Shri Nirmal Kumar, Bhopal V. The ITO 3(2), Bhopal

ITA 165/IND/2012

• Counselvise Citation: 16522714 RSA 2012
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 22-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: MANOJ AYACHIT
• Section: 133(6); 68; 6

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NOS. 164 & 165/IND/2012 A.YS.2003-04 & 2004-05 NIRMAL KUMAR, BHOPAL PAN AGPPK 3260 K :: APPELLANT VS ITO-3(2), BHOPAL :: RESPONDENT APPELLANT BY SHRI MANOJ AYACHIT, CA RESPONDENT BY SHRI R. A. VERMA, SR.DR DATE OF HEARING 5 . 11 .2012 DATE OF PRONOUNCEMENT 5 . 11 .2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDERS DATED 23.12.2011, PASSED BY LD. FIRST APPELLATE AUT HORITY, BHOPAL, ON THE FOLLOWING GROUND OF APPEALS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN TREATING THE ADDITIONS OF RS.3, 22,380/- 2 (AY 2003-04) AND RS.3,44,980/- (AY 2004-05), RESPECTIVELY, FROM UNDISCLOSED SOURCES INSTEAD OF I NCOME FROM AGRICULTURE. 2. DURING HEARING OF THESE APPEALS, WE HAVE HEARD S HRI MANOJ AYACHIT, LEARNED COUNSEL FOR THE ASSESSEE AND SHRI R.A. VERMA, LD. SR DR. THE CRUX OF ARGUMENTS ON BEH ALF OF ASSESSEE IS THAT THE ASSESSEE WAS EARNING AGRICULTU RAL INCOME FROM 62 ACRES OF LAND, THEREFORE, THE ADDITI ON MADE U/S 68 OF THE ACT BY THE ASSESSING OFFICER AND CONF IRMATION OF THE SAME BY THE LD. CIT(A) IS QUITE UNREASONABLE , ESPECIALLY WHEN THE ASSESSEE PRODUCED THE EVIDENCES LIKE, RECEIPT FROM KRISHI UPAJ MANDI SAMITI, EVIDENCING S ALE OF AGRICULTURAL PRODUCE, ALONG WITH AFFIDAVITS AND OTH ER NECESSARY EVIDENCES. ON THE OTHER HAND, THE LD. SR. DR STRONGLY DEFENDED THE IMPUGNED ORDER BY SUBMITTING THAT NO LAND IS OWNED BY THE ASSESSEE AS HE IS MERELY DO ING BUSINESS AND CERTAIN INFORMATION U/S 133(6) OF THE ACT WERE OBTAINED BY THE ASSESSING OFFICER AS PER WHICH THE PRODUCTION AS WELL AS SALE OF AGRICULTURAL PRODUCE IS MERELY 3 ON PAPER AND M/S. OM TRADERS, UDAIPURA SPECIFICALLY DENIED REGARDING THE TRANSACTION. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRI EF, ARE THAT THE ASSESSEE IS BASICALLY A TRADER WHO CLAIMED TO H AVE TAKEN THE LAND ON LEASE FROM FARMERS. THE ASSESSING OFFICER OBTAINED INFORMATION FROM NAYAB TEHSILDAR AND FROM O THER SOURCES LIKE FROM M/S OM TRADERS. AS PER THE REVENU E, THE SALE TRANSACTION OF AGRICULTURAL PRODUCE WAS BOGUS, CONSEQUENTLY, THE ADDITIONS WERE RIGHTLY MADE U/S 6 8 OF THE ACT. THE ASSESSEE HAS ALSO FILED PAPER BOOK RUN NING INTO 122 PAGES WHICH HAS BEEN PERUSED BY US. WE FIN D THAT THOUGH THERE IS FORCE IN THE SUBMISSION OF THE LD. SR. DR BUT STILL IN THE INTEREST OF JUSTICE, THE VARIOUS D OCUMENTS LIKE RIN PUSTIKA, KOLI PATTA, AFFIDAVITS, RECEIPTS ISSUES BY MANDI SAMITI AND THEIR AUTHENTICITY ALONGWITH THE C LAIM OF THE ASSESSEE THAT LAND WAS TAKEN ON LEASE FROM VARI OUS 4 FARMERS REQUIRE EXAMINATION AT THE LEVEL OF THE ASS ESSING OFFICER. THE LD. SR. DR ALSO CLAIMED THAT EITHER TH E SEALS ARE NOT AFFIXED ON ALL RECEIPTS, ISSUED BY MANDI SAMITI OR THESE RECEIPTS ARE BOGUS. DURING HEARING, THE LD. SR. DR ALSO POINTED OUT THAT IT IS A MAKE-BELIEF STORY THAT THE ASSESSEE IS DOING AGRICULTURAL OPERATION, THEREFORE, IT REQU IRES FRESH EXAMINATION. IN VIEW OF THE ABOVE AND WITHOUT GOING INTO MUCH DELIBERATION, WE ARE ALSO APPREHENSIVE THAT A PERSON WHO IS BUSY IN WHOLE TIME BUSINESS HOW HE HAS DONE AGRICULTURAL OPERATION HIMSELF AND AT THE SAME TIME HE IS NOT OWNING LAND AND MERELY CLAIMING THAT INCOME WAS GENERATED FROM THE LAND, TAKEN ON LEASE. IF THE REC EIPTS CLAIMED TO BE ISSUED BY KRISHI UPAJ MANDI SAMITI AR E FOUND TO BE BOGUS THEN IT IS A SERIOUS ISSUE. THEREFORE, THE LD. ASSESSING OFFICER IS DIRECTED TO EXAMINE THE CLAIM OF THE ASSESSEE ALONG WITH THE AUTHENTICITY OF THE DOCUMEN TS, FILED IN THE PAPER BOOK, AND THEN DECIDE THE ISSUE AFRESH IN 5 ACCORDANCE WITH LAW BECAUSE NO PREJUDICE SHOULD BE CAUSED TO EITHER SIDE. DUE OPPORTUNITY BE PROVIDED TO THE ASSESSEE. NEEDLESS TO MENTION HERE THAT THE ASSESSE E IS ALSO PERMITTED TO FURNISH EVIDENCE, IF ANY, IN SUPP ORT OF HIS CLAIM. FINALLY, THE APPEALS OF THE ASSESSEE ARE ALLOWED F OR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 5.11.2012. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 5.11.2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYS!