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Bhausaheb Sheshrao Kachakure Versus ITO, Ward-2 (3) , Aurangabad

2016 (5) TMI 904 - ITAT PUNE

Addition u/s.69A - income shown against sale of Mosambi - claim of agricultural income - Held that:- Assessee during the course of appeal proceedings, has filed another letter from Talati which shows Mosambi trees appearing in the 7/12 extracts for F.Y. 2006-07 and 2011-12. However, the authenticity of the letter was not verified by the CIT(A) on the ground that there was no request for admission of additional evidence. The extent of agricultural land held by the assessee is not doubted by the A .....

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to the assessee to substantiate his case with necessary evidence to his satisfaction. Needless to say the AO shall give due opportunity of being heard to the assessee and decide the issue as per law. We hold and direct accordingly. - Decided in favour of assessee for statistical purposes. - ITA No.45/PN/2016 - Dated:- 15-4-2016 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM For The Appellant : Shri Ramesh N. Thete For The Respondent : Shri Hemant Kumar C. Leuva ORDER PER R.K. PANDA, AM : This .....

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ccount maintained with Bank of Maharashtra. A notice u/s.133(6) was issued to the assessee on 30- 01-2012. In response to the same it was stated that the cash deposited was attributable to sale of agricultural land for total consideration of ₹ 25 lakhs out of which the share of the assessee was ₹ 15 lakhs. Verification of the bank statement showed that the assessee had deposited 15 lakhs on 19-02-2008. Since the land sold was a capital asset within the meaning of section 2(14) and th .....

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efore him the AO allowed the claim of deduction of ₹ 21,63,300/- u/s.54F towards purchase of residential house. 3.2 As regards the agricultural income is concerned, the assessee submitted receipt of sale of Santra, Mosambi etc. to Md. Saleem and Company by issue of net bill of ₹ 6,55,685/-. The AO verified 7/12 extracts for the F.Y. 2008-09 and noted that against the name of the assessee Bhausaheb Sheshrao Kachakure the crops Cotton and Gobi are appearing. For A.Y. 2007-08 also crops .....

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bill to the assessee. The AO observed from a cancelled bill Bearing No.2702 from the bill book produced before him which bears the description of rate, Hamali, Commission, Wastage, Safayi, Freight, advance etc. which was not there in the one produced by the assessee. It was further stated that it was the letter head of the firm which was misused by somebody for issue of fake bill in the name of their firm. In view of the above, the AO confronted the assessee and asked him to furnish his explana .....

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crop Mosambi is not appearing in the name of the assessee nor any other name appearing in Gut No.117 for F.Y. 2008-09. In view of the statement of Talati as well as the authorized persons of Md. Saleem and Company the AO again issued a show cause notice to the assessee asking him to show cause as to why the income shown against sale of Mosambi at ₹ 6,55,685/- should not be treated as his unexplained money u/s.69A of the Act. 5. It was submitted that Mosambi must have been remained to be i .....

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/s.69A of the I.T. Act. While doing so, he relied on the decisions of Hon ble Supreme Court in the case of CIT Vs. Ramakrishna Deo reported in 35 ITR 312 and the decision in the case of Udhavdas Vs. CIT reported in 66 ITR 462. 6. Before CIT(A) the assessee produced a letter issued by Talati to the Tahsildar, Aurangabad on 09-06-2014 in which it was stated that the land record from F.Yrs. 2004-05 to 2011-12 show the name of Mosambi for F.Yrs. 2006-07 to 2011-12. It was further argued that the AO .....

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. While doing so, he noted that the Talati is an independent Government official and is not an interested party and therefore he should not have made unsubstantiated statement. The fruit seller to whom the assessee has sold the products has also denied to have issued any such bills. Despite having ample opportunity during the assessment proceedings, the assessee has never demanded for cross examination. It is not the case of the assessee that the evidences collected by the AO were not shown to h .....

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e it requires to be removed. Therefore, it is impossible for a Talati or an official or any person not to notice Mosambi plantation in a given tract of land. He accordingly held that the letter now produced before him is of no consequence and unreliable because it goes against the natural fact of discovery of something which is so apparent that no one can miss. Therefore, the original 7/12 extracts produced at the time of assessment proceeding have more evidentiary value than the letter now bein .....

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ied on by the assessee before him were distinguishable and not applicable to the facts of the case. 10. As regards the validity of addition u/s.69A is concerned, he held that the said amounts were found to be credited in the bank account of the assessee. Therefore, he was the owner of the amounts by virtue of possession and being in control of the money. Since the assessee is a non-filer and is the owner of the money deposited in his bank account and no books of account were maintained, therefor .....

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sold the same. Since the AO had not allowed cross examination of the persons whose statements were recorded and used against the assessee, therefore, there is violation of principles of natural justice. He submitted that in the interest of justice one more opportunity should be given to the assessee to substantiate his case to the satisfaction of the AO. He also relied on various decision filed in the paper book. 13. The Ld. Departmental Representation on the other hand heavily relied on the or .....

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ted before us. We find the AO had issued notice u/s.133(6) on the ground that assessee has deposited ₹ 9,12,537/- in his savings account maintained with Bank of Maharashtra. On the basis of various details furnished by the assessee the AO accepted the claim of deduction u/s.54F for ₹ 21,63,300/-. However, the claim of the assessee regarding agricultural income of ₹ 6,55,685/- was denied by the AO on the ground that the assessee could not substantiate the agricultural income. We .....

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