MAHAVIRPRASAD MANEKCHAND MUNDHRA, MUMBAI V. INCOME TAX OFFICER, WARD 17(2)(3), MUMBAI

ITA 2638/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7698 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 27-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO. 2638 / MUM . /2018 ( ASSESSMENT YEAR : 20 13 14 ) MAHAVIRPRASAD MANEKCHAND MUNDHRA 2 ND FLOOR, ROOM NO.19/20 KHANJI DADHAVJI BUILDING 29/31, KHADAK STREET MUMBAI 400 009 PAN AABPM5672P . APPELLANT V/S INCOME TAX OFFICER WARD 17 (2)( 3 ), MUMBAI . RESPONDENT ASSESSEE BY : SHRI VIPUL B. JOSHI SHRI SHUBHAM RATHI REVENUE BY : SHRI CHAITANYA ANJARIA DATE OF HEARING 03 . 0 1 .201 9 DATE OF ORDER 16.01.2019 O R D E R A FORESAID APPEAL HA S BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 2 ND FEBRUARY 2018, PASSED BY THE LEARNED COMMISSIONER (APPEALS) 57 , MUMBAI, FOR THE ASSESSMENT YEAR 20 13 1 4 . 2 . THE DISPUTE IN THE PRESENT APPEAL IS CONFINED TO THE DISALLOWANCE OF PART OF THE AGRICULTURAL INCOME AND CONSEQUENTIAL ADDITION UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ). 2 MAHAVIRPRASAD MANEKCHAND MUNDHRA 3 . BRIEF FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED HIS RETURN OF INCOME ON 27 TH JULY 2013, DECLARING TOTAL INCOME OF ` 3,18,820. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER WHILE EXAMINING THE RETURN OF INCOME AND COMPUTATION OF TOTAL INCOME FO UND THAT THE ASSESSEE HAS SHOWN NET AGRICULTURAL INCOME OF ` 22,09,911. THEREFORE, HE CALLED UPON THE ASSESSEE TO FURNISH THE DETAILS OF AGRICULTURAL INCOME AND THE EXPENDITURE CLAIMED AGAINST SUCH INCOME. AFTER VERIFYING THE DETAILS FILED BY THE ASSESSEE, THE ASSESSING OFFICER WAS OF THE VIEW THAT THE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE IS NOT GENUINE SINCE THE ASSESSEE HAS NOT BROUGHT SUFFICIENT EVIDENCE ON RECORD TO PROVE THAT HE WAS INVOLVED IN AGRICULTURAL ACTIVITIES. ACCORDINGLY, HE DISALLOWED T HE CLAIM OF AGRICULTURAL INCOME AND TREATED THE NET AGRICULTURAL INCOME SHOWN AT ` 22,09,911, AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT AND ADDED BACK TO THE INCOME OF THE ASSESSEE. BEING AGGRIEVED OF SUCH ADDITION, THE ASSESSEE PREFERRED APPE AL BEFORE THE FIRST APPELLATE AUTHORITY. 4 . L EARNED COMMISSIONER (APPEALS), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIAL ON RECORD OBSERVED , THE INCOME SHOWN BY THE ASSESSEE FROM SALE OF CROP IS ON VERY HIGHER SIDE A ND THAT TOO IN CASH. ACCORDINGLY, OUT OF THE NET AGRICULTURAL INCOME SHOWN BY THE ASSESSEE, HE DISALLOWED THE AMOUNT 3 MAHAVIRPRASAD MANEKCHAND MUNDHRA OF ` 13 LAKH AS IT WAS IN THE FORM OF CASH DEPOSIT MADE IN THE BANK ACCOUNT. ACCORDINGLY, HE SUSTAINED THE ADDITION UNDER SECTION 68 OF THE ACT TO THAT EXTENT. 5 . T HE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE ASSESSEE IS IN POSSESSION OF 15 ACRES OF AGRICULTURAL LAND PURCHASED BETWEEN THE YEARS 1999 AND 2002. HE SUBMITTED , ASSESSEE HAD NOT ONLY BEEN CULTIVATING IN THE AGRICULTURAL LAND B UT HAS ALSO SHOWN INCOME FROM AGRICULTURAL IN THE PAST ASSESSMENT YEARS. HE SUBMITTED , BEFORE DEPARTMENTAL AUTHORITIES THE ASSESSEE HAS SUBMITTED DOCUMENTARY EVIDENCES TO NOT ONLY SHOW THAT HE IS IN POSSESSION OF 15 ACRES OF AGRICULTURAL LAND BUT ALSO THE FACT THAT HE IS CARRYING ON AGRICULTURAL ACTIVITIES. IN THIS CONTEXT, HE DREW OUR ATTENTION TO THE RECEIPTS ISSUED BY THE AGRICULTURAL PRODUCE MARKETING COMMITTEE (APMC) WHICH ARE PLACED AT PAGE 9 TO 20 OF THE PAPER BOOK. THE LEARNED AUTHORISED REPRESENTAT IVE SUBMITTED , THE BANK OF BARODA HAS ISSUED A KISAN CREDIT CARD TO THE ASSESSEE WHICH PROVES THAT THE ASSESSEE IS INVOLVED IN AGRICULTURAL ACTIVITY. IN THIS CONTEXT, HE DREW OUR ATTENTION TO A COPY OF BARODA KISAN CREDIT CARD ISSUED ON 21 ST MAY 2010, WHICH HE SOUGHT TO PRODUCE AS ADDITIONAL EVIDENCE. FURTHER, HE DREW OUR ATTENTION TO THE COPY OF AFFIDAVITS FILED BY TWO CULTIVATORS TO DEMONSTRATE THAT THE ASSESSEE HAS UNDERTAKEN CULTIVATION ACTIVITIES. HE ALSO DREW OUR ATTENTION TO THE AFFIDA VIT OF THE ASSESSEE ALONG WITH A CERTIFICATE ISSUED 4 MAHAVIRPRASAD MANEKCHAND MUNDHRA BY GRAM PANCHAYAT IN SUPPORT OF CLAIM OF AGRICULTURAL INCOME. THE LEARNED AUTHORISED REPRESENTATIVE ALSO SOUGHT TO PRODUCE THE AFORESAID DOCUMENT S AS ADDITIONAL EVIDENCES. THUS, HE SUBMITTED , THE ISSUE MA Y BE RESTORED BACK TO THE ASSESSING OFFICER TO VERIFY ALL THE DOCUMENTARY EVIDENCES INCLUDING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE AND IN CASE NOTHING ADVERSE IS FOUND , THE CLAIM OF AGRICULTURAL INCOME SHOULD BE ACCEPTED. 6 . THE LEARNED DEPARTMENTAL REPRESENTATIVE , THOUGH , RELIED UPON THE OBSERVATIONS OF THE LEARNED COMMISSIONER (APPEALS), HOWEVER, HE SUBMITTED THAT IN VIEW OF THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE, THE ISSUE MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FO R FRESH ADJUDICATION. 7 . I HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. AS COULD BE SEEN , THE FACT THAT THE ASSESSEE IS HOLDING 15 ACRE S OF AGRICULTURAL LAND HAS NOT BEEN DISPUTED BY THE DEPARTMENTAL AUTHORITIES. IN FAC T, BEFORE THE ASS ESSING OFFICER THE ASSESSE E HAS FURNISHED COPIES OF 7/12 E XTRACTS OF THE AGRICULTURAL LAND HOLDING , RECEIPTS FROM SALE OF AGRICULTURAL PRODUCE AND DETAILS OF EXPENDITURE, ETC. THOUGH, THE ASSESSING OFFICER HAS DISALLOWED THE NET AGRICULTURAL INCOME SHOWN B Y THE ASSESSEE, HOWEVER, LEARNED COMMISSIONER (APPEALS) HAS ACCEPTED A PART OF THE AGRICULTURAL INCOME WHILE DISALLOWING AN AMOUNT OF ` 13 LAKH. THUS, THE FACT THAT THE ASSESSEE IS 5 MAHAVIRPRASAD MANEKCHAND MUNDHRA INVOLVED IN AGRICULTURAL ACTIVITY AND EARNS AGRICULTURAL INCOME IS BEYOND D OUBT. THE DISPUTE REMAINS ONLY WITH THE QUANTUM OF AGRICULTURAL INCOME EARNED BY THE ASSESSEE. TO PROVE ITS CLAIM OF AGRICULTURAL INCOME, THE ASSESSEE HAS FURNISHED VARIOUS DOCUMENTARY EVIDENCES , SOME OF WHICH HAVE BEEN FURNISHED FOR THE FIRST TIME BEFORE ME AS ADDITIONAL EVIDENCES. IN MY CONSIDERED OPINION, THE DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE INCLUDING THE ADDITIONAL EVIDENCES REQUIRE FRESH EXAMINATION KEEPING IN VIEW THE SUBMISSIONS OF THE ASSESSEE. ACCORDINGLY, I AM INCLINED TO RESTORE TH E ISSUE TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER PROPERLY EXAMINING THE DOCUMENTARY EVIDENCES BROUGHT ON RECORD. IN CASE, NOTHING ADVERSE IS FOUND IN RESPECT OF ASSESSEES CLAIM AND THE DOCUMENTARY EVIDENCES FURNISHED, THEN THE AGRICULTURAL IN COME SHOWN BY THE ASSESSEE HAS TO BE ACCEPTED. I MUST OBSERVE , SINCE LEARNED COMMISSIONER (APPEALS) HAS ACCEPTED A PART OF THE AGRICULTURAL INCOME, THE ASSESSING OFFICER CANNOT RAISE ANY DOUBT AGAINST THE AGRICULTURAL ACTIVITY CARRIED ON BY THE ASSESSEE OR THE INCOME EARNED THERE FROM. HE SHOULD ONLY CONFINE HIMSELF TO THE ACCEPTABILITY O R OTHERWISE OF THE AGRICULTURAL INCOME DISALLOWED BY THE LEARNED COMMISSIONER (APPEALS) KEEPING IN VIEW THE DOCUMENTARY EVIDENCES FILED BY ASSESSEE . NEEDLESS TO THE MENTION , BEFORE DECIDING THE ISSUE THE ASSESSING OFFICER MUST AFFORD REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 6 MAHAVIRPRASAD MANEKCHAND MUNDHRA 8 . I N THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON SD/ SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI