Dattatraya Devji Valvi, Kolhapur V. Assistant Commissioner of Income-tax,

ITA 178/PUN/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1631 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 19-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT DUA SHRI AMIT DUA
• Keywords: Salary income; Corroborative evidences
• Section: 143(3); 234B; 133(6); 131

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO. 178 /PN/201 5 / ASSESSME NT YEAR : 20 1 1 - 1 2 SHRI DATTATRAYA DEVJI VALVI, D - 5, AYODHYA TOWER, NEAR S.T. STAND, NEW SHAHUPRUI, KOLHAPUR . / APPELLANT PAN: A A JPV2872Q VS. THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE 2, KOLHAPUR . / RESPONDENT / APPELLANT BY : SHRI M.K. KULKARNI / RESPONDENT BY : SHRI AMIT DUA / RESPONDENT BY : SHRI AMIT DUA / DATE OF HEARING : 2 8 . 0 6 .201 6 / DATE OF PRONOUNCEMENT: 30 . 0 6 .201 6 / ORDER PER SUSHMA CHOWLA, J M : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - 1 & 2 , KOLHAPUR , DATED 01 . 12 .20 1 4 RELATING TO ASSESSMENT YEAR 20 1 1 - 1 2 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2 . THE ASSESSEE HAS RAISED T HE FOLLOWING GROUNDS OF APPEAL: - 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) - KOLHAPUR WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE CONFIRMING THE DISALLOWANCES MADE BY THE A.O. OF RS.23,78,356/ - ON ACCOUNT OF AGRIC ULTURAL INCOME TREATED AS INCOME FROM OTHER SOURCES. THE ORDER OF THE LD. CIT(A) IS CONTRARY TO LAW AND FACTS OF THE CASE. THE SAME BE SET ASIDE. ITA NO. 178 /PN/20 1 5 SHRI DATTATRAYA DEVJI VALVI 2 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IT WAS SUBMITTED BEFORE THE LOWER AUTHORITIES THAT E XCEPT SALARY OF RS.9,03,292/ - , INTEREST OF RS.2,50,985/ - THE APPELLANT HAS NO OTHER INCOME NOR ANY SOURCE FOR EARNING. IT IS EVIDENT THAT ALL THE DETAILS REGARDING AGRICULTURAL INCOME WERE FILED AND EXPLAINED BEFORE BOTH THE AUTHORITIES BELOW. THE LD. CIT( A) DID NOT CONSIDER THE WRITTEN SUBMISSIONS SUBMITTED BEFORE HIM WITH NECESSARY SUPPORTING EVIDENCES. THE LD. CIT(A) CONFIRMED THE ADDITION WITHOUT PROPER APPLICATION OF MIND. THE ADDITION MADE BY A.O. AND CONFIRMED BY LD. CIT(A) BE DELETED. 3) ON THE F ACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEVY OF INTEREST U/S 234A, 234B AND 234C IS NOT JUSTIFIED. 3. THE ASSESSEE IN THE PRESENT APPEAL IS AGGRIEVED BY THE ORDER OF CIT(A) IN CONFIRMING THE DISALLOWANCE OF RS.23,78,356/ - ON ACCOUNT OF AGRICULT URAL INCOME TREATED AS INCOME FROM OTHER SOURCES. 4. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT WRITTEN SUBMISSIONS WERE FILED BEFORE THE CIT(A) ALONG WITH SUPPORTING EVIDENCES AND THE CIT(A) HAS CONFIRMED THE AD DITION WITHOUT PROPER APPLICATION OF MIND AND WITHOUT CONSIDERING THE SAME. 5. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FURNISHED RETURN OF INCOME DECLARING SALARY INCOME OF RS. 9,03,292/ - , INCOME FROM OTHER SOURCES OF RS. 2,50,985/ - AND AGRICULT URAL INCOME OF RS. 34,73,880/ - . THE ASSESSEE WAS A SALARIED EMPLOYEE IN STATE GOVERNMENT OF MAHARASHTRA AND THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE HAD DISCLOSED HUGE AGRICULTURAL INCOME WHICH PRIMA FACIE APPEARED TO BE DIS - PROPORTIONATE WI TH REFERENCE TO THE AGRICULTURAL HOLDINGS AND ACTUAL PRODUCE , AS ALSO COMPARING THE SAME TO THE PRECEDING YEARS FIGURES OF AGRICULTURAL INCOME SHOWN. CONSEQUENTLY, SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE ALONG WITH NOTICE UNDER SECTION 143(2) OF THE ACT. THE ASSESSEE FURNISHED THE REPLY IN THIS REGARD ALONG WITH DETAILS AND PHOTO COPIES OF BILLS IN RESPECT OF THREE PARTIES THROUGH WHOM HE HAD SOLD THE AGRICULTURAL PRODUCE. THE SAID PARTIES WERE VIJAY STIVAN CHAUDHARI, MAHARASHTRA SUBJI BHANDAR AND SATISH CHANDRA HARKISANDAS. THE ASSESSING OFFICER COLLECTED THE INFORMATION FROM THE SAID PARTIES UNDER SECTION ITA NO. 178 /PN/20 1 5 SHRI DATTATRAYA DEVJI VALVI 3 133(6) OF THE ACT. THE SHOW CAUSE NOTICE IS REPRODUCED AT PAGES 3 AND 4 OF THE ASSESSMENT ORDER AND THE REPLY OF SAID PARTIES AT PAGES 4 TO 7 OF THE ASSESSMENT ORDER. ANOTHER CLARIFICATION WAS SOUGHT FROM VIJAY STIVAN CHOUDHARI AND THE ASSESSING OFFICER NOTED THAT THERE WERE DISCREPANCIES IN THE COPIES OF BILLS SUPPLIED BY THE PARTY. THEREAFTER, THE ASSESSEE APPEARED ON HIS OWN MOTION ALON G WI TH VIJAY STIVAN CHOUDHARI AND CERTAIN QUERIES WERE RAISED FROM THE ASSESSEE, WHO FAILED TO EXPLAIN THE QUERIES RAISED. THEREAFTER, SUMMONS UNDER SECTION 131 OF THE ACT WERE ISSUED TO VIJAY STIVAN CHOUDHARI, WHO APPEARED AND HIS STATE MENT WAS RECORDED ON 2 8.02.2014, PART OF WHICH IS REPRODUCED UNDER PARA 11 AT PAGES 8 AND 9 OF THE ASSESSMENT ORDER. AS PER THE ASSESSING OFFICER, VIJAY STIVAN CHOUDHARI COULD NOT SATISFACTORILY ANSWER THE SPECIFIC QUERIES ON ACCOUNT OF DISCREPANCIES IN THE BILLS. FURTHER, IN FORMATION WAS ALSO CALLED FOR FROM SATISH CHANDRA HARKISANDAS AND MAHARASHTRA SUBJI BHANDAR AND SINCE NO SATISFACTORY COMPLIANCE WAS MADE BY THE ASSESSEE OR THE OTHER PARTIES ON THE SAID DATES, FURTHER ENQUIRIES WERE THE ASSESSEE OR THE OTHER PARTIES ON THE SAID DATES, FURTHER ENQUIRIES WERE MADE AND THE AGRICULTURAL INCOME WAS NO T ACCEPTED BY THE ASSESSING OFFICER IN ENTIRETY. OUT OF AGRICULTURAL INCOME SHOWN BY THE ASSESSEE AT RS. 34,73,880/ - , NET AGRICULTURAL INCOME WAS COMPUTED AT RS.10,95,524/ - RESULTING IN ADDITION OF RS. 23,78,356/ - AS INCOME FROM OTHER SOURCES. 6. THE CIT(A ) CONFIRMED THE ORDER OF ASSESSING OFFICER. 7. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A). 8. THE GRIEVANCE OF THE ASSESSEE IS THAT IT HAD MADE WRITTEN SUBMISSIONS BEFORE THE CIT(A), COPIES OF WHICH ARE PLACED AT PAGES 1 TO 15 AND 16 TO 26 OF THE PAPER BOOK ALONG WITH CHART EXPLAINING THE CROP PATTERN AND DETAILS OF CROPS GROWN WITH AVERAGE YIELD PER EACH CROP AT PAGES 27 TO 29 OF THE PAPER BOOK AND NONE OF THESE EXPLANATIONS AND THE EVIDENCES FILED WERE TAKEN NOTE OF BY ITA NO. 178 /PN/20 1 5 SHRI DATTATRAYA DEVJI VALVI 4 THE CIT(A). FURTHER, G RIEVANCE OF THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IS THAT NO CROSS - EXAMINATION OF VIJAY STIVAN CHOUDHARI WAS ALLOWED TO THE ASSESSEE AND FURTHER FOR THE BALANCE PARTIES, NO EVIDENCE WAS SOUGHT FROM THE ASSESSEE. ANOTHER POINT RAISED BY TH E LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IS THAT ON THE SAME LAND HOLDING, THE ASSESSEE HAD DECLARED AGRICULTURAL INCOME OF RS. 38,08,980/ - IN ASSESSMENT YEAR 2012 - 13 AND THE ASSESSING OFFICER IN AN OR DER PASSED UNDER SECTION 143(3) OF THE ACT DA TED 13.03.2015 HAS ACCEPTED THE SAME EXCEPT FOR DISALLOWANCE OF RS. 1,00,733/ - . 9. ON PERUSAL OF RECORD AND THE EVIDENCES PRODUCED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE INCLUDING THE EXPLANATIONS FILED BEFORE THE CIT(A), THERE IS MERI T IN THE PLEA OF THE ASSESSEE . NO DOUBT, SEVERAL EVIDENCES WERE COLLECTED BY THE ASSESSING OFFICER, BUT THE SAME CAN BE USED AGAINST THE ASSESSEE ONLY ONCE THEY ARE CONFRONTED TO THE ASSESSEE. FURTHER, AGAINST THE ASSESSEE ONLY ONCE THEY ARE CONFRONTED TO THE ASSESSEE. FURTHER, CROSS - EXAMINATION OF THE PERSON I.E. VIJAY STIVAN CH OUDHARI SHOULD HAVE BEEN ALLOWED TO THE ASSESSEE AND EVEN IN RESPECT OF OTHER TWO CONCERNS FROM WHOM THE DETAILS WERE CALLED FOR BY THE ASSESSING OFFICER, THE ASSESSEE SHOULD HAVE MADE ABREAST OF THE SITUATION. HOWEVER, NO SUCH EXERCISE HAS BEEN CARRIED O N BY THE ASSESSING OFFICER AND THE CIT(A) AND IN THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, THE MATTER NEEDS TO BE SET - ASIDE TO THE FILE OF ASSESSING OFFICER. ANOTHER ASPECT TO BE KEPT IN MIND IS THAT FOR THE SAME AGRICULTURAL LAND, THE ASSES SEE HAD DEC LARED AGRICULTURAL INCOME OF RS.38,08,980 / - IN THE SUCCEEDING ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2012 - 13 AND THE SALE OF AGRICULTURAL PRODUCE WAS THRO UGH M/S. VIJAY STIVAN CHOUDHARI, WHICH FINDS MENTION IN THE ASSESSMENT ORDER ITSELF AND EXCEP T FOR MAKING AN ADDITION OF RS.1,00,733/ - ON ACCOUNT OF CERTAIN BILLS, WHICH WERE HELD TO BE NON - GENUINE SALES TO THE SAID CONCERN. THE BALANCE AGRICULTURAL INCOME ITA NO. 178 /PN/20 1 5 SHRI DATTATRAYA DEVJI VALVI 5 DECLARED BY THE ASSESSEE WAS ACCEPTED IN ENTIRETY. ACCORDINGLY, THE ASSESSING OFFICER IS D IRECTED TO CONSIDER THE CLAIM OF ASSESSEE IN COMPLETE PERSPECTIVE AND ALLOW CROSS - EXAMINATION TO THE ASSESSEE AND ALSO KEEP IN MIND THE ASSESSMENT ORDER PASSED IN ASSESSMENT YEAR 2012 - 13 FOR ADJUDICATING THE ISSUE IN THE PRESENT APPEAL. REASONABLE OPPORTU NITY OF HEARING TO THE ASSESSEE SHALL BE GIVEN BEFORE DECIDING THE ISSUE. THE ISSUE IS SET - ASIDE TO THE FILE OF ASSESSING OFFICER FOR DE NOVO CONSIDERATION. 1 0 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUN CED ON THIS 30 TH DAY OF JUNE , 201 6 . SD/ - (SUSHMA CHOWLA) / JUDICIAL MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 30 TH JUNE , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPO NDENT; 3. ( ) / THE CIT(A) - 1 & 2 , KOLHAPUR ; 4. / THE CIT - I / II, KOLHAPUR / CIT (CENTRAL), PUNE ; 5. 6. , , , - / DR SMC , ITAT, PUNE; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE