TMI Blog2016 (5) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax Act, assessable under the head “Income from other sources” and accordingly as per the provision of section 71, Business losses of the assessee are to be set off against the same. The separate addition is therefore deleted - ITA No. 143/Ag/2014 - - - Dated:- 4-5-2016 - Shri Bhavnesh Saini , Judicial Member And Ms. Annapurna Mehrotra, Accountant Member For the Appellant : Sh. Sahib P. Satsangi For the Respondent : Sh. Rajarshi Dwivedy ORDER Per Annapurna Mehrotra A. M. Present appeal has been filed by the assessee against the order of Ld. CIT(A)-1, Agra, dated 06.3.2014. The assessee has raised the following grounds:- 1. On the facts and in the circumstances of the case as well as in law the learned Commissioner of Income Tax (Appeals) grossly erred in upholding the action of learned Assessing Officer of treating ₹ 4,51,29,000 being income declared by the assessee for taxation under the hear income from other sources within the meaning of Chapter IV of the Income Tax Act. 1961 as unexplained credit under section 68 of the Income Tax Act, 1961. 2. On the facts and in the circumstances of the case as well as in law the learned Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... numerous judicial pronouncements cited and contentions raised during the assessment proceeding and interpreting the law as per his wish and whim based on conjectures and surmises. 8. On the facts and in the circumstances of the case as well as in law the learned Commissioner of Income Tax (Appeals) grossly erred in upholding the action of learned Assessing Officer of alleging that- (i) The income amounting to ₹ 4,51,29,000 declared in the return by assessee is undisclosed income of the assessee: and (ii) The assessee has concealed his income and furnished inaccurate particulars of income. 9. On the facts and in the circumstances of the case as well as in law the learned Commissioner of Income Tax (Appeals) grossly erred in upholding the action of learned Assessing Officer of- (i) Charging interest under sections 234B, and 234C of the Income Tax Act, 1961; and (ii) Initiating penalty proceedings under section 271(1)(c) of the Income Tax Act, 1961. 10. The appellant craves leave to add / modify / alter / delete any or all Grounds of Appeal. These action of learned Income Tax Authorities below, being Arbitrary, unjust, illegal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further the A.O. held that such income was not liable to be set off against the loss under the head business in terms of section 71. Accordingly the A.O. denied the set-off of the said miscellaneous income against the business loss claimed in the assessment order. 3. Aggrieved against the above said decision of the A.O., first appeal was filed before CIT(A)-1, Agra, who confirmed the action of the A.O. and that is how the present appeal has been filed by the assessee before us on the above mentioned grounds of appeal. 4. At the time of hearing , Ld. Counsel for the assessee submitted that income by way of miscellaneous income was offered by the assesee on his own in the computation u/s 56 under the head income from other sources and the income so offered was thus not chargeable as deemed income u/s 68. It was further submitted by Ld. Counsel for the assessee that in any event, even the deemed income is taxable under the head income from other sources and such income was assessable under the head income from other sources and in terms of provisions of section 71, such income was liable to be set off against the loss under the head business . Ld. counsel filed detaile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... too general, scanty and without reference to any basis, material or evidence. Explanation given by the assessee does not inspire any confidence. No evidence has been led, not even before us, to explain about the nature and source of such alleged receipts. Explanation given by the assessee is thus unsatisfactory assessee failed to discharge the initial onus contained in section 68 in this regard. We thus do not find any infirmity in the order passed by AO and CIT(A) which hold that the nature and source of the alleged cash receipts or explanation in this regard was not satisfactory. Therefore, we are of the considered view that the misc. income of ₹ 4,51,29,000/- offered by the assessee represented the sum found credited in the books of the appellant, the nature and source of which was not satisfactorily explained was rightly treated as income u/s 68 of the Income Tax Act, 1961. We do not find any infirmity in this regard and we uphold such finding of the A.O. which was confirmed by the first appellate authority. 8. Having so held, the next question which arises for our consideration is as to under which head of income, such income is assessable. In other words, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from conjoint reading of provisions of section 14 and 56 were not considered. Hon ble Gujarat High Court in this case further held that the decision of Apex Court in the case of Commissioner of Income Tax vs. D.P. Sandu Bros. Chembur (P) Ltd. 273 ITR 1 has dealt with this every issue while deciding the treatment to be given to the transaction of surrendered tenancy right, following the earlier decision of the Apex Court in the case of United Commercial Bank Ltd. vs. Commissioner Of Income Tax 32 ITR 688. Hon ble Gujarat High Court held that it would be sufficient to state that the Income Tax Act, envisages taxing every income under any of the heads specified in section 14. Thus, it is evident that on this issue at least there are divergent views. It has not been brought to our notice that there is any decision on this issue from the jurisdictional High Court i.e. Hon ble Allahabad High Court. Therefore in such a situation the view favourable to the taxpayer has to be accepted which is a settled proposition of law, as held by Hon ble Supreme Court in the case of Commissioner of Income Tax vs. Vegetable Products Ltd.88 ITR 192. This leads to the third issue involved in the present ..... 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