Dipu Kumar Jaiswal, Keonjhar V. ITO, Keonjhar Ward, Keonjhar

ITA 147/CTK/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4159 (ITAT-CUTTACK)
• Duration Of Justice: 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 26-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S N SAHU
• Keywords: Rule of consistency
• Section: 201

Judgement Text

, . . , , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH , CUTTACK , BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER ./ ITA NO. 147 / CTK /20 1 8 ( / ASSE SSMENT YEAR : 20 1 1 - 20 1 2 ) DIPU KUMAR J A ISWAL, AT - HUDI SAHI, PO - JODA, KEONJHAR VS. ITO, KEONJHAR ./ ./ PAN/GIR NO. : A AVPJ 6866 E ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI S.N.SAHU , AR /REVENUE BY : SHRI SUBHENDU DUTTA , DR / DATE OF HEARING : 0 8 / 0 3 /201 9 / DATE OF PRONOUNCEMENT 12 / 0 3 /201 9 / O R D E R THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISS IONER OF INCOME TAX (APPEALS), CUTTACK , DATED 25.01.2018 PASSED IN FIRST APPEAL NO. 431 / 20 1 4 - 1 5 FOR THE ASSESSMENT YEAR 201 1 - 201 2 . 2. LD. AR IN THE PRESENT APPEAL HAS RAISED FOUR GROUNDS OF APPEAL, OUT OF WHICH GROUND NOS.1 & 4 ARE GENERAL IN NATURE, THEREF ORE, THE SAME ARE NOT ADJUDICATED. WITH REGARD TO GROUND NO.3, LD. AR DID NOT PRESS THE SAME, ACCORDINGLY, GROUND NO.3 IS DISMISSED AS NOT PRESSED. 3. NOW, THE EFFECTIVE GROUND REMAINED TO BE DECIDED BEFORE ME IS GROUND NO.2, WHICH READS AS UNDER : - 3. T HAT THE CLAIM OF EXEMPTION OF AGRICULTURAL INCOME U/S.10(1) OF THE I.T.ACT, 1961 OF RS.1,20,000/ - SHOULD HAVE BEEN ACCEPTED BY THE AUTHORITIES BELOW AS THE SAME IS SHOWN CONSISTENTLY YEAR AFTER YEAR REGULARLY AND ACCEPTED BY THE REVENUE. MORE ITA NO. 147 /CTK/201 8 2 SO, THE INCO ME IS ACCEPTED BUT HAS BEEN TAXED UNDER THE HEAD OTHER SOURCES WITHOUT BRINING ANY MATERIAL IN RECORD. 4 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVES INCOME FROM HOUSE PROPERTY, EXECUTION OF TRANSPORT CONTRACT WORK, TAXI PAYI NG AND INCOME FROM OTHER SOURCES AND FILED ITS RETURN OF INCOME FOR THE A.Y.2011 - 2012 ON 04.03.2012 DECLARING TOTAL INCOME AT RS.13,20,750/ - , WHICH WAS PROCESSED U/S.143(1) OF THE ACT AND THE AO COMPLETED THE ASSESSMENT ASSESSING TOTAL INCOME OF THE ASSESS EE AT RS.21,37,290/ - MAKING VARIOUS ADDITIONS. 5. AGAINST THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) AND THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE HAS PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 6. NOW, AGGRIEVE D WITH THE ORDER PASSED BY THE CIT(A) IN GIVING PART RELIEF, THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 7. LD. AR SUBMITTED THAT THE AO WAS NOT CORRECT AND JUSTIFIED IN DISALLOWING THE EXEMPT AGRICULTURAL INCOME AND MAKING ADDITION. LD. AR STRE NUOUSLY CONTENDED THAT THE ASSESSEE OWNS AGRICULTURAL LAND AND EARNS EXEMPT AGRICULTURAL INCOME THEREFROM AND THE DEPARTMENT HAS ALLOWED AGRICULTURAL INCOME TO THE ASSESSEE FROM EARLIER ASSESSMENT YEARS 2009 - 2010 & 2010 - 2011, THEREFORE, THE SAME CANNOT BE DISALLOWED FOR THE A.Y.2011 - 2012 WITHOUT ANY JUSTIFIED REASONS AND BASIS. LD. AR PLACING COPIES OF RETURNS OF EARLIER ASSESSMENT YEARS I.E. A.Y.2009 - 2010 & 2010 - 2011, SUBMITTED THAT THE ASSESSEE CLAIMED EXEMPTION OF AGRICULTURAL INCOME OF RS.60,000/ - AND R S.1,18,400/ - , RESPECTIVELY DURING IMMEDIATELY PRECEDING YEARS AND THERE IS NO CHANGE IN THE OWNERSHIP OF ITA NO. 147 /CTK/201 8 3 AGRICULTURAL LAND AND AGRICULTURAL ACTIVITIES, THEREFORE, AGRICULTURAL INCOME OF RS.1,20,000/ - SHOWN BY THE ASSESSEE IN THE PRESENT YEAR CANNOT BE DISA LLOWED. 