Arshad Sardar Khan, Aligarh V. ITO, Aligarh

ITA 232/AGR/2009

• Counselvise Citation: [2010] 137 COUNSELVISE.COM (IT) 0247 (ITAT-AGRA)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 28-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 25-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: ARSHAD SARDAR KHAN
• Keywords: Condonation of delay; Set aside
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA (SMC) BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.232/AGR./2009 ASSTT. YEAR : 2004-05 SHRI ARSHAD SARDAR KHAN, VS. INCOME TAX OFFICER, TALEEM MANZIL, WARD-IV, ALIGARH. MARRIS ROAD, ALIGARH. (PAN: AHFP 8634 A) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ARSHAD SARDAR KHAN, ASSESSEE RESPONDENT BY : SHRI A.K. SHARMA, JR. D.R. ORDER THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 06.02.2009 PASSED BY THE LD. CIT(A), GHAZIABAD ON THE FOLLOWIN G GROUNDS :- 1. THAT THE LOWER AUTHORITIES WERE WRONG IN FACTS AND IN LAW IN TREATING THE AGRICULTURAL INCOME AT RS.2,00,000/- O F FRUITS FROM MANGO ORCHARD AS INCOME FROM OTHER SOURCES. VARIOUS OBSERVATIONS MADE BY THE LEARNED LOWER AUTH ORITIES WERE NOT CORRECT. THE LEARNED LOWER AUTHORITIES BY MISTAKE NOT CONSIDERED THE EVIDENCE OF ELECTRIC PAYMENT PASSBOO K FOR WATERING THE ORCHARD, CERTIFICATE OF TEHSILDAR ABOU T AGRICULTURAL INCOME AND CERTIFICATE OF HEAD DEPARTM ENT OF BOTANY A.M.U., ALIGARH ABOUT THE ORCHARD WHICH WERE FILED BEFORE THE LOWER AUTHORITIES. 2 VARIOUS OBSERVATIONS MADE IN THE ASSESSMENT ORDER A RE UNTENABLE AND THE DOCUMENTARY EVIDENCES WERE NOT PR OPERLY APPRECIATED. 2. THAT WITHOUT PREJUDICE TO GROUND 1 ABOVE THE LEA RNED LOWER AUTHORITIES WERE NOT JUSTIFIED IN FACTS AND IN LAW IN TREATING THE WHOLE OF THE AGRICULTURAL INCOME AS NON AGRICULTURAL INCO ME I.E. INCOME OF OTHER SOURCES. THE ADDITION AS MADE IS ILLEGAL, WR ONG AND AT ANY RATE VERY VERY EXCESSIVE IN VIEW OF THE FACT THAT THE AG RICULTURAL INCOME OF THE APPELLANT IS FROM AGRICULTURAL OWNED LAND FROM EARLIER YEARS. 3. THAT THE TAX CHARGED AND INTEREST THEREON U/S 23 4A, 234B AND 234C IS ILLEGAL AND VERY VERY EXCESSIVE. 4. THAT THE APPELLANT RESERVES THE RIGHT TO ADD, AM END, DELETE, ALTER, MODIFY THE GROUNDS OF APPEAL 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES. THEREFORE, NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3. THE APPEAL FILED BY THE ASSESSEE IS LATE BY 162 DAYS. SHRI ARSHAD SARDAR KHAN, THE ASSESSEE, APPEARED IN PERSON AND FILED AN APPLICATION ALONG WITH AFFIDAVIT DATED 26.04.2011 IN SUPPORT OF CONDONATION OF DELAY OF 162 DAYS. HE REQUESTED THAT THE REASONS MENTIONED IN THE AFFIDAVIT ARE SUF FICIENT REASON TO CONDONE THE DELAY IN DISPUTE AND MAY BE CONDONED IN THE INTERES T OF JUSTICE. 3 4. THE CONTENDS OF THE APPLICATION ALONG WITH THE A FFIDAVIT HAS BEEN CONVEYED TO THE LD. DEPARTMENTAL REPRESENTATIVE. HE HAS NOT RAISED ANY OBJECTION ON THE CONDONATION OF DELAY. 5. AFTER HEARING BOTH THE PARTIES AND GOING THROUGH THE AVERMENTS MADE BY THE ASSESSEE IN THE AFFIDAVIT DATED 26.04.2011, I AM OF THE CONSIDERED OPINION THAT THE REASONS MENTIONED BY THE ASSESSEE IN THE AFFIDAVIT FOR CONDONATION OF DELAY OF 162 DAYS ARE THAT THE ORDER OF THE CIT(A), GHAZIABAD WA S RECEIVED BY THE ASSESSEE ON 28.03.2009 AND THE APPEAL WAS FILED ON 25.05.2009 A LONG WITH CHALLAN OF RS.2,510/- AND OTHER ANNEXURES. THE FEE WAS CALCUL ATED AND PAID AT RS.2,510/- I.E. 1% OF RS.2,50,300/-. THERE WAS SHORT PAYMENT OF CO URT FEE WHICH CAME TO THE KNOWLEDGE OF THE ASSESSEE AFTERWARDS. AS SOON AS T HE SAME WAS BROUGHT TO THE NOTICE OF THE ASSESSEE BY THE REGISTRY OF THE TRIBU NAL, THE ASSESSEE HAS DEPOSITED THE SAME ON 20.11.2009. THEREFORE, THE DELAY IN DI SPUTE IS NOT INTENTIONAL AND REQUESTED FOR CONDONATION OF THE SAME. 6. I AM OF THE CONSIDERED OPINION THAT THE DELAY IN DISPUTE HAS BEEN CAUSED DUE TO SHORT PAYMENT OF COURT FEE WHICH HAS BEEN PAID B Y THE ASSESSEE AS SOON AS THE SAME WAS BROUGHT TO HIS NOTICE BY THE REGISTRY. TH EREFORE, THE REASONS ARE 4 SUFFICIENT TO CONDONE THE DELAY AND I CONDONE THE D ELAY OF 162 DAYS IN FILING THE PRESENT APPEAL AND ADMIT THE PRESENT APPEAL. 7. ON MERIT, THE ASSESSEE IN PERSON APPEARED AND MA DE A STATEMENT THAT THE AO AS WELL AS THE LD. FIRST APPELLATE AUTHORITY HAS NO T GIVEN SUFFICIENT OPPORTUNITY TO PRODUCE SHRI AJMAT KHAN BEFORE THE AO FOR SUBSTANTI ATING HIS CLAIM. HE FURTHER STATED THAT HE CAN PRODUCE SHRI AJMAT KHAN BEFORE T HE AO IF THIS BENCH GRANTS HIM SOME TIME TO DO THE SAME. THE ASSESSEE HAS PRODUCE D ALL NECESSARY EVIDENCES SHOWING THE OWNERSHIP OF THE LAND FROM WHERE HIS AG RICULTURAL INCOME HAS ARISEN. THE MAIN OBJECTION OF THE REVENUE IS THAT THE ASSES SEE HAS NOT PRODUCED SHRI AJMAT KHAN TO SUBSTANTIATE HIS CLAIM OF RS.2,00,000 /- AS AGRICULTURAL INCOME WHICH HAS BEEN ASSESSED AS INCOME FROM OTHER SOURCES, WHI CH IS THE ONLY DISPUTE IN THE PRESENT APPEAL. 8. THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT RAIS ED ANY OBJECTION ON THE REQUEST OF THE ASSESSEE FOR AFFORDING OPPORTUNITY T O THE ASSESSEE TO PRODUCE SHRI AJMAT KHAN FOR SUBSTANTIATING THE CLAIM OF THE ASSE SSEE AMOUNTING TO RS.2,00,000/- AS AGRICULTURAL INCOME. 5 9. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE LEVANT RECORDS AVAILABLE WITH ME, ESPECIALLY THE VERY SHORT REQUEST MADE BY THE A SSESSEE, WHO APPEARED IN PERSON, BECAUSE HIS COUNSEL HAS BEEN ADMITTED IN HO SPITAL DUE TO KIDNEY AILMENT. I AM OF THE CONSIDERED OPINION THAT, IN THE INTEREST OF JUSTICE, THE ASSESSEE IS ENTITLED FOR MORE OPPORTUNITY TO PRODUCE SHRI AJMAT KHAN BEF ORE THE AO FOR SUBSTANTIATING THE CLAIM OF THE ASSESSEE OF RS.2,00,000/- AS AGRIC ULTURAL INCOME. THEREFORE, IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUE IN DISPU TE, I.E. TREATING THE AGRICULTURAL INCOME OF RS.2,00,000/- OF FRUITS FROM MANGO ORCHAR D AS INCOME FROM OTHER SOURCES, TO THE AO TO DECIDE THE SAME AFRESH UNDER LAW AFTER GIVING OPPORTUNITY TO THE ASSESSEE TO PRODUCE SHRI AJMAT KHAN BEFORE HIM AND DECIDE THE ISSUE IN DISPUTE AFRESH UNDER LAW. 10. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 28.04.2011) SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 28 TH APRIL, 2011 PBN/* 6 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRI BUNAL, AGRA TRUE COPY