TMI Blog2023 (8) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Loan amount from repayment from relatives - As assessee failed to disclose the name of relative who have allegedly repaid the loan amount to assessee by way of cheque. In absence of discharge of primary onus in disclosing the identity and genuineness of transaction, the assessee has not eligible for deleting the addition, accordingly, we uphold the same. In the result, ground related to the credit entry are confirmed. Levy of penalty u/s 271(1)(c) on various additions made in the assessment order - Considering the fact that substantial addition is deleted, therefore, penalty is also deleted. In the result, the grounds of appeal raised in this appeal are allowed. In the result, this appeal of assessee is allowed. - SHRI PAWAN SINGH, JUDICIAL MEMBER For the Appellant : Shri Darshit J Naik, CA Shri Jairaj M Naik, CA For the Respondent : Shri Vinod Kumar, Sr. DR Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. These two appeals by the assessee are directed against the separate orders of learned Commissioner of Income Tax (Appeals)-13, Ahmedabad, (in short, the ld. CIT(A)) dated 23/06/2022 and 16/12/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arious reasons and on different grounds, the appellate order passed by the Pr.CIT is bad in facts of the case and law on the subject matter and requires to be cancelled. 8. The above Grounds of Appeal are without prejudice to and are independent of each other. 9. Your Appellant craves, lave to amend, alter, delete and/or add to foregoing grounds of appeal any time before the appeal is decided. 2. Brief facts of the case are that case of assessee was reopened under section 147 of the Act on the basis of information that the assessee has made a cash deposit in her savings bank account during the Financial Year (FY) 2011-12 pertaining to A.Y. 2012-13. As no return of income was filed by the assessee for the A.Y. 2012-13, the Assessing Officer issued a query letter dated 31/01/2017 to furnish explanation regarding cash deposit. The Assessing Officer recorded that no response was made by the assessee. The Assessing Officer recorded the reasons of re-opening and formed his belief that he has reason to believe that income of assessee has escaped assessment within the meaning of Section 147 of the Act. Notice under Section 148 was issued to the assessee on 30/03/2017. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losed as the assessee was out of India. No one was there to collect the assessment order and to inform the assessee. One day, watchman of the society noted that a number of notices and papers were stuck in the door and then informed the some of the assessees relative Shri Hitendrabhai who is caretaker of assessee. Hitendrabhai collected the assessment order and demand notice, who immediately informed the assessee, the assessee then took necessary step to filed. The assessee further explained that the cash deposit in her bank account in Axis bank were actually received as a sale proceed from buyers of five plots of rural agricultural land belonging to her at Sandalpore, Tehsil- Jalalpore, Navsari. The sale consideration of these agricultural lands were paid in cash. Such fact is mentioned in the sale deeds. The ex parte order was passed by the Assessing officer, therefore, the assessee was not in a position to explain such fact before the Assessing officer. The assessee explained that her case is opened second time again vide notice dated 30/03/2019. On the allegation that rural farm lands does not fall within the definition of capital asset . In such proceedings, the assessee ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 01/11/2011 to 12/11/2011. No cash deposit in her bank account during her first visit. Only Rs. 3,92,000/- was deposited during her second visit in eight transactions of Rs. 49,000/- each. The assessee was unable to explain such event. Even after leaving India, cash was continued to be deposited. On the basis of such observation, the ld. CIT(A) held that the assessee failed to prove beyond doubt the nexus between the cash deposits and the sale proceed of agricultural land. No evidence is filed to suggest that sale consideration received in July is the same cash amount deposited in bank account after a long period. It is inexplicable that the assessee had cash amount in her hand and left for USA without securing the safety of that amount by depositing in the bank and confirmed the addition of cash deposit. 7. On the addition of Rs. 3,38,000/-, the ld. CIT(A) recorded that as per contention of assessee, it was repayment of loan given to relative. The ld. CIT(A) recorded that no details of persons like identity of person, year of transaction, timing of loan are provided by the assessee. The name of person is not reflected in the bank statement which does not support the explan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agricultural land at Khata No. 242, Block No. 119 26/07/2011 2,36,500 3. Agricultural land at Khata No. 395, Block No. 117 26/07/2011 10,23,500 4. Agricultural land at Khata No. 125, Block No. 111 26/07/2011 3,92,000 5. Agricultural land at Khata No. 410, Block No. 63 26/07/2011 1,39,000 Total 27,75,200 9. Before the Assessing Officer, the assessee could not explain the fact as no reopening notice or any other notice was served upon the assessee. The assessee came to know about passing of assessment order from his care taker who was informed by the security guard where the assessee owned some residential unit where certain notices were found stuck under the door. Before the ld. CIT(A), the assessee explained the entire facts and circumstances leading to deposits of cash in her bank account. The ld. CIT(A) doubted the transaction of cash deposit on her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of November to February, 2011. In absence of credible explanation, the contention of assessee is not acceptable. On the addition of Rs. 3.38 lacs, the ld. Sr. DR submits that the assessee had failed to discharge her onus in providing identity of the persons, mode of transactions and time of loan given by assessee. Unless, the assessee discharged he primary onus, the assessee cannot take a plea that no adverse evidence was brought on record. The onus to prove the identity of person was on the assessee, the assessee failed to discharge such onus. 12. I have considered the submissions of both the parties and have gone through the orders of the lower authorities carefully. There is no dispute that during the relevant financial year, the assessee sold five piece of agricultural land. The sale consideration is also not in dispute. Admittedly, the assessee received Rs. 27,75,200/- on account of such sale consideration. The entire sale consideration was received in cash, which is duly reflected in the sale deeds. The assessing officer added entire amount for the want of reply from assessee. As recorded above that before ld CIT(A), explained all the facts, including the circumstances tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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