NEMAJIRAO DHARERAO DESHMUK,SOLAPUR vs. INCOME TAX OFFICER, WARD-1(2), SOLAPUR. , SOLAPUR.

ORDER

PER DR. DIPAK P. RIPOTE, AM:

1. In the facts and circumstances of the case and law, the Ld.ITO (CIB) has carried out the asst u/s 144(1) of the I.T.Act, 1961, is without jurisdiction and bad in law, void ab initio, null & void. The same may please be annulled. Nemajirao Dharerao Deshmukh [A]

, if deemed necessary at the time of hearing of the appeal before the Hon'ble bench.

6. Any other equitable and just order including award of cost, that may be deemed fit and proper or necessary in the interest of the appellant by the Hon’ble Bench may please be passed in the matter.” Brief facts of the case :

2. As mentioned in the assessment order, in this case, the ITO- 1(2), Solapur, Assessing Officer(AO) received information on NMS Data that assessee had deposited cash of Rs.16,59,031/- in savings bank account with State Bank of India(SBI) and did not file any Return of Income. The AO issued notice under section 148 of the Act. The AO sent the notice to the assessee by Speed Post. As per the assessment order, assessee failed to comply the notice, hence, AO passed an order under section 144 r.w.s 147 of the Act, treatingthe total deposits of Rs.18,32,900/- as income of the assessee.

Nemajirao Dharerao Deshmukh [A] Aggrieved by the assessment order, assessee filed an appeal before the ld.CIT(A) in the Form No.35. The assessee pleaded in the Form No.35 that assessee is a 75 year old and suffering from illness. Assessee also enclosed copy of medical certificate along with Form No.35. Before the ld.CIT(A), assessee pleaded that he is an agriculturist for the last 60 years and entire income is agricultural income. Assessee filed copies of 7/12 extracts before the ld.CIT(A). However, ld.CIT(A) confirmed the addition on the ground that no details were filed by the assessee. Aggrieved by the order of the ld.CIT(A), the assessee filed appeal before this Tribunal.

Submission of ld.Authorised Representative (ld.AR) : 3. At the time of hearing, no one appeared on behalf of assessee.

Submission of ld.Departmental Representative (ld.DR) : 4. The ld.DR relied on the order of the Lower Authorities.

Findings & Analysis : 5. We have heard ld.DR for the Revenue and perused the records. It has been claimed by the assessee in Form No.35 filed before the ld.CIT(A) that assessee is an agriculturist for the last 60 years. Assessee is a Senior Citizen(DoB : 20-12-1949). The assessee had filed copies of 7/12 extracts before the ld.CIT(A) to demonstrate that Nemajirao Dharerao Deshmukh [A] assessee is an agriculturist. Assessee had filed copies of these 7/12 extracts along with Form No.36 before this Tribunal. On perusal of these form 7/12, it is observed that assessee has been cultivating the land and 7/12 extracts have duly recorded the agricultural produce. As per 7/12 extracts filed by assessee, the assessee owns following lands : S.No. Gat No. Area Crop Source of Water 1 84 16 Hectares 01R Jawar Well in the Field 2 49 13 Hectares 56R Jawar 3 31 Hectares 16R Jawar, Cereals 4 87 11 Hectares 80R Jawar, Cereals Well in the Field 5.1 Thus, assessee owns more than 71 Hectares land as per 7/12 extract submitted by the assessee. Assessee also has well in the field for irrigation. The 7/12 extracts duly recorded crops cultivated by assessee from time to time. Thus, in these facts and circumstances of the case, it is undisputed that assessee is an agriculturist, regularly cultivating more than 71 Hectares of land which seems to be very well irrigated. The assessee has pleaded that deposits made by the assessee in the bank account are from his agriculture income. However, the ld.CIT(A) and ld.AO has not rebutted the assessee’s claim that the source of deposits made in the bank accounts was agricultural income. The assessee has discharged his primary onus by filing copies of 7/12 extracts. The 7/12 extracts are revenue Nemajirao Dharerao Deshmukh [A] records maintained by an Independent Government Authority. Therefore, the genuineness of the 7/12 extracts cannot be doubted. Once the assessee has discharged his primary onus, the burden of proof shifts to Revenue. In this case, Revenue has not brought on record any positive evidence to rebut the assessee’s claim. Revenue has not brought on record any evidence to prove that the source of cash deposits is not agricultural income but otherwise.

6.1 Thus, the Hon’ble Supreme Court has held that it is on the Revenue to prove that receipt is taxable. Nemajirao Dharerao Deshmukh [A] 6.2 In the case under consideration, the assessee has discharged primary onus by filing 7/12 extracts before the ld.CIT(A) to prove his source of income as agricultural income. Once assessee has discharged his onus, it is for the Revenue to prove that the receipts were taxable. As mentioned earlier, in this case, Revenue has not brought on record any evidence to prove that cash deposits were taxable income of the assessee. Therefore, respectfully following the Hon’ble Supreme Court(supra), we direct the AO to delete the addition of Rs.18,32,900/-. Accordingly, grounds of appeal raised by the assessee are allowed.