Shri Udayrajsinh S.Chauhan, Ahmedabad V. The Income tax Officer,Ward-11(2), Ahmedabad

ITA 3378/AHD/2010

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6038 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 19-06-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 22-12-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: P B PARMAR

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD .., ! ! ! ! ' #$, BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER !./ I.T.A. NO.3378/AHD/2010 ( & '& & '& & '& & '& / / / / ASSESSMENT YEAR : 2007-08) SHRI UDAYRAJSINH S.CHAUHAN 3, BHARAT NIWAS UDHYAN MARG ELLISBRIDGE, AHMEDABAD / VS. THE ITO WARD-11(2) AHMEDABAD ( !./)* !./ PAN/GIR NO. : ABZPC 2291 D ( (+ / // / APPELLANT ) .. ( ,-(+ / RESPONDENT ) (+ . / APPELLANT BY : SHRI P.B. PARMAR ,-(+ / . / RESPONDENT BY : SHRI P.L. KUREEL, SR.DR ' 0 / $1 / / / / DATE OF HEARING : 19/06/2014 23' / $1 / DATE OF PRONOUNCEMENT : 27/06/2014 4 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-XVI, AHMEDAB AD (CIT(A) IN SHORT) DATED 22/10/2010 PERTAINING TO ASSESSMEN T YEAR (AY) 2007-08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING THE ACTION OF LD.AO IN TREATING AGRICULTURE INCOME OF R S.10,15,830/- AS INCOME FROM OTHER SOURCES. 2. BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON THE FACTS OF THE CASE IN NOT APPRECIATING THE FACT THAT THE AGRICULTURE INCO ME IS THE ONLY SOURCE OF ITA NO.3378/AHD /2010 SHRI UDAYRAJSINH S. CHAUHAN VS. ITO ASST.YEAR 2007-08 - 2 - INCOME OF THE APPELLANT AND UNDER NO CIRCUMSTANCES AGRICULTURE INCOME CANNOT BE TREATED AS INCOME FROM OTHER SOURCES. 3. BOTH THE LOWER AUTHORITIES HAVE PASSED THE ORDERS W ITHOUT PROPERLY APPRECIATING THE FACT AND THAT THEY FURTHER ERRED I N GROSSLY IGNORING VARIOUS SUBMISSIONS, EXPLANATIONS AND INFORMATION S UBMITTED BY THE APPELLANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEE N CONSIDERED BEFORE PASSING THE IMPUGNED ORDER. THIS ACTION OF THE LOW ER AUTHORITIES IS IN CLEAR BREACH OF LAW AND PRINCIPLES OF NATURAL JUSTI CE AND THEREFORE DESERVES TO BE QUASHED. 4. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONF IRMING THE ACTION OF LD.AO IN CHARGING INTEREST U/S.234B/C/D OF THE ACT. 5. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONF IRMING THE ACTION OF LD.AO IN INITIATING PENALTY PROCEEDINGS U/S.271(1)( C) OF THE ACT. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, ED IT, DELETE, MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL AT THE T IME OF OR BEFORE THE HEARING OF THE APPEAL. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 29/12/2009, THEREBY THE ASSESSING OFFICER (AO IN SHORT) MADE ADDITION OF RS.10,15,830/- TREATING THE AGRICULTURA L INCOME DECLARED BY THE ASSESSEE AS INCOME FROM OTHER SOURCES. AGAINST THIS, THE ASSESSEE FILED AN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CON SIDERING THE SUBMISSIONS CONFIRMED THE ADDITION MADE BY THE AO A ND DISMISSED THE APPEAL. 3. THE LD.COUNSEL FOR THE ASSESSEE SHRI P.B.PARMAR MADE ORAL SUBMISSIONS AS WELL AS PLACED A CHART HAVING SYNOPS IS. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE ASSESSEE OWNS AGRICULTURAL INCOME JOINTLY WITH HIS FATHER ADMEASURING 39 ACRES OF LAND. HE SUBMITTED THAT I N REVENUE RECORDS IT IS RECORDED THAT ON THE LAND IN QUESTION VARIOUS KINDS OF CROPS ARE BEING ITA NO.3378/AHD /2010 SHRI UDAYRAJSINH S. CHAUHAN VS. ITO ASST.YEAR 2007-08 - 3 - GROWN AND THERE ARE MANGO TREES ALSO. THE LD.COUNS EL FOR THE ASSESSEE SUBMITTED THAT THE AO DID NOT CONSIDER THE SUBMISSI ONS OF THE ASSESSEE IN RIGHT PERSPECTIVE AND PROCEEDED TO TREAT THE AGRICU LTURAL INCOME AS INCOME FROM OTHER SOURCES. HE SUBMITTED THAT THE L D.CIT(A) ALSO IN A MECHANICAL WAY DISMISSED THE APPEAL WITHOUT APPRECI ATING THE FACTS IN RIGHT PERSPECTIVE. 3.1. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE DID NOT PLACE ANYTHING ON RECORD TO SUBSTANTIATE HIS CLAIM. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE LD.COUNSEL FOR THE ASSESSEE HAS DRAWN OUR ATTEN TION TO THE FACT THAT IN EARLIER YEARS, THE AGRICULTURAL INCOME AS DECLARED BY THE ASSESSEE HAS BEEN ACCEPTED. THE LD.COUNSEL FOR THE ASSESSEE HAS ALSO DRAWN OUR ATTENTION TOWARDS PAGE NOS.22 & 23 OF THE PAPER-BOOK, WHEREIN EXTRACT OF FORM NO. 7/12 ARE ENCLOSED IN SUPPORT OF THE CONTENTION THAT THE ASSESSEE IS AN OWNER OF THE LAND AND ALSO LAND IS UTILIZING FOR AG RICULTURAL PURPOSES. TO BUTTRESS HIS ARGUMENT THAT THE PRODUCE WAS, IN FACT , SOLD BY THE ASSESSEE, THE LD.COUNSEL FOR THE ASSESSEE HAS DRAWN OUR ATTEN TION TOWARDS PAGE NOS.12, 13, 14 & 15 OF THE PAPER-BOOK, WHEREIN A CO NTRACT NOTE WAS ENCLOSED. WE FIND THAT THE AO IN THE ASSESSMENT ORDER HAS GIVEN A FINDING THAT NO DOCUMENT HAS BEEN FILED BY THE ASSE SSEE IN SUPPORT OF THE CLAIM OF THE AGRICULTURAL INCOME. THE LD.CIT(A) IN PARAGRAPH NO.3.2 OF HIS ORDER RECORDED THE OBSERVATION OF THE AO THAT T HE TOTAL AMOUNT OF ITA NO.3378/AHD /2010 SHRI UDAYRAJSINH S. CHAUHAN VS. ITO ASST.YEAR 2007-08 - 4 - CONTRACT WAS RS.19,85,500/-, THE DOCUMENTS ARE PRE PARED BY ONE PERSON AND ARE NOT SUPPORTED BY ANY INDEPENDENT DOCUMENTAR Y EVIDENCE. THE LD.CIT(A) HAS ALSO RECORDED THE SUBMISSION OF THE A SSESSEE, WHEREIN HE STATED THAT THE APPELLANT HAD ALREADY SUBMITTED A C ERTIFICATE FROM THE TALATI OF THE VILLAGE WHERE THE AGRICULTURE LAND O F THE APPELLANT IS SITUATED AND THE TALATI HAS CONFIRMED THAT VARIOUS CROPS AS MENTIONED IN THE CERTIFICATE WERE GROWN ON THE SAID LAND. HOWEV ER, THE LD.CIT(A) DISCARDED THE EVIDENCES PRODUCED BY THE APPELLANT-A SSESSEE IN THE FORM OF CONTRACT NOTES AND A CERTIFICATE FROM THE TALATI AND CONFIRMED THE ADDITION. HENCE, THE UNDISPUTED FACT EMERGES FROM THE RECORD THAT THE ASSESSEE PLACED ON RECORD THE EVIDENCES IN SUPPORT OF HIS CLAIM FOR AGRICULTURE INCOME, IN THE FORM OF REVENUE RECORD S UGGESTING THE OWNERSHIP OF THE LAND AND ALSO THE CROPS WERE GROWN UP ON THE LAND. THE ASSESSEE HAS ALSO PLACED ON RECORD CONTRACT NOTES A ND A CERTIFICATE FROM THE TALATI OF VILLAGE IN SUPPORT OF THE CONTENTION THAT THE AGRICULTURAL INCOME WAS, IN FACT, EARNED BY THE ASSESSEE. NONE OF THE AUTHORITY HAS SUMMONED THE TALATI OF THE VILLAGE OR THE PERSONS WITH WHOM THE ASSESSEE HAS ENTERED INTO CONTRACT TO FIND OUT WHET HER SUCH CERTIFICATE WAS ISSUED AND THE CONTRACT WAS IN FACT EXECUTED WITH T HOSE PERSONS. BOTH THE AUTHORITIES CHOSE TO REJECT THE CLAIM OF THE ASSESS EE FOR MAKING ADDITION. SUCH APPROACH OF THE AUTHORITIES BELOW IS NOT JUSTI FIED UNDER THE FACTS OF THE PRESENT CASE. AS PER THE CONTRACT NOTE DATED 0 1/06/2006, ONE MR.MAJIDBHAI, CONTRACTOR HAS STATED THAT HE HAS PAI D RS.14 LACS TO THE ASSESSEE AND AS PER THE CONTRACT DATED 23/10/2006 O NE MR.RAJU SOLANKI HAS STATED THAT HE HAS PAID RS.4,51,001/-. AS PER CONTRACT DATED 06/01/2007, ONE MR.CHARAN KAVABHAI VAJABHAI HAS STA TED THAT HE HAS ITA NO.3378/AHD /2010 SHRI UDAYRAJSINH S. CHAUHAN VS. ITO ASST.YEAR 2007-08 - 5 - PAID RS.3,60,000/- TO THE ASSESSEE. HOWEVER, MODE OF PAYMENT IS NOT STATED IN THE CONTRACT, I.E. WHETHER THE PAYMENT WA S MADE BY CASH OR THROUGH ANY BANKING CHANNEL. IT IS ALSO NOT COMING OUT OF THE RECORD WHETHER ANY ENQUIRY WAS MADE BY THE AUTHORITIES FRO M THESE PERSONS. IN THE ABSENCE OF SUCH MATERIAL, WE ARE OF THE CONSIDE RED VIEW THAT THE ADDITION MADE BY THE AO AND CONFIRMED BY THE LD.CIT (A) IS NOT JUSTIFIED. THE APPELLANT IN FACT CANNOT BE MADE LIABLE WHEN HE HAS PLACED ON RECORD THE PROOF OF OWNERSHIP OF LAND AND ALSO PROOF THAT THE LAND WAS CULTIVATED AND CROPS WERE GROWN. THEREFORE, THE AO IS DIRECTE D TO DELETE THE ADDITION. THUS, GROUND NO.1 OF ASSESSEES APPEAL I S ALLOWED. 5. GROUND NO.2 IS GENERAL IN NATURE REQUIRES NO IND EPENDENT ADJUDICATION. 6. GROUND NO.3 IS AGAINST NOT AFFORDING THE OPPORTU NITY BY THE AUTHORITIES BELOW. SINCE WE HAVE DECIDED THE ISSUE INVOLVED IN GROUND NO.1, THIS GROUND HAS BECOME INFRUCTUOUS AND THE SA ME IS HEREBY DISMISSED. 7. GROUND NO.4 IS AGAINST CHARGING OF INTEREST U/S. 234B/C/D OF THE ACT WHICH IS CONSEQUENTIAL IN NATURE AND DECIDED AC CORDINGLY. 8. GROUND NO.5 IS AGAINST CONFIRMING THE ACTION OF THE AO IN INITIATING PENALTY PROCEEDING U/S.271(1)(C) OF THE ACT BY THE LD.CIT(A). SINCE WE HAVE DECIDED THE GROUND NO.1 OF ASSESSEES APPEAL IN FAVOUR OF ITA NO.3378/AHD /2010 SHRI UDAYRAJSINH S. CHAUHAN VS. ITO ASST.YEAR 2007-08 - 6 - THE ASSESSEE, THEREFORE THIS GROUND OF ASSESSEES A PPEAL DOES NOT SURVIVE BEING PRE-MATURE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) (' #$) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 27/ 06 /2014 71.., .../ T.C. NAIR, SR. PS 4 / ,$8 98'$ 4 / ,$8 98'$ 4 / ,$8 98'$ 4 / ,$8 98'$/ COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. !! $ ': / CONCERNED CIT 4. ':() / THE CIT(A)-XVI, AHMEDABAD 5. 8 #; ,$ , , / DR, ITAT, AHMEDABAD 6. ;<& =0 / GUARD FILE. 4' 4' 4' 4' / BY ORDER, -8$ ,$ //TRUE COPY// > >> >/ // / !) !) !) !) ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 20.6.14(DICTATION-PAD 13-PAGE S ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23.6.14 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 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.27.6.14 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 27.6.14 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER