TMI Blog2018 (12) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... lity under the income tax Act. In view of the said clear provisions in section 4 of the Act Chapter II and section 2 of the Finance Act, 2011, we have no doubt in our mind that agricultural income of an assessee has to be taken into consideration for the purpose of determining rate of tax that is applicable to his income. In the absence of disclosure of agriculture income in the income tax return, we cannot believe that the parties have generated agriculture income. With regards to other documents filed by the assessee in support of the cash loan transactions, we note that all these are internal and self-generated documents. Therefore, we are reluctant to place our reliance on the submission of the assessee. We note that the bank statement is not considered as books of accounts. Therefore, any sum found credited in the bank passbook cannot be treated as an unexplained cash credit. However, we note that the above order was not produced before the authorities below. Therefore, in the interest of justice and fair play we are inclined to restore this matter to the file of AO for fresh adjudication in accordance with the provisions of law and after considering the ratio laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. CIT (A) submitted that she had deposited a sum of ₹ 31,000/- out of the cash withdrawal from the bank. 4.1 A sum of ₹ 5,00,000/- was taken from Shri Vajubhai Patel and sum of ₹ 7,50,000/- was taken from Shri Bhailal Patel. The assessee in support of her contention about the loan taken from the parties above filed the following documents: i. Cash flow statement of both the parties ii. ID and residence proof of both the parties iii. Income tax return of both the parties. iv. Details of the agricultural land inherited along with the details of agriculture income. 5. However, the Ld. CIT(A) rejected the contention of the assessee by observing as under: 1. There was a time of one and a half month between the cash withdrawn from the bank and deposited with the bank. Therefore, the benefit of the deposit of such cash of ₹ 31,000.00 cannot be given. 2. In respect of loans from Shri VajubhaiPatel, the details of the agricultural land, agriculture income, and the cash book were not filed by the assessee before the AO during assessment as well as in remand proceedings. 3. The agriculture income of Shri Vajubhai Patel was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as called out for hearing, Shri Patel, learned counsel for the assessee invited my attention to Hon'ble Bombay High Court's judgement in the case of CIT vs. Bhaichand H. Gandhi (1983) 53 CompCas 400 Bom. In particular, my attention was invited to the following observations made by their lordships:- 2. In the course of the assessment proceedings for the assessment year 1962-63, for which the relevant previous year in the case of the assessee was Samvat year 2017, the ITO included ₹ 30,000 in the assessment on account of cash credits found in certain books which, according to the ITO, were the books of the assessee. The explanation offered by the assessee regarding the genuineness of these credits was not accepted by the ITO and he treated the amount as income from undisclosed sources. On an appeal by the assessee, the AAC confirmed the view of the ITO. On a further appeal to the Tribunal by the assessee, an argument was put forward on behalf of the assessee that in respect of one of the deposits included in the said sum of ₹ 30,000, namely, a deposit of ₹ 10,000, this deposit was shown on January 21, 1961, in the bank account of the assessee. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the pass book is maintained by the bank under the instructions of the constituent. In view of this, the Tribunal was, with respect, justified in holding that the pass book supplied by the bank to the assessee in the present case could not be regarded as a book of the assessee, that is, a book maintained by the assessee or under his instructions. In our view, the Tribunal was justified in the conclusions at which it arrived. 6. Learned counsel's short contention is that the impugned addition is made under section 68 by treating the bank account of the assessee as books of account but then this course of action in the light of the above judicial precedent is not sustainable in law. 6.4 The Ld. AR for the assessee also filed the detail evidence to proof the agricultural land and the agriculture products sold by both the parties. 7. On the other hand the Ld. DR submitted that the assessee has failed to discharge the duties to substantiate his claim on the basis of supporting evidence to justify the creditworthiness of the loan parties as discussed above. The Ld. DR vehemently supported the orders of authorities below. 8. We have heard the rival contentions an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son. Section 4(1) thus means that while the total income of a person is to be determined in accordance with the provisions of the Act the rate or rates at which such income-tax will be paid on such incomes for any assessment year will be stipulated in the Central Act. In accordance with the provisions of section 4 of the Act, the Finance Act (Central Act) has been stipulating rate or rates at which income-tax is to be charged the particular assessment year. For the assessment year 2011-12, the Finance Act, 2011 clearly provides under section 2 of Chapter II that the net agricultural income shall be taken into account in the manner provided therein for the purpose of determining the rates of income-tax applicable to the income of the assessee. 8.4 The relevant extract of section 2 of finance Act 2011 reads as under: 2. (1) Subject to the provisions of sub-sections (2) and (3), for the assessment year commencing on the 1st day of April, 2011, income-tax shall be charged at the rates specified in Part I of the First Schedule and such tax shall be increased by a surcharge, for purposes of the Union, calculated in each case in the manner provided therein. ( 2) In the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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