SANDEEP GUPTA, FARIDABAD V. ITO, WARD- 1(1), FARIDABAD

ITA 3076/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1372 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 02-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: I P BANSAL
• Keywords: Set aside
• Section: 133(6); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC: DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.3076/DEL./2018 ASSESSMENT YEAR 2012-2013 SHRI SANDEEP GUPTA, 1476, SECTOR-14, FARIDABAD, HARYANA. PIN 121 001. PAN AEMPG2457H VS., THE INCOME TAX OFFICER, WARD 1(1), FARIDABAD, HARYANA. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI I.P. BANSAL, AND SHRI SANJAY KUMAR, ADVOCATES. FOR REVENUE : SHRI S.L. ANURAGI, SR. D.R. DATE OF HEARING : 28.08.2019 DATE OF PRONOUNCEMENT : 11.09.2019 ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A), FARIDABAD, DAT ED 08.03.2018, FOR THE A.Y. 2012-2013. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSEE FILED RETURN OF INCOME DECLARING INCOME OF RS.9,69,700 (+ RS.20,61,541/- EXEMPTED AGRICULTURAL INCOME) ON 31.07.2012 FOR THE A.Y. 2012-2013. THE ASSESSEE DER IVES 2 ITA.NO.3076/DEL./2018 SHRI SANDEEP GUPTA, FARIDABAD. INCOME MAINLY FROM SALARY AND AGRICULTURE. THE ASSE SSEE HAS SHOWN AGRICULTURE INCOME OF RS. 32,82,000/- FOR WHICH HE HAS PRODUCED BILLS FROM ADATHIA, M/S JAGDAMBA TRADERS FOR SELLING OF AGRICULTURE PRODUCES. HE HAS ALSO SH OWN RS.12,20,959/- AS EXPENSES ON AGRICULTURE FOR WHICH NO SUPPORTING DOCUMENTS WERE FURNISHED EXCEPT A DAILY EXPENSES BOOK WRITTEN BY ONE OF HIS EMPLOYEE. THE A SSESSEE HAS ALSO FILED THEKANAMA OF LAND (LEASE DEED) FOR HAVING TAKEN LAND ON LEASE FROM TWO PERSONS NAMELY SH. B HHEKAY KHAN AND SH. MUNGER KGHAN TEHSIL & DISTT. JAISALMER , RAJASTHAN. IN SUPPORT THE GENUINENESS OF AGRICULTUR E INCOME, HE HAS ALSO FILED PHOTOCOPY OF KHASARA GIRDAWARI ISSUED BY THE PATWARI AND COUNTERSIGNED BY THE TEHSILDAR RAMGARH NO.2 ALONG WITH SALE BILLS OF AGRICULTURE P RODUCE FROM ADATHIA M/S JAGDAMBA TRADERS. THE A.O. IN ORDER TO VERIFY THE GENUINENESS OF THE PHOTOCOPY OF LEASE DE ED, ISSUED A NOTICE UNDER SECTION 133(6) TO THE LESSOR SH. BHHEKEY KHAN AND THE NOTARY PUBLIC WHO HAD ATTESTED THE LEASE DEED. IN RESPONSE TO THE SAME, REPLY FROM SH. BHHEKEY KHAN LESSOR WAS RECEIVED, IN WHICH, HE HAS ADMITTED THAT HE 3 ITA.NO.3076/DEL./2018 SHRI SANDEEP GUPTA, FARIDABAD. HAD LEASED OUT THE LAND TO ASSESSEE AND ALSO FURNIS HED THE PHOTOCOPY OF THE LEASE DEED WHICH IS PLACED ON RECO RD. HOWEVER, NO REPLY WAS FROM NOTARY PUBLIC. IN THE LE ASE FURNISHED BY LESSEE, THE A.O. NOTED THAT THE LAND W AS GIVEN TO ASSESSEE FROM 01 APRIL 2012 TO 31-3-2013. THEREF ORE, THE LAND IN QUESTION WAS NOT GIVEN FOR THE ASSESSMENT Y EAR UNDER APPEAL. THE A.O. IN ORDER TO VERIFY THE GENUI NENESS OF THE PHOTOCOPY OF KHASARA GIRDAWARI, ISSUED NOTICE UNDER SECTION 133(6) TO TEHSILDAR RAMGARH NO.2. IN RESPON SE TO THE SAME, KHASARA GIRDAWARI OF CHAK NUMBER 6 BTM MURABBA NUMBER 112/35 ALONG WITH QUANTUM OF AREA WHERE SH SUBHASH GUPTA HAS CULTIVATED CROP WAS FURNISHED BY THE TEHSILDAR. THE A.O, THEREFORE, NOTED THAT COPY OF KHASARA GIRDAWARI FILED BY THE ASSESSEE IS DIFFERENT FROM THE COPY FURNISHED BY TEHSILDAR. THE ASSESSEE ALSO FILED FIV E SALE BILLS ISSUED BY M/S JAGDAMBA TRADERS OF RAMGARH UNDER THE AEGIS OF KRISHI UPAJ MANDI SAMITI JAISALMER. THE A. O. DOUBTED THE SAME. THE A.O. ISSUED NOTICE UNDER SECT ION 133(6) TO M/S JAGDAMBA TRADERS FOR VERIFICATION OF THE BILLS WHICH WERE RETURNED UNDELIVERED WITH POSTAL REMARKS 4 ITA.NO.3076/DEL./2018 SHRI SANDEEP GUPTA, FARIDABAD. 'INCOMPLETE ADDRESS.' THE ASSESSEE WAS, THEREFORE, ASKED TO FURNISH COMPLETE ADDRESS OF M/S JAGDAMBA TRADERS TO VERIFY THE GENUINENESS OF BILLS. THE ASSESSEE SUBMITTED BE FORE THE A.O. THAT THE ADDRESS MENTIONED IN THE BILLS ARE CO RRECT. THE SHOP MIGHT HAVE CLOSED DUE TO ANY REASON. THE A.O. WAS, THEREFORE, REQUESTED TO ISSUE SUMMONS UNDER SECTION 133(6) OF THE INCOME TAX ACT 1961. ON REQUEST OF THE ASSES SEE, SUMMONS UNDER SECTION 131 OF THE INCOME TAX ACT, 19 61 WAS ISSUED TO M/S JAGDAMBA TRADERS AND REQUESTED TO FURNISH ORIGINAL SELLER SLIP BOOK, COPY OF BANK ACC OUNT, EVIDENCE OF PAYMENT OF ' MANDI CHARGES' AND EVIDENCE OF PAYMENT MADE TO ASSESSEE FOR THE SELLING COMMODITIE S. THE SAID SUMMONS WERE AGAIN RETURNED UN-SERVED WITH POS TAL REMARKS 'INCOMPLETE ADDRESS.' THE A.O. HAS GIVEN NUMEROUS OPPORTUNITIES TO ASSESSEE TO SUBSTANTIATE HIS CLAIM OF HAVING AGRICULTURE INCOME BY TAKING THE LA ND ON LEASE. THE ASSESSEE FILED REPLY BEFORE A.O. FILING COPY OF THE KHASAAR GIRDAWARI, SIGNED BY PATWARI. THE ASSESSEE FILED FURTHER REPLY BEFORE A.O. IN WHICH IT IS STATED THA T COPY OF THE CONFIRMATION ALONG WITH COPY OF BANK STATEMENT OF M/S. 5 ITA.NO.3076/DEL./2018 SHRI SANDEEP GUPTA, FARIDABAD. JAGADAMBA TRADERS, PAYMENT OF MANDI CHARGES, COPY OF PAN CARD ARE ATTACHED. THE CONFIRMATION AND OTHER PAPER S WERE DIRECTLY SENT TO THE A.O. BY SPEED POST. THE ASSESS EE ALSO FURNISHED CORRECT ADDRESS OF THE ADATHIA ALONG WITH EMAIL. THE ASSESSEE ALSO PROVIDED PHONE NO. FOR QUICK CONF IRMATION AND ALSO REQUESTED THAT LETTER/CONFIRMATION MAY BE SENT AT THE ADDRESS BEST AVAILABLE WITH THE ASSESSEE. THE A .O. HOWEVER DID NOT ACCEPT THE CONTENTION OF ASSESSEE B ECAUSE THERE IS A DIFFERENCE IN THE PERIOD FOR WHICH LEASE WAS GRANTED OF AGRICULTURAL LAND AND THAT THERE IS DISC REPANCY IN THE KHASRA WITH RESPECT TO SAME FURNISHED BY THE ASSESSEE BY THE PATWARI. IT IS NOTED THAT GENUINENESS OF THE BILLS COULD NOT BE VERIFIED BECAUSE ADATHIA HAS DONE BUSINESS ONLY FOR ASSESSEE AND IN HIS ACCOUNT CASH WAS FOUND TO HAVE BEEN DEPOSITED ON VARIOUS DATES. THE ASSESSEE COULD NOT PRODUCE THE ADATHIA DURING THE PROCEEDINGS, THEREFORE, BILLS COULD NOT BE VERIFIED. THE A.O. ALSO NOTED THAT EVI DENCE OF INCURRING EXPENDITURE HAVE ALSO NOT BEEN PRODUCED. THE A.O, THEREFORE, TREATED THE ENTIRE AMOUNT AS INCOME FROM 6 ITA.NO.3076/DEL./2018 SHRI SANDEEP GUPTA, FARIDABAD. OTHER SOURCES AND MADE ADDITION OF RS.32,82,000/- U NDER SECTION 68 OF THE I.T. ACT, 1961. 2.1. THE A.O. ON PERUSAL OF THE CAPITAL ACCOUNT AL SO FOUND THAT ASSESSEE HAS DEBITED RS.2,41,000/- ON AC COUNT OF HOUSE HOLD EXPENSES. THE ASSESSEE WAS ASKED TO J USTIFY HOUSE HOLD EXPENSES WITH REFERENCE TO SIZE OF THE F AMILY, NUMBER OF SCHOOL GOING CHILDREN, STANDARD OF LIVING AND TELEPHONE/ELECTRICITY BILLS ETC. THE ASSESSEE FILED COPY OF BALANCE-SHEET WITH EVIDENCES. THE A.O, HOWEVER, MAD E FURTHER ADDITION OF RS.2,40,000/- ON ACCOUNT OF LOW HOUSE HOLD WITHDRAWAL. 3. THE ASSESSEE CHALLENGED BOTH THESE ADDITIONS BEFORE THE LD. CIT(A). ON THE SUBMISSIONS OF THE AS SESSEE, THE LD. CIT(A) CALLED FOR THE REMAND REPORT FROM TH E A.O. THE A.O. IN THE REMAND REPORT ALSO COLLECTED INFORM ATION FROM DIRECTORATE OF AGRICULTURE, JAIPUR, RAJASTHAN. AS PER INFORMATION, YIELD OF GOWAR IN ASSESSMENT YEAR UNDER APPEAL WAS 323 KG PER HECTOR, THEREFORE, THERE IS A DIFFERENCE IN THE PRODUCTION CLAIMED BY ASSESSEE. T HE LD. 7 ITA.NO.3076/DEL./2018 SHRI SANDEEP GUPTA, FARIDABAD. CIT(A) CALLED FOR EXPLANATION OF ASSESSEE AND IN TH E ABSENCE OF REPLY FROM THE SIDE OF THE ASSESSEE, DISMISSED T HE APPEAL OF ASSESSEE ON BOTH THE ADDITIONS. 4. THE ASSESSEE IN THE PRESENT APPEAL HAS CHALLENGED THE ADDITION OF RS.32,82,000/- ON ACCOUN T OF AGRICULTURAL INCOME AND RS.2,40,000/- ON ACCOUNT OF LOW HOUSE HOLD EXPENSES. 5. I HAVE HEARD THE LEARNED REPRESENTATIVE OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON R ECORD. 6. LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND H AS REFERRED TO PB-9 WHICH IS REPLY FILED BEFORE A.O. I N WHICH IT IS CONTENDED THAT ASSESSEE HAD TAKEN AGRICULTURAL L AND MEASURING 50 BIGAS ON LEASE FOR ONE YEAR AT RS.50,000/-. THE ASSESSEE EARNED AGRICULTURAL INCOME OF RS.32,82 ,000/- AND AFTER INCURRING EXPENSES OF RS.12,20,459/- EARN ED NET AGRICULTURAL INCOME OF RS.20,61,541/- WHICH IS SUPP ORTED BY THE DOCUMENTS AND CONFIRMATIONS ETC., PB-13 IS L EASE DEED EXECUTED BY SH BHHEKAY KHAN, DATED 08.08.2011. PB- 8 ITA.NO.3076/DEL./2018 SHRI SANDEEP GUPTA, FARIDABAD. 14 LEASE DEED EXECUTED BY SH. MUNGER KHAN, DATED 05.07.2011. HE HAS, THEREFORE, SUBMITTED THAT THE D IFFERENCE OF LEASE DEED NOTED BY THE A.O. ARE INCORRECT. PB-1 5 IS SALE ON AGRICULTURAL PRODUCE FOR THE ABOVE SUM SUPPORTED BY KRISHI UPAJ MANDI SAMITI RECEIPTS THROUGH THE ADATHIA , COPIES OF WHICH ARE FILED AT PAGES 16-20 OF THE PB. PB-21 IS DETAILS OF AGRICULTURAL EXPENSES. PB-22 IS LEDGER A CCOUNT OF ADATHIA SHOWING THE SALE OF AGRICULTURAL PRODUCE AND THE AMOUNTS RECEIVED BY ASSESSEE THROUGH BANKING CHANNE L. PB-27 IS ANOTHER REPLY FILED BEFORE A.O. IN WHICH A SSESSEE HAS PRODUCED ORIGINAL INVOICES OF AGRICULTURAL INCO ME FOR VERIFICATION BEFORE A.O. AND PHOTO COPIES OF THE SA ME WERE ALSO FILED. PB-29 ONWARDS ARE THE DETAILS OF DOING AGRICULTURAL OPERATION. PB-99 IS ANOTHER REPLY FILE D BY ASSESSEE BEFORE A.O. SUBMITTING KHASRA ETC., AND TO CLARIFY THE DISCREPANCY. PB-102 AND 103 ARE KHASRA TO SHOW NAME OF THE LESSOR AND THE ASSESSEE AS A LESSEE FOR DOIN G AGRICULTURAL OPERATION. PB-105 IS ANOTHER REPLY FIL ED BEFORE A.O. PRODUCING THE ENTIRE ORIGINAL DOCUMENTS BEFORE A.O. IN RESPECT OF THE ABOVE CONTENTION. PB-108 IS REPLY FI LED BY 9 ITA.NO.3076/DEL./2018 SHRI SANDEEP GUPTA, FARIDABAD. M/S. JAGADAMBA TRADERS CONFIRMING SALE OF AGRICULTU RAL PRODUCE BY ASSESSEE TO THEM AND PAYMENTS MADE THROU GH BANKING CHANNEL WHICH IS SUPPORTED BY RECEIPTS OF K RISHI UPAJ MANDI SAMITI. PB-107 ARE THE COPIES OF THE BAN K ACCOUNT OF M/S. JAGADAMBA TRADERS TO SUPPORT PAYMEN TS THROUGH BANKING CHANNEL. LEARNED COUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT THOSE DOCUMENTA RY EVIDENCES CLEARLY SUPPORT THAT ASSESSEE CULTIVATED THE AGRICULTURAL LAND TAKEN ON LEASE AND EARNED AGRICUL TURAL INCOME, THEREFORE, NO ADDITION COULD BE MADE AGAINS T THE ASSESSEE. PB-152 IS REPLY OF THE ASSESSEE ON LOW HO USEHOLD EXPENSES IN WHICH ASSESSEE EXPLAINED THAT HE HAS SH OWN HOUSE HOLD EXPENSES IN A SUM OF RS.6,29,643/- BY SE LF AND OTHER EXPENSES MADE BY FAMILY MEMBERS TOTALING TO RS.15,30,415/-. HE HAS, THEREFORE, SUBMITTED THAT T HERE WAS NO JUSTIFICATION TO MAKE THE ADDITION ON ACCOUNT OF LOW HOUSE HOLD EXPENSES. 7. ON THE OTHER HAND, LD. D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT ASSESSEE FAILED TO PRODUCE SUFFICIENT DOCUMENTARY EVIDENCES BEFORE 10 ITA.NO.3076/DEL./2018 SHRI SANDEEP GUPTA, FARIDABAD. A.O. TO PROVE EARNING OF AGRICULTURAL INCOME, THERE FORE, BOTH ADDITIONS MAY BE CONFIRMED. 8. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE HAS FI LED COPY OF THE LEASE DEED AS NOTED ABOVE WHICH ARE DATED 08.08.2011 AND 05.07.2011. THEREFORE, THESE WOULD P ROVE AGRICULTURAL LAND TAKEN BY ASSESSEE ON LEASE IN RES PECT OF ASSESSMENT YEAR UNDER APPEAL, THEREFORE, THE VERY B ASIS OF THE A.O. TO DISALLOW CLAIM OF ASSESSEE HAVE BEEN NE GATED BY THE LEARNED COUNSEL FOR THE ASSESSEE. BOTH THESE LE ASE DEEDS HAVE BEEN PRODUCED BEFORE THE AUTHORITIES BEL OW SUPPORTED BY COPIES OF THE BILLS OF KRISHI UPAJ MAN DI SAMITI WHICH CLARIFY THAT ASSESSEE SOLD AGRICULTURAL PRODU CE THROUGH M/S. JAGADAMBA TRADERS. M/S. JAGADAMBA TRAD ERS CONFIRMED THE SELLING OF THE AGRICULTURAL PRODUCE B Y ASSESSEE THROUGH THEM AND ALL THE PAYMENTS ARE MADE BY CHEQUE/RTGS TO ASSESSEE THROUGH BANKING CHANNEL. TH E NAME OF ASSESSEE IS APPEARING IN THE KHASRA ALONG WITH OWNER/LESSER OF THE AGRICULTURAL LAND. THE ADTIYA I S ASSESSED TO TAX AND HAVE PAN AND HAVE ALSO CONFIRMED PURCHAS ING 11 ITA.NO.3076/DEL./2018 SHRI SANDEEP GUPTA, FARIDABAD. THE AGRICULTURAL PRODUCE FROM ASSESSEE THROUGH MANDI AND PAYMENTS HAVE BEEN MADE THROUGH BANKING CHANNEL, WH ICH IS ALSO SUPPORTED COPY OF THE BANK STATEMENT OF THE ADATHIA. ON THE FACE OF ALL THESE EVIDENCES ON RECORD, IT CL EARLY ESTABLISHES THAT ASSESSEE WAS DOING AGRICULTURAL AC TIVITIES AND EARNED AGRICULTURAL INCOME, THEREFORE, THERE WA S NO JUSTIFICATION TO TREAT THE AGRICULTURAL INCOME AS I NCOME FROM OTHER SOURCES. FURTHER, ASSESSEE HAS EXPLAINED THAT HE HAS SHOWN SUFFICIENT HOUSE HOLD EXPENSES BY SELF WHICH CONTAIN ELECTRICITY, WATER CHARGES, MEDICAL, VEHICLE EXPENS ES ETC. OTHER FAMILY MEMBERS HAVE ALSO JOINED HIM IN INCURR ING THE HOUSE HOLD EXPENSES TOTALING TO RS.15,30,241/- WHIC H WAS NOTED ABOVE WAS MORE THAN THE AMOUNT FOR WHICH ADDI TION IS MADE BY THE A.O. THEREFORE, THERE WAS NO JUSTIFI CATION TO MAKE ANY ADDITION ON ACCOUNT OF HOUSE HOLD EXPENSES . IN VIEW OF THE ABOVE DISCUSSION AND MATERIAL ON RECORD , I AM OF THE VIEW THAT BOTH THE ADDITIONS ARE WHOLLY UNJUSTI FIED. I, ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIE S BELOW AND DELETE BOTH THE ADDITIONS. 12 ITA.NO.3076/DEL./2018 SHRI SANDEEP GUPTA, FARIDABAD. 9. IN THE RESULT, APPEAL OF ASSESSEE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 11 TH SEPTEMBER, 2019 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH 6. GUARD FILE //BY ORDER// ASST. REGISTRAR : ITAT : DELHI BENCHES : DELHI. DATE OF DICTATION 28.08.2019 DATE ON WHICH THE TYPED DRAFT ORDER IS PLACED BEFOR E THE DICTATION MEMBER 09.09.2019 DATE ON WHICH THE APPROVAL DRAFT COMES TO THE SR. P S 11.09.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATION MEMBER FOR PRONOUNCEMENT 11.09.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S. 11.09.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 11.09.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11. 09.2019 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER.