IN INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .No.-4881/Del/2015 (ASSESSMENT YEAR-2010-11) Niranjan Singh, vs ITO, C/o-Prem Prakash, Advocate, Ward-2, 183/2, North Civil Lines, Muzaffarnagar. Roorkee. PAN-AGZPS8125M (APPELLANT) (RESPONDENT) Appellant by Sh. Prem Prakash, Adv. Respondent by Ms. Anima Baranwal, Sr.DR Date of Hearing 03.08.2016 Date of Pronouncement 21 .09.2016 ORDER In present appeal filed by assessee assailing correctness of order dated 20.03.2015 of CIT(A), Dehradun pertaining to 2010-11 assessment year, Registry has pointed out delay of 44 days. 2. Ld.AR addressing delay submitted that assessee remained ailing during 10.06.2015 to 24.07.2015 on account of Viral Hepatitis and was advised bed rest as such delay has occurred for reasons beyond his control. Reliance was placed upon medical certificate of Dr. Satish Chandra Gupta supported by affidavit of assessee filed in support of petition praying for condonation of delay. Ld. Sr.DR considering material available on record and petition submitted that she has no objection if delay is condoned and issue is decided on basis of material on record. Page 1 of 5 I.T.A .No.-4881/Del/2015 2.1. Accordingly in light of submissions of parties before Bench and considering material on record delay is condoned. Ordered accordingly. 3. Addressing grounds raised, Ld. AR submitted that he would not be arguing Ground No. 3 raised in present appeal. said ground is dismissed as not pressed. Noting to this effect has been given by Ld.AR on Grounds filed. remaining two grounds read as under:- 1. Ld.CIT(A) was wrong in confirming addition of Rs.14,10,300.00 without any base. 2. Ld.CIT(A) was wring in confirming addition of Rs.11,27,400.00 without any base. 3.1. relevant facts of case are that assessee declared income of Rs.1,79,104/-. said return was selected for scrutiny through CASS and assessee was required to explain cash deposits in his SBI, IIT Roorkee Branch totaling Rs.14,10,300/- and cash deposits in SBI, IDO Branch totaling Rs.11,27,400/-. assessee submitted in regard to deposits in SBI, IIT Roorkee Branch that these represented sale proceeds of poplar trees supported by copy of Khasra and Khatouni. AO required assessee to produce persons who purchased poplar trees for verification. Summons were also issued to said persons under section 131 of I.T.Act, 1961, however received back with postal remark that talash karne par nahi mila . issue travelled in appeal before First Appellate Authority. perusal of arguments recorded in para 8 shows that assessee has sought permission to produce fresh evidence of contractors who purchased poplar trees. CIT(A) considers that since these were not filed before AO they could not now be accepted. For ready- reference, arguments of assessee before CIT(A) are extracted hereunder:- Page 2 of 5 I.T.A .No.-4881/Del/2015 6. assessee produced copy of receipt of transaction alongwith ID proof, affidavit from contractors and copy of certified ledgers in confirmation of claim of assessee. He also submitted that he was ready to produce all three contractors for their statements before undersigned for confirmation of affidavits. assessee had deposited Rs.13,39,570/ in SB A/c out of sale proceeds of tress which were owned by all family members and assessee did not have any malafide intention to deposit same. assessee also produced copy of Khasras & Khataunis of family's agricultural land in support of his trees. With regard to addition of Rs.1,40,455/-, it was submitted that there was no such difference in Form 26AS. difference was as below:- A) Figure as per Form 26AS Rs.4,19,555/- B) Figure as per Form 16 Rs.2,38,861/- Difference Rs.90,694/- 7. copy of Form 16 was submitted and it was submitted that difference on account of interest received on deposits with Bank of Baroda and State Bank of India u/s j 194A. It was further submitted that tax of Rs.10,814/- had been deducted on this basis already. With regard to interest of Rs.18,804/-, it was submitted that sum of Rs.8,000/- had already been shown as interest in his Form 16, hence only balance should be added back. 3.2. Considering these additions were sustained holding as under:- 8. I have perused documents submitted by assessee. It is seen that all affidavits have been recently sworn and all receipts been prepared for lump sum amount i.e. these receipts are not for actual payment of money tree wise but documents prepared well afterwards, testifying lump sum amount. More over, as A.O. had no occasion to see them, they cannot be admitted as evidence at this stage. It is seen that assessee had filed Khasra & Khatauni before A.O. which revealed that he was joint owner of 4.25 hectares of land in village Mishri, Tehsil Maur, Distt. Mathura which was growing wheat, mangoes and other trees. It was also observed that he had submitted that he had equal part in that Khasra alongwith other 10 co-owners. assessee had also submitted before A.O. that he had 5 bighas of agricultural land and 5 bighas were there in name of his mother. His mother has also submitted affidavit that her son looked after her land. However, by themselves these do not constitute evidence that assessee had derived income that he claims to have derived from sale of Poplar trees. Had assessee produced contemporary Khasra where trees were found to be absent, it could have been assumed that money in bank account came from their sale. However, since no such document has been produced, it cannot be assumed that khasra of fasli varsh 1419 (Calendar year 2004 AD) can prove deposits of money into accounts of assessee in 2009. It had been submitted that assessee had sold 1260 Poplar trees and other trees with cash crop and received in total Rs.13.5 lakhs in this regard. However, no evidence has been produced before undersigned or A.O. that could actually prove fact that assessee Page 3 of 5 I.T.A .No.-4881/Del/2015 had earned income from sale of trees. It is observed that Bank pass books or ITRs of contractors which could have proved their capacity to make payments to him have not been produced In circumstances, this ground of assessee is disallowed and addition confirmed. 4. Addressing same, Ld. AR submitted that he would seek permission to file fresh evidence as for want of contemporaneous evidence addition has been sustained as far as Ground No.1 is concerned. Addressing Ground No.2 it was submitted miscellaneous petition u/s 154 is pending before CIT(A) on account of fact that arguments in regard to said Ground have not been recorded in order itself wherein assessee has stated on basis of documents placed at serial No. 17 which is reply of bank at pages 22 to 26 of Paper Book supported by copy of bank statement at serial No. 18 that infact in said bank account of SBI IDO Branch there were infact no deposits at all. 5. Ld.Sr.DR relies upon orders of tax authorities. 6. I have heard rival submissions and perused material available on record. Considering same, I am of view that in peculiar facts and circumstances of case and considering arguments of parties before Bench, it is considered appropriate to set aside these issues back to file of Assessing Officer permitting assessee to file fresh evidence in support of its claim. contemporaneous evidence in support of ownership of poplar trees on lands of assessee is directed to be filed. general arguments of ownership and co-ownership of lands having mango trees etc. does not address claim put forth namely sale of poplar trees owned by assessee. Qua issue addressed in Ground No.2 Assessing Officer is directed to verify whether there were any deposits in year under consideration in specific said bank Page 4 of 5 I.T.A .No.-4881/Del/2015 account in SBI IDO Branch. assessee states that bank account is his however cash deposits therein is disputed. 6.1. Accordingly impugned order is set aside and issue is restored back to file of Assessing Officer with direction to pass speaking order in accordance with law after giving assessee reasonable opportunity of being heard. It is made clear that opportunity so provided in good faith, it is hoped is not abused by assessee as failing which AO would be at liberty to pass speaking order on basis of material available on record. 7. In result, appeal of assessee is allowed for statistical purposes. order is pronounced in open court on 21st September, 2016. Sd/- (DIVA SINGH) JUDICIAL MEMBER Amit Kumar Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI Page 5 of 5 Niranjan Singh v. ITO, Ward-2, Roorkee