MR.HARISH B. TRIVEDI, MUMBAI V. ACIT-19(1), MUMBAI

ITA 2476/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6544 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 23-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA
• Assessee Lawyers: VALLABHADAS D PARMAR
• Keywords: Business income; Additional evidence
• Section: 143(3); 143(1)

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT, ITA NO.2476/MUM/2018 ASSESSMENT YEAR: 2014-15 MR. H ARISH B. TRIVEDI, B-2, RACHNA INDUSTRIAL ESTATE, GALA NO.14, BHD SHARP IND. VALIV VILLAGE, VASAI EAST), THANE - 401208 / VS. ACIT - 19(1), ROOM NO.203, MATRU MANDIR, TARDEO ROAD, MUMBAI-400007 / ASSESSEE / REVENUE P.A. NO.AADPT1165C ' # $% ASSESSEE BY SHRI VALLABHADAS D PARMAR - AR ' # $ / REVENUE BY SHRI CHAITNYA ANJARIA - DR % DATE OF HEARING 10/01/2019 $ / DATE OF ORDER: 10/01/2019 $ % O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 09/03/2018 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI, HOLDING EXEMPT AGRICULTURE INCOME OF ITA NO.2476/ MUM/2018 HARISH B. TRIVEDIA 2 RS.7,65,251/- AS TAXABLE BUSINESS INCOME WITHOUT APPRECIATING THE FACT THAT AS THE ASSESSEE IS HAVIN G 36 ACRES OF AGRICULTURE LAND DULY SUPPORTED BY SALE BILLS/CONFIRMATION LETTERS. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSEE, SHRI VALLAB DAS PARMAR, EXPLAINED THAT TH E ASSESSEE IS OWNER OF 36 ACRES OF IRRIGATED LANDS GE TTING THE AGRICULTURAL OPERATION THROUGH SUMMON AND IS EARNING AGRICULTURAL INCOME THEREOF. IT WAS PLEADED THAT IN EARLIER ASSESSMENT YEAR, IDENTICALLY, THE CLAIM OF THE ASSESSEE WAS ALLOWED BY PASSING AN ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT (PAGE-86 OF THE PAP ER BOOK). THE LD. COUNSEL ALSO FILED ADDITIONAL EVIDEN CES IN THE FORM OF CERTIFICATE FROM TALATI/PATWARI AND ALS O FILED FORM NO.12 EVIDENCING THE SALE OF AGRICULTURAL CROP . ON THE OTHER HAND, SHRI CHAITNAYA AJNARIA, LD. DR, DEF ENDED THE ADDITION MADE BY THE LD. ASSESSING OFFICER AND SUSTAINED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL). ITA NO.2476/ MUM/2018 HARISH B. TRIVEDIA 3 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE ADVERTING FURTHER, I AM EXPECTED TO ANALYZE THE MEA NING OF AGRICULTURAL INCOME AS PROVIDED UNDER SECTION 2( 1A)(B) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), WHICH IS AS UNDER:- ( 1A ) AGRICULTURAL INCOME MEANS ( A ) ANY RENT OR REVENUE DERIVED FROM LAND WHICH IS SI TUATED IN INDIA AND IS USED FOR AGRICULTURAL PURPOSES; ( B ) ANY INCOME DERIVED FROM SUCH LAND BY ( I ) AGRICULTURE; OR ( II ) THE PERFORMANCE BY A CULTIVATOR OR RECEIVER OF R ENT-IN- KIND OF ANY PROCESS ORDINARILY EMPLOYED BY A CULTIV ATOR OR RECEIVER OF RENT-IN-KIND TO RENDER THE PRODUCE R AISED OR RECEIVED BY HIM FIT TO BE TAKEN TO MARKET; OR ( III ) THE SALE BY A CULTIVATOR OR RECEIVER OF RENT-IN-K IND OF THE PRODUCE RAISED OR RECEIVED BY HIM, IN RESPECT OF WH ICH NO PROCESS HAS BEEN PERFORMED OTHER THAN A PROCESS OF THE NATURE DESCRIBED IN PARAGRAPH ( II ) OF THIS SUB-CLAUSE; ( C ) ANY INCOME DERIVED FROM ANY BUILDING OWNED AND O CCUPIED BY THE RECEIVER OF THE RENT OR REVENUE OF ANY SUCH LAN D, OR OCCUPIED BY THE CULTIVATOR OR THE RECEIVER OF RENT- IN-KIND, OF ANY LAND WITH RESPECT TO WHICH, OR THE PRODUCE OF W HICH, ANY PROCESS MENTIONED IN PARAGRAPHS ( II ) AND ( III ) OF SUB-CLAUSE ( B ) IS CARRIED ON : PROVIDED THAT ( I ) THE BUILDING IS ON OR IN THE IMMEDIATE VICINITY OF THE LAND, AND IS A BUILDING WHICH THE RECEIVER OF THE RENT OR REVENUE OR THE CULTIVATOR, OR THE RECEIVER OF RENT-IN-KIND, BY REASON OF HIS CONNECTION WITH THE LAND, REQUIRES AS A DWEL LING HOUSE, OR AS A STORE-HOUSE, OR OTHER OUT-BUILDING, AND ( II ) THE LAND IS EITHER ASSESSED TO LAND REVENUE IN I NDIA OR IS SUBJECT TO A LOCAL RATE ASSESSED AND COLLECTED BY O FFICERS OF THE GOVERNMENT AS SUCH OR WHERE THE LAND IS NOT SO ITA NO.2476/ MUM/2018 HARISH B. TRIVEDIA 4 ASSESSED TO LAND REVENUE OR SUBJECT TO A LOCAL RATE , IT IS NOT SITUATED ( A ) IN ANY AREA WHICH IS COMPRISED WITHIN THE JURISDICTION OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MUNICIPAL CORPORATION, NOTIFIED AREA COMMITTEE, TOWN AREA COMMITTEE, TOWN COMMITTEE OR BY ANY OTHER NAME) OR A CANTONMENT BOARD AND WHICH HAS A POPULATION OF NOT LESS THAN TEN THOUSAN D; OR ( B ) IN ANY AREA WITHIN THE DISTANCE, MEASURED AERIALL Y, ( I ) NOT BEING MORE THAN TWO KILOMETRES, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM ( A ) AND WHICH HAS A POPULATION OF MORE THAN TEN THOUSAND BUT NOT EXCEEDING ONE LAKH; OR ( II ) NOT BEING MORE THAN SIX KILOMETRES, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM ( A ) AND WHICH HAS A POPULATION OF MORE THAN ONE LAKH BUT NOT EXCEEDING TEN LAKH; OR ( III ) NOT BEING MORE THAN EIGHT KILOMETRES, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM ( A ) AND WHICH HAS A POPULATION OF MORE THAN TEN LAKH. EXPLANATION 1 .FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT REVENUE DERIVED FROM LAND SHALL NOT INCLUDE AN D SHALL BE DEEMED NEVER TO HAVE INCLUDED ANY INCOME ARISING FR OM THE TRANSFER OF ANY LAND REFERRED TO IN ITEM ( A ) OR ITEM ( B ) OF SUB-CLAUSE ( III ) OF CLAUSE ( 14 ) OF THIS SECTION. EXPLANATION 2. FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT INCOME DERIVED FROM ANY BUILDING OR LAND REFER RED TO IN SUB- CLAUSE ( C ) ARISING FROM THE USE OF SUCH BUILDING OR LAND FOR ANY PURPOSE (INCLUDING LETTING FOR RESIDENTIAL PURPOSE OR FOR THE PURPOSE OF ANY BUSINESS OR PROFESSION) OTHER THAN AGRICULTU RE FALLING UNDER SUB-CLAUSE ( A ) OR SUB-CLAUSE ( B ) SHALL NOT BE AGRICULTURAL INCOME. IF THE AFORESAID PROVISION OF THE ACT IS ANALYZED, AGRICULTURAL INCOME MEANS ANY RENT OR REVENUE DER IVED FROM LAND AND AS PER SUB-CLAUSE, THE PERFORMANCE BY A CULTIVATOR OR RECEIVER OF RENT IN KIND OF ANY PROCE SS ITA NO.2476/ MUM/2018 HARISH B. TRIVEDIA 5 ORDINARILY BY A CULTIVATOR OR RECEIVER OF RENT IN K IND TO RENDER THE PRODUCE RAISED OR RECEIVED BY HIM, WHICH IS FIT TO BE TAKEN TO THE MARKET THE ASSESSEE HAS PRODUCED A CERTIFICATE FROM THE TALATI CERTIFYING T HAT THE ASSESSEE IS OWNER OF 36 ACRES OF AGRICULTURAL LAND. THE ASSESSEE HAS ALSO PRODUCED ADDITIONAL EVIDENCE IN T HE FORM OF SALE BILLS. IT IS ALSO NOTED THAT THE DEPAR TMENT FOR ASSESSMENT YEAR 2011-12 ACCEPTED AGRICULTURE INCOME FROM THE SAME LAND AMOUNTING TO RS.6,61,549/- BY FRAMING ASSESSMENT UNDER SECTION 143(3) OF THE ACT DATED 14/02/2013 (PAGE -87 TO 88 OF THE PAPER BOOK). LIKE WISE, FOR ASSESSMENT YEAR 2011-12, 2012-13 AND 2013-14 ACCEPTED THE AGRICULTURE INCOME THOUGH ACCEPTING UN DER SECTION 143(1) OF THE ACT (PAGE 61 TO 79 OF THE PAP ER BOOK). THE TOTALITY OF FACTS CLEARLY INDICATES THAT FOR ASSESSMENT YEAR 2010-11, THE AGRICULTURE INCOME WAS ACCEPTED BY THE DEPARTMENT TO THE TUNE OF RS.6,61,5 49/- BY FRAMING SCRUTINY ASSESSMENT, THUS, ON THE PRINCI PLE OF CONSISTENCY ALSO, UNLESS AND UNTIL CONTRARY FACTS A RE BROUGHT ON RECORD, THE DEPARTMENT IS NOT EXPECTED T O ITA NO.2476/ MUM/2018 HARISH B. TRIVEDIA 6 TAKE U-TURN. HOWEVER, BEFORE THIS TRIBUNAL, THE ASS ESSEE HAS FILED ADDITIONAL EVIDENCE RUNNING INTO EIGHT PA GES, WHICH CANNOT BE IGNORED. I FIND FORCE IN THE EXPLAN ATION OF THE ASSESSEE, THEREFORE, THE LD. ASSESSING OFFIC ER IS DIRECTED TO EXAMINE THE CASE OF THE ASSESSEE AFRESH AND DECIDE IN ACCORDANCE WITH LAW. THE ASSESSEE IS DIRE CTED TO FURNISH THE NECESSARY EVIDENCES, IF ANY, IN SUPP ORT OF HIS CLAIM. THUS, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 10/01/2019 SD/- (JOGINDER SINGH) '() / VICE PRESIDENT MUMBAI; ' DATED : 10/01/2019 F{X~{T? P.S / #$ ITA NO.2476/ MUM/2018 HARISH B. TRIVEDIA 7 $ ' *+,- .$-/, / COPY OF THE ORDER FORWARDED TO : 1. %&'( / THE APPELLANT 2. )*'( / THE RESPONDENT. 3. ++ ,-%&. / THE CIT, MUMBAI. 4. ++ , / CIT(A)- , MUMBAI 5. /01)#2+%&%#32 / DR, ITAT, MUMBAI 6. 145&/ GUARD FILE. $ / BY ORDER, '% (DY./ASSTT.REGISTRAR) / ITAT, MUMBAI