Shri Bhaveshbhai Satabhai Patel, Anand V. The Income Tax Officer,Ward-2, Anand

ITA 1617/AHD/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8124 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-07-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 22-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SHANKAR
• Assessee Lawyers: N C AMIN

Judgement Text

ITA NO. 1617 /AHD/201 4 A.Y. 20 1 0 - 11 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH, AHMEDABAD BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO. 1 617 /AHD/201 4 ASSESSMENT YEAR: 20 1 0 - 11 BHAVESHBHAI SATABHAI PATEL, VS. INCOME TAX OFFICER, PANDAV SOCIETY, WARD 2, ANAND. AT & POST ODE, TAL: ANAND 388 210 . [PAN: AGZPP 2683 B] (APPELLANT) (RESPONDENT) A PPELLANT BY : SHRI N.C. AMIN, A.R. RE SPONDENT BY : SHRI T. SHANKAR, SR. D.R. DATE OF HEARING : 1 4 . 11 .201 7 DATE OF PRONOUNCEMENT : 16 .11 .201 7 O R D E R PER KUL BHARAT, J.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST ORDER DATED 25.02.2014 PASSED BY THE LEARNED CIT(A) FOR THE ASSESSMENT YEAR 201 0 - 11 . 2. THE ASSESSEE HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL : - 1. THAT THE LEARNED CIT ( A ) HAS ERRED BOTH IN LAW AND ON THE FACTS OF THE CASE IN DISMISSING THE APPEAL OF THE APPELLANT HOLDING T HAT FACTS AND CIRCUMSTANCES OF THE CAS E OF THE APPELLANT ARE IDENTICAL LIKE ASSESSMENT Y E AR 2 009 - 10. 2. ON PECULIAR FACTS AND CI R CUMSTANCES OF THE CASE OF THE APPELLANT AS MENTIONED IN THE APPELLATE ORDER , THE PART ADDITIONS CONFIRMED BY LEARNED C IT(A) BARODA WHICH IS SELF CONTRADICTION AND AGAINST THE MATERIALS AVAILABLE ON RECORD FOR THE ASSESSM ENT YEAR UNDER CONSIDERATION BE CONSIDER AND AS SUCH THE SAME REQUIRES TO BE REDUCED TO 1% OF PROCEEDS OF BANANAS OF FELLOW BROTHERS/FARMERS. 3. THAT THE LEARNED C IT(A) HAS REDUCED ESTIMATION OF COMMISSION INCOME @ 6% ASSESSED BY LEARNED A . O . AT 10% WITHOU T ANY MARTIAL OR EVIDENCE OR ANY COMPARABLE C ASE BROUGHT ON RECORD BY LEARNED A . O . AND A S AGAINST THAT THE DOCUMENTARY EVIDENCES FROM THAT APPELLANT IS EARNING 1% COMMISSION AND THEREFORE RELYING ON THE SAID EVIDENCES THE COMMISSION/SERVICE CHARGES INCOME MAY PLEA S E BE REDUCED TO 1% FOR ARRANGEMENT OF SERVICES RENDERED BY THE APPELLANT ON SALES OF BANANAS OF ALL THE FARMERS INCLUDING HIS OWN. ITA NO. 1617 /AHD/201 4 A.Y. 20 1 0 - 11 PAGE 2 OF 3 4. THAT THE ASSESSMENT ORDER PASSED BY LEARNED A . O . AND PART ADDITIONS CONFIRMED BY LEARNED C IT(A) WITHOUT ANY BASIS REQUIRE S TO BE REDUCED TO 1% REL Y ING ON EVIDENCES PLACED ON RECORD IN EARLIER Y EAR , AND A S SUCH RELIEF CLAIMED BE ALLOWED. 5. Y OUR APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY OF THE GROUNDS TILL THE APPEAL IS FINALLY H EARD AND DECIDED. 3. THE ONLY EFFECTIVE GROUND IN THE ASSESSEE S APPEAL IS AGAINST ESTIMATING THE COMMISSION INCOME @ 6% BY THE LD. CIT(A). 4. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT UNDER SECTION 143 (3) OF THE I NCOME TAX ACT, 1961 ( IN SHORT THE ACT ) AND THE ASSESSMENT WAS FRAMED VIDE ORDER DATED 01.03.2013. W HILE FRAMING ASSESSMENT, THE ASSESSING O FFICER POINTED OUT THAT THE ASSESSEE HAD CASH DEPOSIT IN HIS P UNJAB NATIONAL BANK SB ACCOUNT OF RS.1,29,73,580/ - . THE ASSESSING O FFICE R , TREATING THE SAME AS COMMISSION INCOME , ESTIMATED THE PROPERTY @ 6% OF SUCH DEPOSIT AND MADE ADDITION OF RS.7,78,415/ - . 5. AGGRIEVED AGAINST THIS FINDING , THE ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED CIT(A) WHO , AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE , P ARTLY ALLOWED THE APPEAL THEREBY THE LD . CI T(A) ESTIMATED THE COMMISSION INCOME @ 6%. NOW THE ASSESSEE IS IN FURTHER APPEAL BEFORE US . LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS FACILITATING SALE OF BANANA BY THE LAND OWNER AND CHARGING COMMISSION OF 1%. IN SUPPORT OF THIS CONTENTION, LD . COUNSEL FOR THE ASSESSEE DREW OU R ATTENTION TO P APER BOOK PAGE NOS. 128 TO 137. 6. ON THE CONTRARY, LEARNED DEPARTMENTAL REPRESENTATIVE OPPOSED THE SUBMISSION S AND SUBMITTED T HAT UNDER IDEN TICAL FACTS IN THE EARLIER YEARS, THE MATTER TRAVELLED UPTO THE STAGE OF T RIBUNAL AND THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN ITA NO.381/AHD/2013 PERTAINING TO AY 2009 - 10 AFFIRMED THE VIEW OF THE LD . CIT(A). IN THE REJOINDER, LD. COUNSEL FOR THE ASSESSE E SUBMITTED THAT IN THAT YEAR THE STATEMENT OF THE LAND OWNER WAS NOT RECORDED. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT IN THE PRESENT CASE BOTH THE AUTHORITIE S BELOW HAVE ESTIMATED THE COMMISSION INCOME ON SALE OF BANANA. IT IS THE CONTENTION OF THE ASSESSEE THAT APART FROM HIS OWN BANANA GROWN AT THE FARM LAND, HE IS ITA NO. 1617 /AHD/201 4 A.Y. 20 1 0 - 11 PAGE 3 OF 3 ALSO FACILITATING THE SALE OF BANANAS GROWN BY OTHER LAND OWNERS IN THEIR FARM LAND AND CHARG ING COMMISSION @ 1%. HE SUBMITTED THAT CASH DEPOSITS, AS OBSERVED BY THE AUTHORITIES BELOW, IS THE SALE PRICE OF THE BANANA S WHICH HAS BEEN DEPOSITED BY BUYERS IN HIS ACCOUNT WITH PUNJAB NATIONAL BANK . AFTER CONSIDERING THE FACTS OF THE PRESENT CASE, WE FIND THAT THE AUTHORITIES BELOW OUGHT TO HAVE MADE FURTHER ENQUIRIES. SINCE THE ESTIMATION IS MADE IN MECHANICAL WAY, WE DEEM IT PROPER TO RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH AFTER MAKING ENQUIRY. THE ASSES SEE IS DIRECTED TO FURNISH THE REQUISITE EVIDENCES AS AND WHEN SO CALLED FOR. THE ASSESSING OFFICER WOULD COMPLETE THIS EXERCISE PREFERABLY WITHIN SIX MONTHS FROM THE RECEIPT OF THIS ORDER. THIS GROUND OF THE ASSESSEE S APPEAL IS ALLOWED FOR STATISTICAL PURPOSE S . 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. OR DER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF NOVEMBER, 2017 . SD/ - SD/ - MANISH BORAD KUL BHARAT ( ACCOUNTANT MEMBER ) ( JUDICIAL MEMBER ) AHMEDABAD, THE 16 TH DAY OF NOVEMBER , 2017 PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) C IT (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD