Shri Vithalbhai R.Patel, Nadiad V. The Income tax Officer,Ward-2, Nadiad

ITA 1044/AHD/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94303 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 11-08-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 06-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C MISHRA
• Keywords: Business income; Depreciation; Income from undisclosed sources; Reassessment proceedings
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (BEFORE SHRI RAJPAL YADAV, J.M & SHRI ANIL CHATURVE DI, A.M.) I.T. A. NOS. 1043 & 1044/AHD/2010 (ASSESSMENT YEARS: 2003-04 & 2004-05) VITHALBHAI R. PATEL PROP. OF PATEL EXPORT CO. DABHAN BHAGOL, NADIAD V/S DEPUTY COMMISSIONER OF INCOME TAX KHEDA, CIRCLE- NADIAD (APPELLANT) (RESPONDENT) PAN: ADOPP1428N APPELLANT BY : MS. URVASHI SHODHAN, A.R. RESPONDENT BY : SHRI D.C. MISHRA, SR. D.R. ( )/ ORDER DATE OF HEARING : 11-08-2015 DATE OF PRONOUNCEMENT : 28 -08-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THESE 2 APPEALS FILED BY THE ASSESSEE ARE AGAINST T HE ORDERS OF CIT(A)-IV, BARODA DATED 20.01.2010 FOR A.YS. 2003-04 & 2004-05 RESPECTIVELY. 2. BEFORE US, AT THE OUTSET, LD. A.R. SUBMITTED THAT T HERE ARE 2 APPEALS FILED BY THE ASSESSEE BUT THE ISSUES IN BOTH THE YEARS ARE I DENTICAL EXCEPT FOR THE ASSESSMENT YEARS AND THE AMOUNT INVOLVED AND THAT S HE HAS COMMON SUBMISSIONS TO MAKE AND THEREFORE BOTH THE APPEALS CAN BE DISPOSED OF TOGETHER. LD. D.R. DID NOT OBJECT TO THE AFORESAID SUBMISSIONS OF LD. A.R. WE ITA NOS. 104 3 & 1044/AHD/2010 . A.YS. 2003-0 4 & 2004-05 2 THEREFORE PROCEED TO DISPOSE OF BOTH THE APPEALS BY A CONSOLIDATED ORDER AND PROCEED WITH THE FACTS FOR A.Y. 03-04. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 4. ASSESSEE IS AN INDIVIDUAL AND BY PROFESSION A DOCTO R STATED TO BE HAVING INCOME FROM RENT AND OTHER SOURCES. INITIALLY ASSES SEE FILED RETURN OF INCOME FOR A.Y. 2003-04 SHOWING NET AGRICULTURAL INCOME FO R RATE PURPOSES OF RS. 12,81,686/- AND TOTAL LOSS OF RS. 2,10,843/-. NOTIC E U/S. 148 WAS ISSUED AND THEREAFTER THE ASSESSMENT WAS FRAMED U/S. 143(3) R. W.S. 147 VIDE ORDER DATED 22.12.2006 AND THE TOTAL INCOME WAS DETERMINED AT R S. 9,47,260/-. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED TH E MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 20.01.2010 GRANTED PART IAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF LD. C IT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS FILED THE GROUNDS WHICH HAVE BEEN LATER CONCISED AND THE CONCISED GROUNDS READS AS UNDER:- 1. LD. CIT(A) ERRED IN LAW AND IN FACT IN CONFIRMING T HE VALIDITY OF REASSESSMENT PROCEEDINGS INITIATED U/S 147. 2. LD. CTT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRM ING DISALLOWANCE OF THE EXPENSES OF RS.64365/- CLAIMED IN SARVODAY HOSPITAL WITHOUT CONSIDERING THE FACT THAT THERE IS TEMPORARY FULL PERIOD IN THE BUSINESS DUE TO ILL HE ALTH OF THE APPELLANT. 3. LD. CIT(A) HAS ERRED IN LAW AND IN FACTS CONFIRMING ACTION OF A.O. IN TREATING THE RENTAL INCOME OF RS.256500/- IN M/S. PATEL EXPORT A S INCOME UNDER THE HEAD HOUSE PROPERTY WHICH THE APPELLANT HAS BEEN OFFERING AS B USINESS INCOME IN THE PAST YEARS AND DISALLOW THE EXPENSES OF RS,621441/- WHICH INCL UDES DEPRECIATION OF RS.323473/-. 4. LD. C1T(A) HAS ERRED IN LAW AND IN FACTS CONFIRMING ACTION OF A.O. IN TREATING AGRICULTURE INCOME OF RS.1031686/- AS INCOME FROM O THER SOURCES. ITA NOS. 104 3 & 1044/AHD/2010 . A.YS. 2003-0 4 & 2004-05 3 1 ST GROUND WAS NOT PRESSED AND THEREFORE THE SAME IS D ISMISSED AS NOT PRESSED. 2 ND GROUND IS WITH RESPECT TO DISALLOWANCE OF EXPENSES OF RS. 64,365/- 5. ON PERUSING THE PROFIT AND LOSS ACCOUNT, A.O NOTICE D THAT AGAINST THE INTEREST INCOME, RENT INCOME AND DIVIDEND INCOME AG GREGATING TO RS. 2,09,305/-, ASSESSEE HAD CLAIMED EXPENSES OF RS. 64 ,365/- WITH RESPECT TO SARVODAY HOSPITAL. A.O WAS OF THE VIEW THAT SINCE N O BUSINESS ACTIVITY WAS CARRIED OUT IN SARVODAY HOSPITAL, THE EXPENSES CANN OT BE ALLOWED. HE ACCORDINGLY DISALLOWED THE CLAIM OF EXPENSES OF RS. 64,365/- . AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFO RE LD. CIT(A) WHO CONFIRMED THE DISALLOWANCE MADE BY A.O BY HOLDING A S UNDER:- 5.2. I HAVE CONSIDERED THE MATTER. APPELLANT WAS SP ECIFICALLY ASKED REGARDING CARRYING ON OF MEDICAL PROFESSION IN FUTURE YEARS ALONG WITH PR OOF FOR THE SAME. THE APPELLANT COULD NOT ADDUCE ANY EVIDENCE REGARDING THE SAME. THE REN T AGREEMENT WITH HIS WIFE WAS NOT FILED BY THE APPELLANT AT ASSESSMENT STAGE AND THER E IS NO EVIDENCE THAT IT WAS VALID DURING THE YEAR IN QUESTION. RENT FIGURE AS PER THI S AGREEMENT DOES NOT MATCH WITH RENT RECEIPTS OF RS. 1,13,400 IN THE P & L A/C OF SARVOD AY HOSPITAL FOR F.Y.2002-03. IN THE ABSENCE OF PROOF REGARDING CONTINUANCE OF BUSINESS OF SARVODAY HOSPITAL DURING F.Y.2002-03, EXPENSES CLAIMED ARE NOT ADMISSIBLE. D ISALLOWANCE OF EXPENSES OF RS. 64,365/- IS CONFIRMED. 6. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASS ESSEE IS NOW IN APPEAL BEFORE US. 7. BEFORE US, LD. A.R. REITERATED THE SUBMISSIONS MADE BEFORE A.O AND LD. CIT(A) AND FURTHER SUBMITTED THAT DUE TO THE ILL HE ALTH OF THE ASSESSEE, THE ITA NOS. 104 3 & 1044/AHD/2010 . A.YS. 2003-0 4 & 2004-05 4 PROFESSION WAS NOT CARRIED OUT DURING THE YEAR BY T HE ASSESSEE BUT IT WAS NOT A CASE WHERE THE PROFESSION WAS COMPLETELY CLOSED D OWN BUT WAS THE CASE OF TEMPORARY LULL DURING THE PERIOD AND IN SUCH CIRCUM STANCES, THE EXPENSES COULD NOT HAVE BEEN DISALLOWED. THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O AND LD. CIT(A). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO DISALL OWANCE OF EXPENSES CLAIMED WITH RESPECT TO SARVODAY HOSPITAL. IT IS ASSESSEES CONTENTION THAT DURING THE YEAR DUE TO ILL HEALTH OF THE ASSESSEE NO PROFESSIO N WAS CARRIED OUT BY THE ASSESSEE BUT HOWEVER WE FIND THAT LD. CIT(A) WHILE UPHOLDING DISALLOWANCE HAS NOTED THAT ASSESSEE WAS SPECIFICALLY ASKED REGA RDING CARRYING OUT THE MEDICAL PROFESSION IN FUTURE YEARS ALONG WITH THE P ROOF OF THE SAME BUT NO EVIDENCE WAS PLACED BY ASSESSEE BEFORE LD. CIT(A). HE HAS FURTHER NOTED THAT IT WAS SUBMITTED THAT AN AGREEMENT WAS ENTERED BETWEEN ASSESSEE AND SMT. RAMILABEN PATEL, WIFE OF THE ASSESSEE AND AS P ER THE AGREEMENT SMT. RAMILABEN PATEL WAS GIVEN PERMISSION TO KEEP PATIEN TS AT SARVODAY HOSPITAL AT A MONTHLY RENT OF RS. 1200/-. LD. CIT(A) HAS NOT ED THAT THE RENT FIGURES OF THE AGREEMENT ENTERED BY THE ASSESSEE WITH SMT. RAM ILABEN PATEL, HIS WIFE, DID NOT MATCH WITH THE RENT RECEIPTS AS SHOWN IN TH E PROFIT AND LOSS ACCOUNT OF SARVODAY HOSPITALS. BEFORE US, LD. A.R. HAS NOT PLACED ANY MATERIAL ON RECORD TO CONTROVERT THE FINDINGS OF LD. CIT(A) NOR HAS PLACED ANY MATERIAL ON RECORD TO DEMONSTRATE AS TO WHETHER THE BUSINESS WAS CARRIED IN SUBSEQUENT YEARS. IN VIEW OF THESE FACTS, WE FIND N O REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AND THUS THE GROUND OF ASSE SSEE IS DISMISSED. ITA NOS. 104 3 & 1044/AHD/2010 . A.YS. 2003-0 4 & 2004-05 5 3 RD GROUND IS WITH RESPECT TO TREATING THE RENTAL INCO ME AS INCOME FROM HOUSE PROPERTY 9. A.O ON PERUSING THE PROFIT AND LOSS ACCOUNT NOTICED THAT AFTER CLAIMING EXPENSES OF RS. 6,21,641/-, ASSESSEE HAS COMPUTED L OSS OF RS. 2,93,680/-. HE ALSO NOTICED THAT EXPENSES INCLUDED THE CLAIM OF DEPRECIATION TO THE TUNE OF RS. 3,23,473/- AND RS. 32,263/- ON ACCOUNT OF LA ND REVENUE EXPENSES. A.O ALSO NOTICED THAT IN CASE OF PATEL EXPORT COMPA NY, THE PROPRIETORY CONCERN OF THE ASSESSEE, THERE WAS NO EXPORT BUSINE SS DURING THE YEAR. HE WAS THEREFORE OF THE VIEW THAT IN THE ABSENCE OF AN Y BUSINESS, THE QUESTION OF ALLOWING OF EXPENSES DOES NOT ARISE. HE WAS ALSO OF THE VIEW THAT SINCE THE LAND REVENUE EXPENSES BEING RELATED TO AGRICULTURE OPERATIONS THE SAME CANNOT BE ALLOWED WHILE COMPUTING THE INCOME OF THE FIRM. AS FAR AS THE CLAIM OF DEPRECIATION WAS CONCERNED, HE WAS OF THE VIEW THAT SINCE ASSESSEE HAD NOT DONE ANY BUSINESS, DEPRECIATION WAS NOT ALL OWABLE. HE ACCORDINGLY COMPUTED THE INCOME OF PATEL EXPORT COMPANY AT RS. 62,056/- AS AGAINST THE LOSS OF RS. 2,93,680/- CLAIMED BY THE ASSESSEE. AGG RIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO DECIDED THE ISSUE BY HOLDING AS UNDER:- 6.2. I HAVE CAREFULLY CONSIDERED FACTS OF THE CASE AND APPELLANT'S SUBMISSIONS. APPELLANT WAS ASKED AS TO HOW THE ACTIVITY OF LETTING OUT FAC TORY PREMISES CONSTITUTED BUSINESS OF PATEL EXPORTS. APPELLANT COULD NOT GIVE ANY SATISFA CTORY EXPLANATION TO THIS QUERY. THE RENTAL INCOME SHOULD HAVE BEEN ASSESSED UNDER THE H EAD 'INCOME FROM HOUSE PROPERTY' AND NOT UNDER THE HEAD 'BUSINESS'. IN THE PROFIT AN D LOSS ACCOUNT OF PATEL EXPORT CO. FOR F.Y.2002-03, BANK INTEREST OF RS.62,484/-, KASAR VA TAV OF RS.5,027/- AND SHARE DIVIDEND OF RS.3,750/- IS SHOWN ON RECEIPT SIDE, AGAINST WHI CH EXPENSES TOTALING TO RS.6,21,441/- INCLUDING DEPRECIATION OF RS.3,23,473/- IN RESPECT OF ASSETS INCLUDING FACTORY BUILDING, CAR, AIR CONDITIONER, ZEROX MACHINE ETC. IS CLAIMED . IT IS NOT APPELLANT'S CONTENTION THAT ITA NOS. 104 3 & 1044/AHD/2010 . A.YS. 2003-0 4 & 2004-05 6 THE EXPENSES CLAIMED IN THE PROFIT AND LOSS ACCOUNT OF PATEL EXPORT CO. ARE FOR EARNING INCOME OTHER THAN RENTAL INCOME. SINCE THE RENTAL I NCOME IS TO BE ASSESSED UNDER THE HEAD 'HOUSE PROPERTY' IN ACCORDANCE WITH SECTION 23 AND 24, CLAIM OF EXPENSES OF RS.6,21,441/- INCLUDING DEPRECIATION OF RS.3,23,473 /- IS NOT ADMISSIBLE. IT IS DIRECTED THAT THE RENTAL INCOME OF RS.2,56,500/- BE ASSESSED UNDE R THE HEAD HOUSE PROPERTY AND INSTEAD OF DEPRECIATION ALONE, ENTIRE EXPENSES OF R S.6,21,441/-BE DISALLOWED. 10. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US. 11. BEFORE US, LD. A.R. REITERATED THE SUBMISSIONS MADE BEFORE A.O AND LD. CIT(A) AND FURTHER SUBMITTED THAT ASSESSEE HAS EARN ED BUSINESS/PROFESSIONAL INCOME IN THE FORM OF RENT FROM LETTING OUT OF BUSI NESS PREMISES AND HENCE ASSESSEE WAS ELIGIBLE TO CLAIM DEPRECIATION. IT WA S FURTHER SUBMITTED THAT EVEN THOUGH THERE WAS NO EXPORTS DURING THE YEAR, A SSESSEE HAS NOT CLOSED ITS ACTIVITIES AND THAT LD. CIT(A) WAS NOT JUSTIFIE D IN CHANGING THE HEAD OF INCOME FROM BUSINESS TO INCOME FROM HOUSE PROPER TY. THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O AND LD. C IT(A). 12. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT GROUND, ASSESSEE IS AGGRIEVED FOR THE R EASON THAT THE RENTAL INCOME HAS BEEN CONSIDERED AS INCOME FROM HOUSE PR OPERTY INSTEAD OF BUSINESS INCOME AND THEREBY DISALLOWED THE EXPENS ES INCLUDING DEPRECIATION. WE FIND THAT WHILE CHANGING THE HEAD OF INCOME FROM BUSINESS TO INCOME FROM HOUSE PROPERTY, LD. CIT( A) HAS NOTED THAT ASSESSEE WAS ASKED TO JUSTIFY AS TO HOW THE ACTIVIT Y OF LETTING OUT OF PREMISES CONSTITUTED BUSINESS OF THE ASSESSEE TO WH ICH ASSESSEE COULD NOT SATISFACTORILY FURNISH ANY EXPLANATION. BEFORE US, IT IS ASSESSEES SUBMISSION THAT THE BUSINESS WAS LET OUT ON ACCOUNT OF TEMPORA RY LULL HOWEVER NO ITA NOS. 104 3 & 1044/AHD/2010 . A.YS. 2003-0 4 & 2004-05 7 EVIDENCE HAS BEEN PLACED ON RECORD TO SUBSTANTIATE THE CLAIM OF TEMPORARINESS OF THE STOPPING OF BUSINESS. IN VIEW OF THE AFORESAID FACTS, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. C IT(A) AND THUS THE GROUND OF ASSESSEE IS DISMISSED. 4 TH GROUND IS WITH RESPECT TO TREATING AGRICULTURE INC OME AS INCOME FROM OTHER SOURCES. 13. A.O NOTICED THAT ASSESSEE HAD DECLARED AGRICULTURAL INCOME OF RS. 12,81,686/- FROM SALE OF KISMIS. A.O NOTICED NO DET AILS OF AGRICULTURE OPERATIONS WERE FURNISHED BY THE ASSESSEE. HE ALSO NOTICED THAT IN A.Y. 2001-02 PART OF THE AGRICULTURAL INCOME WAS TREATED INCOME FROM UNDISCLOSED SOURCES AND WHILE FINALIZING THE ASSESS MENT FOR A.Y. 2001-02, THE AGRICULTURE INCOME FROM CULTIVATION OF KISMIS W AS ACCEPTED AT RS. 2,50,000/- ONLY. HE THEREFORE APPLYING THE SAME PAR AMETERS WHICH WERE APPLIED IN 2001-02, CONSIDERED INCOME FROM AGRICULT URE AT RS. 2,50,000/- AND TREATED THE BALANCE AMOUNT OF RS. 10,01,686/- A S INCOME FROM UNDISCLOSED SOURCES. AGGRIEVED BY THE ORDER OF A.O. , ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO UPHELD THE ORDER OF A. O BY HOLDING AS UNDER:- 7.2. I HAVE CONSIDERED THE MATTER. THE FACTS REGARD ING CLAIM OF AGRICULTURAL INCOME BY THE APPELLANT ARE ALMOST SAME FOR VARIOUS YEARS AND INV ESTIGATIONS BY THE DEPARTMENT IN ONE YEAR DO HAVE BEARING ON OTHER YEAR. IN THE APPEAL P ROCEEDINGS FOR A.Y. 1999-2000 THROUGH ORDER DATED 24.03.2009 IN CAB/IV-N-204/06-0 7, I HAVE UPHELD ASSESSING OFFICER'S FINDINGS REGARDING CLAIM OF AGRICULTURAL INCOME TO BE NOT SUBSTANTIATED. APPELLANT'S CONTENTION THAT SALE OF KISMIS DURING T HIS YEAR WAS OUT OF OPENING STOCK BROUGHT FORWARD FROM EARLIER YEAR, CANNOT BE CONSID ERED AS SUFFICIENT TO SUBSTANTIATE GENUINENESS OF AGRICULTURAL INCOME IN A.Y.2003-04, SINCE KISMIS OPENING STOCK FOR A.Y.2001-02 IS BROUGHT FORWARD FROM EARLIER YEARS A ND IN A.Y. 1999-2000, GENUINENESS ITA NOS. 104 3 & 1044/AHD/2010 . A.YS. 2003-0 4 & 2004-05 8 OF AGRICULTURAL OPERATIONS HAS NOT BEEN ACCEPTED EV EN AT APPELLATE STAGE. FOLLOWING APPEAL DESICION IN APPELLANT'S CASE FOR A.Y.1999-20 00, ACTION OF ASSESSING OFFICER IN ACCEPTING AGRICULTURAL INCOME TO THE EXTENT OF RS.2 ,50,000/- ONLY AND IN TREATING BALANCE OF RS.10,31,686/- AS INCOME FROM OTHER SOURCE IS CO NFIRMED. 14. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASS ESSEE IS NOW IN APPEAL BEFORE US. 15. BEFORE US, LD. A.R. REITERATED THE SUBMISSIONS MADE BEFORE A.O AND LD. CIT(A) AND FURTHER SUBMITTED THAT A.O HOLDING FACTS OF THE YEAR UNDER CONSIDERATION BEING IDENTICAL TO A.Y. 2001-02, ADOP TED THE PARAMETERS FOLLOWED IN A.Y. 2001-02 AND ACCEPTED RS. 2,50,000/ - AS AGRICULTURAL INCOME AND THE BALANCE AS INCOME FROM OTHER SOURCES. SHE S UBMITTED THAT WHILE DECIDING THE ISSUE FOR A.Y. 2001-02, HONBLE ITAT C ONFIRMED THE ADDITION OF RS. 8 LAC AS INCOME FROM OTHER SOURCES AND ACCEP TED THE BALANCE INCOME AS AGRICULTURAL INCOME. SHE THEREFORE SUBMITTED THA T APPLYING THE RATIO OF THE IN ASSESSEES OWN CASE FOR A.Y. 2001-02, APPROXIMAT ELY 10% OF AGRICULTURAL INCOME MAY BE REDUCED TO TAKE CARE OF THE DEFECTS I N THE ACCOUNTS OF AGRICULTURE OPERATIONS IF ANY. IN SUPPORT OF THE CO NTENTION THAT ASSESSEE WAS HAVING SUFFICIENT LAND FROM WHICH HE HAS DERIVED AG RICULTURAL INCOME, SHE PLACED THE COPY OF CERTIFICATE OF LAND HOLDING BY T ALATI OF SOLAPUR. THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O A ND LD. CIT(A). 16. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS ABOUT THE AGRICULT URAL INCOME EARNED BY ASSESSEE. A.O WHILE MAKING ADDITION HAS NOTED THAT ASSESSEE DID NOT FURNISH ANY EVIDENCE OF CARRYING OUT AGRICULTURE OPERATIONS . BEFORE US, LD. A.R. HAS ITA NOS. 104 3 & 1044/AHD/2010 . A.YS. 2003-0 4 & 2004-05 9 PLACED ON RECORD THE COPY OF CERTIFICATE OF LAND HO LDING OF THE ASSESSEE AND FAMILY MEMBERS AT PAGE 46 TO 51 OF THE PAPER BOOK I N SUPPORT OF CARRYING OF AGRICULTURE OPERATIONS. WE FIND THAT THE AFORESAID CERTIFICATES ARE IN VERNACULAR LANGUAGE AND ASSESSEE HAS NOT FILED ITS ENGLISH TRANSLATION. WE FURTHER FIND THAT THE AFORESAID DOCUMENTS WERE NOT MADE AVAILABLE BY THE ASSESSEE BEFORE A.O. AND LD. CIT(A) AND THE SAME H AVE BEEN PLACED BEFORE US FOR THE FIRST TIME. IN VIEW OF THE AFORESAID FAC TS, WE ARE OF THE VIEW THAT THE ISSUE OF AGRICULTURAL INCOME VIS--VIS THE LAND HOLDING OF THE ASSESSEE NEEDS TO BE RE-EXAMINED AT THE END OF A.O. WE THERE FORE REMIT THE ISSUE TO THE FILE OF A.O TO DECIDE THE ISSUE AFRESH IN THE L IGHT OF THE SUBMISSIONS OF LAND HOLDING MADE BY THE ASSESSEE AND AS PER FACTS AND CIRCUMSTANCES OF THE CASE AND IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT A.O SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. TH E ASSESSEE IS ALSO DIRECTED TO CO-OPERATE BY PROMPTLY FURNISHING ALL T HE REQUIRED DETAILS CALLED FOR BY THE A.O. IN CASE OF FAILURE BY THE ASSESSEE TO FURNISH THE REQUIRED DETAILS, THE A.O SHALL BE FREE TO DECIDE THE ISSUE ON THE BASIS OF MATERIAL ON RECORD. IN THE RESULT, THE GROUND OF ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. 17. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALL OWED FOR STATISTICAL PURPOSES. 18. NOW WE TAKE UP ASSESSEES APPEAL IN ITA NO. 1044/AH D/2010 FOR A.Y. 2004-05. 19. THE GROUNDS RAISED BY ASSESSEE READS AS UNDER:- ITA NOS. 104 3 & 1044/AHD/2010 . A.YS. 2003-0 4 & 2004-05 10 1. THE CIT (APPEALS) - IV BARODA, ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE SUBMISSIONS OF THE APPELLANT FILED BEFORE HIM AND T HEREFORE, ERRED IN PARTLY ALLOWING THE APPEAL FILED BY THE APPELLANT AGAINST THE ORDER OF THE ASSESSING OFFICER. 2. THE LEARNED AUTHORITIES BELOW ERRED IN LAW AND FACT S IN NOT APPRECIATING THE FACT THAT WITHOUT RECORDING PROPER SATISFACTION AS REQUIRED U NDER THE PROVISION OF SECTION 147 OF THE I.T. ACT, THE ISSUANCE OF NOTICE U/S 148 OF THE ACT IS ABSOLUTELY ILLEGAL AND SUCH REOPENING BE DECLARED AS BAD IN LAW. 3. THE LEARNED AUTHORITIES BELOW ERRED IN NOT APPRECIA TING IN PROPER PERCEPTIVE THE OBJECTION RAISED BY THE APPELLANT TO THE INITIATION OF THE PROCEEDINGS U/S 147 OF THE ACT. HENCE THE ISSUANCE OF NOTICE U/S 148 MAY BE DE CLARED AS ILLEGAL AND VOID AB INITIO. 4. THE LEARNED CIT (APPEALS) ERRED IN LAW AND ON FACTS IN NOT PROPERLY APPRECIATING THE SUBMISSIONS OF THE APPELLANT IN RESPECT OF THE GENU INENESS OF THE AGRICULTURAL INCOME SHOWN IN THE RETURN THIS YEAR AND IN CONFIRMING THE ACTION OF THE A.O. IN TREATING THE AGRICULTURAL INCOME OF RS.2,23,646/- SHOWN THIS YEA R, AS THE INCOME OF THE APPELLANT FROM OTHER SOURCES. 5. THE LEARNED C.I.T. (APPEALS) ERRED IN NOT APPRECIAT ING THE FACT THAT UNDER SIMILAR CIRCUMSTANCES, THE AGRICULTURAL INCOME SHOWN BY THE APPELLANT IN A.Y. 201-02 WAS ACCEPTED BY THE LT. CIT (APPEAL) - IV BARODA [ THE PREDECESSOR CIT (A) ] VIDE HER ORDER DATED 31.10.2007. AFTER TAKING INTO CONSIDERA TION THE EXTENT OF AGRICULTURAL INCOME SHOWN BY THE APPELLANT AND ACCEPTED BY THE D EPARTMENT RIGHT FOR AND FROM THE A.Y. 1993-94 TO A.Y. 1999-2000. THE AGRICULTURAL IN COME DECLARED BY THE APPELLANT MAY, THEREFORE, BE ACCEPTED AS SUCH. 20. BEFORE US, BOTH THE PARTIES SUBMITTED THAT THE GROU ND NO. 4 IS IDENTICAL TO GROUND NO. 4 OF ASSESSEES APPEAL IN ITA NOS. 1043/ AHD/2010 AND THE SUBMISSIONS MADE BY THEM WHILE ARGUING THE ASSESSEE S APPEAL FOR A.Y. 03- 04 WOULD ALSO BE APPLICABLE TO THE PRESENT GROUND. IN VIEW OF THE AFORESAID ITA NOS. 104 3 & 1044/AHD/2010 . A.YS. 2003-0 4 & 2004-05 11 SUBMISSION OF BOTH THE PARTIES, WE FOR THE REASONS STATED HEREINABOVE WHILE DECIDING THE APPEAL FOR ASSESSEES APPEAL IN ITA NO . 1043/AHD/2010(SUPRA) FOR A.Y. 03-04 AND FOR SIMILAR REASONS ALLOW THE GR OUND OF ASSESSEE FOR STATISTICAL PURPOSES. 21. THE OTHER GROUNDS RAISED BY ASSESSEE WERE NOT ARGUE D BY LD. A.R. AND THEREFORE THE SAME ARE DISMISSED AS NOT PRESSED. 22. IN THE RESULT, ASSESSEES APPEAL IN ITA NO. 1043/AH D/2010 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND ITA NO. 1044/AHD/2010 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 28 - 08 - 2015. SD/- SD/- (RAJPAL YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD