TMI Blog2017 (1) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... stained and the ld CIT(A) was not justified in confirming the same. Therefore, setaside the orders of lower authorities and delete the addition - Decided in favour of assessee - ITA No. 394/CTK/2014 - - - Dated:- 1-1-2017 - Shri N. S. Saini, Accountant Member Assessee by : Shri J.M.Pattnaik, AR Revenue by : Shri D.K.Pradhan, DR ORDER This is an appeal filed by the assessee against the order of CIT(A)- Berhampur, dated 2.12.2013, for the assessment year 2009-2010. 2. The appeal is time barred by 202 days. The assessee has filed condonation petition dated 17.10.2016 supported by affidavit for condoning the delay in filing the appeal. After going through the condonation petition, I find that the assessee had reasonable cause for not filing the appeal within the stipulated time. Ld D.R. did not have any objection for condoning the delay. I, therefore, condone the delay of 202 days in filing the appeal before the Tribunal and admit the appeal for hearing. 3. The first issue involved in this appeal is that the ld CIT(A) erred in confirming the action of the Assessing Officer in making addition of ₹ 4,56,000/- u/s.68 of the Act on account of alleged gift ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 5.10.2012. Initially, the Assessing Officer reported vide his letter No.438 dated 12.11.2012 that the assessee could not produce the donor and other evidences. On being pointed out, the assessee requested one more opportunity to produce the donor, The Assessing Officer, accordingly, gave one more opportunity to the assessee and the assessee produced the donor and filed details before him. The Assessing Officer in his report No.735 dated 18.3.2013, stated as under: Shri L Anand Rao had admitted of gifting ₹ 4,56,000/- to his son Shri L.Srinivas Rao i.e. the assessee and the same was given in cash. In the statement given during scrutiny proceedings, Shri Rao had stated the source of income from the sale of agricultural produces. No certificate from the competent authority mentioning actual income from agriculture could be filed during assessment proceedings. Now in course of statement given, he filed a certificate from the Tehsildar, Padmapur vide certificate No.1799 dt.4.1.2012 wherein his income from agriculture has been mentioned at ₹ 3,15,000/-. In the certificate it is not mentioned the agricultural income pertains to the F.Y. 2008-09 relevant to the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rigaon in response to which Shri Rao explained the nearest bank is located in Gumuda which is 9 kms distance form his village and the bank is Utkal Gramya Bank. Against while questioned why the income earned was not kept in the bank for safety purpose, he explained for risky purpose for bringing the cash to Gumuda the same was kept in the house. Shri Rao does not maintain any account for his agricultural income as admitted by him vide Q. No.6. Similarly on a memorandum of gift was filed as was filed in course of scrutiny proceedings. But no gift deed normally prepared in stamp paper could be filed. The brief fact is that Shri Rao earned agricultural income wherefrom he had gifted the amount to his son which was given in cash. He neither maintains any bank account nor furnished the certificate from the competent authority regarding actual agricultural income earned during A.Y. 2009-10. No gift deed was also furnished by him but only he furnished a memorandum of gift wherein at para 2 it is mentioned that the done expressed his desire to receive the gift amount in cash only and the reason behind this is best known to the assessee because the assessee runs a rice mill and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocured for trading. The entire amount was kept in cash, no gift deed was produced before the Assessing Officer and strangely in the memorandum of gift, the donee i.e. the assessee expressed his desire to receive the gift only in cash. 8. Before me, ld A.R. of the assessee submitted that the issue is squarely covered by the decision of this Bench of the Tribunal in the case of Sridhar Sahoo vs ITO, (2016) 182 TTJ (Cuttack) (UO) 41, wherein, the Tribunal held that the assessee having filed the affidavits of all the creditors who also appeared before the Assessing Officer in compliance of the summons issued u/s.131 and evidence of their ownership of agricultural lands to prove their creditworthiness, which has not been rebutted by the Assessing Officer by bringing any material on record, the impugned addition under section 68 cannot be sustained. 9. On the other hand, ld D.R. relied on the orders of lower authorities. 10. I find that in the instant case, the assessee claimed to have been received ₹ 4,56,000/- from his father Shri L. Anand Rao. His father appeared before the Assessing Officer and in his statement recorded on 19.2.2011 u/s.131 of the Act admitted the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see. After examining the evidence produced by the father of the assessee, the Assessing Officer could not bring any positive material on record to show that from agricultural land possessed by the father of the assessee Shri L. Anand Rao, he could not have earned so much of agricultural income out of which ₹ 4,56,00/- could not have been given as gift to the assessee. 12. The Assessing Officer has merely stated that the father of the assessee had meagre income without bring on record any material in support of the issue. In my considered opinion, such a vague and unspecific and unsubstantiated observation has no value in the eyes of law. Therefore, considering the entirety of the facts and circumstances of the case I find that the plausible explanation of the assessee was rejected by the Assessing Officer merely on the basis of suspicion and doubt and without bringing even an iota of material on record and even pointing out any inconsistency in the statement of Shri L. Anand Rao, father of the assessee recorded u/s.131 of the Act. My above view finds support from the decision of Hon ble Supreme Court in the case of Sreelekha Banerjee vs CIT (1963) 49 itr 112 (SC), wherein, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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