TMI Blog2009 (11) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... pati ₹ 3,00,000/- iii) Smt.Shobanaben Gurjar ₹ 1,60,000/- iv) Purshottamdas Prajapati ₹ 1,00,000/-. The first three credits appeared in the books of Surya Estate and Developers which is the proprietory concern of the assessee and the last credit appeared in the books maintained in the name of the assessee himself. These credits were required to be proved in the course of the assessment proceedings. The assessee filed confirmation letters from all the parties. The AO observed that in the case of Purshottamdas Prajapati the income tax file no. was not mentioned and in the case of Shobanaben the address also was not mentioned. It was explained by the assessee that these two creditors were not assessed to tax and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcluded, the average bank balance of the creditors did not suggest any major source of income from which they could have advanced monies to the assessee. He also held that the fact that the amounts were received by account payee cheques by itself did not fulfil the requirements of section 68. In this behalf he referred to the judgment of the Calcutta High Court in CIT Vs. Precision Finance Pvt. Ltd., 208 ITR 465 and the Allahabad High Court in Nizam Wood Agency Vs. CIT., 193 ITR 318. He thus confirmed the addition. 4. In the further appeal before us, the submissions made before the departmental authorities were reiterated. It was further submitted that the mere existence of cash deposits in the bank accounts of the creditors just before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal evidence was filed before us in the form of copies of the cheques issued to them by way of repayment, certificate from the shroff stating that the cheques were issued on behalf of the assessee etc. and a prior was made under rule 29 of the Tribunal rules that they be admitted and adjudicated upon. 5. The learned SR-DR submitted that it was incumbent upon the assessee to also prove the capacity of the creditors to advance the money as held by the Punjab and Haryana High Court in 181 Taxman 175. He pointed out that none of the creditors was assessed to tax and only one of them had applied for allotment of PAN Number. He also submitted that the creditors did not appear before the AO under section 131 and the assessee could also not enfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and take a fresh decision regarding the applicability of section 68 in accordance with the law. Needless to add that the assessee shall be given due opportunity of being heard before any decision is taken. 7. As regards the credits standing in the name of Seema Prajapati (Rs.3,00,000), the copies of her bank account are placed at pages 8 to 10 of the paper book. We find that there a cash deposit of ₹ 1,75,000/- on 15-3-2004, ₹ 80,000/- on 20-3-2004 and ₹ 30,000/- on 26-3-2004 taking the balance in the account to ₹ 3,04,885/- from which a cheque for ₹ 3,00,000/- was issued to the assessee on 29-3-2004. The deposits before 15-3-2004 are insignificant and merely represent interest credited to the account and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 3,00,000/-. 8. As regards the credit of ₹ 1,00,000/- in the name of Purshottamdas Prajapati, he held bank account with Dena Bank at Bharuch. He issued a cheque for ₹ 1,00,000/- on 4-4-2003 in favour of the assessee. The bank account shows that there was a cash deposit of an equal amount on 3-4-2003 taking the balance in the account to ₹ 1,35,787/- from which the cheque for ₹ 1,00,000/- was issued to the assessee. The bank account shows that even in the years 1999, 2000 and 2001 there were cash deposits in the account such as ₹ 20,000/- on 20-5-1999, ₹ 25,000/- on 14-6-2000 and ₹ 1,10,000/- on 26- 7-2001. The deposits by cheques are also substantial, for example ₹ 35,000/- on 24-5-2000, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the sale or purchase bills produced were self-made, the AO treated the entire agricultural income of ₹ 3,75,430/- as the assessee s income from undisclosed sources. On appeal, it was noticed by the CIT(A) that most of the lands were in the joint names of assessee and Natverlal Harjivandas and that the assessee did not show the gross receipts from each survey number separately. In this view he held that the agricultural expenses may be estimated at 40% of the receipts. On this basis he held that only an amount of ₹ 1,70,000/- can be considered as net agricultural income and the balance of ₹ 2,05,430/- may be treated as income from other sources. 10. In the further appeal before us it is contended on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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