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2016 (8) TMI 1509 - AT - Income TaxValidity of order passed u/s.153A - agricultural income which was treated by the AO as bogus - HELD THAT:- After relying on the judicial pronouncements in the case of Umesh Electricals [2011 (2) TMI 1584 - ITAT AGRA] , Pragati Coop Bank [2005 (6) TMI 26 - GUJARAT HIGH COURT] and case of Orient Trading Co. Ltd [1962 (8) TMI 69 - BOMBAY HIGH COURT ] CIT(A) has deleted the addition on account of agricultural income. Detailed finding recorded by CIT(A) are as per materials on record, therefore, do not warrant any interference on our part. Accordingly, we confirm the action of CIT(A) regarding agricultural income earned and declared by assessee. Long term capital gain on sale of shares - Our attention was invited to the statement and copies of the contract notes for purchase and sales of shares of Planter Poly to indicate that actual sales was made in the assessment year 2003-04. AO has made this addition in the assessment year 200102. In the interest of justice and with a limited issue of verifying actual year of sale, we restore the addition back to the file of AO for verifying the factual position and make addition in the correct year of sale. Similarly in the case of Jayant B Patel [2010 (10) TMI 1208 - ITAT MUMBAI] addition on account of sale of shares of Tripex Ltd.was made in the assessment year 2001-02 and also addition on account of 5% commission. Ld. AR drew our attention to the statement and copies of the contract notes for the purchase in the month April 2005 and sales in August, 2006. As per ld. AR the sale of shares of Tripex Ltd. was made in the assessment year 200708 and not in the assessment year 2001-02, therefore, the AO was not justified in making addition in the assessment year 200102. In the interest of justice and fairplay, we restore this issue back to the file of AO for verifying the record and taxing the same in the current assessment year. All other additions made by the AO in respect of sale of shares are being confirmed. Addition made on account of seizer of cash and jewellery, we confirm the respective additions so made by AO in the hands of the assessee in his individual capacity. Addition on the ground of telescoping - whether assessee could not establish link between the income declared and cash found during the course of search, therefore, benefit of telescoping cannot be given? - HELD THAT:- Assessee had offered profit on sale amounting to ₹ 63,73,000/in various years and also from agricultural operations amounting to ₹ 5,25,500/. The AO has not brought any material on record to suggest that profit so declared was spent by assessee and not available with him at the time of search. In these circumstances CIT(A) found that again making addition in respect of cash found during the course of search amounts to double addition, insofar as addition has already been made on account of income declared on account of GP on cash sales and agricultural income. Under these circumstances, we do not find any infirmity in the order of CIT(A) for allowing telescoping of cash seized which was less than the amount offered by the assessed on account of GP on estimated sales and agricultural income amounting to ₹ 69.73 lakhs. Addition on account of gifts - HELD THAT:- As held in ITAT Jodhpur in the case of Vishal Dembla [2013 (12) TMI 868 - ITAT JODHPUR] wherein it was held that where the assessee has already submitted his return prior to search which has attained finality and no incriminating document was found during the search, gifts already disclosed by the assessee in the return of income which has attained finality, could not be disturbed u/s.153A. No merit for the addition made by the AO with respect to gifts received by assessee in A.Y.2003-04 & 2004-05, which were not pending on the date of search and no incriminating material was found during search with regard to these gifts. Accordingly, addition of gifts made by AO when no incriminating materials was found during the course of search is not sustainable. The AO is directed to delete the same. Since we have already decided the legal issues in favour of the assessee, we are not going into merit of the addition made on account of gifts. - Assessee appeal is partly allowed.
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