TaxTMI 
TaxTMI 
2013 (1) TMI 987
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....) was not justified in not accepting the documents filed as additional evidence before him. (ii) On the facts and in the circumstances of the case, the learned CIT(A) was not justified in making the determination of income at Rs. 3,87,640/- against the returned income of Rs. 1,68,088/-. (iii) That on the facts and in the circumstances of the case, the learned CIT(A) was not justified in not accepting the agricultural income shown by the assessee at Rs. 6,86,548/- and in treating the same as income from other sources and consequent addition of the same. (iv) That, on the facts and in the circumstances of the case, the learned CIT(A) was not justified in not allowing the deduction u/s 24 at 30% of the house property, rental receipt shown by the assessee at Rs. 33,000/-by treatingthe same as income from other sources and thus consequent addition." 2. During hearing of these appeals, in the case of Mohd. Atique, the assessee has challenged the action u/s 153C of the Act. The learned counsel for the assessee invited our attention to the recorded reasons for taking action u/s 153C of the Act by submitting that the documents ....
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....cultural income whereas the learned CIT DR defended the order of the learned CIT(A). 5. We have considered the rival submissions and perused the material available on record. We find that in response to notice u/s 153A the assessee filed its return of income disclosing agricultural income for various years under consideration. The stand of the revenue is that since the assessee filed the return showing agricultural income for various years for the first time, therefore, in real sense there is no income from agriculture and the Assessing Officer treated the agricultural income as income from other sources accordingly additions were made u/s 68 of the Act. The returned income as well as the assessed income are summarised as under :- Sl.No. A.Y. Agri. income on own land Agri. Income on lease hold land Amount of addition made by treating agricultural income as income from other sources 1 2001-02 2,82,348 4,04,200 6,86,548 2 2002-03 3,02,841 4,42,900 7,45,741 3 2003-04 3,25,611 4,85,900 8,11,511 4 2004-05 3,59,766 5,50,400 9,10,166 5 2005-06 4,88,376 5,93,400 10,81,776 ....
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....as has been claimed by the assessee can be made. The affidavit, filed by one of the persons, was rejected merely on the ground that it was not deposed before the Assessing Officer. We are of the considered opinion that if a false affidavit has been filed, it has its own repercussion. Instead of falsifying the affidavit, it was merely rejected on the ground that it was not filed during assessment proceedings. The assessee is basically an agriculturist for the last 40 years though having two trucks and also doing real estate business. So far as Khasra Khataunies are concerned, these are documents issued by the land revenue department of the Government and cannot be disbelieved unless and until any adverse material is brought on record. The statement of Mohd. Atique was recorded u/s 133A and in reply to question no. 3 he has stated that he has income from agriculture and in reply to question no. 6, he has claimed that he is having 30 - 40 acres of agricultural land in own name and nearly 150 -250 acres of land by other members of the family. Nearly 200 acres of agricultural land was claimed to be taken on lease (paper book pages 33 to 35 supports the claim of t....
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....d. There is no law that additional evidence should not be admitted. Only it has to be seen that the right of the other party to rebut the same should not be violated. In the instant case, copy of Khasra could not be obtained by the assessee when the case was going on before the AO. However, the same was acquired and filed before the CIT(A). Copy of such Khasra is also placed at pages 6 to 30 for the A.Ys. 2001-02 and 2002-03 and for the A.Y. 2004-05. In respect of Khasra for the a.Y. 2003-04, the same are placed at pages 7 to 30 and for the a.Y. 2005-06 at pages 7 to 31 and for the A.Ys. 2006-07 and 2007-08 at pages 7 to 56 of the paper book filed for the respective years. Copies of the purchase deeds showing purchase of land in the name of the assessee and other family members are placed at pages 81 to 184 of the paper book. 8. Additional evidence is necessary for proper appreciation of the issue in appeal and for adjudication of substantial justice. Such evidence may ultimately turn out to be to the benefit of either tax payer or the Revenue. Even in the matters which were earlier decided, fresh evidence may be admitted, th....
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....el for the assessee, the assessment should have been framed u/s 153A and since the assessment has not been framed u/s 153A but the Assessing Officer has wrongly mentioned section 153C, the assessment is null and void. We do not find any merit in this contention of the assessee insofar as such mistake is covered by the provisions of section 292-B of the Act. Accordingly, the legal ground taken by the assessee in the A.Ys. 2002-03 to 2007-08 is hereby dismissed. 12. For the A.Y. 2007-08 (Ground nos. 5 to 7) the additions have been made on the basis of entries made in the book marked as BS1. The total of such entries comes to Rs. 50,21,800/- (cash from Bhai Jan Rs. 17,09,800/- and cash paid Rs. 33,12,000/-). From the assessment stage itself it has been explained by the assessee that Bhai Jan is the nick name of Mohd. Atique. The cash book and books of accounts were impounded on 31.9.2006 (Annexure 22 and 21). The claim of the assessee is that these cash transactions were with respect to Navin Nav Yuvak (NN) and A.A. Real Estate (AA). It was contended that the assessee (Mohd. Atique) controls both the concerns and used to keep the cash of both the concerns with him....
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....led before the lower authorities. The assessee also filed reconciliation statement before the CIT(A). Without verifying the reconciliation statement and its correctness, the CIT(A) confirmed the addition made by the assessee. As per our considered view, the amount received as well as amount paid cannot be the income of the assessee. The total of these entries indicating receipt of cash was Rs. 17,09,800/- whereas total of such cash payment was Rs. 33,12,000/-. Thus, out of the total cash payment of Rs. 33,12,000/-, a sum of Rs. 17,09,800/- itself was the receipt indicated on the same set of papers, therefore, as per our considered view, amount paid by the assessee in excess of what he has received, can be treated as his unexplained income. Thus, the maximum addition which can be made works out to be Rs. 16,02,200/- (Rs. 33,12,000/- (-) Rs. 17,09,800/-). Accordingly, the Assessing Officer is directed to restrict the addition to the extent of Rs. 16,02,200/- in place of Rs. 50,91,800/-. 13. The last ground pertains to not allowing deduction claimed u/s 24 at 30% of the house property rental receipt at Rs. 33,000/....
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....8,000 84,000 Total 1,65,800 1,81,200 1,96,800 2,13,600 2,31,600 The property at Jumerati was purchased in the year 1987 and permission for construction was obtained on 28.12.1993. Affidavits of tenants confirming payment of rent to the assessee were being submitted before the CIT(A) . These are in confirmations of assessee's plea already taken before the ld. A.O. These affidavits could not be presented before the ld. A.O. as during the assessment proceedings the tenants were evicted. The tenants could be located after efforts. 15. The additional evidence so filed by the assessee before the CIT(A) is necessary for proper appreciation of issue in appeal and for the cause of substantial justice. Such evidence may ultimately turn out to the benefit of either tax payer or the department. We also find that the assessee was also allowed very short time by the Assessing Officer to comply with a number of inquiries, submission of documents and production of various persons before the Assessing Officer. The powers of the CIT(A) are co-terminus to admit fresh evidence with the powers of the Assessing Officer and these powers are stressed repe....
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....s as income from other sources of the appellant. 04. On the facts and in the circumstances of the case, the Id. CIT{A) was not justified in not accepting the income from Truck operation as returned by the appellant u/s. 44AE of the IT Act and in confirming the addition of Rs. 16,658/- by applying the N.P. rate of 8% on the Gross receipts as done by the assessing officer. 05. On the facts and in the circumstances of the case, the Id. CIT{A) was not justified in confirming the calculation of the long term capital gain at Rs. 13,69,402/- for each of the three minor sons in place of Rs. 77,849/- shown by the appellant and in confirming the addition of Rs. 38,74,659/- towards share of three minor sons in the capital gain. 06. On the facts and in the circumstances of the case, the Id. CIT{A) was not justified in not applying the provisions of sec. 112 of the IT Act on shares of long term capital gain included in the hands of the appellant and in charging the tax on the normal rate in place of 20% applicable in the case of the appellant. 07. On the facts and in the circumstances of the case, the Id. CIT{A) was not justifie....
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....above in the case of Mohd. Atique and since the facts are the same, following the reasoning given therein, we restore the matter back to the Assessing Officer for deciding afresh the assessee's claim of deduction u/s 24 in respect of income from house property shown by him. Accordingly, this ground is allowed for statistical purposes. 24. So far as ground no. 4 is concerned, it is noted from record that the assessee declared income from business of truck u/s 44AE of the Act. The Assessing Officer rejected the claim of the assessee on the plea that the assessee has not maintained any books of accounts, vouchers and bills, etc. He, therefore, estimated the profit @ 8% of the total receipts and made the addition of Rs. 16,658/-. On appeal also the assessee did not find any favour from the learned CIT(A) as in the opinion of the learned CIT(A) since the assessee is not the truck operator but has done the business of transportation under the contract, the case of the assessee was not covered u/s 44AE of the Act. 25. Before us, the learned counsel for the assessee submitted that though the trucks were run on co....
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....rmed :- A.Y. Amount of addition (in Rs.) 2001-02 16658 2002-03 2003-04 20785 2004-05 437456 2006-07 2007-08 28. It was pleaded by the learned counsel for the assessee that the assessee was having two trucks, therefore, provisions of section 44AE are applicable benefit of which was not given by the lower authorities. 29. We have considered the rival submissions and find from record that during the course of search various deposits were found in the bank account, which were explained by the assessee as out of business of truck operation. In the A.Y. 2004-05 a total sum of Rs. 1,45,83,387/- was found deposited in two bank accounts of the assessee. Such huge deposit cannot be said to be out of income of two trucks only. However, a categorical finding has been recorded by the learned CIT(A) to the effect that the assessee was a truck operator, doing business of transportation under contract by hiring trucks from others. Since the assessee was not owning the trucks of his own, but was hiring trucks from outside parties, therefore, provisions of section 44AE were not applicable.&....
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....Nawab and just opposite the flag house which was against the house of Nawab while the transaction cited by the Assessing Officer relates to the small piece of land far behind from the main road with a small service lane. 32. It was further contended by the learned counsel for the assessee that the assessee's plot was situated at most advantageous position on the main road, therefore, the Assessing Officer was not justified in comparing the value fetched by this transaction with the value of a plot which was not located on the main road but was on the small service lane and was not having advantageous position as that of the assessee. He reiterated that in such circumstances, the most reliable method is to apply the cost inflation index backwards :- Index in FY 2005-06 497 Index in FY 1980-81(Actually FY 81-83) 100, say Calculation 1,15,35,000x100/497 = 23,20,925 Cost per sqft as on 1.4.1981 = 23,20,925 23,070 = 100.6 per sq.ft. The cost of acquisition during FY 1981-82 taken by the assessee is c....
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....ng additions were made in the relevant assessment year i.e. A.Y. 2006-07 as long term capital gain :- Name of persons Actual capital gains Capital gain shown Addition on account of LTCG 1 Mohd. Shakeel 1369402 77849 1291553 2 Mohd. Yusuf 1369402 77849 1291553 3 Mohd. Umar 1369402 77849 1291553 4 Mohd. Rafique 1369402 77849 1291553 5 Mohd. Danish 1369402 77849 1291553 6 Mohd. Rumman 1369402 77849 1291553 7 Mohd. Shayan 1369402 77849 1291553 Mohd. Danish, Mohd. Rumman & Mohd. Shayan are minors and father of these three minors is Mohd. Shafique. 36. In the case of Mohd. Danish, Mohd. Rumman & Mohd. Shayan, assessee submitted that all of the above are minors and having no income. Therefore, income of these minors i.e. Rs. 38,74,659/- (1291553 x 3) will be clubbed as income of their father Shri Mohd. Shafique. 37. The submissions of the assessee before the learned CIT(A) were as under :- " The minor son's of the appellant Mohd. Danish, Mohd. Ruman and Mohd. Shayan and their 4 co-owners owned the plot at 23070 sq. ft. which they had ....
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.... which worked out to Rs. 500/- per sq. ft. While working out the long term capital gains, the assessee has estimated fair market value as on 1.4.1981 at Rs. 100/- and worked out the share of long term capital gains at Rs. 77,849/- since the property was sold in the A.Y. 2006-07. However, the Assessing Officer did not agree with the fair market value arrived at by the assessee as on 1.4.1981 and after comparing transaction with the sale transaction dated 23.10.1982 in respect of a plot of 1410 sq. ft. @ Rs. 17.73 per sq. ft. i.e. for consideration of Rs. 25,000/-, worked out the long term capital gain at Rs. 95,85,816/- wherein the assessee was having his share of Rs. 13,69,402/-. Thus, we find that as on 1.4.1981 the assessee has taken value of plot at Rs. 100/- per sq. ft. whereas the Assessing Officer has taken it at Rs. 17/- per sq.ft. by referring to an example which is not at all comparable. The comparable case taken by the Assessing Officer is of one Shri Gyas Hussal Saraf. The plot was measuring 1410 sq. ft. only whereas the assessee's plot was of 23070 sq. ft. We also find that the assessee's plot was located by the side of Ahmedabad Palace, residence of e....
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....ion was made in respect of opening cash balance of Rs. 5 lacs shown by the assessee as on 1.4.2001. The assessee has shown opening cash balance of Rs. 5 lacs for the year ending on 31.3.2001 which is reflectred in the receipts and payments account which is already on record. The assessee had income from rent, truck plying and agriculture from past more than 40 years. Earlier he was having income from transport business. He was obtaining contracts from the Government but he believed that since the tax has been recovered as TDS, he did not file his IT returns in the earlier years. However, he had sufficient income in the earlier years as well. 43. As discussed hereinabove, the assessee had agricultural land since last 40 years and also having substantial income from operation of trucks. The assessee was also having income from house property since last many years. Even though the Assessing Officer has not accepted the income from house property but the same was assessed as income from other sources by declining deduction claimed u/s 24 but the fact remains that the assessee has declared income which was assessed by the Assessing Officer under di....