DHANNA LAL YADAV, Jaipur V. ITO, Jaipur

ITA 161/JPR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2083 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 22-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY DCIT DHK
• Assessee Lawyers: S L PODDAR; ISHA KANUNGO
• Keywords: Unexplained investment; Bonafide mistake
• Section: 54B; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 161 & 162/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 DHANNA LAL YADAV, VILLAGE-RAJAWAS, TEHSIL- AMER, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 7(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AGVPL 8210 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR & MISS ISHA KANUNGO (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 31/08/2017 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 08/09/2017 VKNS'K@ ORDER PER: BHAGCHAND, A.M. BOTH ARE THE APPEALS FILED BY THE ASSESSEE EMANATE S FROM THE TWO SEPARATE ORDERS OF THE LD. CIT(A)-III, JAIPUR DATED 17/05/2016 AND 13/06/2016 RESPECTIVELY FOR THE A.Y. 2008-09. THERE WAS A DELAY OF MORE THAN 200 DAYS IN FILING THE APPEALS, FOR WHICH THE A SSESSEE HAS FILED AN APPLICATION SEEKING CONDONATION OF DELAY. 2. IN THE CONDONATION APPLICATION, THE LD AR HAS SU BMITTED AS UNDER: ITA 161 & 162/JP/2017_ DHANNA LAL YADAV VS ITO 2 THAT THE APPELLANT ASSESSEE IS AN INDIVIDUAL. THE QUANTUM APPELLATE ORDER PASSED BY THE LEARNED CIT(A) ON 17.05.2016 WA S NOT RECEIVED BY THE ASSESSEE. WHEN A LETTER FOR RECOVERY OF DEMAND WAS SERVED TO THE ASSESSEE, ASSESSEE HAS COME IN OUR OFFICE THEN WE W ERE APPLIED FOR THE CERTIFIED COPY OF ORDER AND FILED APPEAL BEFORE YOU R HONOUR. THE ASSESSEE IS A FARMER AND THE ONLY SOURCE OF INCOME IS AGRICU LTURAL INCOME AND ILLITERATE ALSO. IN THE CIRCUMSTANCES IT IS SUBMITT ED THAT IT WAS BECAUSE OF THE BONAFIDE MISTAKE ON THE PART OF MY OFFICE THAT WE DID NOT INQUIRE ABOUT THE SERVICE OF NOTICE. THE APPEAL COULD NOT B E FILED IN TIME. IT IS SUBMITTED THAT FOR SOMETHING WHICH HAPPENED DUE TO INADVERTENCE AND BEYOND THE CONTROL. HENCE IT IS THE PRAYER OF THE A SSESSEE AS WELL AS OF THE COUNSEL THAT THE HONBLE BENCH MAY KINDLY CONDO NE THE DELAY AND ADMIT THE APPEAL. AFTER HEARING BOTH THE SIDES AND IN THE INTEREST O F JUSTICE AND EQUITY, THE DELAY WAS CONDONED AND THE APPEAL WAS HEARD. 3. BOTH THE APPEALS ARE BEING HEARD TOGETHER AND FO R THE SAKE OF CONVENIENCE AND BREVITY, A COMMON ORDER IS BEING PA SSED. 4. FIRSTLY I TAKE ITA NO. 161/JP/2017. IN THIS APPEAL THE ASSESSEE HAS TAKEN FOLLOWING GRO UNDS OF APPEAL: 1. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LEARNED CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 45,000/- OUT OF RS. 85,000/-MADE BY THE LEARNED ASSESSING OFFICER B Y TREATED THE 'AGRICULTURE INCOME' AS 'INCOME FROM OTHER SOURCES' . 2. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LEARNED CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 3,53,758/- ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN PURCHA SE OF LAND WITHOUT CONSIDERING THE FACT THAT THE AGRICULTURE L ANDS HAVE PURCHASED OUT OF HIS PAST SAVING, SALE OF LIVE STOC K AND AGRICULTURE CROP. 5. THE ASSESSEE IS AN INDIVIDUAL AND AGRICULTURIST. FROM VERIFICATION OF THE FORM NO. 36, IT IS FOUND THAT HE WAS AN ILLITERA TE PERSONS ALSO. HOWEVER, ITA 161 & 162/JP/2017_ DHANNA LAL YADAV VS ITO 3 AT THE TIME OF HEARING, IT WAS ALSO PLEADED BY THE L D AR OF THE ASSESSEE THAT THE ORDER OF THE LD. CIT(A) WAS NOT SERVED UPON THE ASSESSEE. ONLY A CERTIFIED COPY WAS RECEIVED ON 21/2/2017. THE ASSESS EE HAS OWN AGRICULTURAL LAND WHICH DEVOLVE FROM ANCESTRAL AGRIC ULTURAL PROPERTY. THE ASSESSEE WAS DOING AGRICULTURAL ACTIVITY AND ALSO DO ING THE LABOUR WORK. A STATEMENT SUBMITTED BY THE ASSESSEE REGARDING THE E STIMATE OF HIS INCOME FOR THE PAST 6-7 YEARS, HEREIN IT IS CLAIMED THAT S AVINGS FROM PERIOD OF FINANCIAL YEAR 2002-03 TO 2007-08 WAS OF RS. 5.65 LA CS AND OUT OF THE SAME, THE INVESTMENT WAS MADE IN THE PURCHASE OF THE LAND. SINCE THE ASSESSEE WAS AN ILLITERATE PERSON, THE LD. CIT(A) SHO ULD NOT HAVE CONFIRMED THE ACTION OF THE ASSESSING OFFICER AS THE SOURCE O F INVESTMENT IS EXPLAINED OUT OF THE AGRICULTURAL INCOME AND WAGES RECEIVED BY THE ASSESSEE DURING THE PAST 6-7 YEARS. THE LD AR HAS RELIED ON THE FOL LOWING CASE LAWS: (I) CIT VS. DEVILALSON (2001) 70 TTJ (JD) 24 IN THE ABSENCE OF AVAILABILITY OF ANY ASSET REPRES ENTING THE AGRICULTURAL INCOME SHOWN BY ASSESSEE OR ANY ADDITI ON UNDER S. 69C, SUCH INCOME COULD NOT BE TREATED AS INCOME FROM OTH ER SOURCES MORE SO WHEN THE AGRICULTURAL INCOME SHOWN BY ASSES SEE AS WELL AS HIS BROTHER FROM THE SAME LAND HAS BEEN ACCEPTED IN SUBSEQUENT YEARS. (II) SRI PERICHERLA SHIVAKUMAR RAIU.. ... VS ASSESSEE ON 4 JULY, 2013 (HYDERABAD BENCH 'A'. HYDERABAD) ITA NO. 396/HYD/2013 IN OUR VIEW, THE CIT(A) NOT JUSTIFIED IN RESTRICTI NG THE AGRICULTURAL INCOME TO RS. 1,68,000/-, WHEN HE HAS ACCEPTED THE FACT THAT THE ASSESSEE IS OWNER OF AGRICULTURAL LAND AND THE AGRI CULTURAL LAND IS ITA 161 & 162/JP/2017_ DHANNA LAL YADAV VS ITO 4 SITUATED IN A WELL IRRIGATED AREA THE CLAIM OF AGRI CULTURAL INCOME CANNOT BE ARBITRARILY REJECTED OR RESTRICTED WITHOU T BRINGING MATERIAL ON RECORD THAT INCOME FROM AGRICULTURE FROM THOSE L AND WOULD BE RS. 1,68,000/-. IN THE AFORESAID VIEW OF THE MATTER , WE DIRECT THE AO TO TREAT THE AMOUNT OF RS. 3,36,000/- AS INCOME FROM AGRICULTURE. 6. ON THE CONTRARY, THE LD DR HAS VEHEMENTLY OPPOSE D THE SUBMISSIONS OF THE ASSESSEE AND RELIED ON THE ORDERS OF THE AUT HORITIES BELOW. 7. I HAVE HEARD BOTH THE SIDES ON THIS ISSUE. IT IS NOTICED THAT THE ASSESSEE WAS AN AGRICULTURIST AND ALSO ENGAGED IN TH E LABOUR WORK FOR WHICH WAGES WERE RECEIVED. THE INCOME OF THE ASSESSEE WA S NOT TAXABLE HENCE, HE WAS NOT FILING THE RETURN OF INCOME. HOWEVE R, IN COMPLIANCE OF THE NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (IN S HORT THE ACT), THE RETURN OF INCOME WAS FILED. DURING THE YEAR UNDER C ONSIDERATION, THE ASSESSEE HAD PURCHASED 1/4 TH LAND IN KHASRA NO. 88 TO 93, 85/647 AND 86 ON 04/8/2007 AND THE ASSESSEES INVESTMENT WAS OF RS . 3,53,758/-. THE ASSESSEE EXPLAINED THE SOURCE OF INVESTMENT FROM SA VINGS FROM AGRICULTURAL INCOME AND WAGES BUT THE REVENUE AUTHORITIES DID NOT AGREE WITH HIM. THE ASSESSEE ALSO DECLARED AGRICULTURAL INCOME IN THE R ETURN OF INCOME AT RS. 85,000/-, FOR WHICH ALSO THE ASSESSING OFFICER DID N OT AGREE, LD. CIT(A) ACCEPTED PARTLY. THE ASSESSEE HAS ALSO CLAIMED DEDUC TION U/S 54B OF THE ACT OF RS. 4,23,535/- AND AS PER THE ASSESSING OFFI CER THERE WAS NO EVIDENCE SUBMITTED IN THIS REGARD. I FIND THAT THE ASSESSEE WAS OWNER OF ITA 161 & 162/JP/2017_ DHANNA LAL YADAV VS ITO 5 AGRICULTURAL LAND OF MORE THAN 4 BIGHAS IN HIS INDI VIDUAL CAPACITY. THE LD. CIT(A) HAS ACCEPTED THE FACT OF AGRICULTURAL INCOME OF ASSESSEE AND REDUCED THE AMOUNT. THE ASSESSEE HAS SUBMITTED KHASR A, GIRDAWARI AND OTHER OWNERSHIP DOCUMENTS AND ALSO THE DETAILS REGAR DING GROWING OF THE CROPS IN THE AGRICULTURAL LAND LIKE BAJRA, MUNGFALI , WHEAT, BARLEY, RANJKA AND OTHER CROPS. THESE FACTS WERE CLEAR FROM THE KHAS RA GIRDAWARI REPORT OF PATWARI OF VILLAGE DEVGUDA, TEHSIL- AMER. SINCE THE A SSESSEE WAS AN UNEDUCATED AGRICULTURIST. NO BILLS AND VOUCHERS WERE MAINTAINED FOR AGRICULTURAL INCOME AND FOR WAGES. HOWEVER, THE EVID ENCE OF OWNERSHIP OF THE LAND AND EVIDENCE REGARDING THE AGRICULTURAL IN COME WERE FILED. THESE FACTS ESTABLISH THAT THE ASSESSEE WAS HAVING INCOME FROM AGRICULTURAL OPERATIONS. THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN NOT ACCEPTING THE CLAIM OF ASSESSEE IN THIS REGARD. FURTHER, SINCE TH E ASSESSEE GOT THE LAND IN INHERITANCE AND HE WAS ENGAGED IN THE AGRICULTURAL A CTIVITIES ON HIS OWN LAND AND ALSO DOING THE LABOUR WORK IN THE VILLAGES AND NEARBY TOWNS BY WAY OF THAT HE WAS EARNING RS. 8,000/- TO 9,000/- PER MONTH. THEREFORE, THE ESTIMATES OF SAVINGS SUBMITTED FOR 6-7 YEARS PR IOR TO THE INVESTMENT IN THE AGRICULTURAL LAND OF RS. 3,53,758/- APPEARS TO BE EXPLAINED AND ACCEPTABLE. THEREFORE, IN MY CONSIDERED VIEW, THE ADD ITION SUSTAINED BY THE LD. CIT(A) DESERVE TO BE DELETED ON BOTH GROUNDS. TH EREFORE, CONSIDERING ITA 161 & 162/JP/2017_ DHANNA LAL YADAV VS ITO 6 THE TOTALITY AND THE FACTS AND CIRCUMSTANCES OF THE CASE, I ALLOW THE APPEAL OF THE ASSESSEE ON BOTH THE ISSUES AND DIRECT TO DE LETE THE ADDITION. 8. NOW I TAKE ITA NO. 162/JP/2017. IN THIS APPEAL THE ASSESSEE HAS TAKEN FOLLOWING GRO UNDS OF APPEAL: 1. THAT THE ORDER PASSED BY THE LD. CIT(A) U/S 271 (1)(C) OF THE INCOME TAX ACT, 1961 IS VOID AN INITIO DESERVES TO BE QUASHED. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS. 86,790/- U/S 271(1 )(C) OF THE ACT. SINCE, I HAVE DELETED THE ADDITION IN THE QUANTUM O F APPEAL, THEREFORE THE PENALTY LEVIED AND SUSTAINED U/S 271(1)(C) OF THE A CT DESERVE TO BE DELETED. 9. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSE E ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08/09/2017. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08 TH SEPTEMBER, 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI DHANNA LAL YADAV, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 7(3), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 161 & 162/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR