Subarna Nayak, Bhubaneswar V. ITO, Bhubaneswar

ITA 134/CTK/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65142 (ITAT-CUTTACK)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 30-10-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 13-02-2012
• Court: TRIBUNAL
• Department Lawyers: N K NEB
• Assessee Lawyers: N P SAHU; S K DEHURI ARS
• Keywords: Unexplained investment; Unexplained expenditure; Principle of natural justice
• Section: 68; 143(3); 133(6)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO. 134/CTK/2012 / ASSESSMENT YEAR 2006 - 07 SUBARNA NAYAK, SWARNA FILLINGSTATIN, AIGINIA,KUBERPURI, BHUBANESWAR 751 019 PAN: ABAPN 3397 G - - - VERSUS - INCOME - TAX OFFICER, WARD 2(1), BHUBANESWAR. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI N.P.SAHU & S.K.DEHURI, ARS / FOR THE RESPONDENT: / SHRI N.K.NEB, DR / DATE OF HEARING: 30.10.2012 / DATE OF PRONOUNCEMENT: 02.11.2012 / ORDER . . , , SHRI K.K.GUPTA, ACCOUNTANT MEMBER . THIS APPEAL BY THE ASSESSEE RAISES THE FOLLOWING GROUNDS. 1 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ACTION OF THE LEARN ED C.LT APPEAL IN CONFIRMING THE ASSESSMENT ORDER U/S 143(3) OF THE INCOME TAX ACT 1961, PASSED BY THE LEARNED ASSESSING OFFICER MECHANICALLY WITHOUT APPLICATION OF MIND, WITHOUT AFFORDING REASONABLE OPPORTUNITY TO THE APPELLANT ON THE GROUND OF NON - APPEAR ANCE IS UNJUSTIFIED, UNWARRANTED, AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND LEGALLY NOT TENABLE. 2 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED C.I.T FAILED TO APPRECIATE INFIRMITY IN TH E ASSESSMENT ORDER PASSED EXPAT E I.E, WITHOUT LOOKI NG IN TO THE PAST HISTORY OF THE CASE, WITHOUT BRINGING IN TO ANY RECORD OF ANY COMPARABLE CASE OF THE ASSESSEE ENGAGED IN THE SIMILAR TRADE, ESTIMATING INCOME @1% ON SALES, ARBITRARILY IS THUS UNJUSTIFIED AND UNWARRANTED. 3 . ON THE FACTS OF THE CIRCUMSTANCES OF TIE CASE, THE ACTION OF THE LEARNED C.I.T APPEAL IN CONFIRMING THE ADDITION OF UNEXPLAINED 2 EXPENDITURE OF 18,54,728 ON, THE GROUND OF ALLEGED UNRECORDED PURCHASE AFTER ESTIMATING INCOME BY REJECTING DISCLOSED TRADING RESULT THUS RESULTING INTO DOUBLE TAXATION, IS ARBITRARY, UNWARRANTED, UNJUSTIFIED AND DESERVES TO BE DELETED. 4 . ON THE FACTS AND IN THE CIRCUMST ANCES OF THE CASE, THE ACTION OF THE LEARNED C.I.T IN CONFIRMING THE ADDITION TOWARDS UNSECURED LOAN OF 720000WITHOUT ANY COGENT MATERIAL OR ADVERSE MATERIAL, ON CONJECTURES AND SURMISES IS UNJUSTIFIED, UNWARRANTED, UNCALLED FOR AND LEGALLY NOT TENABLE. 5 . O N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ACTION OF THE LEARNED C.I.T APPEAL IN CONFIRMING THE ADDITION TOWARDS AGRICULTURAL INCOME AND TAXING IT UNDER INCOME FROM OTHER SOURCES, WITHOUT ANY REFERENCE TO PAST RECORDS OR ANY CORROBORATIVE EVIDEN CE IS UNWARRANTED, UNJUSTIFIED, NOT CALLED FOR AND LEGALLY NOT SUSTAINABLE . 2. THE BRIEF FACTS AS HAVE BEEN BROUGHT O N RECORD, AS NARRATED BY THE LEARNED COUNSEL FOR THE ASSESSEE, ARE THAT THE ASSESSEE IS THE PROPRIETOR OF M/S. SWARNA FILING STATION, BHU BANESWAR, AUTHORIZED DEALER OF INDIAN OIL CORPORATION (IN SHORT IOC LTD. ), WAS IN THE BUSINESS OF SELLING PETROL, DIESEL AND LUBRICANTS SINCE 1991 - 92. THE ASSESSEE FILED ITS RETURN ON 31.10.2006 SHOWING TOTAL INCOMEOFRS.1,21,987 AND AGRICULTURE INCOME OF 65,000 AND THE SAME WAS PROCESSED U/S.143(1) OF THE I.T.ACT. SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY AND ACCORDINGLY STATUTORY NOTICES WERE ISSUED TO THE ASSESSEE. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER COLLECTED INFORMATIO N U/S 133(6) OF THE INCOME TAX ACT 1961 FROM I OC LTD., I N RESPECT OF PURCHASES MADE DURING THE RELEVANT ASSESSMENT YEAR AND POINTED OUT A DISCREPANCY OF 8 ,51, 868 TOWARDS PURCHASES OF EARLIER YEAR AND INCLUDED IN CURRENT YEARS PURCHASES BETWEEN STATEMENT OF I.O.C LTD. & PURCHASES STATEMENT OF THE ASSESSEE . THE A.O DID NOT ACCEPT THE EXPLANATION OFFERED BY THE ASSESSEE IN THIS REGARD AND HE RESORT ED TO BEST JUDGMENT BY 3 WAY OF ESTIMATING INCOME @ 1% OF THE TOTAL SALES. FURTHER THE ASSESSING OFFICER SOUGHT TH E DETAILS OF LOAN OF 7 , 20 , 0 00 APPEARING UNDER THE HEAD OF UNSECURED LOAN AND DETAILS OF AGRICULTURAL INCOME ALONG WITH CONNECTED VOUCHERS . ON THE GROUND OF NON - COMPLIANCE THEREOF, THE ASSESSING OFFICER ADDED A SUM OF 18 , 54 , 728 PAID TO IOC LTD. , ON VARIOUS DATES OF MARCH 200 6. ON THE GROUND OF NOT DRAWL FROM BANK THE ENTIRE AMOUNT OF 18 , 54 , 728 WAS ADDED AS AN UNEXPLAINED EXPENDITURE ON THE GROUND OF NON - FURNISHING OF REPLY OF THE SAME. HE FURTHER DISALLOWED THE CLAIM OF AGRICULTURAL INCOME AND ADDED THE SAME AS INCOME FROM OTHER SOURCES. 3. AGGRIEVED THE ASSESSEE APPEALED BEFORE THE FIRST APPELLATE AUTHORITY . THE LEARNED CIT(A) CONSIDERED THE CASE OF THE ASSESSEE APPELLANT BEFORE HIM AND HELD THAT THE ESTIMATION OF 1% AS INCOME FROM THE PURCHASES WAS REASONABLE ON ACCOUNT OF THE ASSESSEE NOT DISCLOSING PAYMENTS MADE TO IOC LTD., AS WAS TO BE TAXED SEPARATELY AS CONSIDERED BY HIM LATER. HE CONFIRMED THE UNSECURED LOAN OF 7,20,000 AS NO DETAILS WERE FURNISHED BY THE ASSESSEE. WITH RESPECT TO THE ADDITION ON ACCOUNT OF UNACCOUNTED EXPENDITURE U/S.69A, HE WAS SATISFIED THAT THE PAYMENTS MADE TO IOL ON THE DATES MENTIONED WERE NOT INCORPORATED IN THE BANK ACCOUNT OF THE ASSES SEE. HE ALSO CONFIRMED THE HOLDING OF AGRICULTURAL INCOME FROM OTHER SOURCES AS BROUGHT TO TAX BY THE ASSESSING OFFICER. THUS, HE CONFIRMED THE ASSESSMENT AND HENCE, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. THE LEARNED COUNSEL OF THE ASSESSEE INIT IATING HIS ARGUMENTS ON THE ASSESSEES APPEAL SUBMITTED THAT THE ASSESSEES PETROL PUMP HAS BEEN CLOSED IN VIEW OF WHEN FINANCIAL CONSTRAINTS WHEN THE BANK ACCOUNT WAS ATTACHED BY THE ASSESSING OFFICER FOR PAYMENT OF TAX AGAINST THE DEMAND SO CREATED. THE ASSESSEE CANNOT BE SAID TO HAVE MADE 1% INCOME WHEN THE VERY DEALER COMMISSION FOR DEALING IN PETROL OF IOC LTD., IS 0.75% ONLY. NO CASE HAS 4 BEEN MADE OUT BY THE ASSESSING OFFICER TO JUSTIFY THE NET INCOME FOR ESTIMATION AT 1% WHEN NO DISALLOWANCE HAS BEEN MADE N ACCOUNT OF EXPENDITURE CLAIMED IN THE PROFIT & LOSS ACCOUNT AS PER THE AUDITED BALANCE SHEET FILED ALONG WITH THE RETURN CLEARLY INDICATING THAT THE EXPENDITURES HAVE BEEN CLAIMED TO EARN THE INCOME BEING DEALERSHIP COMMISSION OF 0.75%. THE LEARNED CIT(A) THEREFORE, CONSIDERED THE FACT THAT THE ASSESSEE HAD NOT DISCLOSED THE PAYMENTS AMOUNTING TO 18,54,728 OUGHT NOT TO HAVE HELD THE 1% REASONABLE WHICH IN ANY CASE ARE TO BE CONSIDERED AS PER THE DISCLOSED PURCHASES AS PER THE AUDITED P & L ACCOUNT AND BALANCE SHEET. THE COST OF SALES CANNOT BE LESS THAN 0.75% INSOFAR AS THE ASSESSEE HAS DISCLOSED CLOSING STOCK OF 21,96,716 WHEN THE AMOU NT OWED TO THE BANK WAS ONLY 1 3,51,020. THE LEARNED COUNSEL OF T HE ASSESSEE SUBMITTED THAT IT WAS A SIMPLE ACCOUN TING Q UERY TO BE SATISFIED BY THE ASSESSING OFFICER DUE TO ASSESSEE BEING NOT PROPERLY ASSISTED BY ITS CHARTERED ACCOUNTANT WAS NOT ABLE TO EXPLAIN THAT THE AMOUNTS PAID WERE BY DRAFTS DRAWN ON THE BANK WHICH BANK WILL ONLY ISSUE A DRAFT WHEN THE ASSESSEE HAS GOT A MARGIN OF CLOSING STOCK. IN OTHER WORDS, THE ASSESSING OFFICER SOUGHT TO OBTAIN THE CONFIRMATION FROM THE THIRD PARTY BEING THE SELLER OF PETROL WHO HAD ACKNOWLEDGED THAT THESE PAYMENTS HAD BEEN RECEIVED IN THE MONTH OF MARCH WERE DULY REFLECTED WHEN THE CLOSING STOCK HAD ALREADY BEEN SHOWN HELD BY THE ASSESSEE AS ON 31.3.2006. THEREFORE, THE PAYMENT OF 18,54,728 WHICH THE ASSESSING AUTHORITIES BELIEVE HAD BEEN NOT SHOWN OF HAVING BEEN MADE FROM THE BOOKS OF ACCOUNT WAS PATENTLY INCORRECT INSOFAR AS THE ASSESSEE HAS SHOWN THE CLOSING STOCK OF MORE THAN THE SAME AMOUNTING TO 21,96,716 WHEN THE SOLE SUPPLIER WAS IOC LTD., ONLY. THE CLOSING STOCK IS PHYSICALLY DETERMINED ON THE DATE OF CLOSE OF THE FY WHICH THE ASSESSING AUTHORITIES HAVE TRIED TO IN DICATE OF HAVING BEEN ENTERED IN THE BOOKS OF 5 ACCOUNT WHEN THE ASSET AS HELD AGAINST A LIABILITY BEING THE LOAN FROM THE BANK COULD ONLY HAVE BEEN MADE FROM THE DRAFT ISSUED BY DEBITING THE ACCOUNTS OF THE ASSESSEE INFLATING THE LOAN. FOR THIS PURPOSE, THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED A PAPER BOK WHICH INTER ALIA INCLUDE THE COPY OF THE AUDITED REPORT U/S.44AB IN THE IMPUGNED ASSESSMENT YEAR ALONG WITH THE AUDITED ACCOUNTS FOR THE IMMEDIATELY PRECEDING THREE AYS WHEN PAYMENTS MADE TO IOC LTD., ARE ACKNOWLEDGED INSOFAR AS PAYMENTS ARE MADE BEFORE THE GOODS ARE DELIVERED AS PER THE PRACTICE OF THE PETROLEUM COMPANY. HE HAS ALSO FILED COPIES OF BANK STATEMENTS FOR THE TWO FYS EVIDENCING DRAWL AGAINST MONEY RECEIPTS OF IOC LTD., WHICH HAVE BEEN DRAW N ON THE BASIS OF BANKS HAS ASSIGNED BY THE IOC LTD.,. HE HAS ALSO ENCLOSED THE COPY OF MONEY RECEIPT OF IOC LTD., FOR THE CHEQUES OF 18,54,728 WHICH CLINCHES THE ISSUE THAT THE AMOUNTS WERE PAID FOR THE PURCHASES WHICH REMAINED UNSOLD ON THE CLOSING OF THE FY CANNOT BE SUBJECTED TO DISALLOWANCE U/S.69A. FOR THIS PROPOSITION HE HAS ALSO RELIED ON CERTAIN CASE LAWS WHICH COMPILATION HAS BEEN PLACED IN THE PAPER BOOK. WITH RESPECT TO THE 1% ESTIMATION OF INCOME ON PURCHASES , HE SUBMITTED THAT THE ESTIMATION IS NOT IN ACCORDANCE WITH THE BUSINESS OF PETROL PUMP INSOFAR AS FIXED EXPENSES HAVE TO BE INCURRED WHICH CANNOT BE RELATED TO THE SAL ES TURNOVER. THE DEALERS COMMISSION ITSELF IS THEREFORE 0.75% WOULD RULE OUT THE CLAIM OF ANY EXPENDITURE IN THE NATURE OF SALARY TO ATTENDANTS, RENT FOR THE LAND AND BUILDING, ELECTRICITY AND OTHER MANDATORY REQUIREMENTS TO RUN THE PETROL PUMP WHICH HAVE NOT BEEN CONSIDERED BY THE AUTHORITIES BELOW. NO COMPARABLE CASE HAS BEEN BROUGHT O N RECORD AND THEREFORE, THE ESTIMATION IS PURELY ON GUESS WORK AND THEREFORE HAS NO LEGS TO STAND ON. HOWEVER, THE LEARNED COUNSEL PROPOSED IN ORDER TO STALL THE ISSUE INSO FAR AS THE PURCHASES WHICH HAVE BEEN PAID FOR HAVE BEEN CONSIDERED FOR ESTIMATION 6 WHICH PURCHASES HAVE BEEN INCORPORATED IN THE BOOKS OF ACCOUNT CANNOT BE A GROUND FOR ESTIMATION AT A RATE HIGHER THAN WHAT COULD BE POSSIBLY THE EARNING OF TH E ASSESSEE FROM THE IOC LTD.,. H E SUBMITTED THAT 0.75% OF THE TURNOVER MAY KINDLY BE CONSIDERED AS INCOME OF THE ASSESSEE. IN RESPECT TO THE LAST ISSUE BEING UNSECURED LOANS BROUGHT TO TAX AMOUNTING TO 7,20,000, HE SUBMITTED THAT 7,28,000 WAS OWED TO A PARTY AS ON 31.3 .2005 WHICH WAS ACCEPTED BY THE ASSESSING OFFICER IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR. THIS AMOUNT STOOD REDUCED TO 7,20,000 THEREFORE CANNOT BE AGAIN SOUGHT FOR CONFIRMATION WHEN THE CONFIRMATION WAS ALREADY AVAILABLE TO THE ASSESSING OFFICER IN THE ASSESSEES RECORD FOR THE IMMEDIATELY PRECEDING YEAR. HE, THEREFORE, SUBMITTED THAT THE ASSESSING OFFICER PROCEEDED TO TAX THIS AMOUNT INSPITE OF THE SUBMISSION OF THE ASSESSEE BEFORE HIM THAT IT WAS NOT AN INVESTMENT FOR THE PURPOSE OF PAYMENT TO IOC LTD. THE LEARNED COUNSEL OF THE ASSESSEE VEHEMENTLY ARGUED THAT THE ASSESSING OFFICER MISINTERPRETED THE FACTUAL FINDING INSOFAR AS HE TRIED TO CLUB THE SUNDRY CREDITORS FOR EXPENSES ALONG WITH THE UNSECURED LOAN WHICH WAS NEVER THE CASE OF THE ASSESSEE. THE ASSESSEE HAD BORROWED FROM THE BANK AGAINST THE HYPOTHECATION OF STOCK THEREFORE COULD NOT BE RELATED TO BORROWAL FROM A UNSECURED LOAN THEREFORE CANNOT BE TAXED IN THE IMPUGNED ASSESSMENT YEAR BEING BROUGHT FORWARD FROM THE EARLIER YEAR. 5. THE LEARNE D DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. HE SUBMITTED THAT THE ASSESSING OFFICER HAD VERIFIED THAT THE PURCHASES TO BE RECONCILED BY THE ASSESSEE INCLUDED PURCHASE AMOUNTING TO 8,51,868 WERE THE PURCHASES OF THE EARLIER YEAR. THEREFORE, IT WAS NECESSARY ON THE PART OF THE ASSESSING OFFICER TO OBTAIN INFORMATION U/S.133(6) FOR THE PAYMENTS TO IOC LTD., HA D TO BE RECONCILED. THE ASSESSEE HIMSELF AGREED TO THE PROPOSITION THAT IT WAS THE UNSECURED LOAN WHICH WAS UTILIZED FOR THE 7 PURPOSE OF PAYMENT THEREFORE IS A CHANGE OF STANCE AS OF NOW BY HOLDING THAT THE PAYMENTS HAVE BEEN MADE BY PASSING THE NECESSARY ENTRIES IN THE BOOKS OF ACCOUNT. THE BANK STATEMENTS REQUIRE RECONCILIATION O N ACCOUNT OF IOC LTD., ACCEPTING THE PAYMENTS IN THE YEAR ITSELF THE REFORE LEAVES NO ROOM FOR DOUBT THAT THE PAYMENTS WERE MADE OUTSIDE THE BOOKS OF ACCOUNT. WITH RESPECT TO 1% , ESTIMATION IT WAS NEVER THE CASE OF THE ASSESSEE TO HAVING MADE MORE MARGIN ON THE SALE OF LUBRICANTS THEREFORE WAS CONSIDERED PROPERLY BY THE ASS ESSING OFFICER AT 1% INSOFAR AS 0.75% IS ONLY ON PETROL AND DIESEL. HE PRAYED THAT THE ORDERS OF THE AUTHORITIES BE CONFIRMED. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL MADE AVAILABLE TO THE TRIBUNAL. CONSIDERING THE FACTS AND CIRCUM STANCES OF THE CASE, WE ARE INCLINED TO HOLD THAT THE ASSESSEE HAS BEEN SUBJECTED TO TAX ON ESTIMATION ON PURCHASES ON SPECIFIC FINDING OF EXPENDITURE TO BE DISALLOWED U/S.69A. WE FIND FORCE IN THE SUBMISSION OF THE LEARNED COUNSEL OF THE ASSESSEE THAT THE CLOSING STOCK HELD BY THE ASSESSEE WAS ON THE BASIS OF PAYMENT TO IOC LTD., WHICH HAS BEEN RENDERED TO TAX. IT WAS NOT THE CASE OF THE ASSESSING OFFICER TO DISALLOW HOLDING A STOCK AGAINST THE BANK BALANCE WHICH HAS BEEN OVER DRAWN INSOFAR AS THE ASSESSEE HAD MADE THE DRAFTS PREPARED ON THE BASIS OF AVAILABILITY OF FUNDS TO IT WHICH HAVE BEEN INCORPORATED AS PURCHASES IN ITS BOOKS OF ACCOUNT. THE PURCHASES RESULTED IN DISCLOSING THE CLOSING STOCK WHICH STOCK WAS BELONGING TO IOC LTD., ONLY. THEREFORE, IT C OULD NOT BE SAID THAT AT ANY POINT OF TIME THAT THE PAYMENTS WERE MADE OUTSIDE THE BOOKS OF ACCOUNT. THE ASSESSEE HAD DECLARED A MARGIN OF EARNING THE INCOME INSOFAR AS VALUATION OF THE CLOSING STOCK IS AS PER THE PURCHASE BILLS DRAWN BY IOC LTD.,. THE ASS ESSEE COULD NOT MAKE PROFIT ON HOLDING OF STOCK THEREFORE CANNOT BE DISALLOWED U/S.69A. WE FIND THE SUBMISSION OF THE LEARNED COUNSEL OF THE ASSESSEE JUSTIFIED TO THE EXTENT 8 THAT IN CASE ESTIMATION HAS TO BE RESORTED TO IT IS TO BE ON SPECIFIC FINDING ON C OMPARABLE CASES WHEN PETROL DEALERS ARE ALLOWED 0.75% COMMISSION ON THE TOTAL PURCHASES MADE BY THEM FROM THE NATIONALIZED PETROLEUM COMPANIES. THEREFORE, WE DIRECT THE ASSESSING OFFICER TO COMPUTE THE INCOME OF THE ASSESSEE AT 0.75% OF THE TOTAL PURCHASES MADE BY THE ASSESSEE FROM IOC LTD., WHICH WILL TAKE CARE OF MORE MARGIN EARNED BY THE ASSESSEE ON LUBRICANTS BALANCING THE FIXED EXPENSES CLAIMED BY THE ASSESSEE FOR THE PURPOSE OF GENERATING 0.75% ON THE PURCHASES. THE UNEXPLAINED EXPENDITURE THEREFORE H AS BEEN ALREADY TAKEN CARE OF ON THE PURCHASES WHEN THE ASSESSING OFFICER SOUGHT TO DISALLOW THE SAME U/S.69A WHICH FACTUALLY IS INCORRECT INSOFAR AS THE ASSESSEE HAS SHOWN MORE CLOSING STOCK THAN THE PURCHASES HAVING BEEN MADE FROM SOURCES OUTSIDE THE BOO KS OF ACCOUNT. INSOFAR AS THE CONFIRMATION OF UNSECURED LOAN AMOUNTING TO 7,20 ,000 LACKING WE FIND THAT THE UNSECURED LOAN EXISTED AT 7,28,000 IN THE IMMEDIATELY PRECEDING AY THEREFORE COULD NOT BE TAXED IN THE IMPUGNED ASSESSMENT YEAR UNDER THE PROVISIO NS OF SECTION 68 INSOFAR AS THE ASSESSING OFFICER HAS HELD THE SAME AS UNACCOUNTED INVESTMENT PERTAINING TO PAYMENT OUTSIDE THE BOOKS OF ACCOUNT FOR EXPENDITURE TOTALING 18,54,728. WE ALSO OBSERVE THAT THE ASSESSEE HAS BEEN RENDERING AGRICULTURAL INCOME O N THE AGRICULTURE LAND OWNED BY IT EARLIER AND IN FACT WAS PART AND PARCEL ON WHICH THE PETROL PUMP WAS FUNCTIONING CANNOT NOW BE CONSIDERED AS INCOME FROM OTHER SOURCES INSOFAR AS THE PETROL PUMP IS FUNCTIONING AT KUBERPURI, AIGANIA, BHUBANESWAR. THEREFOR E, WE DO NOT FIND ANY ADVERSITY NOTED BY THE ASSESSING OFFICER TO HOLD IT AS INCOME FROM OTHER SOURCES EXCEPT THAT HE REQUIRED THE EVIDENCE OWNERSHIP OF LAND AND INCOME GENERATED THERE FROM IN THE FORM OF AGRICULTURAL PRODUCE. BOTH THESE ISSUES EMANATE FRO M EARLIER YEAR CANNOT NOW BE SUBJECTED TO DIFFERENT PROPOSITION INSOFAR AS THE 9 UNSECURED LOAN REMAINED THE SAME AND AGRICULTURAL INCOME REMAINED FROM THE SAME AGRICULTURAL LAND. IN THIS VIEW OF THE MATTER, THE ASSESSING OFFICER IS DIRECTED TO CONSIDER THE AGRICULTURAL INCOME RENDERED BY THE ASSESSEE AS AGRICULTURAL INCOME FOR RATE PURPOSES ONLY AND NOT AS INCOME FROM OTHER SOURCES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. S D/ - S D/ - ( . . . ) , (K.S.S.PRA SAD RAO), JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: 02.11.2012 - COPY OF THE O RDER FORWARDED TO: 1 . / THE APPELLANT : 2 / THE RESPONDENT: 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 31.10.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 01.11.2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHIC H THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER .. ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY.