Suguna Nagesh, New Delhi V. ITO, New Delhi

ITA 3585/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4110 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 27-07-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 03-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: V K TULSIYAN
• Keywords: Gift; Rule of consistency
• Section: 147; 263; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO.3585/DEL/2015 ASSESSMENT YEAR : 2011-12 SUGUNA NAGESH, A- 21/70, SECOND AVENUE, LODHI COLONY, NEW DELHI. VS. ITO, WARD- 31(4), NEW DELHI. PAN : ABFPN5024K (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V. K. TULSIYAN, CA DEPARTMENT BY : SHRI T. VASANTHAN, SR.DR DATE OF HEARING : 26-09-2017 DATE OF PRONOUNCEMENT : 16-10-2017 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 31.03.2015 OF CIT(A)- 18, NEW DELHI RELATING TO ASS ESSMENT YEAR 2011-12. 2. THIS APPEAL WAS EARLIER DISMISSED BY THE TRIBUNA L FOR NON-APPEARANCE. SUBSEQUENTLY, THE TRIBUNAL VIDE ORDER DATED 27.07.2 016 RECALLED ITS EARLIER ORDER. HENCE, THIS IS A RECALLED ORDER. 3. GROUND NO.1 BEING GENERAL IN NATURE IS DISMISSED . 4. GROUND NO.2 BY THE ASSESSEE READS AS UNDER :- 2. WHETHER THE LD. CIT(A) WAS JUSTIFIED BY UPHOLDI NG THE ORDER OF AO ON THE ADDITION OF RS.332853/- AS AGRICULTURAL INCOME IS T AXABLE WITHOUT APPRECIATING EVIDENCE I.E. THE OWNERSHIP OF THE LAND, DETAILS OF KHARNA AND KHATONI, DETAILS OF CROP, SALE BILLS ARE ALREADY ON THE RECORD AND MOREOVER T HE AGRICULTURAL INCOME ON THE SAME LAND HAS BEEN ASSESSED REGULARLY AS EXEMPT INC OME IN THE LAST SO MANY YEARS. 2 ITA NO.3585/DEL/2015 5. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND FILED HER RETURN OF INCOME ON 30.07.2011 DECLARING NET IN COME OF RS.4,60,950/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSING OFFICER OBSERVED THAT THE ASSESSEE HAS SHOWN AGRICULTURAL INCOME OF RS.3,32,853/-. HE, THEREFORE, ASKED THE ASSESSEE TO EXPLAIN SUCH AGRICULTURAL INC OME. THE ASSESSEE IN HER RESPONSE SUBMITTED THAT THE ASSESSEE OWNS LAND IN V ILLAGE BYKERE AT THE FOLLOWING ADDRESS :- BYKERE VILLAGE, BYKERE POST, KASABA HOBLI, SAKLESHPUR TALUK, HASSAN DISTT. THE ASSESSEE ALSO SUBMITTED THE COPY OF CROP CERTI FICATE ISSUED BY THE VILLAGE ACCOUNTANT. IT WAS ACCORDINGLY ARGUED THAT THE AGRICULTURAL INCOME TAKEN BY THE ASSESSEE SHOULD BE ACCEPTED. 6. HOWEVER, THE ASSESSING OFFICER REJECTED SUCH AGR ICULTURAL INCOME ON THE GROUND THAT THE ASSESSEE COULD NOT SATISFACTORILY E XPLAIN THE RECEIPT OF SUCH AGRICULTURAL INCOME. 6.1 BEFORE THE CIT(A), THE ASSESSEE REITERATED THE SAME ARGUMENT AS MADE BEFORE THE ASSESSING OFFICER AND SUBMITTED THAT THE ASSESSEE IS ENGAGED IN AGRICULTURAL ACTIVITY FOR THE LAST SO MANY YEARS AN D DULY SHOWING THIS IN HER IT RETURNS. THE ASSESSEE HAS FILED CROP CERTIFICATE A ND AFFIDAVIT IN SUPPORT OF LAND HOLDING AND A CERTIFICATE OF VILLAGE ACCOUNTANT OF COFFEE LAND WAS ALSO FILED. 3 ITA NO.3585/DEL/2015 6.2 HOWEVER, LD. CIT(A) ALSO WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND UPHELD THE ACTION OF THE ASSESSING OFFICER. WHILE DOING SO, HE OBSERVED THAT THE ASSESSEE COULD NOT GIVE ANY EVIDE NCE IN SUPPORT OF THE OWNERSHIP OF THE LAND AND EVIDENCE IN SUPPORT OF SA LE OF AGRICULTURAL PRODUCE. ACCORDING TO THE LD. CIT(A) IF THE ASSESSEE IS CONT INUOUSLY ENGAGED IN THE AGRICULTURAL ACTIVITY, THE DOCUMENTS SHOULD BE READ ILY AVAILABLE WITH THE ASSESSEE. SINCE THE ASSESSEE FAILED TO SUBSTANTIAT E WITH EVIDENCE TO HIS SATISFACTION, HE UPHELD THE ACTION OF THE ASSESSING OFFICER TRACKING THE AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES. 7. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 8. LD. COUNSEL FOR THE ASSESSEE REFERRING TO VARIOU S PAGES OF THE PAPER BOOK SUBMITTED THAT THE ASSESSEE IS SHOWING AGRICULTURAL INCOME CONTINUOUSLY. FOR ASSESSMENT YEAR 2010-11, THE ASSESSEE HAD SHOWN AGR ICULTURAL INCOME OF RS.3,26,326 (PAGE 14 AND 20). SIMILARLY, FOR ASSES SMENT YEAR 2012-13 IT HAS BEEN SHOWN AT RS.3,80,844/- AS PER PAPER BOOK PAGE 22. FOR ASSESSMENT YEAR 2013-14, THE SAME HAS BEEN SHOWN AT RS.4,10,530/- ( PAGE 24). THE SAME HAS BEEN SHOWN AT RS.4,20,368/- FOR ASSESSMENT YEAR 201 4-15 (PAGE 26). HE SUBMITTED THAT EVEN THOUGH THE ASSESSING OFFICER HA S REJECTED THE CLAIM OF THE AGRICULTURAL INCOME FOR THE IMPUGNED ASSESSMENT YEA R, HOWEVER, THE INCOME SHOWN IN OTHER ASSESSMENT YEARS HAS BEEN ACCEPTED A ND THE ASSESSMENTS HAVE 4 ITA NO.3585/DEL/2015 NOT BEEN REOPENED U/S 147 OR U/S 263 OF THE I.T. AC T. THEREFORE, THE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE SHOULD BE ACCEPTED. F OR THIS PROPOSITION, HE RELIED UPON THE DECISION OF THE HON'BLE SUPREME COU RT IN THE CASE OF RADHASOAMI SATSANG VS. CIT REPORTED IN 193 ITR 321 AND THE DECISION IN THE CASE OF CIT VS. EXCEL INDUSTRIES LTD. REPORTED IN 3 58 ITR 295. 9. LD. DR ON THE OTHER HAND HEAVILY RELIED ON THE O RDER OF THE CIT(A). HE SUBMITTED THAT THE PRINCIPLES OF RES-JUDICATA DO NO T APPLY TO THE INCOME-TAX PROCEEDINGS. RELYING ON VARIOUS DECISIONS, HE SUBM ITTED THAT THE ORDER OF THE CIT(A) BE UPHELD. HE RELIED ON THE DECISIONS REPOR TED IN 32 ITR 466, 155 ITR 121 AND 188 ITR 44. 10. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE ME. I FIND THE ASSESSING OFFICER REJECTED THE CLAI M OF AGRICULTURAL INCOME ON THE GROUND THAT THE ASSESSEE COULD NOT SUBSTANTIATE WIT H EVIDENCE TO HER SATISFACTION REGARDING EARNING OF SUCH AGRICULTURAL INCOME BY PR ODUCING THE REQUISITE DETAILS WHICH HAS BEEN UPHELD BY THE LD. CIT(A). FROM THE VARIOUS DETAILS FURNISHED BY THE ASSESSEE IN THE PAPER BOOK I FIND THAT THE ASSE SSEE IN ASSESSMENT YEAR 2010- 11 HAS SHOWN AGRICULTURAL INCOME OF RS.3,26,326/-, COPY OF WHICH IS PLACED AT PAGE 20 OF THE PAPER BOOK. SIMILARLY, FOR ASSESSME NT YEAR 2012-13, THE ASSESSEE HAS SHOWN AGRICULTURAL INCOME OF RS.3,80,8 44/-, COPY OF WHICH IS 5 ITA NO.3585/DEL/2015 PLACED AT PAGE 22 OF PAPER BOOK. FOR ASSESSMENT YE AR 2013-014, THE ASSESSEE HAD SHOWN AGRICULTURAL INCOME OF RS.4,10,530/-, COP Y OF WHICH IS PLACED AT PAGE 24 OF THE PAPER BOOK. SIMILARLY, FOR ASSESSMENT YE AR 2014-15, ASSESSEE HAS SHOWN AGRICULTURAL INCOME OF RS.4,20,368/-, COPY OF WHICH IS PLACED AT PAGE 26 OF PAPER BOOK. NONE OF THE CASES HAVE BEEN REOPENE D U/S 147/263 OF THE I.T. ACT EVEN AFTER THE SCRUTINY ASSESSMENT REJECTING TH E CLAIM OF AGRICULTURAL INCOME. I, THEREFORE, FIND MERIT IN THE ARGUMENT A DVANCED BY THE LD. COUNSEL FOR THE ASSESSEE THAT IN THE LIGHT OF RULE OF CONSISTEN TLY ALONE THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE SHOULD BE ACCEPTED. ALTHOUGH, THE PRINCIPLE OF RES-JUDICATA DO NOT APPLY TO THE INCOME-TAX PROCEED INGS, HOWEVER, SINCE THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE IN THE PRECEDING AND SUCCEEDING YEAR HAS BEEN ACCEPTED BY THE REVENUE, ALTHOUGH UND ER SECTION 143(1) PROCEEDINGS, AND SINCE NONE OF THE ASSESSMENTS HAVE BEEN REOPENED, THEREFORE, FOLLOWING THE RULE OF CONSISTENCY, I AM OF THE CONS IDERED OPINION THAT THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE SHOULD NOT HAVE BEEN REJECTED. I, THEREFORE, SET-ASIDE THE ORDER OF THE CIT(A) AND DI RECT THE ASSESSING OFFICER TO ACCEPT THE AGRICULTURAL INCOME. 11. GROUND NO.3 BY THE ASSESSEE READS AS UNDER :- 3. WHETHER THE LD. CIT(A) WAS JUSTIFIED BY UPHOLDI NG THE ORDER OF THE AO ON THE ADDITION OF RS.150000/- U/S 68 AS A GIFT FROM HUSBA ND AS UNEXPLAINED. 6 ITA NO.3585/DEL/2015 12. AFTER HEARING BOTH THE SIDES, I FIND THE ASSESS ING OFFICER DISALLOWED THE CLAIM OF RECEIPT OF GIFT OF RS.1,50,000/- BY ASSESS EE FROM HER HUSBAND ON THE GROUND THAT THERE WAS NO CORRESPONDING WITHDRAWAL F ROM HUSBANDS BANK ACCOUNT. I FIND IN APPEAL LD. CIT(A) UPHELD THE AC TION OF THE ASSESSING OFFICER FOR WHICH THE ASSESSEE IS IN APPEAL BEFORE THE TRIB UNAL. 13. I FIND FROM THE PAPER BOOK FILED BY THE ASSESSE E THAT THE GIFT DEED HAS BEEN DULY EXECUTED BY THE HUSBAND OF THE ASSESSEE O N 08.07.2010. FROM THE VARIOUS DETAILS FURNISHED BY THE ASSESSEE, I FIND T HE GIFT HAS BEEN RECEIVED BY THE ASSESSEE DURING THE PERIOD FROM 01.04.2010 TO 08.07 .2010. I FIND THE ASSESSEE BEFORE THE ASSESSING OFFICER HAD GIVEN THE PAN AND CONFIRMATION OF THE DONOR AND COPY OF THE INCOME-TAX RETURN DURING THE ASSESS MENT PROCEEDINGS. IT WAS GIVEN OUT OF THE CASH BALANCE WITH HER HUSBAND. SI NCE OUT OF RS.4,25,000/- CASH GIFT, THE ASSESSING OFFICER HAS ALREADY ACCEPTED RS .2,75,000/- AS EXPLAINED THEREFORE, I FIND NO REASON TO DISBELIEVE THE CAPAC ITY OF HER HUSBAND TO THE BALANCE AMOUNT OF RS.1,50,000/- RECEIVED AS CASH GI FT. THE GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. 14. GROUND NO.4 BY THE ASSESSEE READS AS UNDER :- 4. WHETHER THE LD. CIT(A) WAS JUSTIFIED BY UPHOLDI NG THE ORDER OF THE AO ON THE ADDITION OF RS.1115000/- AS ADVANCE RECEIVED ON ACC OUNT OF SALE OF FUTURE STANDING CROPS BY SIDETRACKING THE EVIDENCE BY WAY OF CONFIR MATION WITH PAN NO. AND NATURE OF CROPS ETC. ON THE RECORD. 7 ITA NO.3585/DEL/2015 15. AFTER HEARING BOTH THE SIDES, I FIND THE ASSESS ING OFFICER MADE AN ADDITION OF RS.11,15,800/- BEING AMOUNT RECEIVED BY THE ASSESSEE IN CASH REPRESENTING ADVANCE RECEIPT AGAINST THE SALE OF CR OP RECEIVED FROM SHRI B.N. RAJU ON THE GROUND THAT THE ASSESSEE DID NOT FILE A NY EVIDENCE TO PROVE THE CAPACITY OF SUCH CREDITOR TO ADVANCE THE MONEY AND THE GENUINENESS OF CASH RECEIPTS. I FIND IN APPEAL LD. CIT(A) ALSO UPHELD THE ACTION OF THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE COULD NOT F ILE ANY EVIDENCE TO PROVE THE CAPACITY OF THE PERSON WHO ADVANCED THE HUGE AMOUNT . CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUS TICE, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE WITH EV IDENCE TO HIS SATISFACTION REGARDING THE IDENTITY AND CAPACITY OF THE PERSON T O GIVE SUCH HUGE CASH ADVANCE AND GENUINENESS OF THE TRANSACTION. THE GROUND RAI SED BY THE ASSESSEE IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 16. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF OCTOBER, 2017. SD/- (R. K. PANDA) ACCOUNTANT MEMBER DATED: 16-10-2017. SUJEET 8 ITA NO.3585/DEL/2015 COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI