Varshaben Vinodbhai Modi, Ahmedabad V. The Income Tax Officer, Ward-2(3), Ahmedabad

ITA 2325/AHD/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94762 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 20-10-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 06-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL SR DR
• Assessee Lawyers: S N DIVATIA
• Keywords: Principle of natural justice; Corroborative evidences

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD .. , ( .) , BEFORE SHRI G.D. AGARWAL,VICE PRESIDENT (AZ) AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.2325/AHD/2015 ( / ASSESSMENT YEAR : 2011-12) VARSHABEN VINODBHAI MODI B-404/1, AKSHAR PARK BESIDES MAHESHWARI SEWA SAMITI SHAHIBAUG, AHMEDABAD-380 002 / VS. THE ITO WARD-2(3) PRATYAKSH KAR- BHAVAN AHMEDABAD % & ./ ./ PAN/GIR NO. : AGYPM 0208 N ( %( / APPELLANT ) .. ( )*%( / RESPONDENT ) %( + / APPELLANT BY : SHRI S.N. DIVATIA )*%( , + / RESPONDENT BY : SHRI S.L. CHANDEL, SR.DR -. , /& / DATE OF HEARING 20/10/2015 0123 , /& / DATE OF PRONOUNCEMENT 30/11/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-10, AHMEDABA D [CIT(A) IN SHORT] DATED 13/05/2015 PERTAINING TO ASSESSMENT Y EAR (AY) 2011-12. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- ITA NO.2325/AHD /2015 VARSHABEN VINODBHAI MODI VS. ITO ASST.YEAR 2011-12 - 2 - 1.1 T HE ORDER PASSED U/S.250 ON 13.05.2015 FOR A.Y.2011- 12 BY CIT(A)-10, ABAD, UPHOLDING THE ADDITION IN RESPECT OF NURSERY INCOME OF RS.5,15,000/- AS UNDISCLOSED INCOME, IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR O N FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE EXPLANATIONS FUR NISHED AND THE EVIDENCE PRODUCED BY THE APPELLANT. 2.1 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR O N FACTS IN UPHOLDING THAT THE NURSERY INCOME OF RS.5.15 LAKH WAS UNDISCL OSED INCOME IN ABSENCE OF SUPPORTING EVIDENCE OF SALES AND EXPENSE S. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) OUGHT NOT TO HAVE UPHELD THAT THE NURSERY IN COME OF RS.5.15 LAKH WAS UNEXPLAINED INCOME AND THE JOINT OPERATIONS ON FAMILY LAND COULD NOT BE BELIEVED. IT IS THEREFORE PRAYED THAT THE ADDITION OF RS.5.15 LAKH CONFIRMED BY THE CIT(A) SHOULD BE DELETED. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 20/01/2014, THEREBY THE ASSESSING OFFICER (AO IN SHORT) DISALLOWED THE CLAIM OF AGRICULTURAL INCOME OF THE ASSESSEE AND MADE ADDITION OF RS.5,15,000/-. THE ASSESSEE BEING AGGRI EVED BY THE ASSESSMENT ORDER, PREFERRED AN APPEAL BEFORE THE LD .CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DISMISS ED THE APPEAL. ITA NO.2325/AHD /2015 VARSHABEN VINODBHAI MODI VS. ITO ASST.YEAR 2011-12 - 3 - AGGRIEVED BY THE ORDER OF THE LD.CIT(A), NOW THE AS SESSEE IS FURTHER IN APPEAL BEFORE US. 3. THE ONLY EFFECTIVE GROUND IN THIS APPEAL IS AGAI NST CONFIRMING THE ADDITION OF RS.5,15,000/- AS UNEXPLAINED INCOME. T HE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN MAKING THE ADDITION AND CONFIRMING THE SAME. THE LD.COUNS EL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE LD.CIT(A). THE LD.COUNSEL FOR THE ASSESSEE SHRI S.N. DIVATIA VEHE MENTLY ARGUED THAT THE ASSESSEE HAS REFLECTED THE INCOME FROM NURSERY. TH E LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE CASE OF SHRI VINOD C .MODI THE FACTS ARE IDENTICAL AND THE CLAIM OF THE INCOME HAS BEEN ACCE PTED. 3.1. ON THE CONTRARY, THE LD.SR.DR SUPPORTED THE OR DERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE H AS NOT PLACED ANY EVIDENCE IN SUPPORT OF THE CLAIM OF AGRICULTURAL IN COME FROM NURSERY AND THE REVENUE RECORDS REFLECTS CONTRARY TO THE CLAIM OF THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LD.CIT(A) HAS GIVEN FINDING ON FAC T IN PARA 4.13 OF HER ORDER WHICH READS AS UNDER:- ITA NO.2325/AHD /2015 VARSHABEN VINODBHAI MODI VS. ITO ASST.YEAR 2011-12 - 4 - 4 1.3. DECISION : THE RIVAL SUBMISSIONS HAVE BEEN CONSIDERED. AS SA ID ABOVE, THE APPELLANT HAS SHOWN NURSERY INCOME OF RS.5,15,0 00/- AND AGRICULTURE INCOME OF RS.2,74,210/-. THE AO DID NOT DOUBT THE A GRICULTURE INCOME. REGARDING NURSERY INCOME OF RS.5,15,000/- THE APPEL LANT FAILED TO CONVINCE THE AO ABOUT GENUINENESS OF THE SAME. EVEN DURING APPEL LATE PROCEEDINGS, THE APPELLANT FAILED TO GIVE CONVINCING ARGUMENTS TO PR OVE THE GENUINENESS OF THE NURSERY INCOME. NO EVIDENCE OF NURSERY INCOME IN TE RMS OF PROOF OF SALE OF PLANTS FROM NURSERY OR PROOF OF EXPENDITURE INCURRE D TO EARN NURSERY INCOME WAS FILED EITHER DURING THE ASSESSMENT PROCEEDINGS OR DURING THE APPELLANT PROCEEDINGS. THE APPELLANT MERELY FILED PROFIT & LO SS ACCOUNT AS EVIDENCE IN SUPPORT OF NURSERY INCOME. BUT MERE FILING OF THE P ROFIT AND LOSS A/C CANNOT BE AN EVIDENCE OF INCOME GENERATED. THE APPELLANT FAIL ED TO CONTROVERT THE AO'S ARGUMENTS THAT THE LAND HOLDING OF 0.61- 0.71 HECTA RES WAS VERY SMALL TO DO BOTH NURSERY WORK' AND AGRICULTURE WORK ESPECIALLY WHEN THE NURSERY WORK IS SHOWN TO HAVE BEEN DONE ON A SIGNIFICANT SCALE AS S HOWN BY THE INCOME EARNED OF RS.5,15,00/-. THE APPELLANT'S ARGUMENT THAT CU LTIVATION IS BEING DONE ON LAND BELONGING TO ALL FAMILY MEMBERS IS NOT ACCEPTA BLE AS NO SUPPORTING EVIDENCE HAS BEEN FILED TO SHOW THAT CULTIVATION IS BEING DONE JOINTLY AND THAT INCOME OF RS.5,15,000/- HAS ACCRUED TO HER FROM HER SHARE OF THE LAND FROM JOINT OPERATIONS ON THE FAMILY LAND. ALSO, NO INFOR MATION REGARDING BASIS ON WHICH INCOME HAS BEEN DIVIDED HAS BEEN GIVEN. THIS ARGUMENT OF CULTIVATION ON JOINT LAND SOUNDS LIKE AN AFTERTHOUGHT TO JUSTIFY THE NURSERY INCOME OF RS.5,15,000/-. I AM I NCLINED TO AGREE WITH THE AO THAT ON THE LAND OF SIZE OF HOLDING OF THE APPELLAN T WHICH IS AROUND 0.61- 0.71 HECTARES OR 1 ACRES, IT IS NOT POSSIBLE TO DO BOT H NURSERY WORK AND DO AGRICULTURE ESPECIALLY WHEN BOTH NURSERY CULTIVATIO N AND AGRICULTURE ARE DONE ON A SIGNIFICANT SCALE. AS SAID ABOVE ALSO, THE NUR SERY INCOME IS SHOWN AT RS.5,15,000/- WHILE GROSS AGRICULTURE INCOME HAS BE EN CALCULATED BY AO AT RS.3,65,613/-. FURTHER, AS PER APPELLANT'S OWN SUBM ISSION, SHE HAS GIVEN HER LAND ON CONTRACT FOR AGRICULTURE ACTIVITY. IN THAT CASE, IT IS NOT CLEAR AS TO WHERE AND WHEN THE APPELLANT GROWS PLANTS FOR SALE AS NUR SERY PRODUCE, SINCE THE PERSON TO WHOM CONTRACT HAS BEEN GIVEN WOULD BE DOI NG AGRICULTURE ACTIVITY ON THE LAND. IN VIEW OF THE DISCUSSION ABOVE, I HOLD THAT THE AO WAS JUSTIFIED IN TREATING THE AMOUNT OF RS.5,15,000/- SHOWN AS NURSERY INCOME AS UNDISCLOSED INCOME. ACCORDINGLY, I UPHOLD THE ADDITION OF RS.5,15,000/- AND THE SAME IS CONFIRMED. THIS GROUND OF APPEAL IS DISMISSED. ITA NO.2325/AHD /2015 VARSHABEN VINODBHAI MODI VS. ITO ASST.YEAR 2011-12 - 5 - 4.1. THE ASSESSEE HAS CLAIMED BOTH AGRICULTURAL INC OME AND INCOME FROM NURSERY FROM A PLOT OF LAND ADMEASURING 1 ACR ES. THE AO HAS ACCEPTED THE AGRICULTURAL INCOME, HOWEVER, REGARDIN G NURSERY INCOME THE CLAIM WAS REJECTED OF WANT OF EVIDENCE. EVEN BEFOR E THIS TRIBUNAL, THE ASSESSEE HAS NOT PLACED ANY MATERIAL ON RECORD SUGG ESTING THAT THE ACTIVITY RELATED TO NURSERY WAS CARRIED OUT AS THE ASSESSEE HAS NOT PLACED ANY BILLS/VOUCHERS RELATING TO THE PURCHASE AND SAL ES. UNDER THESE FACTS, WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE ASSES SEE, THEREFORE WE REJECT THE GROUND RAISED IN THE APPEAL OF THE ASSESSEE. 5. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON MONDAY, THE 30 TH DAY OF NOVEMBER, 2015 AT AHMEDABAD. SD/- SD/- ( .. ) ( ) ( . ) ( G.D. AGARWAL ) ( KUL BHARAT ) VICE PRESIDENT (AZ) JUDICIAL MEMBER AHMEDABAD; DATED / 11 /2015 6/..-, .-../ T.C. NAIR, SR. PS ITA NO.2325/AHD /2015 VARSHABEN VINODBHAI MODI VS. ITO ASST.YEAR 2011-12 - 6 - !'#$%&' &$ / COPY OF THE ORDER FORWARDED TO : 1. %( / THE APPELLANT 2. )*%( / THE RESPONDENT. 3. 789 : / CONCERNED CIT 4. : ( ) / THE CIT(A)-10, AHMEDABAD 5. ;< )-89 , / 893 , 7 / DR, ITAT, AHMEDABAD 6. <= >. / GUARD FILE. ! / BY ORDER, *; ) //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 2.XI.15 (DICTATION-PAD 5+ PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..3.XI.15 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 30.11.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30.11.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER