TMI Blog2015 (4) TMI 1277X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Shri T.R. Meena, AM Assessee by : Shri P.C. Parwal (C.A.) Revenue by : Shri Dilip Sharma( Addl.CIT) ORDER T.R. Meena, This is an appeal filed by the assessee against the order dated 19/09/2014 passed by the learned CIT (A), Alwar for A.Y. 2010-11. The effective grounds of appeals are as under:- 1) The ld. CIT(A) has erred on facts and law in confirming the addition of ₹ 52 lacs made by the A.O. on account of alleged unexplained cash deposit in the bank u/s 68 of the Income Tax Act, 1961. He has further erred in confirming the addition ignoring that:- (a) the said amount is received by the assessee against sale of the agricultural land for ₹ 72 lacs for which sale deed is executed for ₹ 20 lacs only for which assessee has brought on record the bank account of the buyer of the land Smt. Kiran Devi and her husband/relative Sh. Giriraj and Sh. Latoor Singh who have withdrawn ₹ 80 lacs from their bank account on 11/05/2009 out of which ₹ 72 lacs was paid to the assessee against the sale of land which was deposited by her by opening the bank account on the same date. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case. In response to notice to Smt. Kiran Devi, her husband Giriraj Singh appeared before the Assessing Officer and furnished written reply before him and claimed that purchaser had paid ₹ 20 lacs for purchasing of agricultural land, besides this, no evidence has been placed by the assessee to explain the source of ₹ 52 lacs. Therefore, ld Assessing Officer made addition of cash deposited ₹ 52 lacs after accepting the 20 lacs cash deposited from the sale proceed of agricultural land U/s 68 of the Act. 3. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the learned CIT(A), who had confirmed the addition by observing as under:- 4.5 I have perused the assessment order, remand report of the A.O. and submissions made and cross reply of the appellant and find that and addition of ₹ 52 lacs has been made by the A.O. on account of unexplained cash deposits in the bank account of the appellant. During the course of assessment proceedings, it was found by the A.O. that an amount of ₹ 72 lacs has been deposited in cash on a single day i.e. 11th May, 2009 in her saving account in PNB, Deeg, Bhara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) 0528. (iii) Vijay Kumar Talwar Vs. CIT 330 ITR 1 (SC) (2010). (iv) Papneja Traders Vs. CIT 337 ITR 172 (P H)(2011) (v) Acron Finance Pvt. Ltd. Vs. CIT 238 CTR 344 (P H) (2011) 4.9 In view of the above discussion, I hold that the A.O. was justified in treating the cash deposits of ₹ 52 lacs as unexplained income of the appellant. Accordingly, I confirm the addition of ₹ 52 lacs made by the A.O. u/s 68 of the IT Act. 4. Now the assessee is in appeal before us. The learned A.R. for the assessee submitted as under:- 1. It is a known fact that generally there is a difference between sale consideration as recorded in the registered sale deed and the actual consideration of an immovable property particularly the agricultural land. This is done by the purchaser to save the stamp duty. In the present case also, in the registered sale deed, it is stated that the said agricultural land is sold for ₹ 20 lacs but such recital is made only to save the stamp duty and the actual consideration received by the assessee is ₹ 72 lacs. The AO inspite of the assessee s request to record the statement of Smt. Kiran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al land without calling the bank account of the purchaser from the bank and to record the statement of the purchaser and allowing opportunity to cross examine them inspite of assessee s request. In these facts and circumstances of the case, addition of ₹ 52 lacs made by the AO and confirmed by CIT(A) is unjustified. 4. The AO at Page 4 of his order has stated that the purchaser Smt. Kiran Devi was granted opportunity vide letter dated 05.03.2013 to attend the office for cross examining the issue on 08.03.2013. This is incorrect. The AO vide letter dated 05.03.2013, only required Smt. Kiran Devi to attend the office or give the written reply on 08.03.2013 with the information about the amount for which the land is purchased from the assessee and to give the evidence for the same. In reply, Smt. Kiran Devi and Girraj Singh filed reply on 08.03.2013 in the Dak counter stating that they have purchased the land from assessee for ₹ 20 lacs. In the letter send by the AO to Smt. Kiran Devi there is no dispatch number and in the reply given, the signature of Kiran Devi appears to be forged as in the sale deed she has put the thumb impression whereas in the reply she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other source other than the sale of the land. 7. The ld. CIT(A) has also ignored all the evidences filed before him to prove that the source of deposit in the bank account is nothing but the sale proceeds of the agricultural land sold by the assessee. The identity of the buyer Smt. Kiran Devi is proved from the sale deed and her creditworthiness and genuineness of the transaction is proved from the bank account. The CIT(A) has erred in holding that assessee has failed to discharge his onus to prove the identity and the creditworthiness of Smt. Kiran Devi and the genuineness of the transaction. Therefore, CIT(A) has erred in confirming the addition by ignoring the various material evidences filed before him and by solely relying on the remand report of the AO. 8. It is a fact on record that the assessee is an illiterate lady has no source of income other than agricultural income. Even the lower authorities have not found any other source of income in the hands of the assessee. Hence, it cannot be presumed that assessee has any undisclosed income which is deposited in the bank account. In these circumstances, even if the source of deposit in the bank account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d may . This clearly indicates that the intention of Parliament in enacting s. 69 was to confer a discretion on the ITO in the matter of treating the source of investment which has not been satisfactorily explained by the assessee as the income of the assessee and the ITO is not obliged to treat such source of investment as income in every case where the explanation offered by the assessee is found to be not satisfactory. The question whether the source of the investment should be treated as income or not under s. 69 has to be considered in the light of the facts of each case. In other words, a discretion has been conferred on the ITO under s. 69 of the Act to treat the source of investment as the income of the assessee if the explanation offered by the assessee is not found satisfactory and the said discretion has to be exercised keeping in view the facts and circumstances of the particular case. In the instant case, the Tribunal has held that the discretion had not been properly exercised by the ITO and the AAC in taking into account the circumstances in which the assessee was placed and the Tribunal has found that the sources of investments could not be treated as income of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ightly confirmed the addition. 6. We have heard the rival contentions of both the parties and perused the material available on record. The primary burden to prove the cash deposited in the bank account is on the assessee, which has not been discharged fully. She has allowed time to produce the purchaser to explain the transactions whether they have paid the amount to the assessee or not with evidence. Hence sufficient time has been provided by the Assessing Officer at the time of remand report even the assessee could not produce the purchaser to verify the transaction. The case laws relied upon by the Assessing Officer are squarely applicable on the assessee. The case law referred by the ld. AR is on Section 69 of the Act i.e. unexplained investment. The ld. AR also referred the decision of Hon ble Bombay High Court in the case of CIT Vs. Bhaichand H Gandhi (supra), ITAT Delhi s Bench order in Ms. Mayawati Vs. DCIT (supra) and ITAT Lucknow s Bench order in Kamal Kumar Mishra Vs. ITO (supra) is on different issue, therefore, the case laws are not squarely applicable but in the interest of justice, we set aside the order of the CIT(A) to the Assessing Officer to give one ..... X X X X Extracts X X X X X X X X Extracts X X X X
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