TaxTMI 
TaxTMI 
2021 (7) TMI 886
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....addition so made by the ld. AO and sustained by the ld. CIT(A) is being totally contrary to the provisions of law and facts on the record and hence the penalty may kindly be deleted in full. 3. The ld. AO has grossly erred in law as well as on the facts of the case in charging interest u/s 234 A,B,C. The appellant totally denies it liability of charging of any such interest. The interest, so charged, being contrary to the provisions of law and facts, may kindly be deleted in full. 4. The appellant prays your honors indulgence to add, amend or alter all or any of the grounds of the appeal on or before the date of hearing." 2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic. 3. The main grievance of the assessee in this appeal relates to confirming the addition of Rs. 13,00,000/- by the ld. CIT(A). The brief facts of the case are that the assessee is having income from milk sale or dairy. The Assessing Officer issued notice u/s 148 of the Income Tax Act, 1961 (in short, the Act) dated 27.09.2016 on the reason that as per information during the F.Y. 2013-14, the assessee has deposited cash amount of Rs. 26....
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..... 100/- regarding the gift given of the assessee. The Assessing officer asked Sh. Chhoturam Yadav regarding the difference between the sale consideration received Rs. 20.00 Lakhs and mentioned in the sale deed of Rs. 4,85,651/-. In thereto he has stated that it is correct that the sale consideration of Rs. 4,85,651/- is mentioned in the sale deed but he had received about Rs. 20.00 Lakhs against this land sold. On the question regarding the sale agreement with Sh. Kailash Chand Saini and Sale deed registered in the name of Sh. Ram Sahai Saini, Sh. Chhoturam submitted that Sh. Kailsah Chand Saini is the son of Sh. Ram Sahai Saini, the sale agreement of land was done by Sh. Kailsah Chand Saini but registry has been executed in the name of his father Sh. Ramsahai Saini. The Assessing Officer stated that he has issued summon to Sh. Kailash Chand Saini, which has returned back with the remark "Unclaimed", Due to this Assessing Officer has stated that agreement entered between Sh. Chhoturam Yadav and Kailsah Chand Saini seems to be bogus and fabricated documents because Sh. Kailash Chand Saini has not appeared before him after issue the summon with the malafide intention did not receive....
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....5.06.2013, in which it is clearly mentioned the rate of Rs. 5,11,000/- per bhigha for 4 bhiga agriculture land and he has received advance of Rs. 5,11,000/- and decided to get the registry on dt. 25.07.2013 copy of the same is enclosed (PB19-21)on the stamp and duly notarized with witness and decided to give the rest amount on 25.07.2013. However when on 25.07.2013 the registry could not be executed due to some strike in registry office, both the part has again executed an sale agreement on 25.07.2013 because on 25.07.2013 the purchaser had given the rest due amount of Rs. 15,23,000/- to Sh. Chhhoturam Yadav and Sh. Chhoturam Yadav had given the physical possession to the purchaser on dt. 25.07.2013(PB22-24), hence it was necessary to make a new agreement for both the parties. And there was no difference regarding the contents and terms and condition of the both the agreements. Except some later development as receiving whole sale consideration and hand over of possession to the purchaser. This affidavit is also on stamp and duly notarized and registered with the register of Notary Public. We are producing the certified copy of entry of agreement dt. 25.07.2013 in the Notary Regist....
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.... avoid these litigation he knowingly appeared and respond to the summon and he does not want to come before income tax department or to save himself from to be exposed and there may be various other reasons which are not in the hands of the assessee. It is not case of the department that any statements have been recorded of Sh. Kailash Chand Siani or his father and he denied or has stated that he has not done any transaction with the assessee. Only for the reason that on the date he has not appeared, the true transaction supported with the vital evidences cannot be denied in absence of any contrary evidences. If the person has not appeared u/s 131 why not the ld. AO imposed penalty on the person when power of imposition of penalty provided in the Act to the AO on the person for not appearing in response to any notice or summon. Then why the ld. AO has not imposed any penalty on Sh. Kailsah Chand Yadav, when he has denied to take the notice. 2. Further the ld. AO has issued only one single summon he has not tried to issue the same again and he could have tried to serve the summon by other modes as the department generally do in serving the notice on the assessee by all of mode of ....
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....d. AO and the ld. AO has not rebutted the contents of the affidavit even he examined to the person it mean either he was satisfied or he has no material to disprove the same. If the AO has failed to give any comments thereon, then in-absence of the same how the ld. CIT(A) can some comments on the same without asking any question from the assessee for clarifications if any in the amount. An affidavit is the important piece of evidence, should not be taken in light and if there is any wrong affidavit is given by any of the party or person the same is offence and may be punished under the law. In absence of the same the same cannot be discarded but is the evidence of the acceptance. The affidavits are evidence until and unless not disproved by the authority who alleging the same. As Section 191 of the Indian Penal Code stipulates: "Whoever being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes a statement which is false, and which he either knows or believes to be false or does not believe it to be true, is said to give a false affidavit" Section 193 of the Indian Penal Code, 1860 l....
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.... the market or actual arte is very high then to the DLC rate and if a person (purchaser) get registry on the DLC rate to save the stamp duty, the same is beyond to the seller because it was the purchaser who to pay the stamp duty not by the seller. If the purchaser do anything wrong to save the stamp duty then the punishment must be given to him not to a poor seller. In this regard, the ld. AR has relied on the decision in the case of CIT vs. INTEZAR ALI 372 ITR 0651 (All) As Sh. Chhoturam is a farmers belongs to a Dhani not much literate person. He does not the complexity of Income Tax Laws. He done his signature on the sale deed, he has not seen that what amount is mentioned in the sale deed. As he knows that he has received the full payment and given the possession, hence there is no wrong or cheating. And it is the matter of the purchaser in whose name he get the document registered. 7. What is a apparent is real: The law settled long back that what is apparent is real unless contrary is proved and it is for the person to prove, who says that what is apparent is not real. Kindly refer Daulat Ram Rawat Mal 87 ITR 349 (SC), CIT v/s Bedi & Co. P Ltd 230 ITR 580 (SC) whatsoever....
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.... vs. First Point Finance Ltd 286 ITR 477 (Raj.). Here the ld. AO not disputed that the Identity Established, Genuine Transaction, iii. Capacity has also been proved by the assessee by filling various material evidences and capacity has not been doubted and the ld. AO not speak a single word on the capacity of the donor. The persons fully explained the sources of gift given, thus having sufficient funds as also appearing from the documents and statement of the person. He is having income from other sources, agriculture etc as he was 55 years old farmer. Interestingly the ld. AO himself recorded the statement of the person thus, duly discharged the initial burden lay upon it, to which extent only it was responsible, as held earlier in CIT vs. Orissa Credit Corp. Ltd. 159 ITR 78 (SC) and recently referred in CIT vs P. Mohan Kala 291 ITR 279 (SC). Thus identity, genuineness and creditworthiness of the person stood established beyond doubt only due to the dissatisfaction of the AO it cannot be denied when they have not brought on record any material evidence. 12. Onus was to be discharged by the AO: On the other hand when the onus now shifted on the AO the same was to be discharge....
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....out material and altogether reverse then all the proceedings are void -ab-initio and liable to be quashed." 6. On the other hand, the ld DR has vehemently supported the orders of the revenue authorities and submitted that the ld. CIT(A) has passed a speaking order discussion all the details available on record. 7. We have heard the ld. Counsels of both the parties and have perused the material placed on record. We have also deliberated upon the decisions cited in the orders passed by the authorities below as well as cited before us and we have also gone through the orders passed by the revenue authorities. From perusal of the record, we observe that the assessee belongs to a very rural area a small dhani in Srimadhopur Tehsil District Sikar and not much literate and doing the business of milk sale or Diary and belongs to a farmer family. As the assessee had deposited the cash of Rs. 13.00 Lakhs in his bank account on 27.07.2013 which he claimed to be received cash gift from his father Sh. Chhotu Ram Yadav. In support of the statement, assessee filed an affidavit of his father on 31.08.2017 regarding the Gift made by him, in which Sh. Chhoturam stated that he had sold his agricul....
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....affidavit on stamp of Rs. 100/-. In Ans to Q-9 regarding the difference between Sale consideration received of Rs. 20.00 lakhs and consideration of Rs. 4,85,651/- mentioned in the sale deed. He has stated that it is correct that the sale consideration of Rs. 4,85,651/- is mentioned in the sale deed but he had received about Rs. 20.00 Lakhs against this land sold. In Ans to Q-10 regarding the sale agreement with Sh. Kailash Chand Saini and Sale deed registered in the name of Sh. Ram Sahai Saini, Sh. Chhoturam stated that Sh. Kailsah Chand Saini is the son of Sh. Ram Sahai Saini, The sale agreement of land was done by Sh. Kailsah Chand Saini but registry has been executed in the name of his father Sh. Ramsahai Saini. Thus from looking to the above facts and documents, it shows that the assessee had received cash of Rs. 13.00 lakhs from his father as gift which had been deposited in his bank account as the date of both sale agreements and sale deed matching with the date of deposits. The lower authorities had confirmed the addition due to the reason that the Sh. Kailash Chand Saini has not appeared in response to the summon, which itself not prove that the contention of the assessee a....
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....e Assessing Officer himself admittedly who had given the money to the assessee which not disproved by the authority. The Assessing officer has not found any contradiction in the affidavits, statements and agreements etc. We draw strength from the decision of the Hon'ble Allahabad High Court in the case of CIT vs. INTEZAR ALI 372 ITR 0651 (All) wherein it has held as under: "Income-Cash credit-Undisclosed income-Addition-Validity-Assessee voluntarily filed return disclosing total income and agricultural income-AO received information that assessee had deposited certain amount in his bank account, for which enquiries were made and statements of assessee and purchasers were recorded-Both purchasers denied to have purchased land for consideration from assessee-AO, relying only on report of Stamp Valuing Authority took cognizance of complaint and treated amount to be undisclosed income-CIT(A) upheld order of AO-ITAT deleted addition-Held, assessee had made complaint to registering authority that sale deed had been registered at value lower than actually received-He had deposited entire amount in bank and voluntarily filed return-There was no material whatsoever which could have sugges....
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....does not extend to prove the source of the creditor from where he made the advance to the assessee. Aravali Trading Co. v/s ITO 8 DTR 199 held that once the existence of the creditors is proved and such persons own the credits which are found in the books of the assessee, the assessee's onus stand discharged and the latter is not further required to prove the sources from which the creditors could have acquired the money deposited with him and, therefore the addition u/s 68 cannot be sustained in the absence of anything to establish that the sources of the creditors deposits flew from the assessee itself. In CIT V/S Abdul Aziz 72 DTR 216(Chhattisgarh)- Held that no independed inquiry was made by the a AO to disprove the creditworthiness of the creditors, as established by the affidavits and statement showing source of income. Hence CIT(A) was justified in deleting the additions. CIT -I Vs. M/s. ARL Infratech, Ltd., (D.B. Income Tax Appeal No. 24/2014) decided on 28.09.2016 (Raj.) wherein this court has held as under:- "4. Counsel for the appellant has mainly contended that the all companies which were floated early one week prior to the public issue and only because the....