9911796707
TMI Blog2023 (6) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... aking addition of Rs.6,02,894/- by treating agricultural income as undisclosed income from business. 3.On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) has erred in enhancing the addition made by learned assessing officer from Rs.6,02,894/- to Rs.21,55,000/-. 4.It is therefore prayed that above addition made by the assessing officer and the enhancement made by Commissioner of Income-tax (Appeals) may please be deleted." 2. At the outset of hearing Ld. Authorized Representative (AR) for the assessee submits that he is not pressing the ground No.1 of appeal, which relates to validity of re-opening and issuance of notice under section 148 of the Act. Considering the submission of Ld. AR for the assessee the ground No.1 is dismissed as 'not pressed'. 3. Brief facts of the case leading to the additions and enhanced by ld. CIT(A) are that during the assessment proceedings initiated under section 147 of the Act the Assessing Officer noted that assessee has made deposit of Rs.21,55,000/- in his saving bank account and also invested in mutual fund and share. The assessing officer issued show cause notice to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous vegetable items at Rs.3,65,000/- +18,732 + 1,19,162/- total of which is Rs.5,02,895/-. Thus, the Assessing Officer has not put much conscious by considering the fact and evidence. The addition of Rs.6,02,894/- is totally wrong. The Assessing Officer has accepted the evidence of 94.50% of total agricultural produce sale and only evidence of 5.45% of agricultural sale no evidence was filed. 5. On the submission of assessee, the Ld. CIT(A) called remand report from the Assessing Officer. The Assessing Officer furnished his remand report dated 17.07.2017. In the remand report, the Assessing Officer stated that assessee has not produced the details and confirmation in case of Shaikh M. Kallu, details sales of miscellaneous vegetable. The AR of the assessee has not objected such addition of Rs.6,02,894/- and during assessment the Ld. AR of the assessee made his signature of his consent. The assessee has produced self-declaration of Shaikh M Kallu on stamp paper who has paid Rs.3,55,300/-. The assessee has not produced any supportive evidence and confirmation in this regard also. The Assessing Officer also reported that assessee has now produced any additional evidence pertaining to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given back by the assessee. The pertaining of affidavit indicates that contents are merely an after-thought to justify agricultural income. The Ld. CIT(A) on perusal of evidence and copy of bank statement, noted that most of the cash deposits are found to be made in the first and second week of the October, 2007, whereas the mango season sales end in the months of May-June itself. There is no reason as to why the assessee could hold on cash for 4-5 months. After cash deposits, funds are transferred in the name of persons, Anand, Navratan. On the basis of such cash deposits pattern, the assessee was asked to furnish the details of payment to Navratan and Anand and cash deposits from assessment year 2006-07 to 2010-11. On the direction of Ld. CIT(A) the assessee furnished the details of payment to Navratan and Anand and the details of cash deposits from 2006-07 to 2010-11. 8. The Ld. CIT(A) on perusal of such details found that assessee made cash deposits of Rs.6,53,166/- in A.Y. 2007-08, Rs.21,55,000/- in A.Y. 2008-09 (current year), Rs.9,95,000/- in A.Y. 209-10, Rs.53,66,655/- in A.Y.2010-11, Rs.18,84,000/- in A.Y. 2011-12 and Rs.6,59,000/- in A.Y. 2012-13. The cash deposits for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the agricultural income claimed by assessee cannot be denied. There is no denial of the fact that assessee is not an agriculturist. The Assessing Officer has not raised any doubts about the veracity of documents furnished by the assessee during the remand proceedings but only objected that these documents may not be taken on record at this stage. The assessee has furnished the document for agricultural land to the extent of 38 vighas. The Assessing Officer / Ld. JCIT in their remand report had not raised any doubt of the genuineness of confirmation given by purchaser of fruits even during the remand proceedings. They have issued any summons to verify the content of the affidavit filed those persons and all the evidence furnished during the assessment proceedings as well as remand proceedings. Thus, the onus lies upon the Department to establish the contention put forth by assessee is wrong. The assessee has no other source of income except agricultural income shown in his return of income. 11. The Ld. CIT(A) after considering the reply of assessee, contents of assessment order, submission of assessee and the remand report furnished by Assessing Officer held that assessee merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent assessment years are substantial and fluctuation thereon do not indicate earning of agricultural income. The Ld. CIT(A) on his presumption issued show cause notice to assessee. The Ld. CIT(A) failed to appreciate that 38 vighas of land are not a small piece of land. The Ld. CIT(A) has no evidence to disprove the fact brought on record about holding of agricultural land and numbers of mangos and chikko trees in agricultural land. The assessee has filed affidavit of purchaser / contractor but no adverse evidence was brought on record and no cross-examination of such persons were conducted either by Assessing Officer during remand proceedings or by Ld. CIT(A) of his appellate order nor any investigation was conducted to disprove the evidence furnished by assessee. The assessee suffered huge loss in transaction of F & O transaction. Thus, there was no taxable income by assessee and therefore, the assessee has no reason to file his return of income. The Ld. AR for the assessee submits that he has also filed evidence on various cash receipt on different dates, as per details filed by assessee on pages 16-17. The Ld. AR for the assessee submits that there is no direction of issuin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chikoo tress in agriculture holding. The assessee has filed affidavit of contractor / persons who have received the agricultural produce before the lower authorities. The Lower authorities have not exercised their power to examine such persons under section 131 nor directed the assessee to produce such persons for verification of facts or for their cross-examination. No physical verification of mango trees and chikoo trees or other agricultural produce was conducted. I am conscious of the fact that case of assessee was related to assessment year 2007-08 and the Ld. CIT(A) passed the appellate order on 20.12.2017. However, from number of trees the estimation of yields of fruits could be easily got estimated. No such exercise was conducted before making any enhancement. The Ld. CIT(A) relied on the pattern of cash deposits by taking view that there was substantial fluctuation instead of examining the fact that agricultural produce depends on various factors like weather, wind temperature in the season or natural calamities etc. In absence of adverse evidence against furnishing by assessee, Ld. CIT(A) was not justified in making enhancement. Therefore, I direct to set-aside the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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