ITO, Coimbatore V. M.G.Paripooranam, Coimbatore

ITA 154/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95970 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 04-08-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 20-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH IRS
• Assessee Lawyers: B RAMAKRISHNAN
• Keywords: Unexplained cash credit; Gift; Income from undisclosed sources; Source of fund; Tangible material; Reason to believe
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI . . . , ! , ' #$ % [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ] ./ I.T.A.NOS.110 & 111/MDS/2015 / ASSESSMENT YEARS : 2005-06 & 2006-07 & C.O. NOS. 28 & 29/MDS/2015. IN ASSESSMENT YEARS : 2006-07 & 2005-06 THE ASSISTANT COMMISSIONER OF INCOME TAX, NON CORPORATE CIRCLE-20, CHENNAI 600 034. VS. JUSTICE P.D. DINAKARAN, J-81, NEW NO.2,FIRST MAIN ROAD, ANNA NAGAR EAST, CHENNAI 600 102. [PAN AAGPD 5496F] ( &' / APPELLANT) ( ()&' /RESPONDENT/CROSS OBJECTOR) ./ I.T.A.NOS.154, 155, 156 & 157/MDS/2015 & C.O.NOS. 34, 35, 36 & 37/MDS/2015. / ASSESSMENT YEARS : 2005-06, 2006-07, 2007-08 & 2009-2010. THE INCOME TAX OFFICER, NON CORPORATE WARD 5(3) COIMBATORE VS. SMT. M.G. PARIPOORANAM, 124- KOVAI THIRU NAGAR, NEHRU NAGAR EAST, CIVIL AERODROME POST, COIMBATORE 641 014. [PAN AIPPP 9843F] ( &' / APPELLANT) ( ()&' /RESPONDENT/CROSS OBJECTOR) / APPELLANT BY : SHRI. A.V. SREEKANTH, IRS, JCIT. /RESPONDENT BY : SHRI. B. RAMAKRISHNAN, C.A. / DATE OF HEARING : 04-08-2015 / DATE OF PRONOUNCEMENT : 28-08-2015 ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 2 -: / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THESE ARE GROUP APPEALS BY THE DEPARTMENT AND CROSS OBJECTIONS BY THE ASSESSEE, WHEREIN CERTAIN ISSUES IN THESE APPEALS AND CROSS OBJECTIONS ARE COMMON IN NATURE, THESE AP PEALS AND CROSS OBJECTIONS ARE CLUBBED, HEARD TOGETHER, AND DISPOSE D OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE TAKE UP REVENUE APPEALS IN ITA NO.110 & 111/MDS/2015 FOR ADJUDICATION. THE FIRST COMMON GR OUND RAISED BY THE DEPARTMENT IS WITH REGARD TO DELETION OF ADDITI ON MADE BY TREATING THE AGRICULTURAL INCOME AS NON AGRICULTURAL INCOME FOR E4,62,500/- FOR THE ASSESSMENT YEAR 2005-06 AND E4,21,845/- FOR THE ASSESSMENT YEAR 2006-07. 3. THE FACTS OF THE CASE FOR THE ASSESSMENT YEAR 2005- 06 ARE THAT T HE ASSESSEE, IN HIS RETURNS OF INCOME OF ASSESSMENT YEAR 2005-2006 CLAIMED AGRICULTURAL INCOMES OF E4,6 2,500/- . AS PER THE CONTENTS OF THE ASSESSMENT ORDER, THE ASSESSEE OWNS 48.38 ACRES OF AGRICULTURAL LANDS AT KAVERIRAJ APURAM AND ORATHUR VILLAGES, TIRUTHANI TALUK. AS PER THE A SSESSEE, HE WAS GROWING PADDY, GROUNDNUT, AND INTER-CROPS IN THESE ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 3 -: LANDS. THE NET AGRICULTURAL INCOMES ADMITTED BY THE ASSESSEE IN HIS RETURNS OF INCOME FILED FOR ASSESSM ENT YEAR 2005-2006 IS E4,62,500/-. THE ASSESSING OFFICER DID NOT ACCEPT THE ASSESSEE'S CONTENTIONS OF AGRICULTURAL I NCOME. THE ASSESSING OFFICER OPINED THAT NO AGRICULTURAL C ROPS COULD HAVE BEEN RAISED ON THESE LANDS IN THAT CROP YEAR SO AS TO DERIVE AGRICULTURAL INCOME. THE ASSESSING OFF ICER TREATED THE ENTIRE AMOUNTS OF E4,62,500/-CLAIMED ' AS THE GROSS AGRICULTURAL INCOMES', AS INCOMES FROM OTHER SOURCES AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE FOR T HE ASSESSMENT YEAR 2005-2006. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCO ME TAX (APPEALS). 4. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED T HAT THE ASSESSEE OWNS 48.38 ACRES OF AGRICULTURAL LANDS , WHICH WERE PURCHASED BY HIM IN LATE 1980S AND EARLY 1990S. AS PRE THE REVENUE RECORDS, MAJORITY OF THE LANDS ARE WET LANDS. EVEN THE REGISTRATION DOCUMENTS REVEAL THAT THE LANDS ARE WET LANDS. ONC E THE LANDS ARE WET LANDS, THEY ARE FIT FOR CULTIVATION OF PADDY. T HE NORMAL EXPECTED NET INCOME FROM PADDY CULTIVATION RANGES FROM RS.10 ,000/- TO ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 4 -: E20,000/- PER ACRE PER ANNUM. MORE OR LESS, SAME A MOUNT OF PROFITS CAN ALSO BE EXPECTED FROM GROUNDNUT CROP, IT THERE WAS NO FAILURE OF MONSOONS. WHEREAS, IN THE INSTANT CASE, THE ASSESE ES NET INCOME FROM 48.38 ACRES OF LANDS, FROM CULTIVATION OF PADD Y, GROUNDNUT ETC., WERE E4,62,500/- (I.E AT AN AVERAGE OF E9,559/-) DU RING THE FINANCIAL YEAR 2004-05. THE ASSESSING OFFICER IN HIS ORDERS, NOTED THAT IT IS APPARENT THAT NO CROPS COULD HAVE RAISED ON THOSE L ANDS IN THAT CROP YEAR SO AS TO DERIVE AGRICULTURAL INCOME. THE O BSERVATION OF THE ASSESSING OFFICER WAS A TOTAL PRESUMPTION ONLY AND NOT BASED ON ANY REAL MATERIAL EVIDENCE. 4.1 THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT THE AGRICULTURAL LANDS ARE CLASSIFIED AS WET LANDS ONLY WHEN THEY ARE HAVING ASSURED IRRIGATION FACILITIES. WHEN THERE ARE ASSURED IRRIGATION FACIL ITIES AVAILABLE, NO PERSON WILL LEAVE THE LANDS WITHOUT C ULTIVATION OF CROPS. IF IT WAS NOT POSSIBLE FOR A PERSON TO C ULTIVATE THE LANDS ON HIS OWN, THERE ARE SEVERAL PEOPLE IN THE V ILLAGES. TO TAKE SUCH LANDS ON LEASE. IN FACT, IN RURAL IND IA, ESPECIALLY IN STATES LIKE TAMILNADU, ANDHRA PRADESH AND KARNATAKA, THERE ARE MORE NUMBER OF LANDLESS FARMERS/MARGINAL FARMERS, WHO ARE EAGER TO TAKE THE ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 5 -: AGRICULTURAL LANDS ON LEASE. IF THE WET AGRICULTUR AL LANDS ARE GIVEN ON LEASE, THE LEASE INCOME FROM THE AGRICULTU RAL LANDS ALONE WITH FETCH NOT LESS THAN E5,000/- PER ACRE PE R ANNUM. UNDER THESE CIRCUMSTANCES, IT WAS HARD TO ACCEPT T HE PROPOSITION OF THE ASSESSING OFFICER THAT NO CROP S COULD HAVE BEEN RAISED ON THESE LANDS. 4.2 THE COMMISSIONER OF INCOME TAX (APPEALS) FURTHER OBSERVED THAT THE ASSESSEE AND OTHER FAMILY MEMBERS OWN SIZEABLE EXTENTS OF AGRICULTURAL LANDS IN THE SAME VICINITY. FOR EXAMPLE, THE ASSESSEE'S BROTHER-IN-LAW, SHRI K. RAJA RABIDEV, OW NS 52.75 ACRES OF LAND IN AVERIRAJAPURAM VILLAGE, WHERE THE ASSES SEE'S LANDS ARE ALSO SITUATED. IN FACT, THESE LANDS ARE CONTIGUOUS. SHRI RAJA RABIDEV, IN HIS RETURNS OF INCOME, DECLARED 6,75,700/- AS AGRICULTURAL INCOME FROM HIS LANDS OF 52.75 ACRES, FOR A.Y. 2005- 06 AND RS.7,93,520/- AS AGRICULTURAL INCOME FOR A.Y. 2006-07. THE ASSESSING OFFICER RELYING ON THE REPORT FROM THE D ISTRICT COLLECTOR CONCLUDED THAT THE MAXIMUM YIELD POSSIBLE FROM THE LANDS OF 52.75 ACRES OF SHRI RAJA RABIDEV IS RS.4,34,900/- ( 8,245/- PER ACRE PER ANNUM) IN THE A.YS.2005-06 AND ALLOWED TH E CLAIM OF AGRICULTURAL INCOME TO THAT EXTENT ONLY AND THE BAL ANCE WAS TREATED AS INCOME FROM OTHER SOURCES. THE ASSESSING OFFICER BROUGHT THE ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 6 -: AMOUNTS IN THE HANDS OF THE PRESENT ASSESSEE. IN OT HER WORDS, THE ASSESSING OFFICER HIMSELF HAS CONFIRMED AND ALSO AL LOWED THE CLAIM OF AGRICULTURAL INCOME AT 4,34,900/- FROM THE LANDS OWNED BY SHRI K. RAJA RABIDEV, FOR THE SAME A.Y 2005-06. WHEN THE ASSESSING OFFICER HIMSELF ARRIVED AT THE AGRICULTUR AL INCOME FROM 52.75 ACRES AT 4,34,900/- FROM THE LANDS OF SHRI RAJA RABIDEV, IT WAS NOT KNOWN AS TO HOW THE ASSESSING OFFICER CAN C OME TO THE CONCLUSION THAT THE LANDS OWNED BY THE ASSESSEE ARE NOT CAPABLE OF YIELDING, ESPECIALLY WHEN THE LANDS ARE LOCATED IN THE SAME VICINITY, UNDER THE SAME SURVEY NOS. AND CONTIGUOUS TO EACH OTHER. 4.3 ACCORDING TO THE COMMISSIONER OF INCOME TAX (APPEALS) T HE ABOVE FACTS ONLY GOES TO PROVE THAT THE ASSESSING OFFICER'S CONCLUSIONS ARE ONLY PRESUMPTIO N AND ARE NOT BASED ON ANY MATERIAL FACTS. UNDER THESE CIRCUMSTANCES, THE COMMISSIONER OF INCOME TAX (APPE ALS) OPINED THAT THE ASSESSING OFFICER HAS NO MATERIAL E VIDENCES IN HIS POSSESSION TO SHOW THAT THE ASSESSEE HAS NO T CULTIVATED THE LANDS. THE ASSESSING OFFICER OBSERVA TION ARE ALL ON PRESUMPTIONS ONLY. SINCE THE ASSESSEE OWNS T HE LANDS OF 48.38 ACRES, THE MAJORITY OF WHICH ARE WET LANDS , IT WAS QUITE NORMAL THAT THE LANDS ARE PUT TO USE AGRICULT URAL USE ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 7 -: AND DERIVED SOME AGRICULTURAL INCOME. SINCE THERE A RE NO CONTRARY EVIDENCES AVAILABLE WITH THE REVENUE, THE ASSESSEE'S CLAIM. OF AGRICULTURAL INCOME, IN NORMAL COURSE, IS TO BE ACCEPTED. FURTHER, SINCE THE QUANTUM OF AGRIC ULTURAL INCOME DECLARED BY THE ASSESSEE WAS QUITE NOMINAL, AND ALSO BELOW THE AVERAGE AGRICULTURAL INCOME DETERMIN ED BY THE ASSESSING OFFICER IN THE SAME VICINITY, THE ASS ESSEES CLAIM OF AGRICULTURAL INCOME OF E4,62,500/- FROM TH E TOTAL LAND HOLDINGS OF 48.38 ACRES OF AGRICULTURAL LANDS, DURING THE FINANCIAL YEAR 2004-05 ARE QUITE REASONABLE. IT WAS ALSO OBSERVED THAT ON IDENTICAL FACTS AND CIRCUMSTANCES , IN THE ASSESSEE'S OWN CASE OF A.Y.2004-05, VIDE ORDER IN I TA NO.567/2011-12 DATED 28.03.2013, HELD THAT THE AGRICULTURAL INCOME OF RS.2, 13,930/ - SHOWN BY TH E ASSESSEE IN HIS RETURN WAS GENUINE. THEREFORE, HE D IRECTED THE ASSESSING OFFICER TO ALLOW THE ASSESSEE'S CLAIM OF AGRICULTURAL INCOMES OF E4,62,500/- IN THE ASSESSM ENT YEAR 2005-06. THUS, THE ADDITION MADE BY THE ASSESSING O FFICER WAS DELETED BY THE COMMISSIONER OF INCOME TAX (APPE ALS). AGAINST THIS, THE REVENUE IS IN APPEAL BEFORE US. S IMILARLY ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 8 -: FOR THE ASSESSMENT YEAR 2006-07 ALSO, THE REVENUE I S IN APPEAL BEFORE US. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. IT WAS BROUGHT TO OUR NOTICE THAT SIMILAR I SSUE WAS DECIDED BY THIS TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.1492 /13 AND C.O.NO.149/2013 FOR THE ASSESSMENT YEAR 2004-05, DA TED 18.11.2014, WHEREIN IT WAS HELD AS UNDER:- 13.1 THE FIRST ISSUE RAISED IN THE APPEAL IS WITH REGARD TO AGRICULTURE INCOME. THE REVENUE HAS TREATED THE AGRICULTURE INCOME OF THE ASSESSEE AS INCOME FROM OTHER SOURCES. THE LD.STANDING COUNSEL FOR THE REVENUE HAS CONTENDED THAT THE LAND OWNED BY THE ASSESSEE IS NOT CULTIVABLE AND THUS, COULD NOT PROD UCE HUGE YIELD AS CLAIMED BY THE ASSESSEE. IT IS NOT DISPUTED THAT THE ASSESSEE OWNS LAND MEASURING 48.3 8 ACRES. AS PER REVENUE RECORDS, MAJORITY OF LANDS A RE WET LANDS. THE REVENUE HAS PLACED ON RECORD DISTRI CT COLLECTORS REPORT AT PAGE 52 TO 128 OF THE PAPER B OOK. AS PER THE REPORT, THE LAND OF THE ASSESSEE IS CULT IVABLE, IRRIGATED, HAVE HIGH YIELDING FRUIT BEARING TREES A ND THUS HAVE POTENTIAL OF GENERATING INCOME 9,000/- TO 10,000/- PER ACRE. A FURTHER PERUSAL OF COLLECTO RS REPORT SHOWS THAT MANGO, AMLA, SAPOTA AND GUAVA TREES ARE STANDING ON THE LAND OWNED BY THE ASSESSE E. THE COLLECTOR IN HIS REPORT HAS FURTHER CONFIRMED I NTER- CROP CULTIVATION. THUS, THE STAND OF THE ASSESSEE THAT HE IS GETTING AGRICULTURE YIELD OF 4,000 TO 5,000/- PER ACRE IS JUSTIFIED. THE LD.STANDING COUNSEL FOR THE REVENUE HAS NOT BEEN ABLE TO CONTROVERT THE OBSERVATIONS GIVEN IN THE SURVEY REPORT WHICH HAS BEEN PLACED ON RECORD IN THE FORM OF PAPER BOOK BY REVENUE ITSELF. THE CIT(APPEALS) WHILE GIVING WELL REASONED FINDINGS ON THE ISSUE HAS HELD THAT THE ASSESSING OFFICERS CONCLUSIONS ARE ONLY PRESUMPTIO NS AND ARE NOT BASED ON ANY MATERIAL FACTS. WE SEE NO REASON TO DIFFER WITH THE FINDINGS OF CIT(APPEALS). THIS ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 9 -: GROUND OF APPEAL OF THE REVENUE IS ACCORDINGLY DISMISSED . 6. SINCE THE FACTS ARE IDENTICAL, WE ARE INCLINED TO C ONFIRM THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) O N THIS ISSUE BY PLACING RELIANCE ON THE ABOVE ORDER OF THE TRIBUNAL . THIS GROUND OF THE REVENUE IN BOTH THE APPEALS ARE REJECTED. 7. THE NEXT GROUND RAISED BY THE REVENUE IS WITH REGAR D TO THE DELETION OF ADDITION IN RESPECT OF GIFT RECEIVED FR OM SHRI. JACOB WILLIAM AT E7,50,000/- FOR THE ASSESSMENT YEAR 2006-2007. 8. THE FACTS OF THE CASE ARE THAT THE ASSESSEE RECEIVE D THE UNPROVED GIFT OF E7,50,000/- RECEIVED FROM SHRI JACOB WILLIAMS, IN THE ASSESSMENT OF ASSESSMENT YEAR 2006 -2007. THE ASSESSEE IN HIS RETURN OF INCOME FILED FOR ASSE SSMENT YEAR 2006-2007CLAIMED A GIFT OF E7,50,000/- RECEIVE D FROM HIS BROTHER-IN-LAW (SISTER'S HUSBAND), SHRI JACOB W ILLIAMS. HOWEVER, THE ASSESSING OFFICER DISBELIEVED THE ASSE SSEE'S CLAIM OF GIFT BY NOTING THAT 'THE EXPLANATION TO JU STIFY THE RECEIPT OF THESE GIFTS IS FULL OF UNANATURALITY. TH ERE WAS NO NECESSITY FOR SHRI JACOB WILLIAMS TO MAKE UNILATERA L GIFTS ON TWO DIFFERENT POINTS IN TIME THAT TOO OF HUGE SUMS TO THE ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 10 -: ASSESSEE AND NO OCCASION WAS POINTED OUT. THE RECEI PT OF A CONSIDERABLE AMOUNT OF E7,50,000/- ALLEGEDLY AS A G IFT IS THUS FOUND IMPROBABLE. THE RECORDS FILED IN THIS BEHALF DOES NOT INSPIRE ANY CONFIDENCE WHATSOEVER BESIDES THE VERSI ON BEING AGAINST ALL HUMAN PROBABILITIES THEREFORE THE ALLEG ED GIFT IS NOTHING BUT UNEXPLAINED CREDIT AND ADDED TO THE INC OME OF THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURC ES. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 9. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED T HAT ASSESSEE SUBMITTED THAT THE AMOUNT WAS RECEIVED FRO M SHRI JACOB WILLIAMS, (ASSESSEE'S SISTER'S HUSBAND), WHO OWNS 55.82 ACRES OF AGRICULTURAL LANDS AND HAS SUFFICIEN T SOURCES OF INCOME AND INDEPENDENTLY ASSESSED TO TAX. HENCE, THE ASSESSEE CLAIMED THE GIFT RECEIVED IS A GENUINE GIF T. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT THE UNPROVED OR NON-GENUINE GIFTS CAN BE BROUGHT TO TAX AS UNEXPALIEND CASH CREDITS U/S.68 OF THE AT. INORDER TO ATTRACT THE PROVISIONS OF SEC. 68, WHERE UNEXPLAINED CASH C REDITS ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 11 -: CAN BE BROUGHT TO TAX AS THE ASSESEES INCOME, THRE E CRITERIA HAVE TO BE FULFILLED. (I) IDENTITY OF THE DONOR/CREDITOR. (II) GENUINENESS OF THE TRANSACTION ; AND (III) CREDITWORTHINESS OF THE DONOR/CREDITOR. SINCE THE GIFT HAS BEEN RECEIVED FROM ASSESSEE'S OW N UNCLE, THAT TOO, BY WAY OF BANK ONLY, AND THE EXISTENCE A ND ADDRESS OF THE DONOR IS AVAILABLE, THE FIRST TWO CR ITERIA ARE FULFILLED IN FAVOUR OF THE ASSESSEE. THE SOURCES IN THE HANDS OF SHRI JACAB WILLIAMS ARE ALSO AVAILABLE BEFORE MA KING THE GIFT. IN FACT, THE ASSESSING OFFICER HAS NEVER QUES TIONED THE CREDITWORTHINESS OF THE DONOR. HENCE, EVEN THE THIR D CRITERIA IS ALSO FULFILLED IN FAVOUR OF THE ASSESSEE. FURTH ER, SHRI JACOB WILLIAMS IS AN INDEPENDENT ASSESSEE WITH PAN: AALPW2915M. CONSEQUENT TO THE ABOVE ALLEGATIONS IN THE CASE OF THE ASSESSEE, THE ASSESSMENTS OF SHRI JACOB WILLIAMS ARE ALSO RE-OPENED. THE ASSESSING OFFICER OF SHRI J ACOB WILLIAMS, WHILE COMPLETING THE ASSESSMENT FOR THE ASSESSMENT YEAR 2006-07, U/S.143(3) R.W.S. 147 ON 28.12.2011, EXAMINED THE ISSUE OF AGRICULTURAL INCOME, OF E5,57,840/- - CLAIMED IN THE RETURN AND HELD THAT CLAIM OF ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 12 -: AGRICULTURAL INCOME IS REASONABLE, GENUINE AND TRUE . THE ASSESSING OFFICER'S APPREHENSIONS WERE BASICALLY ON TWO COUNTS. ONE, AS TO WHY THE DONOR HAS TO OBTAIN UNI LATERAL GIFTS ON TWO DIFFERENT POINTS OF TIME AND TWO, THE GIFT IS AGAINST THE HUMAN PROBABILITIES. IT IS AN UNDISPUTABLE FACT THAT THERE IS A FAMILY RELATION BETWEEN THE ASSESSE E AND THE DONOR, THE LATTER BEING THE HUSBAND OF THE ASSESSEE 'S SISTER. WHEN THERE IS SUCH A CLOSE FAMILY RELATION, GIFTS A RE NOT UNCOMMON. WHEN THE DONOR HAS EXPLAINABLE SOURCES AN D OUT OF SUCH SOURCES, IF HE DONATES SOME AMOUNT, THE REVENUE SHOULD NOT SUSPECT THE TRANSACTION AS DOUBT FUL. IN THE INSTANT CASE, THE DONOR HAS CLEAR AND EXPLAINAB LE SOURCES. HE HAS MADE THE GIFT TO THE ASSESSEE BY WA Y OF BANK. HE HAS CONFIRMED THE GIFT AND THERE WAS A CLO SE FAMILY RELATION. THEREFORE, THE GIFT CANNOT BE TREATED AS AGAINST THE HUMAN PROBABILITIES. FURTHER, SINCE ALL THE THREE I NGREDIENTS, WHICH ARE REQUIRED TO BE EXAMINED BEFORE TREATING A CREDIT AS UNEXPLAINED CREDIT U/S. 68, ARE CLEARLY FULFILLED IN FAVOUR OF THE ASSESSEE. UNDER THESE CIRCUMSTANCES, THE ASSESS ING OFFICER IS NOT JUSTIFIED IN REJECTING THE ASSESSEE' S CLAIM OF GIFT OF E7,50,000/- FROM SHRI J. WILLIAMS. THEREFORE, TH E ADDITION ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 13 -: OF E7,50,000/- MADE BY THE ASSESSING OFFICER AS UNE XPLAINED CASH CREDITS, IN THE ASSESSMENT OF A.Y.2006-07, IS DELETED. AGAINST THIS, THE REVENUE IS IN APPEAL BEFORE US. 10. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERI AL ON RECORD. IT WAS BROUGHT TO OUR NOTICE THAT SIMILAR I SSUE WAS DECIDED BY THIS TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.1492 /13 AND C.O.NO.149/2013 FOR THE ASSESSMENT YEAR 2004-05, DA TED 18.11.2014, WHEREIN IT WAS HELD AS UNDER:- 13.2 THE NEXT ISSUE IN APPEAL IS WITH REGARD TO GIF T OF ` 1,05,000/- FROM MR.JACOB WILLIAMS. MR. WILLIAMS HA S CONFIRMED THE FACT OF MAKING GIFT. IT IS UNDISPUTE D THAT THE DONAR AND THE ASSESSEE ARE CLOSELY RELATED. THE G IFT HAS BEEN MADE BY WAY OF DEMAND DRAFT. THE DONOR HAS BE EN ABLE TO SHOW THE SOURCE OF INCOME FOR MAKING THE GI FTS. SINCE, THE ASSESSEE HAS BEEN ABLE TO SHOW THE SOURC E OF GIFT AND THE CREDITWORTHINESS OF THE DONOR HAS ALSO BEEN ESTABLISHED, THE ASSESSING OFFICER HAS ACTED IN AN ARBITRARY MANNER & WITHOUT ANY JUSTIFICATION IN MAKING THE AD DITION OF GIFT AMOUNT AS INCOME FROM OTHER SOURCES. WE DO NOT FIND ANY ERROR IN THE FINDINGS OF THE CIT(APPEALS) ON TH IS ISSUE. ACCORDINGLY, THIS GROUND OF APPEAL OF THE REVENUE I S DISMISSED . 11. SINCE THE FACTS ARE IDENTICAL, WE ARE INCLINED TO C ONFIRM THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) O N THIS ISSUE BY PLACING RELIANCE ON THE ABOVE ORDER OF THE TRIBUNAL . THIS GROUND OF THE REVENUE IN ASSESSMENT YEAR 2006-2007 IS REJECTED. 12. THE NEXT GROUND IS WITH REGARD TO DELETION OF ADDIT ION IN RESPECT OF DEPOSITS IN THE BANK ACCOUNT FOR E4,61,5 00/- FOR THE ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 14 -: ASSESSMENT YEAR 2005-2006 AND E4,27,454/- FOR THE A SSESSMENT YEAR 2006-2007. 13. THE FACTS OF THE CASE FOR THE ASSESSMENT YEAR 2005- 06 ARE THAT THE ASSESSEES BANK ACCOUNT CONTAINED CASH DEP OSIT OF E4,61,500/- DURING THE FINANCIAL YEAR 2004-05, RELE VANT TO THE ASSESSMENT YEAR 2005-06. THE ASSESSEE EXPLAINED TH AT THESE DEPOSITS IS ON ACCOUNT OF THE AGRICULTURAL INCOME EARNED DUR ING THE YEAR AND DEPOSITED IN THE BANK. HOWEVER, THE ASSESSING OFFI CER DID NOT ACCEPTED THE ASSESSEES EXPLANATIONS. THE ASSESSIN G OFFICER WAS OF THE VIEW THAT THE ASSESSEE HAVE NOT GENERATED ANY A GRICULTURAL INCOME DURING THE YEAR AND HENCE THE DEPOSITS COULD NOT HA VE MADE OUT THE AGRICULTURAL INCOME. ACCORDINGLY, THE ASSESSING OF FICER ADDED A SUM OF E4,61,500/- TO ASSESSEES TOTAL INCOME. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCO ME TAX (APPEALS). 14. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED T HAT THE ADDITION MADE BY THE ASSESSING OFFICER WAS NOT JUSTIFIED IN TWO REASONS. I.E. (I) WHEN THE ASSESSEE CLAIMS CERTAIN AGRICULTURAL INCOME THE SAME FORMS A SOURCE FOR INVESTMENTS/ ASSETS INC LUDING THE CASH ETC. IF THE ASSESSING OFFICER IS OF THE OPINION TH AT THE AGRICULTURAL ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 15 -: INCOME IS NOT GENUINE THE SAME CAN BE BROUGHT TO TA X AS INCOME FROM OTHER SOURCES. IN SUCH A CASE ALSO, THE AMOUNT SO BROUGHT TO TAX AS INCOME FROM OTHER SOURCES CAN BE SOURCE FOR INVESTM ENTS/ASSETS INCLUDING THE CASH ETC. IN EITHER OF THE SITUATION S THE SOURCES STANDS EXPLAINED AND NO SEPARATE ADDITION WAS WARRANTED U/ S.68 ON ACCOUNT OF THE DEPOSITS INTO BANK ACCOUNT. THEREFORE THE A CTION OF THE ASSESSING OFFICER IN THE PRESENT CASE OF ASSESSING THE AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES, ON ONE HAND, A ND ALSO BRINGING THE DEPOSITS INTO THE BANK ACCOUNT AS UNEXPLAINED C ASH CREDITS, ON THE OTHER HANDS, CLEARLY AMOUNTS A DOUBLE ADDITION, WHI CH WAS NOT PERMITTED IN THE I.T. ACT. THE ASSESSEES CLAIM OF AGRICULTURAL INCOME OF E4,62,500/- DURING THE FINANCIAL YEAR 2004-2005 WAS ALLOWED AS THE CREDITS STANDS EXPLAINED. THUS, THE COMMISSIONER O F INCOME TAX (APPEALS) DELETED THE ADDITION OF E4,61,500/- MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT YEAR 2005-2006 ON ACCOUNT OF DEPOSITS IN THE BANK ACCOUNT. AGAINST THIS, THE REVENUE IS IN APPEAL BEFORE US. 15. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERI AL ON RECORD. THERE WAS ENOUGH EVIDENCE TO SHOW THAT AGRI CULTURAL INCOME WAS DEPOSITED IN THE BANK ACCOUNT, THEREFORE THE SO URCE IS EXPLAINED. BEING SO, THERE CANNOT BE ANY UNDISCLOSED INCOME U/ S.68 OF THE ACT. ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 16 -: HENCE, WE CONFIRM THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS). SINCE, THIS ISSUE IS COMMON IN BOTH THE APPEALS, THIS GROUND OF THE REVENUE IN BOTH THE APPEALS ARE REJECTED. 16. THE NEXT GROUND RAISED BY THE REVENUE IN THIS APPEA L IS WITH TO DELETION OF ADDITION IN RESPECT OF ASSESSEES SP OUSES AGRICULTURAL INCOME AT E2,45,113/- AND E5,90,992/- FOR THE ASSES SMENT YEARS 2005- 06 AND 2006-2007 RESPECTIVELY. 17. THE FACTS OF THE CASE FOR THE ASSESSMENT YEAR 2005- 2006 ARE THAT DR. (SMT.) VINODINI DINAKARAN (W IFE OF THE ASSESSEE), FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR 2005-06, SHOWED AGRICULTURAL INCOME OF E2,45,113/-. HOWEVER THE ASSESSING OFFICER OPINED THAT 'AGRICULTURAL INCOME COULD NOT HAVE BEEN GENERATED FROM THOSE LANDS'. HENCE THE ASSESSING OFFICER DISALLOWE D THE CLAIM OF AGRICULTURAL INCOME OF SMT. VINODINI DINAKA RAN AND TREATED THE SAME AS INCOME FROM OTHER SOURCES. FURT HER, THE ASSESSING OFFICER BROUGHT THE SAID AMOUNT TO TA X IN THE HANDS OF THE ASSESSEE BY OBSERVING THAT SMT. VINODI NI DINAKARAN HAS NO SUBSTANTIAL INCOME OF HER OWN AND H AILS ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 17 -: FROM MODEST FAMILY BACKGROUND AND HENCE THE REPORTE D INCOME COULD NOT BE ATTRIBUTED TO HER BUT HAS TO BE NECESSARILY TREATED AS THE INCOME OF THE ASSESSEE. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 18. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT DR. VINODINI DINAKARAN IS A PROFESSIONALLY QUALIFIE D AND A PRACTICING MEDICAL DOCTOR. SHE HAS HER OWN SOURCES OF INCOME AND INDEPENDENTLY ASSESSED TO TAX, VIDE PAN: ACDPV6530F. THE RETURNED INCOME OF DR. VINODINI DINAKARAN IN HER RETURN OF INCOME FOR THE ASSESSME NT YEAR 2005-2006 ARE E4,20,190/- BEFORE CONSIDERING THE AGRICULTURAL INCOME OF E2,45,113/- CLAIMED. THE ASSESSING OFFICER'S APPREHENSIONS WERE THAT 'THE BACKGROUND OF DR. VINODINI DINAKARAN WAS MODEST AN D HENCE SHE WAS NOT CAPABLE OF GENERATING SUCH FUNDS . THIS OPINION OF THE ASSESSING OFFICER WAS PURELY ON PRESUMPTIONS AND SURMISES AND NOT BASED ON ANY MATE RIAL FACTS/EVIDENCES. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED HOW THE ASSESSING OFFICER FRAMED AN OPINION THAT THE BACKGROUND OF A PROFESSIONALLY QUA LIFIED ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 18 -: AND PRACTICING MEDICAL DOCTOR COULD BE TREATED AS M ODEST. NOR THERE WERE ANY SUCH EVIDENCES / INFORMATION BRO UGHT ON RECORD BY THE ASSESSING OFFICER THAT THE SOURCES OF FUNDS HAVE FLOWN FROM THE ASSESSEE. IN FACT, THE A SSESSING OFFICER I.E ACIT, BUSINESS CIRCLE II, CHENNAI OF D R. VINODINI DINAKARAN WHILE COMPLETING THE ASSESSMENT S OF A.Y.2005-06 U/S.143(3) R.W.S. 147 DATED 29.12.2011 , EXAMINED THE ISSUE OF AGRICULTURAL INCOME AND HELD THAT ONLY E 97,125/ - REPRESENTS TRUE AGRICULTURAL INCOM E FOR A.Y.2005-06, AND ALLOWED THE CLAIM OF AGRICULTURAL INCOME TO THAT EXTENT ONLY. THE ASSESSING OFFICER TREATED THE DIFFERENCES OF E1,44,969 / - (I.E. E2,45,113/- E9 7,125/-) AS THE INCOME FROM THE OTHER SOURCES AND ADDED TO T HE TOTAL INCOME OF DR. VINODINI DINAKARAN, IN THE ASSE SSMENTS OF A.YS.2005-06. THESE ASSESSMENTS OF DR. VINODINI DINAKARAN ARE ON SUBSTANTIVE BASIS AND NOT ON PROTE CTIVE BASIS. THE ABOVE CLEARLY PROVES THAT THE ABOVE CLA IM OF AGRICULTURAL INCOME OF E2,45,113/- BY DR. VINODINI INAKARAN, IN HER RETURN OF INCOME OF A.Y.2005-06, B ELONGS HER ONLY. FURTHER, THE DISTRICT COLLECTORS / HORTIC ULTURAL BOARD'S REPORT SHOWS THAT THERE ARE 296 MANGO TREES IN ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 19 -: 9.47 ACRES, CAPABLE OF YIELDING AN INCOME OF E4,14, 400/- (DURING THE FINANCIAL YEAR 2004-05). SHE IS AN INDE PENDENT ASSESSEE WITH HER KNOWN SOURCES OF INCOME FROM THE PROFESSIONAL PRACTICE OF MEDICINE (DOCTOR). FU RTHER THE LANDS ARE OWNED BY DR. VINODINI DINAKARAN FOR A PER IOD OF MORE THAN 10 YEARS AS ON 31.03.2004. UNDER A SUCH A SITUATION, IT WAS NOT POSSIBLE TO PRESUME OR CONCLUDE THAT 'THE REPORTED AGRICULTURAL INCOME IN THE HANDS OF DR . VINODINI DINAKARAN COULD NOT BE ATTRIBUTED TO HER'. FURTHER, THE ASSESSING OFFICER OF DR. VINODINI DINAKA RAN HAS CLEARLY EXAMINED THE ISSUE OF AGRICULTURAL INCO MES OF RS.2,45, 113/- CLAIMED IN THE RETURNS OF INCOME OF A.Y.2005-06 AND HELD THAT ONLY E97,125/- REPRESENT S TRUE AND POSSIBLE AGRICULTURAL INCOME AGRICULTURAL INCOM E FOR A.Y.2005-06, AND THE BALANCE REPRESENTS UNACCOUNTED INCOME AND ASSESSED TO TAX, IN OTHER WORDS, THE ASSESSING OFFICER OF DR. VINODINI DINAKARAN) HAS ACCEPTED THE PRESENCE OF AGRICULTURAL INCOME AND ITS TAXABILITY IN THE HANDS OF DR. VINODINI DINAKARAN, THAT TOO ON SUBSTANT IVE BASIS. THEREFORE, AS PER THE REVENUE (I.E. THE ASSE SSING OFFICER OF DR. VINODINI DINAKARAN), THE CLAIM OF AGRI CULTURAL ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 20 -: INCOME OF RS.2,45,113/- CLAIMED IN THE RETURNS OF I NCOME OF A.Y 2005-06 DECLARED BY DR. VINODINI DINAKARAN HAD ACTUALLY BELONGED TO HER ONLY. THE PRESENT ASSESSIN G OFFICER OF THE INSTANT ASSESSEE, HAS NO CONTRARY EV IDENCES OR INFORMATION IN HIS POSSESSION TO PROVE THAT THE AGRICULTURAL INCOME OF E2,45,113/- DECLARED BY DR. V INODINI DINAKARAN, IN HER RETURN FOR THE ASSESSMENT YEAR 200 5-06 HAD ACTUALLY BELONGED TO THE INSTANT ASSESSEE (JUST ICE PD DINAKARAN). FURTHER , THE COMMISSIONER OF INCOME TAX (APPEALS) THAT ON IDENTICAL FACTS AND CIRCUMSTANCES , IN THE ASSESSEE'S OWN CASE OF A.Y.2004-05, VIDE ORDER IN I TA NO.567 /2011-12 DATED 28.03.2013, IT WAS HELD THAT THE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE'S WIFE IN HER RETURN SHOULD NOT BE CONSIDERED FOR THE PURPOSE OF ASSESSMENT OF THE INSTANT ASSESSEE. THEREFORE, THE ASSESSING OFFICER'S ACTION OF TREATING AND ASSESSIN G THE SAID AGRICULTURAL INCOMES UNDER THE HEAD 'INCOME F ROM OTHER SOURCES' IN THE HANDS OF THE ASSESSEE, IS ONL Y ON PRESUMPTIONS AND NOT BASED ON ANY MATERIAL FACTS / EVIDENCES. THE COMMISSIONER OF INCOME TAX (APPEALS) ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 21 -: DELETED THE ADDITION. AGAINST THIS, THE REVENUE IS IN APPEAL BEFORE US. 19. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERI AL ON RECORD. A SIMILAR ISSUE WAS CONSIDERED BY THE TRIBU NAL IN ASSESSEES OWN IN ITA NO.1492/MDS/2013 AND C.O.NO.149/2013 FOR THE ASSESSMENT YEAR 2004-05, WHEREIN IT WAS HELD AS UND ER:- 13.3 THE NEXT ISSUE IN APPEAL IS WITH REGARD TO A DDITION OF AGRICULTURE INCOME OF DR.VINODINI DINAKARAN, WIF E OF ASSESSEE, IN THE INCOME OF ASSESSEE. THE ASSESSING OFFICER HAS INCLUDED THE INCOME OF DR.VINODINI DINA KARAN, IN THE HANDS OF ASSESSEE ON THE GROUND THAT DR.VINO DINI DINAKARAN DOES NOT HAVE INDEPENDENT SOURCE OF INCOM E AS SHE HAILS FROM MODEST FAMILY. THE REVENUE HAS F AILED TO TAKE INTO CONSIDERATION THE FACT THAT DR.VINODIN I DINAKARAN IS A QUALIFIED MEDICAL PRACTITIONER AND I S WORKING WITH CSI KALYANI HOSPITAL. THUS, SHE IS HA VING INDEPENDENT SOURCE OF INCOME. IT IS ALSO AN ADMITT ED FACT THAT DR.VINODINI DINAKARAN IS HAVING MORE THAN 29 A CRES OF AGRICULTURE LAND IN HER NAME. THE SAID LAND IS CULTIVABLE AND SHE IS CARRYING ON AGRICULTURE OPERATION THEREO N. SHE IS HAVING MANGO ORCHED WITH 296 MANGO TREES OF HIGH YIELDING VARIETIES. THE CIT(APPEALS) IN HIS ORDER HAS CATEGORICALLY HELD THAT DR.VINODINI DINAKARAN IS HA VING INDEPENDENT SOURCE OF INCOME FROM HER PROFESSION AS WELL AS AGRICULTURE INCOME. THE LD.COUNSEL FOR THE REVE NUE HAS NOT BEEN ABLE TO CONTROVERT THE FINDINGS OF CIT(APPEALS). THUS, IN VIEW OF THE UNREBUTTED FIND INGS, THE ARGUMENTS RAISED BY THE LD. STANDING COUNSEL TH AT THE WIFE OF ASSESSEE IS NOT HAVING INDEPENDENT SOURCE O F INCOME DOES NOT HOLD GROUND. THE CIT(APPEALS) HAS RIGHTLY HELD THAT THE ASSESSING OFFICERS ACTION OF ASSESSING DR.VINODINI DINAKARANS AGRICULTURE INCOM E IN THE HANDS OF THE ASSESSEE IS ONLY ON PRESUMPTIONS A ND NOT BASED ON ANY MATERIAL FACTS AND EVIDENCES. WE CONFIRM THE FINDINGS OF CIT(APPEALS) ON THE ISSUE. ACCORDINGLY, THIS GROUND OF APPEAL OF THE REVENUE I S DISMISSED. ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 22 -: 20. SINCE THE ISSUE IS COVERED BY THE ORDER OF THE TRI BUNAL IN ASSESSEES OWN CASE, TAKING A CONSTANT VIEW, WE ARE INCLINED TO CONFIRM THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS). THIS GROUND OF THE REVENUE IN THE BOTH APPEALS IS DISMIS SED. 21. THE NEXT GROUND RAISED BY THE REVENUE IS WITH REGAR D TO DELETION OF ADDITION IN RESPECT OF GIFT RECEIVED BY THE ASSESSEES WIFE AT E12,16,260/- AND E12,50,000/- FOR THE ASSESSMENT YE AR 2005-2006 AND 2006-2007 RESPECTIVELY. 22. THE FACTS OF THE CASE ARE THAT THE GIFTS RECEIVED BY DR. VINODINI DINAKARAN FROM SHRI RAJA RABIDEV, SHRI JAC OB WILLIAMS AND MOTHER SMT.M.G.PARIPOORANAM. DR (MRS). VINODINI DINAKARAN, IN HER RETURNS OF INCOME OF A.Y. 2005-06 AND 2006-07 RESPECTIVELY, CLAIMED OF GIFTS OF E12,1 6,260/- AND E12,50,000/- FROM SHRI RAJA RABIDEV, SHRI . JACOB WILLIAMS AND MOTHER SMT.M.G.PARIPOORANAM. THE ASSES SING OFFICER OPINED THAT THE SAID GIFTS ARE IMPROBABLE A ND NON- GENUINE. ACCORDINGLY, THE ASSESSING OFFICER DISALLO WED THE CLAIM OF GIFTS RECEIVED AND BROUGHT TO TAX AS INCOM E FROM OTHER SOURCES, IN THE HANDS OF THE ASSESSEE ON THE PRESUMPTION THAT THE SOURCE IS ULTIMATELY ATTRIBUTA BLE TO THE ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 23 -: ASSESSEE ONLY. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 23. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT THE ASSESSEE SUBMITTED THAT HIS WIFE DR. VINOD INI DINAKARAN, IS A QUALIFIED MEDICAL DOCTOR AND PRACTI CING WITH M/S. C.S. KALYANI HOSPTIALS. SHE HAD HER OWN AND R EGULAR INCOME FROM HER MEDICAL PROFESSION. HER HUSBANDS SISTERS HUSBAND (JACOB WILLIAMS), MOTHER (SMT. M.G . PARIPOORNAM) AND BROTHER (SHRI. RAJA RABIDEV) ARE A LL ESTABLISHED AGRICULTURISTS OWNING AGRICULTURAL LAND S OF 45 ACES TO 60 ACRES EACH, IN THE VILLAGE OF KAVERIRAJA PUAM. THEY WERE CULTIVATING THE SAID LANDS FOR THE PAST 1 5 YEARS OR SO AND HAVE SUFFICIENT SOURCES OF INCOME OF THEI R OWN. THE ASSESSEE FURTHER STATED THAT SINCE ALL THE PERS ONS INVOLVED IN THE GIFT TRANSACTION ARE INDEPENDENT AS SESSEES AND THE SOURCES ARE ALSO AVAILABLE, THE SAID GIFT WAS TO BE TREATED AS A GENUINE ONE. THE ASSESSEE STATED THAT IF THE REVENUE DISBELIEVES THE TRANSACTION, THE AMOUNT SHO ULD BE ASSESSED EITHER IN THE HANDS OF THE RECIPIENT OR T HE DONOR AND NOT IN THE HAND S OF SOME OTHER PERSON. THE COMMISSIONER OF INCOME TAX (APPEALS) FURTHER OBSERV ED ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 24 -: THAT THE SMT. (DR.) VINODINI DINAKARAN (THE ASSESSE E'S WIFE) IS A PROFESSIONALLY QUALIFIED AND PRACTICING MEDICAL DOCTOR. SHE HAS HER OWN SOURCES OF INCOME AND INDEPENDENTLY ASSESSED TO TAX, VIDE PAN: ACDPV6530F . THE RETURNED INCOME OF DR. VINODINI DINAKARAN IN HE R RETURNS OF INCOME FOR THE ASSESSMENT YEARS 2005-06 AND 2006-2007 ARE E4,20,190/- AND E7,19,060/- BEFORE CONSIDERING THE AGRICULTURAL INCOMES OF