The ITO, Ward-1, Vapi V. Shri Hitendrasinh M. Chauhan, Umbergam

ITA 2817/AHD/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0409 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 05-10-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T SANKAR
• Keywords: Sale consideration of property below Jantri Value; Depreciation; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI D. K. TYAGI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 2817/ AHD/2010 (ASSESSMENT YEAR 2003-04) ITO, VAPI WARD I, VAPI VS. HITENDRASINH MOHANSINH CHAUHAN, AT & POT ACHCHARI, VIA BHILAD, UMBERGAM PAN/GIR NO. : ADHPC1050C (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI T SANKAR, SR. DR RESPONDENT BY: NONE DATE OF HEARING: 22.03.2013 DATE OF PRONOUNCEMENT: 22.03.2013 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDE R OF LD. CIT(A) VALSAD DATED 07.07.2010 FOR THE ASSESSMENT YEAR 200 3-04. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE A PPOINTED DATE OF HEARING IN SPITE OF NOTICE SENT BY RPAD ON 18.02.20 13 AND HENCE, WE PROCEED TO DECIDE THIS APPEAL OF THE REVENUE EX-PAR TE QUA THE ASSESSEE. 3. LD. D.R. SUPPORTED THE ASSESSMENT ORDER. HE ALS O SUBMITTED THAT THIS ISSUE WAS DECIDED BY LD. CIT(A) IN FAVOUR OF T HE ASSESSEE WITHOUT ANY EVIDENCE ON RECORD AND HENCE, HIS ORDER SHOULD BE REVERSED AND THAT OF THE A.O. SHOULD BE RESTORED. I.T.A.NO.2817 /AHD/2010 2 4. REGARDING THE FIRST ISSUE I.E. REGARDING DELETIO N OF ADDITION OF INCOME FROM OTHER SOURCES OF RS.8,42,254/- OUT OF A GRICULTURAL INCOME, WE FIND THAT THIS ISSUE WAS DECIDED BY LD. CIT(A) I N FAVOUR OF THE ASSESSEE ON THIS BASIS THAT THE ASSESSEE HAS BEEN A BLE TO ESTABLISH THAT THE AGRICULTURAL INCOME HAS TO BE ASSESSED IN THE HANDS OF HUF OF THE ASSESSEE AND NOT IN THE HANDS OF THE ASSESSEE AS IN DIVIDUAL. WE DO NOT FIND ANY BASIS OF THIS FINDING OF LD. CIT(A) BECAUS E IT HAS BEEN NOTED BY THE A.O. IN THE ASSESSMENT ORDER THAT ALL THROUGH, THE ASSESSEE WAS OFFERING INCOME IN HIS HANDS. IN THE PRESENT YEAR, IT IS NOTED BY THE A.O. IN THE ASSESSMENT ORDER THAT NO EVIDENCE IS SUBMITT ED BY THE ASSESSEE TO PROVE ITS CLAIM THAT VEGETABLES ARE PRODUCED AND SO LD BY HIM. IF THE ASSESSEE WAS NOT OWNING THE LAND IN QUESTION IN HIS INDIVIDUAL CAPACITY AND STILL HE OFFERED SOME INCOME IN HIS INDIVIDUAL HANDS AS AGRICULTURAL INCOME, THE CLAIM OF THE ASSESSEE CANNOT BE ACCEPTE D THAT THE INCOME OFFERED BY HIM IS AGRICULTURAL INCOME IN HIS HANDS. IN THIS SITUATION, THE ADDITION HAS TO BE MADE IN THE HANDS OF THE ASSESSE E AS INCOME FROM OTHER SOURCES TO THE EXTENT OF THE INCOME DECLARED BY THE ASSESSEE AS AGRICULTURAL INCOME WHICH HE COULD NOT SUBSTANTIATE . STILL WE FEEL THAT SINCE THE ORDER OF LD. CIT(A) IS VERY CRYPTIC AND W ITHOUT BRINGING ANY EVIDENCE ON RECORD, THE MATTER SHOULD GO BACK TO HI S FILE FOR A FRESH DECISION AND HENCE, WE SET ASIDE THE ORDER OF LD. C IT(A) ON THIS ISSUE AND RESTORE BACK THE MATTER TO HIS FILE FOR A FRESH DEC ISION ON THIS ISSUE. HE SHOULD BRING ALL EVIDENCES ON RECORD REGARDING THE OWNERSHIP OF THE LAND AND WHETHER ANY AGRICULTURAL ACTIVITY WAS UNDERTAKE N ON THIS LAND OR NOT AND WHAT WAS BEING GROWN ON THIS LAND. THE ASSESSE E SHOULD ALSO PRODUCE THE RELEVANT SALE BILLS ETC AND THEREAFTER, LD. CIT(A) SHOULD PASS NECESSARY ORDER AS PER LAW. IF THE ASSESSEE IS ABL E TO ESTABLISH THAT THE I.T.A.NO.2817 /AHD/2010 3 LAND IN QUESTION WAS BELONGING TO THE ASSESSEE IN H IS INDIVIDUAL CAPACITY THEN THE INCOME IN QUESTION MAY BE ACCEPTED IN THE HANDS OF THE ASSESSEE AS AGRICULTURAL INCOME TO THE EXTENT THE ASSESSEE I S ABLE TO ESTABLISH THE EARNING OF SUCH INCOME BY BRINGING ON RECORD NECESS ARY EVIDENCE SUCH AS 7/12 EXTRACT, COPY OF SALE BILLS ETC. BUT IF THE A SSESSEE FAILS TO ESTABLISH THE OWNERSHIP OF THE LAND IN HIS INDIVIDUAL CAPACIT Y THEN TO THE EXTENT OF INCOME SHOWN BY HIM AS AGRICULTURAL INCOME, ADDITIO N HAS TO BE MADE IN HIS HANDS ONLY AS THE INCOME FORM OTHER SOURCES OR UNDISCLOSED SOURCES BECAUSE THIS IS ADMITTED POSITION OF FACT THAT THIS MUCH INCOME WAS ADMITTED BY THE ASSESSEE AND IF THE ASSESSEE FAILS TO ESTABLISH THAT THE SAME IS ON ACCOUNT OF AGRICULTURAL INCOME, THEN IT HAS TO BE ACCEPTED THAT TO THIS EXTENT, THE INCOME OF THE ASSESSEE IS FROM UNDISCLOSED SOURCES. LD. CIT(A) SHOULD PASS NECESSARY ORDER AS PER LAW IN TH E LIGHT OF ABOVE DISCUSSION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 5. THE 2 ND ISSUE INVOLVED IS REGARDING ALLOWABILITY OF DEPREC IATION ON TRACTOR AND DIESEL PUMP. REGARDING THIS ISSUE ALSO , LD. CIT(A) STATED IN HIS ORDER THAT IT WAS ARGUED BEFORE HIM THAT THE HI RE INCOME FROM TRACTOR ETC. IS ASSESSED AS INCOME FROM OTHER SOURCES AND T HEREFORE, DEPRECIATION ON THE SAME IS TO BE ALLOWED. BUT WHEN WE LOOK INT O THE ASSESSMENT ORDER, WE FIND THAT THE TOTAL INCOME DECLARED BY TH E ASSESSEE AS PER THE RETURN OF INCOME WAS ONLY RS.54,000/- AND THERE IS NO EVIDENCE ON RECORD THAT THIS INCOME WAS ON ACCOUNT OF HIRE INCOME OF T HE TRACTOR ETC. HENCE, WE FEEL THAT ON THIS ISSUE ALSO, THE MATER SHOULD G O BACK TO THE FILE OF LD. CIT(A) FOR AFRESH DECISION. HE SHOULD BRING ON REC ORD THE EVIDENCE IN SUPPORT OF THIS CONTENTION THAT HOW MUCH INCOME WAS DECLARED BY THE ASSESSEE ON ACCOUNT OF HIRE INCOME FROM TRACTOR ETC . AND IF IT IS FOUND THAT I.T.A.NO.2817 /AHD/2010 4 HIRE INCOME FROM TRACTOR ETC. IS DECLARED BY THE AS SESSEE IN HIS RETURN OF INCOME, THEN DEPRECIATION MAY BE ALLOWED. LD. CIT( A) SHOULD PASS NECESSARY ORDER AS PER LAW AS PER ABOVE DISCUSSION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE S IDES. 6. IN THE RESULT, APPEAL OF THE REVENUE STANDS ALLO WED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE O F HEARING ITSELF I.E. ON 20.03.213. SD./- SD./- (D. K. TYAGI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 22/03/2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 22/03/2013.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 22/03/2013 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.1/4 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 01/ 4/2013 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .