Inderjeet Singh, Yamunanagar V. ITO, Yamunanagar

ITA 209/CHANDI/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86141 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-01-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 22-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR AMA RVEER SINGH
• Keywords: Opportunity of being heard; Additional evidence
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 209/CHD/2013 ASSESSMENT YEAR : 2009-10 INDERJEET SINGH, VS. THE INCOME TAX OFFICER, VPO AURANGABAD, WARD 3, YAMUNANAGAR. YAMUNANAGAR. PAN: AVIPS1890F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH RESPONDENT BY : DR.AMARVEER SINGH, DR DATE OF HEARING : 20.01.2015 DATE OF PRONOUNCEMENT : 22.01.2015 O R D E R PER BHAVNESH SAINI, J.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEAL S), PANCHKULA DATED 5.12.2012 FOR ASSESSMENT YEAR 2009- 10 ON THE FOLLOWING GROUNDS : 1. THAT THE ORDER OF LEARNED C.LT. (A) IS BAD IN LAW AND ON FACTS OF THE CASE. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED IN LAW AS WELL AS ON FACTS OF THE CASE BY TREATING TH E VARIOUS CREDITS IN APPELLANT'S BANK ACCOUNT AS HIS INCOME A ND ADDED THE SAME IN HIS TAXABLE INCOME, SPECIFICALLY WHEN THE AP PELLANT OWNS 84 ACRES OF LAND AND HIS ONLY SOURCE OF INCOME IS AGR ICULTURE AND NOTHING ELSE. [ROTATION OF MONEY] 2 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) HAS GROSSLY ERRED IN LAW AS WELL AS ON FACTS BY UPHOLDING THE AO IN TREATING EVEN THE RETURNED AGRICULTURE INCOME OF RS. 4,10,500/ - AS HIS TAXABLE INCOME. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT DURING T HE COURSE OF ASSESSMENT THE ASSESSEE DID NOT FURNISHED ANY I NFORMATION IN RESPONSE TO VARIOUS NOTICES ISSUED. BANK ACCOUNT S OF ASSESSEE WERE CALLED FOR UNDER SECTION 133(6) FROM THE BANK. ON THE INFORMATION DOWNLOADED FROM THE SYSTEM, CASH DEPOSIT IN THE HDFC BANK WAS SHOWN AT RS.24,62,000/- BUT AC TUAL TOTAL COMES TO RS.24,97,000/-. THE PERUSAL OF THIS ACCOUNT SHOWS THAT CHEQUE OR OTHER CREDITS BY WAY OF TRANSF ER WERE FOUND CREDITED 1,50,000/-, 3,82,000/-, 37,000/-, 3, 50,000/-, 1,50,000/-, 1,40,000/- AND FURTHER DEBITS EXCEEDING RS.1 LACS WAS FOUND DEBITED RS.1,66,666/-, 1,82,850/-,1,94,00 0/-, 1,70,000/-, 2,00,000/-, 1,40,000/-, 1,40,000/-,1,3 9,999/-, 1,50,000/-, 1,73,000/- AND 1,73,000/-. AS NO SOUR CE OF THESE DEBITS AND CREDITS WAS EXPLAINED BY THE ASSES SEE, CASH DEPOSITS AT RS.24,97,000/- WERE TREATED AS UNEXP LAINED CASH CREDITS IN THE BANK ACCOUNT NO.02101000002875 AND SAME WAS ADDED IN THEN TAXABLE INCOME OF THE ASSESE E UNDER SECTION 68 OF THE INCOME TAX ACT, 1961. 3. DURING THE COURSE APPELLATE PROCEEDING THE COUNS EL FOR THE ASSESSEE FILED WRITTEN SUBMISSION WHICH IS REPR ODUCED AS UNDER:- I) THE FAMILY OF THE ASSESSEE OWNS APP ROXIMATELY 84 ACRES OF AGRICULTURAL LAND SITUATED AT DISTT. YAMUNA 3 NAGAR, OWNERSHIP OF LAND COMPRISES OF THE ASSESSEE AND HIS TWO BROTHERS. HIS TWO BROTHERS HAVE BEEN LIV ING IN AMERICA SINCE LONG AND AS INFORMED TO THE UNDERSIGN ED BY THE ASSESSEE, THEY HAVE NEVER VISITED INDIA FOR LAS T 14-15 YEARS. HENCE THE ASSESSEE TOOK CARE OF WHOLE OF TH E ABOVE STATED AGRICULTURAL LAND AND PERFORMED AGRICULTURAL ACTIVITIES ON THE LAND. FURTHER HE DOES NOT RUN ANY BUSINESS WHICH MAY COME UNDER THE AMBIT OF THE INCO ME TAX ACT. HE IS PURELY AN AGRICULTURIST AND DOES NOT EARN ANY TAXABLE INCOME. AS A RANDOM PROOF OF HE BEING A N AGRICULTURIST, COPIES OF BILLS OF AGRICULTURAL PROD UCE SOLD ARE ALSO BEING ENCLOSED. ALL THE TRANSACTION APPEARING IN THE CREDIT OF HIS BANK ACCOUNT ARE WHOLLY AND EXCLUSIVELY RELATED TO HIS AGRICULTURAL ACTIVITIES. HENCE THIS ADDITION MADE B Y THE LD. AO DESERVES TO BE QUASHED. 4. THE LEARNED CIT (APPEALS) PARTLY ALLOWED THE APP EAL OF THE ASSESSEE. HIS FINDINGS IN PARAS 4 AND 5 ARE R EPRODUCED AS UNDER : THE FACTS AS WELL AS THE SUBMISSIONS OF THE APPELLA NT HAVE BEEN CONSIDERED BY THE UNDERSIGNED. THE FOLLOWING AMOUNTS W ERE FOUND CREDITED IN THE HDFC BANK ACCOUNT NO. 02101000002875 OF THE APPELLANT. DATE AMOUNT 28.07.2008 20,000/- 29-07-2008 70,000/- 30-07-2008 50,000/- 02-08-2008 1,67,000/- 07-08-2008 1,95,000/- 4 16-08-2008 2,75,000/- 22-08-2008 1,55,000/- 01-10-2008 1,00,000/- 03-10-2008 3,45,000/- 24.11.2008 1,00,000/- 27.11.2008 25,000/- 17-12-2008 1,40,000/- 31-12-2008 40,000/- 13-01-2009 1,92,000/- 22-01-2009 15,000/- 27-01-2009 68,000/- 13-02-2009 3,50,000/- 16-02-2009 1,90,000/- TOTAL 24,97,000/- 4.1 DURING APPEAL, THE APPELLANT CLAIMED TO HAVE RECEIV ED AGRICULTURAL INCOME FROM 84 ACRES OF LAND OWNED BY HIS FAMILY. TH E APPELLANT HAS FILED SALE BILLS/CONTRACT RECEIPTS TOTALING RS.10,13,126/ - DURING APPEAL. KHASRA/GIRDAWARI WERE ALSO FURNISHED. TOTAL CREDITS I N THE BANK ACCOUNT OF THE APPELLANT WERE TO THE TUNE OF RS.24,97,000/- AS AGA INST THE SALE BILLS/CONTRACT RECEIPTS AT RS.10,13,126/-DURING THE PERIOD. THE APP ELLANT HAS 2 MORE BROTHERS WHO ARE CO-OWNERS IN THE LAND. THE APPELLA NT HAS CLAIMED THAT HIS BROTHERS ARE SETTLED IN U.S.A. AND HE IS THE SOLE RE CIPIENT OF AGRICULTURAL PRODUCE. SINCE THE REVENUE RECORDS ARE IN THE JOINT N AMES OF THE APPELLANT ALONGWITH HIS FATHER, UNCLES AND BROTHERS HIS SHARE IS TAKEN AT 173 RD IN THE FAMILY LAND. THEREFORE, THE APPELLANT IS GIVEN CREDIT FOR 1/3 RD OF THE RECEIPTS FROM AGRICULTURAL PRODUCE AT RS.10,13,126/- = RS.3,37,7 09/-. THE BALANCE CREDIT AT RS.21,59,291/ (24,97,000 - 3,37,709 ) ARE TREATE D AS UNEXPLAINED INCOME U/S 68 OF THE INCOME TAX ACT, 1961 WHICH READS AS UNDER :- 'SECTION 68 -- WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE, OFFERS NO 5 EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT IN THE OPINION OF THE ASSESSI NG OFFICER, SATISFACTORY, THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. 5. IN RESULT, THE APPEAL IS PARTLY ALLOWED. 4. THE LEARNED COUNSEL FOR ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND F ILED APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE IN WHICH THE ASSESSEE BRIEFLY EXPLAINED THAT THE ASSESSEE AND HI S TWO BROTHERS OWNED AROUND 84 ACRES OF AGRICULTURAL LAND IN DISTRICT YAMUNA NAGAR. THE DETAILS OF LAND HOLDIN G ALONGWITH BILLS OF AGRICULTURAL PRODUCE WERE FILED BEFORE THE LEARNED CIT (APPEALS) BUT THE EVIDENCES IN RESPECT OF SALE OF P OPLAR TREES WERE NOT FILED BY HIS COUNSEL CHARTERED ACCOUNTANT SHRI VIRENDRA PRATAP FOR THE REASONS BEST KNOWN TO HIM T HOUGH ALL THE DETAILS WERE HANDED OVER TO HIM. THE LEDGER A CCOUNTS AND SALE INVOICES OF SHRI GAGAN SINGHAL, PROP. M/S GAGAN INDUSTRIES, YAMUNA NAGAR (PB-1-12), SHRI RAHUL JIND AL, PROP. M/S JINDAL WOOD INDUSTRIES, YAMUNA NAGAR (PB-13-23) , SHRI JAGMEET SINGH, PROP. M/S DALIP SINGH & SONS, YAMUNA NAGAR (PB-24-33) AND SHRI ASHWANI AGGARWAL, PROP. M/S POO JA INDUSTRIES, YAMUNA NAGAR (PB-34-44) ALONGWITH AFFID AVITS ARE FILED. IT IS FURTHER STATED THAT APART FROM THE A BOVE, THE ASSESSEE SOLD MANGO AND PEAR FRUIT TO ONE SHRI NASI R AHMED DURING THE YEAR. THE COPY OF HIS AFFIDAVIT IS FIL ED AT PAGES 45 AND 46 OF THE PAPER BOOK. THE ASSESSEE ALSO SOLD CHERRY FRUIT TO SHRI KAILASH CHAND. THE COPY OF HIS AFFIDAVIT, IDENTITY PROOF AND RECEIPTS ARE ALSO FILED AT PAGES 47 TO 49 OF THE PAPER 6 BOOK. THE LEARNED COUNSEL FOR ASSESSEE, THEREFORE , SUBMITTED THAT THESE EVIDENCES HAVE NOT BEEN FILED DUE TO NEG LIGENCE OF THE LEARNED COUNSEL FOR ASSESSEE. THEREFORE, THE SAME MAY BE ADMITTED AS ADDITIONAL EVIDENCES AS THE SAME ARE RE LEVANT FOR THE PURPOSE OF DISPOSAL OF THE APPEAL AND THE MATTE R MAY BE REMANDED TO THE ASSESSING OFFICER FOR HIS RECONSIDE RATION OF THE ISSUE. 5. ON THE OTHER HAND, THE LEARNED D.R FOR THE REVEN UE STRONGLY OPPOSED THE ADMISSION OF ADDITIONAL EVIDEN CE AND SUBMITTED THAT NO PLAUSIBLE REASONS HAVE BEEN GIVEN FOR NOT FILING THESE DETAILS BEFORE THE ASSESSING OFFICER. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND MAT ERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT TH E ASSESSEE HAD FILED RETURN OF INCOME DECLARING AGRICULTURAL I NCOME AT RS.4,10,500/-. LATER ON THE CASE WAS SELECTED FOR SCRUTINY AND DUE TO NON-COMPLIANCE THE ASSESSING OFFICER PAS SED EX- PARTE ORDER. THE BASIS FOR ADDITION WAS THE INFORM ATION COLLECTED UNDER SECTION 133(6) OF THE ACT AND ALSO THE INFORMATION DOWNLOADED FROM AST SYSTEM AND IT WAS F OUND THAT THE ASSESSEE MADE UNEXPLAINED CASH DEPOSITS IN HDFC BANK ACCOUNT. IT IS, THEREFORE, CLEAR THAT THE A SSESSEE HAS NOT SHOWN ANY INCOME IN THE RETURN OF INCOME EXCEPT AGRICULTURAL INCOME. ACCORDING TO THE SUBMISSION OF LEARNED COUNSEL FOR ASSESSEE THE RELEVANT EVIDENCE OF SALE OF AGRICULTURAL PRODUCE COULD NOT BE FILED BEFORE THE AUTHORITIES BELOW DUE TO NEGLIGENCE OF THE COUNSEL. ON GOING THROUGH THE SUBMISSION ABOVE, IT IS CLEAR THAT THE ASSESSEE HAS ONLY 7 AGRICULTURAL INCOME AND THE ADDITIONAL EVIDENCE FIL ED IN THE PAPER BOOK PRIMA FACIE SUPPORTS THE CONTENTION OF T HE ASSESSEE THAT THE ASSESSEE HAS SUFFICIENT AGRICULTU RAL INCOME AND, THEREFORE, THE ASSESSEE MAY BE ABLE TO EXPLAIN THE DEPOSITS IN THE BANK ACCOUNT THROUGH THE INCOME FRO M AGRICULTURAL OPERATION. THE ADDITIONAL EVIDENCES AR E, THEREFORE, RELEVANT FOR THE PURPOSE OF DISPOSAL OF THE APPEAL. IT APPEARS THAT THESE ADDITIONAL EVIDENCES COULD NO T BE FILED BEFORE THE AUTHORITIES BELOW DUE TO NEGLIGENCE OF T HE LEARNED COUNSEL FOR ASSESSEE. THEREFORE, THE ASSESSEE SHO ULD NOT SUFFER ON ACCOUNT OF THE SAME. HOWEVER, IT IS CLE AR THAT THE ASSESSEE WAS EX-PARTE BEFORE THE ASSESSING OFFICER, THEREFORE, IN ORDER TO COMPENSATE THE REVENUE DEPARTMENT THE C OST SHOULD BE IMPOSED UPON THE ASSESSEE WHILE ADMITTING THE ADDITIONAL EVIDENCES. CONSIDERING THE ABOVE DISCU SSION AND FILING OF THE ADDITIONAL EVIDENCES TO BE RELEVANT F OR THE PURPOSE OF DISPOSAL OF THE APPEAL, WE ADMIT THE ADD ITIONAL EVIDENCES ABOVE AND CONSEQUENTLY THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND THE MATTER IS R ESTORED TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTION TO REDECIDE THE ISSUE IN THE LIGHT OF THE ADDITIONAL EVIDENCES, NOW ADMITTED BY US SUBJECT TO COST OF RS.10,000/- UPON THE ASSESSEE , WHICH COST SHALL BE PAID BY THE ASSESSEE TO THE REVENUE D EPARTMENT WITHIN ONE MONTH FROM THE DATE OF THIS ORDER OTHER WISE THE SAME SHALL BE RECOVERED FROM THE ASSESSEE AS ARREAR OF THE TAXES. THE ASSESSING OFFICER SHALL GIVE REASONABL E SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE A SSESSEE IS DIRECTED TO FURNISH COPIES OF THESE ADDITIONAL EVID ENCES BEFORE 8 THE ASSESSING OFFICER FOR HIS CONSIDERATION. WE C LARIFY THAT WHATEVER RELIEF IS GRANTED BY THE LEARNED CIT (APPE ALS) SHALL REMAIN SAME AND SHALL NOT BE SUBJECT MATTER FOR DIS CUSSION BEFORE THE ASSESSING OFFICER. WITH THESE OBSERVAT IONS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES WITH COST OF RS.10,000/-. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF JANUARY, 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 22 ND JANUARY, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH