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Income Tax Appellate Tribunal, JAIPUR BENCHES,”A” JAIPUR
Before: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 6/JP/2023
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 6/JP/2023 fu/kZkj.k o"kZ@Assessment Years : 2009-10 cuke Munni Devi Sharma ITO Vs. 520, Govind Rai Ji Ka Rasta, Ward 1(4), Chandpole Bazar, Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AVIPS 1510 Q vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Anil Kumar Sharma jktLo dh vksj ls@ Revenue by : Sh. A. S. Nehara (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 17/05/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 28/06/2023 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM
This appeal is filed by assessee and is arising out of the order of the National Faceless Appeal Centre, Delhi dated 30.11.2022 [here in after ld. NFAC/CIT(A) ] for assessment year 2009-10 which in turn arise from the order dated 29.12.2016 passed under section 143(3)/147 of the Income Tax Act, 1961 [ here in after to as Act ] by ITO, Ward 1(4), Jaipur.
2. In this appeal, the assessee has raised following grounds: - 2 Munni Devi Sharma vs ITO “1. Under the facts and circumstances of the case the ld. CIT(A) is not justified in sustaining the addition of Rs. 47040/- to returned income by restricting the cost of improvement to 60% of Rs. 78400/- claimed by the assessee for computing the Short Term Capital Gain.
2. Under the facts and circumstances of the case the ld. CIT(A) is not justified in upholding the action of the AO in assessing Agriculture Income Rs. 330460/- as Income from other sources and in further enhancing the same to Rs. 380460/- against that of Rs. 330460/- assessed by the AO.
3. Under the facts and circumstances of the case the ld. CIT(A) is not justified in sustaining the addition of Rs. 6612366/- against that of Rs. 8245366/- made by the AO towards cash/Cheque/DD Deposited in Bank Account of the assessee holding the same as Income from undisclosed Sources.”
3. Succinctly, the fact as culled out from the records is that the assessee filed original return of income on 31.07.2009 declaring Agriculture income of Rs. 630460/-. The assessee subsequently in response to notice u/s 148 of IT Act 1961 filed another return of income on 15.09.2016, declaring total income of Rs. Nil and same agriculture income of Rs. 630460/-. The assessee during the course of assessment proceedings vide letter dated 22.11.2016, filed revised computation of total income declaring short term capital gain of Rs. 1,10,440/- arising from the transfer of certain capital assets comprising Rs. 89,340/- from the transfer of House No. 1224, Baba Harish Chandra Marg Chandpole Bazar, Jaipur. The assessee vide letter dated Nil submitted the details and particulars or above said cost of improvement of Rs. 78,400/-. The AO without properly appreciating the contention of the assessee disallowed the above said cost of improvement of Rs. 78400/- on the ground that no documentary evidences have been therefore the AO added back the same to declared short term capital gain of Rs. 1,10,440/- and thus assessed short term capital gain of Rs. 1,88,440/-. The assessing officer also added a sum of Rs. 82,45,366/- being the amount of the sum found credited in the two-bank account maintained with the HDFC Bank Limited.
Being aggrieved, the assessee carried the matter in appeal before the ld. CIT(A)/NFAC. The relevant finding of the ld. CIT(A)/NFAC on the grounds so raised is reiterated here in below:
“VI Discussion by the CIT (Appeals) The agricultural income is restricted maintains that he was holding 32 bigha agricultural land at village Paladi, Tehsil Virat Nagar dist Jaipur. There were no mandi sales slip submitted by the assessee, but only the assertion that he was holding 32 bigha agricultural land. Though the assessee exerted that he will produce evidences for agricultural income earned, no such evidence was produced during appellate proceedings. Not even a single mundi sales slip was produced by the taxpayer during the appellate proceedings. Considering these the agricultural income returned by the taxpayer is reduced by 50000/-. Agricultural income is reduced to 2,50,000/-. The remaining amount of Rs 380460 is treated under Income from other sources. The assessing officer shall add this amount to the income returned.
Addition upheld: 380460/-”
“VIII. Discussion of the issue in detail and the summary of decision The table below would show the details of cash deposit and narration given by taxpayer Bank Account No. 14030400000042 GRAND TOTAL = 66,12,366 The addition made by the assessing officer to this extend is upheld. Addition upheld: 66,12,366/-“
As the assessee did not find any favour from the order of the ld. CIT(A) the assessee has carried this appeal before the tribunal. A propose to the grounds so raised the ld. AR of the assessee appearing on behalf of the assessee has placed on record his written submission which is extracted in below; “The humble appellant in respect of each ground of appeal most respectfully bag to submit : Ground No.1 : Not pressed. Ground No.2: 1.The assessee declared the agriculture income of Rs.630460/- in the relevant return of income.
The assessee during the course of assessment proceedings vide letter dated 07.12.2016 submitted affidavit (PB No.35-36).
3. The assessee further submitted copy of Agriculture land holding documents of 3.79 Hectares. (PB No. 57-68). (Para 2 on Page No.2 of the assessment order.) 4. The AO estimated the agriculture income of Rs.300000/- and held the balance income of Rs.330460/- as income from other sources and thus made addition of the same to returned income. 5. Before ld. CIT (A) it was submitted that the assessee was having sufficient Agriculture land to generate the agriculture Income of Rs.630460/- as claimed in the return of Income. 6. It was also submitted that even on the basis of estimated income of Rs. 25000/- to 30000/-per Bigha as held by the AO, the AO is not justified in estimating the agriculture Income of Rs.300000/- keeping in view the total agriculture land held by the assessee. ( Para-V,Page No.4 of Order of CIT(A)) 7. The ld. CIT(A) has reduced the estimated agriculture Income to Rs.250000/- against that of Rs.300000/- estimated by the AO and enhanced the addition to Rs.380460/- against that of Rs.330460/- made by the AO. ( Para –VI, Page No.5 of Order of CIT(A)) 8. The ld. CIT(A) has no basis and justified reason to restrict the estimate of Agriculture Income to Rs.250000/- against that of Rs.300000/- estimated by the AO. 9. Under the relevant facts explained by the assessee before the AO/CIT(A) the claim of the assessee of having agriculture Income of Rs.630460/- is reasonable and justified. 10. Therefore Your Honour is requested to allow the claim of the assessee of agriculture income of Rs.630460/- and delete the relevant addition of Rs.380460/- as sustained/enhanced by ld.CIT(A). Ground No.4: 1. During the course of assessment proceedings certain amount comprising cash, cheque and DD were found credited in Bank Account of the assessee jointly held with her husband Indra Kumar Sharma.(Name of Indra Kumar Sharma was deleted after his death on 28.02.2015).(PB No. 37-42)
Account No. Amount
14030400000042 later changed to 15852500000185 7060000/- w.e.f.25.01.2009 HDFC Bank 15851930000254 HDFC Bank 1383366/- Total 8443366/- (Page No.4 of the assessment order) 2.The husband of the assessee looking after her affairs was died on 28.02.2015 and the assessee was not having specific knowledge about the nature, source and evidences of above said deposits.
Therefore the assessee vide letter dated 26.12.2016 requested the HDFC Bank to provide the details/nature of such deposits. (PB No.133) 3.Unfortunately, the assessee could not obtain the details/nature of above said deposits from the HDFC Bank, therefore being a uneducated lady under some misguidance, vide letter dated 26.12.2016 explained the nature/ source of such deposits based on wrong/mistaken and adhoc information and belief.( Page No.4-5 of assessment order) 4.The AO accepted the cash deposit of Rs.58000/-on 29.05.2008 in bank account No. 14030400000042, and Inter Bank Transfer of Rs.140000/- in Bank account No.15851930000254 and held the balance deposit of Rs.8245366/-(8443366/-less Rs.198000/-) as income from undisclosed sources and made addition of the same to returned income. (Page No.6 of the assessment order) 5. The assessee before ld. CIT(A) categorically with clean hand admitted that the nature/source of deposits explained before the AO are based on wrong/mistaken and adhoc information, therefore same may kindly be ignored.(Para 10 on PB No.10) 6. The assessee relying on certain judicial pronouncement in support of his retraction filed additional evidences along with application u/r 46A of IT Rules 1962 for admission of the same.(Para 11 to 17 on PB No.6) 7. The assessee in the light of strong and conclusive documentary evidences explained the source/nature of each and every amount /deposit credited in both the bank accounts of the assessee. (Para-16 in Tabular Form on PB No.8-11)
The ld.CIT(A) send the additional evidences submitted by the assessee for remand report of the AO.
10 Munni Devi Sharma vs ITO 9.The AO vide his remand report dated 09.02.2018 accepted the source/nature of deposits to the extent of Rs. 7981800/- and reiterated for balance of Rs. 263566/-. (PB No.181-182) 10.The assessee vide rejoinder dated 03.07.2018 relied on remand report of the AO and reiterated on his written submission.(PB No.183-184) 11. The further proceedings before ld. CIT(A) transferred to online/ faceless proceedings.
The assessee vide his online response dated 03.09.2021 and 06.07.2022 relied on the physical proceedings and submitted the relevant details before the ld. CIT(A). (PB No.185-188) 13. The ld. CIT(A) without perusing the details/evidences and remand report of the AO available on record held in respect of entries to the extent of Rs.6612366/- that no documentary evidence produced in appellate proceedings and sustained the addition made by the AO to that extent. (Page No.12-15 of order of ld. CIT(A)) 21.The assessee vide his written submission dated 11.09.2017 before ld. CIT(A) by submitting relevant details and cogent documentary evidences has explained source and nature of deposits in her Bank Account relating to the addition of Rs.8245366/- made to returned income.(PB No.1-12 supported with 13-180) 22. The AO himself vide his remand report dated 09.02.2018 has accepted the source and nature of deposits explained by the assessee to the extent of Rs. 7981800/-.
Therefore, Your Honour is requested to delete the relevant addition of Rs.6612366/- sustained by ld. CIT(A).”
In addition to the written submission, the ld. AR of the assessee submitted that he has supported the holding of land of 15 bighas before AO and 32 bighas before ld. CIT(A) jointly earned by other family members.
Even though, the ld. CIT(A) instead of granting relief to the assessee has reduced the benefit granted by the AO and submitted that in respect of ground No. 2 for estimation of agriculture income. He prayed before the income is required to be made so as to render the justice to the assessee and consider grounds of appeal accordingly. To support Ground No.
3. The ld. AR of the assessee submitted that there is an application for additional evidence under rule 46A (1)(c) of IT Rules, 1961 was made before ld. CIT- 1, Jaipur based on that additional evidence application filed by the assessee a remand report was also called for from the Assessing Officer and the AO has submitted his remand report letter dated 09.02.2018. He has heavily relied upon the report of AO in that ground before us.
7. On the other hand, the ld. DR relied on the order of lower authorities and did not controvert to the fact that there is a remand report available on record so far as to the submission made by the assessee before the ld. CIT(A).
8. We have heard the rival contentions and perused the material placed on record. The Bench noted that from the written submission filed by the assessee he has not pressed ground No. 1 and therefore, the Ground No. 1 is dismissed. income of the assessee, the Bench noted that the assessee before AO contended that he owns 15 bighas of land and before ld. CIT(A) he contended along with other family members, he owns 32 bighas of land based on that the averments the ld. CIT(A) without giving any justification reduced the agricultural income of the assessee at Rs. 50,000/- contending that the assessee has not submitted any single mandi sales slip and therefore, the agriculture income as against Rs. 3 lakhs allowed by the AO, he reduced it to Rs. 2.50 lakhs. The bench noted that the assessee has submitted copy of agricultural land holding documents of 3.79 hectares of land (APB 57-68). The assessee also submitted an affidavit about the holding of the land and earning of the agricultural income (APB35-36). In the remand proceeding the ld. AO reported that the assessee in support of the agricultural income has not supported the same with the evidence. As the assessee before us also could not substantiate the agricultural income to the extent of Rs. 6,30,460/- and thus based on the finding recorded by the ld. AO we do not any fault in granting the relief to the assessee for agricultural income to the extent of Rs. 3,00,000/- being fair and reasonable. Based on these observation ground no. 2 raised by the assessee is partly allowed. the addition of Rs. 66,12,366/-, bench noted that on this issue there is a detailed remand report available on record which has not been discussed by the ld. CIT(A) while passing the order. The operative part of the remand report which has not been considered is reproduced here in below for the sake brevity : fu/kkZfjr }kjk izLrqr lk{;ksa dk voyksdu djus ij ;g Li"V gksrk gS fd fu/kkZj.k o"kZ 2009&10 ds nkSjku fu/kkZfjr }kjk for o"kZ 2008&09 esa ,pMh,Qlh] cSad fyfeVsM] lh&Ldhe] t;iqj ds cpr [kkrk la[;k 14030400000042 esa 70]60]000@& ,oa blh cSad ds [kkrk la[;k 15851930000254 esa :0 13]83]366@& udn dy tek jkf’k : 84]43]366@& esa ls :0 1]98]000@& dk lk{; is’k fd;k x;k rFkk ’ks"k :0 82]45]366@& ds laca/k esa fu/kkZfjrh }kjk cSad esa tek djk;s x;s udn jkf’k ds L=ksr is’k fd;s x;sA buesa fnukad 11-07-2008 dks tek jkf’k :- 1]50]000@& ,oa fnukad 14-01-2009 dks tek jkf’k :- 1]13]566@& ds L=ksr is’k ugha fd;k x;kA bl izdkj cSad esa tek jkf’k :- 82]45]366@& 2]63]566 = 79]81]800@& dk fu/kkZfjrh }kjk tek jkf’k dk L=ksr is’k fd;k x;k] ftudks fu/kkZfjrh }kjk fn;s x;s lk{;ksa ls feyku fd;k x;k] tks lgh ik;k x;k ,oa :- 79]81]800@& ds L=ksr dk lR;kiu fd;k x;kA
Since the assessee fairly admitted that out of the total addition of Rs.82,45,366/- made by the ld. AO, he has based on the AO’s remand report seek relief of Rs. 79,81,800/- for which ld. AO appreciated the additional evidence and accepted the fact that the assessee has given the details of source of Rs. 79,81,800/- and therefore, based on that non controverted finding the addition of Rs. 2,63,566/- only sustained. The bench noted that ld. DR did not controvert the finding of AO’s report in remand proceedings. The assessee has clearly with evidence before ld. AO admitted by discussing each and every evidence filed by the assessee agreed that the assessee has explained the source of the amount credited in the bank account to the extent of Rs. 79,81,800/- and the assessee did not dispute that finding further for the balance the addition sustained. Based on these facts we are of the considered view that out of the total addition of Rs. 82,45,366/- made by the AO a sum of Rs. 79,81,800/- is deleted based on the detail finding of the AO recorded in the remand report. In the light of this fact, the Ground No. 3 raised by the assessee is partly allowed.
In the result the appeal of the assessee is partly allowed.
Order pronounced in the open court on 28/06/2023. Sd/- Sd/- ¼ lanhi xkslkbZ ½ ¼ jkBkSM deys’k t;arHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 28/06/2023 *Ganesh Kumar आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Munni Devi Sharma, Jaipur 2. izR;FkhZ@ The Respondent- ITO, Ward 1(4), Jaipur vk;dj vk;qDr@ The ld CIT 3. vk;dj vk;qDr¼vihy½@The ld CIT(A) 4. 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File (ITA No. 6/JP/2023) vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत