TMI Blog2021 (5) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be applied and is sufficient to discharge onus. Probability means likelihood of anything to be true. Probability refers to appearance of truth or likelihood of being realized which any statement or event bears in light of the present evidence (Murray s English Dictionary). Evidence can be oral even then the same cannot be discarded. More particularly, in the present case, when the assessee has fully discharged his onus by calling Shri Abhishek Agarwal who appeared before the A.O. and got recorded his admission statement coupled with affidavit and the bank statements to the effect that all transactions in the bank account 909010036473994 were of Shri Abhishek Agarwal which have not been rebutted by the department. Therefore, in our view, there was no reason to discard the admission of Shri Abhishek Agarwal. Therefore, keeping in view the totality of facts and circumstances of this particular case, we are of the view that the assessment order and the appellate order falls foul and have disregarded the preponderance of probability test. See JAYA AGGARWAL VERSUS INCOME TAX OFFICER [ 2018 (3) TMI 1358 - DELHI HIGH COURT] - Thus we direct the A.O. to delete the addition - Decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at ₹ 11,31,800/- as unexplained income. 4. Being aggrieved by the order of the A.O., the assessee carried the matter before the ld. CIT(A), who after considering the submissions of both the parties as well as material placed on record, sustained the addition made by the A.O. Against the said order of the ld. CIT(A), the assessee has preferred present appeal by taking above mentioned grounds of appeal. 5. The solitary effective ground raised by the assessee relates to challenging the order of the ld. CIT(A) in sustaining the addition of ₹ 11,31,800/-. In this respect, the ld. AR appearing on behalf of the assessee has reiterated the same arguments as were raised before the ld. CIT(A) and prayed to delete addition sustained by the ld. CIT(A). The submissions made before the ld. CIT(A) by the assessee are stated below: In the above cited case we hereby state that, the assesse was student and studying for said period in BIRLA INSTITUTE OF TECNOLOGY as a regular student. It means assessee was neither involved in any business nor service in which he can devote sufficient time. Assessee has not filled income tax return since income was NIL. Certificate enclosed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As such assessment may be please be held as bad in law and addition made thereon may kindly be deleted. We pray for relief and deletion of the addition made by assessee officer. 6. On the other hand, the ld DR has relied on the orders of the revenue authorities. 7. We have heard the rival contentions and perused the material available on record. As per facts of the present case, the assessee was student and studying for said period in Birla Institute of Technology as a regular student of M.Sc. Animation and Design and was tenant of Shri Abhishek Agarwal, who was into business of real estate in name and style of M/s Shri Krishna Star Realter. According to the asssessee, he was not having any sufficient income, therefore, not filed Income tax return since the income was Nil. The assessee was maintaining a savings bank account with Axis Bank bearing account No. 402010100033503 for receiving monthly expenses from his father as the assessee belongs to Haryana State. In this respect, our attention was drawn by the ld AR to the paper book which contains bank account statement, available at page No. 19 to 24 of the paper book. Since the assessee was tenant of Shri Abhishek Aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 11.11.09 64673 96600 Ravi Dutt(Friend) 4 11.11.09 64674 74500 Rajkumar(Friend) 5 11.11.09 64675 30000 Self (Abhishek Agarwal 6 26.11.09 64677 127800 Rajkumar(Friend) 7 26.11.09 64680 135600 Manish Mittal(Friend) 8 24.12.09 14680 235000 Sampat Ram Agarwal (Father) 9 02.01.10 146547 162000 Manish (Friend) 10 23.01.10 146555 259000 Abhishek Agarwal (Self) 11 05.02.10 Transferred from 19448 Sanjana (wife) 12 08.02.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose and objective by the said Abhishek Agarwal as all the cheques were issued in the name of family members of Abhishek Agarwal as well as his friends. From the very beginning, the assessee had made solitary explanation that the said bank account was opened at the instance of Abhishek Agarwal and all the deposits and withdrawals were made by the said Abhishek Agarwal. We found that explanation given by the assessee was not fanciful and sham story. It was plausible and should have been accepted by the revenue authorities, unless there was justification or ground to hold to the contrary. More particularly when the entire explanation was supported by statement of Shri Abhishek Agarwal coupled with bank transactions and affidavit of said Abhishek Agarwal. The revenue authorities should have given due regard and latitude to human conduct and behaviour while considering the validity and truthfulness of an explanation. One should not consider and reject an explanation as concocted and contrived by applying prudent man s behaviour test. The principle of preponderance of probability as a test is to be applied and is sufficient to discharge onus. Probability means likelihood of anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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