Maria Helena De Souza, Goa vs Assessee

Ms.Maria Helena De Souza, बनाम/ Income Tax Officer-19(3)(3), House No.120, Mumbai.

Vs. Velsao, PO Cancaulim, Goa-403712 (अपीलाथ /Appellant) .. ( यथ / Respondent)

थायी ले ख ा सं . /जीआइआर सं . /PAN/GIR No. :AAHPD5315Q

अपीलाथ ओर से / Assessees by Shri Mehul Shah

यथ क ओर से/Revenue by Shri Akhilendra Yadav

सन ु वाई क तार ख / Date of Hearing : 27.11.2014 घोषणा क तार ख /Date of Pronouncement : 14 .01.2015

आदे श / O R D E R

PER AMIT SHUKLA, (JM)

The aforesaid appeals which are arising out of orders dated

14.1.2010 and 16.12.2011 passed by the ld. CIT(A)-30, Mumbai for

the assessment years 2006-07 and 2007-08 respectively, had

already been decided by the Tribunal vide order dated 12.10.2010.

However, certain grounds inadvertently were left to be adjudicated

by the Tribunal, therefore, on the application filed by the assessee,

the Tribunal recalled the order vide order dated 24.5.2013, only for

the limited purposes of adjudicating ground no. 3 for the assessment I.T.A. No.2649/Mum/2010 2 & 703/M/2012

year 2006-07 and grounds Nos. 3 and 4 for the assessment year

2007-08.

2. Since Ground No.1 and 2 for the assessment years 2006-07

and 2007-08, has already been decided by the Tribunal, therefore,

we are adjudicating only the issue arising out of ground nos. 3 and 4

in both the appeals. Ground No.3, which is common for both the

years under consideration, is that the, ld. CIT(A) has erred in law and

in fact in deleting the addition of Rs.15,000/- which was claimed to

be out of agricultural income. The assessee in the return of income

has claimed agricultural income of Rs.15,000/- which has been added

by the AO on the ground that the assessee has not given any proof

with regard to the earning of this income and no documentary

evidence have been filed with respect to the land on which the said

agricultural produce has been grown. Before the AO, the assessee

submitted that the assessee had sold coconuts grown from her

residential property and therefore, it was claimed under the head

"agricultural Income". Since the assessee could not submit any

proof, it was admitted by the assessee that the same may be added

to the income of the assessee, as the assessee's income was below

taxable limit even after the addition. This has been confirmed by the

ld.CIT(A) also.

I.T.A. No.2649/Mum/2010 3 & 703/M/2012

3. Before us, the ld. counsel for the assessee submitted that the

assessee was growing saplings of coconut in pots from her

residential house without any usage of agricultural land. These

coconuts saplings have been sold, on which the income has been

earned. Since, the assessee's income was below taxable limit, it was

offered as income. However, looking to the smallness of the amount,

the agricultural income should be accepted.

4. After hearing both the parties, we find that there is no proof or

evidence has been filed either before us or before the authorities

below to show that the assessee was carrying out some agricultural

activity of coconut sapling and selling the same. No records in this

regard has been maintained. When assessee is claiming any income

being exempt, then onus is upon the assessee to prove. In absence

of any such evidence, we hold that the agricultural income has rightly

been added to the total income of the assessee. Accordingly, ground

No.3 for the assessment years 2006-07 and 2007-08 is decided

against the assessee.

5. The assessee, in the ground no.4 of the appeal for assessment

year 2007-08 has challenged the addition of Rs.2,42,670/-, which

was on account of sale of personal effects. The AO on perusal of the

bank summary of ICICI Bank noted that the assessee has deposited I.T.A. No.2649/Mum/2010 4 & 703/M/2012

a sum of Rs.2,42,670/- in the bank account which was stated to be

on account of sale of house hold items. The list of house hold items

have been incorporated given by the AO at page 4 of the

assessment order. The case of the assessee was that along with the

sale of house, the assessee has also sold house-hold items as the

assessee was shifting from Bombay to Goa, therefore, the sale

proceeds of household items cannot be added to the income of the

assessee as the personal effects cannot be taxed. The ld. CIT(A)

confirmed the said addition on the ground that the assessee could

not furnish the details of any household items earlier and no proof

has been given that the amount deposited was out of sale proceeds

of house hold items. Accordingly, he confirmed the addition of

Rs.2,42,670/-.

6. Before us, the ld. counsel submitted that household items have

been sold to four persons from whom the assessee has received the

payment in cheques and after a lapse of so much time, the assessee

was not able to submit any proof of sale of the household items.

Since household items are in the nature of personal effects,

therefore, the same is excluded from the definition of 'capital assets"

as given in section 2(14) of the Act. Looking into facts and

circumstances of the case, no addition is called for.

I.T.A. No.2649/Mum/2010 5 & 703/M/2012

7. On the other hand, the ld. DR strongly relied upon the orders of

authorities below and submitted that there should be some prima

facie evidence to show that the assessee has received money from

the sale of house hold items and once no proof has been given, then

presumption is that the deposit has been made out of undisclosed

income.

8. After carefully considering the rival submissions and also on

perusal of the relevant findings of the authorities below, we find that

the assessee has given the entire list of house-hold items which has

been sold at the time of selling of her house. It has been stated

before us by the ld. counsel that, the amount from such sale

proceeds have been received through account payee cheques.

However, the assessee has failed to furnish any confirmation from

the persons who had bought such household items. If the items have

been sold and amount have been received through account payee

cheques, then the assessee could have furnished the confirmation

letter from the said persons in support of her contention. Therefore,

in the interest of justice and fair play, we feel that this matter should

be restored back to the file of the AO, to verify, whether the payment

has been received through cheques and if so, then the assessee

should be required to furnish confirmation from the persons who has

bought the household items or can produce any other evidence to I.T.A. No.2649/Mum/2010 6 & 703/M/2012

show that sale proceeds was mostly on account of selling of

household items. We direct the assessee to furnish necessary

evidence before the AO and in case no such evidence is filed, then

AO is free to draw adverse inference. With this remark, ground No.4

is treated as allowed for statistical purposes.

9. In the result, both eh appeals are allowed for statistical

purpose.

The above order was pronounced in the open court on 14th Jan, 2015.

घोषणा खल ु े यायालय म दनांकः Jan, 2015 को क गई ।

sd sd (डी. क णाकर राव/D. KARUNAKAR RAO) (अ मत शु ला / AMIT SHUKLA) लेखा सद य / ACCOUNTANT MEMBER या यक सद य / JUDICIAL MEMBER मुंबई Mumbai: 14th Jan,2015.

व. न.स./ SRL , Sr. PS

आदे श क त ल प अ े षत/Copy of the Order forwarded to :

1. अपीलाथ / The Appellant

2. यथ / The Respondent.

3. आयकर आयु त(अपील) / The CIT(A)- concerned

4. आयकर आयु त / CIT concerned

5. वभागीय त न ध, आयकर अपील य अ धकरण, मंब ु ई/ DR, ITAT, Mumbai concerned

6. गाड फाईल / Guard file.

आदे शानुसार/ BY ORDER,

true copy सहायक पंजीकार (Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई /ITAT, Mumbai