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2017 (2) TMI 729 - ITAT DELHI

2017 (2) TMI 729 - ITAT DELHI - TMI - Unexplained cash deposit in bank account - Held that:- The assessee had entered into in an agreement with one Sh. Rajesh S/o Sh. Rajender Singh for sale of his ancestral agricultural land for ₹ 60 lacs and advance of ₹ 30 lacs was received on different dates as mentioned in agreement to sell and copy of the same was filed before the AO in remand proceedings. The AO in his remand report Dt. 23.12.2015 has admitted this fact and affidavit of the pu .....

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false, makes the addition contentious. Hence, the Ld. CIT(A) has rightly deleted the addition which does not need any interference on our part, hence, uphold the same. - Addition of ₹ 10,09,837 is concerned AO has admitted to the fact of the affidavit, dated 8.9.2015, affecting the repayment. The AO has however merely stated that no evidence was produced regarding the repayment, but no efforts were made by him. Filing of the affidavit and the fact the AO has made no effort to prove tha .....

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entry in the bank were from the sale proceeds of agriculture land and transfer entries. The entries relate to cheque deposits made on account of receipt of sale of land. The AO has made no effort to disprove the assessee’s claim. There is no concrete evidence to disprove the assessee, hence, Ld. CIT(A) has rightly deleted the addition in dispute. - Decided against assessee - ITA No. 2762/Del/2016 - Dated:- 13-2-2017 - SHRI H.S. SIDHU, JUDICIAL MEMBER For The Department : Sh. Rakesh Kumar, Sr. D .....

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pportunity by the AO but the assessee failed to submit the evidences necessary for substantiation of his claim. 2. CIT(A) erred in deleting the additions of ₹ 39,84,837/- (Rs. 29,75,000 + ₹ 10,09,837/-) made on account of unexplained deposits with bank as substantiating details with supporting documentaries evidences were not produced at the time of assessment as well as during remand proceedings. The original agreement supporting claim by the assessee of sale of land and advance rec .....

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#8377; 29,75,000/- on various dates during the period 1.4.2005 to 31.3.2006 with Punjab National Bank. AO asked the assessee to explain the source of the deposits, but no source of the amount was given by him. Accordingly, the notice u/s. 148 was issued to the assessee on 28.3.2013 after duly recording the reasons for escapement. The assessee was asked to file his return of income for the AY 2006-07 vide the notice u/s. 148 of the Act, but no return for the aforesaid year was filed by him. Vario .....

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n and assessee has not filed his return of income and nor shown these amounts at his income nor any explanation has been furnished, hence, the amount of ₹ 10,18,468/- was also added to the income of the assessee and assessment at ₹ 39,93,470/- was assessed under section 144/147 of the I.T. Act, 1961 vide Order dated 30.01.2014. 3. Aggrieved with the aforesaid assessment order, assessee preferred an appeal before the Ld. CIT(A), who vide his impugned Order dated 02.3.2016 has deleted .....

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asoned order which needs to be upheld and accordingly, the appeal of the Revenue may be dismissed. 6.1 With regard to ground no. 1 relating to admission of additional evidences is concerned has submitted that in the Remand Report dated 23.12.2015 no objection was raised by the AO to opportunity to furnish additional evidence and, therefore, plea is an afterthought and, hence, he submitted that the ground no. 1 may be rejected. He further stated that even otherwise, if an order framed u/s. 144 of .....

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6.2 With regard to ground no. 2 to 4 relating to addition of ₹ 29,75,000/- on account of alleged unexplained cash deposit in bank account with Haryana Gramin Bank, Nuna Majra and addition of ₹ 10,09,837/- on account of alleged unexplained credits/ entries in bank account with Haryana Gramin Bank, Nuna Majra is concerned, the Ld. Counsel stated that Cash deposits of ₹ 29,85,000/- in bank account no. 5401 with Haryana Kshetriya Gramin Bank, Nuna Majra were deposited and explanat .....

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o. 10 to 14 of the PB). He further stated that the AO in the remand report did not dispute the evidences other than to allege that no evidence was produced regarding repayment and in the process he overlooked that in the affidavit it was stated that repayment were made in March, 2006 and June, 2006 of ₹ 18.00 lacs and ₹ 12 lacs repaid. Hence, he requested to delete the addition of ₹ 29,75,000/- in dispute. 6.3 With regard to addition of ₹ 10,09,837 is concerned, Ld. Couns .....

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Ld. CIT(A) has rightly held that the entries relate to cheque deposits made on account of receipt of sale of land. The AO has made no effort to disprove the assessee claim. In view of the fact that there is no concrete evidence to disprove the assessee, I delete the addition. In view of the above, Ld. Counsel of the assessee stated that the addition of ₹ 10,09,837/- may also be deleted. 7. I have heard both the parties and perused the records, especially the impugned order passed by the L .....

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same was filed before the AO in remand proceedings. The AO in his remand report Dt. 23.12.2015 has admitted this fact and affidavit of the purchaser was also obtained by the AO. An affidavit is a valid piece of evidence as has been held by the Hon'ble Supreme Court of India in the case of Parikh and Co vs CIT reported at 30 ITR 181. The above judgment of Hon'ble Supreme Court of India was followed by the Hon'ble Allahabad High Court in the case of Sohan Lal Gupta vs CIT reported at .....

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ing of the affidavit and the fact the AO has made no effort to prove that it is false, makes the addition contentious. I, therefore, delete the same. This ground of appeal is allowed. The 5th ground of appeal is against addition of ₹ 10,09,837/- received through cheques. During the year under appeal the appellant had sold part of his ancestral agricultural land along with his other family members for ₹ 32,55,000/- and the appellant had received two cheques of ₹ 945000/- (708750 .....

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at there is no concrete evidence to disprove the assessee, I delete the said addition. This ground of appeal is allowed. 8. After hearing the rival submissions and perusing the records available on record, with regard to ground no. 1 admission of additional evidences is concerned, I find that in the Remand Report dated 23.12.2015 no objection was raised by the AO to opportunity to furnish additional evidence and, therefore, plea is an afterthought. Even otherwise, if order framed u/s. 144 of the .....

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"On a plain reading of rule 46A, it is clear that this rule is intended to put fetters on the right of the appellant to produce before the Appellate Assistant Commissioner any evidence. whether oral or documentary, other than the evidence produced by him during the course of the proceedings before the Income-tax Officer, except in the circumstances set out therein. It does not deal with the powers of the Appellate Assistant Commissioner to make further enquiry or to direct the Income-tax Of .....

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mmissioner is empowered to make such further inquiry as he thinks fit or to direct the Income-tax Officer to make further inquiry and to report the result of the same to him. Sub-section (5) of section 250 of the Act empowers the Appellate Assistant Commissioner to allow the appellant, at the hearing of the appeal, to go into any ground of appeal not specified in the grounds of appeal, on his being satisfied that the omission on the ground from the form of appeal was not willful. It is clear fro .....

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same if the facts and circumstances justify. If the Appellate Assistant Commissioner fails to exercise his discretion judicially, and arbitrarily refuses to make enquiry in a case where the facts and circumstances so demand, his action would be open for correction by a higher authority." - 26 ITD 236 (Del) Electra Jaipur (P) Ltd. vs. IAC wherein the Tribunal has held that it is incorrect to shut out an assessee in the process of administration of justice from loading evidence to prove its .....

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The AO in his remand report Dt. 23.12.2015 has admitted this fact and affidavit of the purchaser was also obtained by the AO. An affidavit is a valid piece of evidence as has been held by the Hon'ble Supreme Court of India in the case of Parikh and Co vs CIT reported at 30 ITR 181. The above judgment of Hon'ble Supreme Court of India was followed by the Hon'ble Allahabad High Court in the case of Sohan Lal Gupta vs CIT reported at 33 ITR 786. The AO has admitted to the fact of the a .....

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