Shri Subhash Haribhai Shihora, Ahmedabad V. The Income tax Officer,Ward-6(2), Ahmedabad

ITA 2109/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2100 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 16-04-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 21-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SAKAR
• Keywords: Gift; Business income; Income from undisclosed sources; Additional evidence; Onus to prove
• Section: 133(6)

Judgement Text

ITA NO 2109/A/2011 . A.Y. 2009-1 0 1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T. A. NO. 2109/AHD/2012 (ASSESSMENT YEAR:2009-10 SUBASH HARIBHAI SHIHORE, 204,RAJKAMAL A. OPP. SAKAR III, NR. CU SHAH COLLEGE, INCOME TAX, AHMEDABAD-380014. (APPELLANT) VS. THE ITO, WARD 6(2), AHMEDABAD (RESPONDENT) PAN: BAKPS4724G APPELLANT BY : SHRI TEJ SHAH A.R. RESPONDENT BY : SHRI T. SAKAR SR. D.R. ( )/ ORDER DATE OF HEARING : 16/4/2013 DATE OF PRONOUNCEMENT : 10 -05-2013 PER SHRI ANIL CHATURVEDI,A.M. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF LD. CIT(A)- XI, AHMEDABAD DATED 29.8.2012 FOR THE ASSESSMENT YE AR 2009-10. 1. THE FACTS AS CULLED OUT FROM THE ORDERS OF THE L OWER AUTHORITIES ARE AS UNDER. 2. ASSESSEE IS AN INDIVIDUAL WHO FILED HIS RETURN O F INCOME ON 26.5.2009 DECLARING TOTAL INCOME OF RS. 2,02,850/- AND AGRICULTURAL INCOME OF RS. 75,42,126/-. THE CASE WAS SELECTED FO R SCRUTINY AND ITA NO 2109/A/2011 . A.Y. 2009-1 0 2 THEREAFTER THE ASSESSMENT WAS FINALIZED UNDER SECT ION 143 (3) VIDE ORDER DATED 26.12.2011 AND THE TOTAL INCOME WA S ASSESSED AT RS. 77,44,976/-. AGGRIEVED BY THE ORDER OF ASSESSIN G OFFICER, ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT (A) VIDE ITS ORDER DATED 29.8.2012 DISMISSED THE APPEAL OF ASSESSEE. A GGRIEVED BY THE AFORESAID ORDER OF CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS. 1. THAT THE LD. CIT(A) ERRED IN LAW AND ON THE FACT S OF THE CASE IN CONFIRMING THE ADDITION OF RS. 75,42,126/- MADE BY THE LD. ASSESSING OFFICER BY TREATING AGRICULTURAL INCOME A S INCOME FROM OTHER SOURCES. 2. THAT THE LD. CIT(A) ERRED IN LAW AND ON THE FACT S OF THE CASE IN NOT ADMITTING THE ADDITIONAL EVIDENCE PRODUCED BY T HE APPELLANT TO PROVE ITS CASE. 3. THAT THE LD. CIT(A) ERRED IN LAW AND ON THE FACT S OF THE CASE IN DECIDING THE CASE OF THE APPELLANT EX PARTE WITHOUT AFFORDING SUFFICIENT OPPORTUNITY OF HEARING. 4. ANY OTHER GROUND WHICH MAY BE URGED BEFORE OR DURIN G THE HEARING OF THE APPEAL. 3. THE ONLY EFFECTIVE GROUND IS WITH RESPECT TO TRE ATING RS. 75,42,126/- AS INCOME FROM UNDISCLOSED SOURCES. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASS ESSING OFFICER NOTICED THAT ASSESSEE HAS DISCLOSED AGRICULTURAL IN COME. THE ASSESSEE WAS ASKED TO SUBSTANTIATE HIS CLAIM OF AG RICULTURE INCOME, THE ASSESSEE INTER ALIA SUBMITTED THE PURCH ASE DEED AND GIFT DEED FOR THE ACQUISITION OF LAND AND ALSO SUBM ITTED COMPUTERIZED SALES BILL OF THE AGRICULTURAL PRODUCE . THE ITA NO 2109/A/2011 . A.Y. 2009-1 0 3 SUBMISSIONS MADE BY THE ASSESSEE WAS NOT FOUND ACCE PTABLE TO THE ASSESSEE. HE REJECTED THE ASSESSEES CLAIM OF AGRICULTURAL INCOME AND HELD IT TO BE THE INCOME OF ASSESSEE FRO M UNDISCLOSED SOURCES BY HOLDING AS UNDER:- ON VERIFICATION OF DETAILS FILED BY THE ASSESSEE TH E AGRICULTURAL INCOME OF THE ASSESSEE IS NOT ACCEPTED DUE TO FOLLO WING REASONS; A. NO PROOF OF AGRICULTURAL EXPENSES LIKE ELECTRICI TY PURCHASE OF FERTILIZER, SEEDS ETC. FURNISHED BY THE ASSESSEE, WHICH CAN SHOW THAT AGRICULTURAL ACTIVITI ES CARRIED OUT BY THE ASSESSEE. B. THE ASSESSEE CONVENIENTLY AVOIDED TO FURNISHING HIS BANK ACCOUNT. C. THE SALE BILLS PRODUCED BY THE ASSESSEE ARE UNACCEPTABLE AS EARLIER THE SAME WAS SHOWN AS UNSIGNED COMPUTER PRINTOUTS AND LATER ON THE SAME A RE PRESENTED AS SIGNED BILLS. IT SHOWS THAT THESE SAL E BILLS ARE BOGUS SALE BILLS BECAUSE HOW THE UNSIGNED COMPUTER GENERATED SALE BILLS OF SALE PARTIES WAS I N POSSESSION OF THE ASSESSEE. ON HEARING DATED 08.12.2011 ON THE BASIS OF FACTS AND CIRCUMSTANCES OF THE CASE THE AR OF THE ASSESSEE INFORMED THAT THE B ILLS ARE SELF GENERATED BILLS AND HE WAS REQUIRED TO SHO W CAUSE WHY AGRICULTURAL INCOME SHOULD NOT BE DISALLO WED. HOWEVER, THE ASSESSEE FAILED TO PROVE GENUINENESS O F THESE SALE BILLS TILL DATE. ITA NO 2109/A/2011 . A.Y. 2009-1 0 4 D. THE ASSESSEE SHOWN TWO SALES PARTIES OF AGRICULT URAL PRODUCE NAMELY TAMELU VENKETACHARYA AND RAMA VENKATULU. ON THE BASIS OF ADDRESS GIVEN ON THESE BILLS NOTICES U/S. 133 (6) OF THE INCOME-TAX ACT ISSUED W HICH RETURNED UNSERVED WHICH SHOWS THAT NO SUCH PARTIES EXISTS AND THE BILLS PRODUCED BY THE ASSESSEE ARE B OGUS BILLS AND SELF GENERATED BILLS AS MENTIONED IN PREC EDING PARAS. THE FACT WAS BROUGHT TO KNOWLEDGE OF AR OF THE ASSESSEE ON HEARING DATED 19.12.2011. HOWEVER, NO FURTHER EVIDENCE PRODUCED BY THE ASSESSEE WHICH CAN SHOW THAT THE SALES PARTIES SHOWN BY THE ASSESSEE A RE GENUINE. HENCE, THE ASSESSEE FAILED TO DISCHARGE H IS PRIMARY BURDEN OF PROOF AND CLAIM OF AGRICULTURAL I NCOME BY THE ASSESSEE IS LIABLE TO BE REJECTED. E. THE ASSESSEE IS A PROMOTER OF A MULTI CRORE UROK GROUP. AS PER PROFILE OF THE ASSESSEE, HE IS FOUNDE R OF UROK INTERNATIONAL AND ENGAGED IN CONSULTANCY AND PROJECTS SET UP/ MANAGEMENT. IT IS SURPRISING THAT IN RETURN OF INCOME THE ASSESSEE SHOWN TURNOVER FROM UROK INTERNATIONAL ONLY RS. 1,15,452/- AND PROFIT O F RS. 10,251/- ONLY AGAINST AGRICULTURAL INCOME OF RS. 75,42,126/-. BY DOING SO, THE ASSESSEE PARKED HIS UNACCOUNTED BUSINESS INCOME UNDER THE HEAD AGRICULTRUAL INCOME AND AVOIDED HIS TAX LIABILITY . IT IS UNBELIEVABLE THAT FROM HIS BUSY BUSINESS SCHEDULE T HE ASSESSEE CARRIED OUT AGRICULTRUAL ACTIVITIES. FURTH ER, NO PROOF FURNISHED BY THE ASSESSEE THAT HE HAD OUTSOUR CED ITA NO 2109/A/2011 . A.Y. 2009-1 0 5 HIS AGRICULTURAL ACTIVITIES AND ANY SHARECROPPER KE PT BY HIM. HENCE, THE ASSESSEE FAILED TO PROVER GENUINENE SS OF HIS CLAIM OF AGRICULTURAL INCOME. F. HENCE, CLAIM OF AGRICULTURAL INCOME OF THE ASSESSEE IS REJECTED AND RS. 75,42,126/- ADDED TO TOTAL INCOME OF THE ASSESSEE BEING CAPITAL INTRODUCED UNDISCLOSED SOURCES. PENALTY PROCEEDING FOR CONCEALMENT OF PARTICULARS OF INCOME AS WELL AS FURNISHING INACCUR ATE PARTICULARS OF SUCH INCOME ARE BEING INITIATED SEPARATELY. 5. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER , AS SESSEE CARRIED THE MATTER BEFORE CIT(A). BEFORE CIT(A) ASSESSEE SUBMIT TED ADDITIONAL EVIDENCE BEING BILLS FOR AGRICULTURAL EXPENSES. CIT (A) DID NOT ADMIT THE ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE. HE CONFIRMED THE ORDER OF ASSESSING OFFICER BY HOLDING AS UNDER: - 2.3 I HAVE CAREFULLY CONSIDERED MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE APPELLANT VIDE HIS LETTER DATED 28-8- 2012 SUBMITTED ADDITIONAL EVIDENCES WHICH ARE BILLS FOR AGRICULTURAL EXPENSES. HOWEVER, VIDE THIS LETTER, THE APPELLANT HAD NOT MADE SPECIFIC PRAYER FOR ADMITTIN G THESE EVIDENCES AS PER THE PROVISIONS OF RULE 46 A OF I.T . RULES, 1962. SECONDLY, THE APPELLANT HAD NOT PLACE D ANY EVIDENCE ON RECORD TO PROVE THAT THE CONDITIONS MENTIONED IN RULE 46A ARE FULFILLED IN THIS CASE. IN VIEW OF ABOVE, I HOLD THAT IN THE APPELLANTS CASE PRE- CON DITIONS OF RULE 46A ARE NOT FULFILLED AND ACCORDINGLY THESE EVIDENCES ARE NOT ADMITTED FOR THE PURPOSES OF THIS ITA NO 2109/A/2011 . A.Y. 2009-1 0 6 APPEAL. THE APPEAL WILL BE ADJUDICATED ON THE BASI S OF EVIDENCES AS IT WAS BEFORE THE ASSESSING OFFICER. 2.4IT IS FURTHER SEEN THAT DURING ASSESSMENT PROCEE DINGS, THE A.O. SPECIFICALLY REQUIRED THE APPELLANT TO FIL E COPIES OF BILLS VIDE WHICH AGRICULTURE PRODUCE WAS SOLD. HOW EVER, APPELLANT COULD FURNISH ONLY COMPUTER GENERATED BIL LS THAT TOO WITHOUT ANY SIGNATURE. IT IS ALSO OBSERVED BY T HE A.O. THAT UNSIGNED COPY OF COMPUTER GENERATED BILLS INDI CATING THAT AGRICULTURE PRODUCE WAS SOLD TO TWO PARTIES NA MELY, M/S TAMELU VENKATACHARYA AND RAMA VENKATULU. THE A.O. MADE INQUIRIES ON THE ADDRESS GIVEN IN THESE B ILLS. HOWEVER, THE INQUIRY LETTERS ISSUED U/S. 133(6) WER E RETURNED BY THE POSTAL AUTHORITIES AS UNSERVED VIDE SHOW CAUSE LETTER DATED 19-12-2011, THE FATE OF THESE IN QUIRIES WERE CONFRONTED TO THE ASSESSEE DURING THE ASSESSME NT PROCEEDINGS. THE APPELLANT HAS NOT GIVEN ANY REPLY AGAINST SPECIFIC QUERIES RAISED BY THE A.O. IN VIE W OF ABOVE FACTS, I AM OF THE CONSIDERED VIEW THAT APPEL LANT HAS SQUARELY FAILED TO SUBSTANTIATE THE FACTS OF AG RICULTURE INCOME GENERATION. THE APPELLANT HAS ALSO FAILED T O FILE COGENT EVIDENCES TO PROVE THE FACT OF AGRICULTURE EXPENSES. IN VIEW OF ABOVE FACTS I AM INCLINED TO AGREE WITH THE CONTENTIONS OF THE LD. A.O. ACCORDINGLY, A DDITION OF RS. 75,42,126/- MADE BY THE A.O. IS CONFIRMED. THIS GROUND OF APPEAL IS DISMISSED. 7. AGGRIEVED BY THE AFORESAID ORDER OF CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE US. ITA NO 2109/A/2011 . A.Y. 2009-1 0 7 8. AT THE OUTSET, THE LEARNED A.R. SUBMITTED THAT THE ASSESSEE VIDE LETTER ORDER DATED 15-12-2012 REQUESTED CIT (A) T O GRANT TIME FOR PRODUCTION OF DOCUMENTS TO SUBSTANTIATE HIS STA ND TO PROVE THAT THE AGRICULTURAL ACTIVITIES HAVE BEEN CARRIED OUT BY THE ASSESSEE. THE ASSESSEE ALSO SUBMITTED THE COPIES OF BILLS OF FERTILIZERS, PESTICIDES AND OTHER EXPENSES TO PROVE ITS CONTENTION. HE FURTHER SUBMITTED THAT CIT(A) DID NO T ACCEPT THE ADDITIONAL EVIDENCE. HE THEREFORE, REQUESTED THAT A SSESSING OFFICER BE DIRECTED TO ADMIT THE ADDITIONAL EVIDEN CE SUBMITTED BY THE ASSESSEE AND THEREAFTER THE MATTER BE DECID ED. HE THUS URGED THAT THE MATTER BE REMANDED TO THE FILE OF A.O. WITH SUITABLE DIRECTIONS. 9. THE LEARNED D.R., ON THE OTHER HAND, OPPOSED THE REQUEST OF THE LEARNED A.R. ASKING FOR THE ADMISSION OF ADDITI ONAL EVIDENCE. HE THUS SUPPORTED THE ORDER OF LOWER AUTH ORTIES. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. BEFORE US, THE LEARNED A.R. SUBMITTED TH AT BEFORE CIT(A) THAT HE HAD SUBMITTED ADDITIONAL EVIDENCE I N THE FORM OF COPIES OF BILLS OF EXPENSES INCURRED AND OTHER EVID ENCES TO SUBSTANTIATE HIS STAND OF EARNING OF AGRICULTURAL INCOME. WE FIND THAT THE ADDITIONAL EVIDENCE FILED BY THE ASSE SSEE WAS NOT ACCEPTED BY CIT(A) FOR THE REASON THAT THE ASSESSEE HAD NOT MADE SPECIFIC PRAYER FOR ADMITTING ADDITIONAL EVIDE NCES AS PER RULE 46A OF I.T. RULES AND HAD ALSO NOT PROVED TO H AVE FULFILLED THE CONDITIONS SPECIFIED THEREIN. WE ARE OF THE VIE W THAT CONSIDERING THE PECULIAR CIRCUMSTANCES OF THE CASE AND TO MEET ITA NO 2109/A/2011 . A.Y. 2009-1 0 8 THE ENDS OF JUSTICE THE ASSESSEE BE GRANTED ONE M ORE OPPORTUNITY TO PRODUCE THE EVIDENCE IN ITS POSSESSI ON TO SUBSTANTIATE HIS CLAIM OF EARNING AGRICULTURE INCOM E. WE, THEREFORE, SET ASIDE THE MATTER TO THE FILE OF CIT (A) AND DIRECT HIM TO ADMIT THE ADDITIONAL EVIDENCE FURNISHED BY THE ASSESSEE IN ITS SUPPORT AND THEREAFTER, AFTER CONSIDERING TH E SUBMISSIONS OF THE ASSESSEE DECIDE THE MATTER DE NOVO. NEEDLESS TO SAY, CIT(A) WILL GRANT SUFFICIENT OPPOURNITY OF HEARING TO BOTH THE PARTIES, BEFORE PASSING AN ORDER. THUS, THIS GROUN D OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 11. THUS THE APPEAL IS ALLOWED FOR STATISTICAL PURP OSES. ORDER PRONOUNCED IN OPEN COURT ON 10 -05 - 2013. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER TRUE COPY AHMEDABAD. RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDA BAD