A.C.I.T.-3, Mathura V. Sh. Banwari Lal Agarwal, Mathura

ITA 147/AGR/2010

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0356 (ITAT-AGRA)
• Duration Of Justice: 9 year(s) 6 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 22-06-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 10-05-2010
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 143(3); 142(1); 250; 131; 68

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.147/AGR/2010 ASST. YEAR: 2003-04 ASSTT. COMMISSIONER OF INCOME TAX-3 VS. SHRI BANWA RI LAL AGARWAL, MATHURA. 57, HOLI WALI GALI, MATHURA. (PAN : ABDPA 7865 K). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINOD KUMAR, JR. D.R. RESPONDENT BY : NONE ORDER PER H.S. SIDHU, J.M. : THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF THE CIT(A) DATED 18.02.2010 ON THE FOLLOWING GROUNDS:- 1. THAT THE CIT(A) -1 AGRA HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN DELETING THE ADDITION OF ` 16,30,408/- MADE BY TREATING AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES AS ENVISAGED IN SECTION 68 OF THE I.T. ACT, 1961 WITHOUT APPRECIATI NG THE FACTS THAT THE REPORT OF TWO GOVERNMENT DEPARTMENTS AND THE STATEM ENT OF A WITNESS SHRI BHUPENDRA SINGH, AGRICULTURIST, WERE CONTRARY TO THE ASSESSEES ASSERTIONS. 2. THAT THE ORDER OF THE CIT(A)-1 AGRA IS ERRONEOUS IN LAW AND ON THE FACTS OF THE CASE AND THAT ORDER OF THE ASSESSI NG OFFICER BE RESTORED. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANY GROUND DURING APPEAL PROCEEDINGS. 2 2. THE FACTS RELATING TO THE ISSUE IN DISPUTE ARE T HAT THE ASSESSEE FILED HIS RETURN OF INCOME SHOWING NET TAXABLE INCOME OF ` 1,21,690/- AND AGRICULTURAL INCOME OF ` 20,23,208/- I.E. HIS OWN AGRICULTURAL INCOME AT ` 9,13,312/- AND OF MINOR SON SHRI PRAMOD KUMAR AT ` 11,09,895/-. THE ASSESSING OFFICER ISSUED NOTICE T O THE ASSESSEE ON 11.10.2004 UNDER SECTION 143(2) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) WHICH WAS DULY SERVED UPON THE AS SESSEE. IN RESPONSE TO THE SAME, THE LD. AUTHORISED REPRESENTATIVE OF THE ASSE SSEE APPEARED FROM TIME TO TIME AND ALSO FURNISHED REQUISITE DETAILS, EXPLANATION A ND OTHER REQUIRED PARTICULARS. WHILE EXAMINING THE INCOME FROM AGRICULTURE AMOUNTI NG TO ` 20,23,208/-, NECESSARY ENQUIRY WAS MADE FROM THE DISTT. HORTICUL TURE OFFICER, MATHURA TO FIND OUT THE REASONABLENESS OF AGRICULTURAL INCOME FROM THE PRODUCTION OF POTATO CROP, WHO HAS INTIMATED THAT MAXIMUM PRODUCTION IS POSSIB LE FROM 250 TO 400 QUINTALS PER HECTARE DEPENDING UPON THE WEATHER CONDITION, F ERTILIZER, ADEQUATE QUALITY/QUANTITY OF SEED AND TIMELY SOWING OF CROP, OUT OF WHICH, THE TOTAL EXPENSES ARE INCURRED WHICH UNDER DIFFERENT HEADS. HE FURTH ER STATED THAT AFTER DEDUCTING INPUT AND OTHER EXPENSES, THE NET POSSIBLE AGRICULT URAL INCOME HAS BEEN ESTIMATED AT ` 41,826/- PER HECTARE. THE ASSESSING OFFICER ALSO RECEIVED INFORMATION FROM THE DIRECTOR, CENTRAL POTATO RESEARCH INSTITUTE, MO DIPURAM, DISTT. MEERUT TO FURNISH THE INFORMATION RELATING TO NET POSSIBLE AN NUAL INCOME FROM THE PRODUCTION OF POTATO CROP, WHO VIDE HIS LETTER DATED 11.08.200 5 HAD INTIMATED THAT MAXIMUM POSSIBLE PRODUCTION OF POTATO VARIES FROM 35 TO 40 TONNES OR 350 TO 400 QUINTALS, 3 EXPENSES INCURRED UNDER VARIOUS HEADS HAVE BEEN EST IMATED AT ` 46,123/- AND NET POSSIBLE ANNUAL INCOME HAS BEEN REPORTED BETWEEN ` 20,377/- TO 29,877/-. THE ASSESSING OFFICER HAS RECORDED STATEMENT OF SHRI BH UPENDRA SINGH, AN AGRICULTURIST FROM THE LOCALITY, WHO STATED THAT MAXIMUM POTATO P RODUCTION IS POSSIBLE AT 400 QUINTALS AND AFTER DEDUCTING VARIOUS EXPENSES, THE NET POSSIBLE AGRICULTURAL INCOME HAS BEEN ADMITTED BETWEEN ` 85,000/- TO ` 90,000/- PROVIDED THE SEEDS USED ARE OWN AND IF THE SEEDS ARE USED AFTER PURCHASING FROM THE MARKET, THE ADDITIONAL EXPENDITURE WORKS OUT BETWEEN ` 30,000/- TO ` 40,000/- PER HECTARE. KEEPING IN VIEW THE AFORESAID FACTS, THE ASSESSING OFFICER ISS UED NOTICE UNDER SECTION 142(1) & 143(2) TO THE ASSESSEE ON 23.11.2005 ASKING TO EX PLAIN AS TO WHY THE AGRICULTURAL INCOME MAY NOT BE ADOPTED @ ` 50,000/- PER HECTARE. IN COMPLIANCE OF THE SAID NOTICES REGARDING AGRICULTURAL INCOME, IT WAS INTER ALIA STATED BY ASSESSEE THAT NO BASIS HAS BEEN GIVEN FOR THE NET INCOME WORKED OUT BETWEEN ` 20,377/- TO ` 29,877/- PER HECTARE BY THE DIRECTOR, CENTRAL POTAT O RESEARCH INSTITUTE, MODIPURAM, DISTT. MEERUT. THE ASSESSEE FURTHER STA TED THAT HE HAS PRODUCED THE SALE BILLS, EVIDENCE OF DRAFT RECEIPTS WHICH CANNOT BE DISBELIEVED AND THERE IS 30% EXTRA EXPENDITURE IN THE GOVERNMENT DEPARTMENT ON A CCOUNT OF SUPERVISOR, ACCOUNTANT AND AUDITOR ETC. THE ASSESSING OFFICER HAS ALSO MADE DIRECT ENQUIRY FROM THE PURCHASERS OF POTATO LOCATED AT DIFFERENT PLACES (NAME OF THE SAME HE MENTIONED AT PAGE NO.3 OF ASSESSMENT ORDER). AFTER EXAMINING THE ENTIRE EVIDENCES PRODUCED BY THE ASSESSEE AS WELL AS COLLE CTED BY THE ASSESSING OFFICER, 4 HE WAS OF THE OPINION THAT SOMETHING IS SUSPICIOUS ON THE PART OF THE ASSESSEE. HE ISSUED SUMMON UNDER SECTION 131 OF THE ACT TO THE M ANAGING PARTNER, M/S YAMUNA COLD STORAGE, MATHURA ON 10.08.2005 FOR 19.0 8.2005, REQUIRING HIM TO PRODUCE AMAD REGISTER FOR POTATO (LOADING REGISTER) FOR FINANCIAL YEAR 2001-02 AND POTATO EXIT REGISTER (UNLOADING REGISTER) FOR THE F INANCIAL YEAR 2002-03 WHICH WAS DULY SERVED, BUT THERE WAS NO COMPLIANCE TO THE SAI D NOTICE. THE MANAGING PARTNER WAS AGAIN ISSUED SUMMON ON 22.08.2005, REQUIRING HI S PRESENCE FOR 29.08.2005, WHICH WAS DULY SERVED ON 24.08.2005. THIS SUMMON A LSO REMAINED UNCOMPLIED WITH FOR REASONS NOT CLEAR TO THE ASSESSING OFFICER . THEREAFTER, VARIOUS SUMMONS WERE ISSUED TO THE MANAGING PARTNER (SUPRA), BUT FI NALLY SHRI SHAILENDRA AGARWAL, ATTENDED ALONG WITH SHRI R.K. BANSAL, ADVOCATE AND FIELD PHOTOCOPY OF THE LOADING AND UNLOADING LEDGER IN RESPECT OF POTATO PERTAININ G TO THE ASSESSEE. THE DETAILS OF THE SAME THE ASSESSING OFFICER REPRODUCED AT PAGE N OS.4 TO 6 OF THE ASSESSMENT ORDER. AFTER EXAMINING THE DETAILS FIELD BY THE AS SESSEE, THE ASSESSING OFFICER WAS OF THE OPINION THAT UNDOUBTEDLY THE RENT HAS BE EN PAID BY OTHER CUSTOMERS ON THE SAME DATE, WITHIN A WEEK OR EVEN BEFORE WITHDRA WAL OF POTATO, WHILE IN THE CASE OF THE ASSESSEE, IT HAS BEEN PAID INORDINATELY DELA YED, GIVING RISE TO SUSPICION. AFTER EXAMINING THE EVIDENCES PRODUCED BY THE ASSES SEE WHICH INCLUDED THE COMPARATIVE DETAILS OF PRODUCTION, EXPENSES INCURRE D AND SALES ALONG WITH INCOME OF DIFFERENT YEARS, COPY OF ASSESSMENT ORDERS OF EA RLIER YEARS OF THE ASSESSEE AS WELL AS OTHER FAMILY MEMBERS, THE ASSESSING OFFICER HAS NOT ACCEPTED THE SAME, HOLDING 5 THAT THESE ARE NOT RELEVANT FOR THE CASE UNDER CONS IDERATION. HE ALSO HELD THAT THE ASSESSEE HAS NOT FURNISHED ANY PLAUSIBLE EXPLANATIO N WITH REGARD TO THE PROPOSED ADDITION OF ` 16,30,408/- WHICH HAS BEEN WORKED OUT BY ADOPTING A GRICULTURAL INCOME @ ` 50,000/- PER HECTARE AFTER CONSIDERING THE FACT THA T HE HAS UTILISED SEED AFTER PURCHASING FROM THE MARKET AND FINALLY HE ADD ED ` 16,30,408/- AS INCOME FROM OTHER SOURCES UNDER SECTION 68 OF THE ACT WHIL E COMPLETING THE ASSESSMENT UNDER SECTION 143(3) ON 27.12.2005. AGGRIEVED BY TH E SAME, THE ASSESSEE FILED APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO , VIDE THE IMPUGNED ORDER DATED 18.02.2010, DELETED THE ADDITION IN DISPUTE. NOW T HE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 18.02.2010. 3. THIS OFFICE HAS ISSUED NOTICES TO THE ASSESSEE B Y REGISTERED POST ACKNOWLEDGEMENT DUE FOR 11.05.2011 AND 22.06.2011. IN RESPONSE TO THE SAME, NEITHER THE ASSESSEE NOR HIS AUTHORISED REPRESENTAT IVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE. KEEPING IN VIEW OF THE FACTS AN D CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE CONSIDERED OPINION THAT THE ASS ESSEE IS NOT INTERESTED TO PROSECUTE THE MATTER IN DISPUTE. WE ARE, THEREFORE , DECIDING THE ISSUE IN DISPUTE AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE A ND EX-PARTE TO THE ASSESSEE. 4. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER. REGARDING THE GRIEVANCE OF THE DEPARTMENT ON THE DELETION IN 6 DISPUTE, THE BENCH HAS ASKED THE LD. DEPARTMENTAL R EPRESENTATIVE TO SUPPLY THE ORDER DATED 19.12.2008 PASSED BY THIS BENCH IN THE CASE OF JITENDRA KR. AGARWAL AND SHAILENDRA KR. AGARWAL, WHICH HAS BEEN MENTIONE D BY THE LD. CIT(A) IN THE IMPUGNED ORDER AT PARAGRAPH NOS.8 & 9 AND DELETED T HE ADDITION IN DISPUTE, BUT HE FAILED TO PRODUCE THE SAME. WE ARE OF THE VIEW THA T THIS IS THE ONLY MAIN EVIDENCE RELIED BY THE CIT(A) IN DELETING THE ADDITION IN DI SPUTE AND THE SAME IS NOT AVAILABLE WITH THE LD. DEPARTMENTAL REPRESENTATIVE. IN ABSENCE OF THE SAME, WE FEEL DIFFICULTY TO DECIDE THE ISSUE IN DISPUTE. EV EN THE CIT(A) HAS ALSO NOT GIVEN FULL PARTICULARS OF THE ITA NUMBERS AND ASSESSMENT YEARS RELATING TO THE ORDER PASSED BY THE ITAT, AGRA DATED 19.12.2008. THE ASS ESSEE IS ALSO NOT INTERESTED TO PROSECUTE THE MATTER. THEREFORE, IN THE INTEREST O F JUSTICE, WE SET ASIDE THE IMPUGNED ORDER TO THE LD. FIRST APPELLATE AUTHORITY TO DECIDE THE ISSUE IN DISPUTE AFRESH UNDER LAW AFTER GIVING OPPORTUNITY TO THE AS SESSEE AND MENTIONING THE DETAILS OF ORDERS RELIED IN THE IMPUGNED ORDER. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS AL LOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 30.06.20 11). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 30 TH JUNE, 2011 PBN/* 7 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY