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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC-II’ NEW DELHI
Before: SMT DIVA SINGH
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: ‘SMC-II’ NEW DELHI
BEFORE SMT DIVA SINGH, JUDICIAL MEMBER
I.T.A .No.-4881/Del/2015 (ASSESSMENT YEAR-2010-11) Niranjan Singh, vs ITO, C/o-Prem Prakash, Advocate, Ward-2, 183/2, North Civil Lines, Muzaffarnagar. Roorkee. PAN-AGZPS8125M (APPELLANT) (RESPONDENT)
Appellant by Sh. Prem Prakash, Adv. Respondent by Ms. Anima Baranwal, Sr.DR
Date of Hearing 03.08.2016 Date of Pronouncement 21 .09.2016
ORDER In the present appeal filed by the assessee assailing the correctness of the order
dated 20.03.2015 of CIT(A), Dehradun pertaining to 2010-11 assessment year, the
Registry has pointed out a delay of 44 days.
The Ld.AR addressing the delay submitted that the assessee remained ailing
during 10.06.2015 to 24.07.2015 on account of Viral Hepatitis and was advised bed rest
as such the delay has occurred for reasons beyond his control. Reliance was placed upon
medical certificate of Dr. Satish Chandra Gupta supported by an affidavit of the assessee
filed in support of the petition praying for condonation of delay. The Ld. Sr.DR
considering the material available on record and the petition submitted that she has no
objection if the delay is condoned and the issue is decided on the basis of material on
record.
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2.1. Accordingly in the light of the submissions of the parties before the Bench and
considering the material on record the delay is condoned. Ordered accordingly.
Addressing the grounds raised, the Ld. AR submitted that he would not be arguing
Ground No. 3 raised in the present appeal. The said ground is dismissed as not pressed.
Noting to this effect has been given by the Ld.AR on the Grounds filed. The remaining
two grounds read as under:-
“Ld.CIT(A) was wrong in confirming addition of Rs.14,10,300.00 without any base. 2. Ld.CIT(A) was wring in confirming addition of Rs.11,27,400.00 without any base.”
3.1. The relevant facts of the case are that the assessee declared an income of
Rs.1,79,104/-. The said return was selected for scrutiny through CASS and the assessee
was required to explain the cash deposits in his SBI, IIT Roorkee Branch totaling
Rs.14,10,300/- and cash deposits in SBI, IDO Branch totaling Rs.11,27,400/-. The
assessee submitted in regard to the deposits in SBI, IIT Roorkee Branch that these
represented sale proceeds of poplar trees supported by copy of Khasra and Khatouni. The
AO required the assessee to produce the persons who purchased the poplar trees for
verification. Summons were also issued to the said persons under section 131 of I.T.Act,
1961, however received back with the postal remark that “talash karne par nahi mila”.
The issue travelled in appeal before the First Appellate Authority. A perusal of the
arguments recorded in para 8 shows that the assessee has sought permission to produce
fresh evidence of the contractors who purchased the poplar trees. The CIT(A) considers
that since these were not filed before the AO they could not now be accepted. For ready-
reference, the arguments of the assessee before the CIT(A) are extracted hereunder:-
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I.T.A .No.-4881/Del/2015
“The assessee produced copy of the receipt of the transaction alongwith ID proof, affidavit from the contractors and copy of certified ledgers in confirmation of the claim of the assessee. He also submitted that he was ready to produce all the three contractors for their statements before the undersigned for confirmation of the affidavits. The assessee had deposited Rs.13,39,570/ in the SB A/c out of sale proceeds of tress which were owned by all the family members and the assessee did not have any malafide intention to deposit the same. The assessee also produced the copy of the Khasras & Khataunis of the family's agricultural land in support of his trees. With regard to the addition of Rs.1,40,455/-, it was submitted that there was no such difference in Form 26AS. The difference was as below:- A) Figure as per Form 26AS Rs.4,19,555/- B) Figure as per Form 16 Rs.2,38,861/- Difference Rs.90,694/-
A copy of the Form 16 was submitted and it was submitted that the difference on account of interest received on deposits with Bank of Baroda and State Bank of India u/s j 194A. It was further submitted that tax of Rs.10,814/- had been deducted on this basis already. With regard to the interest of Rs.18,804/-, it was submitted that a sum of Rs.8,000/- had already been shown as interest in his Form 16, hence only the balance should be added back.”
3.2. Considering these the additions were sustained holding as under:-
“I have perused the documents submitted by the assessee. It is seen that all the affidavits have been recently sworn and all the receipts been prepared for the lump sum amount i.e. these receipts are not for actual payment of money tree wise but documents prepared well afterwards, testifying the lump sum amount. More over, as the A.O. had no occasion to see them, they cannot be admitted as evidence at this stage. It is seen that the assessee had filed Khasra & Khatauni before the A.O. which revealed that he was a joint owner of 4.25 hectares of land in village Mishri, Tehsil Maur, Distt. Mathura which was growing wheat, mangoes and other trees. It was also observed that he had submitted that he had an equal part in that Khasra alongwith the other 10 co-owners. The assessee had also submitted before the A.O. that he had 5 bighas of agricultural land and 5 bighas were there in the name of his mother. His mother has also submitted an affidavit that her son looked after her land. However, by themselves these do not constitute evidence that the assessee had derived the income that he claims to have derived from the sale of Poplar trees. Had the assessee produced a contemporary Khasra where the trees were found to be absent, it could have been assumed that the money in the bank account came from their sale. However, since no such document has been produced, it cannot be assumed that khasra of fasli varsh 1419 (Calendar year 2004 AD) can prove the deposits of money into the accounts of the assessee in 2009. It had been submitted that the assessee had sold 1260 Poplar trees and other trees with cash crop and received in total Rs.13.5 lakhs in this regard. However, no evidence has been produced before the undersigned or the A.O. that could actually prove the fact that the assessee
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I.T.A .No.-4881/Del/2015
had earned the income from the sale of trees. It is observed that the Bank pass books or ITRs of the contractors which could have proved their capacity to make payments to him have not been produced In the circumstances, this ground of the assessee is disallowed and the addition confirmed.”
Addressing the same, the Ld. AR submitted that he would seek permission to file
fresh evidence as for want of contemporaneous evidence the addition has been sustained
as far as Ground No.1 is concerned. Addressing Ground No.2 it was submitted
miscellaneous petition u/s 154 is pending before the CIT(A) on account of the fact that
the arguments in regard to the said Ground have not been recorded in the order itself
wherein the assessee has stated on the basis of documents placed at serial No. 17 which
is reply of the bank at pages 22 to 26 of the Paper Book supported by a copy of the bank
statement at serial No. 18 that infact in the said bank account of SBI IDO Branch there
were infact no deposits at all.
The Ld.Sr.DR relies upon the orders of the tax authorities.
I have heard the rival submissions and perused the material available on record.
Considering the same, I am of the view that in the peculiar facts and circumstances of the
case and considering the arguments of the parties before the Bench, it is considered
appropriate to set aside these issues back to the file of the Assessing Officer permitting
the assessee to file fresh evidence in support of its claim. The contemporaneous evidence
in support of ownership of poplar trees on the lands of the assessee is directed to be filed.
The general arguments of ownership and co-ownership of lands having mango trees etc.
does not address the claim put forth namely sale of poplar trees owned by the assessee.
Qua the issue addressed in Ground No.2 the Assessing Officer is directed to verify
whether there were any deposits in the year under consideration in the specific said bank
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I.T.A .No.-4881/Del/2015
account in SBI IDO Branch. The assessee states that the bank account is his however
cash deposits therein is disputed.
6.1. Accordingly the impugned order is set aside and the issue is restored back to the
file of the Assessing Officer with a direction to pass a speaking order in accordance with
law after giving the assessee a reasonable opportunity of being heard. It is made clear
that the opportunity so provided in good faith, it is hoped is not abused by the assessee
as failing which the AO would be at liberty to pass a speaking order on the basis of
material available on record.
In the result, the appeal of the assessee is allowed for statistical purposes. The order is pronounced in the open court on 21st September, 2016.
Sd/- (DIVA SINGH) JUDICIAL MEMBER *Amit Kumar* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI
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