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TMI Blog2012 (6) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... in all the years pertains to estimation of combined agricultural income of assessee and her husband:- A.Y. Shown by the assessee (Rs.) Assessed by the Assessing Officer. (Rs.) Added as income from other sources (Rs.) 1996-97 85,000/- 79,000/- 6,000/- 1997-98 1,33,000/- 82,000/- 51,000/- 1998-99 1,75,000/- 86,500/- 88,500/- 1999-2000 1,83,000/- 89,800/- 93,500/- 2000-01 1,90,000/- 93,300/- 1,05,450/- 2001-02 2,75,000/- 1,28,500/- 1,46,000/- (iib) Amount of Rs. 8 lacs received in AY 2000-01 by assessee from her brother Shri Yashpal Singh out of arrears of her past agricultural income. 1.1 The third common ground is the amount of advances received by the assessee for agreement to sell following agricultural land: A.Y. Amount Area in Bigha Rate per bigha Name of vendee/relation 1997-98 3,75,000 2.0 Rs. 1,85,000 Smt. Uma Yadav/sister 1998-99 4,60,000 2.5 Rs. 1,84,000 Shri Yash Pal Singh/brother 1999-2000 5,75,000 3.0 Rs. 1,91,666 Shri Ramesh Chand/brother in law 2000-01 4,68,000 2.5 Rs. 1,87,200 Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohabad, Distt. Firozabad. 3. Nawab Singh Yadav, S/o Late Shri Amrit Singh Yadav, Ex-Principal, Shri Nehru Smarak Higher Secondary School, Khatuamai (Madanpur), Teh. Shikohabad, and R/o Yadav Colony, Shikohabad, Distt. Firozabad. 4. Suresh Babu Yadav, S/o Shri Dilalsa Ram Yadav, R/o 15/9, Labour Colony, Shikohabad, Distt. Firozabad. 5. Vimlesh S/o Shri Vinod yadav, Servant, originally belongs to Vill & Post Vilaspur, The. Jasrana, Distt. Firozabad. 6. Bhwan Chandra S/o Late Shri Dhani Ram, Servant, Originally belongs to Vill. Kalona, Teh. Rani Khet, Distt. Almora. 7. Jeevan S/o Shri Gaya Prasad, Servant, Originally belongs to Madhav Ganj, Shikohabad. The summons issued u/s 131 (1A) of IT Act, 1961 to following persons, whose names are appearing in the Khasra-Khatauni of Vill. Chitawali land, were returned unserved with the postal remark "is naam kaa koi vyakti....................mein nahin hai" (1) Smt. Mohni Maheshwari, W/o Sh. Harendra Kumar, Vill. & Post Chitawali, Tehsil Shikohabad, Distt. Firozabad. (2) Pankaj S/o Shri Ram Prakash, Vill. & Post Chitawali, Distt. Firozabad and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cash of Rs. 30,50,000 and gold and silver ornaments weighing 5 Kgs and 10 Kgs respectively with late Ram Bharosey Lal could not be ascertained. (b) The Inspector was deputed to conduct local enquiry about house No.570, Nai Basti, Shikohabad, Distt. Firozabad. His report dated 13.1.2003 is enclosed. This house is stated to be got constructed by late Shri Ram Bharosey Lal in the years 1980 and 1981 on a plot of land measuring about 500 sq. yrs. It is a three storeyed building and looks like a Kothi. At present three sons of Shri Ramesh Chandra namely S/Shri Vinod Kumar, Alok Kumar and Arun Kumar are stated to be residing in this building along with their families. Since it is an old building, no comments are being offered with regard to investment made therein. (c) No evidence could be brought on record to establish that late Ram Bharosey Lal had ever taken loan for any purpose. "From the above stated facts, it is hardly believable that any person may keep huge amount of cash amounting to Rs. 30,50,000/-, gold ornaments weighing 5 Kgs. And silver ornaments weighing 10 Kgs. At home, particularly when (1) there has been vide expansion of bank branches even in small to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a of Firozabad (UP). There is no bank in the near by area. The closed bank is 10 Km away. Moreover, as this area is a criminal inflicted area, all assets are kept under ones own possession. Banking, etc is not common primarily on the fact that the employees of the banks being local disclose the details of bank transactions to the public at large. This leads to kidnapping and consequently giving of ransoms. Wealth in the house was well guarded as necessary arms were available. As such Mr. Ram Bharosley Lal Yadav did not maintain any bank account. All money that was transferred as per his will was in cash. Madam, here we would like to point out that a detailed examination has been done by the department in connection with the authenticity of the will and the land holdings of your assessee. The office of the ADI Agra conducted spot inquiries, verified the records with the land records department, examined under oath the witnesses to the will who were persons of great repute of the area, recorded the statements of the co-recipient of the will and other family members and the servants of late Shri Ram Bharosey Lal Yadav. The detailed report in this connection is with your goodself." 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low statements which are on the record. To verify the will and its contents and agricultural holdings, detailed inquiries were made by ADIT, Agra whose report is also placed on the paper book. AO has merely relied on some doubts raised by ADIT, Agra on the genuineness of the Will, ignoring the uncontroverted statements on oath of witnesses, beneficiaries and other persons. The Will has been discarded on the basis of surmises, conjectures and presumptive preponderances of probabilities. It is signed by witnesses who are duly identified and both witnesses i.e. Nawab Singh Yadav (Ex Principal) and Suresh Yadav (Advocate) are examined on oath by the Assessing Officer. In their statements on oath they have confirmed the execution of will, relevant circumstances and aspects of implementation. The statements and the report submitted by ADIT, Agra state the fact that these two witnesses verified the Will in question which was signed in their presence as the last and final will of Shri Ram Bharosey Lal Yadav. 4.1. The Will contained various beneficiaries including the assessee's husband, her brothers and house-hold servants. The other recipients/beneficiaries of the will i.e., Shri Ramesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that any of the daughters of late Sh. Ram Bharosey Lal Yadav has ever been assessed to wealth tax. (v) Late Sh. Ram Bharosey Lal Yadav had constructed a large building in Shikohabad in 1982, which would have exhausted his funds in construction of building. More so no loan was taken for construction of building. 4.3. Ld counsel for the assessee assails these findings and contends that: i. There is no law which prescribed registration of a will in India, it only requires that the testator should be in a state to depose a will, which should be in writing and attested by two witnesses. All these conditions are fulfilled, both the witnesses have been examined along with co beneficiaries, they all have confirmed the will. There is no obligation on witnesses advise that the Will registered more so in a village. Therefore no adverse inference can be drawn from this observation or finding by AO. ii. If there was any issue about the signature of late Shri Rambharosey, AO could have referred to a hand writing expert. He can not assume the role of a handwriting expert and hold the signature to be forged merely on the assumption that he was marginally qualified. Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney under a will. It is, therefore, to be necessarily held that the entire statement of the appellant is untrue, no matter what kind of over-manipulated evidence is adduced to prove the correctn4ess of the will. The simple question is why an identical will with identical bequeathment was not left in favour the two sons and the other daughters? This question veers round the preponderance of human probability, a test on which the claim of the appellant roundly fails. Not to talk of the hard evidence of the appellant not being a wealth-tax assessee and that alone goes to prove that he could not have left the claimed amount under a will. The addition made by the ld. AO is, therefore, upheld." 4.5. It is vehemently argued that CIT(A) has relied on probabilities and assumptions by terming the will as "an over manipulated evidence". The evidence relied by assessee is to be controverted on the basis of cogent counter evidence or picking contradictions in the evidence furnished. The same cannot be discredited without pointing any contradiction and on mere presumptions. Such observations and references to probabilities based on presumption cannot discard the credible evidence filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... met by her brother and all sale proceeds are collected by him. From time to time amounts were given to her as net receipts from agricultural operations on her land. In Distt. Etah for the year in question, no mandi samithi was applicable. Thus from the above it is clear that both Mrs. Yadav & Mr. Yadav had ancestral agricultural land. Both these lands are canal irrigated own tractors are used for cultivation. Your goodself can also verify this from the will of Mr. Rajiv Yadav's father wherein he left behind two tractors for his two sons. On both these lands, three crops are reaped in a year. Potato, Garlic, wheat, peas, mustard & chana from the major crop produced on these lands. Sir, keeping in view the land holding the amount of agricultural income fully justifies itself. (3) During the year in consideration agricultural income of Rs. 1,75,000/- was received by Mr. Rajiv Yadav. Copy of confirmation for the same are being appended herewith as annexure 3 showing net receipts from agricultural operations." 5.1. More importantly the issue about investigation into the agricultural income declared by the assessee in cash flow statement was also referred by AO to ADIT(agra). The auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thod of linking the agricultural income with cost inflation index. 6. Apropos the amount of Rs. 8 lacs shown in the cash flow statement as accumulated savings of past agricultural operations ld. Counsel contends that Shri Yashpal Singh brother of the assessee was in charge of the management of agricultural fields, operation, sale of produce and realization thereof. As per his statement the agricultural receipts were handed over to his sister from time to time. This methodology. It is common in agricultural families to safeguard the interest of agricultural operations of married daughters of the family. Yashpal Singh's statement on oath confirms his management of agricultural operations, thus identity and source of income i.e. agricultural lands and Shri Yashpal Singh are identified and transactions confirmed. AO has held it to be unbelievable on the reasons that creditworthiness of Shri Yashpal Singh is not proved and transaction is not through banking channels besides Shri Yashpal Singh has been handing over the agricultural income regularly then why there were unpaid past savings. 6.1. CIT(A) held it to be unbelievable by following observations: "As regards, the claim of recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vances received from agreement to sell pieces of agricultural lands. Ld counsel for the assessee, in respect of each advance contends that: (i) AY 97-98 - Smt. Uma Yadav- sister: She is married in a rich family and like assessee she also inherited regularly cultivated agricultural land from paternal side. Necessary confirmation about the advance along with her address and detailed reply was filed during the course of assessment proceedings. It is pertinent to mention that the details about her relation with assessee, her family status etc. finds mention in the ADIs report also. Ld AO without refuting her identity, agricultural holding and income has summarily held that her creditworthiness is not proved. Since ADIs report was being called nothing prevented AO f investigating this aspect also. Assessee discharged her primary onus by establishing identity, and creditworthiness of the purchaser/sister; the addition can not be made only on assumptions. (ii) AY 98-99 - Shri Yashpal Singh Yadav - Brother- It is pleaded that Yashpal Singh is assessees brother, since beginning he is in charge of carrying agricultural operations on the lands of family members including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 002. These confirmations were issued at the specific request of assessee to furnish the same to AO, as such the date of 1-11-2002 was put on them. This does not mean that the transactions were executed on this day, it merely means the date of issue of the confirmation letters. (vi) From the statements and record it will emerge that both the families are at cordial terms, this is the essence of relationship in rural India where the word of honor and sensitivity of relationship is paramount. Since the advances were received from close family members there was no urgency of executing a written or registered agreement. The paper formalities will be completed as and when the transactions are fully materialized. Non execution of the written agreement between two close relatives in these facts and circumstances cannot be used to deny written confirmations as after thought. More so when AO could have included this aspect in investigation conducted through ADI Agra. (vii) Ld. AO has observed in his order, "In regard to immovable property there is increasing trend of price but in the case of assessee the rate of land per bigha has varied to the downward trend which is an abnor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amesh Chandra and Zia Khan have confirmed the advances given to assessee for purchase of agricultural land along with their land holdings, their identity has not been disputed. v. Non furnishing of income tax and wealth tax returns by late Shri Rambharosey and his daughters cannot be used against assessee as she had no control on their returns. 8. Ld Dr on the other hand vehemently contends that: i. The assessee in order to substantiate her fund flow details has created the gamut of evidence as an after thought. ii. The alleged WILL executed by late Shri Ram Bharosey Yadav is unbelievable. After construction of a 3 storied Kothi in the year 1981 in the village, it does not appeal to reasons that an amount of liquid cash of Rs. 30.5 Lakcs will be kept at home along with 5 Kgs. of gold ornaments and 10 Kgs of silver utensils. iii. These assets were not kept ever in any bank. Thus the entire evidence is based on personal handling of the assets Thus there was no independent evidence to support the claim. The excuse of village being criminal area is not substantiated and it cannot be justified as a reason for absence of independent evidence. iv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der contends that: (i) The WILL is an independent evidence which is confirmed by as many as seven persons viz. Yashpalsingh, Rameshchandra, Nawabsingh Yadav- ex principal, Suresh babu Yadav- Advocate, Vimlesh Yadav, Bhawan Chandra. Jeevan. None of the statement has been controverted by ADI Agra or AO. (ii) The will is duly executed, properly implemented. Assessee is lady and cannot demand evidence from the family beyond this limit. Therefore, there is no basis in holding the WILL to be fake or bogus. Assessee has inherited the amount by due process of law, it can not be wished away on raising objections on assumptions. (iii) Apropos agricultural income it is pleaded that AO has not disputed the land holdings of assessee and her husband, agricultural operations are regularly held by brother Yashpalsingh whose statement on oath is on record and not controverted by ADIT. (iv) The estimate has been arrived at only by applying cost inflation index which is merely a mechanical method used only for the purposes of govt. parameters on dearness based on certain commodities and circumstances. This mechanical formula can not be applied to assesses agricultural operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n amounts to a surmise. Besides, late Shri Ram Bharosey Lal Yadav is not disputed to be a freedom fighter and an affluent landlord, he is held to be marginally qualified. In our view, flow of writing as pointed out by AO cannot be held to be determinative to discard the Will, in the absence of any opinion of the handwriting expert. 9.4 ADI has examined the witnesses Shri Nawab Singh Yadav, ex-Principal and Shri Suresh Babu Yadav Adv., they have deposed the Will to be genuine, bearing signatures of deceased and about the distribution of assets. This fact has further been confirmed by the sons of the deceased and the servants who are also beneficiaries of the Will. In our view, this written record and statements cannot be ignored without pointing out any contradictions or inconsistencies therein. 9.5 The assessee cannot be held responsible for the non-filing of income-tax and wealth-tax returns by the deceased and his daughters after the distribution of the assets of the deceased, consequently, no adverse inference can be drawn on this count. The fact that late Shri Ram Bharosey Lal Yadav constructed a three storeyed village house in 1981 cannot be held as assumption that he must h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icultural income as claimed by assessee. This ground is allowed. 9.10 Apropos third issue i.e. the advances received qua the alleged agreement to sell the land, in our considered view, when the matter about Will and agricultural income was referred to ADIT (Inv.), it was desirable to refer advance from sale of land also by some investigation. As the record stands, there are confirmations of Smt. Rama Yadav and Zia Khan along with confirmations and statement of , Shri Yashpal Singh (brother), Shri Rameesh Chand Yadav (brother-in-law). Adverse inference drawn by the AO rests only on the basis that all the transactions are in cash and these persons do not have sufficient creditworthiness. It has been vehemently argued that neither the confirmations are controverted nor the persons were called or asked questions during investigations in this respect. Excepting doubting the confirmations, additions have been made without further inquiries. 9.11 Similarly, the issue about amount of Rs. 8 lacs, cash given by Shri Yashpal Singh to her sister out of arrears of past agricultural income, is also to be examined by taking appropriate statement of Shri Yashpal Singh. The confirmation available ..... X X X X Extracts X X X X X X X X Extracts X X X X
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