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TMI Blog2016 (5) TMI 1381X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the case. Relief may please be granted by deleting the said addition of Rs. 8,13,010/-. (3) In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in confirming the action of the ld. AO in treating the agriculture income of Rs. 1,16,400/- as income from other sources & adding the same to the total income of the assessee. The action of the ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the said addition of Rs. 1,16,400/- and treating it as agricultural income as claimed by the assessee. 2. Firstly regarding ground no. 1, briefly the facts of the case are that search and seizure operations were carried out under section 132 of the Act against Shri Shankar Lal Khandelwal. During the course of search proceedings Shri Shankar Lal Khandelwal was found involved in developing a real estate project in the name of Gobal City. Statement of Shri Shankar Lal Khandelwal were recorded u/s 132(4) on 16.11.2007 wherein he stated that Shri Mohd. Sharif khan, the appellant, was a partner in the Global City project and had invested a sum of Rs. 56,50,000/- in cash in the partnership fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stakes. A person being retired from partnership without proper documentation may claim to be a partner at any later stage. It was further submitted that the ld. CIT(A) has ignored the attendant circumstances and also ignored the preponderance of probabilities. The ld. CIT(A) has simply brushed aside the arguments by just mentioning that returning the money on the same day does not materially affect the moot issue of giving cash of Rs. 56,50,000/- by appellant. Whereas this is the most important question to be answered as in practical life one never comes across a situation where partner introduces huge cash of Rs. 56,50,000/- and withdraws the entire amount on the very same day. It is important to note that the so called ledger account submitted by Shri Shankarlal Khandelwal and appearing at page 4 of Ld. AO Order was not found during search but was submitted later on during assessment proceedings by Shankarlal Khandelwal. The ld. CIT(A) has not considered the time which would require to count Rs. 1,13,00,000/-. If one gives careful thought to this situation the answer would be that the event of giving cash and withdrawing the same has not taken place. Ld AR further placed relia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnature of witnesses and moreover that is why the date of execution is also blank. The other issue raised by the AR of the appellant regarding no any written agreement has also been answered if we peruse the answer to question No. 18 of the statement of the appellant (reproduced in earlier paras) wherein he was asked about any agreement for this Global City project. He has averred that no written agreement was executed for this project and the agreement was only oral. (2.3.1) It is pertinent to mention that not only the appellant has admitted to have given Rs. 56.50 lakhs for Global City project to Shri S.L. Khandelwal but Shri Khandelwal has also admitted in his statement recorded during the course of search that he has received Rs. 56.50 lakhs from Shri Mohd. Sharif Khan i.e. the appellant. The subsequent filing of affidavit of Shri S.L. Khandelwal by the appellant during assessment proceeding on 17.06.2010 before the AO is of no value and has been rightly rejected by the AO. because when Shri S.L. Khandelwal was confronted by the issue of summon u/s 131, he has accepted that he has received a sum of Rs. 56.50 lakhs on 20.10.2007 from Mohd. Sharif Khan and same were refunded. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per opportunity to show that the books of account do not correctly disclose the correct state of facts. The admission once made can certainly be retracted if it can be shown to have been made under some mistake or to be otherwise incorrect. The onus is on the maker of the said statement and not on the Revenue. In the present case, the appellant has not produced any material to show that the admission made by him and corroborated by the statement of Shankar lal Khandelwal were incorrect. Once there is a clear admission, voluntarily made, on the part of the appellant, that would constitute a good piece of evidence at the hands of the Revenue authorities. Further, once the appellant has admitted to the undisclosed income and surrendered the same, Revenue has refrained from enquiring any further into attendant circumstances. The theory of preponderance of probabilities as canvassed by the ld AR doesn't advance the case of the appellant in the facts of the present case. The statements recorded u/s 131 of the appellant and corroborated by the statement of Shri Shankar lal Khandelwal recorded u/s 132(4) of the Act are thus clearly relevant and admissible as evidence against the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses of the conveyance deed and submitted that the language in the conveyance deed is clear that the whole of the consideration of Rs. 7,50,000 was paid by the appellant at the time of execution of the sale deed ie, on 2.4.2007. Further, he supported the findings of the lower authorities. 3.3 We have heard the rival contentions and pursued the material available on record. In the instant case, firstly, it is noted that as against the investment of Rs. 8,13,010/- in the subject property, what is being disputed by the Revenue is source of investment to an extent of Rs. 6,40,000 only. In this regard, the appellant has submitted before the lower authorities that he has received the said amount of Rs. 6,40,000/- as gift from his brother Shri Rasool Bux Khan through normal banking channels which was deposited in his bank account on 18.10.2005 and 25.11.2005 and later on withdrawn on 08.12.2005 and paid as advance to the seller of the said property. The facts relating to receipt of gift of Rs. 6,40,000 from the appellant's brother Shri Rasool Bux Khan and subsequent withdrawal has not been disputed by the Revenue and thus stand admitted. The next question that arises is whether the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellant is not satisfactory in the opinion of the AO, the value of the investment so made shall be deemed to be income of the appellant for the said financial year. On reading of the relevant provisions, we find that there is nothing which suggest that where the source has been explained and there is some time gap between the receipt and the ultimate utilisation, that would call for disallowance under section 69 of the Act. All it provides is that the appellant has to provide an appropriate explanation regarding the nature and source of investment which has been duly provided by the appellant in the instant case. In light of the same, we delete the addition of Rs. 8,13,010/- as undisclosed investment u/s 69 of the Act. Ground no. 2 is accordingly allowed. 4. Ground No.3 is regarding treatment of agricultural income of Rs. 1,16,400/- treated as income from other sources. Undisputedly, the appellant owns agricultural land situated in Fatehpur Tehsil Sikar District and he has consistently been declaring agriculture income of past couple of years. From the perusal of ld CIT(A)'s order, it is noticed that the appellant has declared agriculture income Rs. 1,16,400/- during th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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