Ronak B.Patel, Baroda V. The Income tax Officer,Ward-2(2), Baroda

ITA 344/AHD/2008

• Counselvise Citation: 34420514 RSA 2008
• Duration Of Justice: 4 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 01-02-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 31-01-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J P JANGID
• Assessee Lawyers: M J SHAH
• Keywords: Business income; Opportunity of being heard; Principle of natural justice; Corroborative evidences
• Section: 143(3); 142(1)

Judgement Text

-1- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'A' BEFORE SHRI D K TYAGI JUDICIAL MEMBER AND SHRI A L GEHLOT ACCOUNTANT MEMBER ITA NO.344/AHD/2008 (ASSESSMENT YEAR:-2004-05) SHRI RONAK BHARATKUMAR PATEL, AT & POST: PADAMLA, BARODA V/S THE INCOME-TAX OFFICER, WARD-2(2), BARODA PAN: ACQPP 7439 N [APPELLANT] [RESPONDENT] ITA NO.357/AHD/2008 (ASSESSMENT YEAR:-2004-05) SHRI BHARAT C PATEL, AT & POST: PADAMLA, BARODA V/S THE INCOME-TAX OFFICER, WARD-2(1), BARODA PAN: ACTPP 2675 D [APPELLANT] [RESPONDENT] ASSESSEES BY :- SHRI M J SHAH, AR REVENUE BY:- SHRI J P JANGID, SR. DR DATE OF HEARING:- 01-02-2012 DATE OF PRONOUNCEMENT:- 09-02-2012 O R D E R PER D K TYAGI (JM) :- THESE TWO APPEALS FILED BY TWO DIFFERENT ASSESSEES ARE DIRECTED AGAINST COMMON ORD ER DATED 13- 12-2007 PASSED BY THE LEARNED CIT(A)-II, BARODA FOR ASSESSMENT YEAR 2004-05. THE COMMON GROUNDS RAISED BY THE ASSE SSEES ARE AS UNDER:- 2 1.00 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-II, BARODA [LD. CIT(A)-II, BARODA IN SHORT] HAS ERRED IN PARTLY CON FIRMING THE ORDER OF LD. AO PASSED U/S 143(3) OF THE ACT. 1.01 ON THE FACTS AND CIRCUMSTANCES OF YOUR APPELLA NTS CASE AS WELL AS IN LAW, THE LD. CIT(A)-II, BARODA HAS ERRED IN C ONFIRMING LD. AOS VIEW THAT THE AGRICULTURAL PRODUCE SHOULD NOT BE MORE THAN THE DATA PUBLISHED BY THE DIRECTOR OF AGRICULT URAL FOR STATISTICAL PURPOSE. 1.02 ON THE FACTS AND CIRCUMSTANCES OF YOUR APPELLA NTS CASE AS WELL AS IN LAW, THE LD. CIT(A)-II, BARODA HAS ERRED IN N OT ADJUDICATING GROUND OF YOUR APPELLANT THAT EXCESSIV E PRODUCTION ON ACCOUNT OF AGRICULTURE PRODUCE CAN NOT BE TREATE D AS INCOME FROM OTHER SOURCES AS THE NATURE OF AGRICULTURAL IN COME DOES NOT CHANGE EVEN IF THE ADDITION IS MADE IN THAT RESPECT . 2.00 YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER AND / OR AMEND THE GROUNDS HEREIN ABOVE RAISED. 2 SINCE THE FACTS AND ISSUE INVOLVED IN THESE TWO A PPEALS ARE COMMON, THE APPEALS WERE HEARD TOGETHER AND ARE BEI NG DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVE NIENCE, THEREFORE, WE ARE CONSIDERING THE FACTS IN THE CASE OF SHRI RONAK B PATEL IN ITA NO.344/AHD/2008. 3 THE FACTS OF THE CASE ARE THAT ON PERUSAL OF RETU RN OF INCOME THE AO NOTICED THAT THE ASSESSEE HAS SHOWN INCOME F ROM BUSINESS I.E. REMUNERATION FROM PARTNERSHIP FIRM M/S PARVATI ASSOCIATES, PADMALA, INCOME FROM SHORT TERM CAPITAL GAIN AND IN COME FROM OTHER SOURCES WHICH INCLUDES INCOME FROM DIVIDENDS ON MUTUAL FUNDS, INCOME FROM UNITS AND INTEREST INCOME. FURT HER, THE 3 ASSESSEE HAS ALSO SHOWN AGRICULTURAL INCOME OF RS.4 ,15,109/-. THE ASSESSEE HAS SHOWN GROSS RECEIPTS ON ACCOUNT OF SALE OF AGRICULTURAL PRODUCE OF RS.5,36,690/- AND TOTAL EXP ENSES PERTAINING TO AGRICULTURAL ACTIVITIES OF RS.1,21,58 1/- ONLY. THE ASSESSEE WAS ASKED TO SUBMIT THE PROOF OF AGRICULTU RAL CROP GROWN, TOTAL AREA SOWN, TOTAL CROP PRODUCED, BILLS OF SALE OF AGRICULTURAL PRODUCE AND PROOF REGARDING THE EXPEND ITURE MADE ON AGRICULTURAL ACTIVITIES. IN RESPONSE, THE ASSESSEE SUBMITTED VARIOUS DETAILS. THEREAFTER, THE AO ISSUED A SHOW C AUSE NOTICE. AFTER CONSIDERING THE REPLY GIVEN BY THE ASSESSEE, THE AO HELD AS UNDER:- 5 IN PARA I OF ABOVE SUBMISSION ID. AR HAS TRIED T O CONVINCE THAT AGRICULTURAL PRODUCE DEPENDS ON VARIOUS FACTORS LIK E SEASON, FERTILITY OF LAND, THE AMOUNT OF EXPERIENCE IN NURTURING THE ACT IVITIES. FURTHER IN PARA 2 THE AR HIMSELF HAS SUBMITTED THAT THE AVERAG E YIELD AS PER STATISTICS AVAILABLE FOR BARODA DISTRICT IS 1200 .K G PER HECTARE WHILE FOR KHEDA DISTRICT IS 2100 KG. FURTHER IN (HE SAME PARA THE ID. A.R. QUOTED A MAGAZINE PUBLISHED BY GUJARAT AGRICULTURE UNIVERS ITY IN 1998 AND ACCORDING TO THAT THE YIELD OF TOBACCO CAN GO UP TO 3500 KG PER HECTARE WHICH WAS BASED ON THE RESEARCH. FURTHER, IN PARA 3 THE A.R. SUBMITTED THAT THE ASSESSEE CULTIVATED HIS OWN SEEDS AND USED THE FERTILIZER OF SULPHATE UREA, NARMADA FORCE AND DAP ETC. IN PARA 4 . THE AR HAS WRITTEN THAT AVERAGE CROP YIELD IS FOR A VERY VAST AREA AND VERY GENERAL IN NATURE AND CANNOT BE APPLIED IN THE CASE OF THE ASSESSEE. HE FURTHER ARGUED THAT THE DATA PUBLISHED IS ONLY FOR STATISTI CAL PURPOSE AND ARC NOT BINDING ON ANYBODY. LD. D. AR FURTHER EMPHASIZE D THAT THE ENTIRE TOBACCO CROP WAS SOLD AND PAYMENTS WERE RECEIVED TH ROUGH CHEQUE ONLY. FURTHER, THE A.R. SUBMITTED (HAT THE MUM ACTI VITY OF THE ASSESSEE I.S THAT OF AGRICULTURAL ACTIVITY AND NO OTHER ACTI VITY IS BEING CARRIED OUT WINCH WILL GENERATE INCOME. 5.1 THE SUBMISSION MADE BY THE A.R. IS NOT ACCEPTAB LE AS REGARD NURTURING IS CONCERNED. IT IS OBVIOUS MAT IT WILL E FFCCI GROUIH IN YIELD BUT NOT AS INFLATED BY THE ASSESSEE. THE ASSESSEE H AS SHOWN YIELD PER HECTARE OF ABOUT 3045 KG., WHICH IS ABNORMALLY HIGH . TO BE PRECISE, IT IS 2.5 TIMES MORE THAN AVERAGE YIELD OF TOBACCO IN BARODA DISTRICT. 4 FURTHER, THE AR RELIED ON THE MAGAZINE PUBLISHED BY GUJARAT AGRICULTURE UNIVERSITY IN 1998 IN WHICH IT HAS BEEN PUBLISHED THAT IF THE SEED OF 'GUJARAT TOBACCO 5' WILL BE SOWED; PER HECTARE YIELD MAY BE AROUND 3300 KG. THE ARTICLE IS PUBLISHED ON THE BASIS OF RESEARCH AND THAT TOO IN THE YEAR 1998 AFTER THAT THE DATA A VAILABLE ON ACTUAL CULTIVATION EMERGED THAT IN BARODA DISTRICT YIELD O F TOBACCO/HECTARE IS 1200 KG AND IN KHEDA DISTRICT IT GOES UP TO 2111 KG HECTARE. THE ASSESSEE HAS NOT SPECIFIED THE SEED SOWED BY HIM BY WHICH HE COULD REAP SUCH A HUGE YIELD OF TOBACCO. THE ARGUMENT OF ID. A.R. THAT DATA PUBLISHED BY THE GOVERNMENT IS ONLY FOR STATISTICAL PURPOSE IS ALSO HOT CONVINCING. THE A.R. HAS TRIED TO DRAW THE CONCLUSI ON THAT ALL THE STATISTICAL DATA PUBLISHED BY THE GOVERNMENT IS FIC TITIOUS AND FAR FROM THE TRUTH. THE SAME IS HOT ACCEPTABLE. FURTHER I WO ULD LIKE TO MENTION HERE THAT IN ALL THE SECTOR OF LIFE WHATEVER ACT WE HAVE TO PERFORM OR WANT TO ACHIEVE A TARGET, FIRST A TARGET IS SET AND THEN EFFORTS ARE MADE TO ACHIEVE THE TARGET FIXED AND SUCH TYPE OF TARGET ARE FIXED ON THE BASIS OF EARLIER DATA AVAILABLE. THEREFORE IT CAN N OT BE SAID THAT STATISTICAL DATA PUBLISHED BY THE GOVERNMENT WERE N OT TRUE. 5.2 IT IS PERTINENT TO MENTION HERE THAT THE A.R., IN THE CONCLUDING PARAS OF HIS SUBMISSION, MENTIONED THAT THE ASSESSE E IS HAVING ONLY AGRICULTURAL ACTIVITY AND NO OTHER ACTIVITY IS BEIN G EARNED OUT WHICH IS FAR FROM THE TRUTH AS IN THE RETURN OF INCOME ITSEL F THE ASSESSEE HAS SHOWN FOLLOWING INCOME: I) BUSINESS INCOME PROFIT IN FIRM'S CASE RS. 89.010/- R EMUNERATION RS. 1,26,250/- II) INCOME FROM SHORT TERM CAPITAL GAIN RS. 2,33,108/- (III) INCOME FROM OTHER SOURCES DIVIDEND ON MUTUAL FUND RS.2,23,126/- INCOME FROM UTI RS. 7,500/- INCOME FROM INTEREST RS.1,17,743/- 5.3 IN THE LAST PARA OF HIS REPLY (HE REPRESENTATIV E OF THE ASSESSEE HAS REQUESTED THAT IF THE UNDERSIGNED IS INTEND TO MAKE THE ADDITION TO THE RETURNED INCOME OF THE ASSESSEE. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE WILL BE PLEASED TO SUBMIT FURTHER DETA ILS OR INFORMATION ON HEARING, FURTHER HE HAS MENTIONED THAT IN ABSENCE O F SUCH OPPORTUNITY ANY CONTRARY VIEW TAKEN SHALL BE CONSIDERED AS TAKE N INTO GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. IN THIS REGARD I WOULD LIKE TO 5 MENTION THAT IN MY SHOW CAUSE NOTICE U/S 142(1) OF THE ACT DATED 5- 12-2006 VIDE PARA -6 THE ASSESSES WAS SPECIFICALLY INTIMATED THAT IN ABSENCE OF SUFFICIENT AND SUPPORTING EVIDENCE THE E XCESS AGRICULTURAL INCOME SHOWN IS TO BE DISALLOWED AND ADDED TO THE T OTAL INCOME AS INCOME FROM OTHER SOURCES. NO ONE HAS RESTRICTED TH E ASSESSEE TO FURNISH FULL AND FINAL REPLY IN SUPPORT OF HIS CLAI M. WHATEVER DETAILS AND INFORMATION HE WANTED TO FURNISH HE COULD VERY WELL FURNISH WITH THIS REPLY. THEREFORE, THERE IS NO REASON THAT ANY FRESH OPPORTUNITY OF BEING HEARD IS TO BE PROVIDED TO THE ASSESSEE. 6 FROM THE ABOVE FACTS AND DISCUSSION MADE IT IS VE RY CLEAR THAT THE ARGUMENT PUT FORTH BY THE A R OF THE ASSESSEE A RE NO! TENABLE. THE PRODUCTION OF TOBACCO SHOWN BY THE ASSESSEE IS AS H IGH US 2.5 TIMES OF THE AVERAGE PRODUCTION OF BARODA DISTRICT AND 1.45 TIMES HIGHER THEN THAT OF KHEDA DISTRICT WHERE FERTILITY OF LAND IS T HE BEST IN THE STATE OF GUJARAT. FURTHER, DIE REPRESENTATIVE OF THE ASSESSE E HAS TRIED TO CONVINCE THAT THE ENTIRE SALE WAS MADE TO M/S SHREE KRISHNA TOBACCO CO. AND SALE PROCEED WAS RECEIVED THROUGH CHEQUE ON LY. SIMPLY RECEIPT THROUGH CHEQUE DOES NOT MEAN THAT THE SAME WAS RECEIVED IN LIEU OF AGRICULTURAL PROCEED. 6 THE ASSESSCE'S CONTENTIONS ARE NOT ACCEPTED DUE T O THE FOLLOWING REASONS - A) THE DATA, PUBLISHED BY DIE DIRECTOR OF AGRICULTU RE IS FOR THE STATISTICAL PURPOSE BUT THE DETAILS HAVE BEEN PREPA RED BY THEM ON THE BASIS OF INFORMATION COLLECTED FROM ALL THE DISTRICTS OF GUJARAT FOR THE EARLIER YEARS. B) THE PRODUCTION SHOWN BY THE ASSESSEE IS 2.5 TIME S THAN THE PRODUCTION SHOWN BY THE DIRECTOR, OF AGRICULTURE IN RESPECT OF BARODA DISTRICT. C) THE SOURCE OF AGRICULTURE EXPENSES HAVE NOT BEEN SUBMITTED BY THE ASSESSEE AND AMOUNT SHOWN TOWARDS THE EXPENDITU RE IS RS.1,21,581/- WHICH DO NOT INCLUDES THE VALUE OF SE EDS AND COST OF WAFER CHARGES PAID FOR IRRIGATION BECAUSE AS PER THE COPY OF 7/12 UTTARAS IT IS NOTICED (HAT THE LAND SHOWN BY T HE ASSESSEE IS NOT HAVING IRRIGATION FACILITIES. 6 D) THE ASSESSEE FAILED TO FURNISH ANY EVIDENCE WHIC H COULD PROVE THAT THE ASSESSEE WAS ABLE TO GET SUCH A HIGH YIELD LIKE HIGH DEGREE OF FERTILITY OF HIS LAND OR VERY HIGH QUALIT Y OF THE SEEDS WHICH COULD RESULT INTO EXTRA- ORDINARY YIELD. 6.2 THE ASSESSEES LAND IS SITUATED AT PADAMALA, T AL: & DIST. BARODA. THE LAND OF PADAMALA IS NOT AS FERTILE AS C OMPARED TO LAND OF ANAND DISTRICT. HOWEVER, CONSIDERING ALL THE FACTS AND OVERALL PRODUCTION PER HECTOR IN GUJARAT I.E. 1800 KGS PER HECTOR, ASSESSEES PRODUCTION IS TAKEN AT 1800 KGS PER HECTOR. THIS WO ULD COVER ALL THE ARGUMENT OFFERED BY THE ASSESSEE IN HIS LETTER DATE D 12-12-2006. IN VIEW OF THESE FACTS, THE ASSESSEES PRODUCTION WILL BE OF 9481 KGS (1800 X 5.26) AS AGAINST 16020 KGS SHOWN BY THE ASS ESSEE. THUS, THE ASSESSEE HAS SHOWN EXCESS PRODUCTION OF TOBACCO BY 6539 KGS (16020 9481) AND VALUE OF SUCH EXCESS PRODUCTION SHOWN C OMES TO RS.2,19,056/- (6539 X 33.50) WHICH IS NOTHING BUT T HE INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES AND IT IS ADDED I N THE TOTAL INCOME OF THE ASSESSEE AS INCOME FROM OTHER SOURCES. 4 BEING AGGRIEVED BY THE ORDER OF THE AO, THE ASSES SEE FILED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE LEARNED CIT(A) PARTLY ALLOWED THE APPEAL WITH THE FOLLOWING OBSERV ATIONS:- 2.3. I HAVE CONSIDERED THE SUBMISSIONS OF THE COUN SEL AND FACTS OF THE CASE. IN BOTH THE APPEALS ASSESSING OFFICER FOU ND THAT PRODUCTION OF TOBACCO SHOWN WAS MUCH HIGHER AS COMPARED TO THE PRODUCTION DATA COLLECTED BY DIRECTORATE OF AGRICULTURE. SINCE THE AGRICULTURE PRODUCTION IS EXEMPT FROM TAXATION, ASSESSING OFFIC ER HELD THAT APPELLANTS DISCLOSED EXCESS PRODUCTION AND HE TREAT ED SUCH EXCESS PRODUCTION BEYOND 1800 KG, PER HECTRE AS UNDISCLOSE D INCOME. THE SUBMISSIONS OF THE APPELLANT'S COUNSEL AND THE FACT S MENTIONED BY THE ASSESSING OFFICER ARE SIMILAR TO THE CASE OF FATIMA I. VOHRA VS DCIT & OTHERS WHEREIN HON. ITAT, AHMEDABAD, C BENCH, AFT ER CONSIDERING THE VARIOUS FACTS PRODUCTION OF 45 MAUN DS OF TOBACCO IN ONE ACRE WAS ESTIMATED. THE RELEVANT EXTRACT OF THE SAID DECISION IS QUOTED BELOW:- 7 '5.1 THEREFORE, FOR ESTIMATING-THE PRODUCTION OF AS SESSEE'S, WE HAVE TO CONSIDER ALL THE STATEMENTS, CERTIFICATES G IVEN BY DIFFERENT TALATIES, GRAM SEVAK, SARPUNCH AND AG RICULTURAL UNIVERSITY ALONGWITH THE RESULT SHOWN BY THE ASSES SEES IN THEIR BOOKS OF ACCOUNT. THE DIFFERENT TALATIES HAVE GIVEN DIFFERENT FIGURES OF AGRICULTURAL PRODUCTION IN ONE RE. ON AN ANALYSIS OF ALL THESE DOCUMENTS COUPLED WITH THE FINDING RECORDED B Y THE ID. ASSESSING OFFICER AS WELL AS BY THE ID. CIT(APPE ALS), WE ARE OF THE VIEW THAT END OF JUSTICE WOULD MEET IF WE ES TIMATE THE PRODUCTION OF 45 MAUNDS OF TOBACCO IN ONE ACRE. THE ID. ASSESSING OFFICER SHALL RE-COMPUTE A FIGURE OF 45 M AUNDS PER ACRE IN PLACE OF 30 MAUNDS TAKEN BY HIM. THERE, THE COMMON GROUND WITH REGARD TO DISALLOWANCE OF AGRICULTURAL INCOME IS PARTLY ALLOWED IN ALL THE APPEALS.' SINCE THE ISSUE INVOLVED IN THE CASE OF APPELLANTS IS SAME AS ALREADY DECIDED BY THE ITAT, AHMEDABAD, RESPECTFULLY FOLLOW ING THE AFORESAID DECISION, I DIRECT THE ASSESSING OFFICER TO ESTIMATE THE PRODUCTION OF TOBACCO AT THE RATE OF 45 MAUNDS PER ACRE. ADDITION OF EXCESS PRODUCTION BEYOND 45 MAUDNS PER ACRE IS CONF IRMED. AS PER THE DETAILS SUBMITTED BY THE APPELLANTS, THE ASSESSING OFFICER ALLOWED 1800 KG. PER HECTRE AND ON CONVERSION OF TH E SAME IT COMES TO 36.44 MAUNDS PER ACRE. CONSIDERING THE SAME THE ASS ESSING OFFICER WILL ALLOW THE PRODUCTION AT THE RATE OF 45 MAUNDS PER ACRE INSTEAD OF 36.44 MAUNDS PER ACRE ALLOWED BY HIM. 5 THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST T HE AFORESAID FINDINGS OF THE LEARNED CIT(A). AT THE TI ME OF HEARING, THE LEARNED COUNSEL OF THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES AND FURTHER SUBMI TTED PLACING RELIANCE ON MAGAZINE BY GUJARAT AGRICULTURE UNIVERS ITY VIZ. KRISHI GOVINDHA, TO SHOW THAT IN RESPECT OF QUALI TY OF TOBACCO WHICH THE ASSESSEE WAS GROWING, THE YIELD CAN GO UP TO 3500 KGS PER HECTOR WHICH IS MUCH MORE THAN THE YIELD TAKEN BY THE LEARNED CIT(A) WHILE GIVING RELIEF TO THE ASSESSEE. HE ALSO PLACED RELIANCE ON THE DECISION OF THE TRIBUNAL IN THE CASE OF 8 NATUBHAI P PATEL HUF VS. ITO [ITA NO.1738/AHD/2008 , ORDER DATED 12-12-2008], TO SUBMIT THAT IN SIMILAR CIRCUM STANCES, THE TRIBUNAL HAS RESTRICTED THIS DISALLOWANCE TO 50% OF WHAT WAS ALLOWED BY THE LEARNED CIT(A). 6 THE LEARNED DR, ON THE OTHER HAND, SUPPORTED THE ORDER OF THE AO. 7 WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. WE FIND THAT IN THE SIMILAR CIRCUMSTANCES IN THE CASE OF NATUBHAI P PATEL HUF VS. ITO [ITA NO.1738/AHD/2008, ORDER DAT ED 12-12- 2008], THE TRIBUNAL HAS RESTRICTED THE DISALLOWANCE TO 50% WITH THE FOLLOWING OBSERVATIONS:- 5 I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S AND, PERUSED THE MATERIAL ON RECORD ALONG WITH THE ORDER OF THE TAX AUTHORITIES BELOW. I FIND THAT THE AO HAS ALSO ESTIMATED THE PR ODUCTION MERELY ON ASSUMPTION AND PRESUMPTION WITHOUT BRINGING ANY EVI DENCE ON RECORD, HOW THE AGRICULTURAL LAND IN THE CASE OF NOT AS FER TILE AS THAT SITUATED IN ANAND DISTRICT. EVEN THE WITHDRAWAL MADE BY THE ASS ESSEE WAS REJECTED ALTHOUGH FROM THE ACCOUNTS SUBMITTED BY TH E ASSESSEE IT IS APPARENT THAT THE ASSESSEE HAD MADE THE WITHDRAWAL TO THE EXTENT OF RS.7,51,820/- OUT OF WHICH THE ASSESSEE CLAIMED ONL Y A SUM OF RS.2,45,000/- FOR THE AGRICULTURE EXPENSES. THE AO MADE THE ADDITION FOR A SUM OF RS.1,22,860/- MERELY ON THE BASIS OF E STIMATION OF PRODUCTION AT THE RATE OF 11822 KGS WHILE THE ASSES SEE CLAIMED AT THE RATE OF 25490 KGS. WE ALSO NOTED THAT THE ASSESSEE HAS ALSO NOT SUBMITTED EVIDENCE THAT THE ACTUAL PRODUCTION WAS 2 5490 KGS. PER HECTOR IN THE CASE OF THE ASSESSEE ESPECIALLY THE F ACT WHEN THE PRODUCTION SHOWN BY THE DIRECTOR OF AGRICULTURE FOR BARODA DISTRICT IS LESS. ESTIMATE IS ALWAYS AN ESTIMATE AND CAN NOT TA KE THE SHAPE OF ACTUALITY. I, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES, FEEL IT REASONABLE THAT THE ADDITION MADE BY THE AO AMOUNTING TO RS.1,22,860/- BY NOT TREATING IT TO BE THE AGRIC ULTURAL INCOME BE REDUCED TO RS.61,430/- AND ACCORDINGLY THE AO IS DI RECTED TO TREAT THE SUM OF RS.61,430/- AS INCOME FROM OTHER SOURCES. 9 8 SINCE THE FACTS INVOLVED IN THE PRESENT CASE ARE SIMILAR, FOLLOWING THE SAID DECISION OF THE TRIBUNAL AND IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTRICT THE DISALLOWANCE TO 50% OF RS.1,44,719/- AND RS.1,78,490/- IN THE CASE OF SHRI RONAK B PATEL AND SHRI BHARAT C PATEL RESPECTIVELY. 9 IN THE RESULT, BOTH THE APPEALS ARE PARTLY ALLOWE D. ORDER PRONOUNCED IN THE COURT TODAY ON 09-02-2012 SD/- SD/- (A L GEHLOT) ACCOUNTANT MEMBER (D K TYAGI) JUDICIAL MEMBER DATE : 09-02-2012 COPY OF THE ORDER FORWARDED TO: 1. SHRI RONAK BHARATKUMAR PATEL, AT & POST: PADAMLA , BARODA SHRI BHARAT C PATEL, AT & POST: PADAMLA, BARODA 2. THE INCOME-TAX OFFICER, WARD-2(2), / WARD-2(1), BARODA 3. CIT CONCERNED 4. CIT(A)-II, BARODA 5. DR, ITAT, AHMEDABAD BENCH-A, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD