YAJESHWAR R GARG, MUMBAI V. ACIT CIR 27(3), MUMBAI

ITA 2354/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4212 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 1998-1999
• Appeal Filed On: 24-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V S JADHAVDR
• Section: 133(6)

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.2354/MUM/2015 ASSESSMENT YEAR: 1998-99 SHRI YAJYESHWAR R. GARG, C-55, ANAND NAGAR, K.K. GANGULY ROAD, SANTACRUZ (W), MUMBAI-400049 / VS. ACIT, CIRCLE-27(3), AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 / ASSESSEE / REVENUE P.A. NO. AGYPR9732L $ % & / ASSESSEE BY SHRI NISHIT GANDHI $ % & / REVENUE BY SHRI V.S. JADHAV-DR / DATE OF HEARING 28/01/2016 & / DATE OF ORDER: 01/02/2016 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 12/02/2015 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE FIRST GROUND RAISED IN THIS APPEAL PERT AINS TO NON-GRANTING OF PROPER AND FAIR OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. ITA NO.2354/MUM/2015 YAJYESHWAR R. GARG 2 2. DURING HEARING, SHRI NISHIT GANDHI, LD. COUNSEL FOR THE ASSESSEE, ADVANCED ARGUMENTS, WHICH IS IDEN TICAL TO THE GROUND RAISED. ON THE OTHER HAND, THE LD. DR, S HRI V.S. JADHAV, DEFENDED THE CONCLUSION, ARRIVED AT IN THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE WAS VERY MUCH PRESENT BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WITHOUT G OING INTO MUCH DELIBERATION, I FIND FROM THE ASSESSMENT ORDER THAT THE CASE OF THE ASSESSEE WAS FIXED FOR VARIOUS DATES AS IS EVIDENT FROM COLUMN-11 (PAGE-1 OF THE ASSESSMENT ORDER) AND THE ASSESSEE HIMSELF ATTENDED THE PROCEEDINGS A LONG WITH AUTHORIZED REPRESENTATIVE FROM TIME TO TIME AN D FURNISHED THE NECESSARY DETAILS. LIKEWISE, BEFORE T HE LD. COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE REMAINED PRESENT AND EVEN REMAND REPORT WAS SOUGHT FROM THE ASSESSING OFFICER, THEREFORE, I AM NOT SATISFIE D WITH THE ASSERTION OF THE ASSESSEE THAT PROPER OPPORTUNITY O F BEING HEARD WAS NOT PROVIDED TO HIM, THUS, THIS GROUND IS HAVING NO MERIT, THEREFORE, DISMISSED. 3. THE NEXT ADDITION PERTAINS TO DISALLOWANCE OF SALARY EXPENSES OF RS.18,000/-, WHICH WAS NOT PRESS ED BY THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, IT IS DISMISSED AS NOT PRESSED. ITA NO.2354/MUM/2015 YAJYESHWAR R. GARG 3 3.1. THE NEXT ADDITION PERTAINS TO ADDITION OF RS. 5 LAKH MADE BY THE LD. ASSESSING OFFICER. THE LD. COU NSEL FOR THE ASSESSEE EXPLAINED THAT THE ASSESSEE IS A FARME R HOLDING ABOUT 80 BIGHAS (16 ACRES) OF CULTIVATED/I RRIGATED FERTILE LAND SITUATED IN VILLAGE GAJIPUR, TEHSIL, N AGINA, DIST. BIJNAUR (U.P.). THE ASSESSEE ALSO FURNISHED A LETTE R FROM THE TEHSILDAR AND ALSO COPY OF KHAUTINI EVIDENCING GROW ING OF PADDY, WHEAT, CHARA, ETC. ON THE OTHER HAND, THE LD . DR DEFENDED THE ADDITION MADE BY THE LD. ASSESSING OFF ICER AND CONFIRMED BY LD. COMMISSIONER OF INCOME TAX (APPEALS). 3.2. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT ED THAT THE LD. ASSESSING OFFICER MADE ADDITION OF RS.5 LAK H DISALLOWING THE CLAIM OF THE ASSESSEE THAT THERE WA S NO EVIDENCE OF SALE OF EUCALYPTUS PLANTATION THAT IT W AS PLANTED TWENTY YEARS BACK AND FURTHER THE ASSESSEE COULD NOT TELL THE WEIGHT AND HEIGHT OF TREES. I HAVE EX AMINE THE ISSUE, PERUSED THE MATERIAL AVAILABLE ON RECORD, AF FIDAVIT OF THE ASSESSEE, CONFIRMATION OF PAYMENT BY B.B. SALES CORPORATION ON BEHALF OF SHIV HARI PLY WOODS (PVT.) LTD. CERTIFICATED DATED 26/11/2002, ISSUED BY THE TEHSIL DAR, WHEREIN, IT WAS CONFIRMED THAT THE ASSESSEE PLANTED THE EUCALYPTUS TREES IN THE YEAR 1978, CONFIRMATION BY ONE SHRI NIRANJAN SINGH, SON OF SHRI BUDDHU SINGH, RESI DENT OF VILLAGE GAJIPUR, WHO PLANTED THE TREES. THE OWNERSH IP OF LAND IS NOT DISPUTE, THUS, I AM NOT SATISFIED WITH THE ITA NO.2354/MUM/2015 YAJYESHWAR R. GARG 4 OBSERVATION OF THE LD. ASSESSING OFFICER THAT THE A SSESSEE COULD NOT TELL THE HEIGHT OF EUCALYPTUS TREES, WEIG HT OF WOOD, ETC. THE ASSESSEE EVEN PERSONALLY APPEARED BE FORE ME AND I EXAMINED HIM. I AM SATISFIED WITH THE EXPL ANATION OF THE ASSESSEE AND THE EVIDENCE FILED BEFORE THIS TRIBUNAL. THE LD. ASSESSING OFFICER MADE ENQUIRIES U/S 133(6) OF THE ACT FROM M/S B.B. SALES CORPORATION, MAHIM, WHEREIN , SHRI H. B. BOMBLE, PROPRIETOR, CATEGORICALLY STATED THAT HE MADE THE PAYMENT OF RS.5 LAKH ON BEHALF OF THE M/S SHIV HARI PLYWOOD THROUGH CHEQUE. HE ALSO SHOWED THE COP Y OF ACCOUNTS ALONG WITH REPLY. THUS, KEEPING IN VIEW, TOTALITY OF FACTS AND THE MATERIAL AVAILABLE ON RECORD, THE ADDITION SO MADE DESERVES TO BE DELETED. 3.3. THE NEXT ADDITION MADE BY THE ASSESSING OFFIC ER IS RS.2,60,500/- FROM UNDISCLOSED SOURCES. THE LD. COUNSEL FOR THE ASSESSEE INVITED MY ATTENTION TO PAGE-5 OF THE PAPER BOOK CONTAINING KHAUTINI AND GROWING OF VARIOUS CRO PS. THE GENUINENESS OF KHAUTINI EVEN HAS NOT BEEN DOUBTED B Y THE LD. ASSESSING OFFICER. EVEN THE OWNERSHIP OF LAND IS NOT DOUBT. HOWEVER, I FOUND FROM THE KHAUTINI THAT THE OWNERSHIP OF LAND IS IN THE NAME OF SHRI ASHIS GARG . ON QUESTIONING FROM THE ASSESSEE, IT WAS EXPLAINED THA T ASHIS GARG IS HIS SON AND IS A MARINE ENGINEER AND THE AGRICULTURAL OPERATION IS GOT DONE BY HIM FROM THE LABOUR RESIDING IN THE VILLAGE. I FIND THAT THE KHAUTINI I S DULY CERTIFIED BY THE TEHSILDAR, NAGINA, DIST. BIJANUAR AND THE GROWING OF CROPS LIKE DHAN (PADDY), WHEAT, CHARA, I S NOT IN ITA NO.2354/MUM/2015 YAJYESHWAR R. GARG 5 DISPUTE. EVEN THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ALLOWED WHEAT CROP, THEREFORE, GROWING OF CROP IS NOT IN DISPUTE. KEEPING IN VIEW, THE OWNERSHIP OF LAND/EXTENT OF LAND SAFELY IT CAN BE CONCLUDED THAT THE CLAIMED AMOUNT CAN EASILY BE GROWN FROM THE LAND EXPLAINED BEFORE ME. HOWEVER, SINCE THE LAND IS IN THE NAME OF SHRI ASHIS GARG (SON OF THE ASSESSEE), THE LD. ASSESSING OFFICER ONLY HAS TO EXAMINE THAT THERE SH OULD NOT BE DOUBLE CLAIM, ONE IN THE NAME OF ASHIS GARG AND ANOTHER ONE BY THE ASSESSEE FROM THE SAME LAND. THE ASSESSEE IS DIRECTED TO PRODUCE THE EVIDENCE THAT N O SUCH CLAIM HAS BEEN MADE BY SHRI ASHIS GARG FOR THE SAME LAND. SUBJECT TO THIS VERIFICATION, THE ADDITION IS DELET ED. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 28/01/2016. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 01/02/2016 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI ITA NO.2354/MUM/2015 YAJYESHWAR R. GARG 6 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI 6. /2 3$ / GUARD FILE. & / BY ORDER, (-# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI