Smt. Agya Kaur Bhatia, Indore V. The ITO 1(2), Indore

ITA 283/IND/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66698 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2000-2001
• Appeal Filed On: 14-05-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: PRAKASH JAIN
• Keywords: Opportunity of being heard; Additional evidence
• Section: 147; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL C INDORE BENCH - SMC BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 283/IND/2012 A.Y. 2000-01 SMT. AGYA KAUR BHATIA INDORE PAN AMVPB-4106D :: APPELLANT VS INCOME TAX OFFICER 1(2), INDORE :: RESPONDENT APPELLANT BY SHRI PRAKASH JAIN RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 24.09.2012 DATE OF PRONOUNCEMENT 24.09.2012 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 12.3.2012 FOR THE A.Y. 2000-01 IN THE MATTER OF ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3)/148 OF THE ACT. 2 2. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS ALLEG ED INITIATION OF PROCEEDINGS U/S 148 OF THE ACT ON 22. 12.2005 AFTER FOUR YEARS FROM THE END OF THE RELEVANT ASSES SMENT YEAR. THE ASSESSEE HAS ALSO CHALLENGED THE ADDITION OF RS . 3,60,000/- AS INCOME FROM OTHER SOURCES WHICH WAS EARNED BY TH E ASSESSEE AND OFFERED AS AGRICULTURAL INCOME. 3. DURING THE COURSE OF HEARING, THE ASSESSEE DID N OT PRESS GROUND RELATING TO VALIDITY OF REOPENING U/S 147 OF THE ACT. THE SAME IS, THEREFORE, DISMISSED IN LIMINE. THE ON LY GROUND WITH REGARD TO TREATING OF AGRICULTURAL INCOME AS I NCOME FROM OTHER SOURCES WAS CHALLENGED. 4. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS A LAD Y OF 85 YEARS OF AGE. IN THE RETURN OF INCOME, THE ASSESSEE HAD SHOW N TOTAL INCOME OF RS. 77,600/- AND AGRICULTURAL INCOME OF R S. 3,60,000/-. IN THE COMPUTATION OF TOTAL INCOME, TH E ASSESSEE HAD SHOWN INCOME FROM HOUSE PROPERTY, INTEREST AND AGRICULTURAL INCOME. THE ASSESSING OFFICER DID NOT ACCEPT THE AGRICULTURAL INCOME ON THE PLEA THAT COPIES OF AGRE EMENTS 3 CLAIMED TO HAVE BEEN ENTERED INTO WITH THE PARTIES TO WHOM LAND WAS GIVEN FOR CULTIVATION WERE NOT FURNISHED B Y THE ASSESSEE. 5. BEFORE THE LEARNED CIT(A) IT WAS CLAIMED THAT TH E ASSESSEE IS A LADY OF 85 YEARS AND BEING OLD, SHE COULD NOT REMEMBER AS TO WHERE THESE DOCUMENTS WERE KEPT. HOWEVER, SUBSE QUENTLY WHEN IT WAS FOUND THAT THESE WERE KEPT WITH HIS ELD EST SON FOR SAFE CUSTODY, THE SAME WERE TAKEN FROM HIM AND PROD UCED BEFORE THE CIT(A) AS AN ADDITIONAL EVIDENCE. THE C IT(A) CALLED FOR THE REMAND REPORT WHEREIN THE ASSESSING OFFICER STATED THAT TILL 27.11.2006 COPIES OF THE AGREEMENTS WERE NOT F ILED BY THE ASSESSEE, HENCE, THE COPIES OF THE CONTRACTS FILED AFTERWARDS AND PRODUCED DURING THE APPELLATE PROCEEDINGS WERE NOT RELIABLE AND NEED NOT BE ADMITTED. ACCORDINGLY, TH E CIT(A) DID NOT ACCEPT THE CONTRACTS ENTERED INTO BY THE ASSESS EE FOR CULTIVATION AND CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER AGAINST WHICH THE ASSESSEE IS IN FURTHER AP PEAL BEFORE US. 4 6. SHRI PRAKASH JAIN, LEARNED COUNSEL FOR THE ASSES SEE, CONTENDED THAT THE ASSESSEE IS THE WIFE OF LATE SHR I MEHTAB SINGH WHO WAS BORN IN PUNJAB (PAKISTAN). HE GOT RS . 8 LACS TO RS. 10 LACS FOR HIS PROPERTIES IN PAKISTAN AND AFTE R COMING TO INDIA, HE CARRIED ON MONEY LENDING BUSINESS AND AS PER WILL DATED 30 TH APRIL, 1981, HE HAD CASH OF RS. 30 TO 35 LACS WHIC H WAS RECEIVED BY THE ASSESSEE AND INVESTED IN PURCHA SE OF AGRICULTURAL LAND AND SHOPS IN HER NAME. HE INVITED OUR ATTENTION TO THE STATEMENT OF SHRI JAGDISH S/O AMBA RAM WHO HAS TAKEN THE ASSESSEES LAND FOR CULTIVATION, WHIC H WAS RECORDED BY THE ASSESSING OFFICER ON 15.9.2009 AND PLACED AT PAGES 22 TO 26 AND ALSO THE STATEMENT RECORDED ON 1 6.12.2009 PLACED AT PAGES 27 TO 33 OF THE PAPER BOOK. OUR ATT ENTION WAS ALSO INVITED TO THE STATEMENT RECORDED ON 18.9.2009 BY THE ASSESSING OFFICER OF SHRI VISHNU PRASAD S/O AMBARAM WHEREIN HE HAS CONFIRMED TAKING THE ASSESSEES AGRICULTURAL LAND FOR CULTIVATION AND THE AMOUNT GIVEN TO HER FOR THE SAM E. OUR ATTENTION WAS ALSO INVITED TO COPY OF SALE DEED OF AGRICULTURAL LAND AT VILLAGE UMARIA MHOW PLACED AT PAGES 38 TO 4 5 OF THE PAPER BOOK. AS PER THE LEARNED COUNSEL FOR THE ASS ESSEE, THE 5 ASSESSEE WAS HAVING LAND AT VILLAGE KANKARIA ADMEAS URING 17.946 HECTARES FOR WHICH RELEVANT LAND RECORDS WER E PLACED AT PAGES 19 TO 21 OF THE PAPER BOOK AND ALSO LAND AT V ILLAGE UMARIA ADMEASURING 0.330 HECTARES. THE RELEVANT DO CUMENTS WERE PLACED AT PAGES 38 TO 45 OF THE PAPER BOOK. OU R ATTENTION WAS ALSO DRAWN TO COPY OF KALULIAT NAMA DATED 3.10. 1998 EXECUTED BETWEEN THE ASSESSEE AND SHRI JAGDISH S/O AMBARAM AND SHRI VISHNU PRASAD S/O AMBARAM AS PLACED AT PAG ES 5 AND 6 OF THE PAPER BOOK. COPIES OF KABULIAT NAMA EXECU TED BETWEEN THE ASSESSEE AND SHRI JAGDISH S/O AMBARAM A ND SHRI VISHNU PRASAD S/O AMBARAM AS PLACED AT PAGES 7 AND 8 OF THE PAPER BOOK. IT WAS SUBMITTED BY THE LEARNED COUNSE L FOR THE ASSESSEE THAT THESE DOCUMENTS WERE KEPT BY THE ASSE SSEE WITH HIS ELDEST SON, GURMIT SINGH, WHO DURING THE RELEVA NT PERIOD WAS SUFFERING FROM KIDNEY PROBLEM AND THE ASSESSEE BEING AN OLD LADY, FORGOT AS TO WHERE THESE DOCUMENTS WERE L YING. THE MEDICAL CERTIFICATE OF SHRI GURMIT SINGH WAS ALSO P LACED ON RECORD ALONG WITH HIS DEATH CERTIFICATE DATED 18.4. 2010 INDICATING DEMISE OF SHRI GURMIT SINGH ON 2.4.2010. COPY OF AFFIDAVIT OF SHRI GURMIT SINGH DATED 6.1.2005 WAS A LSO FILED 6 BEFORE THE CIT(A) WHEREIN HE HAS CONFIRMED THAT THE SE DOCUMENTS WERE GIVEN BY HER MOTHER FOR SAFE CUSTODY AND BECAUSE OF HIS SEVERE ILLNESS, HE COULD NOT REMEMBE R AND RETURN THE SAME TO HIS MOTHER AT THE RELEVANT POINT OF TIM E WHEN THE ASSESSMENT PROCEEDINGS WERE GOING ON BEFORE THE ASS ESSING OFFICER. THE LEARNED COUNSEL HAS ALSO DRAWN OUR AT TENTION TO COPY OF P/2 KHASRA IN RESPECT OF AGRICULTURAL LAND AS PLACED AT PAGES 15 TO 17 AND COPY OF RIN PUSTIKA PLACED AT P AGES 18 TO 21 OF THE PAPER BOOK ACCORDING TO WHICH THE AGRICUL TURAL LAND WAS CULTIVATED ONE. IN VIEW OF THESE DOCUMENTARY E VIDENCES, HE SUBMITTED THAT THE INCOME OFFERED AS AGRICULTURA L INCOME WAS VERY REASONABLE AND THE SAME WAS SUPPORTED BY T HE DOCUMENTARY PROOF AND ONLY BECAUSE THE SAME COULD N OT BE TRACED OUT AT THE RELEVANT POINT OF TIME WHEN THE A SSESSMENT PROCEEDINGS WERE BEING CARRIED OUT, THE SAME COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER AND WHEN SUBS EQUENTLY FOUND, THE SAME WERE SUBMITTED BEFORE THE CIT(A). 7. ON THE OTHER HAND, THE LEARNED SENIOR DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE 7 COULD NOT PRODUCE THE AGREEMENTS FOR GIVING THE LAN D FOR CULTIVATION TO THE RESPECTIVE PARTIES AND, THEREFOR E, THE ASSESSING OFFICER WAS JUSTIFIED IN MAKING THE ADDIT ION AND THE CIT(A) WAS JUSTIFIED IN REJECTING THE ADDITIONAL EV IDENCE FILED BEFORE HIM. 8. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAR EFULLY GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES AND THE RELEVANT DOCUMENTS TO WHICH OUR ATTENTION WAS DRAWN. AS PER THE DOCUMENTS PLACED ON RECORD, THE ASSESSEE WAS HOLDIN G AGRICULTURAL LAND ADMEAURING 17.946 HECTARES AT VIL LAGE KANKARIA AND 0.330 HECTARES LAND AT VILLAVE UMARIA MHOW. AS PER THE COPY P/2 KHASRA AND COPY OF RIN PUSTIKA, TH E AGRICULTURAL LAND WAS DULY CULTIVATED. THE FACT THA T THESE LANDS WERE GIVEN FOR CULTIVATION WAS CONFIRMED BY SHRI JA GDISH S/O AMBARAM DURING RECORDING OF HIS STATEMENT BY THE CO NCERNED ASSESSING OFFICER ON 15.9.2009 AND 16.12.2009. THU S, THE FACT THAT THE SAID LAND WAS GIVEN FOR CULTIVATION TO SHR I JAGDISH S/O AMBARAM IS DULY ESTABLISHED AS PER THE STATEMENT RE CORDED BY THE ASSESSING OFFICER WHEREIN SHRI JAGDISH S/O AMBA RAM HAS 8 ALSO STATED REGARDING THE AMOUNT GIVEN BY HIM TO TH E ASSESSEE ON ACCOUNT OF SUCH CULTIVATION IN RESPECT OF DIFFER ENT LANDS GIVEN TO HIM. IN THE STATEMENT, SHRI JAGDISH S/O A MBARAM ALSO STATED THAT HE HAS TAKEN THE LAND FOR CULTIVATION F ROM THE ASSESSEE AND CULTIVATING THE SAME SINCE LAST TEN YE ARS. IN THE STATEMENT RECORDED ON 15.3.2009, SHRI JAGDISH S/O A MBARAM HAS STATED THAT HE WAS WORKING ON LAND SITUATED AT VILLAGE JANKARIA SINCE LAST TEN YEARS AND 8 TO 9 YEARS ON T HE LAND SITUATED AT VILLAGE NIHALPURA MANDI. IN THE STATEM ENT HE ALSO CONFESSED THAT FOR SUCH CULTIVATION, HE WAS TO GIVE RS. 3 LACS IN RESPECT OF THE LAND SITUATED AT VILLAGE KANKARIA AN D RS. 20,000/- TO 25,000/- FOR AGRICULTURAL LAND SITUATED AT NIHALPURA MANDI. IN THE STATEMENT RECORDED ON 16.12.2009, H E HAS CONFESSED THAT THE AGREEMENT WAS ENTERED INTO FOR T HE LAND TAKEN FOR CULTIVATION FOR WHICH STAMPS WERE PURCHAS ED THROUGH ADVOCATE OF SHRI G.S. BHATIA. ALL THESE DOCUMENTAR Y EVIDENCES INDICATE THAT THE ASSESSEE HAS ACTUALLY GIVEN HER L AND FOR CULTIVATION AND ALSO RECEIVING AGRICULTURAL INCOME. IT IS ALSO EVIDENT FROM THE AFFIAVIT FILED BY SHRI GURMIT SING H, ELDEST SON OF THE ASSESSEE, DATED 6.1.2005 THAT HE WAS SEVEREL Y SUFFERING 9 FROM KIDNEY PROBLEM AND THESE DOCUMENTS WERE GIVEN BY HER MOTHER FOR SAFE CUSTODY BUT BECAUSE OF HIS ILLNESS, HE COULD NOT RETURN THE SAME TO THE MOTHER DURING THE PERIOD OF ASSESSMENT PROCEEDING. THE ASSESSEE BEING AN OLD LADY OF 85 Y EARS COULD NOT REMEMBER AS TO WHERE THESE DOCUMENTS WERE LYING AND, THEREFORE, COULD NOT SUBMIT THE SAME BEFORE THE ASS ESSING OFFICER WHEN THE ASSESSMENT PROCEEDINGS WERE GOING ON. THE FACT OF SHRI GURMITSINGH BEING BADLY SUFFERING FROM KIDNEY WHICH WAS FOLLOWED BY HIS DEATH IS DULY AUTHENTICAT ED BY THE DEATH CERTIFICATE DATED 15.4.20120 FILED BEFORE US. ACCORDING TO THE DEATH CERTIFICATE, SHRI GURMIT SINGH BHATIA SON OF SHRI MEHTAB SINGH BHATIA EXPIRED ON 2.4.2010. ALL THESE FACTS PROVE THAT BECAUSE OF THE REASONS BEYOND THE CONTROL OF T HE ASSESSEE, THE REQUIRED DOCUMENTS COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER. HOWEVER, THE SAME WERE FILED BE FORE THE CIT(A) DURING THE APPELLATE PROCEEDINGS. IN THE IN TEREST OF JUSTICE AND FAIR PLAY, I RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING AFRESH AFTER CONSIDE RING THE DOCUMENTS DISCUSSED HEREINABOVE WHICH WERE ALSO FIL ED BEFORE 10 THE CIT(A). NEEDLESS TO SAY THAT THE ASSESSEE SHOU LD BE GIVEN DUE OPPORTUNITY OF BEING HEARD. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED IN PART 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 24 TH SEPTEMBER, 2012. SD (R.C.SHARMA) ACCOUNTANT MEMBER DATED: 25 TH SEPTEMBER, 2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-2525 11