A.C.I.T.-3, Mathura V. Sh. Banwari Lal Agarwal, Mathura

ITA 335/AGR/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2109 (ITAT-AGRA)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 30-04-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 19-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Assessee Lawyers: SHRI
• Section: 68; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.335/AGRA/2012 ASSESSMENT YEAR: 2003-04 ASSTT. COMMISSIONER OF INCOME TAX -3, VS. SHRI BAN WARI LAL AGRAWAL, MATHURA. 57, HOLI WALI GALI, MATHURA. (PAN : ABDPA 7865 K). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.K. MISHRA, JR. D.R. RESPONDENT BY : SHRI PANKAJ GARGH, ADVOCATE DATE OF HEARING : 30.04.2013 DATE OF PRONOUNCEMENT : 10.05.2013 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 15.02.2012 PASSED BY THE LD. CIT(A)-I, AGRA FOR THE ASSESSMENT YEAR 2003-04. 2. THE REVENUE HAS RAISED THE FOLLOWING EFFECTIVE G ROUND OF APPEAL :- THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEA LS)-1, AGRA HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN DELETING THE ADDITION OF RS.16,30,408/- MADE BY TREATING AGRICUL TURAL INCOME AS 2 ITA NO.335/AGRA/2012 A.Y. 2003-04 INCOME FROM OTHER SOURCES AS ENVISAGED IN SECTION 6 8 OF THE I.T. ACT, 1961, WITHOUT APPRECIATING THE FACTS THAT THE REPOR T OF TWO GOVERNMENT DEPARTMENTS AND THE STATEMENT OF A WITNE SS SHRI BHUPENDA SINGH, AGRICULTURIST WERE CONTRARY TO THE ASSESSEES ASSERTIONS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS CLAIMED AGRICULTURAL INCOME OF RS.20,23,208/- I.E. HIS OWN AGRICULTURAL INCOME OF RS.9,13,312/- AND OF MINOR SON PRAMOD KUMAR RS.11,09,895/-. THE A.O. MA DE ENQUIRY FROM DISTRICT HORTICULTURE OFFICER, MATHURA AND FOUND THAT REASON ABLENESS OF AGRICULTURAL INCOME FROM THE PRODUCTION OF POTATO CROP IS FROM 250 TO 4 00 QUINTALS PER HECTARE DEPENDING UPON THE WHETHER CONDITION, FERTILIZER, A DEQUATE QUALITY/QUANTITY OF SEED AND TIMELY SOWING OF CROP. AFTER ALLOWING EXPENDIT URES, AGRICULTURAL INCOME IS ESTIMATED AT RS.41,826/-. THE A.O. AFTER CONSIDERI NG ASSESSEES SUBMISSION FOUND THAT THE NET POSSIBLE AGRICULTURAL INCOME SHOULD BE RS.50,000/- PER HECTARE FROM PRODUCTION OF POTATO SHOWN. THE NET AGRICULTURAL I NCOME DURING THE A.Y. 2003-04 IS RS.2,89,000/-. THE A.O. ADOPTED RATE OF RS.50,0 00/- PER HECTARE AND CALCULATED TOTAL AGRICULTURAL INCOME HOLDING THE AGRICULTURAL LAND OF SELF AND MINOR MEASURING AT 7.85 HECTARES OF WHICH CALCULATION COMES TO RS.3 ,92,800/- AS AGAINST RS.20,23,200 SHOWN BY THE ASSESSEE. THE A.O. ACCOR DINGLY MADE THE ADDITION OF RS.16,30,408/- ACCEPTING THE AGRICULTURAL INCOME @ RS.50,000/- PER HECTARE. 3 ITA NO.335/AGRA/2012 A.Y. 2003-04 4. IN ORIGINAL ROUND OF LITIGATION, THE CIT(A) DELE TED THE ADDITION AGAINST WHICH THE REVENUE FILED APPEAL BEFORE THE TRIBUNAL AND SE NT BACK THE MATTER TO THE FILE OF CIT(A) IN ITA NO.147/AGR/2010 VIDE ORDER DATED 30.0 6.2011. THE RELEVANT FINDING OF THE I.T.A.T. IS REPRODUCED AS UNDER :- 4. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER. REGARDING THE GRI EVANCE OF THE DEPARTMENT ON THE DELETION IN DISPUTE, THE BENCH HA S ASKED THE LD. DEPARTMENTAL REPRESENTATIVE TO SUPPLY THE ORDER DAT ED 19.12.2008 PASSED BY THIS BENCH IN THE CASE OF JITENDRA KR. AG ARWAL AND SHAILENDRA KR. AGARWAL, WHICH HAS BEEN MENTIONED BY THE LD. CIT(A) IN THE IMPUGNED ORDER AT PARAGRAPH NOS.8 & 9 AND DE LETED THE ADDITION IN DISPUTE, BUT HE FAILED TO PRODUCE THE S AME. WE ARE OF THE VIEW THAT THIS IS THE ONLY MAIN EVIDENCE RELIED BY THE CIT(A) IN DELETING THE ADDITION IN DISPUTE AND THE SAME IS NO T AVAILABLE WITH THE LD. DEPARTMENTAL REPRESENTATIVE. IN ABSENCE OF THE SAME, WE FEEL DIFFICULTY TO DECIDE THE ISSUE IN DISPUTE. EVEN TH E CIT(A) HAS ALSO NOT GIVEN FULL PARTICULARS OF THE ITA NUMBERS AND ASSES SMENT YEARS RELATING TO THE ORDER PASSED BY THE ITAT, AGRA DATE D 19.12.2008. THE ASSESSEE IS ALSO NOT INTERESTED TO PROSECUTE THE MA TTER. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE IMPUGNED ORDER TO THE LD. FIRST APPELLATE AUTHORITY TO DECIDE THE ISSUE IN DISPUTE AFRESH UNDER LAW AFTER GIVING OPPORTUNITY TO THE ASSESSEE AND MENTIO NING THE DETAILS OF ORDERS RELIED IN THE IMPUGNED ORDER. 5. IN COMPLIANCE TO THE DIRECTIONS OF THE I.T.A.T., THE CIT(A) DELETED THE ADDITION AS UNDER :- (PAGE NOS.12, 13, 14 & 15) AFTER DISCUSSING THE FACTS OF THE CASE OF SHRI JIT ENDRA KUMAR AGARWAL, NOW IT HAS BEEN EXAMINED WHETHER THE FACT OF THE CASE OF THE ASSESSEE IN PRESENT APPEAL IS SIMILAR TO THE ABOVE FACTS. I HAVE FOUND THAT SIMILAR TO THE FACT OF THE CASE OF JITENDRA KU MAR AGARWAL, IN CASE 4 ITA NO.335/AGRA/2012 A.Y. 2003-04 OF THE ASSESSEE IN THE PRESENT APPEAL, THE AO HAS C ALLED FOR REPORT OF CPRI, MEERUT AND DISTRICT HORTICULTURE OFFICER, MAT HURA. THE REPORT OF BOTH THE GOVERNMENT AGENCIES IN THIS CASE HAS AL SO BEEN FOUND TO BE A INDICATIVE REPORT AND IT HAS BEEN MENTIONED IN THESE REPORT THAT THE VALUE GIVEN BY THEM ARE APPROXIMATE AS IT WAS O BSERVED BY THE HONBLE ITAT, AGRA IN CASE OF JITENDRA KUMAR AGARWA L BEING GENERAL AND VAGUE IN NATURE. AS THE REPORT OF CPRI, MEERUT AND DISTRICT HORTICULTURE OFFICER, MATHURA WAS SUBMITTED WITHOUT VISITING THE FIELD OF THE ASSESSEE TO FIND OUT THE ACTUAL CONDITION UN DER WHICH THE POTATOES WERE GROWN BY HIM AND THE NUMBER OF CROP W ERE PRODUCED, WHETHER IT WAS SINGLE CROP OR MULTIPLE CROP, THESE REPORTS ARE NOT RELIABLE AS HELD BY THE HONBLE ITAT IN CASE OF JIT ENDRA KUMAR AGARWAL. IN THE ASSESSMENT ORDER, THE AO HAS NOT B ROUGHT ANY EVIDENCE ON RECORD EXCEPT A GENERAL REPORT OF CPRI AND DISTRICT HORTICULTURE OFFICER, MATHURA AND ONE STATEMENT OF A FARMER TO SHOW THAT THE PRODUCTION SHOWN BY THE ASSESSEE WAS LESS THAN WHAT WAS SHOWN BY HIM. EVEN AFTER MAKING VERIFICATION OF TH E SALE OF POTATOES AS SHOWN BY THE ASSESSEE, THESE SALES WERE IN GENER AL GOT VERIFIED AS DISCUSSED IN THE ASSESSMENT ORDER AND AS DISCUSSED BY MY PREDECESSOR CIT(A)-I, AGRA IN HER ORDER DATED 18.2.2010 ALSO. EVEN AFTER GETTING THE SALES OF THE ASSESSEE VERIFIED, THE AO FOUND TH AT THESE SALES WERE MADE TO DISTANT PLACE AS AJMER, BOMBAY, JAIPUR ETC. AND HENCE, HE CONCLUDED THAT SUCH SITUATION INDICATES SOMETHING S USPICIOUS ON THE PART OF THE ASSESSEE AND THEREFORE, HE DID NOT ACCE PT THE DETAILS OF SALES SHOWN BY THE ASSESSEE. THE AO HAS EVEN VERIF IED THE STORAGE OF POTATOES IN COLD STORAGE, WHICH WAS GOT DULY VERIFI ED AFTER PRODUCING THE PERSON WHO WAS RUNNING THE COLD STORAGE BUT NOT ICING CERTAIN DISCREPANCIES IN THE PAYMENT OF RENT, HE DID NOT RE LY ON THE DOCUMENTARY EVIDENCE OF COLD STORAGE PRODUCED BEFOR E HIM. AS REGARDS TO THE STATEMENT OF ONE FARMER SHRI BHUPEND RA SINGH, IT HAS BEEN FOUND THAT HIS LAND IS NOT NEAR TO THE LAND OF THE ASSESSEE AND ALSO, IT HAS NOT BEEN SHOWN BY THE AO THAT THE POTA TOES WERE BEING CULTIVATED IN THE LAND OF SHRI BHUPENDRA SINGH UNDE R THE SIMILAR CONDITION AND GROWING THE SAME NUMBER OF CROPS AS I T WAS BEING DONE BY THE ASSESSEE. I HAVE ALSO FOUND THAT AS AGAINST THE INCOME OF RS.85,000/- TO RS.90,000/- PER HECTARE ADMITTED BY SHRI BHUPENDRA SINGH, THE INCOME OF SHRI JITENDRA KUMAR AGARWAL IS COMING TO RS.2,72,996/- PER HECTARE BY GROWING MULTIPLE CROP OF POTATOES AND THE SAME HAS BEEN ACCEPTED BY THE HONBLE ITAT, AGR A. WHILE 5 ITA NO.335/AGRA/2012 A.Y. 2003-04 ACCEPTING THE INCOME SHOWN BY SHRI JITENDRA KUMAR A GARWAL, THE HONBLE ITAT, AGRA HAS ALSO OBSERVED THAT IN CONNEC TED CASE OF MURARI LAL, YIELDS OF 55.57 TON PER HECTARE WAS ACC EPTED BY THE SAME AO, THEREFORE, QUESTION ARISES IF THE YIELD OF 55.5 7 TON PER HECTARE IN CASE OF MURARI LAL IS ACCEPTED BY THE AO, WHY IT CA NNOT BE ACCEPTED IN OTHER CASES LIKE IN CASE OF JITENDRA KUMAR AGARW AL AND IN CASE OF THE PRESENT ASSESSEE. IT HAS ALSO BEEN EXPLAINED T O ME THAT THE LAND OF SHRI BANWARI LAL AGARWAL (ASSESSEE IN THE APPEAL) A ND SHRI JITENDRA KUMAR AGARWAL ARE NEARBY AND THEY ARE BEING CULTIVA TED IN THE SIMILAR CONDITION OF GROWING MULTIPLE CROP OF POTAT OES. THEREFORE, I FIND THAT THE FACTS OF THE CASE OF BANBWARI LAL (TH E ASSESSEE IN THIS APPEAL) ARE SIMILAR TO THE FACTS OF CASE OF SHRI JI TENDRA KUMAR AGARWAL RATHER THAN BEING SIMILAR TO THE FACTS OF S HRI BHUPENDRA SINGH, WHICH IS THE ONLY ONE STATEMENT RECORDED BY THE AO BUT THAT MAY NOT BE RELEVANT FOR THE CASE OF THE ASSESSEE (A PPELLANT). OTHER EVIDENCE IN FORM OF THE REPORT OF CPRI, MEERUT AND DISTRICT HORTICULTURE OFFICER, MATHURA COLLECTED BY THE AO H AS ALREADY BEEN HELD AS GENERAL AND VAGUE IN NATURE BY THE HONBLE ITAT AGRA IN CASE OF JITENDRA KUMAR AGARWAL AND HENCE, IN THE CASE OF ASSESSEE ALSO, THESE REPORTS CANNOT RELIED UPON. 8.2 THERE ARE CERTAIN MINOR COMPUTATION ERRORS IN C OMPUTATION OF YIELD IN THE APPEAL ORDER OF MY PREDECESSOR AND THE SAME HAS BEEN POINTED BY THE LD. AR IN HIS WRITTEN SUBMISSION. B EFORE, FINALLY DECIDING THE ISSUE IN DISPUTE IN THIS CASE, THESE C OMPUTATION ERRORS ARE ALSO DISCUSSED HERE. AS FAR AS THE INCOME PER HECT ARE COMPUTED BY THE ASSESSEE IN THE CASE OF JITENDRA KUMAR AGARWAL COMING TO RS.2,72,996/- AFTER TAKING AREA OF LAND 3.117 HECTA RE AND TOTAL AGRICULTURE INCOME OF RS.8,50,997/- AS AGAINST THE AREA OF 3.117 HECTARE AND TOTAL AGRICULTURE INCOME OF RS.10,86,61 0/- TAKEN BY MY PREDECESSOR LD. CIT(A)-I, AGRA IN HER ORDER DATED 18.02.2010 IS CONCERNED, I FIND THAT THE LD. AR IS CORRECT IN POI NTING OUT THE MISTAKE BECAUSE THE INCOME OF RS.8,50,997/- HAS BEEN MENTIO NED IN THE ORDER OF HONBLE ITAT IN CASE OF JITENDRA KUMAR AGARWAL. THEREFORE, ON THE BASIS OF FIGURE OF AREA AND AGRICULTURE INCOME MENTIONED BY THE LD. AR IN HIS WRITTEN SUBMISSION, CORRECT AMOUNT OF INCOME PER HECTARE WOULD COME TO RS.2,72,996/-. SIMILARLY IN CASE OF SHAILENDRA KUMAR AGARWAL AFTER COMPARING FIGURE OF AREA AND TO TAL AGRICULTURE INCOME TAKEN FROM THE ORDER OF HONBLE ITAT PASSED IN CASE OF 6 ITA NO.335/AGRA/2012 A.Y. 2003-04 SHAILEDNDRA KUMAR AGARWAL, I FIND THAT THE LD. AR H AS CORRECTLY COMPUTED INCOME PER HECTARE AT RS.2,19,044/-. AS R EGARDS TO THE MEASUREMENT OF AREA OF THE ASSESSEE, MENTIONED BY T HE LD. AR AS 9.459 HECTARE AS AGAINST 7.855 HECTARE WRITTEN IN T HE ORDER OF MY PREDECESSOR LD. CIT(A)-I, AGRA IN HER ORDER DATED 1 8.2.2010 IS CONCERNED, I HAVE VERIFIED FROM THE CASE RECORD AND FOUND THAT EVEN THE AO HAS COMPUTED THE LAND HOLDING OF THE ASSESSE E AS 7.855 HECTARE. THEREFORE, I HAVE NOT FOUND ANY DISCREPAN CY IN THE LAND HOLDING AS MENTIONED IN THE ASSESSMENT ORDER AND AS MENTIONED IN THE ORDER OF CIT(A). HOWEVER, DESPITE TAKING THE MEASU REMENT OF LAND AT 7.855 HECTARE, THE INCOME OF THE APPELLANT PER HECT ARE WOULD COME TO RS.2,57,569/- (20,23,269/7.855) WHICH IS STILL LESS THAN INCOME PER HECTARE COMPUTED IN CASE OF JITENDRA KUMAR AGARWAL. 8.3 IN VIEW OF ABOVE FINDINGS, IF UNDER SIMILAR CON DITION OF CULTIVATION OF POTATOES, THE INCOME SHOWN BY SHRI J ITENDRA KUMAR AGARWAL HAS BEEN ACCEPTED BY THE HONBLE ITAT, AGRA , I FIND THAT THE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE IN PRESEN T APPEAL SHOULD ALSO BE ACCEPTABLE AS HELD BY MY PREDECESSOR LD. CI T(A)-I, AGRA IN HER ORDER DATED 18.02.2010. AFTER EXAMINING ALL TH E FACTS OF THE ASSESSEE IN THE PRESENT APPEAL AND FACTS OF THE CAS E OF SHRI JITENDRA KUMAR AGARWAL AS DISCUSSED IN PARA NO.7 AND TAKING INTO ACCOUNT THE DECISION OF THE HONBLE ITAT, AGRA THAT THE REPORT OF CPRI IS GENERAL REPORT, WHICH IS NOT JUSTIFIED IN LAW, I HOLD THAT THE AO IS NOT JUSTIFIED IN TREATING THE AMOUNT OF RS.16,30,408/- AS INCOME FROM OTHER SOURCES, WHICH WAS SHOWN BY THE ASSESSEE A AGRICULT URE INCOME AND THEREFORE, THE ADDITION OF RS.16,30,408/-A AS INCOM E FROM OTHER SOURCE IS DELETED AS DECIDED BY MY PREDECESSOR CIT( A)-I, AGRA ALSO, THEREFORE, THE ISSUE IN DISPUTE IS DECIDED IN FAVOU R OF THE ASSESSEE. 6. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND RECORDS PERUSED. THIS IS SECOND ROUND OF LITIGATION. IN THE FIRST R OUND OF LITIGATION, THE I.T.A.T. IN ITA NO.147/AGR/2010 VIDE ORDER DATED 30.06.2011 SEN T BACK THE MATTER TO THE FILE OF CIT(A), THE RELEVANT FINDING HAS BEEN REPRODUCED IN PARAGRAPH NO.4 OF THIS 7 ITA NO.335/AGRA/2012 A.Y. 2003-04 ORDER. ON PERUSAL OF DIRECTION OF THE I.T.A.T. IN EARLIER ROUND OF LITIGATION, WE NOTICE THAT THE CIT(A) IN THE FIRST ROUND OF LITIGA TION WHILE DELETING THE ADDITION FOLLOWED THE ORDER OF I.T.A.T. IN CASE OF SHRI JITE NDRA KUMAR AGARWAL AND SHRI SHAILENDRA KUMAR AGARWAL. SINCE THE LD./ DEPARTMEN TAL REPRESENTATIVE FAILED TO PRODUCE ORDER DATED 19.12.2008 PASSED BY I.T.A.T. I N THE CASE OF SHRI JITENDRA KUMAR AGARWAL AND SHRI SHAILENDRA KUMAR AGARWAL WHI CH HAS ALSO BEEN MENTIONED BY THE CIT(A) IN HIS ORDER AT PARA NOS.8 & 9 BEFORE DELETING THE ADDITION AND THE MATER WAS SENT ABACK TO THE FILE OF CIT(A). THUS, THE DIRECTION OF THE I.T.A.T. IN EARLIER ROUND OF LITIGATION WAS TO DECI DE THE ISSUE IN ACCORDANCE WITH ORDER OF I.T.A.T. DATED 19.12.2008 IN THE CASE OF S HRI JITENDRA KUMAR AGARWAL AND SHRI SHAILENDRA KUMAR AGARWAL. WE NOTICE THAT THE CIT(A) IN THE IMPUGNED ORDER EXAMINED THE ORDER OF I.T.A.T. IN CASE OF SHRI JITE NDRA KUMAR AGARWAL AND FOUND THAT THE FACTS OF THE CASE UNDER CONSIDERATION AND THE FACTS OF THE CASE OF SHRI JITENDRA KUMAR AGARWAL WAS SIMILAR. THE CIT(A), AF TER CONSIDERING THE ORDER OF I.T.A.T. IN CASE OF SHRI JITENDRA KUMAR AGARWAL, FO UND THAT THE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE IN THE PRESENT APPEAL SHOULD ALSO BE ACCEPTABLE. THE CIT(A) HAS ALSO HELD THAT THE A.O. IS NOT JUSTIFIED IN TREATING THE AMOUNT OF RS.16,30,408/- AS INCOME FROM OTHER SOURCES WHICH W AS SHOWN BY THE ASSESSEE AS AGRICULTURAL INCOME. THE CIT(A) HAS ALSO EXAMINED THE ESTIMATION OF THE AGRICULTURAL INCOME PER HECTARE AND FOUND THAT THE ASSESSEE WAS HOLDING 7.855 8 ITA NO.335/AGRA/2012 A.Y. 2003-04 HECTOR AGRICULTURAL LAND AND ESTIMATED AGRICULTURAL INCOME OF RS.2,57,569/- PER HECTARE. IN THE CASE UNDER CONSIDERATION WHICH IS STILL LESS THAN THE INCOME PER HECTARE COMPUTED IN CASE OF SHRI JITENDRA KUMAR AGA RWAL. THE ORDER OF CIT(A) IS IN CONSONANCE WITH THE ORDER OF I.T.A.T. IN THE CAS E OF SHRI JITENDRA KUMAR AGARWAL AND DIRECTION GIVEN BY I.T.A.T. IN FIRST RO UND OF LITIGATION. THE REVENUE HAS FAILED TO POINT OUT ANY CONTRARY MATERIAL. WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). ORDER OF CIT(A) IS CONFIRMED. 7. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY