Sh. Chottey Singh Yadav, Farrukhabad V. I.T.O., Ward-2(1), Farrukhabad

ITA 228/AGR/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0729 (ITAT-AGRA)
• Duration Of Justice: 5 year(s) 10 month(s) 22 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-07-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 24-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 228/AGRA/2013 ASSTT. YEAR : 2003-04 CHOTTEY SINGH YADAV, VS. INCOME-TAX OFFICER, C/O M/S. SRI RAM COLD STORAGE, WARD 2(1), FARRUK HABAD. GHAT GHAT ROAD, FARRUKHABAD. (PAN : AAVPY 6659 A) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PANKAJ GARGH, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 25.07.2013 DATE OF PRONOUNCEMENT OF ORDER : 31 07.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A), MUZAFFARNAGAR DATED 06.02.2013 FOR THE ASSESSMENT Y EAR 2003-04, CHALLENGING THE ADDITION OF RS.2,40,000/- AS INCOME FROM OTHER SOUR CES AGAINST AGRICULTURAL INCOME SHOWN BY THE ASSESSEE. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE FILED RETURN OF INCOME IN THE STATUS OF INDIVIDUAL DECLARING INCOME OF RS.1,2 6,405/- ALONG WITH THE AGRICULTURAL INCOME AT RS.3,00,000/- FOR RATE PURPO SE. ASSESSMENT WAS COMPLETED U/S. 144 ON DATED 23.03.2006 BY THE THEN AO ON TOTA L INCOME OF RS.9,58,238/- AND ITA NO. 228/AGRA/2013 2 AGRICULTURAL INCOME OF RS.3,00,000/- FOR RATE PURPO SE. THE ASSESSEE FILED APPLICATION U/S. 264 OF THE IT ACT BEFORE THE LD. C IT, ALIGARH. THE LD. CIT, ALIGARH REJECTED THE PETITION WITH THE DIRECTION TO THE AO TO MAKE ENQUIRIES IN RESPECT OF AGRICULTURAL INCOME OF RS.3,00,000/- AND ALSO SOURC E OF INVESTMENT IN ACQUISITION OF 200 BIGHAS OF AGRICULTURAL LAND AS SHOWN BY THE ASSESSEE. THE AO AS PER DIRECTION OF THE LD. CIT, ALIGARH, TOOK UP THE MATT ER AGAIN AND DIRECTED THE ASSESSEE TO PRODUCE SOURCE OF INVESTMENT IN ACQUISITION OF A GRICULTURAL LAND MEASURING 200 BIGHAS ALONG WITH PROOF OF AGRICULTURAL INCOME. INF ORMATION FROM TEHSILDAR, FARRUKHABAD WAS ALSO OBTAINED AND IT WAS FOUND THAT THE ASSESSEE ACTUALLY OWNED 40 BIGHAS OF LAND AS AGAINST CLAIM OF 200 BIGHAS. T HE AO CONSIDERED AGRICULTURAL INCOME AT RS.60,000/- AND MADE ADDITION OF RS.2,40, 000/- ON ACCOUNT OF INCOME FROM OTHER SOURCES. THE ASSESSEE DID NOT APPEAR BEF ORE THE LD. CIT(A) AND APPEAL OF THE ASSESSEE HAS BEEN DISMISSED. THE LD. CIT(A) NOTED THAT THE ASSESSEE HAS NOT FILED ANY EVIDENCE TO PROVE THAT HE OWNED LAND OF H IS OWN, HIS WIFE AND SONS AND EARNED AGRICULTURAL INCOME. SINCE THE ONUS UPON THE ASSESSEE HAS NOT BEEN DISCHARGED, THEREFORE, THE APPEAL WAS DISMISSED. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO HAS NOT CONSIDERED THE PREVIOUS HISTORY OF THE ASSESSEE, IN WHICH THE RETURN OF INCOME WAS FILED SHOWING AGRICULTURAL INCOME HOLDING 200 BIGHAS OF L AND. THEREFORE, ONE MORE ITA NO. 228/AGRA/2013 3 OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO ESTABLI SH HIS CLAIM. ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIE S BELOW. 4. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE AR E OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF LD. CIT(A) . THE LD. CIT, ALIGARH IN PROCEEDINGS U/S. 264 OF THE IT ACT DIRECTED THE AO TO MAKE ENQUIRIES IN RESPECT OF AGRICULTURAL INCOME OF RS.3,00,000/- AND SOURCE OF INVESTMENT IN ACQUISITION OF 200 BIGHAS OF AGRICULTURAL LAND SHOWN BY THE ASSESSEE. THOUGH THE AO GOT INFORMATION FROM TEHSILDAR, FARRUKHABAD THAT THE ASSESSEE HAS O NLY 40 BIGHAS OF AGRICULTURAL LAND, BUT THE AO DID NOT TAKE INTO CONSIDERATION TH E HISTORY OF THE ASSESSEE ON FILING THE RETURNS IN EARLIER YEARS. IT IS ALSO NOT CLEAR FROM THE ORDER OF THE AO WHETHER INFORMATION OBTAINED FROM TEHSILDAR, FARRUKHABAD WA S CONFRONTED TO THE ASSESSEE OR NOT. WHATEVER MATERIAL WAS USED AGAINST THE ASSE SSEE SHOULD HAVE BEEN CONFRONTED TO THE ASSESSEE EVEN IF THE EXPARTE ORDE R HAS BEEN PASSED BY THE AO. FURTHER, NO BASIS HAS BEEN SHOWN BY THE AO AS TO HO W HE HAS CALCULATED AGRICULTURAL INCOME OF RS.60,000/- IN RESPECT OF 40 BIGHAS OF AGRICULTURAL LAND. THE LD. CIT(A) DID NOT TAKE INTO CONSIDERATION THE ABOV E FACTS WHILE DISMISSING THE APPEAL OF THE ASSESSEE. IN THIS VIEW OF THE MATTER, WE ARE OF THE VIEW, IN THE INTEREST OF JUSTICE ONE MORE FINAL OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO SUBSTANTIATE HIS CLAIM BEFORE THE LD. CIT(A). WE, ACCORDINGLY, S ET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE APPEAL OF THE ASSESSEE TO HI S FILE WITH THE DIRECTION TO RE- ITA NO. 228/AGRA/2013 4 DECIDE THE APPEAL OF THE ASSESSEE BY GIVING REASONA BLE SUFFICIENT OPPORTUNITY OF BEING HEARD. THE LD. CIT(A) SHALL EXAMINE THE RECOR D OF THE REVENUE DEPARTMENT IN EARLIER YEARS TO VERIFY AS TO HOW MUCH AGRICULTU RAL INCOME HAS BEEN ACCEPTED BY THE DEPARTMENT IN PRECEDING ASSESSMENT YEAR AND THE LAND HOLDING CLAIMED BY THE ASSESSEE. THE LD. CIT(A) SHALL ALSO VERIFY WHETHER INFORMATION RECEIVED FROM TEHSILDAR, FARRUKHABAD WAS CONFRONTED TO THE ASSESS EE OR NOT. IN CASE, THE REPORT IS NOT CONFRONTED TO THE ASSESSEE, THE SAME BE CONFRON TED TO HIM AT THE APPELLATE STAGE BEFORE USING THE SAME AGAINST THE ASSESSEE. THE ASS ESSEE IS DIRECTED TO CO-OPERATE WITH THE LD. CIT(A) AND TO ADDUCE ALL EVIDENCES BEF ORE HIM FOR FINAL DISPOSAL OF APPEAL. WE MAKE IT CLEAR THAT IN CASE THE ASSESSEE WOULD NOT CO-OPERATE WITH THE LD. CIT(A), HE WOULD BE FREE TO TAKE ANY VIEW IN THE MA TTER AS PER LAW. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY