Vimla Devi Sharma, Agra V. I.T.O.-2(4), Agra

CO 33/AGR/2010

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6023 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 15-07-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 29-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 03-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 62/AGRA/2010 ASSTT. YEAR : 2004-05 INCOME-TAX OFFICER, VS. SMT. VIMLA DEVI SHARMA , 2(4), AGRA. 10-A, SAKET COLONY, SHAHGANJ, AGRA. (PAN : AUWPS 9822 N) C.O. NO.33/AGRA/2010 (IN ITA NO. 62/AGRA/2010) ASSTT. YEAR : 2004-05 SMT. VIMLA DEVI SHARMA, VS. INCOME-TAX OFFICER, 10-A, SAKET COLONY, 2(4), AGRA. SHAHGANJ, AGRA. (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI VINOD KUMAR, JR. D.R. FOR ASSESSEE : NONE ORDER PER P.K. BANSAL, A.M. : THE APPEAL AS WELL AS CROSS OBJECTION HAS BEEN FI LED AGAINST THE ORDER OF CIT(A) DATED 16.12.2009. THE ONLY ISSUE INVOLVED IN THIS APPEAL OF THE REVENUE RELATES TO THE DELETION OF ADDITION OF RS.9,91,863/- TREATED BY THE ASSESSING OFFICER AS INCOME FROM OTHER SOURCES CLAIMED TO BE THE AGRICULTURAL INCOME. NONE APPEARED ON BEH ALF OF THE ASSESSEE EVEN THOUGH THE NOTICE WAS SENT THROUGH REGISTERED A/D. WE, THEREFORE, DEC IDED TO DISPOSE OF THE APPEAL AND CROSS OBJECTION AFTER HEARING THE LEARNED DR. 2 2. THE BRIEF FACTS RELEVANT TO THIS GROUND ARE THAT THE ASSESSEE HAS SHOWN AGRICULTURAL INCOME AT RS.9,91,863/- DURING THE YEAR UNDER CONSIDERATIO N CLAIMING THAT THE ASSESSEE WAS HOLDING AGRICULTURAL LAND MEASURING 185 BIGHAS OUT OF WHICH 37 BIGHAS ARE OWNED BY THE APPELLANT AND 148 BIGHAS WERE TAKEN ON RENT BASIS. SIX AGREEMENTS FOR THE LAND TAKEN ON RENT WERE FILED BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS EX AMINED EACH OF THE LAND. THE ASSESSEE HAS SHOWN RS.5,84,025/- TO BE THE NET INCOME ON 36 BIGH AS OF LAND WHICH THE ASSESSEE HAS TAKEN ON LEASE @ RS.1500/- PER BIGHA FROM SHRI SHIV CHARAN L AL SHARMA, SHRI CHOB SINGH SHARMA AND SHRI RAMESH CHAND SHARMA. THE ASSESSING OFFICER ASK ED THE EVIDENCE FOR THE SALE OF THE AGRICULTURAL PRODUCED. IT WAS STATED THAT THE ENTIR E PRODUCE WAS SOLD LOCALLY WHILE THE LAND WAS SITUATED AT 4 DIFFERENT LOCALITIES. THE ASSESSING O FFICER TREATED THE SUM OF RS.5,84,025/- AS INCOME FROM OTHER SOURCES. SIMILARLY, THE INCOME OF RS.92,043/- WAS SHOWN ON 17.5 BIGHAS OF LAND FROM SHRI HET SINGH AT THE RATE OF RS.1500/- P ER BIGHA. IT WAS ALSO CONTENDED THAT THE AGRICULTURAL PRODUCED WAS SOLD LOCALLY. THE ASSESSI NG OFFICER TREATED IT FROM OTHER SOURCES. THE SUM OF RS.1,19,743/- WAS CLAIMED AS AGRICULTURAL IN COME FROM 22.5 BIGHAS OF LAND TAKEN FROM LATE SHRI GANGADIN. THIS LAND WAS SITUATED IN A DIF FERENT DIRECTION. THE ASSESSEE CLAIMED THAT THE PRODUCE WAS SOLD LOCALLY. THE ASSESSING OFFICER TRE ATED THE SAID INCOME ALSO TO BE THE INCOME FROM OTHER SOURCES. THE ASSESSEE HAS PURCHASED THE LAND AS INFERTILE, BUT THE ASSESSEE CLAIMED THAT THIS 37 BIGHAS OF LAND WAS CULTIVATED BY HIM BY IMP ROVING THE QUALITY OF LAND BY MIXING UREA ETC., ON WHICH THE ASSESSEE CLAIMED AGRICULTURAL IN COME OF RS.1,96,052/-. THE ASSESSING OFFICER TREATED THIS INCOME ALSO TO BE THE INCOME FROM OTHE R SOURCES. WHEN THE MATTER WENT BEFORE THE CIT(A), THE CIT(A) DIRECTED THE ASSESSING OFFICER T O TREAT THE SAID INCOME TO BE THE AGRICULTURAL INCOME BY HOLDING AS UNDER : 3 2.9. I HAVE CONSIDERED THE RELEVANT FACTS AND THE RIVAL CONTENTIONS AND FIND THAT THE IMPUGNED ADDITION OF RS.9,91,863/- IS NOT SUSTA INABLE FOR THE FOLLOWING REASONS : THERE IS NO MATERIAL ON RECORD TO CONTROVERT THE LA ND RENT AGREEMENT OF THE APPELLANT. THE AO HAS CARRIED OUT INDEPENDENT VERIF ICATION WITH THE OWNERS OF THE LANDS TAKEN ON RENT BY THE APPELLANT, WHO HAVE FURN ISHED REQUISITE EVIDENCE OF THEIR OWNERSHIP OF THE IMPUGNED LANDS AND AFFIRMED THE RENT AGREEMENTS. THE SUPERVISOR KOMAL SINGH WHO WAS EXAMINED BY THE AO ON 27.03.2006 AFFIRMED HIS SUPERVISION OF THE APPELLANTS AGRICUL TURAL ACTIVITIES. THE AO ISSUED REQUISITIONS U/S. 133(6) OF THE ACT T O THE CONCERNED TEHSILDARS OF THE LANDS UNDER CULTIVATION BY THE APPELLANT. HOWEV ER, AS THE ASSESSMENT WAS GETTING TIME BARRED ON 31.03.2006, THE IMPUGNED ORD ER WAS PASSED ON 28.03.2006. ONE REPLY OF TEHSILDAR ROOPWAS WAS RECE IVED ON 27.03.2006, I.E., ONE DAY BEFORE PASSING THE IMPUGNED ASSESSMENT ORDE R AND THE REPLIES OF TEHSILDAR BAH AND TEHSILDAR BAYANA WERE RECEIVED ON 03.04.2006 AND 10.04.2006 RESPECTIVELY I.E. AFTER PASSING THE ASSE SSMENT ORDER. THEREFORE, EVIDENTLY, THE AO COULD NOT CONSIDER THE INFORMATIO N/MATERIAL FURNISHED BY THE LAND-REVENUE AUTHORITIES. THE PRESENT AO CARRIED OUT SPOT VERIFICATION THROUG H THE CONCERNED INSPECTOR OF INCOME-TAX WHO HAS VIDE REPORT DATED 27.11.2009 CON FIRMED THAT EVEN AT PRESENT THE APPELLANT IS CARRYING ON AGRICULTURE ON A LARGE -SCALE. THE APPELLANT HAD FURNISHED DETAILS OF GROSS RECEIP TS, EXPENSES AND NET INCOME IN RESPECT OF EACH LAND VIDE LETTER DATED 20.02.2006 S UBMITTED IN THE COURSE OF ASSESSMENT PROCEEDINGS. THE SAME IS SUMMARIZED AS U NDER : DETAILS OF AGRICULTURAL INCOME & EXPENDITURE (PLACE WISE) (A) PRODUCE ON AGRICULTURE LAND AT GRAM, PASONDA S.NO. PRODUCE TOTAL INCOME EXPENSES NET INCOME 1. SARSO 672000.00 246050.00 425950 2 BAJRA 84360.00 68970.00 15390.00 KARVI 47500.00 - 47500.00 (BY PRODUCT OF BAJRA) 3 WHEAT 230750.00 185440.00 45310.00 BHUSA 49875.00 - 49875.00 (BY PRODUCT OF BAJRA) T O T A L (A) 1084485.00 500460.00 584025.00 (B) PRODUCE ON AGRICULTURE LAND AT VILLAGE PHULACHI DISTT. FIROZABAD. S.NO. PRODUCE TOTAL INCOME EXPENSES NET INCOME 1. SARSO 96000.00 35150.00 60850.00 2 BAJRA 16650.00 13612.00 3038.00 KARVI 9380.00 - 9380.00 (BY PRODUCT OF BAJRA) 4 3 WHEAT 45500.00 36600.00 8900.00 BHUSA 9875.00 - 9875.00 (BY PRODUCT OF BAJRA) T O T A L (B) 177405.00 85362.00 92043.00 (C) PRODUCE ON AGRICULTURE LAND AT VILLAGE RAMPUR CHANDRASAINI S.NO. PRODUCE TOTAL INCOME EXPENSES NET INCOME 1. SARSO 96000.00 35150.00 60850.00 2 BAJRA 9990.00 8167.00 1823.00 KARVI 5620.00 - 5620.00 (BY PRODUCT OF BAJRA) 3 WHEAT 27300.00 21960.00 5340.00 BHUSA 6000.00 - 6000.00 (BY PRODUCT OF BAJRA) 4. ASARU WHEAT 62400.00 39040.00 23360.00 BHUSA 16750.00 - 16750.00 (BYE PRODUCT OF WHEAT) T O T A L (C) 224060.00 104317.00 119743.00 (D) PRODUCE ON AGRICULTURE LAND AT VILLAGE BAHERA (BAYANA) S.NO. PRODUCE TOTAL INCOME EXPENSES NET INCOME 1. SARSO 96000.00 35150.00 60850.00 2 ASARU WHEAT 210600.00 131760.00 78840.00 BHUSA 56362.00 - 56362.00 (BY PRODUCT OF WHEAT) T O T A L (D) 362962.00 166910.00 196052.00 GRAND TOTAL 1848912.00 857049.00 991863.00 100% 46.35% 53.65% THERE ARE NO EVIDENCE OR MATERIAL ON RECORD OR REAS ONS TO SHOW THAT THE INCOME AS SHOWN ABOVE IS EXCESSIVE OR UNREASONABLE. 2.10. IN VIEW OF THE FOREGOING, I HOLD THAT THE ADD ITION OF AGRICULTURAL INCOME OF RS.9,91,863/- (RS.5,84,025 + RS.9203 + RS.1,19,743 + RS.1,96,052) TREATED AS INCOME FROM OTHER SOURCES IS NOT TENABLE. HENCE, THE AO I S DIRECTED TO ADOPT AGRICULTURAL INCOME AS PER RETURN. 3. WE HAVE HEARD THE LEARNED DR AND CAREFULLY CONSI DERED THE SUBMISSIONS MADE BY HIM. WE NOTED THAT THE ASSESSEE HAS SHOWN AGRICULTURAL I NCOME TO THE EXTENT OF RS.9,91,863/- WHICH WAS TREATED BY THE ASSESSING OFFICER AS INCOME FROM OTHER SOURCES. THE ASSESSEE CLAIMED THAT HE 5 HAS TAKEN 148 BIGHAS OF LAND ON RENTAL BASIS WHILE 37 BIGHAS OF LAND WAS OWNED BY THE ASSESSEE. WE NOTED FROM THE PROVISIONS OF SECTION 156 OF THE UTTAR PRADESH JAMIDARI ABOLITION ACT, 1951 THAT IN UTTAR PRADESH, NO BHUMIDHAR CAN LET OUT THE LAND EXCEPT IN THE CASES AS PROVIDED IN SECTION 157 OR TO A RECOGNIZED EDUCATIONAL INSTITUT ION FOR THE PURPOSE CONNECTED WITH THE INSTITUTION OF AGRICULTURE, HORTICULTURE AND ANIMAL HUSBANDRY. SECTION 165 OF THE U.P. Z.A. ACT CLEARLY STATES THAT ANY SUCH LEASE SHALL BE VOID AN D THE LAND IN VIEW OF SECTION 167 SHALL VEST WITH THE GOVERNMENT. SIMILARLY, AS PER SECTION 157 OF TH E U.P. Z.A. ACT, 1951, THE LAND IN EXCESS OF 12.5 ACRES CANNOT BE TAKEN BY A BHUMIDHAR. IN CASE, THE LAND IN EXCESS OF 12.5 ACRES IS TAKEN BY A PERSON, THE LAND WILL VEST WITH THE GOVERNMENT. THE SE PROVISIONS, IN OUR OPINION, WOULD HAVE BEARING IN DETERMINING WHETHER THE AGREEMENTS ENTER ED INTO BY THE ASSESSEE FOR TAKING THE LAND ON LEASE ARE GENUINE OR NOT. THESE PROVISIONS HAVE NOT BEEN CONSIDERED BY THE AUTHORITIES BELOW. WE, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO THE ASSESSING OFFI CER WITH THE DIRECTIONS THAT THE ASSESSING OFFICER SHALL RE-DECIDE THIS ISSUE AFTER TAKING INT O ACCOUNT THE RELEVANT PROVISIONS OF U.P. Z.A. ACT, 1951 AND ASCERTAIN WHETHER THE AGREEMENTS FOR TAKING THE LANDS ON RENT ARE GENUINE OR NOT AND SHALL RE-DECIDE THE ISSUE IN ACCORDANCE WITH LA W. 4. THE ASSESSEE WAS OWNING ONLY 37 BIGHAS OF LAND. THE INCOME, WHICH HAS BEEN DERIVED FROM THIS LAND, IN OUR OPINION, CAN BE REGARDED TO BE THE AGRICULTURAL INCOME. THE ASSESSEE HAS SHOWN AN INCOME OF RS.1,96,052/- FROM SUCH LAND. TO THIS EXTENT, WE CONFIRM THE ORDER OF THE CIT(A). THUS, THE GROUND TAKEN BY THE REVENUE IS AL LOWED PARTLY FOR STATISTICAL PURPOSES. 6 5. THE CROSS OBJECTION FILED BY THE ASSESSEE IS SUP PORTIVE TO THE ORDER OF THE CIT(A). SINCE WE HAVE ALREADY PARTLY ALLOWED THE GROUND TAKEN BY THE REVENUE FOR STATISTICAL PURPOSE, THEREFORE, THE GROUND TAKEN IN THE CROSS OBJECTION HAS BECOME INFRUCTUOUS AND DOES NOT REQUIRE ANY ADJUDICATION. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED PARTLY FOR STATISTICAL PURPOSES WHILE THE CROSS OBJECTION OF THE ASSESSEE STANDS DI SMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 15.07.11 . SD/- SD/- (H.S. SIDHU) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 15 TH JULY, 2011 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY