TMI Blog2018 (6) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... by bringing on any direct evidence, we are not in a position to sustain the addition - Decided in favour of assessee Disallowance of entire expenditure claimed against professional receipts as a result of changing head of income from business or profession to income from other sources - Held that:- when there is a valid agreement to render the services as a retainer and the assessee being an advocate, maintains office for the purpose of his profession, the Assessing Officer is not justified in disallowing the expenditure on the reason of non rendering of services to a particular client. In our opinion when the assessee made himself ready to be available to the client and the client has not availed his services as a retainer, we do not find fault with the assessee so as to disallow the expenditure incurred by the assessee. In our opinion, the Assessing Officer did not allow the expenditure only on the presumption that the assessee has not rendered the services though the assessee has kept himself ready to render the services. In AY 2009-10 and 2010-11, there is no such disallowance. - Decided in favour of assessee Unexplained deposit in the assessee’s Bank account - Held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise, the Assessing Officer has no other evidence than the DVO report. In our opinion, the DVO report cannot be the only basis for making the addition. More so, the DVO has applied Central PWD rates. When the property is situated in a mofussil area, the State PWD rates have to be applied. - Decided in favour of assessee Addition as unexplained credits - Held that:- Lower authorities came to the conclusion that the assessee‘s explanation regarding the credit could not be accepted and we cannot disturb such finding as the assessee has not brought any fresh material on record before us. More so, mere furnishing of name and address of the lender would not amount to sufficient discharge of the burden placed upon the assessee u/s. 68 of the Act. This is because u/s. 68 of the Act, the assessee has to prove all the ingredients as mentioned earlier. When the identity of the creditor and the creditworthiness of the credits were not established, addition u/s. 68 of the Act is justified. Addition of agricultural income as undisclosed income - no separate books of account are kept for agricultural income - Held that:- a small farmer like the present assessee cannot be expected to maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motor car - @ 50% OR 15% - use for purposes of bunions purposes - Held that:- The period of acquisition of commercial vehicle on or after 1st June, 2009 or on or before October, 2009 was amended as per the amended provisions with effect from 1.4.2009. Being so, commercial vehicle purchased upto October, 2009 is entitled for higher depreciation. Hence, we direct the Assessing Officer to grant depreciation at the rate of 50% on the commercial vehicle acquired by the assessee. Thus, this ground of appeal of the assessee is allowed. - I.T.A. Nos. 383 to 386/Coch/2015, I.T.A. No. 374/Coch/2015, I.T.A. Nos. 322 to 324/Coch/2015, I.T.A. Nos. 319 to 321/Coch/2015, I.T.A. Nos. 387 to 390/Coch/2015 - - - Dated:- 31-5-2018 - S/Shri Chandra Poojari, AM And George George K., JM Assessee by : Shri Sudhir Abraham, CA Revenue by : Shri A. Dhanaraj, Sr. DR ORDER Per Bench These appeals are relating to different assesses arising out of different orders of the CIT(A)-IV Kochi/CIT for different assessment years wherein certain issues are common in nature, hence they were heard together and are being disposed of by this common order for the sake of convenience. The Revenue has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee had remitted the money and had also not given authorization or letter to the Bank requesting the Bank to permit the assessee to remit the money into his firm s account. It was submitted that the registration authorities registered the sale deed without allegation of understatement of sale value and unless there is proof that there was understatement of sale value or payment of on-money, the Assessing Officer cannot presume that there was undervaluation of the properties purchased by the assessee. The Ld. AR further submitted that even the seller has not shown additional consideration received from the sale of the said land in his income tax return and this fact was admitted by Shri K.R. Ramesh Kumar in the cross examination. Further it was submitted that in similar situations, the land transactions within a year in the locality showed the going rate at ₹ 985 per cent.. For this purpose, he referred to Sale Deed No. 367/2006 executed on 17/01/2006 for sale of 81 cents and 250 sq. links of wet land by Smt. D. Sarasakumari and Shri A. Raveendran Nair. While the assessee has shown ₹ 2300 per cent, the sale deed showed the payment of ₹ 3,10,000/- for 134.7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 6,33,600/- in SBT, Varapuzha to clear off his voting right on the land and paid ₹ 80,000/- by cash to him. Hence, the Assessing Officer presumed that there was an on-money payment of ₹ 4,03,600/- over and above the sale value mentioned in the sale deed. Apart from the allegation from the Assessing Officer that the assessee had paid the amount into the vendor s Bank account to clear off his liabilities with the Bank, there was no other evidence brought on record by the Assessing Officer to substantiate the payment of on- money for this transaction. The vendor, Shri K.R. Ramesh Kumar stated in his statement recorded u/s. 131 that he himself had not disclosed the alleged sale consideration in his return of income. Being so, we cannot give any credit to the sworn statement recorded from Shri K.R. Ramesh Kumar. Further, there is no allegation of any extra payment by the registration authorities in respect of these two properties. Therefore in the absence of any corroborative evidence to the contrary, the value mentioned in the sale deed is to be treated as correct sale consideration. Further, as held by the Madras High Court in the case of CIT vs. P.V. Kalyanasund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, we delete the addition of ₹ 4,03,600/-. Thus, this ground of appeal of the assessee is allowed. 3. Ground No. 2 is with regard to disallowance of entire expenditure claimed against professional receipts as a result of changing head of income from business or profession to income from other sources. 3.1 The facts of the case are that during the year, the assessee had received an amount of ₹ 1,00,000/- per month between the period from July 2006 to June, 2009 from M/s. Rosy Blue (India) Pvt. Ltd. and ₹ 50,000/- from Aerena Gold Souk International. The Assessing Officer found that the nature of receipts from M/s. Rosy Blue (India) Pvt. Ltd., which was claimed as professional receipts in the books of the assessee, were actually not in the nature of professional receipts because the entire amount was received without providing any professional services. Accordingly, the receipt was treated as income from other sources and thus, as per section 57 the expenses claimed against income from profession and debited to P L account was disallowed. The Assessing Officer disallowed the expenditure on the basis of the sworn statement recorded u/s. 131 of the Act of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the services rendered for them, but no such details of bills raised or the vouchers for related expenses were maintained or produced before the Assessing Officer or during the appellate proceedings. Moreover, according to the Ld. DR, no professional receipts were shown over and above the amount of fees received on account of retainer-hip. Hence, it was submitted that since the assessee could not produce the details related to the services rendered to the clients, the Assessing Officer had rightly treated the professional receipts as income from other sources which was confirmed by the CIT(A). 3.5 We have heard the rival contentions and perused the record. Admittedly, in this case, the assessee entered into an agreement on 01/07/2006 as a retainer to advise M/s. Rosy Blue (India) Pvt. Ltd. on legal matters. As per this agreement, the assessee was paid by M/s. Rosy Blue (India) Pvt. Ltd. at the rate of ₹ 1 lakh each per month. The Assessing Officer has not doubted this agreement. The only contention of the Assessing Officer is that the assessee has not rendered services to M/s. Rosy Blue (India) Pvt. Ltd. The assessee has also not disputed this fact. The payment has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure on acquisition of patent right or copy right. Section 35AB deals with expenditure on know-how. Section 35ABB deals with expenditure for obtaining licence to operate telecommunication services. Section 35AC deals with expenditure on eligible project. Section 35AD deals with deduction in respect of expenditure on specified business. Section 35B deals with export market development allowance. Section 35C deals with agricultural development allowance. Section 35CC deals with rural development allowance. Section 35CCA deals with expenditure by way of payment to association and institutions for carrying out rural development programmes. Section 35CCB deals with expenditure by way of payment to associations and institutions for carrying out programmes of conservation of natural resources. Section 35D deals with amortization of certain preliminary expenses and 35DD deals with amortization of expenditure in case of amalgamation or de-merger. Section 35DDA deals with amortization of expenditure incurred under voluntary retirement scheme. Section 35E deals with deduction for expenditure on prospecting etc. for certain minerals. Section 36 deals with other deduction in respect of premium p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) observed that the assessee has, other than showing that the amount of ₹ 1 lakh each, credited in the assessee S.B. account with ICICI Bank Ltd., Edapally Branch on 19/10/2006, has not furnished any other evidence to establish either the identity of the person or the creditworthiness or the particulars like PAN Number or IT return filed. In view of this, CIT(A) upheld the addition made by the Assessing Officer on this count. 4.4 We have heard the rival contentions and perused the record. Before us also, the assessee was not able to prove the identity as well as the creditworthiness of the creditors. Hence, we do not find any infirmity in the finding of the CIT(A) and confirm it. This ground of appeal of the assessee is rejected. 5. The next ground, Ground No. 4 is with regard to cash gifts received from relatives of ₹ 7,50,000/-. 5.1 The facts of the case are that the Assessing Officer found that in the cash flow statement, apart from ₹ 2,50,000/- which represents the opening balance, another amount of ₹ 5,00,000/- was received as cash gift from the relatives. Apart from the withdrawals from the bank account ₹ 3,23,500/- everything was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actions is not established. Hence, we have no hesitation in confirming the addition to the extent of ₹ 5 lakhs which is fresh entry in the assessment year under consideration. Accordingly, this ground of appeal of the assessee is partly allowed. Thus, the appeal of the assessee in ITA No. 383/Coch/2015 is partly allowed. ITA No. 384/Coch/2015 6. The first ground, Ground No. 1 is with regard to addition of investment in purchase of property at Varapuzha at ₹ 4,82,500/-. 6.1 The facts of the case are that the assessee had purchased land admeasuring 36.1 cents in Varapuzha from Shri Linjo Joseph on 08/04/2008 at a documented price of ₹ 7,27,000/-. Mr. Linjo Joseph on oath had admitted to have received ₹ 16,92,000/- in cash for this transaction. On the assessee s request the Assessing Officer allowed cross examination of Shri Linjo Joseph and, he has confirmed his earlier statement. The Assessing Officer rejected the explanation of the assessee that Shri Linjo Joseph was not able to produce any documentary evidence and accordingly, 50% of this land value was added in the hands of the assessee as unexplained investment of the assessee at ₹ 8,46,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,14,00,000/- and the entire amount was paid in cash and not recorded in the books of account. 6.7 On appeal, the CIT(A) observed that ₹ 14,00,000/- was paid by the assessee and his wife and the same deserves to be reduced from the total consideration of ₹ 1,14,00,000/- However, for the balance amount of ₹ 1,00,00,000/-, the CIT(A) held that the same is to be treated as the amount paid in cash towards investment in land for which the Assessing Officer had relied on the sworn statement of Shri K.A.M. Iqbal Mather. The CIT(A) observed that in most of the cases, the sellers have admitted to have received the amount of consideration in the sworn statement and later on, filed return of income, showing the same amount. In such a situation, the CIT(A) concluded that the evidentiary value of the sworn statement of the seller cannot be disputed by the assessee on subjective arguments. In view of this, the CIT(A) held that excess consideration, after considering the actual cost of ₹ 14 lakhs shown by the assessee and his wife was ₹ 1 crore out of which 50% of the sum was treated in the hands of the assessee. Accordingly, the CIT(A) upheld the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make addition. On the other hand, the Ld. DR relied on the orders of the lower authorities. 6.9 We have heard the rival submissions and perused the record. The Assessing Officer while arriving at the fair market value of the impugned land, considered the average value of six properties mention in the earlier para. In our opinion, the property bearing Document No. 1755/08 is a small plot with asphalted roads. This property is in a better position and the value of this property cannot be compared with the value of the impugned property of the assessee. Further, the property in Document No. 1985/109 mentioned earlier, is a small plot with house and asphalted roads. This property also cannot be compared with the impugned property of the assessee. Being so, these two properties are to be taken out from comparison. The remaining four properties are to be considered to arrive at the fair market value of the property. For this purpose, we remit this issue to the file of the Assessing Officer to re-calculate the value of the assessee s property on the basis of average value of the property in Document Nos. 1142/07, 3311/06, 129/08 and 1716/09. Thus, this ground of appeal of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) restricted the addition made by the Assessing Officer to ₹ 91,50,000/-. 7.3 Against this, the assessee is in appeal before us. The Ld. AR submitted that by simply relying on the sworn statement of Dr. K.K. Dandapani, the Assessing Officer had taken the cost of land at ₹ 2,13,00,000/- and added the said amount as unexplained investment u/s. 69 of the Act. The Ld. AR submitted that no evidence other than the sworn statement made by the Shri Dandapani was adduced from Shri Dandapani at the time of cross examination by the Assessing Officer and he stated that he had not received any notice from the Income Tax Department. The Ld. AR submitted that the Department s stand that the assessee and his wife had paid ₹ 2.13 crores for buying 29.6 cents of land from Shri Dandapani which is at the rate of ₹ 7.5 lakhs per cent is incorrect. According to him, the transaction was for ₹ 1 lakh per cent. It was submitted that the assessee had received a notice in Form II and a reference in Form 1A from District Collector that the assessee had undervalued the property for registration and issued notice to the assessee stating that the value of property was ₹ 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A), the value shown as on 31/03/2010 was ₹ 7,60,574/- and as on 31/03/2011 was ₹ 33,94,868/-. According to the CIT(A), the assessee had raised objections which contained issues like the construction cost per sq. meter for the building front portion is taken @ ₹ 13,422 per sq. mtr. While as the cost of construction for front portion of Keerthi Nagar building is taken at ₹ 10,250 per sq. mtr. The second objection of the assessee, according to the CIT(A) was that the valuer had taken 15% extra on main building front and had further added extra for services like plumbing and sanitary and electrification. The CIT(A) observed that the DVO is a technical wing and competent to evaluate the cost of construction which is based on their own parameters and the assessee cannot claim that the two properties at two different places should have the same rate for the front construction. The CIT(A) observed that so far as the rate for front portion of the two buildings are concerned, the same cannot be one and if there is any difference, the assessee cannot have a claim that why the two rates were not considered as the same. In view of this, the CIT(A) justified the valuatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31,56,313/-. As per books of account assessee had spent ₹ 19,93,050/- (excluding land cost) till 31.3.2011. 8.4. The Ld. DR relied on the orders of the authorities below. 8.5 We have heard the rival contentions and perused the record. The assessee had constructed a residential building at Annamanada which construction was spread over 33 months from 1.4.2009 t0 31.12.2011. The total cost incurred by the assessee upto 31/03/2011 was ₹ 3795868/- and upto 31/03/2010 was ₹ 7,60,574/-. The Assessing Officer without rejecting the books of account, referred the matter to the DVO for estimating the cost of construction who has given the report, estimating the cost of construction at ₹ 67,89,000/-. The sole basis for addition was the DVO report. Before referring the matter to the DVO for valuation, it is incumbent upon the Assessing Officer to reject the books of account by noticing the defects in the books maintained by the assessee. In this case, there is no rejection of books of accounts by the Assessing Officer. Hence, in our opinion, referring the matter to the DVO for valuation of the property itself is bad in law. Even otherwise, the Assessing Officer ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the land was made between the assessee and the seller and he received ₹ 62 lakhs. However, the CIT(A) observed that the assessee had shown only ₹ 15 lakhs as the purchase consideration. Hence the entire consideration of ₹ 15 lakhs paid as per the documented deed was deducted from ₹ 62 lakhs while considering the quantum of unexplained investment substantively in the hands of the assessee. Accordingly, the CIT(A) held that the unexplained investment to the tune of ₹ 62 lakhs ₹ 15 lakhs, i.e. ₹ 47 lakhs was made substantively in the hands of the assessee. 9.3 Against this, the assessee is in appeal before us. The Ld. AR submitted that the assessee had paid ₹ 5 lakhs to his mother as gift for the purchase of 3.5 cents of land at Keerthi Nagar from Shri K.V. Sohan for ₹ 15,00,000/- and was reflected in his drawings. the drawings. The Ld. AR submitted that the assessee had produced a copy of the assessment order of K.V. Sohan for the assessment year 2011-12 dated 20/11/2013 wherein the sales consideration for the said land of 3.5 cents was shown in the order as only ₹ 15,00,000/-. The Ld. AR submitted that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case, the assessee has only furnished the name and address of the lender and stated that the lender, Shri C.P. Prakash who is abroad, has given the amount through banking channel. In our opinion, the assessee has not established the identity of the creditor, the capacity to advance the loan and the genuineness of the transaction. When these ingredients are not established, then the onus shifts to the Department. In such cases, the Assessing Officer is entitled to probe further into the matter and cause enquiry with regard to the material available to him to come to the conclusion and unbiased finding as to the genuineness of the transactions, though they should not reject without sufficient reasons. In the present case, on appreciation of the material facts on record, the lower authorities came to the conclusion that the assessee s explanation regarding the credit could not be accepted and we cannot disturb such finding as the assessee has not brought any fresh material on record before us. More so, mere furnishing of name and address of the lender would not amount to sufficient discharge of the burden placed upon the assessee u/s. 68 of the Act. This is because u/s. 68 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the said income cannot be taken as received from agriculture and the same was treated as undisclosed income of the assessee. 11.2 The CIT(A) upheld the addition made by the Assessing Officer for want of any evidence supporting the income and expenditure. 11.3 Against this, the assessee is in appeal before us. The ld. AR submitted that separate books for agricultural income is not required for small holdings as per Kerala Agricultural income Tax Act. The assessee had shown total agricultural receipts and expenses in his books of account which was produced before the Assessing Officer. written submissions. 11.4 The Ld. DR relied on the order of the lower authorities. 11.5 We have heard the rival submissions and perused the record. In the present case, the Assessing Officer has not doubted the owning of the agricultural land measuring 279 cents and the income from the same was shown by the assessee in his books of account. The contention of the Ld. AR is that no separate books of account are kept for agricultural income. In our opinion, a small farmer like the present assessee cannot be expected to maintain separate accounts for agricultural income as stated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wings etc. has not been examined by the Assessing Officer. iii) For earning professional income of ₹ 17,95,000/- expenses claimed is ₹ 8,22,455/-. The Assessing Officer disallowed only ₹ 49,736/- which is not reasonable. iv) The expenses incurred for Dubai trip in the case of the family members was omitted to be included in the assessment. In the meantime, the assessee filed a writ petition before the High Court of Kerala challenging the notice issued u/s. 263 of the I.T. Act. Since there was no stay of proceedings before the CIT by the High Court, the CIT after hearing the assessee, passed the order u/s. 263 of the Act by observing that the Assessing Officer has not considered the issue raised by him in the notice as stated in the earlier para and set aside the assessment order dated 31/03/2013 as it was found to be erroneous in so far as it was prejudicial to the interest of the Revenue and directed the Assessing Officer to pass fresh assessment order after proper verification and examination of relevant facts in accordance with law. 13.2 Against this, the assessee is in appeal before us. The Ld. AR submitted that the assessee has not purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Ltd. (1993) 203 ITR 108 (Bom) ii) Malabar Industrial Co. Ltd. vs. ClT (2000) 243 ITR 83(SC) 13.3 The Ld. DR relied on the order of the CIT. 13.4 We have heard the rival submissions and perused the record. Para 9 In the present case, the assessment order was completed u/s, 143(3) of the Act after due enquiries and after being satisfied with the explanations and information given by the assessee, the Assessing Officer has taken one possible view on the issue before him. The only allegation of the CIT is that the Assessing Officer should have made further enquiries rather than accepting the explanations given by the assessee. Therefore, it cannot be stated that it is a case of lack of enquiry . Further, the order of the CIT is also liable to be set aside for the simple reason that the CIT raised the issue with regard to incurring of development expenditure on the land at Varapuzha. As seen from the argument of the Ld. AR, the land at Varapuzha was purchased on 08/04/2008 relevant to the assessment year 2009-10. Another land in Alangad village was purchased on 07/03/2007 in the financial year 2006-07 relevant to the assessment year 2007-08. This fact is also fortified b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to make the disallowance. Further, the loss of revenue as a consequence of the order by the Assessing Officer cannot be treated as erroneous or prejudicial to the interests of the Revenue so as to invoke the provisions of sec. 263 by the CIT. In our opinion, the CIT cannot assume jurisdiction u/s. 263 when the Assessing Officer has taken one possible view after considering the material available on record. Accordingly, we quash the order of the CIT passed u/s. 263 of the I.T. Act. Hence, the appeal of the assessee in ITA No. 322/Coch/2015 is allowed. ITA No. 323/Coch/2015 14. The CIT(A) had set aside the assessment order dated 31/03/2013 for the assessment year 2009-10 which was passed u/s. 143(3) r.w.s 148 of the Act by issuing notice u/s. 263 of the Act to the assessee by observing as follows: i) As per information available with the Department, it is seen that the assessee has purchased a land at two places namely Varapuzha and Annamanada and has constructed buildings after developing the land and that substantial amount was spent for the development of the land and filling with earth and gravel etc. A perusal of the records shows that the AO had not examined the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the Act by issuing notice u/s. 263 of the Act to the assessee by observing as follows: i) A perusal of the records and information available with the Department, it is seen that substantial renovation work was undertaken in Flat No. 5 at Travancore Residency, Edapally owned by the assessee which is combined with Flat No. 4 owned by the assessee s father during the period 2007-08. The records shows that the cost of renovation and alteration of flat at Travancore Residency had not been examined by the Assessing Officer. ii) It is further noticed that personal expenditure, drawings etc. had not been examined by the Assessing Officer. In the assessment of assessee s spouse though it was mentioned that the expenditure regarding travel to Dubai would be treated separately in assessee s hands, this aspect had not been considered in the assessment. 16.2 As discussed in the earlier appeal in ITA No. 322/Coch/2015 in para nos. 13.4 and 13.5 of this order, we are inclined to quash the order of the CIT passed u/s. 263 of the Act. Hence, the appeal of the assessee in ITA No. 319/Coch/2015 is allowed. ITA No. 320/Coch/2015 17. The CIT(A) had set aside the assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his sworn statement recorded on 1/7/2011 had admitted that the actual consideration received by him was ₹ 10,89,051/-. However, the seller Shri Martin Jose in his sworn statement recorded on 01/07/2011 had admitted that the actual consideration received by him was ₹ 10,89,051/-. The assessee was provided an opportunity to cross examine the seller Shri Martin Jose on 27/02/2013 and during the cross examination, he consistently maintained that the actual consideration received was ₹ 10 lakhs and not ₹ 6 lakhs. Based on the evidence taken from the seller for having received the actual consideration in cash, over and above the amount shown in the deed for registration, the Assessing Officer treated the sum of ₹ 4 lakhs as unexplained investment u/s. 69C and added to the total income of the assessee. 19.2 On appeal, the CIT(A) observed that the assessee had argued that the statement given by Shri Martin Jose should not be treated as an evidence for taking the inference that excess unaccounted money was passed on to the seller for the purchase of the flat in Travancore Residency. According to the CIT(A), Shri Martin Jose in his reply stated that he had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oborative material to suggest on-money payment over and above the registered value and the addition is based only on the third party statement, we are inclined to delete the same. Hence, this ground of appeal is allowed. 20. The next ground, Ground No. 2 is with regard to disallowance of expenditure claimed against professional receipts as a result of changing head of income from business or profession to head of income from other sources. A similar issue was considered in the case of Shri P.V. Sreenijin in ITA No. 383/Coch/2015 in para nos. 3.5 to 3.7 of this order for the assessment year 2007-08. As discussed in her husband s case, the Assessing Officer in the present case has also not doubted the agreement entered with M/s. Rosy Blue (India) Pvt. Ltd. Being so, the Assessing Officer is precluded from changing the head of income from profession to the head of income from other sources. We direct the Assessing Officer to allow the above expenditure incurred by the assessee. Hence, this ground of appeal of the assessee is allowed. 21. The next ground, Ground No. 3 is with regard to value of motor car provided by M/s. Rosy Blue (India) Pvt. Ltd. 21.1 The facts of the case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment has no material in its possession. It is only a surmise and conjecture. By any stretch of imagination, it cannot be presumed that the assessee has routed her own money through M/s. Rosy Blue India Pvt. Ltd. In such circumstances, we are inclined to delete the addition. Hence, this ground of appeal of the assessee is allowed. Thus, the appeal of the assessee in ITA No. 387/coch/2015 is allowed. ITA No. 388/Coch/2015 22. The Ground No. 1 is with regard to unexplained investment in the purchase of land at Varapuzha at ₹ 4,82,500/- . 22.1 The facts of the case are that the assessee alongwith her husband had purchased the land at Varappuzha as per document No. 2221/08 dated 8/04/2008 from Mr. Linjo Joseph and others for ₹ 7,27,000/-. The Assessing Officer had taken the sale consideration at ₹ 16,92,000/- by relying on the sworn statement of the seller Shri Linjo Joseph. 50% of the sale consideration was treated in the hands of the assessee and 50% in the hands of her husband Shri P.V. Sreenijin. 22.2 We have heard the rival submissions and perused the record. A similar issue was considered by us in her husband s case in ITA No. 384/Coch/2015 in para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The commercial vehicles include public utility vehicles and goods carriages whether it is in heavy vehicle category or light motor vehicle category. But the vehicle registered as non-commercial vehicle cannot be considered as commercial vehicle and the depreciation of 50% is not allowed for such vehicles. The assessee had submitted that the vehicle Corolla Altis is not registered as a taxi carrier. Therefore, it was clear that the assessee is not eligible for 50% depreciation and the excess depreciation claimed by the assessee was disallowed by the Assessing Officer and added to the total income of the assessee. 24.2. On appeal, the CIT(A) observed that the assessee s claim for depreciation on motor car, as per Note No. 6 to the Rules in Appendix-l, the word commercial vehicle has been defined u/s 2(21) of the Motor Vehicle Act which includes light motor vehicles meant for transport vehicle or omni bus. The contention raised by the appellant for the claim of depreciation on the motor car is not correct because the car Corolla Altis would not come in the purview of the commercial vehicle which is meant to be transport vehicle or omni bus. Further, only because the unladen weigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration certificate itself indicate whether the vehicle is registered as commercial vehicle or personal vehicle. He was of the opinion that vehicle registered as non-commercial vehicle cannot be considered as commercial vehicle and depreciation @ 50% is not allowed for such vehicle. The A.O. has taken the meaning of commercial vehicle in common parlance and has held that commercial vehicle is distinct and different from private vehicle and the vehicle used by the appellant is a private vehicle. It was submitted that as per Note No. 6 to the Rules in Appendix-1, the word commercial vehicle has been defined to include Light Motor Vehicle as defined by Motor Vehicle Act, 1988. Further, section 2(21) of the Motor Vehicle Act define the word Light Motor Vehicle as - Light Motor Vehicle means transport vehicle or omnibus. The gross vehicle weight of either of which or a Motor Car or a Tractor or road roller, the unladen weight of any of which does not exceed 7500 Kg. According to the Ld. AR, the unladen weight of Corolla Altis is 1160 Kg. The Ld. AR submitted that in point No. 5, A.O has disallowed the entire expenditure of ₹ 8,56,853/-, which included depreciation on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... working in Dubai. His address was only given to the Assessing Officer. However, the assessee was not able to substantiate the identity and capacity of the lender. The addition was sustained by the CIT(A). Against this, the assessee is in appeal before us. 24.7 The Ld AR submitted that the assessee received money from Shri C.P. Prakash vide Cheque No. 392458/- drawn on State Bank of Travancore. Shri C.P. Prakash is an NRI, working in Dubai. The assessee furnished the address of Shri C.P. Prakash. The contention of the Ld. DR is that the assessee has not able to prove the ingredients of section 68 of the I.T. Act. 24.8 We have heard the rival submissions and perused the record. As discussed in the appeal of the assessee in ITA No. 386/Coch/2015 in para no. 10.3 of this order, the addition is sustained as the assessee has not proved all the ingredients of section 68 of the I.T. Act. This ground of appeal of the assessee is rejected. Thus, the appeal of the assessee in ITA No.390/Coch/2015 is partly allowed. 25. In the result, i) The appeal of the assessee in ITA No. 383/Coch/2015 is partly allowed. ii) The appeal of the assessee in ITA No. 384/Coch/2015 is partly al ..... 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