Kaushalya, Shimla V. ITO-Ward-1, Shimla

ITA 267/CHANDI/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9647 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 06-10-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYANKA DHAR
• Keywords: Period of limitation
• Section: 144; 143(2); 73; 13

Judgement Text

आयकर अपील य अ धकरण,च डीगढ़ यायपीठ “एकल सद यीय’, च डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH ‘SMC’ CHANDIGARH ीमती दवा संह, या#यक सद य BEFORE: SMT. DIVA SINGH, JM आयकर अपील सं./ ITA No. 267/CHD/2021 नधा रण वष / Assessment Year : 2013-14 Smt. Kaushalya, Village – Sandhu, Tehsil – Theog, Distt. Shimla. बनाम VS The ITO, Ward-1, Shimla. थायी लेखा सं./PAN No: BLWPK0571Q अपीलाथ /Appellant यथ /Respondent नधा रती क! ओर से/Assessee by : Shri Vishal Mohan, CA राज व क! ओर से/ Revenue by : Smt. Priyanka Dhar, Sr.DR स ु नवाई क! तार&ख/Date of Hearing : 31.05.2022 उदघोषणा क! तार&ख/Date of Pronouncement : 07.07.2022 आदेश/ORDER The present appeal has been filed by the assessee wherein the correctness of the order dated 24 th March,2021 of NFAC, Delhi sitting as First Appellate Authority pertaining to 2013–14 assessment is assailed on the following grounds : 1. That the Ld. Commissioner of Income Tax (Appeal) is not justified in upholding the treating of the agricultural income returned as income from other sources. 2. That the order of the Ld. Commissioner of Income Tax ( Appeals) is bad in law and facts. 2. Before addressing the specific grievance of the assessee, it is necessary to first address the delay of 137 days pointed out ITA 267/CHD/2021 A.Y. 2013-14 Page 2 of 8 by the Registry in the filing of the present appeal. The same is sought to be explained by the assessee in the following terms: 1. That the order appealed against was passed on 24/03/2021 and was posted on the website on the very same date. The last date of limitation for filing o f the appeal expired on 23/05/2021. 2. That the appeal could not be filed in time due to the ongoing Covid 19 Pandemic and in the month of May, 2021 the Govt. of Himachal Pradesh imposed complete lockdown in the state of Himachal Pradesh, due to the reason the assessee/ appellant could not contact her counsel. Now few days back when she contacted with her counsel she came to know that the appeal filed by her stands dismissed. Thereafter she immediately took steps to get the appeal be filed. That otherwise also the Hon'ble Supreme Court of India in Suo Motu Writ Petition {Civil) No 3 of 2020 had been pleased to extend the period of limitation till further orders and as such this application is being filed for the sake of abundant caution 3. That the delay in filing of the appeal was neither willful nor intentional but had occasions due to the reasons aforementioned . 4. That no prejudice shall be caused to the non applicant is the delay on filing of the appeal if any is condoned whereas if the delay in filing of the appeal is not condoned the application shall be put to an irreparable loss . 5. It is , therefore, most respectfully prayed that the application be allowed and delay in filing of the appeal be condoned or any other relief be given which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case .” 3. The ld. AR relies upon the same. No objection was posed by the Sr.DR to the said application. 4. Considering the facts and the position of law as addressed by the Apex Court on the issue, the delay pointed out by the Registry is condoned. Ordered accordingly. 5. The parties were consequently required to advance their arguments on the merits of the appeal. 6. The relevant facts of the case are that in the case of the assessee, return declaring Rs.5000/- as income and ITA 267/CHD/2021 A.Y. 2013-14 Page 3 of 8 agricultural income of Rs.22,60,500/- was e-filed on 24.03.2015. Notice was issued to the assessee u/s 143(2) and 142(1) of the Act, however, the assessee did not respond leading to the assessment being completed u/s 144 wherein the agriculture income shown by the assessee for want of evidence of agricultural activity was added to the income of the assessee from other sources. 7. The said issue was challenged in appeal before the First Appellate Authority before whom, fresh evidences were filed. These very evidences were required to be addressed by the AO, however, in the absence of any objection or reply to the same, these were taken on record. The documents relied upon by the CIT(A) have been captured in page 3 of the order as under: ITA 267/CHD/2021 A.Y. 2013-14 Page 4 of 8 7.1 Considering the evidences and the reply, addition was confirmed by NFAC as First Appellate Authority holding that the copy of the sale bills filed were irrelevant and agricultural produce referring to evidences for Financial Year 2016-17, 2017-18 and 2018-19 were considered again not to be relevant. The evidence of ownership for the relevant period was discarded holding as under : “.........The asseesee has submitted copy of Zamabandi for F.Y. 2012-13 and Khasra Girdawri for F.Y. 2012-13 as an evidence for ownership of land and for agricultural produce. On verification of these documents, it is noted that during the F.Y. 2012-13, the Additional Judge. Shimla on a report No. 292 dated 15.03.2013 in 406/26/3/2012 had issued a decree against the assessee for Rs.5,51,709/- in account No. 71, 73 and 75. A perusal of above two documents clearly reveal the following ; ... ... ... ... ... ... ” 7.2 The First Appellate Authority further noticed that as per the copy of the Bank Account statement, the assessee was also receiving money from her son and daughters. Accordingly, it was considered that the assessee has failed to provide evidence of agriculture income of specific amount. Aggrieved by this, the assessee is in appeal before the ITAT. 8. Inviting attention to the impugned order and the Paper Book on record, ld. AR submitted that the ownership of the specific property stands established by documents at pages 6 to 11 which is a copy of the Jamabandi for the specific assessment year i.e. year 2012–13. ITA 267/CHD/2021 A.Y. 2013-14 Page 5 of 8 8.1 Inviting attention to pages 12 and 13 of the Paper Book which is a copy of the Khasra Girdawari for the specific period, it was submitted that the status of the agricultural land has been described as a Bagicha i.e. Orchard. 8.2 Attention was invited to the copy of the Affidavit declaring that the receipt of horticulture income is available at Paper Book page 5. 8.3 It was also his submission that the narrations of the deposits in the Saving Bank account at pages 31 would show that there were specific deposits from the horticultural activity. He agreed that no doubt there were some deposits of money received by her from her son and daughters but the fact remains that the remaining is agricultural income from the Orchard receipts. 8.4 It was his submission that the First Appellate Authority as NFAC has misdirected itself by considering that there was some attachment order noticed in the Jamabandi. Consequently, it was incorrectly concluded that the assessee could not have agricultural/horticulture income. It was his submission on query that at this point of time he would not be in a position to categorically state as to what was the nature of the attachment order and why it was made. However, it was his submission that it would have no impact whatsoever on the assessee’s ITA 267/CHD/2021 A.Y. 2013-14 Page 6 of 8 capacity and capability to earn horticultural/ agricultural income from the said land. 8.5 Inviting attention to the Paper Book it was submitted that similar income from the stated activity has been declared by the assessee in the subsequent assessment years which has been accepted by the Department. 8.6 On query it was further stated that in the early years also the assessee had earned agricultural income from the stated activity, however, since the income of the assessee was not taxable, returns were not filed. In the circumstances, it was his prayer that a fair estimate be made at this stage or the issue may be remanded back for a proper appreciation on facts. 9. The ld. Sr.DR relied upon the impugned order. However, he strongly objected to an estimate being made at this stage and agreed that the matter can be remanded back. 10. I have heard the submissions and perused the material on record. In the facts of the present case, admittedly the assessee’s agricultural/horticulture income has been accepted by the tax authorities in the subsequent assessment years. In fact, in the year under consideration, the claim has been rejected by the First Appellate Authority on the ground that apparently there was some warrant of attachment noticed in the Jamabandi for the year under consideration. Apart from ITA 267/CHD/2021 A.Y. 2013-14 Page 7 of 8 that, it was also noticed that the relevant details of various bills etc. relied upon as an evidence of receipt of agricultural/horticultural in fact pertains to the bills for subsequent assessment years. It is seen that on the past history of the said issue, there is no discussion. It is also seen that the Affidavit on record by the assessee remains uncontested. Considering the fact that this is a recurring issue, accordingly, in the interests of substantial justice, the issue is restored back to the file of the Assessing Officer with a direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. The assessee in its own interests is directed to ensure full and proper participation before the Assessing Officer and not abuse the trust reposed. It is made clear that in the eventuality of abuse of the trust reposed, the Assessing Officer shall be at liberty to pass an order in accordance with law on the basis of material available on record. Said order was pronounced in the Open Court at the time of hearing itself. 11. In result appeal of the assessee is allowed for statistical purposes. Order pronounced in the Open Court on 07 July,2022. Sd/- ( दवा संह ) (DIVA SPINGH) या#यक सद य/Judicial Member “प ू नम” ITA 267/CHD/2021 A.Y. 2013-14 Page 8 of 8 आदेश क! त,ल-प अ.े-षत/ Copy of the order forwarded to : 1. अपीलाथ / The Appellant – 2. . यथ / The Respondent 3. .आयकर आय ु /त/ CIT 4. .आयकर आय ु /त (अपील)/ The CIT(A) 5. -वभागीय त न2ध, आयकर अपील&य आ2धकरण, च4डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड फाईल/ Guard File आदेशान ु सार/ By order, सहायक पंजीकार/ Assistant Registrar