8. REPLYING TO THE ABOVE, LD. DR STRONGLY SUPPORTED THE ACTION OF AO AS WELL AS FIRST APPELLATE ORDER OF THE CIT(A) AND SUBMITTED THAT THERE WAS NO EVIDENCE ON RECORD TO SHOW THAT THE ASSESSEE WAS REGULARLY DOING AGRICULTURAL ACTIVITY ON THE SAID A GRICULTURAL LAND OWNED BY HIM AND HAS EARNED EXEMPT AGRICULTURAL INCOME FROM SALE OF AGRICULTURE PRODUCE. LD. DR ALSO POINTED OUT THAT IN ABSENCE OF DOCUMENTARY EVIDENCE, THE CLAIM OF EXEMPT AGRICULTURE INCOME WAS RIGHTLY DISALLOWED BY THE AO. 9. ON CAREFU L CONSIDERATION OF RIVAL SUBMISSIONS OF BOTH THE SIDES, FIRST OF ALL, I MAY POINT OUT THAT LD. DR HAS NOT DISPUTED THE FACT THAT THE ASSESSEE HAS SHOWN EXEMPT AGRICULTURAL INCOME DURING THE ASSESSMENT YEARS 2009 - 2010 & 2010 - 2011 , WHICH HAS BEEN ACCEPTED BY THE DEPARTMENT WITHOUT ANY DISPUTE. FROM RELEVANT PA RA 6 OF THE ASSESSMENT ORDER, I OBSERVE THAT THE AO HAS NOT DISPUTED THAT THE ASSESSEE IS HAVING AGRICULTURAL LAND OF 2.5 0 ACRE IN HIS POSSESSION. HOWEVER, THE AO REJECTED THE CLAIM OF AGRICULTURAL INCOM E IN ABSENCE OF DOCUMENTARY EVIDENCE ESTABLISHING THE AGRICULTURAL ACTIVITIES ON THE SAID LAND. IN MY CONSIDERED OPINION, THE DEPARTMENT SHOULD RESPECT THE RULE OF CONSISTENCY AS RENDERED BY THE HONBLE SUPREME COURT IN THE CASE OF RADHASOAMI SATSANG VS. C IT, (1992) 193 ITR 321 (SC). SECONDLY, IT IS NOT THE ALLEGATION OF THE AO THAT THE ASSESSEE HAS SOLD OR PARTED WITH THE SAID AGRICULTURAL LAND. SO FAR AS REQUIREMENT OF ESTABLISHING THE AGRICULTURAL ITA NO. 147 /CTK/201 8 4 ACTIVITIES BY WAY OF DOCUMENTARY PROOF IS CONCERNED, I AM OF THE OPINION THAT SMALL AGRICULTURISTS DO NOT MAINTAIN BOOKS OF ACCOUNTS AND DO NOT HAVE DOCUMENTS REGARDING AGRICULTURAL ACTIVITIES CONDUCTED BY THEM ON THE AGRICULTURAL LAND OWNED BY THEM. THEREFORE, REQUIREMENT OF DOCUMENTARY EVIDENCE REGARDING AGRIC ULTURAL ACTIVITY CANNOT BE A BASIS OF FOR DENYING ALLOWANCE OF EXEMPT AGRICULTURAL INCOME. THEREFORE, THE FINDINGS ARRIVED BY THE AO ARE NOT CORRECT AND JUSTIFIED AND, THUS, I HAVE NO HESITATION TO HOLD THAT THE LD. CIT(A) WAS NOT ALSO CORRECT IN UPHOLDING THE DISALLOWANCE. 10. IN THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE OPINION THAT THE AO HAS FLOUTED THE RULE OF CONSISTENCY AND HAS DENIED THE ALLOWANCE OF EXEMPT AGRICULTURAL INCOME BY TAKING A HYPER - TECHNICAL APPROACH AND THE LD. CIT(A) WAS NOT ALSO CORRECT IN CONFIRMING THE ACTION OF AO. THEREFORE, ORDERS OF AUTHORITIES BELOW ARE DISMISSED AND THE AO IS DIRECTED TO ALLOW THE AGRICULTURAL INCOME OF RS.1,20,000/ - TO THE ASSESSEE FOR ASSESSMENT YEAR UNDER CONSIDERATION I.E. A.Y.2011 - 2012. ACCORDINGLY, GROUND NO.3 OF APPEAL OF THE ASSESSEE IS ALLOWED. 11 . IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON 12 / 0 3 / 201 9 . SD/ - ( CHANDRA MOHAN GARG ) / JUDICIAL MEMBER C UTTACK ; DATED 12 / 03 /201 9 . . / PKM , S R.P.S. ITA NO. 147 /CTK/201 8 5 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - . DIPU KUMAR J A ISWAL, AT - HUDI SAHI, PO - JODA, KEONJHAR 2. / THE RESPONDENT - ITO, KEONJHAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//