TaxTMI 
TaxTMI 
TaxTMI 
2015 (1) TMI 925
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..... 2. BECAUSE the Assessing Officer could not have been treated to have assumed jurisdiction under section 153A, as the "appellant's" objection to the said initiation remained unresolved and accordingly the initiation of proceedings under section 153A as also the assessment made in pursuance thereof are void ab-initio. 3. BECAUSE the issue of assumption of jurisdiction under section 153A and assessment made in pursuance thereof, was justiceable in the appellate proceedings and merely because the Assessing Officer had rejected the appellant's objection in this respect, the "CIT(A)" could not have held that appeal on this issue was not maintainable. WITHOUT PREJUDICE TO THE AFORESAID 4. BECAUSE the authorities below have erred in law and on facts in treating agricultural income of Rs. 30,000/- as had been shown in the return, as income under the head "Income from Other Sources", and in subjecting the same to assessment accordingly. 5. BECAUSE the "appellant" had been showing agricultural income in past and there being no material found during the course of search which could impinge upon or contradict the said disclosure, the treatment given to the income shown under the ....
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.... is not agricultural income. It is also held in CIT v. Ramakrishna Deo [1959] 35 ITR 312 (SC) that a person who claims the benefit to an exemption has to establish it. Thus, burden of proof is on assessee to prove that his income is agricultural income which is exempt from tax. The net agricultural income has to be computed as per Part-IV of the First Schedule to the Finance Act and it is not correct to state that the appellant is not required to maintain such details and the land revenue record is sufficient to prove the carrying out of agricultural activity and thereby implying that the quantum of agricultural income cannot be disbelieved. As no evidence for the said agricultural income was filed before the Assessing Officer nor the details of sale proceeds and expenses incurred were filed in the course of the appeal despite a specific query in this regard, therefore, the agricultural income has been rightly treated as income from other sources and added to the total income of the appellant and does not entitle the appellant for any relief in the absence of any ownership over the agricultural land. Hence, these two grounds of appeal are also rejected." 6.1 From the above Para fr....
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.... have held that appeal on this issue was not maintainable. WITHOUT PREJUDICE TO THE AFORESAID 4. BECAUSE the authorities below have erred in law and on facts in treating agricultural income of Rs. 48,000/- as had been shown in the return, as income under the head "Income from Other Sources", and in subjecting the same to assessment accordingly. 5. BECAUSE the "appellant" had been showing agricultural income in past and there being no material found during the course of search which could impinge upon or contradict the said disclosure, the treatment given to the income shown under the head "Agricultural Income', by the authorities below is illegal and unjustified. 6. BECAUSE assessment of agricultural income shown at Rs. 48,000/- as income under the head "Income from Other Sources", is beyond the ambit and scope of the said section and accordingly taxation of the same in terms of the assessment order dated 28.12.2010 is wholly illegal. 7. BECAUSE the order appealed against, to the extent the same has been impugned in this appeal, is contrary to the facts, law and principles of natural justice." 9. Ground No. 1, 2 & 3 were not pressed by Learned A.R. of the assessee and hen....
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....e from Other Sources", is beyond the ambit and scope of the said section and accordingly taxation of the same in terms of the assessment order dated 28.12.2010 is wholly illegal. 7. BECAUSE the CIT(A) has erred in law and facts in upholding an addition of Rs. 2,63,400/- representing the collection of cheque (received by the appellant on sale of jewellery) in his bank account, by invoking the provisions of section 69A of the Act. 8. BECAUSE looking to the quantity of jewellery that has been subjected to sale (proceeds of which had been collected/credited in the bank account of the appellant) the ownership of the appellant/his wife over the same could not have been legitimately disputed and adverse inference that had been drawn by the Authorities below (on this issue) is wholly illegal and unjustified, and accordingly the addition in question deserves to be deleted. 9. BECAUSE addition of Rs. 2,63,400/- as had been sustained by the "CIT(A)" is based on a wholly wrong premise and even on surmises and conjunctures and the same is not sustainable. 10. BECAUSE without causing in any manner any prejudice to the contentions raised in grounds no.7, 8 & 9 hereinfore, in consequence of hi....
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....fficer vs. Manilal S. Dave [2001] 70 TTJ (Ahd) 801 (x) Ideal Plot Vikri Kendra & Ors. Vs. ACIT [2000] 74 ITD 117 (Pune) (TM) (xi) P. C. Mundra vs. ACIT [2003] 80 TTJ (Jp) 945 (xii) Smt. Sulochana Devi Jaiswal vs. DCIT [2004] 90 TTJ (Jab) 974 (xiii) Jai Kumar Jain vs. ACIT [2006] 99 TTJ (Jp) 744 16. We have considered the rival submissions. We find that this issue was decided by CIT(A) as per 5.3.2 of his order, which is reproduced below for the sake of ready reference:- "5.3.2 I have considered the reply. As the evidence for safe of jewellery to the jeweler was found in the course of the search, hence in view of the provisions of section 292C, the same has an evidentiary value. The appellant contends that the CBDT has clarified that gold jewellery to the extent of 500 gms per married lady, 250 gms per unmarried lady and 100 gms per male member cannot be seized. However, the same is relevant only for the purpose of seizure of the jewellery at the time of the search and does not render the nature and source of acquisition of such jewellery found in the course of the search as explained. However, since jewellery is included in the definition of 'capital asset' as per the....
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....ewellery was received at the time of marriage. Receipt of jewellery to the extent of 100 gms. on account of marriage should be accepted in the facts of the present case. We hold that jewellery to the extent of 100 gms. should be accepted subject to computation of Long Term Capital Gain on sale of this jewellery and the addition as unexplained jewellery should be restricted to the balance amount of jewellery being 378.900 gms. The Assessing Officer should work out the proportionate amount of addition. Accordingly, ground No. 7 to 9 are partly allowed in the terms indicated above. 17. Regarding ground No. 10, we are of the considered opinion that in respect of 100 gms. of jewellery held to be explained by us, the Assessing Officer should compute long term capital gain on the sale of the jewellery and for doing so, the assessee has to bring evidence on record regarding its cost and year of acquisition and if the assessee can establish that the jewellery was acquired prior to 01/04/1981 then the Fair Market Value on 01.04.1981 should be taken as cost of acquisition of the jewellery and thereafter, indexation of benefit should be allowed to the assessee and long term capital gain, if a....
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....e said section and accordingly taxation of the same in terms of the assessment order dated 28.12.2010 is wholly illegal. 7. BECAUSE the order appealed against, to the extent the same has been impugned in this appeal, is contrary to the facts, law and principles of natural justice." 20. Ground No. 1, 2 & 3 were not pressed by Learned A.R. of the assessee in this year also and hence, the same are rejected as not pressed. 21. Regarding ground No. 4 to 7, it was submitted by Learned A.R. of the assessee that this issue was decided by CIT(A) as per Para 6.2 & 6.2.1 of his order and in these Paras, it is noted by CIT(A) also that the assessee has purchased some agricultural land in this year on 29/07/2005. He submitted that when it is accepted that some agricultural land was purchased by the assessee, the agricultural income should have been accepted in full. 22. Learned D.R. of the Revenue supported the order of learned CIT(A). 23. We have considered the rival submissions. We find that in this year, the assessee has declared agricultural income of Rs. 95,000/- out of which, the Assessing Officer accepted the claim of the assessee to the extent of Rs. 50,000/- and the balance amount....
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....e said section and accordingly taxation of the same in terms of the assessment order dated 28.12.2010 is wholly illegal. 7. BECAUSE the CIT(A) has erred in law and facts in upholding an addition of Rs. 3,43,150/- representing the collection of cheque (received by the appellant on sale of jewellery) in his bank account, by invoking the provisions of section 69A of the Act. 8. BECAUSE looking to the quantity of jewellery that has been subjected to sale (proceeds of which stood collected/credited in the bank account of the appellant/his wife) the ownership of the appellant/his wife over the same could not have been legitimately disputed and adverse inference that had been drawn by the Authorities below (on this issue) is wholly illegal and unjustified, and accordingly the addition in question deserves to be deleted. 9. BECAUSE addition of Rs. 3,43,150/- as had been sustained by the "CIT(A)" is based on a wholly wrong premise and even on surmises and conjunctures and the same is not sustainable. 10. BECAUSE without causing in any manner any prejudice to the contentions raised in grounds no.7, 8 & 9 hereinfore, in consequence of his own findings that the jewellery (sold by the appel....
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....r for fresh decision. The assessee has to bring evidence on record regarding cost and year of acquisition. If the assessee can establish that the said jewellery was acquired prior to 01/04/1981 then Fair Market Value as on 01.04.1981 should be accepted as cost of jewellery and thereafter indexation of benefit should be allowed to the assessee and long term capital gain, if any, should be computed. With these observations, the matter is restored to the file of the Assessing Officer. These grounds are allowed for statistical purposes. 29. In the result, the appeal of the assessee stands partly allowed for statistical purposes. 30. Now we take up the appeal of the assessee for assessment year 2008-09 i.e. I.T.A. No.240/Lkw/2012. In this appeal the assessee has raised the following grounds: "1. BECAUSE there existed no material/information which could lead to the formation of "requisite reason to believe" as was a prerequisite for issuance of warrant of authorization under section 132(1) and accordingly the "appellant" could not have been treated to be the "person in whose case search had been initiated under section 132(1) of the "Act". 2. BECAUSE the Assessing Officer could not h....
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....ses incurred for agricultural activities. Since the facts are identical in the present year, we decline to interfere in the order of CIT(A) as in the preceding two years. These grounds of the assessee are rejected. 33. In the result, the appeal of the assessee stands dismissed. 34. Now we take up the appeal of the assessee for assessment year 2009-10 i.e. I.T.A. No.241/Lkw/2012. In this appeal the assessee has raised the following grounds: "1. BECAUSE search and seizure action itself not being valid, the ACIT, Central Circle-I, Lucknow could not be said to have been validly vested with the jurisdiction of the Assessing Officer in the case of the "appellant" and the assessment order dated 28.12.2010 is void ab-initio. WITHOUT PREJUDICE TO THE AFORESAID 2. BECAUSE the authorities below have erred in law and on facts in disbelieving the agricultural income shown by the appellant to the extent of Rs. 45,000/- and in treating the same as 'income from other sources' so as to levy tax on the same. 3. BECAUSE the authorities below have erred in law and on facts in treating the cash amounting to Rs. 8 lakhs, out of cash aggregating Rs. 8,65,735/- as had been found during the co....
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....round No. 2 is rejected. 37. Regarding ground No. 3 & 4, it was submitted by Learned A.R. of the assessee that cash found in course of search, was included by Shri K. N. Singh Patel in his disclosure of Rs. 10 crores. He drawn our attention to the assessment order dated 31/12/2010 for assessment year 2009-10 in the case of Shri K. N. Singh Patel appearing on page No. 215 to 235 of the paper book and in particular, our attention was drawn to page No. 234 of the paper book and it was pointed out that this disclosure of Rs. 10 crores included Rs. 25 lacs as cash seized from various search places. It was also submitted that the name of the assessee is also appearing on page No. 220 in the list of searches carried out u/s 132(1) in respect of which this disclosure was made by Shri K. N. Singh Patel. He submitted that in view of this, it should be accepted that this cash was already disclosed and therefore, no separate addition should be made. 38. Learned D.R. of the Revenue supported the orders of the authorities below. 39. We have considered the rival submissions. We find that this issue was decided by CIT(A) as per Para 9.3.2 of his order, which is reproduced below for the sake of ....