Shri Vinod Kumar Singhai, Bhopal V. The ITO Wd- 3(3), Bhopal

ITA 244/IND/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59458 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 1995-1996
• Appeal Filed On: 20-09-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Assessee Lawyers: S S DESHPANDE

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NOS. 244 TO 247/IND/2011 AYS: 1995-96 TO 1998-99 SHRI VINOD KUMAR SINGHAI BHOPAL PAN - ANFPB2393N ..APPELLANT V/S. INCOME TAX OFFICER WARD 3 BHOPAL ..RESPONDENT AND, ITA NOS. 248 TO 251/IND/2011 AYS: 1995-96 TO 1998-99 SMT. SUNITA SINGHAI BHOPAL PAN - ANFPS 2393 N ..APPELLANT V/S. INCOME TAX OFFICER, WARD 3 BHOPAL ..RESPONDENT 2 APPELLANT BY : SHRI S.S. DESHPANDE RESPONDENT BY : SHRI ARUN DEWAN DATE OF HEARING : 25.1.2012 DATE OF PRONOUNCEMENT : 25.1.2012 ORDER PER JOGINDER SINGH, JUDICIAL MEMBER THIS BUNCH OF EIGHT APPEALS FOR THE ASSESSMENT YEARS 1995-96 TO 1998-99 CHALLENGING THE IMPUGNED ORDERS ALL DATED 6.7.2011 CHALLENGING THE UPHOLDING THE ADDITION OF RS. 90,920/- (A.Y. 1995-96), RS. 3,32,4 80/- (A.Y. 1996-97), RS. 2,20,100/- (A.Y. 1997-98) AND R S. 1,17,600/- (A.Y. 1998-99) (IN THE CASE OF SHRI VINO D KUMAR SINGHAI AND RS.55370/- (A.Y. 1995-96), RS.1,37,160/- (A.Y. 1996-97), RS.1,59,950/- (A.Y. 1 997- 98) AND RS.69,000/- (A.Y. 1998-99) (IN THE CASE OF SMT. SUNITA SINGHAI), RESPECTIVELY, APPLYING THE PERCENT AGE AS MENTIONED IN THE RESPECTIVE APPEAL OF THE GROSS REC EIPTS FROM AGRICULTURAL OPERATIONS OUT OF THE TOTAL LAND HOLDING OF 73.73 ACRES OF LAND. 3 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSEE , SHRI S.S. DESHPANDE, CONTENDED THAT THE AGRICULTURA L INCOME MAY BE ACCEPTED AT RS. 10,000/- TO RS.12,000 /- PER ACRES BY FURTHER SUBMITTING THAT THE TRIBUNAL I N THE CASE OF SHRI PRAKASH SHUKLA (ITA NOS. 564 TO 570/IND/2010) VIDE ORDER DATED 13.10.2011, HAS ACCEPTED AGRICULTURAL PRODUCTION @ RS. 11,521/- PER ACRE. IN THE CASE OF SMT. SAMITA BINOD (ITA NO. 88/IND/2010) VIDE ORDER DATED 28.3.2011 ACCEPTED TH E AGRICULTURAL INCOME TO THE TUNE OF RS. 22,000/- PER ACRE. ON THE OTHER HAND, THE LEARNED SR. DR, SHRI ARUN DEWAN, DEFENDED THE IMPUGNED ORDERS. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD . REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. BRIEF FACTS ARE THAT THE ASS ESSEE IS AN INDIVIDUAL AND ALONG WITH GETTING AGRICULTURAL I NCOME ALSO DERIVES INCOME FROM TRADING OF LUBRICANTS AND PLYING OF TANKERS. THE ASSESSEE OWNS 12.77 ACRES OF LAND AND 4 FURTHER ENTERED INTO AN AGREEMENT FOR PURCHASING AGRICULTURAL LAND ADMEASURING ABOUT 60.96 ACRES IN THE NAME OF HIS SISTER AND HIS OWN NAME IN THE YEAR 199 3 BUT THE SAME WAS TRANSFERRED IN THEIR NAMES IN THE YEAR 1997. UNCONTROVERTEDLY, THE ASSESSEE DID AGRICULTUR AL OPERATION BY PAYING LEASE RENTAL UPTO THE DATE OF T RANSFER. THE ASSESSMENT FOR THE ASSESSMENT YEARS 1995-96, 1996-97 AND 1998-99 WERE COMPLETED U/S 143(1) OF TH E ACT, ACCEPTING THE RETURNED AGRICULTURAL INCOME WHE REAS FOR THE ASSESSMENT YEAR 1997-98, THE LEARNED ASSESS ING OFFICER WAS OF THE VIEW THAT SINCE THE ASSESSEE DID NOT OWN ANY AGRICULTURAL LAND, AS HAS BEEN CLAIMED, THEREFORE, THE RETURNED INCOME IS NOT ACCEPTABLE, CONSEQUENTLY, THE EARLIER ASSESSMENT YEARS WERE ALS O REOPENED AND FRESH ASSESSMENTS WERE COMPLETED. ON APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS), THE AGRICULTURAL INCOME WAS ACCEPTED AS FOLLOWS :- 5 A.YS. AGRL. INCOME DECLARED BY ASSESSEE E XPENDITURE ESTIMATED BY CIT(A) 1995 - 96 1,00,000 1996 - 97 4,57,000 1997 - 98 5,14,500 50% 1998 - 99 7 , 3 5 , 0 0 0 50% HOWEVER, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WHILE DECIDING THE APPEALS FOR THE ASSESS MENT YEAR 1997-98 AND 1998-99 ESTIMATED THE EXPENDITURE @ 50%. THE MATTER WAS CARRIED IN APPEAL BEFORE THE TRIBUNAL WHEREIN VIDE ORDER DATED 27.7.2007 THE MAT TER WAS SET ASIDE DIRECTING TO COMPUTE AGRICULTURAL INC OME ON ESTIMATE BASIS ON PRODUCTION OF DOCUMENTS BY THE ASSESSEE BY GETTING THE SAME VERIFIED FROM THE ASSE SSING OFFICER AND ALSO ON THE BASIS OF PAST HISTORY OF TH E ASSESSEE. AS PER THE ASSESSEE, THE COMPLETE DETAILS WERE FILED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WHO AFTER OBTAINING REMAND REPORT FROM TH E ASSESSING OFFICER, ESTIMATED THE EXPENDITURE @ 40% OF THE TOTAL RECEIPTS AND DETERMINED THE INCOME AT RS. 6 5,84,400/- (FOR ASSESSMENT YEAR 1997-98) AND RS.5,14,500/- (FOR ASSESSMENT YEAR 1998-99) BY MAINTAINING THE ADDITION OF RS.3,11,500/- FOR THE ASSESSMENT YEAR 1997-98 AND RS. 1,17,600/- FOR THE ASSESSMENT YEAR 1998-99. NOW BEFORE US, THE CLAIM OF THE ASSESSEE IS THAT THE INCOME SHOULD HAVE BEEN DETERMINED ON PER ACRE YIELD BASIS AND BROADLY CONTENDED THAT IT SHOULD HAVE BEEN ACCEPTED BETWEEN RS. 10,000/- TO RS. 12,000/- PER ACRE. BEFORE COMING T O ANY CONCLUSION, WE ARE REPRODUCING HEREUNDER THE CLAIM OF THE ASSESSEE :- (IN THE CASE OF VINOD KUMAR SINGHAI) S.NO YEAR AGRICULTUR AL LAND (IN ACRES) RETURNED INCOME ASSESSED INCOME INCOME PER ACRE PER YEAR DIFFERENCE 1 1995-96 73=73 500000 409080 6782 90420 2 1996-97 73=73 800000 467520 10850 332480 3 1997-98 73=73 768500 548400 10423 220100 4 1998-99 73=73 735000 617400 9969 117600 4. SO FAR AS THE ARGUMENTS OF THE LD. COUNSEL FOR T HE ASSESSEE THAT THE PER ACRE INCOME MAY BE ACCEPTED F ROM 7 RS.10000 TO RS.12000 IS CONCERNED, IT CANNOT BE ACCEPTED IN ALL THE ASSESSMENT YEARS BECAUSE FOR ASSESSMENT YEAR 1995-96, THE ASSESSEE HIMSELF HAS RETURNED THE INCOME @RS.6782/- RESULTING INTO DIFFE RENCE OF RS.90,422/-, THEREFORE, THE RETURNED INCOME HAS TO BE ACCEPTED AS IT IS. SO FAR AS ASSESSMENT YEARS 1996- 97 AND 1997-98 ARE CONCERNED, THE INCOME IS DIRECTED T O BE ACCEPTED @10,000/- PER ACRE. LIKEWISE, FOR ASSESSME NT YEAR 1998-99, THE AGRICULTURAL INCOME IS ACCEPTED A S RS.9969/- PER ACRE AS SHOWN BY THE ASSESSEE. WE DIR ECT ACCORDINGLY. SO FAR AS THE ARGUMENTS OF THE LD. COU NSEL FOR THE ASSESSEE THAT IN THE CASE OF SMT. SAMITA BI NOD (ITA NO.88/IND/2010), THE TRIBUNAL HAS ACCEPTED THE AGRICULTURAL INCOME @RS.22,000/- PER ACRE, WE FIND THAT IN THAT CASE, FIRSTLY, THE ASSESSEE WAS GROWING THR EE CROPS PER YEAR WHEREAS IN THE CASE OF THE PRESENT ASSESSE E, TWO CROPS ARE GROWN AND SECONDLY, SMT. SAMITA BINOD WAS ALSO GROWING CASH CROPS, THEREFORE, SAME YARDSTICKS CANNOT BE ADOPTED IN THE CASE OF THE PRESENT ASSESS EE. 8 5. NOW, WE SHALL TAKE UP THE APPEALS OF SMT. SUNITA SINGHAI. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT NO NOTICE U/S 143(2) OF THE ACT WAS EVER SERVED UPO N THE ASSESSEE FOR ASSESSMENT YEAR 1997-98. HOWEVER, IDENTICAL ARGUMENT WAS ADVANCED IN RESPECT OF ADOPT ION OF AGRICULTURAL INCOME AS IN THE CASE OF SHRI VINOD KUMAR SINGHAI. ON THE OTHER HAND, THE LD. SR. DR DEFENDED THE IMPUGNED ADDITIONS. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. THE CLAIM OF THE ASSESSEE IS SUMMARISED AS UNDER: S.NO YEAR AGRICULTUR AL LAND (IN ACRES) RETURNED INCOME ASSESSED INCOME INCOME PER ACRE PER YEAR DIFFERENCE 1 1995-96 43=66 290000 234630 6643 55370 2 1996-97 43=66 450000 312840 10307 137160 3 1997-98 43=66 551000 391050 12621 159950 4 1998-99 43=66 507000 438000 11613 69000 7. IF THE AFORESAID TABLE IS ANALYSED, WE ARE OF TH E VIEW THAT FOR ASSESSMENT YEAR 1995-96, THE CLAIM OF 9 RS.6,643/- PER ACRE, AS CLAIMED BY THE ASSESSEE CAN NOT BE INCREASED AND IS ACCEPTED. SO FAR AS ASSESSMENT YEARS 1996-97 TO 1998-99 ARE CONCERNED, THE AGRICULTURAL INCOME IS ACCEPTED @RS.10,000 PER ACRE. 7.1 SO FAR AS NON-SERVICE OF NOTICE U/S 143(2) IS CONCERNED, WE FIND THAT THE MATTER WAS PREFERRED BE FORE THE HON'BLE JURISDICTIONAL HIGH COURT (MAIT NO.66 O F 2008) WHEREIN VIDE ORDER DATED 4.8.2008, IT WAS DIR ECTED THAT THE LD. CIT(A) SHALL ADDRESS ITSELF WITH REGAR D TO THE ISSUE WHETHER THE NOTICES WERE SERVED WITHIN A SPAN OF ONE YEAR AS ENGRAFTED U/S 143(2) OF THE ACT, THEREF ORE, THE LD. CIT(A) IS DIRECTED TO ASCERTAIN WHETHER NOTICE U/S 143(2) WAS SERVED UPON THE ASSESSEE, AS REQUIRED UN DER THE ACT, FOR ASSESSMENT YEAR 1997-98 ONLY AND IN C ASE NO NOTICE IS SERVED UPON THE ASSESSEE FOR ASSESSMEN T YEAR 1997-98, THEN THE ASSESSMENT, SO FRAMED, WILL BE TREATED AS INVALID (FOR ASSESSMENT YEAR 1997-98 ONL Y), AND IF IT IS FOUND THAT NOTICE HAS BEEN SERVED UPON THE 10 ASSESSEE (SMT. SUNITA SINGHAI) THEN OUR AFORESAID O RDER FOR ADOPTING THE RATES PER ACRE SHALL PREVAIL. THES E APPEALS OF THE ASSESSEE ARE, CONSEQUENTLY, DISPOSED OF IN TERMS INDICATED HEREINABOVE. FINALLY, THE APPEALS OF THE BOTH THE ASSESSEES ARE DISPOSED OF IN TERMS AS INDICATED HEREINABOVE. ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES ON 25.1.2012. SD SD (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 25.1.2012 COPY TO:APPELLANT/RESPONDENT/CIT/CIT(A)/DR/GUARD FI LE !VYS!