TMI Blog2015 (5) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee. Similarly for the expenditure incurred by the assessee, the assessee has to produce books and vouchers. Without maintaining any books or record, the assessee is claiming 60 per cent. as expenditure. This Tribunal is of the considered opinion that in the absence of any material available on record, inflation of expenditure cannot be ruled out. Therefore, the Assessing Officer has rightly restricted the expenditure to 40 per cent. of the gross receipts. The Commissioner of Income-tax (Appeals) has rightly confirmed the same. - Decided against assesse. Addition with regard to opening cash balance - CIT(A) allowed part relief - Held that:- The assessee claimed ₹ 5 lakhs as opening cash balance in the cash flow statement filed before the Assessing Officer. The assessee himself claims that this includes an amount of ₹ 66,369 in the bank account. Though the assessee claims that a sum of ₹ 2.83 lakhs was from accumulated savings, no material is available on record to suggest that the assessee has no accumulated savings. The assessee being a stamp vendor has to purchase the stamps from the State Government or from the treasury maintained by the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 132(4) of the Act, this Tribunal is of the considered opinion that the Assessing Officer has rightly estimated the household expenses at ₹ 2 lakhs per annum. Therefore, this Tribunal does not find any infirmity in the order of the lower authority ; the same is confirmed.- Decided against assesse. By-product ottupal ascertained from the seized records - Held that:- The issue regarding ottupal is not arising out of the orders of the Assessing Officer and the Commissioner of Income-tax (Appeals). The assessee has not raised this ground before the Commissioner of Income-tax (Appeals) also. Since the lower authority has not considered this issue, this Tribunal is of the considered opinion that the assessee cannot raise this issue before this Tribunal for the first time - Decided against assesse. Loan received from Shri Thomas, an non-resident Indian - Held that:- In this case, the genuineness of the transaction to the extent of ₹ 7 lakhs was not proved. Therefore, this Tribunal, is of the considered opinion that the Commissioner of Income-tax (Appeals) has rightly confirmed the addition. Accordingly, this Tribunal do not find any infirmity in the order of the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee that he has received ₹ 93,167 from his son may not be justified. Accordingly, the addition deleted - Decided in favour of assesse. Cash received from his son to the extent of ₹ 2,75,000 - Held that:- During the proceedings before the Commissioner of Income-tax (Appeals), the assessee explained that ₹ 4 lakhs was transferred by cheque on November 13, 2008. An amount of ₹ 90,000 was transferred on April 8, 2008, by way of cheque. The Commissioner of Income-tax (Appeals) by taking into consideration all these transactions by way of cheques restricted the addition to the extent of ₹ 2,75,000. In the absence of any material this Tribunal is of the considered opinion that the Commissioner of Income-tax (Appeals) has rightly restricted the addition to the extent of ₹ 2,75,000.- Decided against assesse. Cash received from the assessee's daughter - Held that:- no material is available on record to suggest that the assessee's daughter was an earning member of the family. Even during the course of statement recorded under section 132(4), the assessee never referred about his daughter. Therefore, the claim of the assessee that he received from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hal town. A search was conducted under section 132 of the Act at the residential premises of the assessee and simultaneously survey was also conducted at the office premises of the assessee at Market Junction, Anchal. According to the learned Departmental representative, several incriminating materials were found during the course of search and survey operations. The assessee is not maintaining any books of account. Before the search, according to the learned Departmental representative the assessee filed return of income for the assessment year 2003-04 disclosing total income of ₹ 91,010. However, after the search, consequent to the notice issued under section 153A the assessee declared a total income of ₹ 1,32,120 for assessment year 2003-04. According to the learned Departmental representative, the assessee claimed nearly 60 per cent. of the gross receipts as expenses. In the absence of any materials, according to the learned Departmental representative, the Assessing Officer restricted the expenses at 40 per cent. of the total receipts. The learned Departmental representative further submitted that during the appellate proceedings also, the assessee has not filed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 4,33,655. The assessee has also received agricultural income apart from document writing. According to learned senior counsel, the total professional and agricultural income for the financial year ending on March 31, 2002 was ₹ 1.5 lakhs. The balance ₹ 2.83 lakhs was from accumulated savings of the assessee and his wife. Referring to the assessment order, learned senior counsel submitted that the Assessing Officer disallowed the entire opening cash balance and worked out a deficiency of ₹ 3,51,450. According to learned senior counsel, the investment and availability of funds would show that the assessee had a reasonable income from document writing, stamp vending, agricultural and rental income. Learned senior counsel further submitted that the assessee's wife also had rental income and agricultural income. Therefore, the Assessing Officer is not justified in making addition of ₹ 3,51,450. 8. On the contrary, Smt. Latha V. Kumar, the learned Departmental representative submitted that the assessee has disclosed ₹ 5 lakhs as opening cash balance in the cash flow statement. The assessee could not substantiate the opening cash balance during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome. 12. On the contrary, Smt. Latha V. Kumar, the learned Departmental representative submitted that the assessee is not disclosing any income from agricultural activity. The assessee claimed before the Assessing Officer that the agricultural land stands in the name of his wife, therefore, the agricultural income was not included in his return of income. When the assessee claims that the agricultural income belongs to his wife it cannot be included in his total income and that he cannot take any credit for the agricultural income earned by his wife. The material found during the course of search operation shows the agricultural receipt and not income. According to the learned Departmental representative, the assessee has not filed any details for the financial years 2002-03 and 2004-05. The assessee could not file any details with regard to agricultural activities carried on. Referring to the assessment order, the learned Departmental representative submitted that the agricultural activity was commenced only in the assessment year 2005-06. Therefore, the Assessing Officer has rightly rejected the claim of the assessee. 13. We have considered the rival submissions on either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atha V. Kumar, the learned Departmental representative submitted that the assessee's son is studying in engineering college. He admitted that he had paid ₹ 2 lakhs towards capitation fee for admission. The assessee is also paying tuition fees and meeting other expenses for maintaining family. On the basis of the statement recorded under section 132(4), the average expenditure of the assessee comes to ₹ 2 lakhs per annum. Therefore, the Commissioner of Income-tax (Appeals) has rightly confirmed the addition made by the Assessing Officer. 17. We have considered the rival submissions on either side and also perused the material available on record. No doubt, while examining the assessee admitted that his monthly expenditure is ₹ 10,000 only. It is also a fact that the assessee has paid capitation fee for his son for the engineering admission. The assessee is also continuously paying fees for his son and incurring other expenditure. Taking into consideration all the expenditure incurred by the assessee as admitted in the statement recorded under section 132(4) of the Act, this Tribunal is of the considered opinion that the Assessing Officer has rightly estimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for ₹ 30 lakhs along with Shri Thomas. The assessee claimed before the Assessing Officer that ₹ 50 lakhs was invested by him and the balances ₹ 50 lakhs was paid by Mr. Thomas directly from his NRE account maintained with State Bank of Travancore, Anchal. The assessee has also claimed that the cash withdrew from NRE account on March 29, 2005, was ₹ 20 lakhs. The Commissioner of Income-tax (Appeals) having found that a sum of ₹ 5 lakhs was received from NRE account, confirmed the addition to the extent of ₹ 7 lakhs. 23. We have considered the rival submissions on either side and also perused the material available on record. The Commissioner of Income-tax (Appeals) found that a sum of ₹ 5 lakhs was transferred from the NRE account of Shri Thomas to the vendor of the teak plantation. Therefore, the Commissioner of Income-tax (Appeals) accepted the genuineness of the transaction to the extent of ₹ 5 lakhs. In respect of the remaining sum of ₹ 7 lakhs, though the assessee claims that Mr. Thomas has withdrawn ₹ 20 lakhs from his NRE account maintained with State Bank of Travancore, Anchal, no material is available on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the learned Departmental representative, Shri Thomas withdrew the amounts ranging from ₹ 50,000 to ₹ 4 lakhs on regular intervals. Therefore, the claim of the assessee that the amount withdrawn from NRE account of Shri Thomas was used for giving advance for purchase of property is not correct. As per the learned Departmental representative, the total withdrawal from the NRE account as on February 21, 2006, was ₹ 9,20,000. Therefore, according to the learned Departmental representative, the Assessing Officer has rightly made the addition. 27. We have considered the rival submissions on either side and also perused the material available on record. The Commissioner of Income-tax (Appeals), after considering the remand report submitted by the Assessing Officer found that the assessee has explained the source for ₹ 18 lakhs. The Assessing Officer himself admitted in the remand report that there was withdrawal of ₹ 18 lakhs from the NRE account of Shri Thomas. Therefore, the Commissioner of Income-tax (Appeals) allowed the claim of the assessee to the extent of ₹ 18 lakhs. In the sworn statement, the assessee himself admitted that he received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee explained the source for making advances for purchase of property. He claimed that he has received a sum of ₹ 2 lakhs from his son. No question was asked by the Revenue authorities about the source of receipt from his son. Noinvestigation was made by the authorities and no material was brought on record to establish that the assessee's son could not have earned that money. In the absence of any material, this Tribunal is of the considered opinion that the assessee could have received ₹ 65,000 from his son. Because of close relationship between father and son no documentary evidence could be expected in view of the smallness of the amount. Therefore, this Tribunal is of the considered opinion that addition of ₹ 65,000 said to have been received from the assessee's son is not justified. Accordingly addition of ₹ 65,000 is deleted. 32. The next ground of appeal for the assessment year 2007-08 is with regard to addition of ₹ 93,167 found in the bank account. 33. We heard Shri T. M. Sridharan, learned senior counsel for the assessee and Smt. Latha V. Kumar, the learned Departmental representative. The Assessing Officer made addition on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings before the Commissioner of Income-tax (Appeals), the assessee explained that ₹ 4 lakhs was transferred by cheque on November 13, 2008. An amount of ₹ 90,000 was transferred on April 8, 2008, by way of cheque. The Commissioner of Income-tax (Appeals) by taking into consideration all these transactions by way of cheques restricted the addition to the extent of ₹ 2,75,000. In the absence of any material this Tribunal is of the considered opinion that the Commissioner of Income-tax (Appeals) has rightly restricted the addition to the extent of ₹ 2,75,000. Therefore, this Tribunal do not find any infirmity in the order of the lower authority. Accordingly, the same is confirmed. 40. The next ground of appeal for the assessment year 2009-10 is with regard to addition of ₹ 1,40,000 towards cash received from the assessee's daughter. 41. We heard Shri T. M. Sridharan, learned senior counsel and Smt. Latha V. Kumar, the learned Departmental representative. 42. The assessee claimed before the lower authorities that he received a sum of ₹ 1,40,000 from his daughter. However, no material is available on record to suggest that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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