Shri Anil Maheshwari HUF, Hoshagabad V. The ITO, Itarsi

ITA 35/IND/2011

• Counselvise Citation: 3522714 RSA 2011
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-08-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 13-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE SMC BENCH-1, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.35/IND/2011 A.Y. 2007-08 ANIL MAHESHWARI HUF, VILLAGE THAINI, BANKHEDI PAN AADHA 0622 D APPELLANT VS ITO, ITARSI RESPONDENT APPELLANT BY : SHRI HITESH CHIMNANI, CA RESPONDENT BY : SHRI ARUN DEWAN, SR. DR DATE OF HEARING : 23.8.2011 DATE OF PRONOUNCEMENT : 23.8.2011 O R D E R THIS APPEAL IS BY THE ASSESSEES AGAINST THE ORDER D ATED 15.2.2011 OF THE LEARNED CIT(A)-I, BHOPAL, ON THE G ROUND THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. FIRST APPELLATE AUTHORITY ERRED IN MAINTAINING ADDITION O F RS.1 LAC AND 2 TREATING THE SAME AS INCOME FROM OTHER SOURCES OUT OF TOTAL AGRICULTURAL INCOME OF RS.4,94,200/- DECLARED BY TH E ASSESSEE . 2. DURING HEARING OF THE APPEAL, I HAVE HEARD SHRI HITESH CHIMNANI, LD. COUNSEL FOR ASSESSEE AND SHRI ARUN DEWAN, LD. SR. DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE ASSESSING OFFICER HAS WRONGLY TREATED THE AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES WI THOUT, THERE BEING ANY MATERIAL ON RECORD TO PROVE THAT THE SAID INCOME IS INCOME FROM OTHER SOURCES. THE PAST YEARS AGRICULTU RAL INCOME DECLARED BY THE ASSESSEE HAS BEEN ACCEPTED BY THE A SSESSING OFFICER FOR WHICH MY ATTENTION WAS INVITED TO PAGES 18 TO 21 OF THE PAPER BOOK FOR ASSESSMENT YEAR 2003-04 AND PAGE S 15 17 OF THE PAPER BOOK. IT WAS CANVASSED THAT THE ASS ESSING OFFICER HAS NO BASIS FOR MAKING THE ADDITION. MY AT TENTION WAS ALSO INVITED TO COPY OF RETURN, ALONGWITH COMPUTATI ON OF STATEMENT FOR ASSESSMENT YEAR 2007-08 AND PAGES 8 T O 14 OF THE PAPER BOOK CONTAINING KHASRA FOR THE RELEVANT Y EAR, SALE BILLS AND DETAILS OF EXPENSES. ON THE OTHER HAND, THE LD. SR. DR PLACED RELIANCE UPON THE ORDERS OF THE REVENUE AUTH ORITIES BY 3 SUBMITTING THAT THE AGRICULTURAL PRODUCE SHOWN BY T HE ASSESSEE ARE TOWARDS HIGHER SIDES AND THE IMPUGNED INCOME CA NNOT BE GROWN OUT OF LAND HOLDING OWNED BY THE ASSESSEE. 3. I HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. BRIEF FACTS ARE THAT THE ASSES SEE FILED RETURN DECLARING INCOME AT RS.1,10,630/- AND AGRICU LTURAL INCOME AT RS. 4,94,200/-. THE ASSESSEE EARNS INCOME FROM AGRICULTURE AND INTEREST INCOME. THE ASSESSEE ATTEN DED ASSESSMENT PROCEEDINGS FROM TIME TO TIME AND FILED WRITTEN SUBMISSIONS ALONGWITH PHOTOCOPY OF THE PASS BOOK, S TATEMENT OF ACCOUNTS FROM THE BANK, VOUCHERS OF EXPENSES, KH ATONI, KHASRA ALONGWITH OTHER DOCUMENTS, WHICH WERE EXAMIN ED BY THE LD. ASSESSING OFFICER. THE WHOLE CRUX OF DISPUT E IS THAT THE INCOME OF RS. 4,94,200/- CANNOT BE EARNED FROM 24.4 3 ACRES AGRICULTURAL LAND. ADMITTEDLY, THE ASSESSEE ALSO PR ODUCED THE SALE PROOF OF AGRICULTURAL PRODUCE ISSUED BY OFFICE OF KRISHI UPAJ MANDI, BANKHEDI DATED 18.4.2006.BEFORE COMING TO AN Y CONCLUSION,WE ARE SUMMARIZING HEREUNDER THE DETAILS OF LAND 4 AND PRODUCTION OF CROPS AS PER KHASRA FOR ASSESSMEN T YEAR 2006-07 AND PER ACRE PRODUCTION OF LAND :- S.NO. KHASRA NO. CANE(HECT) WHEAT(HECT) SOYABEAN & VEG (HECT) TOTAL(HECT) 1 33/8 0 0 0.24 0.24 2 114/1 5.65 0 1.433 7.083 3 114/5 0 1.4 0.243 1.643 4 115/1 0.926 0 0 0.926 TOTAL- LAND 6.576 1.4 TOTAL- PRODUCTION(QTL) 7188.02 70 PROD/ ACRE-IN QTL. 442.36 20.23 IF THE SUSPICION RAISED BY THE LD. ASSESSING OFF ICER IS ANALYZED, WE FIND THAT AS PER CERTIFIED COPY OF KHA SRA (P-II) AVAILABLE ON RECORD AND THE WHEAT PRODUCED THIS YEA R, IS 70 QTL. AND 130 QTL. OF STOCK OF WHEAT WAS FROM LAST YEAR, MEANING THEREBY THE TOTAL WHEAT SOLD WAS 200 QTL. THIS YEAR (70 QTLS. OUT OF CURRENT YEAR AND 130 QTLS. WAS BROUGHT FORWARD). THE NAKAL KHASRA (AVAILABLE ON RECORD) CLEARLY EVIDENCING THE EXTENT OF VARIOUS CROPS PRODUCED BY THE ASSESSEE. WE FURTHER FIND THAT FOR ASSESSMENT YEAR 2003-04 THE DEPARTMENT FRAMED T HE ASSESSMENT U/S 143(3) ORDER DATED 31.12.2004 ACCEPT ING 5 AGRICULTURAL INCOME OF RS. 4,32,500/-. IT IS PERTIN ENT TO MENTION HERE THAT THE ORDER DATED 31.12.2004 WAS PURSUANT T O SELECTION OF THE CASE OF ASSESSEE FOR COMPULSORY SCRUTINY. FO R ASSESSMENT YEAR 2006-07, THE AGRICULTURAL INCOME OF RS. 4,45,600/- AND FOR ASSESSMENT YEAR 2005-06, THE INC OME OF RS. 4,76,600/- HAS BEEN ACCEPTED BY THE DEPARTMENT AS I S EVIDENT FROM PAGES 15 TO 17 OF THE PAPER BOOK. THE ASSESSEE HAS ALSO FILED THE STATEMENT OF ACCOUNT AND THE BILLS FOR FE RTILIZERS ETC. (PAGES 13 & 14 OF THE PAPER BOOK ) AT PAGE 10, WE F IND THAT ON 16.4.2006, THE ASSESSEE SOLD WHEAT FOR RS. 1,67,300 /-. THE ASSESSEE HAS ALSO PRODUCED THE COPY OF KHASRA PANCH SHALA (P- II) EVIDENCING THE CROPS GROWN BY THE ASSESSEE. THI S CERTIFICATE IS ISSUED BY THE REVENUE AUTHORITIES, WHICH CANNOT BE DISPUTED UNLESS AND UNTIL CONTRARY IS PROVED. EVEN THE LD. A SSESSING OFFICER HAS NOT DISPUTED THAT THE ASSESSEE IS HAVIN G IRRIGATED AGRICULTURAL LAND TO THE EXTENT OF 24.43 ACRES. THE SUSPICION OF THE ASSESSING OFFICER IS THAT THE DECLARED GROSS AG RICULTURAL INCOME OF RS. 8,01,373/- IS EXCESSIVE BY FURTHER PO INTING OUT THAT 200 QTLS. OF WHEAT CROP ON 1 HECT. OF AGRICULT URAL LAND IS NOT 6 POSSIBLE, THEREFORE, HE TREATED RS. 1,50,000/-, OUT OF NET AGRICULTURAL INCOME OF RS. 4,94,200/- AS INCOME FRO M OTHER SOURCES AND ASSESSED ACCORDINGLY, WHICH WAS RETAINE D AT RS. 1 LAKH BY THE LD. CIT(A) . THE DETAILED STATEMENT OF AGRICULTURAL SALE RECEIPT AND EXPENSES, RECEIPT ISSUED BY KRISHI UPAJ MANDI, SUGARCANE BILLS, NATURE OF CROPS SOLD, QUANTITY OF AGRICULTURAL PRODUCE, RATE PER QTL., HAS NOT BEEN DISPUTED BY TH E DEPARTMENT. THE ASSESSEE IS HAVING ONLY INTEREST IN COME, BESIDES AGRICULTURAL INCOME. THE INTEREST INCOME AN D ITS SOURCE HAS NOT BEEN DISPUTED BY THE DEPARTMENT. THEREFORE, THE SUSPICION OF THE ASSESSING OFFICER IS NOT BASED UPO N ANY CONCRETE EVIDENCE, ESPECIALLY WHEN THE ASSESSEE HA D BEEN CONTINUOUSLY DISCLOSING AGRICULTURAL INCOME IN ITS TAX RETURN AND THE SAME WAS ACCEPTED BY THE DEPARTMENT. AT THE SAM E TIME, THE ASSESSEE HAS GROWN 2 CROPS IN A YEAR AND EVEN N O DISCREPANCY HAS BEEN POINTED OUT IN THE MANDI RECEI PT/SALE RECEIPT OF AGRICULTURAL PRODUCE. EVEN THE ASSESSING OFFICER HAS NOT DISPUTED THE OWNERSHIP OF AGRICULTURAL LAND AND CARRYING OUT 7 AGRICULTURAL OPERATION BY THE ASSESSEE. THE SUSPICI ON ABOUT THE SALE OF 200 QTL. WHEAT WAS NOT DURING THE CURRENT Y EAR RATHER 130 QTL. OF WHEAT WAS LYING IN STOCK FROM LAST YEAR . 4. IF THE FACTS OF THE PRESENT APPEAL ARE KEPT IN JUXTAPOSITION WITH THE FACTS OF JUDICIAL PRONOUNCEM ENTS LIKE S. S. BUNDELA VS. ACIT, 3 SOT 491, (I.T.A.T. AGRA ), DCIT VS. SMT. ARCHNA DEVI, 84 TTJ 467 (JDR), K.K.CHANDAK VS. ITO, 103 TTJ 843 (I.T.A.T. JODHPUR ), S.M.BASHIR VS. ITO, 13 TTJ 236 (KOL) ETC. AND RATIO LAID DOWN THEREIN, IT CAN BE SAID TH AT SINCE IN PAST ASSESSMENT YEARS THE AGRICULTURAL INCOME DECLARED B Y THE ASSESSEE HAS BEEN ACCEPTED BY THE DEPARTMENT, THERE FORE, WITHOUT BRINGING CONTRARY EVIDENCE ON RECORD, THE D EPARTMENT IS NOT PERMITTED TO TAKE A U-TURN FOR THE IMPUGNED A SSESSMENT YEAR. THE RELIANCE CAN ALSO BE PLACED UPON THE DECI SION IN DIT (EXEMPTION) APPAREL EXPORT PROMOTION COUNCIL, 244 I TR 734, (DEL) AND HON'BLE JURISDICTIONAL HIGH COURT IN ACIT VS. GENDALAL HAZARILAL & CO., 263 ITR 679, WHEREIN IT W AS CLEARLY HELD THAT IF THE FACTS AND CIRCUMSTANCES OF EARLIER YEARS ARE SIMILAR, THE SAME VIEW SHOULD ORDINARILY BE FOLLOWE D IN 8 SUBSEQUENT YEARS. EVEN IF THE TOTAL INCOME OF RS. 4 ,94,200/- IS DIVIDED INTO 9.892 HECTARES (24.43 ACRES OF LAND ), IT COMES TO ABOUT RS. 20,000/- PER ACRE (FOR TWO CROPS IN A YEA R). THEREFORE, IT CAN BE SAFELY CONCLUDED THAT THE IMPUGNED INCOME CAN BE EARNED, THAT TOO FROM IRRIGATED LAND, EVEN OTHERWIS E THESE DAYS DUE TO INTERCROPPING AND VACANT PERIOD DURING TWO C ROPS, SOME OTHER SMALL DURATION CROPS LIKE SOYA, FODDER FOR AN IMAL, CAN ALSO BE GROWN, THEREFORE, THIS APPEAL OF THE ASSESSEE DE SERVES TO BE ALLOWED. CONSEQUENTLY, THE ADDITION OF RS.1 LAKH, T REATING THE SAME AS INCOME FROM OTHER SOURCES (OUT OF AGRICULTU RAL INCOME) IS DELETED. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 23 RD AUGUST, 2011. (JOGINDER SINGH) JUDICIAL MEMBER DATED: 23.8.2011 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE CPU*