Shri Vimal H.Patel, Bhavnagar V. The Dy.CIT.,Circle-1, Bhavnagar

ITA 1352/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9839 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 21-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER ./ ITA NO. 1352/AHD/2012 / ASSESSMENT YEAR: 2008-09 SHRI VIMAL H. PATEL, 633/A-2, GAUTAM, GEETA CHOWK, BHAVNAGAR .. APPELLANT PAN : AAGPP 8844 E VS DCIT, CIRCLE-1, BHAVNAGAR .. RESPONDENT ASSESSEE(S) BY : SHRI TUSHAR HEMANI, AR REVENUE BY : SHRI DILEEP KUMAR , SR - DR / DATE OF HEARING 16/12/2015 /DATE OF PRONOUNCEMENT 06/01/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XX , AHMEDABAD DATED 24.02.2012 FOR ASSESSMENT YEAR 2008 -09, ON THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS O F THE CASE IN HOLDING THAT AS THE AGRICULTURE LAND IS OWN ED BY FOUR CO-OWNERS, 1/4 TH SHARE OF TOTAL AGRICULTURE INCOME OF RS.4,21,000, I.E., RS.1,05,250/- SHOULD BE TREAT ED AS AGRICULTURE INCOME OF THE APPELLANT AND BALANCE AMOUNT OF RS.3,15,750/- SHOULD BE REQUIRED TO BE TREATED AS UNDISCLOSED INCOME FROM OTHER SOURCES IN THE HANDS OF THE APPELLANT. (SMC) ITA NO. 1352/AHD/2012 SHRI VIMAL H. PATEL VS. DCIT AY 2008-09 2 2. ACCORDINGLY, THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ACTION OF LD. A O IN TREATING AGRICULTURE INCOME OF RS.3,15,750/- AS UNDISCLOSED INCOME FROM OTHER SOURCES OUT OF TOTAL AGRICULTURE INCOME OF RS.4,21,000/- TREATED AS UNDISCLOSED INCOME BY LD. AO. 3. ALTERNATIVELY AND WITHOUT PREJUDICE TO ABOVE, RS.3,15,750/- BEING 3/4 TH SHARE BELONGING TO OTHER THREE CO-OWNERS CANNOT BE TREATED AS UNDISCLOSED INCOME FROM OTHER SOURCES IN THE HANDS OF THE APPELLANT, PARTICULARLY WHEN THE GENUINENESS AND FACTUM OF AGRICULTURE INCOME OF RS.4,21,000/- DERIV ED AT FROM IMPUGNED AGRICULTURE LAND HAS BEEN ACCEPTED BY BOTH THE LOWER AUTHORITIES. 4. BOTH THE LOWER AUTHORITIES HAVE PASSED THE ORDERS WITHOUT PROPERLY APPRECIATING THE FACT AND THAT THE Y FURTHER ERRED IN GROSSLY IGNORING VARIOUS SUBMISSIO NS, EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPELLANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEE N CONSIDERED BEFORE PASSING THE IMPUGNED ORDER. THIS ACTION OF THE LOWER AUTHORITIES IS IN CLEAR BREACH OF LAW AND PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DES ERVES TO BE QUASHED. 5. THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ACTION OF LD. AO IN CHARGING INTEREST U/S 234A/B/C OF THE ACT. 6. THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ACTION OF LD. AO IN INITIATI NG PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL, DERIVING INCOME FROM COMMISSION. DURIN G THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS FILED RETURN OF INCOME ON 25.09.2008, DECLARING TOTAL INCOME OF RS.8,28,450/- . FROM THE COMPUTATION OF INCOME FILED BY THE ASSESSEE, IT WAS SHOWN THAT (SMC) ITA NO. 1352/AHD/2012 SHRI VIMAL H. PATEL VS. DCIT AY 2008-09 3 THE ASSESSEE WAS CLAIMING AGRICULTURAL INCOME OF RS .4,21,000/- AND THE SAME WAS DISALLOWED BY THE ASSESSING OFFICE R BY TREATING THE SAME AS INCOME FROM OTHER SOURCES. IN APPEAL, THE CIT(A) RESTRICTED THIS ADDITION TO 1/4 TH OF THE TOTAL AMOUNT OF ADDITION, I.E., RS.1,05,250/- ON THE GROUND THAT TH E AGRICULTURAL LAND WAS OWNED BY FOUR PERSONS, INCLUDING THE ASSES SEE. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. 2.1 THE ONLY ISSUE BEFORE US IS WITH REGARD TO ADDI TION ON ACCOUNT OF INCOME AGRICULTURAL ACTIVITIES OR INCOME FROM OTHER SOURCES. THE ASSESSING OFFICER MADE THIS ADDITION OF RS.4,21,000/- BY DISBELIEVING THE VERSION OF THE AS SESSEE. IN THIS REGARD, THE LD. AUTHORIZED REPRESENTATIVE POIN TED OUT THAT DURING THE ASSESSMENT YEAR 2003-04, THE INCOME OF T HE ASSESSEE HAS BEEN ACCEPTED AT RS.2,32,471/- AND IN THE ASSESSMENT YEAR 2006-07, IT HAS BEEN ACCEPTED AT RS.1,15,000/- U/S 143(3). THE ASSESSING OFFICER TR EATED SUCH AGRICULTURAL INCOME OF RS.4,21,000/- AS INCOME EARN ED FROM OTHER SOURCES AS THE CONCERNED CONTRACTS BEAR THE S IGNATURE OF ASSESSEE ONLY AND LAND WAS OWNED BY THE ASSESSEE AL ONGWITH THREE OTHER PEOPLE. IT IS CLAIMED THAT THE ASSESSEE IS THE OWNER OF 1.59 HECTARES. IT IS ALSO CLAIMED THAT THE ASSE SSEE HAS BEEN ENTERED INTO SUCH AGRICULTURAL CONTRACTS SINCE AY 2 002-03 TILL AY 2011-12 AND THE ASSESSEE HAS BEEN REGULARLY EARN ING AGRICULTURAL INCOME FOR THESE YEARS. THE ASSESSING OFFICER IS CLAIMED TO HAVE ACCEPTED SUCH AGRICULTURAL INCOME I N AY 2003- 04 AND AY 2006-07, AS DISCUSSED ABOVE. (SMC) ITA NO. 1352/AHD/2012 SHRI VIMAL H. PATEL VS. DCIT AY 2008-09 4 2.2 TAKING ALL FACTS AND CIRCUMSTANCES INTO CONSIDE RATION, WE RESTORE THE WHOLE ISSUE TO THE FILE OF THE ASSESSIN G OFFICER FOR DECIDING THE SAME AFRESH AS PER THE FACTS AND LAW, AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSE E. 3. AS A RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 6TH JANUARY, 2016 AT AHMEDABAD. SD/- ( SHAILENDRA KUMAR YADAV ) JUDICIAL MEMBER AHMEDABAD; DATED 06/01/2016 BIJU T., PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE. / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) !', / ITAT, AHMEDABAD