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2019 (8) TMI 1426

..... cash flow statement which was considered as an afterthought and without supporting with relevant evidences - HELD THAT:- As discussed above the assessee has failed to substantiate the transactions reflected in the cash-flow statement with relevant supporting evidences at the time of assessment proceedings before the AO and also at the time of appellate proceedings before the Ld. CIT(A). Even at the time of appellate proceedings before the assessee has failed to controvert the findings of the Ld. CIT(A). The assessee has furnished mere cash-flow statement but failed to establish its genuineness with relevant supporting evidences. After perusal of the material on record we consider that Ld. CIT(A) has rightly held that the cash-flow statement was prepared after the search action which was not based on relevant supporting evidences. Therefore, we do not find any infirmity in the decision of Ld. CIT(A). Accordingly, this ground of appeal of the assessee is dismissed. Reducing the agricultural income - CIT(A) has partly allowed the appeal of the assessee in spite of not furnishing the supporting evidences as sale bill of agricultural production etc - HELD THAT:- It is undisputed fact th .....

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..... essee as the facts are different as mentioned above in this order because as per the original return of income filed u/s. 139(1) of the Act, the assessee has shown NIL return of income however, as per the return of income filed u/s. 153 of the Act the assessee has herself shown the agricultural income in the different assessment year. In view of the above facts, we do not find any substance in the appeal of the assessee the same is dismissed. Reducing the opening balance as on 01.04.2004 from ₹ 5,00,000 to ₹ 2,00,000 - HELD THAT:- During the course of appellate proceeding the assessee has contended that cash was generated from sale of jewellery but the assessee could not establish that any capital gain from the sale of jewellery was disclosed for A.Y. 2004-05. The assessee could not substantiate the same by furnishing copy of return of income. The Ld. CIT(A) has also verified from the copy of intimation u/s. 143(1) that there was not detail of any computation of capital gain on account of sale of jewellery. In view of the aforesaid material facts the Ld. CIT(A) has considered that it was reasonable to hold an amount of ₹ 2,00,000/- available in the hand of the ass .....

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..... the assessee is dismissed. Re-computing the income without giving credit of opening balance - HELD THAT:- After hearing the rival contentions and perusal of material on record we restore this issue to the file of the AO for deciding afresh after verification of the relevant material referred by the assessee. Accordingly, this ground of appeal of the assessee is allowed for statistical purposes. - I.T.(SS)A. Nos. 97, 98 & 99/Ahd/2016 & ITA No. 768/Ahd/2016 - 1-8-2019 - SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER For the Appellant : Shri Khanjan Chhaya, A.R. For the Respondent : Shr i O. P. Sharma, CIT DR, & Shri L. P. Jain, Sr . DR ORDER PER AMARJIT SINGH - AM: These four appeals of the assessee are filed against the order of CIT(A)- 12, Ahmedabad dated 29.09.2015, in proceedings under section 153A r.w.s 143(3) of the Income Tax Act, 1961; in short the Act . Since common issues are involved in these appeals, therefore, for the sake of convenience all are adjudicated by this common order. 2. A search action u/s. 132 of the Act was carried out at residential premises of the assessee on 08.09.2010. The assessment for the relevant assessment years i. .....

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..... ed in law by not adjudicating on the ground of appeal that the Ld. AO erred in law by making additions u/s. 153A in respect of agricultural income of which no incriminating material was found during search and the period of assessment u/s. 143(1) is completed and no proceedings is pending in respect of any assessment year as on the date of search and thereby acted beyond his jurisdiction. 5. Because, the hon ble CIT(A) has erred in law while arbitrarily reducing the opening cash balance as on 01.04.2004 from ₹ 5,00,000 to ₹ 2,00,000. 6. Because, the Ld. AO has erred on facts while assessing the income of the appellant as per the cash-book. The Ld. AO has suo-moto increased the house hold withdrawal to the tune of ₹ 85,800/- from the cash on hand with the assessee as on 31.03.2008 taking the contention that the same was recorded in the original cash book submitted by the appellant which is devoid of facts. First Ground of Appeal regarding rejection of cash flow statement:- 4. During the course of search cash was found from the premises of the assessee and also cash deposited in the various bank accounts. The assessee was not having documentary evidences to explain .....

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..... as asked the assessee to substantiate the earning of agricultural income by way of supporting bill and sale of agricultural produce etc. However, the assessee has not furnished any sale bill for agricultural production before the AO. Consequently, the AO has disallowed the claim of agricultural income. 7. Aggrieved assessee has filed appeal before Ld. CIT(A). Ld. CIT(A) has partly allowed the appeal of the assessee in spite of not furnishing the supporting evidences as sale bill of agricultural production etc. However, on the basis of ownership of agricultural land the Ld. CIT(A) has allowed the claim of the assessee for earning agricultural income to the extent of 60,000/- for A.Y. 2008-09, 80,000/- for A.Y. 2009-10, 80,000/- for A.Y. 2010-11 and 1,00,000/- for A.Y. 2011-12. 8. We have heard the rival contention on this issue and perused the material on record. It is undisputed fact that assessee has filed NIL agricultural income vide return of income filed u/s. 139(1) for all the years except A.Y. 2009-10. In respect of A.Y. 2008-09, 2010-11 the assessee has not shown any agricultural income in the original return of income filed u/s. 139(1) of the Act, however, in the return fil .....

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..... h Ground of Appeal:- 11. Fourth ground of appeal of the assessee is pertained to the issue that AO has made addition u/s. 153 in respect of agricultural income for which no incriminating material found during search. We do not find any substance in the ground of appeal of the assessee as the facts are different as mentioned above in this order because as per the original return of income filed u/s. 139(1) of the Act, the assessee has shown NIL return of income however, as per the return of income filed u/s. 153 of the Act the assessee has herself shown the agricultural income in the different assessment year. In view of the above facts, we do not find any substance in the appeal of the assessee the same is dismissed. Fifth Ground of Appeal:- Reducing the opening balance as on 01.04.2004 from ₹ 5,00,000 to ₹ 2,00,000:- 12. In this ground of appeal the assessee has stated that Ld. CIT(A) has arbitrarily reduce the opening cash balance as on 01.04.2004 from ₹ 5,00,000/- to ₹ 2,00,000/-. 13. During the course of appellate proceeding the Ld. CIT(A) as per Para 10.2 has considered the claim of cash of ₹ 5,00,000/- as per cash statement as on 01.04.2004. The .....

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..... on facts and issue to the Ground No. 1 for A.Y. 2008-09 which has been adjudicated as above in this order and applying the same findings, this ground of appeal stand dismissed. Second Ground of Appeal:- 16. Ground No. 2 in this case filed by the assessee is pertained to the issue of unexplained deposit from repayment of loan of ₹ 15,000/- from Shri O P Singh similar to the ground of appeal no. 3 of IT(SS)A No. 97/Ahd/2016 already adjudicated as above in this order. Wherein it is held that in spite of giving appropriate opportunity the assessee has failed to substantiate the source of cash deposit with relevant supporting evidences. Therefore, applying the finding the IT(SS)A No. 97/Ahd/2016 on this issue, this ground of appeal of the assessee also stand dismissed. Third Ground of Appeal:- Disallowance of indexation claim of long term capital gain of A.Y. 1981- 82:- 17. In the appeal the assessee has stated that AO has presumed the year of acquisition to assessment year 2003-04 whereas the Ld. CIT(A) has presumed the year of acquisition to be A.Y. 2001-02 as against the claim of A.Y. 1981-82. The assessee has claimed that during the previous year relevant A.Y. 2009-10 the ass .....

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..... der and applying the same findings, this ground of appeal stand dismissed. Second Ground of Appeal:- Second ground of appeal is pertained to the issue of addition on account of unexplained cash deposit of ₹ 85,000:- 20. The assessee has stated that AO has not accepted the cash flow statement that amount of ₹ 85,000/- comprise of repayment of loan of ₹ 25,000/- by Shri O P Singh and amount of ₹ 60,000/- loan from associate. The assessee has claimed that she has furnished the rectified cash flow statement with repayment of loan as additional evidences which was not considered by the Ld. CIT(A). The fact and issue involved in this ground of appeal are similar to the fact and issue involved in the ground no. 3 for A.Y. 2008-09 vide IT(SS)A No. 97/Ahd/2016 which has been already adjudicated in this order as above. Applying the finding of IT(SS)A No. 97/Ahd/2016 this ground of appeal stand dismissed. Assessment Year (A.Y.) 2011-12:- First Ground of Appeal:- 21. First ground of appeal is similar on facts and issue to the Ground No. 1 for A.Y. 2008-09 which has been adjudicated as above in this order and applying the same findings, this ground of appeal stand dismis .....

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..... tions as raised before the AO. Ld. First Appellate Authority has considered the submissions of the assessee but rejected that. We deem it pertinent to take note of the well reason finding by the Ld. CIT(A) on this issue. The Ld. Counsel for the assessee has relied upon his submission made before the Ld. Revenue Authorities below and submitted that AO ought to have issued summons u/s 131(1)(A) for ensuring the presence of Shri Rohit Gupta and Shir Rajiv Agarwal if he has any doubt about the certificates giving by them. The AO could have also called for information from these individuals by using his powers u/s. 133(6) with the Income Tax Act. 25. The Ld. DR relied upon the order of CIT(A). We have duly considered the rival contention and gone through the record carefully. Section 68 of the Income Tax Act contemplate that where any sum is found credited in the books of the assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not in the opinion of the AO, satisfactory, the sum so credited may be charged to income tax as the income of the assessee of that previous year. There is no dis .....

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..... lant and the employer, what agreement/arrangements were made with M/s Technosys, how and who brought the cash from Lucknow to Ahmedabad from time to time, why not only the appellant but even M/s Technosys considered it necessary for repeated transfer of cash when the same was not being spent, how imprest cash remained un-reclaimed by M/s Technosys till 31/3/13 (and may be beyond), whether, and if not, why not, Technosys required appellant to render any accounts from time to time etc., so as to prove the veracity and genuineness of transactions of cash receipts from M/s Technosys. Moreover, before me or, before AO during remand proceedings, appellant has not voluntarily produced any further evidence, including oral evidence as required by the Ld. AO during the assessment proceedings. When a query was raised during the appellate proceedings, the appellant filed form 26AS to substantiate that even TDS is made by M/s Technosys on "contract payments" and salaries. This, again, in my opinion, is an attempt to establish a fact not convincingly. If in fact the gross-receipt, unspent, remained with the appellant, why was the same not shown as received and retained upto the date of .....

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..... . Therefore, I also hold that the onus of establishing the genuineness of the of receipts totaling to ₹ 12,21,060/-impliedly claimed through cash-book, (upto the date of search) has not been successfully discharged by the appellant, and therefore, the action of the ld. AO in disbelieving the alleged imprest cash receipts and other implied cash receipts totaling to ₹ 12,21,060/- from M/s Technosys is upheld. Such cash would therefore not be available for carry-forward or for explaining the cash seized. The exact impact of this finding would be worked out by the AO. 5.12.5 As a passing but important observation, though, it needs to be mentioned that the appellant has received salary income from Technosys also in cash and has also been disclosed in the Return of Income. There is no controversy with regard to fact of employment and the receipt of salary in cash. The AO has also not commented adversely. Thus, the salary receipt in cash shall remain available to the appellant to explain the deposit/availability of cash. 26. It is pertinent to observe that Shri Rajiv Agarwal and Rohit Gupta are the witness of the assessee. It was for the assessee to produce them before the AO. .....

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..... ineness of receipt of cash with relevant documentary evidences, therefore, we do not find substance in this ground of appeal of the assessee after considering the detailed findings of the Ld. CIT(A). Accordingly, this ground of appeal of the assessee stands dismissed. Fourth Ground of Appeal:- Re-computing the income without giving credit of opening balance of ₹ 21,000:- 26. The assessee has contended that while giving appeal effect to the order of the Ld. CIT(A) the AO has not given credit of opening balance of ₹ 21,000/-. After hearing the rival contentions and perusal of material on record we restore this issue to the file of the AO for deciding afresh after verification of the relevant material referred by the assessee. Accordingly, this ground of appeal of the assessee is allowed for statistical purposes. 27. In the result, the appeal of the assessee for A.Y. 2008-9 vide ITA No. 97/Ahd/2016 Ground No. 1 to 5 are dismissed and Ground No. 6 is allowed for statistical purpose. For A.Y. 2009-10 vide ITA No. 98/Ahd/2016 all grounds of appeal are dismissed. For A.Y. 2010-11 vide ITA No. 99/Ahd/2016 Both the Ground of Appeal are dismissed. For A.Y. 2011-12 vide ITA No. 76 .....

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