E.2,45,113/ - AND E5,90,992/-SIMILARLY, HER FATHER (SRI JAMES KUPPUSA MY), MOTHER (SMT. M.G PARIPOORNAM], BROTHER (SHRI RAJA RABIDEV) AND HUSBAND'S SISTER'S HUSBAND (JACOB WIL LIAMS) ALSO INDEPENDENT ASSESSEES AND ARE ALL ESTABLISHED AGRICULTURISTS OWNING SUBSTANTIAL EXTENTS OF AGRICU LTURAL LANDS RANGING FROM 45 ACRES TO 60 ACRES EACH, IN TH E VILLAGE OF KAVERIRAJAPURAM. THUS, ALL THE PERSONS I.E. DR. VINODINI DINAKARAN, SHRI. JACOB WILLIAMS, SHRI. RAJA RABIDEV , SMT. M.G. PARIPOORANAM, ARE INDEPENDENT NOT ONLY IN TERM S OF THE AFFAIRS BUT ALSO IN TERMS OF FINANCIAL MATTERS. DURING THE FINANCIAL YEARS 2004-05 AND 2005-06, DR. VINODI NI DINAKARAN RECEIVED TOTAL GIFTS OF E12,16,260/- AND E12,50,000/ - FROM THE ABOVE RELATIVES. THE RELATIONS ARE ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 25 -: VERY CLOSE AND BLOOD RELATIONS. A CLAIM OF GIFT, IF NOT ACCEPTED BY THE REVENUE, CAN BE BROUGHT TO TAX AS UNEXPLAINED CASH CREDIT ONLY, U/S.68 OF THE ACT. IN ORDER TO ATTRACT THE PROVISIONS OF SEC.68, WHERE UNEXPLAINED CASH CREDITS CAN BE BROUGHT TO TAX AS THE ASSESSEE'S INC OME, THREE CRITERIA HAVE TO BE FULFILLED (IV) IDENTITY OF THE DONOR/CREDITOR. (V) GENUINENESS OF THE TRANSACTION ; AND (VI) CREDITWORTHINESS OF THE DONOR/CREDITOR, SINCE THE GIFTS HAVE BEEN RECEIVED BY DR. VINODINI DINAKARAN FROM CLOSE RELATIVES ONLY, THAT TOO, THR OUGH BANK CHANNELS, THE EXISTENCE AND IDENTITY OF THE DONORS IS AVAILABLE AND THE GENUINENESS OF THE TRANSACTION ST ANDS ESTABLISHED. HENCE, THE FIRST TWO CRITERIA ARE FULF ILLED IN FAVOUR OF THE ASSESSEE. THE SOURCES IN THE HANDS OF SHRI RAJA RABIDEV, JACOB WILLIAMS AND SMT MG PARIPOORNAM . ARE ALSO AVAILABLE BEFORE MAKING THE GIFTS. IN FACT, T HE ASSESSING OFFICER HAS NEVER QUESTIONED THE CREDITWO RTHINESS OF THE DONORS. THE ASSESSING OFFICER'S APPREHENSION S WERE BASICALLY ON TWO COUNTS I.E. FIRSTLY, THAT THERE WA S NO NECESSITY OR OCCASION TO GIVE THE GIFT, AND SECONDL Y, THE GIFT IS FOUND TO BE IMPROBABLE. IT IS AN UNDISPUTABLE FACT THAT ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 26 -: THERE ARE CLOSE FAMILY BLOOD RELATIONS BETWEEN DR. VINODINI DINAKARAN AND THE DONORS. WHEN THERE WAS SUCH A CLO SE BLOOD RELATION, GIFTS ARE QUITE COMMON AND NATURAL . WHEN THE DONORS HAVE EXPLAINABLE SOURCES AND OUT OF SUCH SOURCES, IF THEY DONATE SOME AMOUNT, THE REVENUE SH OULD NOT SUSPECT THE TRANSACTION AS DOUBTFUL. IN THE INS TANT CASE, THE DONORS HAVE CLEAR AND EXPLAINABLE SOURCES. THEY HAVE MADE THE: GIFTS TO THE ASSESSEE'S WIFE (DR. VINODIN I DINAKARAN), THAT TOO, THROUGH BANKING CHANNELS ONLY . THEREFORE, THE GIFT CANNOT BE TREATED AS IMPROBABLE OR NON- GENUINE. FURTHER, ALL THE THREE INGREDIENTS, WHICH ARE REQUIRED TO BE EXAMINED BEFORE TREATING A GIFT (OR A CREDIT) AS UNEXPLAINED CREDIT U/S.68 ARE CLEARLY FULFILLED IN FAVOUR OF THE ASSESSEE. UNDER THESE CIRCUMSTANCES, THE ASSESS ING OFFICER WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF GIFT OF E12,16,260/- AND E12,50,000/- DECLARED BY DR. VINOD INI DINAKARAN IN HER RETURNS OF A.YS 2005-2006 AND 200 6- 2007. IT IS ALSO IMPORTANT TO MENTION HERE THAT THE ASSESSING OFFICER OF DR. VINODINI DINAKARAN, WHILE COMPLETING THE ASSESSMENT OF A.YS. 2005-06 AND 2006 -2007 OF DR. VINODINI DINAKARAN, U/S.143(3) R.W.S. 147 DA TED ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 27 -: 29.12.2011, EXAMINED THE ISSUE OF CLAIM OF GIFTS E12,16,200/- AND E12,50,000/-. THE ASSESSING OFFICE R IN HIS ORDER, REJECTED THE CLAIM OF SAID GIFT OF E12,16,20 0/- AND E12,50,000/- AND TREATED AS THE INCOME FROM OTHER S OURCES AND ADDED TO THE TOTAL INCOME OF DR. VINODINI DINAKARAN FOR THE ASSESSMENT YEAR 2005-06 AND 2006-2007. THE SAI D ASSESSMENT OF DR. VINODINI DINAKARAN IS ON SUBSTANT IVE BASIS AND NOT ON PROTECTIVE BASIS. THE ACTS CLEARL Y SHOW THAT THE TRANSACTION OF GIFTS BETWEEN DR. VINODINI DINAKARAN AND HER RELATIVES ARE TOTALLY INDEPENDENT AND NO WAY CONNECTED TO THE AFFAIRS OF THE PRESENT ASSESSE E (JUSTICE P.D. DINAKARAN). WHEN THE ASSESSING OFFICE R OF DR. VINODINI DINAKARAN HAS EXAMINED THE ISSUE OF GIFTS, TOOK A CONSCIOUS DECISION AND BROUGHT TO TAX IN HER HANDS ONLY, THE SAID AMOUNT (GIFTS) CAN RIOT BE TREATED AS THE INCOME (WHETHER ACCOUNTED OR NOT) OF SOME OTHER PERSON. FURTHER, THE PRESENT ASSESSING OFFICER OF THE INSTANT ASSESS EE, HAS NO CONTRARY EVIDENCES OR INFORMATION IN HIS POSSESSION TO PROVE THAT THE ABOVE GIFTS OF E12,16,200/- AND E12,50,000/- RECEIVED BY DR. V INODINI DINAKARAN FROM HER RELATIVES, HAD ACTUALLY ORIGINATED FROM TH E ASSESSEES UNACCOUNTED SOURCES OF INCOME. IT WAS ALSO IMPORTA NT TO STATE THAT ON ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 28 -: IDENTICAL FACTS AND CIRCUMSTANCES, IN THE ASSESSEE S OWN CASE OF ASSESSMENT YEAR 2004-05 VIDE ORDER IN ITA NO.567/20 11-12, DATED 28.03.2013, IT WAS HELD THAT THE GIFTS CLAIMED BY T HE ASSESSES WIFE IN HER RETURN ARE GENUINE AND SHOULD NOT BE CONSIDERED FOR THE PURPOSES OF ASSESSMENT OF THE INSTANT ASSESSEE. THEREFORE, THE ASSESSING OFFICER ACTION OF TREATING AND ASSESSING THE GIFT O F E12,16,200/- AND E12,50,000/- UNDER THE HEAD INCOME FROM OTHER SOURC ES IN THE ASSESSMENT ORDERS 2005-06 AND 2006-07 WAS ONLY ON P RESUMPTIONS AND NOT BASED ON ANY FACTS/EVIDENCES. ACCORDING, T HE COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE ADDITION. AGAIN ST THIS, THE REVENUE IS IN APPEAL BEFORE US . 24. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. A SIMILAR ISSUE WAS CONSIDERED BY THE TRIB UNAL IN ASSESSEES OWN CASE IN ITA NO.1492/MDS/2013 AND C.O.NO.149/201 3 FOR THE ASSESSMENT YEAR 2004-05, DATED 18.11.2014 WHEREIN I T WAS HELD AS UNDER:- 13.4 THE NEXT GROUND ON WHICH THE REVENUE HAS ASSAILED THE FINDINGS OF CIT(APPEALS) IS WITH REGARD TO GIFTS RECEIVED BY WIFE OF THE ASSESSEE FROM HER BROTHER SHRI RAJA RABIDEV. THE ASSESSING OFFICER MADE ADDITION OF ` 15,00,000/- IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF GIFTS RECEIVED BY HIS WIFE FROM HER BROTHER. THE WIFE OF THE ASSESSEE IS AN ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 29 -: INDEPENDENT ASSESSEE HAVING SEPARATE PERMANENT ACCOUNT NUMBER (PAN) AND HAS BEEN FILING HER SEPARATE RETURN OF INCOME. SHE IS INDEPENDENTLY ASSESSED TO TAX. THE TOTAL SUM OF ` 15,00,000/- HAS BEEN GIFTED BY HER BROTHER RAJA RABIDEV ON DIFFERENT DATES I.E., ` 7,00,000/- ON 07-01-2004, ` 3,00,000/- ON 16- 03-2004 AND ` 5,00,000/- ON 08-01-2004. HE IS A CLOSE BLOOD RELATIVE OF DR.VINODINI DINAKARAN. THE DONOR HAS BEEN ABLE TO EXPLAIN THE SOURCE OF GIFTS. ONCE THE IDENTITY AND THE CREDITWORTHINESS OF THE DONOR IS ESTABLISHED, THERE IS NO REASON TO DOUBT THE VERACITY OF THE GIFT. IN VIEW OF THE FACT THAT THE WIFE OF THE ASSESSEE IS FILING HER SEPARATE RETURN OF INCOME AND THE FACT THAT IT HAS BEEN CLEARLY ESTABLISHED THAT THE GIFTS WERE GIVEN BY SHRI RAJA RABIDEV TO HER SISTER-DR.VINODINI DINAKARAN, THERE IS NO QUESTION OF MAKING ADDITION OF THE SAID GIFTS IN THE HANDS OF THE ASSESSEE. THE CIT(APPEALS) HAS RIGHTLY DELETED THE ADDITION MADE BY ASSESSING OFFICER . THEREFORE, THIS GROUND OF APPEAL OF REVENUE IS DISMISSED BEING DEVOID OF MERIT. IN VIEW OF THE ABOVE ORDER OF THE TRIBUNAL AND SIN CE THE FACTS ARE IDENTICAL, WE ARE INCLINED TO CONFIRM THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN THIS ISSUE. THIS GROUND OF THE REVENUE IN BOTH THE APPEALS IS REJECTED. 25. THE NEXT GROUND RAISED BY THE REVENUE IS WITH REGAR D TO DELETION OF ADDITION OF AGRICULTURAL INCOME OF ASSE SSEES BROTHER IN LAW ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 30 -: (SHRI.RAJA RABIDEV), ASSESSEES MOTHER-IN-LAW AND A SSESSEES SISTERS HUSBAND FOR THE ASSESSMENT YEAR 2005-06 AND 2006-07 . 26. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED T HAT IT IS AN UNDISPUTABLE FACT THAT ABOVE MENTIONED THREE RELATIVES OWNS AGRICULTURAL LANDS OF 52.75 ACES, 50.36 ACRES AND 5 5.80 ACRES RESPECTIVELY IN KAVERIRAJPURAM VILLAGE AND WERE PUR CHASED AWAY BACK IN LATE 1980S AND EARLY 1990S. ALL THE THREE PERSO NS HAVE THEIR OWN SOURCES OF INCOME AND INDEPENDENTLY ASSESSED TO TAX . THE RETURNS OF INCOME FILED BY THESE THREE PERSONS FOR THE ASSESSM ENT YEARS 2005- 2006 AND 2006-07 ALSO REFLECTED THE AMOUNT IN AGRIC ULTURAL INCOMES. AGAINST THIS, THE REVENUE IS IN APPEAL BEFORE US. 27. A SIMILAR ISSUE WAS CONSIDERED BY THE TRIBUNAL IN A SSESSEES OWN CASE IN ITA NO. ITA NO.1492/MDS/2013 AND C.O.NO .149/2013 FOR THE ASSESSMENT YEAR 2004-05, DATED 18.11.2014 WHERE IN IT WAS HELD AS UNDER:- 13.7 THE LAST ISSUE IN THIS APPEAL IS WITH REGARD T O ADDITION OF AGRICULTURE INCOME OF THE RELATIVES OF THE ASSESSEE I.E., SHRI RAJA RABIDEV, SMT.M.G.PARIPOORNAM AND MR.JACOB WILL IAMS, IN THE RETURN OF INCOME OF THE ASSESSEE. ALL THE THRE E PERSONS ARE INDEPENDENTLY ASSESSED TO TAX AND HAVE BEEN FILING SEPARATE RETURN OF INCOME REFLECTING AGRICULTURE INCOME OVER THE PERIOD OF TIME. ALL THE AFORESAID PERSONS ARE HAVING LAND-HO LDINGS IN THEIR INDIVIDUAL NAMES. THE LANDS WERE PURCHASED BY THEM WAY BACK IN 1980S AND 1990S. ALL THE AFORESAID PERSONS ARE CARRYING AGRICULTURE OPERATIONS ON THEIR RESPECTIVE LANDS. NOTHING IS EMANATING FROM RECORDS THAT THE LAND CULTIVATED BY THESE ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 31 -: PERSONS IS IN ANY WAY OWNED OR CONTROLLED BY THE AS SESSEE. THE REVENUE HAS NOT BEEN ABLE TO ESTABLISH ANY CRED IBLE REASON FOR MAKING ADDITION OF THE AGRICULTURE INCOM ES EARNED BY THE AFORESAID PERSONS IN THE HANDS OF THE ASSESSEE. THE ASSESSING OFFICER IN THE CASE OF SHRI JACOB WILLIAM S IN RE- ASSESSMENT PROCEEDINGS HAVE ACCEPTED HIS ENTIRE CLA IM OF AGRICULTURE INCOME. ONCE THE CLAIM IS FOUND TO BE GENUINE IN THE HANDS OF A PARTICULAR ASSESSEE, THE SAME AMOUNT CANNOT BE ADDED IN THE INCOME OF ANOTHER PERSON. IN THE CASE OF OTHER TWO PERSONS ALSO, THE ASSESSING OFFICER HAS ACCEPTE D PART OF AGRICULTURE INCOME AS GENUINE AND ASSESSED THE REMA INING INCOME AS INCOME FROM OTHER SOURCES IN THEIR RESP ECTIVE RETURN. IF THE INCOME IS ASSESSED TO TAX IN THE HA NDS OF ONE PERSON, THE SAME INCOME CANNOT BE BROUGHT TO TAX ON PROTECTIVE BASIS IN THE HANDS OF SOME OTHER PERSON. WE CONCUR WITH THE REASONED FINDINGS OF THE CIT(APPEALS) IN DELETING T HE ADDITION AND UPHOLD THE SAME. ACCORDINGLY, THIS GROUND OF APPEAL OF THE REVENUE IS ALSO DISMISSED. 28. SINCE THE ISSUE IS COVERED BY THE ORDER OF THE TRI BUNAL IN ASSESSEES OWN CASE CITED SUPRA, TAKING A CONSISTEN T VIEW, WE ARE INCLINED TO CONFIRM THE ORDER OF THE COMMISSIONER O F INCOME TAX (APPEALS). THIS GROUND OF THE REVENUE IN BOTH APPEA LS ARE DISMISSED. 29. THE LAST GROUND RAISED BY THE REVENUE IN THIS APPEA L IS WITH REGARD TO ADDITION OF DELETION OF AGRICULTURAL INCO ME FOR RATE PURPOSES FOR E7,53,980/- AND E8,62,040/- FOR THE ASSESSMENT YEARS 2005-06 AND 2006-2007 RESPECTIVELY. 30. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED T HAT THE CLAIMS OF THE AGRICULTURAL INCOME OF THE THREE RELATIVES WERE CONSIDERED AS GENUINE AGRICULTURAL INCOME, EITHER I N FULL OR IN PART. THE SAID AMOUNTS, EVEN IF REPRESENTS INCOME FROM OTHER SOURCES, THE SAME ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 32 -: CANNOT BE ASSESSED IN THE HANDS OF THE ASSESSEE. F URTHER, THE AMOUNTS WERE ALSO TO BE CONSIDERED IN THEIR ASSESSM ENTS FOR RATE PURPOSES. THIS CLEARLY PROVED THAT THE SAID CLAIM OF AGRICULTURAL INCOMES BY THE THREE RELATIVES, ARE NOT ONLY THE RE AL AND GENUINE AGRICULTURAL INCOMES BUT ALSO ACTUALLY BELONGED TO THE CONCERNED PERSON. THEREFORE NO AMOUNT, WHETHER AGRICULTURAL INCOME OR NOT, IS ATTRIBUTABLE TO THE ASSESSEE. IN THE ASSESSEES OWN CASE OF ASSESSMENT YEAR 2005-05, VIDE ORDER IN ITA NO.567/2011-12, DAT ED 28.03.2013, THE COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT THE AGRICULTURAL INCOME DETERMINED BY THE ASSESSING OFFICER IN THE H ANDS OF THE THREE RELATIVES SHOULD NOT BE CONSIDERED FOR THE PURPOSE OF ASSESSMENT OF THE ASSESSEE. HENCE, THE ASSESSING OFFICER ACTION OF CONSIDERING THE AGRICULTURAL INCOME OF THE THREE RELATIVES FOR RATE PURPOSES IN THE ASSESSEES HANDS IS NOT JUSTIFIED AND THE COMMISSI ONER OF INCOME TAX (APPEALS) DELETED THE ADDITION. AGAINST THIS, THE REVENUE IS IN APPEAL BEFORE US. 31. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. SINCE WE HAVE OBSERVED THAT IN EARLIER PAR A THE AGRICULTURAL INCOME CANNOT BE TREATED IN THE HANDS OF THE ASSESS EE AS NON- AGRICULTURAL INCOME, THIS GROUND OF THE REVENUE I S ALSO DISMISSED . ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 33 -: 32. COMING TO C.O.NOS.28 & 29/MDS/2015, THE ASSESSEE H AS RAISED THE FOLLOWING GROUND:- THE LD.CIT(A) ERRED IN CONFIRMING THE REOPENING O F ASSESSMENT BY THE ASSESSING OFFICER U/S.147 OF THE ACT WHICH IS BAD IN LAW. 33. THIS ISSUE WAS CONSIDERED BY THE TRIBUNAL IN ASSESS EES OWN CASE IN C.O.NO.149/MDS/2013 FOR THE ASSESSMENT YEA R 2004-05, DATED 18.11.2014, WHEREIN IT WAS HELD AS UNDER:- 12. THE LD.AR ON THE OTHER HAND HAS PLACED RELIAN CE ON THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CAS E OF CIT VS. ORIENT CRAFT (SUPRA). THE HON'BLE HIGH COURT IN TH E PECULIAR FACTS OF THAT CASE OBSERVED THAT REASONS TO BELIEV E, CANNOT HAVE TWO MEANINGS ONE APPLICABLE IN ASSESSMENT MADE U/S. 143(3) AND ANOTHER APPLICABLE U/S.143(1). IN ORIENT CRAFT NOT ICE U/S.148 OF THE ACT WAS ISSUED FOR REOPENING ASSESSMENT ON THE GROUND THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMEMNT. WHILE RECORDING THE REASONS FOR REOPENING, THE ASSESSING OFFICER STATED THAT ON GOING THROUGH THE RETURN OF INCOME, IT REVEALED THAT WHILE DEDUCTING 90% OF OTHER INCOME FROM THE PROFITS OF T HE BUSINESS, PREMIUM ON SALE OF QUOTA INCLUDED IN THE SALE, WAS NOT CONSIDERED. THE HONBLE COURT AFTER DISCUSSION VARIOUS JUDGMENT S RENDERED BY THE HON'BLE SUPREME COURT OF INDIA HELD, THAT TH E REASON DISCLOSED BY THE ASSESSING OFFICER STATING ON GOIN G THROUGH THE RETURN OF INCOME DOES NOT SATISFY THE EXPRESSION REASON TO BELIEVE. THUS, IN THE SAID CASE, RE-ASSESSMENT PR OCEEDINGS WERE INITIATED ON THE BASIS OF INFORMATION GIVEN IN THE RETURN, NO TANGIBLE MATERIAL CAME TO THE POSSESSION OF THE ASS ESSING OFFICER AFTER THE ISSUE OF INTIMATION U/S.143(1). WHEREAS, IN THE PRESENT CASE, ORIGINAL ASSESSMENT W AS MADE U/S.143(1). THE PROVISIONS OF SECTION 147 FOR RE-O PENING WERE INVOKED AFTER THE INFORMATION COLLECTED BY JIC WAS PASSED ON TO THE ASSESSING OFFICER OF THE ASSESSEE. THE ASSESSI NG OFFICER HAD SUBSTANTIAL MATERIAL TO BELIEVE THAT INCOME HAS ESC APED ASSESSMENT. IN THIS BACKGROUND, WE ARE OF CONSIDER ED VIEW THAT THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT CANNOT BE APPLIED IN THE CASE OF ASSESSEE. IN VIEW OF THE WELL SETT LED LAW AND THE FACTS OF THE CASE, THE CROSS-OBJECTIONS FILED BY TH E ASSESSEE ARE ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 34 -: DISMISSED AND THE RE-OPENING OF ASSESSMENT IS HELD TO BE JUSTIFIED . 34. IN VIEW OF THE ABOVE ORDER OF THE TRIBUNAL, THIS GR OUND RAISED BY THE ASSESSEE IN CROSS OBJECTIONS IS DISMISSED. 35. IN THE RESULT, THE APPEALS OF THE REVENUE IN ITA NO S.110 &111/MDS/2015 AND C.O.NOS. 28 & 29/MDS/2015 OF THE ASSESSEE ARE DISMISSED. 36. COMING TO ITA NOS.154 TO 157/MDS/2015 , THE ONLY GROUND RAISED BY THE REVENUE IN THESE APPEALS IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN HOLDING THAT THE ASSE SSEE HAD EARNED AGRICULTURAL INCOME TO THE EXTENT DECLARED IN HER R ETURN OF INCOME . 37. THE FACTS OF THE CASE ARE THAT THE ASSESSEE AND OTHER FAMILY MEMBERS / RELATIVES OWNS SIZEABLE EXTENTS OF AGRICULTURAL LANDS IN THE SAME VICINITY. FOR EXAMPL E, THE ASSESSEE'S SONS' BROTHER-IN-LAW, SHRI K. RAJA RABID EV, OWNS 52.75 ACRES OF LAND IN KAVERIRAJAPURAM VILLAGE, WHE RE THE ASSESSEE'S LANDS ARE ALSO SITUATED. IN FACT, THESE LANDS ARE CONTIGUOUS. SHRI RAJA RABIDEV, IN HIS RETURNS OF A. YS.2005- 06 AND 2006-07, DECLARED AGRICULTURAL INCOMES E6,75 ,700/- E7,93,520/- AS FROM HIS LANDS OF 52.75 ACRES. THE A CIT, ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 35 -: CIRCLE-I, CHENNAI, RELYING ON THE REPORT FROM THE D ISTRICT COLLECTOR CONCLUDED THAT THE MAXIMUM YIELD POSSIBLE FROM THE LANDS OF 52.75 ACRES OF SHRI RAJA RABIDEV IS E4,34,900/- (E8,245/- PER ACRE PER ANNUM) IN THESE YEARS AND ALLOWED THE CLAIM OF AGRICULTURAL INCOME TO THAT EXTENT. AG GRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISS IONER OF INCOME TAX (APPEALS). 38. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT THE ASSESSEE OWNS 50.36 ACRES OF AGRICULTURAL LANDS, WHICH WERE PURCHASED BY HIM IN 1993. AS PER THE REVENUE RECORDS, MOST OF THE LANDS ARE D RY AGRICULTURAL LANDS WITH IRRIGATION FACILITIES. THE LANDS ARE SUITABLE FOR CULTIVATION OF CROPS LIKE GROUND NUTS, VEGETABLES ETC. THE NORMALLY EXPECTED NET INCOME FROM GROUNDNU T CULTIVATION RANGES FROM E10,000/ - TO E15,000/- PER ACRE PER ANNUM. IN THE CASE OF VEGETABLE CULTIVATION THE INCOMES MAY RANGE UP TO E20,000/- 30,000/- PER ACRE PER ANNUM. WHEREAS, IN THE INSTANT CASE, THE ASSESSEE'S NET INCOME FROM 50.36 ACRES OF LANDS, FROM GROUNDNUT/VEGETABLES CULTIVATION DURING THE FINANCI AL YEAR ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 36 -: 2004-05, WAS ONLY E.4,02,400/-, I.E. AT AN AVERAGE OF E7,990/- PER ACRE ONLY. IN THE FINANCIAL YEAR 2005- 06, THE AGRICULTURAL INCOME SHOWN WAS STILL LESS. SUBSEQUEN TLY, THE ASSESSEE HAD TAKEN 48.27 ACRES OF AGRICULTURE LANDS ON LEASE FROM M/S. .CANNAN GARDENS P LTD FROM 19.08.2005 ONWARDS. HENCE THE INCOMES DURING THE FINANCIAL YEA RS 2005-06 TO 2008-09 SHOULD BE RECKONED WITH RESPECT TO 98.63 ACRES (50.36 ACRES 48.27 ACRES) OF AGRICULTUR AL LANDS. HENCE THE AGRICULTURAL INCOMES SHOWN BY THE ASSESSE E IN THE FINANCIAL YEARS 2006-07 AND 2008-2009 ARE E9,74 ,926/- AND E13,69,065/- RESPECTIVELY, WITH AVERAGE OF E9,8 85/- AND E13,881/- PER ACRE PER ANNUM. THUS THE AGRICULT URAL INCOMES SHOWN BY THE ASSESSEE, IN HER RETURNS OF A.YS.2005-06, 2006-07, 2007-08 AND 2009-10, ARE NEI THER UNREASONABLE NOR EXCESSIVE. THE COMMISSIONER OF IN COME TAX (APPEALS) OBSERVED THAT THE ASSESSING OFFICER IN HIS ORDERS NOTED THAT NO CROPS HAVE BEEN RAISED ON THOS E LANDS IN THAT CROP YEAR SO AS TO DERIVE AGRICULTURA L INCOME. THE ASSESSING OFFICER CAME TO THE CONCLUSION BASED ON THE NON-MENTION OF THE CROPS GROWN IN THE CHITTA ADANGALS/PHASLIS. THIS OBSERVATION OF THE ASSESSING OFFICER ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 37 -: WAS A TOTAL PRESUMPTION ONLY. THE CHITTA ADANGALS/P HASLIS NORMALLY MENTION THE PERENNIAL CROPS. IN THE CASE O F ANNUAL CROPS, WHICH KEEP ON CHANGING FROM YEAR TO Y EAR AND FROM SEASON TO SEASON, IT MAY NOT BE POSSIBLE F OR THE AUTHORITIES TO MENTION ALL THE DETAILS. IT WAS NOT THE CONTENTION OF THE ASSESSING OFFICER THAT THE LANDS ARE NOT FIT FOR CULTIVATION. IT WAS ALSO IMPORTANT TO MENTI ON HERE THAT VARIOUS MEMBERS OF SHRI.DINAKARAN'S FAMILY AN D OTHER RELATIVES MENTIONED ABOVE OWNS MORE THAN 250 ACRES OF AGRICULTURAL LANDS IN THE VILLAGE KAVERIRAJAPURAM. ALL THE LANDS ARE LOCATED IN THE SAME AREA AND CONTIGUOUS T O EACH OTHER. THESE AGRICULTURAL LANDS ARE CLASSIFIED AS W ET / DRY AGRICULTURAL LANDS AND ARE HAVING IRRIGATION FACILI TIES. WHEN THERE ARE IRRIGATION FACILITIES AVAILABLE, NO PERSO N WILL LEAVE THE LANDS WITHOUT CULTIVATION OF CROPS. IF IT IS NO T POSSIBLE FOR A PERSON TO CULTIVATE THE LANDS ON HIS OWN, THE RE ARE SEVERAL PEOPLE IN THE VILLAGES TO TAKE SUCH LANDS ON LEASE. IN FACT, IN RURAL INDIA, ESPECIALLY IN STATES LIKE TAMILNADU, ANDHRA PRADESH AND KARNATAKA, THERE ARE MORE NUMBER OF LANDLESS FARMERS / MARGINAL FARMERS, WHO ARE EAGER TO TAKE THE AGRICULTURAL LANDS ON LEASE. IF THE WET/ DRY AGRICULTURAL ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 38 -: LANDS ARE GIVEN ON LEASE, THE LEASE INCOME FROM THE AGRICULTURAL LANDS ALONE WILL FETCH NOT LESS THAN E5,000/- PER ACRE PER ANNUM. UNDER THESE CIRCUMSTANCES, IT IS HA RD TO ACCEPT THE PROPOSITION OF THE ASSESSING OFFICER THA T 'NO CROPS HAVE BEEN RAISED ON THESE LANDS' MERELY BASED ON THE CHITTA ADANGALS. IT IS ALSO IMPORTANT TO STATE THAT THE ASSESSEE AND OTHER FAMILY MEMBERS / RELATIVES OWNS SIZEABLE EXTENTS OF AGRICULTURAL LANDS IN THE SAME V ICINITY. FOR EXAMPLE, THE ASSESSEE'S SONS' BROTHER-IN-LAW, S HRI K. RAJA RABIDEV, OWNS 52.75 ACRES OF LAND IN KAVERIRAJ APURAM VILLAGE, WHERE THE ASSESSEE'S LANDS ARE ALSO SITUAT ED. IN FACT, THESE LANDS ARE CONTIGUOUS. SHRI RAJA RABIDEV , IN HIS RETURNS OF A.YS.2005-06 AND 2006-07, DECLARED AGRIC ULTURAL INCOMES E6,75,700/-, E7,93,520/- AS FROM HIS LANDS OF 52.75 ACRES. THE ACIT, CIRCLE-I, CHENNAI, RELYING O N THE REPORT FROM THE DISTRICT COLLECTOR CONCLUDED THAT T HE MAXIMUM YIELD POSSIBLE FROM THE LANDS OF 52.75 ACRE S OF SHRI RAJA RABIDEV IS E4,34,900/- (E8,245/- PER ACRE PER ANNUM) IN THESE YEARS AND ALLOWED THE CLAIM OF AGRI CULTURAL INCOME TO THAT EXTENT. AGGRIVED, THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEA LS). ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 39 -: IN OTHER WORDS, THE ASSESSEE'S LANDS ARE ALSO CAPABLE OF YIELD MORE OR LESS SIMILAR INCOMES, ESPECIALLY WHEN THE LANDS ARE LOCATED IN THE SAME VICINITY, AND UNDER T HE SAME SURVEY NOS. AND CONTIGUOUS TO EACH OTHER. IT CLEARLY PROVES THAT THE ASSESSING OFFICER'S CONCLUSIONS ARE ONLY PRESUMPTION AND ARE NOT BASED ON ANY MATERIAL FACTS. FURTHER, THE AVERAGE AGRICULTURAL. INCOMES DECLARED BY THE ASSESSEE FROM HER LANDS IS ALSO WELL BELOW THE AVER AGE AGRICULTURAL INCOMES DETERMINED AND ALLOWED BY THE REVENUE IN THE HANDS OF OTHER OWNERS OF THE LANDS, LIKE SHRI R AJA RABIDEV, SHRI JACOB WILLIAMS ETC. UNDER THESE CIRCUMSTANCES, THE COMMISSIONER OF INCOME TAX (APPEALS) OPINED THAT T HE ASSESSING OFFICER HAS NO MATERIAL EVIDENCES IN HIS POSSESSION TO SHOW THAT THE ASSESSEE HAS NOT CULTIVATED THE LANDS . THE ASSESSING OFFICER OBSERVATIONS ARE ALL ON PRESUMPTIONS ONLY. SINCE THE ASSESSEE OWNS THE LANDS OF 50.36 ACRES (LEASED LAND S OF 48.27 ACRES FROM M/S. CARMAN GARDENS P LTD FROM 19.08.200 5 ONWARDS), THE MAJORITY OF WHICH ARE MANGO GARDENS, IT IS QUITE NORMAL THAT THE LANDS ARE PUT TO USE AGRICULTURAL U SE AND DERIVED SOME AGRICULTURAL INCOME. SINCE THERE ARE NO CONTRARY EVIDENCES AVAILABLE WITH THE REVENUE, THE ASSESSEE'S CLAIM OF AGRICULTURAL INCOMES, IN NORMAL COURSE, IS TO BE ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 40 -: ACCEPTED. FURTHER, SINCE THE QUANTUM OF AGRICULTURA L INCOME DECLARED BY THE ASSESSEE IS QUITE REASONABLE, AND A LSO BELOW THE AVERAGE AGRICULTURAL INCOME DETERMINED BY THE REVEN UE IN THE SAME VICINITY, THE ASSESSEE'S CLAIM OF AGRICULTURAL MCOMES OF 4,02,400/-, 2,24,500/-, 9,74,926/- AND 13,69,065/-, DECLARED IN A.YS.2005-06, 2006-07, 2007-08 AND 2009-10, WAS QUITE REASONABLE. THEREFORE, THE ASSESSING OFFICER WAS DI RECTED TO ALLOW THE ASSESSEE'S CLAIM OF AGRICULTURAL INCOMES OF 4 ,02,400/-, 2,24,500/-, 9,74,926/- AND 13,69,065/-, AS DECLARED IN THE RETURNS OF A.YS.2005-06, 2006- 07,.2007-08 AND 2009 -10. THE ASSESSEE SUCCEEDS IN HER APPEALS IN THIS REGARD. AG AINST THIS, THE REVENUE IS IN APPEAL BEFORE US. 39. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. A SIMILAR ISSUE WAS CONSIDERED BY THE TRIBU NAL IN ITA NO. .1857 TO 1868/MDS/2013 FOR THE ASSESSMENT YEARS 2007-08 T O 2009-2010, DATED 18.11.2014, WHEREIN IT WAS HELD AS UNDER:- 14.1 IN ALL THE APPEALS, THE REVENUE HAS RAISED COMMON ISSUE. THE ASSESSING OFFICER HAD DIS-ALLOWE D PART OF AGRICULTURE INCOME RETURNED BY THE ASSESS EE- COMPANIES AND TREATED THE SAME AS INCOME FROM OTHER SOURCES/UN-EXPLAINED INCOME. THE ASSESSING OFFICE R DURING THE COURSE OF ASSESSMENT PROCEEDINGS OBSERVE D THAT THE ASSESSEE COMPANIES HAVE SHOWN SUBSTANTIAL AMOUNT OF AGRICULTURE INCOME IN THEIR RESPECTIVE RE TURNS OF INCOME FOR THE AYS.2007-08, 2008-09 & 2009-10. ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 41 -: THE ASSESSING OFFICER HELD THAT THE AGRICULTURE INC OME SHOWN BY THE ASSESSEE COMPANIES ARE EXCESSIVE AND UN-REASONABLE AND HENCE, TREATED THE PART OF AGRICU LTURE INCOME AS INCOME FROM OTHER SOURCES. THE DETAILS OF AGRICULTURE INCOME RETURNED BY THE COMPANIES AND TH E DIS-ALLOWANCE MADE BY THE ASSESSING OFFICERS IN CAS E OF RESPECTIVE COMPANIES ARE AS UNDER : NAME OF THE COMPANY ASSESSING OFFICER ASST. YEAR AGRI. INCOME SHOWN BY THE COMPANY AGRI. INCOME ACCEPTED BY THE ASSESSING OFFICER TREATED AS INCOME FROM OTHER SOURCES M/S.DEARLANDS (I) P.LTD., ITO, COMPANY WARD-I(1), CHENNAI 2007-08 5,11,710 2,80,542 2,31,168 2008-09 8,00,110 2,99,600 5,00,510 2009-10 11,48,800 3,75,780 7,73,020 M/S.CANAAN GARDENS P. LTD., ITO, COMPANY WARD-I(1), CHENNAI 2007-08 7,86,000 1,53,330 6,32,670 2008-09 11,06,300 3,59,153 7,47,147 2009-10 11,71,300 3,58,810 8,12,490 M/S.AMUDHAM GARDENS P. LTD., ITO, COMPANY WARD-I(1), CHENNAI 2007-08 7,86,000 (-)4,68,032 12,54,032 2008-09 5,27,350 (-)8,85,040 14,12,390 2009-10 13,14,160 (-)3,36,135 16,50,295 M/S.AMIRTHAM GARDENS P. LTD., ITO, COMPANY WARD-I(1), CHENNAI 2007-08 75,800 (-)11,54,886 12,30,686 2008- 09 4,03,973 (-)9,13,471 13,17,444 2009- 10 11,36,106 (-)2,80,484 14,16,590 THE COMPANIES WERE FLOATED IN THE YEAR 2005 AND THE LANDS WERE TRANSFERRED TO THE ABOVE COMPANIES BY TH E RELATIVES OF SHRI P.D.DINAKARAN. THE EXTENT OF LAN D TRANSFERRED BY VARIOUS PERSONS TO THESE COMPANIES A ND CROPS GROWN THEREON ARE AS UNDER : NAME OF COMPANY LAND TRANSFERRED BY EXTENT OF LAND TRANSFERRED TO CO. (IN ACRES) CROPS GROWN M/S.CANAAN K. RAJA RABIDEV 20.42 MANGO, INTER ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 42 -: GARDENS P.LTD., SHANTI SANGAMITHRA 27.85 48.27 CROP AND VEGETABLES M/S.AMUDHAM GARDENS P.LTD., JACOB WILLAMS 16.49 04.75 20.83 15.91 57.98 MANGO, GROUND NUT, VEGETABLES AND PADDY DR. PKA CHANDRASEKAR M.G. PARIPOORNAM K. RAJA RABIDEV M/S.AMIRTHAM GARDENS P.LTD., DR. PKA CHANDRASEKAR 13.72 16.59 18.21 03.34 51.86 MANGO, INTER CROP, PADDY, GROUND NUT AND VEGETABLES JACOB WILLAMS M.G. PARIPOORNAM K. RAJA RABIDEV M/S.DEAR LANDS INDIA P.LTD., JACOB WILLAMS 13.42 08.49 18.37 40.28 VEGETABLES, MANGO AND GROUND NUT K. RAJA RABIDEV SHANTI SANGAMITHRA THE SHARES IN COMPANIES WERE ALLOTTED TO THE PERSO NS WHO TRANSFERRED THEIR LAND TO THE COMPANIES. THE SHARES WERE ALLOTTED IN THE PROPORTION OF LANDHOLDI NGS TRANSFERRED. SUBSEQUENTLY, THE COMPANIES LEASED OU T AGRICULTURAL LANDS TO SOME OF ITS SHAREHOLDERS. M/S.CANAAN GARDENS P. LTD. LEASED OUT ITS LAND TO SMT.M.G.PARIPOORNAM, M/S.AMUDHAM GARDENS P.LTD. LEASED OUT ITS LAND TO SHRI K.RAJA RABIDEV AND M/S.DEAR LANDS (INDIA) P.LTD. LEASED OUT ITS LAND T O SHRI JACOB WILLIAMS. AS PER THE LEASE AGREEMENTS, THE PROCEEDS OF AGRICULTURE PRODUCE FROM THE LANDS WAS TO BE SHARED BETWEEN THE COMPANY AND THE LESSEES IN THE RATIO OF 1:2. SINCE, THE ASSESSING OFFICER IN CASE OF THE COMPANIES AND THE LESSEES WE RE DIFFERENT, THE ASSESSING OFFICERS FOLLOWED DIFFEREN T CRITERIA FOR ASSESSING AGRICULTURE INCOME OF THE COMPANIES AND THE ASSESSEES. THE SAME IS EVIDENT FROM THE TABLE GIVEN AS UNDER: ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 43 -: NAME OF THE INDIVIDUAL (LESSEES OF THE LANDS OWNED BY THE COMPANIES) ASSESSING OFFICER ASST. YEAR AGRI. INCOME SHOWN BY THE LESSEE AGRI. INCOME ACCEPTED BY AO TREATED AS INCOME FROM OTHER SOURCES SHRI J. WILLIAMS [LESSEE FOR THE LANDS OF M/S.DEARLANDS (I) P. LTD] ITO, COMPANY WARD-I(6), VELLORE 2007-08 9,92,500 9,92,500 0 2008-09 9,46,418 9,46,418 0 2009-10 13,52,100 13,52,100 0 SMT. M.G. PARIPOORNAM [LESSEE FOR THE LANDS OF M/S.CANAAN GARDEN P LTD] ITO, SALARY WARD-I(3), COIMBATOR E 2007-08 9,74,926 5,77,005 3,97,921 2008-09 13,69,065 NOT ASSESSD 2009-10 13,69,065 3,48,465 10,20,600 SHRI RAJA RABIDEV [LESSEE FOR THE LANDS OF M/S.AMUDHAM GARDENS P LTD] ITO, SALARY WARD-I(5), COIMBATOR E 2007-08 0 NOT ASSESSD 2008-09 45,000 NOT ASSESSD 2009-10 6,63,550 0 6,63,550 A PERUSAL OF THE ABOVE TABLE SHOWS THAT, THE ASSESS ING OFFICER OF SHRI J.WILLIAMS, WHO IS THE LESSEE OF M/ S.DEAR LAND (INDIA) P.LTD., IN RE-ASSESSMENT PROCEEDINGS A FTER VERIFICATION OF THE DETAILS, ACCEPTED THE AGRICULTU RE INCOME DISCLOSED BY SHRI WILLIAMS IN HIS RETURN OF INCOME FOR THE AYS.2007-08, 2008-09 AND 2009-10. THE REVENUE HAS PLACED ON RECORD DISTRICT COLLECTOR S REPORT WHICH IS BASED ON A DETAILED SURVEY OF AGRICULTURAL LAND CONDUCTED BY THE OFFICIALS OF HORTICULTURE DEPARTMENT, AGRICULTURE DEPARTMENT AND REVENUE DEPARTMENT. A PERUSAL OF REPORT SHOWS THAT THE LAND OWNED BY THE ASSESSEE COMPANIES AND OTHER PERSONS ARE WET LANDS, WITH IRRIGATION FACILITIES. THE LANDS ARE UNDER CULTIVATION WITH INTER-CROP AND HIG H YIELDING FRUIT TREES VIZ., MANGO, GUAVA, SAPOTA ETC ., WITH AGE 5 YEARS TO 20 YEARS. THE AGRICULTURE LAND OF A LL THE ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 44 -: COMPANIES ARE LOCATED IN THE SAME AREA AND ARE CONTIGUOUS. HAVE SAME TYPE OF SOIL AND IRRIGATION FACILITIES, THE CROPS GROWN ARE ALSO THE SAME, THE QUALITY AND YIELD OF CROPS IS MORE OR LESS THE SAME. THERE FORE, THE AGRICULTURE INCOME DERIVED BY ONE ASSESSEE IS INDICATIVE OF THE AGRICULTURE INCOME DERIVED BY THE OTHERS. THE ASSESSING OFFICER OF SHRI JACOB WILLIA MS BEFORE ACCEPTING THE RETURNED INCOME, CONDUCTED FIE LD ENQUIRIES, RECORDED THE STATEMENT OF NEIGHBORING FARMERS AND ULTIMATELY CAME TO THE CONCLUSION THAT, APART FROM MANGOES, INTER CROPS AND VEGETABLES ARE GROWN ON THE AGRICULTURE LAND OWNED BY THE LESSOR COMPANY. BASED ON THE ENQUIRIES AND REPORTS, THE ASSESSING OFFICER OF SHRI JACOB WILLIAMS CAME TO TH E CONCLUSION THAT THE INCOME DISCLOSED BY THE ASSESSE E IS REASONABLE AND GENUINE. THE ASSESSING OFFICER ALSO ACCEPTED THE YIELD AND RATES OF MANGOES BASED ON TH E REPORT OF DISTRICT HORTICULTURE AND REVENUE DEPARTMENTS. ONCE THE AGRICULTURE INCOME FROM THE ADJACENT LAND IS ACCEPTED, THERE IS NO QUESTION AS TO WHY THE AGRICULTURE INCOME FROM THE CONTIGUOUS PARC EL OF LAND SHOULD NOT BE ACCEPTED. WE ARE IN FULL AGREEMENT WITH THE DETAILED FINDINGS OF THE CIT(APPEALS) IN DELETING THE ADDITIONS MADE BY THE ASSESSING OFFICER IN RESPECT OF ALL THE FOUR COMPAN IES. 40. IN VIEW OF THE ABOVE OF THE TRIBUNAL, WE ARE INCLIN ED TO CONFIRM THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S) ON THIS ISSUE. THIS GROUND OF THE REVENUE IS DISMISSED. THE APPE ALS OF THE REVENUE IN ITA NOS.154 TO 157/MDS/2015 ARE DISMISSED . 41. COMING TO C.O.NOS. 34 TO 37/MDS/2015, THE ASSESSEE HAS RAISED THE FOLLOWING GROUND:- THE LD.CIT(A) ERRED IN CONFIRMING THE REOPENING O F ASSESSMENT BY THE ASSESSING OFFICER U/S.147 OF THE ACT WHICH IS BAD IN LAW. ITA NOS.110 & 111/MDS/2015 AND C.O.NOS.28 &29/MDS/2015, AND ITA NOS.154 TO 157/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2015 :- 45 -: 42. THIS ISSUE WAS CONSIDERED BY THE TRIBUNAL IN C.O.NO.149/MDS/2013 FOR THE ASSESSMENT YEAR 2004-05 , DATED 18.11.2014, AS DISCUSSED IN PARA NO. 33 OF THIS ORD ER, THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED. 43. IN THE RESULT, THE APPEALS OF THE REVENUE IN ITA NO.110 & 111/MDS/2015 AND ITA NOS.154 TO 157/MDS/2015 ARE DI SMISSED AND C.O.NOS.28 & 29/MDS/2015 AND C.O.NOS.34 TO 37/MDS/2 015 FILED BY THE ASSESSEE ARE ALSO DISMISSED. ORDER PRONOUNCED ON FRIDAY, 28TH DAY OF AUGUST , 2015, AT CHENNAI. SD/- SD/- ( . . . ! ) (N.R.S. GANESAN) / JUDICIAL MEMBER ( ! ) (CHANDRA POOJARI) ' / ACCOUNTANT MEMBER '# / CHENNAI $% / DATED:28.08.2015 KV %&'' ()'*) / COPY TO: ' 1 . / APPELLANT 3. ' +',! / CIT(A) 5. )-.' / / DR 2. / RESPONDENT 4. ' + / CIT 6. .0'1 / GF