Shri Vithalbhai R.Patel, Nadiad V. The Dy.CIT.,Kheda Circle, Nadiad

ITA 2406/AHD/2012

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6261 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-07-2017
• Assessment Year: 1998-1999
• Appeal Filed On: 30-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANTOSH KARNANI
• Keywords: Depreciation; Income from undisclosed sources; Revised return; Revenue expenditure; Capital expenditure
• Section: 143(3); 10(14); 12; 10

Judgement Text

, ,LK ,LK,LK ,LK- -- -,E ,E,E ,E- -- -LH LHLH LH- -- - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER !# I.T.A. NOS.2405 & 2406/AHD/2012 ( / ASSESSMENT YEAR : 1997-98 & 1998-99) VITHAL R. PATEL, SARVODAY HOSPITAL DABHAN, BHAGOL NADIAD 387 001 # VS. DCIT, KHEDA CIRCLE, NADIAD. $ # % & # PAN/GIR NO. : ADOPP 1428 N ( !$' / APPELLANT ) .. ( ($' # RESPONDENT ) !$') # APPELLANT BY : SMT URVASHI SODHAN, A.R. ($'*) / RESPONDENT BY : SHRI SANTOSH KARNANI, SR. D.R. + ,*-. / DATE OF HEARING 08/01/2018 /012*-. / DATE OF PRONOUNCEMENT 11/01/2018 3# O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER : THESE ARE TWO APPEALS BY THE ASSESSEE AGAINST THE SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-IV, BAR ODA, VIDE APPEAL NOS.CAB/IV/N-167/05-06 AND CAB/IV/N-175/05-06 DATED 03/08/2012 FOR THE ASSESSMENT YEARS (AYS) 1997-98 & 1998-99. 2. FIRST WE TAKE UP THE GROUNDS OF APPEAL IN ITA NO .2405/AHD/2012 FOR ASST. YEAR 1997-98: ITA NO S. 2405 & 2406/AHD/2012 VITHAL R. PATEL VS. DCIT ASST.YEARS -1997-98 & 1998-99 - 2 - 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONF IRMING THE ABOVE ADDITIONS/DISALLOWANCES MADE BY THE ASSESSING OFFIC ER AND ENHANCING THE ASSESSMENT U/S.251(2), WITHOUT APPRECIATING THE FACTS AND THE LAW ON THE SUBJECT AND THE AGRICULTURAL INCOME HAS BEEN ES TIMATED WITHOUT AFFORDING REASONABLE OPPORTUNITY TO THE APPELLANT T O CROSS-EXAMINE THE WITNESSES, WHO HAD STATED WRONG FACTS IN THEIR STAT EMENTS BEFORE THE ADIT (INV.) SHOLAPUR, IN RESPECT OF THE AGRICULTURA L OPERATIONS ON THE LANDS OF THE APPELLANT IN SHOLAPUR DISTRICT PERTAIN ING TO A.Y. 2001-02 ONLY AND HENCE THE STATEMENT RECORDED FOR A.Y.2001- 02 CANNOT BE APPLIED FOR A.Y. 1997-98. 2. THE LD. C1T(A) HAS ILLEGALLY ACTED BY ISSUING TH E NOTICE U/S.251(2) FOR ENHANCING THE ASSESSMENT PARTICULARLY WHEN THE ORDE RS OF THE ITAT, PASSED IN FAVOUR OF THE ASSESSEE, WERE BEFORE HIM F OR A.Y. 2001-02 AND 1999-2000 AND THE BASIS OF ENHANCEMENT WAS CIT'S OR DER FOR A.Y. 1999- 2000 HENCE SUCH NOTICE IS ILLEGALLY ISSUED AND DESE RVES TO BE QUASHED. 3. THE LD. C1T (A) HAS GRIEVOUSLY ERRED IN LAW AND FACTS BY ISSUING THE NOTICE U/S.251(2) AFTER A LAPSE OF 15 YEARS FROM TH E F.Y. PARTICULARLY WHEN SUCH ASSESSMENT CANNOT BE REOPENED U/S.147 AS WELL AS LOOKING TO THE APPEAL FILED BY THE ASSESSEE LONG BACK IN F.Y. 2005-06 AND HENCE AFTER A LAPSE OF SUCH A LONG PERIOD THE ISSUANCE OF NOTICE U/S.251(2) IS ABSOLUTELY ILLEGAL VOID AB-INITIO AND AS SUCH THE S AME DESERVES TO BE QUASHED. 4. IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANT' S CASE, THE LD. CIT (APPEALS) HAS ERRED IN LAW IN TREATING THE AGRICULT URAL INCOME OF THE APPELLANT AS INCOME FROM OTHER SOURCES BY ENHANCING THE SAME U/S.251(2) WHICH IS BAD IN LAW AGAINST THE PROVISIO N OF THE ACT AND HENCE THE LD. CIT (A) ACTED ILLEGALLY AND THUS THE ADDITIONS AND ENHANCEMENT MADE DESERVES TO BE DELETED. MORE PARTI CULARLY WHEN ORDERS OF HON'BLE I.T.A.T FOR A.Y. 2001-02 AND 1999 -2000 WERE GIVEN IN FAVOUR OF THE ASSESSEE AND HAD BEEN RECEIVED BY THE LD. CIT(A) BEFORE PASSING THE ORDER AND ENHANCING THE INCOME OF THE A SSESSEE. 5. THE LD. CIT (APPEALS) ERRED IN LAW AND ALSO ON F ACTS IN CONFIRMING THE ADDITION OF RS.6,33,592/-. BEING SALE OF POTATO SEE DS, FORMING PART OF THE APPELLANT'S AGRICULTURAL INCOME THIS YEAR, BY REJEC TING THE EVIDENCE IN THE FORM OF 13 LETTERS, ON MERE TECHNICAL GROUNDS. 6. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (APPEALS) ERRED IN ENHANCING THE INCOME FROM OTHER SOURCES OF THE A PPELLANT BY RS.56,49,542/-, BY REDUCING THE AGRICULTURAL INCOME OF THE APPELLANT OF THIS YEAR TO THE EXTENT OF RS. 8,00,000/- MERELY ON THE BASIS OF THE ITA NO S. 2405 & 2406/AHD/2012 VITHAL R. PATEL VS. DCIT ASST.YEARS -1997-98 & 1998-99 - 3 - APPELLATE ORDER FOR THE A. YR. 1999-2000, WHICH IS REVERSED BY THE HONBLE ITAT BY DELETING THE ADDITIONS MADE REGARDI NG THE CONCERNED AGRICULTURE INCOME AS INCOME FROM OTHER SOURCES. 7. THE LD. CIT(A) HAS EQUALLY ERRED IN PASSING THE COMMENT AND OBSERVING THAT SUFFICIENT TIME WAS GIVEN TO THE ASSESSEE TO C ROSS EXAMINE THE WITNESSES AT SOLAPUR WHERE ONLY ONE AND HALF DAY TI ME WAS GIVEN TO THE ASSESSEE AND FURTHER WHEN THE ASSESSEE REQUESTED FO R CROSS EXAMINATION AT NADIAD OR BARODA OF SUCH DEPARTMENTAL WITNESSES HENCE ALSO THE ENHANCEMENT MADE IS ABSOLUTELY ILLEGAL AND DESERVES TO BE DELETED, PARTICULARLY WHEN SUCH CROSS EXAMINATION WAS ABSOLU TELY NOT NECESSARY IN THE LIGHT OF THE FACT THAT ITAT ORDER FOR A.Y. 2 001-02 WAS BEFORE HIM. 8. THE LD. C1T(A) ERRED IN LAW AND ON FACTS IN DIS ALLOWING THE CLAIM OF DEDUCTION OF RS.33,000/-, CLAIMED AS TENDER FEES PA ID TO GSFC. HE HAS FURTHER ERRED IN TREATING THE SAID EXPENDITURE AS C APITAL EXPENDITURE. 9. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONF IRMING THE ADDITION OF RECEIPT OF POST OFFICE MONTHLY SAVING SCHEME MADE B Y THE A.O. OF RS.22,633/- U/S.69 OF THE ACT, AS CONCEALED INCOME THIS YEAR. 10. THE LD. C1T (APPEALS) ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF RS.14,442/-, BEING 1/5TH EXPENSES O N MAINTENANCE OF THE CAR AND RS.12,756/- BEING 175TH DEPRECIATION ON THE MOTOR CAR OF THE APPELLANT, ALTHOUGH THE A.O. HAD MADE THIS DISA LLOWANCE ON PRESUMPTION AND PROBABILITIES ONLY. 11. THE LD. CIT (APPEALS) ALSO ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF RS.52,200/- BEING REPLACEMENT OF TY RES FOR THE OLD TRUCK. THIS TRUCK WAS INADVERTENTLY CAPITALIZED IN THE FINAL ACCOUNTS OF THE APPELLANT BY HIS ACCOUNTANT AND THE CIT (A) HAS CONFIRMED THIS DISALLOWANCE ON THE ONLY GROUND THAT THE APPELLANT HAD NOT SHOWN THAT TRUCK AS HIS ASSET THOUGH THIS EXPENDITURE WAS CLAI MED BY THE APPELLANT AS REVENUE EXPENDITURE. 12. THE LD.CIT(A) HAS FURTHER ERRED IN CONFIRMING T HE ADDITION OF RS.52,000/- WHICH HAS MADE BY THE A.O. BY DISALLOWI NG THE CLAIM U/S.10(40) OF THE ACT. MORE PARTICULARLY WHEN 175TH OF CAR EXPENSES AND CAR DEPRECIATION WERE DISALLOWED BY HIM. 13. THE LD. CIT (APPEALS) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN INITIATING THE P ENALTY PROCEEDINGS U/S.271(1)(C) OF THE I.T. ACT, 1961 VIDE PARA 12.5 OF THE APPELLATE ORDER, FOR THE ALLEGED DEFAULT OF FURNISHING INACCURATE PA RTICULARS OF INCOME AND ALSO CONCEALMENT OF THE PARTICULARS OF SUCH INC OME, MORE PARTICULARLY WHEN SUCH FINDING CANNOT BE GIVEN UNLE SS THE CONCEALMENT ITA NO S. 2405 & 2406/AHD/2012 VITHAL R. PATEL VS. DCIT ASST.YEARS -1997-98 & 1998-99 - 4 - ORDER IS PASSED U/S.271(1)(C), HENCE HE HAS ACTED A GAINST HIS JURISDICTION AND THUS THE FINDING GIVEN SHOULD BE D IRECTED TO BE WITHDRAWN. 14. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN OBS ERVING IN THE BODY OF THE APPELLATE ORDER THAT THE APPELLANT HAD REMAINED ABS ENT ON MANY OCCASIONS BUT THIS IS NOT CORRECT AS WOULD BE EVIDE NT FROM THE FACTS ON HIS RECORD AND COPY OF THE ORDER SHEETS FORMING PAR T OF THE PAPER BOOK. 15. THAT THE LD.CIT(A) HAS EQUALLY ERRED IN OBSERVI NG THAT THE ASSESSEE WAS REQUIRED TO PRODUCE BOOKS OF ACCOUNTS AND OTHER REL EVANT MATERIALS IN SUPPORT OF CLAIM OF AGRICULTURAL INCOME PARTICULARL Y WHEN THE ENHANCEMENT NOTICE WAS ISSUED AFTER A LAPSE OF 7 YE ARS AFTER FILING OF THE APPEAL. MORE PARTICULARLY WHEN THE ASSESSMENT RELAT ES TO A.Y. 1997-98 AND ALL THE PAPERS WERE FILED BY THE ASSESSEE RELAT ING TO AGRICULTURE INCOME AND THE SAME WAS ACCEPTED AS GENUINE AT THE TIME OF ORIGINAL SCRUTINY ASSESSMENT WHICH IS EVIDENT FROM THE COPY OF THE ORDER SHEET OBTAINED BY THE ASSESSEE UNDER RTI ACT. HENCE NON P RODUCTION OF BOOKS OF ACCOUNTS CANNOT BE MADE A BASIS FOR ENHANCING TH E INCOME OF THE ASSESSEE PARTICULARLY WHEN ALL THE DETAILS WERE SCR UTINIZED AT THE TIME OF SCRUTINY ASSESSMENT PASSED U/S.143(3) AND STATEMENT RECORDED FOR A.Y.2001-02 CANNOT BE MADE A BASIS TO MAKE ENHANCEM ENT OF INCOME FOR THE IMPUGNED YEAR UNDER APPEAL, IN THE LIGHT OF ITAT ORDERS FOR A.Y.2001-02 AND 1999-2000 WHICH WERE GIVEN IN FAVOU R OF THE ASSESSEE AND SUCH ORDER WERE BEFORE HIM AT THE TIME OF PASSI NG THE ORDER. CONSEQUENTLY THE ADDITION AND ENHANCEMENT OF RS.56, 49,542/- TO THE INCOME OF THE ASSESSEE IS BAD IN LAW AND DESERVES T O BE DELETED. 16. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER OR AM END THE ABOVE GROUNDS OF APPEAL. 3. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECO RDS ARE THAT IN THIS CASE, THE RETURN OF INCOME WAS FILED BY THE ASSESSE E ON 31-8-1997 DECLARING TOTAL INCOME OF RS.6,32,300/-. THE AGRICU LTURAL INCOME WAS ALSO SHOWN AT RS. 81,50,000/- FOR RATE PURPOSES ONL Y. THE ASSESSMENT FOR THE A.Y. 1997-98 WAS COMPLETED ON 15-2-2000, UNDER SECTION 143(3) OF THE ACT ON THE TOTAL INCOME OF RS.27,49,080/- AND T HE AGRICULTURAL INCOME WAS DETERMINED AT RS.64,49,542/-, BY TREATIN G THE REMAINING ITA NO S. 2405 & 2406/AHD/2012 VITHAL R. PATEL VS. DCIT ASST.YEARS -1997-98 & 1998-99 - 5 - AMOUNT OF RS.16 LAKHS AND ODD AS THE INCOME FROM BU SINESS/OTHER SOURCES. THIS ASSESSMENT WAS CHALLENGED IN FIRST AP PEAL, WHEREIN AS MANY AS 27 GROUNDS OF APPEAL WERE RAISED, CHALLENGING TH E FOLLOWING ADDITIONS AND DISALLOWANCES MADE BY THE A.O., WHILE COMPLETIN G THE SCRUTINY ASSESSMENT. OUT OF THE FOLLOWING ADDITIONS AND DISA LLOWANCES, THE LD. CIT(A) HAS DELETED/VARIED SOME OF THESE ADDITIONS/D ISALLOWANCES AS WELL AS ENHANCED THE TAXABLE INCOME OF THE ASSESSEE BY R S.56,49,542/- TREATING AGRICULTURE INCOME AS INCOME FROM OTHER SOURCES. TH IS WAS DONE BY MAKING ADDITIONS OF THE ABOVE AMOUNT OF RS.56,49,54 2/- TREATING IT TO BE INCOME FROM OTHER SOURCES OUT OF TOTAL AGRICULTURE INCOME OF RS.70,80,134/- THUS HE HAS CONFIRMED THE DISALLOWAN CE OF RS.6,33,592/- OF POTATO SALES ADDED BY THE LD. A.O. AND ALLOW RS. 8,00,000/- ONLY AS AGRICULTURE INCOME ON ESTIMATE BASIS THUS ENHANCED THE INCOME BY THE SAID AMOUNT OF RS.56,49,542/- AND IN RESPECT OF THO SE ADDITIONS WHICH HAVE NOT BEEN DELETED/REDUCED BY THE CIT(A), AND TH E INCOME ENHANCED BY HIM UNDER THE HEAD INCOME FROM OTHER SOURCES THE APPELLANT HAS PREFERRED THIS SECOND APPEAL, BEING AGGRIEVED BY TH E ORDER DATED 3-8- 2012 PASSED BY THE CIT(A)-IV, BARODA IN THIS CASE. THE ADDITIONS OR DISALLOWANCES BY THE A.O. AS WELL AS ENHANCEMENT MADE BY THE LD. C1T(A). 4. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER. SO FAR AS NOTICE ISSUED AFTER GAP OF 15 YEARS FROM FIL ING OF RETURN AND 11 YEARS AFTER ORDER U/S.143(3) IS CONCERNED. IN INCOM E TAX ACT THERE IS NO ITA NO S. 2405 & 2406/AHD/2012 VITHAL R. PATEL VS. DCIT ASST.YEARS -1997-98 & 1998-99 - 6 - TIME LIMIT FOR COMMISSIONER OF INCOME TAX TO DECIDE THE APPEAL. THEREFORE, WE DISMISS THIS GROUND OF APPEAL. 5. THE MAIN GROUND URGED IN THE APPEAL THAT AO HAS NOT ACCEPTED AGRICULTURAL INCOME DECLARED BY THE ASSESSEE. IN TH IS, ASSESSEE HAD INCLUDED OF RS.6,33,592/- IN AGRICULTURAL INCOME AS INCOME FROM SALE OF POTATO SEEDS AND ASSESSEE WAS ASKED TO FURNISH FULL DETAIL IN RESPECT OF POTATO SEEDS. IN REPLY ASSESSEE SUBMITTED SOME VOUC HER MENTIONED THE CASH RECEIPTS OF SALE OF SUCH POTATOES BUT ASSESSIN G OFFICER WAS NOT SURE ABOUT THE GENUINESS OF THE VOUCHERS. HENCE HE DISAL LOWED THE INCOME OF RS.6,33,592/-. LD. CIT(A) SERVED AN ENHANCEMENT NOT ICE AND TREATED AS INCOME FROM OTHER SOURCES. LD.AR CITED AN ORDER IN ITA NO.354/AHD/2008 FOR ASST. YEAR 2001-02, IN THIS CAS E, HONBLE BENCH HAS HELD AS UNDER: IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THE ACCOUNTS MAINTAINED BY THE ASSESSEE FOR AGRICULTURAL ACTIVITIES SUFFER FROM CERTAIN DEFECTS. ACCORDINGLY, IN OUR VIEW, THE AGRICULTURAL INCOME D ECLARED BY THE ASSESSEE DESERVES REDUCTION. ON A CONSPECTUS OF THE MATTER, WE ARE OF THE VIEW THAT THE AGRICULTURAL INCOME DERIVED FROM GRAPES MAY BE REDUCED BY RS.8.00 LAKHS TO TAKE CARE OF THE DEFECT S AND IN OUR VIEW THE SAME WOULD MEET THE ENDS OF JUSTICE. WE MODIFY THE ORDER OF LD CIT(A) ACCORDINGLY AND THE AO IS DIRECTED TO CONSIDER RS.8 .00 LAKHS AS INCOME UNDER THE HEAD 'INCOME FROM OTHER SOURCES' OUT OF T HE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS PARTL Y ALLOWED. ITA NO S. 2405 & 2406/AHD/2012 VITHAL R. PATEL VS. DCIT ASST.YEARS -1997-98 & 1998-99 - 7 - 6. RESPECTFULLY FOLLOWING THE AFORESAID JUDGMENT OF THE CO-ORDINATE BENCH, WE TREAT RS.5,00,000/- AS AGRICULTURE INCOME AND REST OF THE INCOME TO BE TREATED AS INCOME FROM OTHER SOURCES . 7. SO FAR AS GROUND TREATING AGRICULTURE INCOME OF RS.56,49,542/- IS CONCERNED. IN THIS CASE, APPELLANT ORIGINALLY TOTAL AGRICULTURAL INCOME OF RS.81,50,000/- WAS DECLARED FOR THE YEAR UNDER CONS IDERATION. HOWEVER, ON SCRUTINY OF THE CASE, IT WAS FOUND THAT INTEREST INCOME OF RS.10,66,866/- WAS ALSO INCLUDED IN SUCH AGRICULTUR AL INCOME AND AFTER EXCLUDING THIS INTEREST INCOME OF RS.10,66,866/- FR OM THIS AGRICULTURAL INCOME THERE REMAINS AGRICULTURAL INCOME THE EXTENT OF RS.70,80,134/-. AGAIN, OUT OF THIS AMOUNT OF RS.70,83,134/- AN AMOU NT OF RS.6,33,592/- IS SHOWN BY THE APPELLANT ON ACCOUNT OF SALE OF POT ATO SEEDS HAS ALREADY BEEN TREATED AS INCOME FROM OTHER SOURCES AS DISCUS SED IN EARLIER. THEREFORE THERE REMAINS ONLY AN AMOUNT OF RS.64,49, 542/-. OUT OF THE SAID AMOUNT LD. CIT(A) REMAINING AMOUNT OF RS.56,49 ,542/- WAS TREATED AS INCOME FROM UNDISCLOSED SOURCES FOR THE YEAR UND ER CONSIDERATION. AS APPELLANT HAS FAILED TO PRODUCE THE RELEVANT RECORD AND BOOKS OF ACCOUNTS AND HAS ALSO FAILED TO FURNISH DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CLAIM OF AGRICULTURAL INCOME OF RS.56,49,542/-. 8. LD. AR CITED AN ORDER OF CO-ORDINATE BENCH IN IT A NO.354/AHD/2008 FOR ASST. YEAR 2001-02. IN THIS ORD ER, HONBLE BENCH MENTIONED HERE AS UNDER: ITA NO S. 2405 & 2406/AHD/2012 VITHAL R. PATEL VS. DCIT ASST.YEARS -1997-98 & 1998-99 - 8 - THE AGRICULTURE INCOME DECLARED BY THE ASSESSEE IN THE PRECEDING YEARS, WHICH ARE LISTED BELOW, HAVE BEEN ACCEPTED B Y THE AO IN THE SCRUTINY ASSESSMENT. RS.11,40,022 IN A.Y. 1993-94 RS.25,70,952 IN A.Y. 1994-95 RS.46,57,100 IN A.Y. 1995-96 RS.77,94,368 IN A.Y. 1996-97 RS.81,03,045 IN A.Y. 1997-98 RS.84,65,643 IN A.Y. 1998-99 RS.84,34,198 IN A.Y. 1999-2000 THE LD. CIT(A) HAS ALSO NOTICED THAT THE AO HAS NOT OFFERED OPPORTUNITY TO CROSS EXAMINE THE EMPLOYEES, ON WHOSE STATEMENTS HE HAD PLACED RELIANCE. THUS, ON A CONSPECTUS OF THE MATTER, THE LD. CIT(A) CONSIDERED THAT THE AGRICULTURAL INCOME DECLARED BY THE ASSESS EE WAS REASONABLE AND ACCORDINGLY DELETED THE ADDITION MADE BY THE AO WITH A DIRECTION THAT THE SAME SHOULD BE TREATED AS AGRICULTURAL INC OME OF THE ASSESSEE. 9. ON THE OTHER HAND LD. DR STATED THAT ASSESSEE HA S NOT COME TO THE COURT WITH CLEAN HAND AND THEORY OF RAISIN (KISHMIS H) CANNOT BE ACCEPTED AND APPELLANT HAS SHOWN VERY LESS LABOUR CHARGES AN D FACTS OF THE CASE ARE NOT IDENTICAL TO THE CITED ORDER. 10. SINCE IN THE AFORESAID ORDERS DEPARTMENT HAS AC CEPTED THE PLEA OF THE APPELLANT AND CO-ORDINATE BENCH IN THIS ORDER H AS ALSO MENTIONED THE SAME. THEREFORE, RESPECTFULLY FOLLOWING THE FINDING OF THE CO-ORDINATE BENCH, WE ALLOW THIS GROUND OF APPEAL AND HOLD THAT RS.56,49,542/- IS TO BE TREATED AS AGRICULTURAL INCOME. 11. SO FAR AS GROUND RELATED TO ERRED IN OBSERVING THAT SUFFICIENT TIME HAS GIVEN FOR CROSS EXAMINATION IS CONCERNED. LD. C IT(A) PASSED A ITA NO S. 2405 & 2406/AHD/2012 VITHAL R. PATEL VS. DCIT ASST.YEARS -1997-98 & 1998-99 - 9 - DETAILED AND REASONED ORDER, THEREFORE, WE DONT WA NT TO INTERFERE INTO THIS GROUND. 12. SO FAR AS CONFIRMING DISALLOWANCE OF TENDER FEE S PAID TO GSFC OF RS.33,000/- TREATING IT AS CAPITAL EXPENDITURE IS C ONCERNED. IN OUR OPINION LD. CIT(A) HAS RIGHTLY TREATED THE ABOVE SAID AMOUN T AS CAPITAL EXPENDITURE BECAUSE SAME WAS SPENT FOR EXPENDING TH E BUSINESS. 13. SO FAR AS CONFIRMING ADDITION OF RS.22,633/- RE CEIVED FROM POST OFFICE IS CONCERNED. LD. AO HELD THAT ASSESSEE HAS NOT PRODUCED ANY DOCUMENTARY EVIDENCE TO SHOW THAT IT WAS REFUND OF MONTHLY SAVING SCHEME. LD. AR HAS SHOWN US PASSBOOK OF POST OFFICE CONTAINING THE ENTRY IN QUESTION; THEREFORE, WE ALLOW THIS GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. 14. SO FAR AS CONFIRMING DISALLOWANCE OF RS.14,442/ - AND RS.12,756/- BEING 1/5 TH OF CAR MAINTENANCE EXPENSES AND DEPRECIATION ON MO TOR CAR IS CONCERNED. LD. CIT(A) HAS HELD THAT IN HIS OPINION PERSONAL USE OF CAR CANNOT BE RULED OUT. IN OUR OPINION, IN THE ABSENCE OF ANY EVIDENCE, LD. CIT SHOULD NOT HAVE GIVEN SUCH FINDINGS. ON THE BAS IS OF WHIMS NO DISALLOWANCE CAN BE MADE. THEREFORE, WE ALLOW THIS GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. ITA NO S. 2405 & 2406/AHD/2012 VITHAL R. PATEL VS. DCIT ASST.YEARS -1997-98 & 1998-99 - 10 - 15. SO FAR AS CONFIRMING DISALLOWANCE OF RS.52,200/ - BEING REPLACEMENT OF TYRES OF OLD TRUCK IS CONCERNED. THE FACTS THAT THE SAME WAS INADVERTENTLY CAPITALIZED IN THIS REGARD, IT WA S MENTIONED THAT THE APPELLANT HIMSELF HAS CAPITALIZED THE AMOUNT OF RS. 52,200/- ON ACCOUNT OF TYRE PURCHASED. FURTHER, IT IS NOT SEEN FROM THE RE CORD THAT THE APPELLANT HAD MADE ANY CLAIM BEFORE THE AO THAT THIS AMOUNT O F RS.52,200/- BE ALLOWED AS REVENUE EXPENDITURE. THE APPELLANT HAS N OT FILED RELEVANT PART OF RETURN OF INCOME, WHEREIN HE HAS MADE CLAIM OF A BOVE AMOUNT AS REVENUE EXPENDITURE. EVEN THIS ISSUE HAS NOT BEEN D ISCUSSED BY THE AO IN THE ASSESSMENT ORDER. IN OUR CONSIDERED OPINION THE PLEA OF THE APPELLANT IS NOT ACCEPTABLE. THEREFORE, THIS GROUND OF APPEAL IS DISMISSED. 16. SO FAR AS GROUND RELATED TO CONFIRMING ADDITION OF CONVEYANCE ALLOWANCE OF RS.52,000/- U/S.10(14) IGNORING 1/5 TH OF CAR EXPENSES AND DEPRECIATION IS CONCERNED. ON PERUSAL OF THE ASSESS MENT RECORD, IT IS SEEN THAT APPELLANT HAS RECEIVED SALARY AND CONVEYANCE A LLOWANCE OF RS.3000/- AND RS.4,000/- PER MONTH FROM M/S. VPPL PVT. LTD. A S PER THE AO THE APPELLANT HAD ENCLOSED CERTIFICATES ALONG WITH RETU RN OF INCOME. IN THE SAID CERTIFICATE, THE APPELLANT HAD MENTIONED THAT THE AMOUNT OF CONVEYANCE ALLOWANCE HAS BEEN UTILIZED BY HIM FOR V ARIOUS WORKS SUCH AS SALES, PURCHASES, MAINTENANCE, RESEARCH AND DEVELOP MENT, EMERGENCY WORK AND GENERAL ADMINISTRATION WORK ETC. M/S. VPPL . AS PER THE AO ON GOING THROUGH THE DETAILS OF CAPITAL ACCOUNT APPEAR ING IN THE BOOKS OF PATEL EXPORTS, IT IS SEEN THAT THE APPELLANT HAS WI THDRAWN RS.9000/- FOR ITA NO S. 2405 & 2406/AHD/2012 VITHAL R. PATEL VS. DCIT ASST.YEARS -1997-98 & 1998-99 - 11 - HOUSE HOLD EXPENSES. AS PER THE AO, THE APPELLANT W AS ALSO MAINTAINING A SECOND SET I.E. HOSPITAL SET. ON GOING THROUGH TH E CAPITAL ACCOUNT IN THE SET, IT WAS OBSERVED BY THE AO THAT THE APPELLANT H AD CREDITED SALARY AND CONVEYANCE OF RS.91,000/- (FOR 13 MONTHS) RECEIVED FROM VPPL AND HAVE DEBITED RS.5000/- FOR HOUSE HOLD WITHDRAWAL. A S PER THE AO NO OTHER WITHDRAWAL FOR EXPENSES WERE MADE BY THE APPE LLANT. AS PER THE AO SINCE THE APPELLANT HAS NOT INCURRED ANY AMOUNT OF CONVEYANCE ALLOWANCE AND THEREFORE HE WAS REQUESTED TO EXPLAIN AS TO WHY THE CLAIM OF DEDUCTION OF RS.52,000/- BE NOT DISALLOWED. LD. CIT(A) CONFIRMED THE ACTION OF THE AO AND DISALLOWED THE CONVEYANCE OF A LLOWANCE OF RS.52,000/-. IN OUR CONSIDERED OPINION, THE APPELLA NT IN HIS SUBMISSION HIMSELF SUBMITTED THAT ABOVE ALLOWANCE IS BEING REC EIVED FROM COMPANY EVERY MONTH AS PART OF REMUNERATION AND HENCE THE S AME PARTAKES THE CHARACTER OF SPECIAL ALLOWANCE CONTEMPLATED IN SECT ION 10(14) OF THE ACT. HOWEVER, THE APPELLANT HAS NOT BEEN ABLE TO PROVE T HAT THE ALLOWANCE HAS BEEN RECEIVED BY HIM TO MEET THE EXPENSES INCURRED WHOLLY, EXCLUSIVELY AND NECESSARILY IN PERFORMANCE OF HIS DUTIES. THERE FORE, WE DISMISS THIS GROUND OF APPEAL. 17. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. 18. NOW WE TAKE UP ITA NO.2046/AHD/2012 FOR ASST. Y EAR 1998-99. ITA NO S. 2405 & 2406/AHD/2012 VITHAL R. PATEL VS. DCIT ASST.YEARS -1997-98 & 1998-99 - 12 - 19. SO FAR AS GROUND NOS. 1 TO 4 ARE CONCERNED. WE HAVE DISMISSED THESE GROUND OF APPEALS IN ITA NO.2405/AHD/2012. TH EREFORE, WE DONT WANT TO INTERFERE IN ORDER PASSED BY THE LD. CIT(A) . 20. SO FAR AS GROUND NOS.5 TO 7 REGARDING TREATING AGRICULTURAL INCOME OF RS.72,09,810/- AS INCOME FROM OTHER SOURCES ARE CONCERNED. AS PER THE APPELLANT, LD. CIT(A) HAS IGNORED THE ITAT ORDER FO R ASST. YEAR 1999- 2000 AND 2001-02. RESPECTFULLY FOLLOWING THE ORDER OF THE CO-ORDINATE BENCH, WE ALLOW THIS GROUND OF APPEAL. 21. SO FAR AS CONFIRMING OF DISALLOWANCE OF RS.2660 /- IN RESPECT OF COURT FEE REFUND IS CONCERNED. THE AO ADDED THIS AM OUNT ON THE GROUND THAT THE APPELLANT HAS DEDUCTED COURT FEES R EFUND OF RS.2,660/-, BUT HE DID NOT FURNISH THE DETAILS AND REASONS FOR SUCH CLAIM. SINCE APPELLANT HAS FAILED TO FURNISH THE DETAILS AND REA SON FROM SUCH CLAIM DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS BEFORE THE CIT(A). THEREFORE, WE DISMISS THIS GROUND OF APPEAL . 22. SO FAR AS GROUND RELATED TO ADDING A SUM OF RS. 15,410/- IN RESPECT OF INSURANCE CLAIM IS CONCERNED. IN THIS REGARD, AO IN THE ASSESSMENT ORDER FOR THE YEAR UNDER CONSIDERATION HAD MENTIONE D THAT THE APPELLANT HAD RECEIVED RS.15,410/- AS INSURANCE PREMIUM AND H AD SHOWN IN OTHER INCOME. AS PER THE AO IN THE REVISED RETURN OF INCO ME, THE APPELLANT HAD CLAIMED THE SAME AS DEDUCTION AND HAD NOT FURNISHED ANY REASON FROM THE ITA NO S. 2405 & 2406/AHD/2012 VITHAL R. PATEL VS. DCIT ASST.YEARS -1997-98 & 1998-99 - 13 - SAME. IN OUR OPINION INSURANCE CLAIM IS REVENUE REC EIPTS AND LOWER AUTHORITY HAS RIGHTLY CONFIRMED THE ADDITION OF RS. 15,410/-. THEREFORE, THIS GROUND OF APPEAL IS DISMISSED. 23. SO FAR AS GROUND RELATED TO CONFIRMING OF DISAL LOWANCE OF RS.25,240/- AND RS.33,303/- BEING 1/5 TH OF CAR MAINTENANCE EXPENSES AND DEPRECIATION ON THE MOTOR CAR ARE CONCERNED. IN ITA NO.2405/AHD/2012, WE HAVE ALREADY ALLOWED THIS GROU ND. THEREFORE, THIS GROUND OF APPEAL IS ALSO ALLOWED. 24. SO FAR AS CONFIRMING OF CONVEYANCE ALLOWANCE OF RS.48,000/- MADE U/S.10(40) OF THE I.T. ACT, IGNORING 1/5 TH OF THE CAR EXPENSES IS CONCERNED. IN ITA NO.2405/AHD/2012, WE HAVE CONFIRM ED THE STAND OF THE LOWER AUTHORITIES. THEREFORE, WE DISMISS THIS G ROUND OF APPEAL. 25. IN THE RESULT, BOTH THE APPEALS FILED BY THE AS SESSEE ARE PARTLY ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 11/ 01 /201 8 SD/- SD/- ( ) 4 5 ( N.K. BILLAIYA ) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 11/01/2018 ITA NO S. 2405 & 2406/AHD/2012 VITHAL R. PATEL VS. DCIT ASST.YEARS -1997-98 & 1998-99 - 14 - PRITI YADAV, SR.PS !'# $#! # COPY OF THE ORDER FORWARDED TO : 1. !$' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 67- + 8- / CONCERNED CIT 4. + 8- 4!5 / THE CIT(A)-III, BARODA. 5. 9:;-67 !.!672 ! / DR, ITAT, AHMEDABAD 6. ;<=, # GUARD FILE. % & / BY ORDER, (9-- //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 08/01/2018. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .. 09/01/2018 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE F 6. AIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 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