARE DIFFERENT. FOR EXAMPLE THE VOUCHERS PLACED AT PAPER BOOK AT PAGE 61 IT SHOWS PAYMENT OF RS. 41 352/- AND SIGNATURE IS OF SHRI ASHOK. COPY OF AFFIDAVIT IS PLACED AT PAGE 1 AND HERE ALSO THE SIGNATURE IS OF ASHOK BUT BOTH THE SIGNATURES ARE P ARTIALLY DIFFERENT. SIMILARLY IN CASE OF OTHER PARTIES ALSO SIGNATURES ARE DIFFERENT. THER EFORE IT IS AMPLY PROVED THAT THE SALE BILLS PRODUCED BEFORE AO AND LD. CIT (A) WERE NOT GENUINE . 13 10.2. IT IS FURTHER SEEN THAT IN THE SALE BILLS NE ITHER THERE IS ANY VOUCHER NUMBER NOR THERE IS ANY COMPLETE ADDRESS SHOWING REGISTRATION NUMBER OR TELEPHONE NUMBER OR PLOT NUMBER OR SHOP NUMBER IS MENTIONED. IT IS FURTHER SEEN THAT IN THE AFFIDAVITS IT IS MENTIONED THAT THE TIMBER WOOD WOULD HAVE BEEN PURC HASED THROUGH SHRI RAES KHAN HOWEVER IN SALE BILLS THERE IS NO NAME OF SHRI RAES KHAN. THEREFORE THIS FACT IS ALSO NOT PROVED THAT TIMBER MERCHANTS HAVE PURCHASED THE MAT ERIAL THROUGH SHRI RAES KHAN FROM THE ASSESSEE. AS STATED ABOVE IN AGREEMENT IT IS CLEARLY MENTIONED THAT THE POPULAR/SAFEDA THREES WERE GROWN IN 25 ACRES OF LAN D WERE SOLD TO SHRI RAES KHAN FOR A CONSIDERATION OF RS. 35 00 000/- AND RS. 35 00 000/ - HAS BEEN CREDITED IN THE BOOKS OF ACCOUNT BY THE ASSESSEE. THEREFORE TAKING INTO CO NSIDERATION ALL THESE ASPECTS DISCREPANCIES AND CONTRADICTIONS NOTED BY AO WHICH HAVE BEEN CONSIDERED BY LD. CIT (A) IN OUR VIEW THE AO WAS RIGHT IN MAKING ADDITI ON BY TREATING THE AMOUNT OF RS. 35 00 000/- AS INCOME FROM OTHER SOURCES AND NOT FR OM INCOME FROM AGRICULTURAL PRODUCE. THEREFORE THE AO WAS RIGHT IN TREATING T HE SAID AMOUNT AS INCOME FROM OTHER SOURCES. 10.3. SINCE ALL THE CONTRADICTIONS AND DISCREPANCIE S NOTED BY THE AO HAVE BEEN REPRODUCED IN THE ORDER OF LD. CIT (A) WHICH ARE A LSO REPRODUCED SOMEWHERE ABOVE IN THIS ORDER THEREFORE WE ARE NOT REPEATING THOSE D ISCREPANCIES AGAIN. WE HAVE GONE THROUGH THE FINDINGS OF LD. CIT (A) AND FOUND THAT AFTER CONSIDERING THE CONTENTIONS OF LD. A/R AS WELL AS DISCREPANCIES AND CONTRADICTIONS NOT ED BY AO THEN ONLY HE HAS HELD THAT THE ADDITION MADE BY THE AO WAS JUSTIFIED. WE HAVE ALSO GONE THROUGH VARIOUS CASES CITED BY LD. A/R AND FIND THAT THEY ARE NOT HELPFUL TO THE ASSESSEE AS ALL THOSE DECISIONS ARE ON DIFFERENT FOOTING AND THEREFORE THEY ARE DISTI NGUISHABLE. HOWEVER WE FIND THAT AO 14 HAS DISALLOWED THE ENTIRE CLAIM OF AGRICULTURAL INC OME I.E. RS. 35 98 640/-. RS. 98 640/- WAS SHOWN AS AGRICULTURAL INCOME FROM JAIPUR LAND. JAIPUR LAND OWNED BY ASSESSEE IS ALSO VERY OLD AND REGULAR AGRICULTURAL INCOME HAS B EEN SHOWN BY THE ASSESSEE FROM THIS LAND. THEREFORE WE ARE OF THE VIEW THAT TO THIS E XTENT THE AO AND LD. CIT (A) WERE NOT JUSTIFIED IN NOT TREATING THE AGRICULTURAL INCOME A S GENUINE. ACCORDINGLY WE DIRECT THE AO TO TREAT THE AGRICULTURAL INCOME OF RS. 98 640/- AS GENUINE AND REMAINING AMOUNT OF RS. 35 00 000/- WHICH WAS RECEIVED BY THE ASSESSEE ON ACCOUNT OF SALE OF POPULAR/SAFEDA TREES FROM SHRI RAES KHAN ARE CONFIRMED. 11. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWE D IN PART. 12. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 18 .11.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR D/- COPY FORWARDED TO :- SHRI ABHIMANYU SINGH JAIPUR. THE ITO WARD 3(1) JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 399/JP/2011) BY ORDER AR ITAT JAIPUR.