Shri Amitbhai Kiritbhai Shah, Ahmedabad V. The Income tax Officer, Ward12(4), Ahmedabad

ITA 332/AHD/2006

• Counselvise Citation: 33220514 RSA 2006
• Duration Of Justice: 5 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 05-12-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 10-02-2006
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMIR TEKRIWAL
• Keywords: Depreciation; Income from undisclosed sources; Initiation of penalty proceedings; Set aside
• Section: 271(1)(c); 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 2186, 2187, 2188, 2189/ AHD/2007 & 332/A HD/2006 (ASSESSMENT YEARS 1997-98 TO 2001-02 RESPECTIVELY) SHAH AMIT KIRTIBHAI, PROP. A K ENTERPRISE, SWAPNA COMMERCIAL COMPLEX, JAVAHAR CHOK, MANINAGAR, AHMEDABAD VS. ITO, WARD 12(4), AHMEDABAD PAN/GIR NO. : AICPS6783R I.T.A.NO. 807/AHD/2008 (ASSESSMENT YEAR 2001-02) ITO, WARD 12(4), VS. SHAH AMITBHAI KIRTIBHAI, AHMEDABAD PROP. A K ENTERPRISE, SWAPNA COMMERCIAL COMPLEX, JAVAHAR CHOK, MANINAGAR, AHMEDABAD PAN/GIR NO. : AICPS6783R (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI SANJAY R SHAH, AR RESPONDENT BY: SHRI SUMIR TEKRIWAL, SR. DR DATE OF HEARING: 05.12.2011 DATE OF PRONOUNCEMENT: 31.01.2012 O R D E R PER SHRI A. K. GARODIA, AM:- OUT OF THIS BUNCH OF SIX APPEALS, THERE IS ONE APP EAL OF THE ASSESSEE IN QUANTUM PROCEEDINGS FOR THE ASSESSMENT YEAR 2001 -02, WHICH IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) - XVIII, A HMEDABAD DATED 01.12.2005 AND FOR THE SAME ASSESSMENT YEAR, THERE IS ONE APPEAL OF THE I.T.A.NO.2186-89 /AHD/2007 I.T.A.NO. 332/AHD/2006 I.T.A.NO. 807/AHD/2008 2 REVENUE IN CONNECTION WITH DELETION OF PENALTY IMPO SED BY THE A.O. U/S 271(1)(C) OF THE INCOME TAX ACT, 1961. THIS APPEAL FOR THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) - XX, AHME DABAD DATED 30.- 4.2007 FOR THE SAME ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2001-02. THE REMAINING FOUR APPEALS ARE OF THE ASSESSEE FOR THE ASSESSMENT YEARS 1997- 98, 1998-99, 1999-2000 AND 2000-01 IN QUANTUM PROCE EDINGS AND THESE ARE DIRECTED AGAINST THE COMBINED ORDER OF LD. CIT( A) XVIII, AHMEDABAD DATED 15.12.2006. FOR THE SAKE OF CONVEN IENCE, ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER. IT WAS AGREED BY BOTH THE SIDES THAT WE SHOULD FIRST DECIDE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YE AR 2001-02 IN I.T.A.NO. 332/AHD/2006 AND IN THE REMAINING FOUR AP PEALS OF THE ASSESSEE, THIS ORDER CAN BE FOLLOWED SINCE, THE ISS UE INVOLVED ARE SIMILAR AND HENCE, CAN BE DECIDED ON SIMILAR LINES. 2. LD. A.R. OF THE ASSESSEE ALSO AGREED THAT GROUND NO.1.1 IS GENERAL AND GROUNDS 3-6 ARE ARGUMENTS ONLY. REGARDING GROU ND NO.2, IT WAS SUBMITTED THAT CLAUSE (D) OF GROUND 2.1 IS NOT PRES SED AND HENCE, ONLY CLAUSE (A) (B) AND (C) OF GROUND NO.2.1 ARE TO BE D ECIDED. THESE GROUNDS ARE AS UNDER: 2.1 THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACT S IN CONFIRMING THE FOLLOWING ADDITIONS/DISALLOWANCES: (A) AGRI. INCOME U/S 68 RS.5,14,126/- (B) ENHANCEMENT OF INCOME RS.2,81,369/- (C) DISALLOWANCES OF INTEREST RS.5,55,485/-. 3. HE FURTHER SUBMITTED THAT CLAUSE (A) AND (B) OF GROUND NO.2.1 ARE INTERCONNECTED. 4. THE BRIEF FACTS OF THE CASE ARE THAT IN THE RETU RN OF INCOME FILED BY THE ASSESSEE, THE ASSESSEE HAS SHOWN GROSS AGRICULT URAL RECEIPT FROM SALE OF WHEAT, RICE ETC. AT RS.8,86,980/- AGAINST WHICH, AGRICULTURAL EXPENSES I.T.A.NO.2186-89 /AHD/2007 I.T.A.NO. 332/AHD/2006 I.T.A.NO. 807/AHD/2008 3 AMOUNTING TO RS.1,14,322/- AND BANK INTEREST EXPEND ITURE OF RS.5,21,090/- WERE DEDUCTED AND THE NET AGRICULTURA L INCOME WAS SHOWN AT RS.51,568/-. THE A.O. NOTED THAT THE ASSESSEE A ND HIS FAMILY MEMBERS WERE HOLDING AGRICULTURAL LAND OF 69.52 BIGHAS BUT THE HOLDING OF LAND IN THE NAME OF THE ASSESSEE WAS ONLY 1.625 BIGHAS. TH E A.O. FURTHER NOTED THAT THE HOLDING OF LAND IN THE NAME OF SHRI KIRTIB HAI S. SHAH, (FATHER) WAS 64.37 BIGHAS AND IN THE NAME OF SMT. RAMILABEN K SHAH (MOTHER), WAS 1.625 BIGHAS AND IN THE NAME OF SMT. HARPIT A S HAH (WIFE), WAS AT 1.625 BIGHAS. THE A.O. ALSO EXAMINED THE RETURNS F ILED BY FATHER AND WIFE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2001-0 2 FROM WHICH IT IS FOUND THAT SHRI KIRTIBHAI S SHAH (FATHER), HAS SHOW N GROSS AGRICULTURAL RECEIPT OF RS.4,45,750/- AND SMT. HARPIT A SHAH (WI FE) HAS SHOWN AGRICULTURAL RECEIPT OF RS.2,239,869/-. HE FURTHER NOTED THAT SMT. RAMILABEN K SHAH (MOTHER) HAS NOT FILED INCOME TAX RETURN. THE A.O. CONSIDERED THE GROSS AGRICULTURAL RECEIPT SHOWN BY THE ASSESSEE AND ALSO HIS FAMILY MEMBERS AND THE A.O. WORKED OUT ENTIRE L AND AT 69.25 BIGHAS AND GROSS AGRICULTURAL RECEIPT DECLARED FROM SALE O F WHEAT AND RICE WAS RS.16,12,468/- AGAINST WHICH THE ASSESSEE AND ALL F AMILY MEMBERS HAVE CLAIMED TOTAL EXPENSES OF RS.3,11,069/- RESULTING T OTAL NET AGRICULTURAL INCOME OF RS.13,01,399/-. THE A.O. ALSO MADE INQUI RY WITH THE DEPUTY DIRECTOR OF STATISTICS, AGRICULTURAL DEPARTMENT, GA NDHINAGAR, WHO FURNISHED THE DATA OF AGRICULTURAL PRODUCE IN RESPE CT OF IRRIGATED AND NON IRRIGATED LAND OF ALL THE DISTRICTS OF GUJARAT AND RELYING ON THE RELEVANT DATA FOR KHEDA DISTRICT IN WHICH THE LAND OF THE AS SESSEE AND HIS FAMILY MEMBERS IS SITUATED, THE A.O. CALCULATED THAT THE G ROSS RECEIPT FROM AGRICULTURAL LAND OWNED BY ALL THE MEMBERS OF THE F AMILY MEMBERS OF THE ASSESSEE SHOULD HAVE BEEN AT THE MOST RS.2,47,422/- AND MENTIONED THAT AFTER DEDUCTING AGRICULTURAL EXPENSES CLAIMED BY AL L THE FAMILY MEMBERS, I.T.A.NO.2186-89 /AHD/2007 I.T.A.NO. 332/AHD/2006 I.T.A.NO. 807/AHD/2008 4 LOSS WILL RESULT ON ACCOUNT OF AGRICULTURAL ACTIVIT IES. THE A.O. ALSO NOTED THAT THE AGRICULTURAL LAND WAS PURCHASED FOR RS.36, 28,714/- OUT OF WHICH ASSESSEES INVESTMENT WAS RS.25.35 LACS AND THE INV ESTMENT OF HIS FATHER, MOTHER AND WIFE WAS RS.9,08,532/-, RS.1 LACS AND RS .81,182/- RESPECTIVELY. SINCE THE A.O. HAS DETERMINED GROSS AGRICULTURAL RECEIPT FROM THE TOTAL LAND AT RS.2,47,422/-, HE DETERMINED GROSS AGRICULTURAL INCOME OF THE ASSESSEE PROPORTIONATE TO HIS INVESTM ENT OF RS.25.53 LACS OUT OF TOTAL INVESTMENT OF RS.36,28,714/-. THE A.O . ALLOWED DEDUCTION OF AGRICULTURAL EXPENSES AS CLAIMED BY THE ASSESSEE AT RS.1,14,322/- AND IN THIS MANNER, HE DETERMINED NET AGRICULTURAL INCOME OF THE ASSESSEE AT RS.58,526/- AS AGAINST NET AGRICULTURAL INCOME DECL ARED BY THE ASSESSEE AT RS.5,72,658/- BEFORE DEDUCTING INTEREST. THE A.O. TREATED THE DIFFERENCE OF RS.5,14,126/- AS ASSESSEES UNDISCLOSED INCOME I NTRODUCED BY THE ASSESSEE IN THE FORM OF AGRICULTURAL INCOME. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CI T(A) WHO HAS CONFIRMED THIS ORDER OF THE A.O. AND MOREOVER LD. C IT(A) HAS ENHANCED THE INCOME OF THE ASSESSEE BY AN AMOUNT OF RS.2,81, 369/-. THIS ENHANCEMENT WAS MADE BY HIM ON THIS BASIS THAT SINC E THE LAND OWNED BY THE ASSESSEE WAS 1.625 BIGHAS, HIS AGRICULTURAL INC OME SHOULD BE RS.5,807/- ONLY ;AND AGAINST THIS, THE CLAIM OF THE ASSESSEE REGARDING AGRICULTURAL EXPENSES OF RS.1,14,322/- IS TO BE CON SIDERED AS EXPENSES INCURRED FROM UNDISCLOSED SOURCES BEING THE EXPENSE S IN EXCESS OF AGRICULTURAL INCOME OF RS.5,807/-. NOW, THE ASSESS EE IS IN FURTHER APPEAL BEFORE US AGAINST THE ORDER OF LD. CIT(A) REGARDING THE ADDITION CONFIRMED BY HIM AND ALSO REGARDING ENHANCEMENT OF INCOME MADE BY LD. CIT(A). 5. THE 3 RD ISSUE BEFORE US IS REGARDING DISALLOWANCE OF INTER EST EXPENSE OF RS.5,55,985/-. ON THIS ISSUE, IT IS NOT ED BY LD. CIT(A) IN PARA I.T.A.NO.2186-89 /AHD/2007 I.T.A.NO. 332/AHD/2006 I.T.A.NO. 807/AHD/2008 5 13 OF HIS ORDER THAT WHILE MAKING DISALLOWANCES OF INTEREST OF RS.5,55,485/-, THE A.O. HAD OBSERVED THAT THE ASSES SEE HAD MADE INVESTMENT IN 41234 SHARES OF M/S. ANMOL RECREATION SERVICES (P) LTD., WHICH IS A SISTER CONCERN OF WHICH ASSESSEE IS A DI RECTOR. FOR THE AMOUNT OF INVESTMENT OF RS.41,23,400, THE A.O. OBSERVED TH AT NO INTEREST FREE FUNDS EXCEPT CAPITAL BALANCE OF RS.10,78,874/- WAS AVAILABLE WITH THE ASSESSEE TO MAKE INVESTMENT AND HENCE, BALANCE INVE STMENT OF RS.30,86,026/- HAD BEEN MADE OUT OF INTEREST BEARIN G FUNDS. REGARDING THIS INTERESTS BEARING FUNDS INVESTED IN SHARES, TH E A.O. MADE DISALLOWANCE OF RS.5,55,485/- OUT OF THE TOTAL INTE REST PAID AT RS.13,39,021/-. ON THIS ISSUE ALSO, THE ASSESSEE C ARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A) BUT WITHOUT SUCCESS AND NO W, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 6. ON THE FIRST TWO ISSUES REGARDING QUANTUM OF AGR ICULTURAL INCOME, IT IS SUBMITTED BY THE LD. A.R. THAT IN ASSESSMENT YEA R 1997-98, THE MATTER REGARDING QUANTUM OF AGRICULTURAL INCOME WAS DECIDE D BY THE TRIBUNAL IN THE ASSESSEES OWN CASE IN I.T.A.NO. 3486/AHD/2003 DATED 19.08.2004 AND COPY OF THIS TRIBUNAL ORDER IS AVAILABLE ON PAG ES 65-68 OF THE PAPER BOOK. HE POINTED OUT THAT AS PER THIS TRIBUNAL ORD ER, THE TRIBUNAL HAD RESTORED BACK THE MATTER TO THE FILE OF THE A.O. FO R A FRESH DECISION AFTER EXAMINING THE LAND HOLDING, NATURE AND SCOPE SHOWN BY THE ASSESSEE ETC. AND AFTER DUE VERIFICATION OF ALL THE CIRCUMSTANCES , THE A.O. WAS TO WORK OUT AGRICULTURAL INCOME OF THE ASSESSEE. HE ALSO S UBMITTED THAT AS PER THIS DIRECTION OF THE TRIBUNAL IN ASSESSMENT YEAR 1997-9 8, ASSESSMENT ORDER WAS PASSED BY THE A.O. ON 17.03.2006 U/S 143(3) OF THE INCOME TAX ACT, 1961 AND THIS ORDER OF THE A.O. IS AVAILABLE ON PAG ES 69-71 OF THE PAPER BOOK. HE SUBMITTED THAT AGAINST THE CLAIM OF THE A SSESSEE IN THAT YEAR REGARDING AGRICULTURAL INCOME OF RS.2.30 LACS, WHIC H WAS ACCEPTED BY THE I.T.A.NO.2186-89 /AHD/2007 I.T.A.NO. 332/AHD/2006 I.T.A.NO. 807/AHD/2008 6 A.O. TO THE EXTENT OF RS.0.41 LACS IN THE ORIGINAL ASSESSMENT, THE A.O. ESTIMATED AGRICULTURAL INCOME OF THE ASSESSEE AT RS .1.50 LACS AS PER THIS ORDER DATED 17.03.2006. HE SUBMITTED THAT IN VIEW OF THIS ORDER OF THE A.O. IN ASSESSMENT YEAR 1997-98, AS PER TRIBUNAL DI RECTION, IN ASSESSMENT YEAR 2001-02 ALSO, AGRICULTURAL INCOME OF THE ASSES SEE SHOULD BE ASSESSED AT REASONABLE AMOUNT. HE PLACED RELIANCE ON THE JU DGMENT OF HONBLE J & K HIGH COURT RENDERED IN THE CASE OF INTERNATIONA L FOREST CO. VS CIT, PATIALA AS REPORTED IN 101 ITR 721 (J & K) IN SUPPO RT OF THIS CONTENTION THAT THE REPORT OF DEPUTY DIRECTOR OF STATISTICS OF AGRICULTURE DEPARTMENT CANNOT BE A BASIS TO DETERMINE THE AGRICULTURAL INC OME OF THE ASSESSEE. HE ALSO PLACED RELIANCE ON THE TRIBUNAL DECISION RENDE RED IN THE CASE OF GOPALBHAI V BHOIWALA VS ITO IN I.T.A.NO. 3008/AHD/2 009 DATED 08.01.2010. HE SUBMITTED A COPY OF THIS TRIBUNAL D ECISION AND CONTENDED THAT AS PER THIS TRIBUNAL DECISION, WHEN THE ASSESS EE IS HAVING INCOME FROM AGRICULTURE AND OTHER SOURCE IS ONLY THE INCOM E FROM INTEREST ETC, IT CANNOT BE SAID THAT THE INCOME DECLARED BY THE ASSE SSEE AS AGRICULTURAL INCOME, IS INCOME FROM UNDISCLOSED SOURCES. HE SUB MITTED A CHART FOR THE ASSESSMENT YEAR 1997-98 TO 2001-02 AND IT IS CONTEN DED THAT IN ASSESSMENT YEAR 1997-98, THE A.O. ACCEPTED THE AGRI CULTURAL INCOME OF THE ASSESSEE AT RS.1.50 LACS WHILE IN ASSESSMENT YE AR 1998-99, AND 1999- 2000, HE ACCEPTED THE AGRICULTURAL INCOME AT RS.2.4 0 LACS AND IN ASSESSMENT YEAR 2000-01, HE ACCEPTED THE AGRICULTUR AL INCOME AT RS.2 LACS AND ALL THESE ORDERS WERE PASSED BY HIM U/S 143(3) OF THE ACT. HE SUBMITTED THAT IN THE ASSESSMENT YEAR 2001-02 ALSO, THE AGRICULTURAL INCOME SHOULD BE ASSESSED ON A REASONABLE BASIS. 7. REGARDING THE 3 RD ISSUE I.E. DISALLOWANCE OF INTEREST, HE SUBMITTED THAT INTEREST ACCOUNT FOR THIS ASSESSMENT YEAR IS A VAILABLE ON PAGE 44 OF THE PAPER BOOK, OUT OF WHICH, IT CAN BE SEEN THAT M AJOR AMOUNT OF INTEREST I.T.A.NO.2186-89 /AHD/2007 I.T.A.NO. 332/AHD/2006 I.T.A.NO. 807/AHD/2008 7 WAS PAID TO UNION BANK OF INDIA IN RESPECT OF CASH CREDIT HYPOTHECATION ACCOUNT TO THE EXTENT OF RS.13.40 LACS AND INTEREST WAS PAID IN RESPECT OF CAR LOAN OF RS.0.67 LACS AND HENCE, NO DISALLOWANCE IS CALLED FOR OUT OF INTEREST EXPENDITURE. RELIANCE WAS PLACE ON THE FO LLOWING TWO JUDGMENTS:- (A) 298 ITR 298 (S.C.) MUNJAL SALES CORPN. VS CIT (B) 313 ITR 340 CIT VS. RELIANCE UTILITIES & POWE R LTD. 8. AS AGAINST THIS, LD. D.R. SUPPORTED THE ORDER OF LD. CIT(A). REGARDING THE JUDGMENT OF HONBLE J & K HIGH COURT, IT WAS SUBMITTED THAT THE FACTS ARE DIFFERENT AND THEREFORE, THIS JU DGMENT IS NOT APPLICABLE. REGARDING THE TRIBUNAL DECISION CITED BY THE LD. A. R. ALSO, IT WAS SUBMITTED THAT THE SAME IS ALSO NOT APPLICABLE BECA USE THE FACTS ARE DIFFERENT. HE DRAWN OUR ATTENTION TO PARA 6 ON PAG E 6 OF THE ORDER OF LD. CIT(A) AND SUBMITTED THAT OUT OF THE TOTAL LAND OF 69.52 BIGHAS, LAND OWNED BY THE ASSESSEE WAS ONLY 1.625 BIGHAS. REGAR DING INTEREST ISSUE ALSO, HE SUPPORTED THE ORDER OF LD. CIT(A) AND RELI ANCE WAS PLACED BY HIM ON THE JUDGMENT OF HONBLE DELHI HIGH COURT REN DERED IN THE CASE OF PUNJAB STAINLESS STEELS INDS. VS CIT AS REPORTED IN 324 ITR 396 (DEL.). 9. REGARDING THE PENALTY APPEAL OF THE REVENUE, LD. D.R. SUPPORTED THE PENALTY ORDER WHEREAS THE LD. A.R. SUPPORTED TH E ORDER OF LD. CIT(A). 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE JUDGMENTS CITED BY BOTH THE SIDES. AFTER CONSIDERI NG THE FACTS OF THE PRESENT CASE, WE ARE OF THE CONSIDERED OPINION THAT EVEN IF ONLY 1.625 BIGHAS OF LAND WAS STANDING IN THE NAME OF THE ASSE SSEE, IT IS THE ADMITTED POSITION THAT OUT OF THE TOTAL INVESTMENT IN AGRICU LTURAL LAND OF RS.36.29 LACS, THE INVESTMENT OF THE ASSESSEE IS OF RS.25.53 LACS AND HENCE, THE I.T.A.NO.2186-89 /AHD/2007 I.T.A.NO. 332/AHD/2006 I.T.A.NO. 807/AHD/2008 8 BENEFICIAL OWNERSHIP OF THE ASSESSEE OF THE AGRICUL TURAL LAND HAS TO BE CONSIDERED IN PROPORTION TO THE INVESTMENT OF THE A SSESSEE EVEN IF THE LAND HAD BEEN ACQUIRED IN THE NAME OF ANY FAMILY MEMBER AND HENCE, THE AUTHORITIES BELOW, WERE NOT JUSTIFIED IN WORKING OU T THE AGRICULTURAL INCOME OF THE ASSESSEE TO THE EXTENT OF 1.625 BIGHA S OF LAND OWNERSHIP OF THE ASSESSEE. IN ASSESSMENT YEAR 1997-98 TO ASSESS MENT YEAR 2000-01, AGRICULTURAL INCOME HAS BEEN ACCEPTED BY THE A.O. T O THE EXTENT OF RS.1.50 LACS, RS.2.40 LACS., RS.2.40 LACS AND RS.2. 80 LACS FOR ASSESSMENT YEARS 1997-98 TO 2000-01 RESPECTIVELY. WE FEEL THA T IN THE PRESENT ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2001-02, THE NET AGRICULTURAL INCOME OF THE ASSESSEE SHOULD BE ASSESSED AT RS.2.50 LACS AS AGAINST THE NET AGRICULTURAL INCOME DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME OF RS.5,72,658/- BEFORE DEBITING BANK INTEREST EXPENSE S. IN THIS MANNER, THE ADDITION TO THE EXTENT OF RS.3,22,658/- IS CONFIRME D. GROUND NO.2.1 (A) IS PARTLY ALLOWED WHEREAS GROUND NO.2.1(B) IS FULLY AL LOWED. 11. REGARDING GROUND NO.2.1(C), WE FIND THAT IT IS NOTED BY THE A.O. THAT THE ASSESSEE HAS MADE INVESTMENT IN SHARES OF RS.41,23,400/- AND THE A.O. FURTHER NOTED THAT THERE IS NO INTEREST FREE F UNDS AVAILABLE WITH THE ASSESSEE EXCEPT CREDIT BALANCE IN THE CAPITAL ACCOU NT OF RS.10,78,874/-. THE A.O. HAS ALSO ALLOWED CREDIT FOR THIS ENTIRE BA LANCE OF CAPITAL ACCOUNT OF THE ASSESSEE AND ONLY FOR THE BALANCE INVESTMENT OF RS.30,86,026/-, IT IS HELD BY HIM THAT THE SAME IS OUT OF INTEREST BEARIN G BORROWED FUNDS AND THE DISALLOWANCE OF INTEREST IS WORKED OUT BY THE A .O. FOR THIS BALANCE AMOUNT ONLY. AS PER THE BALANCE SHEET OF THE ASSES SEE AVAILABLE ON PAGE 57 OF THE PAPER BOOK, WE FIND THAT THE OPENING BALA NCE OF CAPITAL ACCOUNT WAS RS.10,56,916/- AND THE CLOSING BALANCE IN CAPIT AL ACCOUNT IS RS.10,78,874/- AND IN ADDITION TO THIS, THERE IS NO INTEREST FREE FUND AVAILABLE WITH THE ASSESSEE. AMOUNT OF SUNDRY CRED ITORS AVAILABLE WITH I.T.A.NO.2186-89 /AHD/2007 I.T.A.NO. 332/AHD/2006 I.T.A.NO. 807/AHD/2008 9 THE ASSESSEE IS NOT A CASH CREDIT WHICH CAN BE USED FOR MAKING INVESTMENT IN SHARES. UNDER THESE FACTS, WE FEEL THAT DISALLO WANCE MADE BY THE A.O. U/S 14A IN RESPECT OF INTEREST EXPENDITURE FOR MAKI NG INVESTMENT IN SHARES IS JUSTIFIED AND HENCE, NO INTERFERENCE IS CALLED F OR IN THE ORDER OF LD. CIT(A) ON THIS ISSUE. - REGARDING THE RELIANCE PLACED BY THE ASSESSEE ON THE JUDGMENT OF HONBLE APEX COURT IN THE CASE OF MUNJAL SALES CORP ORATION VS CIT (SUPRA), WE FIND THAT THIS JUDGEMENT IS NOT APPLICA BLE IN THE PRESENT CASE BECAUSE THE FACTS ARE DIFFERENT. IN THAT CASE, OPE NING BALANCE AND PROFITS OF THE ASSESSEE FIRM WAS FOUND TO BE SUFFICIENT TO COVER THE LOAN GIVEN TO THE SISTER CONCERN AND UNDER THESE FACTS, IT WAS HE LD THAT IT SHOULD BE ACCEPTED THAT THE LOAN GIVEN WAS FROM ASSESSEES OW N FUNDS. IN THE PRESENT CASE, THE A.O. HAS ALREADY ALLOWED BENEFIT TO THE ASSESSEE IN RESPECT OF ENTIRE BALANCE IN THE CAPITAL ACCOUNT OF THE ASSESSEE AND HENCE, NO FURTHER BENEFIT IS AVAILABLE TO THE ASSESSEE AS PER THIS DECISION OF HONBLE APEX COURT. SIMILARLY THE OTHER JUDGMENT C ITED BY THE ASSESSEE OF HONBLE BOMBAY HIGH COURT RENDERED IN THE CASE O CIT VS RELIANCE UTILITIES AND POWER LTD. (SUPRA) IS ALSO OF NO HELP TO THE ASSESSEE IN THE PRESENT CASE BECAUSE THE FACTS ARE DIFFERENT. IN T HAT CASE, IT WAS HELD THAT IF FUNDS WERE AVAILABLE, BOTH INTEREST FREE AND INT EREST BEARING, THEN A PRESUMPTION WOULD ARISE THAT THE INVESTMENT WOULD B E OUT OF INTEREST FREE FUNDS AVAILABLE WITH THE ASSESSEE. IN THE PRESENT C ASE, TO THE EXTENT OF ENTIRE INTEREST FREE FUNDS AVAILABLE WITH THE ASSES SEE, BENEFIT IS ALLOWED BY THE A.O. TO THE ASSESSEE AND ONLY FOR THE EXTRA INV ESTMENT, IT IS HELD BY THE A.O. THAT THE SAME IS OUT OF INTERESTS BEARING BORR OWED FUNDS. HENCE, THIS JUDGMENT IS ALSO OF NO HELP TO THE ASSESSEE IN THE PRESENT CASE. HENCE, THIS GROUND OF THE ASSESSEE IS REJECTED. I.T.A.NO.2186-89 /AHD/2007 I.T.A.NO. 332/AHD/2006 I.T.A.NO. 807/AHD/2008 10 12. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS PA RTLY ALLOWED IN TERMS INDICATED ABOVE. 13. NOW, WE TAKE UP THE APPEAL OF THE REVENUE IN PE NALTY PROCEEDINGS FOR THE ASSESSMENT YEAR 2001-02 IN I.T.A.NO. 807/AH D/2008. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1) LD. I.T.A.NO. ERRED IN LAW AND ON FACTS IN CANC ELING THE PENALTY OF RS.3,92,917/- LEVIED U/S 271(1)(C) OF TH E ACT, BY THE A.O. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 3) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT( A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 14. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE S IDES, WE REPRODUCE RELEVANT PART OF THE ORDER OF CIT(A)S PER WHICH HE DELETED THE PENALTY IN QUESTION WHICH IS PARA 3.2, 3.3 AND 3.4 OF HIS ORDE R:- 3.2 HOWEVER, THE CONTENTION OF THE APPELLANT THAT THERE CANNOT BE LEVY OF PENALTY ON AMOUNT OF RS. 2, 8 1,6397- ENHAN CED BY LEARNED (TJ'(A) IN QUANTUM PROCEEDINGS TO BE ACCEPTED AS TH ERE IS NO PENALTY INITIATED BY LEARNED CIT(A) FOR THAT AMOUNT IN HIS APPELLATE ORDER. IT IS AN ACCEPTED POSITION THAT THE PENALTY BEING QUASI CRIMINAL PROCEEDINGS HAS TO BE LEVIED BY THE SAME P ERSON WHO INITIATES THE SAME. EVEN SECTION 271(L)(C) ALSO PRE SUPPOSES THIS POSITION WHERE POWERS ARE GIVEN TO CIT(A) TO LEVY P ENALTY U/S. 271(L)(C). SINCE LEARNED CIT(A) HAS NOT INITIATED P ENALTY U/S. 271(L)(C) FOR THIS AMOUNT, LEARNED A.O. CANNOT LEVY PENALTY WITH REFERENCE TO THIS AMOUNT OF RS, 2,81,6397-. THIS CO NTENTION OF THE APPELLANT IS THEREFORE ACCEPTED. 3.3 THE CONTENTION OF APPELLANT THAT THE LEARNED A. O. HAS ONLY INITIATED PENALTY ON THE ISSUE OF AGRICULTURAL INCO ME TREATED AS UNDISCLOSED INCOME AND NOT FOR OTHER ISSUES HAS ALS O TO BE ACCEPTED THAT FROM THE BODY OF THE ASSESSMENT ORDER, ONLY WI TH THIS ISSUE THERE IS A MENTION OF INITIATION OF PENALTY BY LEAR NED A.O. (PAGE 5 OF THE ASSESSMENT ORDER) AND THEREFORE, IT IS CLEAR THAT INITIATION OF PENALTY PROCEEDINGS ARE SPECIFICALLY MENTIONED WITH REFERENCE TO AGRICULTURAL INCOME. I.T.A.NO.2186-89 /AHD/2007 I.T.A.NO. 332/AHD/2006 I.T.A.NO. 807/AHD/2008 11 BESIDES THIS AN AMOUNT OF RS. 1,04, 1587- IN RESPEC T OF ADDITIONS BY WAY OF AD HOC DISALLOWANCE LIKE 175 TH OF DEPRECIATION, 175 TH OF PETROL EXPENSES, DISALLOWANCE OUT OF TRAVELING EXPE NSES, TELEPHONE EXPENSES ETC. BEING DISALLOWANCE ON ESTIMATE BASIS CAN NEVER BE SUBJECTED TO PENALTY AND HENCE THIS AMOUNT CANNOT B E COVERED IN PURVIEW OF PENALTY PROCEEDINGS U/S. 27(1 )(C). AS R EGARDS THE DISALLOWANCE OF ADDITION OF RS. 5, 55,4857-, THIS A MOUNT HAS ALREADY BEEN SHOWN BY THE APPELLANT AND NO CONCEALM ENT OF FACTS WAS THERE ON THE PART OF THE APPELLANT. TH EREFORE, AS PER PROVISIONS OF SECTION 271(L)(C), THIS AMOUNT CANNOT BE SUBJECTED TO LEVY OF PENALTY. ' 3.4 THIS LEAVES WITH ONLY AN AMOUNT OF RS. 5, 14, 1267- TREATED BY WAY OF INCOME FROM UNDISCLOSED SOURCES A S AGAINST AGRICULTURAL INCOME DECLARED BY THE APPELLANT. IN M Y VIEW EVEN AS THIS AMOUNT ALSO NO PENALTY U/S. 271(L)(C) CAN BE L EVIED DUE TO FOLLOWING REASONS: (I) THE ENTIRE EXERCISES OF CALCULATION OF AGRICULT URAL INCOME MADE BY LEARNED A.O. IS BASED ON SOME STATISTICAL DATA I SSUED BY DEPUTY DIRECTOR OF STATISTICS, AGRICULTURAL DEPARTMENT, GA NDHINAGAR. THE APPELLANT HAS FILED A COPY OF SUCH REPORT AT PAGE 2 OF HIS COMPILATION WITH SUBMISSIONS DATED 15-11-2007 WHICH SPECIFICALLY MENTIONED ON TOP OF THE REPORT THAT IT IS BASED ON 'FINAL FORECAST REPORTS'. IN OTHER WORDS IT IS ONLY AN ESTIMATE BAS ED ON SOME FORECAST REPORTS. FURTHER IT IS ONLY AN AVERAGE OF A SAMPLE DATA AND IT CANNOT BE A SUBSTITUTE FOR ACTUAL PERFORMANCE OF A PARTICULAR LAND. THE FORECAST IS FOR THE ENTIRE KHEDA REGION WHEREAS THE LAND OF THE APPELLANT IS SITUATED IN MEHMADABAD REGION WHICH MA Y OR MAY NOT ACCORD TO SUCH PERFORMANCE. IN OTHER WORDS, EVEN IF SUCH REPORTS MAY HAVE SOME RELEVANCE FOR ESTIMATING INCOME FOR M AKING ASSESSMENT, IT DOES NOT IPSO FACTO MEAN THAT ASSESS EE HAS FURNISHED INACCURATE PARTICULARS OF AGRICULTURAL INCOME AND H ENCE NO PENALTY CAN BE LEVIED U/S. 27L(L)(C) KEEPING IN MIND ONLY T HE SAID REPORT. . (II) THE APPELLANT HAS ALREADY FILED EVIDENCE OF HI S LAND HOLDINGS AT VILLAGE KANIJ AND RASKA AT PAGE 21 TO 24 OF SUBMISS IONS DATED 15- 11-2007 WHICH CLEARLY SHOWS THAT ALL TIE LANDS BELO NG TO FAMILY MEMBERS OF THE APPELLANT INCLUDING APPELLANT JOINTL Y WITHOUT EARMARKING OF ANY KIND OF HOLDING IN FAVOUR OF ANY SINGLE PERSON. I.T.A.NO.2186-89 /AHD/2007 I.T.A.NO. 332/AHD/2006 I.T.A.NO. 807/AHD/2008 12 UNDER THE CIRCUMSTANCES, THE LEARNED A.O. CANNOT FI ND FAULT WITH THE APPELLANT WHEN HE HAS BIFURCATED THE ENTIRE AGR ICULTURAL INCOME EARNED BY FAMILY ON THE BASIS OF MUTUAL AGREEMENT A ND CONVENIENCE PARTICULARLY WHEN THE APPELLANT HAS BOR ROWED MAJORITY OF FUNDS FOR INVESTMENT INTO AGRICULTURAL LANDS INT EREST BURDEN ON WHICH THE APPELLANT BEARS. THIS FACT IS ALSO ACCEPT ED BY LEARNED A.O. IN HIS ASSESSMENT ORDER WHEN HE SAYS THAT RS.5 ,21,030/- IS PAID BY WAY OF INTEREST ON LOAN OBTAINED FROM THE B ANK FOR THE PURPOSE OF AGRICULTURAL LAND AND HENCE NO ADDITION IS BEING MADE SEPARATELY FOR THE SAME AS SUCH INTEREST IS PRESUME D TO HAVE BEEN PAID OUT OF SUCH UNDISCLOSED INCOME DECLARED, IN TH E FORM OF AGRICULTURAL INCOME. (III) THE APPELLANT HAS PRODUCED HILLS FOR SALE OF AGRICULTURAL PRODUCE JUSTIFYING THE EARNING OF AGRICULTURAL INCO ME. THESE BILLS WERE ATTACHED AT PAGES 8 TO 12 WITH SUBMISSION DATE D 15-1 1-2007 ALSO INDICATE COMPLETE NAMES AND ADDRESSES AND TELE PHONE NUMBERS OF THE PURCHASERS. IF LEARNED A.O. HAD ANY DOUBT ABOUT GENUINENESS OF THEM HE COULD HAVE MADE INQUIRIES WI TH THEM IN ORDER TO TEST THE VERACITY OF THE CONTENTION OF THE APPELLANT. HAVING NOT DONE SO, THE LEARNED A.O. SIMPLY ON THE BASIS O F THE ESTIMATION OF FIGURE BY THE STATISTICAL DEPARTMENT CANNOT COME TO A POSITIVE FINDING THAT THE APPELLANT HAS REALLY NOT EARNED AG RICULTURAL INCOME AND THAT UNDISCLOSED INCOME WAS BEING DECLARED AS A GRICULTURAL INCOME. (IV) NO WHERE IN THE ASSESSMENT ORDER NOR IN PENALT Y ORDER THE LEARNED A.O. HAS OBSERVED THAT APPELLANT'S EXPLANAT ION LACKED BONA-FIDE OR THAT THEY WERE FALSE OR REMAINED UNSUB STANTIATED. THESE ARE PRIMARY REQUISITES TO BRING A CASE WITHIN NET OF EXPLANATION TO SECTION 271(L)(C). THE ONLY OBSERVAT ION OF LEARNED A.O. IN THIS REGARD IS IN THE LAST PARAGRAPH IN THE ASSESSMENT ORDER WHEREIN HE SAYS THAT EXPLANATION OF THE ASSESSEE IS VAGUE, UNACCEPTABLE OR UNSATISFACTORY. THESE OBSERVATIONS ARE NOT SUFFICIENT TO CHARGE THE ASSESSEE IN QUASI CRIMINAL PROCEEDINGS LIKE PENALTY. THE APPELLANT'S RELIANCE IN THIS REGARD ON JURISDICTIONAL HIGH COURT DECISION IN CASE OF NATIONAL TEXTILES 24 9 ITR 125 SQUARELY COVERS THIS SITUATION IN HIS FAVOUR WHERE THE HON'BLE COURT OBSERVED THAT IF FACT IS UNPROVED BUT NOT DIS PROVED NO PENALTY U/S. 271(L)(C) CAN BE LEVIED. I.T.A.NO.2186-89 /AHD/2007 I.T.A.NO. 332/AHD/2006 I.T.A.NO. 807/AHD/2008 13 FURTHER, THE LEARNED A.O. HAS ONLY HINTED AT THE PO SSIBILITY OF UNDISCLOSED INCOME HAVING BEEN DECLARED AS AGRICULT URAL INCOME IN THE CONCLUDING PART ON THAT ISSUE IN HIS ASSESSMENT ORDER. ONCE AGAIN THIS IS ALSO NOT SUFFICIENT TO CHARGE ASSESSE E WITH PENALTY AS THE POSSIBILITIES CANNOT BE A SUBSTITUTE FOR CONCRE TE PROOF OR ACTUAL HAPPENINGS. (V) LASTLY, THEREFORE, THE BASIC- CONTENTIO N OF THE APPELLANT THAT ENTIRE EXERCISE OF ESTIMATING AGRICULTURAL INC OME BASED ON SOME AVERAGE AND ESTIMATED DATA OF AGRICULTURAL DAT A OF STATISTICAL DEPARTMENT IS PURELY AN EXERCISE ON ESTIMATION AND NO PENALTY CAN BE LEVIED U/S. 271(L)(C) AND IT HAS TO BE ACCEPTED THAT THE ADDITIONS MADE ARE ONLY ON THE BASIS OF ESTIMATES. THE APPELL ANT'S RELIANCE ON THE FOLLOWING CASES REFERRED TO IN HIS FIRST SUBMIS SION DATED 26-10- 2007 ALSO SUPPORTS THE SAME. (A) CIT VS. SUBHASH TRADING CO. (GUJ.) 221 ITR 110 (B) HARIGOPAL SINGH VS. CIT (P & H) 258 ITR 85 (C) CIT VS. METAL PRODUCTS OF INDIA (P & H) 150 ITR 714 (D) CIT VS. M.M. RICE MILLS (P & H) 253 ITR 17 (C) CIT VS. BHOJ RAJ & CO. (P & H) 247 ITR 696 (F) CIT VS. HARNAM SINGH & CO. (ALLAHABAD) 106 ITR 532 (G) ADDL. CIT VS. HARILAL KUNJ BEHARILAL (ALLAHABAD ) 106 ITR 720 (H) SAHYOG SAHKARI SHRAM SAMVIDA SAMITI LTD. VS. AC IT (LUCKNOW) 111 TTJ 540 (G) DILIP N. SHROFF VS. JT. C.I.T., 281 ITR 519 . 15. ALTHOUGH, IN THE QUANTUM PROCEEDINGS, WE HAD RE DUCED THE ADDITION IN RESPECT OF THE AGRICULTURAL INCOME BUT EVEN FOR THE PART OF ADDITION CONFIRMED BY US, WE ARE SATISFIED THAT FOR THE REASON RECODED BY THE LD. CIT(A), PENALTY IS NOT JUSTIFIED IN THE PRE SENT CASE BECAUSE SINCE THE INTEREST EXPENDITURE IS ALLOWED UNDER THE HEAD INCOME FROM OTHER SOURCES AND SUCH LOSS UNDER THIS HEAD IS SET OFF, T HERE WILL BE VERY SMALL AMOUNT OF INCOME LEFT AND EVEN SUCH ADDITION IS ALS O ON ESTIMATED BASIS BECAUSE PART OF THE CLAIM OF THE ASSESSEE REGARDING QUANTUM OF AGRICULTURAL INCOME WAS DISALLOWED ON ESTIMATE BASI S AND HENCE WE FEEL THAT ALTHOUGH PART ADDITION IS CONFIRMED BY US, ON THIS ACCOUNT PENALTY IS I.T.A.NO.2186-89 /AHD/2007 I.T.A.NO. 332/AHD/2006 I.T.A.NO. 807/AHD/2008 14 NOT JUSTIFIED. WE, THEREFORE, UPHOLD THE ORDER OF LD. CIT(A). IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. 16. IN THE REMAINING FOUR APPEALS OF THE ASSESSEE F OR THE ASSESSMENT YEARS 1997-98 TO 2000-01, WE FIND THAT ONE OF THE I SSUE INVOLVED IS REGARDING ESTIMATION OF AGRICULTURAL INCOME WHICH I S ESTIMATED BY THE A.O. AT RS.1.50 LACS FOR ASSESSMENT YEAR 1997-98, R S.2.40 LACS FOR ASSESSMENT YEAR 1998-99 AND 1999-2000 EACH AND RS.2 LACS FOR ASSESSMENT YEAR 2000-01. SINCE IN ASSESSMENT YEAR 2001-02, WE HAVE HELD THAT AGRICULTURAL INCOME SHOULD BE ASSESSED AT RS.2.50 LACS, IN THE EARLIER FOUR YEARS, WE FEEL THAT THIS AMOUNT ESTIMA TED BY THE A.O. IS REASONABLE AND IN OUR CONSIDERED OPINION, NO INTERF ERENCE IS CALLED FOR IN THIS ORDER OF LD. CIT(A) ON THIS ISSUE IN ALL THESE FOUR YEARS. HENCE, THIS ISSUE IS DECIDED AGAINST THE ASSESSEE IN ALL THE FO UR YEARS. 17. IN ASSESSMENT YEAR 1997-98, THERE IS NO OTHER G ROUND RAISED BY THE ASSESSEE. 18. IN ASSESSMENT YEAR 1998-99 AND 1999-2000, THE S ECOND ISSUE IS REGARDING DISALLOWANCE OF INTEREST OF RS.1,50,300/- IN EACH YEAR. IN THESE TWO YEARS ALSO, DISALLOWANCE OF INTEREST IS MADE ON THIS BASIS THAT INTEREST BEARING BORROWED FUNDS WERE USED FOR MAKING INVESTM ENT IN SHARES. IN THESE TWO YEARS ALSO, BENEFIT WAS ALLOWED BY THE A. O. IN RESPECT OF CAPITAL OF THE ASSESSEE AND ONLY FOR THE EXTRA INVESTMENT, DISALLOWANCE WAS MADE BY THE A.O. IN ASSESSMENT YEAR 2001-02, THIS ISSUE HAS BEEN DECIDED BY US AGAINST THE ASSESSEE AS PER PARA 11 ABOVE AND ON THE SAME LINES, IN THESE TWO YEARS ALSO, THIS ISSUE IS DECIDED AGAINST THE ASSESSEE. 19. IN ASSESSMENT YEAR 2000-01 ALSO, THE A.O. MADE DISALLOWANCE OF RS.5.50 LACS ON THE SAME BASIS THAT INTEREST BEARIN G BORROWED FUNDS WERE USED FOR MAKING INVESTMENT IN SHARES. IN THIS YEAR ALSO, DISALLOWANCE OF INTEREST IS MADE IN RESPECT OF EXTRA INVESTMENT OVE R AND ABOVE THE BALANCE I.T.A.NO.2186-89 /AHD/2007 I.T.A.NO. 332/AHD/2006 I.T.A.NO. 807/AHD/2008 15 IN CAPITAL ACCOUNT. IN LINE WITH OUR DECISION IN A SSESSMENT YEAR 2001-02, IN THIS YEAR ALSO, THIS ISSUE IS DECIDED AGAINST TH E ASSESSEE. 20. IN THE COMBINED RESULT, APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2001-02 IS PARTLY ALLWOED, APPEAL OF THE REVEN UE IN PENALTY PROCEEDINGS FOR THE ASSESSMENT YEAR 2001-02 IS DISM ISSED AND THE REMAINING FOUR APPEALS OF THE ASSESSEE FOR THE ASSE SSMENT YEAR 1997-98, 1998-99, 1999-2000 AND 2000-01 ARE PARTLY ALLWOED. 21. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (MUKUL KUMAR SHRAWAT) (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 25/01 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27/01.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 31/01 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.31/1 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 31/01/2012 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. .