ITO, Ward - 6(4)/Kolkata, Kolkata V. M/s. Biswas Agro Limited, Kolkata

ITA 1479/KOL/2009

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99838 (ITAT-KOLKATA)
• Duration Of Justice: 6 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2015
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 14-05-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 24-08-2009
• Court: TRIBUNAL
• Section: 142(1); 144; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI M.BALAGANES H, AM] ITA NOS.1479&1480/KOL/2009 ASSESSMENT YEARS : 2004-05 & 2005-06 ( APPELLANT ) (RESPONDENT) I.T.O., WARD-6(4) -VERSUS- M/S. BISWAS AGRO LTD. KOLKATA KOLKATA (PAN:AACCB 4431 D) FOR THE APPELLANT : SHRI SANJAY MUKHERJEE, JCIT FOR THE RESPONDENT : NONE DATE OF HEARING : 24.09.2015. DATE OF PRONOUNCEMENT : 6.10.2015. ORDER PER SHRI M.BALAGANESH, AM ITA NO. 1479 / 2009 ASST YEAR 2004-05 1. THIS APPEAL OF THE REVENUE ARISE OUT OF THE ORDER OF THE LEARNED CIT(A) IN APPEAL NO. 198/CIT(A)-VI/07-08/6(4) DATED 06/05.2009 FOR THE ASST YEAR 2004-05 PASSED AGAINST THE ORDER OF ASSESSMENT FRAMED BY THE LEARN ED AO U/S 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. SHRI .SANJAY MUKHERJEE , JCIT, THE LEARNED DR ARGUED ON BEHALF OF THE REVENUE. 3. THE ISSUE TO BE DECIDED IN THIS APPEAL IS TH AT WHETHER THE LEARNED AO IS JUSTIFIED IN TREATING THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE AS TAXABLE INCOME IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE BRIEF FACTS OF THIS APPEAL IS THAT THE AS SESSEE FILED ITS RETURN FOR THE ASST YEAR 2004-05 DISCLOSING TOTAL INCOME OF RS NIL DUE TO CL AIM OF EXEMPTION U/S 10 FOR THE AGRICULTURAL INCOME DERIVED BY IT. THE LEARNED AO TRIED TO SERVE THE VARIOUS STATUTORY NOTICES U/S 143(2) AND 142(1) OF THE ACT ON VARIOUS DATES BUT COULD NOT SERVE THE SAME ITA NOS.1479&1480/KOL/2009 M/S. BISWAS AGRO LTD. A .YRS.2004-05 & 2005-06 2 ON THE ASSESSEE. THE LEARNED AO FOUND FROM THE AC COUNTS FILED ALONG WITH THE RETURN THAT THE ASSESSEE HAD 100.39 BIGHAS OF LAND FOR CUL TIVATION FOR AGRICULTURAL PURPOSES PURCHASED AT RS. 3,92,000/-. BASED ON THE REPORT RECEIVED FROM THE INSPECTOR OF INCOME TAX FOR NON SERVICE OF NOTICES, THE LEARNED AO PROCEEDED TO COMPLETE THE ASSESSMENT U/S 144 / 145(3) OF THE ACT BY TREATING THE PROFIT DECLARED IN THE PROFIT AND LOSS ACCOUNT (WHICH ADMITTEDLY REPRESENTS AGRICULTU RAL INCOME) AS INCOME FROM OTHER SOURCES . THE LEARNED AO HOWEVER FOUND THAT THE VA LUE OF LAND DISCLOSED AT RS. 3,92,000/- IS TOO LOW FOR ACCOUNTING FOR 100.39 BIG HAS AND TREATING THE SAME AS NOT RELIABLE , HE WORKED OUT THE EXTENT OF LAND AT 7.84 BIGHAS BASED ON THE ESTIMATED RATE OF RS. 50,000/- PER BIGHA. THE LEARNED AO HOWEVER AC CEPTED THE AGRICULTURAL INCOME OF RS. 78,400/- ( 7.84 BIGHAS FOR CULTIVATION CALCU LATED @ RS 10000 PER BIGHA) AS AGAINST 100.39 BIGHAS HELD BY THE ASSESSEE IN DIFFE RENT DISTRICTS OF WEST BENGAL. ON FIRST APPEAL, THE LEARNED CIT(A) ACCEPTED THE EXTEN T OF LAND AT 100.39 BIGHAS BUT RESTRICTED THE AGRICULTURAL INCOME AT RS. 20,000/- PER BIGHA AND DETERMINED THE AGRICULTURAL INCOME AT RS. 20,07,800 (100.39 * 2000 0) AS AGAINST RS. 78,400/- ACCEPTED BY THE LEARNED AO AND UPHELD THE BALANCE A DDITION MADE BY THE LEARNED AO. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US . 5. THE LEARNED DR ARGUED THAT THE ASSESSEE HAD N EITHER PARTICIPATED IN THE ASSESSMENT NOR IN THE APPELLATE PROCEEDINGS. EVEN BEFORE THIS TRIBUNAL, THE ASSESSEE HAD NOT BOTHERED TO REPRESENT ITS CASE AND THE ASSE SSMENTS WERE COMPLETED U/S 144 AFTER TAKING DUE EFFORTS FOR SERVICE OF NOTICE THRO UGH THE INSPECTOR OF INCOME TAX. ACCORDINGLY HE PLEADED FOR RESTORATION OF THE ORDER OF THE LEARNED AO. 6. WE HAVE HEARD THE LEARNED DR. WE FIND FROM THE RECORDS THAT THE ASSESSEE WAS IN RECEIPT OF AGRICULTURAL INCOME AND HAD CLAIMED E XEMPTION U/S 10 OF THE ACT AND FILED RS NIL INCOME IN ITS RETURN. ADMITTEDLY, THE STATUTORY NOTICES COULD NOT BE SERVED ON THE ASSESSEE DURING THE ASSESSMENT AND FIRST AP PELLATE PROCEEDINGS. HOWEVER, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DEEM IT FIT AND APPROPRIATE TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CAS E AND ACCORDINGLY, IN THE INTEREST OF JUSTICE AND FAIR PLAY, TO SET ASIDE THIS ISSUE TO T HE FILE OF THE LEARNED AO TO MAKE ITA NOS.1479&1480/KOL/2009 M/S. BISWAS AGRO LTD. A .YRS.2004-05 & 2005-06 3 DENOVO ADJUDICATION OF THE ENTIRE ISSUES UNINFLUENC ED BY EARLIER DECISIONS AND REFRAME THE ASSESSMENT AFRESH IN ACCORDANCE WITH LAW. AC CORDINGLY , THE GROUNDS RAISED BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 1480 / 2009 ASST YEAR 2005-06 1. THIS APPEAL OF THE REVENUE ARISE OUT OF THE ORDER OF THE LEARNED CITA IN APPEAL NO.317/CIT(A)-VI/07-08/KOL DATED 06.05.2009 FOR THE ASST YEAR 2005-06 PASSED AGAINST THE ORDER OF ASSESSMENT FRAMED BY THE LEARN ED AO U/S 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. THE REVENUE HAD RAISED THE FOLLOWING GROUNDS BE FORE US:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN DELETING THE ADDITION OF RS.1,5 2,800/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF FILING FEE FOR INCREASING THE AUTH ORIZED CAPITAL, WITHOUT CONSIDERING THE FACT THAT THE SAME IS CAPITAL IN NATURE. 2. THAT, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS O F THE CASE IN CONSIDERING THAT THE ASSESSEE OWNS 210.89 BIGHAS OF LAND INSTEAD OF 38.9 0 BIGHAS OF LAND WITHOUT ASKING FOR THE OWNERSHIP OF LAND. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN NOT CONSIDERING THE FACT THAT T HE ASSESSEE NEVER COMPLIED WITH THE REQUIREMENTS OF SECTION 142(1) TO PROVE THE GENUIN ENESS OF AGRICULTURAL INCOME. 4. THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN DETERMINING THE AGRICULTURAL IN COME OF THE ASSESSEE AT THE RATE OF RS.20,000/- PER BIGHA OF LAND INSTEAD OF RS.10,000/ - PER BIGHA OF LAND AS MADE BY THE ASSESSING OFFICER, WITHOUT ANY BASIS. 5. THAT THE APPELLANT CRAVES FOR LEAVE TO ADD, DELE TE OR MODIFY ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. ONE OF THE ISSUE INVOLVED IN THIS APPEAL IS ID ENTICAL TO AN ISSUE RAISED IN THE APPEAL FOR THE ASST YEAR 2004-05. APART FROM THIS , THERE ARE OTHER ISSUES IN ASST YEAR 2005- 06. 4. WE HAVE HEARD THE LEARNED DR AND IN ITA NO. 14 79/2009 FOR ASST YEAR 2004-05 ABOVE, WE HAD DIRECTED THE LEARNED AO TO REFRAME TH E ENTIRE ASSESSMENT AFRESH IN ACCORDANCE WITH LAW UNINFLUENCED BY EARLIER DECISIO NS AND MAKE DENOVO ADJUDICATION OF THE ENTIRE ISSUES. THE SAME DIRECTION WOULD BE APPLICABLE FOR THIS ASSESSMENT YEAR ITA NOS.1479&1480/KOL/2009 M/S. BISWAS AGRO LTD. A .YRS.2004-05 & 2005-06 4 2005-06 ALSO. ACCORDINGLY, THE GROUNDS RAISED BY T HE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. IN THE RESULT, THE APPEALS OF THE REVENUE IN ITA NO . 1479 / 2009 AND 1480 / 2009 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 6.10.2015. SD/- SD/- [MAHAVIR SINGH] [M.BALAGANESH] JUDICIAL MEMBER ACCOUNTANT MEMBE R DATE: 6.10.2015. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . M/S. BISWAS AGRO LIMITED, 72/1, BAGBAZAR STREET, KO LKATA-700003. 2 THE I.T.O., WARD-6(4), KOLKATA. 3 . THE CIT-II, KOLKATA, 4. THE CIT(A)-VI, KOLKATA. 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES