Smt. Premilaben Natvarbhai Patel, Baroda V. The Income Tax Officer, Ward-2(2), Baroda

ITA 2660/AHD/2013

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6827 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-06-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 15-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ADITI SHETH
• Keywords: Income from undisclosed sources; Tangible material; Corroborative evidences; Assessment record
• Section: 271(1)(c); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER 1. ./ITA NO. 2660/AHD/2013 2. ./ITA NO. 2759/AHD/2014 ( / ASSESSMENT YEAR : 2008-09) PRAMILABEN N. PATEL AT & POST PADAMLA DISTRICT - BARODA / VS. THE INCOME TAX OFFICER WARD-2(2) BARODA ./ ./ PAN/GIR NO. : ACSPP 2455 Q ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : MS.ADITI SHETH, AR / RESPONDENT BY : SHRI MUDIT NAGPAL, SR.DR / DATE OF HEARING 05/12/2018 !'# / DATE OF PRONOUNCEMENT 01/01/2019 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEALS HAVE BEEN FILED AT THE INSTAN CE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS)II, BARODA [CIT(A) IN SHORT] VIDE APPEAL NO.CAB/II-300/10-11 DATED 02/08/2013 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3) OF THE INCOME TAX ACT, 1961(HEREINAFTER REFERRED TO AS 'THE ACT') DATED 24/12/2010 RELEVANT TO ASSESSMENT YEAR (AY) 2008-09 . 2. FIRST, WE TAKE UP THE ASSESSEES APPEAL IN ITA NO.2660/AHD/2013. ITA NOS.2660/AHD/2013 & 2759/AHD/2014 PRAMILABEN NATVARBHAI PATEL VS. ITO ASST .YEAR - 2008-09 - 2 - 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1.0 1 ON THE FACTS AND CIRCUMSTANCES OF YOUR APPELL ANT CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN CONFIRMING VIEW OF LD. ASSESSING OFFICER OF TREATING RS.2,75,640/- AS INCO ME FROM UNDISCLOSED SOURCES AS AGAINST AGRICULTURAL INCOME. 1.02. WHILE DOING SO, LD. CIT(A) HAS ERRED IN CONFI RMING VIEW OF LD. ASSESSING OFFICER THAT TO EARN AGRICULT URAL INCOME, THE APPELLANT MUST NOT ONLY OWN THE LAND BUT ALSO C ARRY OUT THE AGRICULTURAL ACTIVITIES RIGHT FROM SOWING OF SEED T O CUTTING OF HARVEST AND SELLING THE SAME INTO MARKET ON HER OWN . 2.01 ON THE FACTS AD CIRCUMSTANCES OF YOUR APPELL ANTS CASE AS WELL AS IN LAW, THE LD. CIT(A) ERRED IN NOT APPRECI ATING THAT NATURE OF INCOME DOES NOT CHANGE BASED ON FACTORS S URROUNDING TO IT IRRESPECTIVE OF FACT WHETHER PERSON EARNING A GRICULTURAL INCOME IS AGRICULTURIST OR NOT. 4. THE ONLY ISSUE RAISED BY THE ASSESSEE IS THAT TH E LD. CIT(A) ERRED IN TREATING THE AGRICULTURE INCOME OF RS. 2,75,640/ - AS INCOME FROM UNDISCLOSED SOURCES. 5. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DECLARED INCOME UNDER THE HEADS HOUSE PROPERTY AN D OTHER SOURCES. THE AGRICULTURAL INCOME WAS ALSO DECLARED WHICH WAS CLAIMED AS EXEMPT FROM TAX. HOWEVER, THE ASSESSING OFFICER FOUND THA T THE ASSESSEE IS NOT THE OWNER OF THE LAND IN RESPECT OF WHICH SHE DERIV ED THE AGRICULTURAL INCOME. AS SUCH, THE LAND BELONGED TO THE DAUGHTERS OF THE ASSESSEE NAMELY JYOTIBEN N. PATEL AND SONALBEN N. PATEL. T HE ASSESSEE CLAIMED TO HAVE TAKEN SUCH LAND ON RENTAL BASIS FROM HER DA UGHTER BUT THE ITA NOS.2660/AHD/2013 & 2759/AHD/2014 PRAMILABEN NATVARBHAI PATEL VS. ITO ASST .YEAR - 2008-09 - 3 - ASSESSING OFFICER FOUND THAT THE RENT AGREEMENT NOT SIGNED BY THE ASSESSEE. 5.1. THE ASSESSING OFFICER TO VERIFY THE GENUINENES S OF THE AGRICULTURAL INCOME DEPUTED THE INSPECTOR OF THE INCOME-TAX TO M AKE SPOT INQUIRIES. THE INSPECTOR OF INCOME-TAX IN TURN SUBMITTED THAT ONE OF THE LABORER/WORKER NAMELY SHRI KANTIBHAI SUBMITTED THAT THE AGRICULTURAL ACTIVITIES AND THE PAYMENT TO THE STAFF ARE CARRIED OUT BY SHRI NATVARBHAI BUT WHO IS THE HUSBAND OF THE ASSESSEE. AS SUCH, S HRI NATVARBHAI PATEL USES TO GIVE INSTRUCTION FOR ALL KINDS OF WORK AND USE TO MAKE NECESSARY PAYMENTS EITHER IN HIS INDIVIDUAL CAPACITY OR THROU GH THE ACCOUNTANT. 5.2. THE NAME OF THE ASSESSEE WAS NOT APPEARING AS AGRICULTURISTS IN THE EXTRACT OF THE FORM NO.7/12 IN RESPECT OF THE IMPUG NED AGRICULTURAL LAND FILED BY THE ASSESSEE. AS SUCH, THE NAME OF SMT. JY OTIBEN AND NATVARBHAI ALONG WITH OTHERS WERE APPEARING IN THE EXTRACT OF FORM NO.7/12. 5.3 THE ASSESSEE IN THE STATEMENT RECORDED U/S 131( 1) OF THE ACT FAILED TO PROVIDE THE DETAILS OF THE AGRICULTURAL ACTIVITY CARRIED OUT BY HER. AS SUCH, THE ASSESSING OFFICER FOUND THAT THERE WAS NO ACTIVE ROLE OF THE ASSESSEE IN THE AGRICULTURAL ACTIVITIES. 5.4. ON A QUESTION BY THE ASSESSING OFFICER, ON HIS OBSERVATIONS AS DISCUSSED ABOVE, THE ASSESSEE SUBMITTED THAT THE OW NERSHIP OF THE LAND IS NOT NECESSARY TO CARRY OUT THE AGRICULTURAL ACTIVIT Y. AS SUCH, THE NATURE OF THE ACTIVITY PERFORMED DEFINES THE AGRICULTURAL INC OME AND THE OWNERSHIP OF LAND FOR THE AGRICULTURAL INCOME HAS NOTHING TO DO. AS PER THE ITA NOS.2660/AHD/2013 & 2759/AHD/2014 PRAMILABEN NATVARBHAI PATEL VS. ITO ASST .YEAR - 2008-09 - 4 - DEFINITION GIVEN U/S 2(1A) OF THE ACT, THE AGRICULT URAL INCOME SHOULD BE DERIVED FROM LAND SITUATED IN INDIA. THUS, THE OWN ERSHIP OF THE LAND IS NOT REQUIRED UNDER THE SAID PROVISIONS OF THE ACT. IT IS NOT NECESSARY THAT THE ASSESSEE SHOULD ACTIVELY PARTICIPATE IN AGRICUL TURAL ACTIVITY. AS SUCH, THE AGRICULTURAL ACTIVITY IS CARRIED OUT THROUGH TH E INVOLVEMENT OF THE LABORERS. THE BUSINESSMAN IS NOT SUPPOSED TO LOOK A FTER EVERY ACTIVITY OF THE BUSINESS RATHER IT DELEGATES SUPERVISORY FUNCT ION TO THE MANAGERS. 5.4. THE ASSESSEE IN SUPPORT OF HIS CLAIM ALSO SUBM ITTED VARIOUS DOCUMENTS INCLUDING THE CONFIRMATION OF THE PARTY T O WHOM THE AGRICULTURAL PRODUCE WAS SOLD, BANK STATEMENT, ETC. THE ASSESSEE ALSO CLAIMED TO HAVE DECLARED ITS AGRICULTURAL INCOME IN THE EARLIER AND SUBSEQUENT ASSESSMENT YEARS, AND ITS INCOME FROM TH E SOURCE OF AGRICULTURAL ACTIVITY WAS NOT DISTURBED. 5.5. HOWEVER, THE ASSESSING OFFICER DISREGARDED THE CONTENTION OF THE ASSESSEE BY OBSERVING THAT SHE DOES NOT KNOW ANYTHI NG ABOUT THE FARMING. THE ASSESSEE MUST KNOW ABOUT THE ACTIVITY CARRIED ON THE AGRICULTURAL LAND. THE ASSESSEE BEING THE OWNER OF AGRICULTURAL ACTIVITY MUST KNOW ABOUT THE DETAILS OF THE CROPS, EXPENSES INCURRED AND SALES OF AGRICULTURAL PRODUCE. THE ASSESSING OFFICER ALSO N OTED THAT THE ASSESSEE DID NOT SIGN THE COPY OF THE LAND AGREEMENT. THE N AME OF THE ASSESSEE WAS ALSO NOT APPEARING S AGRICULTURIST IN THE EXTRA CT OF FORM NO.7/12. 5.6. THE ASSESSING OFFICER ALSO FOUND THAT THE HUSB AND AND THE SON OF THE ASSESSEE WERE ENGAGED IN THE TOBACCO BUSINESS. THEREFORE, THE ITA NOS.2660/AHD/2013 & 2759/AHD/2014 PRAMILABEN NATVARBHAI PATEL VS. ITO ASST .YEAR - 2008-09 - 5 - ASSESSING OFFICER WAS HAVING APPREHENSION THAT THE INCOME FROM THE TOBACCO BUSINESS HAS BEEN DIVERTED IN THE HANDS OF THE ASSESSEE IN THE FORM OF AGRICULTURAL INCOME. THE ASSESSING OFFICER ALSO OBSERVED THAT THE ISSUE IN THE AY 2004-05 CONCERNED EXCESS PRODUCTION CLAIMED BY THE ASSESSEE IN HER INCOME-TAX RETURN. THEREFORE, NO R EFERENCE CAN BE MADE TO THE ORDER OF THE ITAT PERTAINING TO THE AY 2004- 05. 5.7. IN VIEW OF THE ABOVE, THE ASSESSING OFFICER TR EATED THE AGRICULTURAL INCOME AS INCOME FROM UNDISCLOSED SOURCES AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 6. THE AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFOR E THE LD. CIT(A). 7. THE ASSESSEE BEFORE THE LD. CIT(A) SUBMITTED THA T SHE HAD FILED THE NECESSARY DETAILS IN SUPPORT OF HER AGRICULTURA L INCOME. THESE DETAILS INCLUDE THE CONFIRMATION OF SALES, EXPENSES CLAIMED FOR AGRICULTURAL ACTIVITY AND BANK STATEMENTS. 7.1. THE AGRICULTURAL INCOME CANNOT BE TREATED AS I NCOME FROM UNDISCLOSED SOURCES MERELY ON THE STATEMENT RECOR DED U/S 131 OF THE ACT. THE NON-APPEARING OF THE ASSESSEES NAME AS AN AGRICULTURIST IN THE FORM NO.7/12 DOES NOT PROVE THAT THE ASSESSEE CANNO T HAVE AGRICULTURAL INCOME. HOWEVER, THE LD. CIT(A) DISREGARDED THE CON TENTION OF THE ASSESSEE BY OBSERVING THAT THE ASSESSEE HAS NOT FIL ED THE AGRICULTURAL RECEIPT AS WELL AS EXPENSES SUCH AS SEED, FERTILIZE RS PESTICIDES, AND TRANSPORTATION EXPENSES BEFORE HIM. THE LD. CIT(A) ALSO OBSERVED THAT ITA NOS.2660/AHD/2013 & 2759/AHD/2014 PRAMILABEN NATVARBHAI PATEL VS. ITO ASST .YEAR - 2008-09 - 6 - ALL THE FAMILY MEMBERS OF THE ASSESSEE CARRYING OUT THE ACTIVITY OTHER THAN THE AGRICULTURAL ACTIVITY WHICH STRONGLY INDICATES THAT THE ASSESSEE IS NOT DOING ANY AGRICULTURAL ACTIVITY. THEREFORE, THE LD . CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 8. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) N OW THE ASSESSEE IS IN APPEAL BEFORE US. 9. THE LD.AR BEFORE US FILED PAPER-BOOK RUNNING FROM PAGES 1 TO 35 AND SUBMITTED AS UNDER:- ASSESSEE HAS EARNED AGRICULTURAL INCOME OUT OF AGR ICULTURAL LAND OWNED BY HER DAUGHTERS NAMELY JYOTIBEN N. PATEL AND SONALBEN M. PATEL (PG.2 OF ASST. ORDER). AREA OF SUCH AGRICULTURAL LAND IS AROUND 6 HECTRES AS IS EVIDENT FROM 7/12 EXTRACT PLACED AT ANNEXURE A TO THE ASSESSMENT ORDER. ASSESSEE HAS TAKEN SUCH AGRICULTURAL 1 LAND ON RENTAL BASIS FROM DAUGHTERS AND ASSESSEE'S HUSBAND AND SON ARE CARRYING OUT AGRICUL TURAL ACTIVITIES ON BEHALF OF ASSESSEE CONSEQUENT TO WHICH ASSESSEE HAS EARNED AG RICULTURAL INCOME AS IS EVIDENT FROM ASSESSEE'S STATEMENT RECORDED BY AO AN D PLACED AT ANNEXURE B TO THE ASSESSMENT ORDER. ASSESSEE HAS PLACED BEFORE AO DETAILS SUCH AS SALES BILLS TOWARDS SALE OF AGRICULTURAL PRODUCE, CONFIRMATIONS FORM PERSONS TO WHOM AGRICULTURAL PRODUCE WAS SOLD, NECESSARY DOCUMENTS TOWARDS AGRIC ULTURAL EXPENDITURE, DOCUMENTS IN RESPECT OF OWNERSHIP OF AGRICULTURAL L AND OWNED BY DAUGHTERS OF ASSESSEE, BANK ACCOUNTS AND SUCH OTHER DETAILS IN O RDER TO PROVE THAT INCOME EARNED BY ASSESSEE WAS AGRICULTURAL INCOME (PGS.4-5 OF CIT(A)'S ORDER). AO AND CIT(A) GOT CARRIED AWAY BY CERTAIN FACTS SUC H AS ASSESSEE WAS NOT THE OWNER OF CONCERNED AGRICULTURAL LAND, ASSESSEE DID NOT HERSELF CARRY OUT THE AGRICULTURAL ACTIVITIES, ASSESSEE DID NOT KNOW ABOU T AGRICULTURAL ACTIVITIES, ETC. AO FAILED TO APPRECIATE THAT IN ORDER TO CLAIM THAT GIVEN INCOME IS AGRICULTURAL INCOME, WHAT IS IMPORTANT IS THAT SUCH INCOME IS DE RIVED FROM AGRICULTURAL LAND IN INDIA. IT IS NEITHER ESSENTIAL TO OWN SUCH AGRIC ULTURAL LAND, NOR IS IT ESSENTIAL FOR AN ASSESSEE TO CARRY OUT AGRICULTURAL ACTIVITIE S ON HIS/HER OWN. RELIANCE IS ITA NOS.2660/AHD/2013 & 2759/AHD/2014 PRAMILABEN NATVARBHAI PATEL VS. ITO ASST .YEAR - 2008-09 - 7 - PLACED ON 'ITO VS. GAJANAN AGRO FARM - (2013) 33 TAXMANN.COM 149 (PUNE - TRIB)' (ANNEXURE 'A'). AO AND CIT(A) FAILED TO APPRECIATE THAT ASSESSEE HAS BEEN EARNING AGRICULTURAL INCOME SINCE AY 2001-02. THUS, AS PER PRINCIPLES OF CONSISTENCY, AO OUGHT TO HAVE ACCEPTED AGRICULTURAL INCOME DURIN G THE YEAR UNDER CONSIDERATION AS WELL. FURTHER, NEITHER AO NOR CIT(A) HAS BROUGHT ANY MATE RIAL ON RECORDS WHICH COULD PROVE THAT ASSESSEE HAD ANY SOURCE OF INCOME OTHER THAN AGRICULTURE FROM WHICH HE COULD HAVE EARNED THE CONCERNED INCOM E. IF A PERSON HAS EARNS ONLY AGRICULTURAL INCOME, THE N NO ADDITION CAN BE MADE TO THE TOTAL INCOME UNLESS AO OR CIT(A) PROVES THAT AN ASSESSEE HAS ANY OTHER SOURCE OF INCOME WHICH IS TAXABLE UNDER THE ACT. ON THIS COUNT AS WELL, IMPUGNED ADDITION DOESN'T HOLD ANY WATER. IN LIGHT OF THE ABOVE STATED FACTUAL BACKDROP, IT T RANSPIRES THAT THE IMPUGNED ADDITION HAS BEEN MADE PURELY ON THE BASIS OF PRESU MPTION, SURMISES AND CONJECTURES. HENCE, SUCH ADDITION IS NOT TENABLE IN THE EYE OF LAW. IN LIGHT OF THE ABOVE, THE IMPUGNED BE DELETED AND AGRICULTURAL INCOME DECLARED BY THE ASSESSEE MAY BE ACCEPTED AS IT IS. 10. ON THE OTHER HAND, LD. DR SUBMITTED THAT THE AG RICULTURAL ACTIVITY CARRIED OUT BY THE ASSESSEE IS DOUBTFUL AS SHE HAS NOT SUBMITTED NECESSARY DETAILS SUCH AS LABOR EXPENSES, SEED EXPENSES, AND FERTILIZER EXPENSES. THEREFORE, THE SAME CANNOT BE TREATED AS AGRICULTUR AL INCOME. THE LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 11. WE HAVE HEARD THE RIVAL CONTENTION AND PERUS ED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THE INSTANT CASE RELATES TO THE INCOME OFFERED BY THE ASSESSEE AS AGRICULTURAL INCOME, BUT THE AO TREATED THE ITA NOS.2660/AHD/2013 & 2759/AHD/2014 PRAMILABEN NATVARBHAI PATEL VS. ITO ASST .YEAR - 2008-09 - 8 - SAME AS INCOME FROM OTHER SOURCES. THE STATEMENT UN DER SECTION 131 OF THE ACT OF THE ASSESSEE WAS RECORDED WHEREIN THE AS SESSEE COULD NOT PROVIDE THE DETAILS OF THE AGRICULTURAL ACTIVITY AN D THE NATURE OF CROP PRODUCED ON SUCH LAND. BESIDES THE RENT AGREEMENT I N RESPECT OF AGRICULTURAL LAND WAS NOT SIGNED BY THE ASSESSEE. T HE NAME OF THE ASSESSEE WAS NOT SHOWN AS AN AGRICULTURIST IN THE R ECORDS OF THE LAND. THE LD CIT-A SUBSEQUENTLY CONFIRMED THE VIEW TAKEN BY THE ASSESSING OFFICER. THE REASON FOR TREATING THE AGRICULTURE IN COME SHOWN BY THE ASSESSEE AS INCOME FROM OTHER SOURCES HAS ALREADY B EEN EXPLAINED IN THE ORDER OF THE LD. CIT(A). 12. NOW THE CONTROVERSY ARISES FOR OUR ADJUDICAT ION WHETHER THE INCOME SHOWN BY THE ASSESSEE UNDER THE HEAD AGRICULTURE RE PRESENTS THE INCOME FROM OTHER SOURCES IN THE GIVEN FACTS AND CIRCUMSTA NCES. 12.1. IN THIS REGARD, WE NOTE THAT THE ASSESSEE NOWHERE IN THE STATEMENT RECORDED UNDER SECTION 131 OF THE ACT, DENIED TO HA VE NOT CARRIED OUT ANY AGRICULTURAL ACTIVITY. EVEN IN THE SPOT INQUIRIES M ADE BY THE INSPECTOR OF THE INCOME TAX REVEALED THAT THE AGRICULTURAL ACTIV ITIES WERE CARRIED OUT WITH THE ASSISTANCE OF THE HUSBAND OF THE ASSESSEE. AS SUCH THERE WAS NO ADVERSE INFORMATION REGARDING THE CLAIM OF THE ASSE SSEE FOR THE ACTIVITIES CARRIED OUT ON THE AGRICULTURAL LAND. THUS NON-AWAR ENESS OF THE ACTIVITIES AND CROP PRODUCED ON SUCH LAND CANNOT THE BASIS TO CONCLUDE THAT THE INCOME DECLARED BY THE ASSESSEE IS FROM UNDISCLOSED SOURCES. SIMILARLY, NON-ACTIVE PARTICIPATION IN THE AGRICULTURAL ACTIVI TIES BY THE ASSESSEE ITA NOS.2660/AHD/2013 & 2759/AHD/2014 PRAMILABEN NATVARBHAI PATEL VS. ITO ASST .YEAR - 2008-09 - 9 - CANNOT ADVERSELY AFFECT THE ASSESSEE. IT WAS REVEAL ED THAT THE HUSBAND OF THE ASSESSEE WAS REGULARLY VISITING TO CHECK THE CR OPS AND ENSURING THE PAYMENT FOR SUCH AGRICULTURAL ACTIVITIES. 13. THE ASSESSEE BEFORE THE AO HAS FURNISHED THE NECESSARY DETAILS SHOWING THE AGRICULTURAL EXPENSES AND INCOME ALONG WITH BANK STATEMENT AND CONFIRMATION FROM THE PARTY TO WHOM THE PRODUCT S WERE SOLD. THE SUBMISSION OF THE ASSESSEE BEFORE THE AO IS EXTRACT ED BELOW: 3.02 YOUR ASSESSEE FURTHER SUBMITS THAT DURING T HE YEAR UNDER CONSIDERATION, YOUR ASSESSEE SUBMITTED VIDE SUBMISS ION DATED 21 ST JUNE, 2010 ALL THE DOCUMENTS LIKE CONFIRMATION IN R ESPECT OF SALE MADE TO M/S.VALLABH TOBOCCO CO, BANK BOOK FOR SALE PROCEEDS RECEIVED FOR THE AGRICULTURAL INCOME AS WELL AS DOC UMENTS RELATING TO AGRICULTURAL EXPENSES VIDE SUBMISSION DATED 29 TH JUNE, 2010. IT WAS ALSO CONTENTED THAT ALL THE RECEIPTS ARE THROUG H CHEQUES ONLY AND THROUGH PROPER BANKING CHANNEL ONLY. NOW, IF Y OU HAVE ANY DOUBT ABOUT THE GENUINENESS OF THE ACTIVITIES OF YO UR ASSESSEE THEN YOU CAN ALWAYS CROSS VERIFY WITH THE SAID PERSONS T O ESTABLISH THAT THE INCOME IS NOT AGRICULTURAL INCOME IN NATURE. 13.1. THUS, THE ALLEGATION OF THE LD. CIT(A) THAT THE ASSESSEE HAS NOT FURNISHED THE DETAILS OF THE EXPENSES AND RECEIPTS FROM THE OPERATION OF AGRICULTURAL ACTIVITIES DOES NOT HOLD GOOD. IN CASE OF ANY DOUBT BY THE LD. CIT(A) THEN HE SHOULD HAVE CALLED ASSESSMENT RECORD S FROM THE OFFICE OF THE AO. THUS THE ADDITION CANNOT BE SUSTAINED IN TH E HANDS OF THE ASSESSEE MERELY ON THE GROUND THAT THE ASSESSEE HAS FAILED TO FURNISH THE REQUISITE DETAILS SHOWING THE INCOME AND EXPENSE FR OM THE AGRICULTURAL ACTIVITIES. ITA NOS.2660/AHD/2013 & 2759/AHD/2014 PRAMILABEN NATVARBHAI PATEL VS. ITO ASST .YEAR - 2008-09 - 10 - 13.2. THE NECESSARY DETAILS OF THE PARTY TO WHO M THE ASSESSEE SOLD THE AGRICULTURAL PRODUCE WERE AVAILABLE WITH THE AO. TH US IN CASE OF ANY DOUBT, THE LOWER AUTHORITIES SHOULD HAVE VERIFIED T HE SAME FROM THE PARTY BY ISSUING NOTICE UNDER SECTION 131/133(6) OF THE A CT. BUT THE AUTHORITIES BELOW HAVE NOT EXERCISED THEIR POWERS BY TAKING THE CONFIRMATION FROM THE PARTIES. 13.3. IT IS A FACT ON RECORDS THAT THE ASSESSEE WAS NOT THE OWNER OF THE LAND. THEREFORE THE NAME OF THE ASSESSEE WAS NOT SH OWN IN THE RECORDS IN FORM 7/2 AS AN AGRICULTURIST. IN THIS REGARD, WE AR E OF THE VIEW THAT THERE WAS NO REASON TO RECORD THE NAME OF THE ASSESSEE IN THE RECORDS AS AGRICULTURIST BECAUSE SHE WAS NOT THE OWNER OF THE LAND. TO OUR MIND, IT IS NOT NECESSARY TO CARRY OUT THE AGRICULTURAL OPERATI ONS FOR THE ASSESSEE TO BE AN AGRICULTURIST. 13.4. SIMILARLY, WE ALSO NOTE THAT IT IS NOT NEC ESSARY TO OWN THE AGRICULTURAL LAND FOR CARRYING OUT THE AGRICULTURAL OPERATIONS. THE PROVISIONS OF SECTION 2(1A) REQUIRE THAT THE INCOME SHOULD BE DERIVED FROM THE AGRICULTURAL ACTIVITIES ON LAND SITUATED I N INDIA. IN THIS REGARD, WE FIND SUPPORT AND GUIDANCE FROM THE ORDER OF THE HONBLE ITAT BENCH OF PUNE IN CASE OF ITO VS. GAJANAN AGRO FARMS REPOR TED IN 33 TAXMANN.COM 149 WHEREIN IT WAS HELD AS UNDER: A PLAIN READING OF SECTION 2(1A) MAKES IT CLEAR TH AT ALL THAT IS NECESSARY THAT REVENUE SHOULD BE DERIVED FROM A LAND SITUATED IN I NDIA AND WHICH IS USED FOR AGRICULTURAL PURPOSES. THIS SECTION DOES NOT SPECIF Y THAT REVENUE HAS TO BE ITA NOS.2660/AHD/2013 & 2759/AHD/2014 PRAMILABEN NATVARBHAI PATEL VS. ITO ASST .YEAR - 2008-09 - 11 - DERIVED BY THE OWNER OF THE AGRICULTURAL LAND ONLY. THE TERM 'REVENUE', THEREFORE, IMPLIES SOME YIELD OR SOME INCOME FROM A GRICULTURAL OPERATIONS. SUB-CLAUSE (II) AND (III) ALSO USE THE TERMS 'CULTI VATOR' AND 'RECEIVER OF RENT-IN- KIND'. THESE TERMS ALSO APPEAR IN CLAUSE (C) OF SEC TION 2(1A). THUS, IT CAN BE INFERRED THAT AGRICULTURAL INCOME CAN ALSO BE DERIV ED BY PERSON WHO IS A CULTIVATOR OR WHO IS THE OWNER OF LAND. IT IS ONLY THE RECEIVER OF RENT-IN-KIND WHO CAN DIRECTLY BE HELD TO BE THE OWNER OF LAND AS REFERRED TO IN THIS SECTION. 13.5. THERE IS NO DISPUTE THAT THE ASSESSEE DID N OT SIGN THE RENT AGREEMENT. BUT WE FIND THAT THIS IS A PROCEDURAL MI STAKE WHICH CANNOT BE USED AS THE BASIS TO DECIDE THE ISSUE AGAINST THE A SSESSEE. THE AO SHOULD HAVE TAKEN THE CONFIRMATION FROM THE LANDLORD WHETH ER SHE HAS RECEIVED RENTAL INCOME FROM THE ASSESSEE. BESIDES, IT SHOULD HAVE ALSO VERIFIED FROM THE FINANCIAL STATEMENT OF THE ASSESSEE WHETHE R ANY RENT EXPENSE HAS BEEN CLAIMED THEREIN AND ALSO CONFIRM FROM THE RECE IVER FOR THE SAME. 13.6. THE INCOME SHOWN BY THE FAMILY MEMBERS OF T HE ASSESSEE CANNOT HAVE ANY LINK WITH THE AGRICULTURE INCOME SHOWN BY THE ASSESSEE. IN CASE THE REVENUE HAD ANY DOUBT THAT THE FAMILY MEMBERS H AVE DIVERTED THEIR TAXABLE INCOME AS AGRICULTURE INCOME IN THE HANDS O F THE ASSESSEE TO ESCAPE FROM THE TAX LIABILITY, THEN IT SHOULD BRING TANGIBLE MATERIAL ON RECORD. THUS IN OUR CONSIDERED VIEW, THE ALLEGATION OF THE REVENUE IS BASED ON ITS SURMISE AND CONJECTURE. IT IS A FACT O N RECORD THE ACTIVITIES CARRIED OUT BY THE ASSESSEE ON THE AGRICULTURAL LAN D HAS NOWHERE BEEN DOUBTED/ CHALLENGE BY THE REVENUE. 13.7. WE ALSO NOTE THAT THE ASSESSEE HAS BEEN CL AIMING SUCH AGRICULTURE INCOME CONSISTENTLY FOR THE LAST SEVERAL YEARS WHIC H WAS ACCEPTED BY THE ITA NOS.2660/AHD/2013 & 2759/AHD/2014 PRAMILABEN NATVARBHAI PATEL VS. ITO ASST .YEAR - 2008-09 - 12 - REVENUE. THEREFORE IN OUR CONSIDERED VIEW, THE SAME CANNOT BE DISTURBED IN THE YEAR UNDER CONSIDERATION UNTIL AND UNLESS SO ME SUPPORTING EVIDENCE ARE BROUGHT ON RECORD AGAINST THE CLAIM OF THE ASSESSEE. 13.8. IN VIEW OF THE ABOVE, WE ARE NOT IMPRESSED WITH THE FINDING OF THE LOWER AUTHORITIES. ACCORDINGLY, WE REVERSE THE ORDE R OF THE LOWER AUTHORITIES AND DIRECT THE AO TO DELETE THE ADDITIO N MADE BY HIM BY TREATING THE AGRICULTURE INCOME AS INCOME FROM OTHE R SOURCES. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. IT IS ALSO PERTINENT TO NOTE THAT WE EXPRESSED FROM THE BENCH AT THE TIME OF HEARING TO RESTORE THE ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION. BUT LATER ON WE FIND THAT THERE WAS NO REASON FOR S ENDING THE ORDER TO THE AO AS ALL THE NECESSARY DETAILS ARE AVAILABLE ON RE CORD TO DECIDE THE ISSUE ON HAND. ACCORDINGLY, WE ADJUDICATED THE ISSUE ON M ERIT AS DISCUSSED ABOVE. COMING TO THE PENALTY APPEAL FILED BY THE ASSESSEE IN ITA NO.2759/AHD/2014 14. AT THE OUTSET, WE NOTE THAT WE HAVE DELETED THE QUANTUM ADDITION MADE BY THE AO AS DISCUSSED ABOVE. THUS THE PENALTY WILL NOT SURVIVE UNDER THE PROVISIONS OF SECTION 271(1)(C) OF THE AC T. ACCORDINGLY, WE HOLD THAT THE PENALTY LEVIED IN THE ORDER PASSED UN DER SECTION 271(1)(C) OF THE ACT, BECOMES INFRUCTUOUS. THUS, THE GROUND OF A PPEAL RAISED BY THE ASSESSEE IS ALLOWED. ITA NOS.2660/AHD/2013 & 2759/AHD/2014 PRAMILABEN NATVARBHAI PATEL VS. ITO ASST .YEAR - 2008-09 - 13 - 15. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 01 /01/2019 SD/- SD/- (MS.MADHUMITA ROY) (WASEEM AH MED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 01/01/2019 &.., .(.. / T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)-II, BARODA 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 6 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) $%, / ITAT, AHMEDABAD 1. DATE OF DICTATION 24.12.18 (DICTATION PAD 13 -PAGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 26.12.18 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.4.1.19 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 4.1.19 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