TaxTMI 
TaxTMI 
2021 (7) TMI 886
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....material evidences on assumption or suspicion. Hence the 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 informatio....
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.... know about the written documents but he had given the Affidavit on stamp of Rs. 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 appea....
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....iculture land Sh. Chhoturam has executed an agreement with Sh. Kailash Chand Saini S/o Sh. Ram Sahay Sain on 25.06.2013, 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 o....
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....ning amount of Rs. 15,48,349/-(511000+1523000-485651) and may issue a notice to him and addition can be made in his hands. Hence to 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 c....
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.... And in the present case in support the assessee had filed the affidavit of his father who has given the money to the assessee and when the same has been confirmed in the statements taken by the ld. 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 upo....
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.... revenue. 6. If the lower authorities was having any doubt regarding the rate of agriculture land in that area they could have gathered the market rate in that area of the agriculture lands. And in most of the case it is happened that 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....
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....e creditor and the genuineness of the transaction and once this initial onus is discharged, it shifts to the AO to rebut/ disprove the same for making a valid addition u/s 68. kindly refer CIT vs Shree Barkha Synthetics 182 CTR 175 (Raj). The Hon'ble RHC again reiterated the same view in CIT 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 cre....
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....t then all the proceedings are invalid. In the case of Vijay Harish Chandra Patel vs. ITO 400 ITR 167(Guj.) (2018) where it has been held that" When very basis for reopening no longer survives, assumption of jurisdiction u/s 147 by AO by issuing notice u/s 148 was without authority of law and could not be sustained. Hence when the reason for reopening itself wrong, incorrect and without 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 bus....
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....sh Chand Yadav in July 2013 as gift. In Ans to Q7 he explained the source of cash gift of Rs. 13.00 that he has sold his 4 bhigas of Agriculture land about of Rs. 20.00 lakhs out of which he had given Rs. 13.00 to his son as gift. In Ans to Q 8 regarding the document of Gift he has stated that he has a farmer not much literate and don't know about the written documents but regarding of gift he had given an 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....
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....decisions in the cases of Mehta Pareek & Co. 30 ITR 181 (SC), CIT v/s Lunard Dimond Ltd. 281 ITR 1 (Del)and CIT v/s Bhawani Oil Mills (P) Ltd 239 CTR 445/49 DTR 212(Raj.)- wherein the main crux of the decisions are that the contents of affidavit could not be treated as of a lesser importance than the statement given by the creditor before the AO. Further most importantly when the donor had been examined by the 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 ....
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....vs. ACIT (2008) 8 DTR 38 (RAJ.), ( 217 CTR 354) held Income -cash credit -Burden of proof - Assessee having filed confirmation from the creditor and having produced the creditor before AO where the creditor affirmed advancement of loan to assessee, no addition under s. 68 could be made in the hands of assessee on the ground that the creditor could not satisfactorily explain the source of loan- Burden on the asssessee in such cases 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 creditworthin....