Shri Harinath Mahendrabhai Jha, Anand V. The ACIT.,Circle, Anand

ITA 3766/AHD/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6581 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-05-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 19-11-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HITESH PATEL SHRI O P BATHEJA
• Keywords: Depreciation; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI G.D. AGARWAL, VICE-PRESIDENT (AZ) AND SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER DATE OF HEARING : 18/05/2011 DRAFTED ON:28/05/ 2011 APPEAL(S) BY SL. NO(S). ITA NO(S) ASSESSMENT YEAR(S) APPELLANT RESPONDENT 1. 3766/AHD/2008 2000-01 HARINATH MAHENDRABHAI JHA 3-B SHIV COMPLEX SUBHASH ROAD ANAND PAN: ACDPJ 8390 D THE ASST.CIT CIRCLE WARD-1ANAND 2. 3767/AHD/2008 2001-02 ASSESSEE REVENUE 3. 3768/AHD/2008 2002-03 ASSESSEE REVENUE 4. 3769/AHD/2008 2003-04 ASSESSEE REVENUE ASSESSEE BY : SHRI HITESH PATEL REVENUE BY : SHRI O.P.BATHEJA, SR.D.R. O R D E R PER BENCH : THESE FOUR APPEALS HAVE BEEN FILED BY THE ASSESSEE ARISING FROM THE ORDERS OF THE LD.CIT(APPEALS)-IV, BARODA A LL IDENTICALLY DATED 15/9/2008 RESPECTIVELY FOR THE ASSESSMENT YEA RS 2000-01, 2001-02, 2002-03 & 2003-04. FOR ALL THE YEARS, THE GROUND IN RESPECT OF AGRICULTURAL INCOME IS COMMON AND HEREIN BELOW REPRODUCED FROM THE LEAD ASSESSMENT YEAR 2000-01. EXTRACTED FROM A.Y. 2000-01 1. LD. COMMISSIONER OF INCOME TAX (APPEALS-IV) HA S GRAVELY ERRED IN NOT APPRECIATING THE FACTS AND PRO OFS OF AGRICULTURAL INCOME EARNED AND TREATED AS INCOME FR OM ITA NOS.3766 TO 3769/AHD/2008 HARINATH MAHENDRABHAI JHA VS. ACIT ASST.YEARS 2000-01 TO 2003-04 - 2 - UNDISCLOSED SOURCES OF RS.1,05,500/- (FOR A.Y.2001- 02 OF 1,15,750/-, FOR A.Y.2002-03 OF RS.1,45,000/- AND FO R A.Y.2003-04 OF RS.4,15,000/-) AND CONFIRMED ADDITI ON OF IT. 2. THE ASSESSEE IS A CONSULTING AYURVEDIC DOCTOR. A RETURN OF INCOME WAS FILED DISCLOSING PROFESSIONAL INCOME AND AGRICULTURAL INCOME. IN RESPECT OF AGRICULTURAL INCOME, CERTAIN ENQUIRIES WERE MADE, HOWEVER, THE ASSESSEE HAS INFORMED THAT DUE T O RAINS HE WAS UNABLE TO PRODUCE THE REQUISITE INFORMATION. ON ACCOUNT OF THE SAID NON-COMPLIANCE, THE ASSESSING OFFICER HAS HELD THA T THE DISCLOSED AGRICULTURAL INCOME WAS NOTHING BUT THE UNACCOUNTE D PROFESSIONAL INCOME OF THE ASSESSEE. THEREFORE, THE ENTIRE AMO UNT WAS TREATED AS INCOME FROM UNDISCLOSED PROFESSIONAL INCOME. 3. THE MATTER WAS CARRIED BEFORE THE FIRST APPELLAT E AUTHORITY. THE LEARNED CIT(APPEALS) HAS AFFIRMED THE ACTION OF THE ASSESSING OFFICER ASSIGNING THE REASON THAT IN-SPITE-OF GIVI NG SEVERAL OPPORTUNITIES, THE ASSESSEE HAS NOT OFFERED ANY EXP LANATION. HOWEVER, WHILE DECIDING THE APPEAL FOR AY 2003-04 V IDE ORDER DATED 15/09/2008, THE CIT(A) HAD GRANTED AN OPPORTU NITY OF CROSS- EXAMINATION TO THE ASSESSEE AND IN THIS REGARD CERT AIN FACTS WERE NOTED BY HIM AS PER THE FOLLOWING PARAGRAPH :- 3.3. IN THE INTEREST OF JUSTICE, THE ASSESSING OFF ICER WAS DIRECTED TO PROVIDE AN OPPORTUNITY TO THE APPELLANT TO CROSS EXAMINE SHRI SHASHINATH JHA AND ALSO TO GIVE A COPY OF THE INSPECTORS REPORT TO THE APPELLANT. CROSS EXAMIN ATION TOOK ITA NOS.3766 TO 3769/AHD/2008 HARINATH MAHENDRABHAI JHA VS. ACIT ASST.YEARS 2000-01 TO 2003-04 - 3 - PLACE IN GUJARATI AND AN ENGLISH TRANSLATION OF THE SAME WAS FORWARDED TO THIS OFFICE VIDE LETTER DATED 12.8.200 8. DURING THE CROSS EXAMINATION THE FATHER OF THE ASSESSEE SH RI MAHENDRABHAI GANESHBHAI JHA AS WELL AS SURESH PRAJA PATI ITP WERE PRESENT. IN THE SAID CROSS EXAMINATION, S HRI SHASHINATH JHA SUBMITTED THAT THERE IS IN TOTAL 35 GUNTHAS IN SURVEY NO.428 OUT OF WHICH 17 GUNTHAS BELONGS TO SH RI HARINATH JHA. THE LAND SHARE OF SHRI HARINATH JHA HAD BEEN ASSIGNED TO HIM FOR AGRICULTURAL PURPOSES WHICH SAF ED MUSLI, KWARPAT ETC. WERE BEING GROWN. HOWEVER, HE SUBMITT ED THAT HE HAD NOT GIVEN ANY SHARE OUT OF AGRICULTURAL INCO ME. SHRI SHASHINATH JHA FURTHER SUBMITTED THAT HERBALS WERE BEING PRODUCED HIS LAND BELONGING TO HIS BROTHER, BUT HE HAD NOT SOLD ANY, NOR HAS HE INCURRED ANY EXPENSES FOR IT. SHRI SHASHINATH JHA FURTHER REITERATED THAT HE HAD NOT P AID ANY AMOUNT, LET ALONE RS.4,15,000/- TO DR.HARINATH JHA. SHRI SHASHINATH JHA ALSO SUBMITTED THAT DR.HARINATH JHA WAS HIS ELDER BROTHER BUT THEY WERE STAYING SEPARATELY SINC E 1995 AND THERE WERE NO TRANSACTIONS BETWEEN THEM. 3.1. THOUGH THE ASSESSEE AND HIS FATHER HAVE STATED THAT CERTAIN HERBALS WERE CULTIVATED BUT IN THE ABSENCE OF ANY E VIDENCE THE CLAIM OF INCOME FROM AGRICULTURAL PRODUCE WAS REJECTED AN D THE ACTION OF THE ASSESSING OFFICER WAS AFFIRMED. NOW THE ASSES SEE IS IN APPEALS. 4. ON THE DATE OF HEARING, AN ADJOURNMENT WAS SOUGH T HOWEVER IT HAS ALSO BEEN NOTICED BY US THAT THE ASSESSEE HAS M OVED A PETITION FOR ADMISSION OF ADDITIONAL EVIDENCE, EXTRACTED FRO M THE ASSESSMENT YEAR 2000-01. IN THE MATTER OF ABOVE APPEAL, I BEG TO SUBMIT HER EWITH ADDITIONAL EVIDENCE BY WAY OF COPY OF ACCOUNT FROM JADIBUTTI, ITA NOS.3766 TO 3769/AHD/2008 HARINATH MAHENDRABHAI JHA VS. ACIT ASST.YEARS 2000-01 TO 2003-04 - 4 - PROP: MANOJBHAI K.SANGHVI, C-102, SONA COMPLEX, RAJ AN NAGAR, VALSAD ALONG WITH PURCHASE BILL ISSUED BY JA DIBUTTI IN RESPECT OF SALE OF SAFED MUSLI AMOUNTING TO RS.1,05 ,500/-. IT IS SUBMITTED THAT DUE TO CIRCUMSTANCES BEYOND MY CONTROL, I COULD NOT PRODUCE THE ABOVE EVIDENCE BEFORE THE ASS ESSING OFFICER AND IN THE INTEREST OF JUSTICE, THE SAME MA Y BE ADMITTED AS ADDITIONAL EVIDENCE IN THE ABOVE APPEAL. 5. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESEN TATIVE AND ON DUE CONSIDERATION OF THE TOTALITY OF THE CIR CUMSTANCES OF THE CASE, WE HAVE DECIDED TO PROCEED WITH THE MATTER. SINCE THE ASSESSEE IS REQUESTING FOR ADMISSION OF CERTAIN ADD ITIONAL EVIDENCES AND THOSE EVIDENCES HAVE A DIRECT BEARING ON THE IS SUE OF DETERMINATION OF AGRICULTURAL INCOME, THEREFORE, WE DEEM IT PROPER TO ADMIT BUT TO BE VERIFIED BY THE AUTHORITIES BELO W. DUE TO THIS REASON, WE HEREBY RESTORE THIS GROUND BACK TO THE S TAGE OF FIRST APPELLATE AUTHORITY TO RE-DECIDE THIS ISSUE IN THE LIGHT OF THE EVIDENCES NOW PLACED ON RECORD AFTER DUE VERIFICATI ON OF THE CORRECTNESS OF THE EVIDENCES AS PER LAW. WITH TH ESE DIRECTIONS, THIS GROUND IS HEREBY ALLOWED BUT FOR STATISTICAL PURPOS ES. 6. FOR ASSESSMENT YEAR 2003-04, THE ASSESSEE HAS RA ISED FOLLOWING THREE GROUNDS:- 2. LD. COMMISSIONER OF INCOME TAX (APPEALS-IV) HAS GRAVELY ERRED IN NOT APPRECIATING T5HE FACTS AND ERRONEOUS AND UNLAWFUL LOGIC FOLLOWED IN NOT ALLOWING THE DEPRECI ATION ON MOTOR CAR OF RS.1,39,945/- AND CONFIRMED THE DISALL OWANCE OF IT. ITA NOS.3766 TO 3769/AHD/2008 HARINATH MAHENDRABHAI JHA VS. ACIT ASST.YEARS 2000-01 TO 2003-04 - 5 - 3. LD. COMMISSIONER OF INCOME TAX (APPEALS-IV) HA S GRAVELY ERRED IN NOT APPRECIATING THE FACTS AND UNLAWFUL LO GIC FOLLOWED IN NOT ALLOWING INTEREST ON CAR LOAN OF RS.35,020/- AND CONFIRMED THE DISALLOWANCE OF IT. 4. LD. COMMISSIONER OF INCOME TAX (APPEALS-IV) HAS GRAVELY ERRED IN NOT APPRECIATING THE FACTS UNLAWFUL LOGIC FOLLOWED IN NOT ALLOWING AND VEHICLE EXPENSES OF RS.26,300/- AN D CONFIRMED THE DISALLOWANCE OF IT. 6.1. ON PERUSAL OF THE ORDER OF THE LD.CIT(A), WE HAVE FOUND THAT THE DISALLOWANCES AS REFERRED IN THE ABOVE THREE GR OUNDS HAVE BEEN ALLOWED AS IS APPARENT FROM THE FOLLOWING RELEVANT PARAGRAPH: 2.3. I HAVE CONSIDERED THE ORDER OF THE ASSESSING OFFICER AND THE SUBMISSIONS OF THE APPELLANT. THE ASSESSING O FFICER HAS DISALLOWED THE EXPENSES CLAIMED ONLY ON THE GROUND THAT THE APPELLANT IS CARRYING OUT HIS PROFESSION FROM HIS R ESIDENCE ONLY. THE ASSESSING OFFICER HAS NOT TAKEN INTO C ONSIDERATION THE VARIOUS ORGANIZATION WITH WHICH THE APPELLANT I S CONNECTED. FURTHER VEHICLE EXPENSES CLAIMED FOR A SCOOTER OWNED BY THE APPELLANT HAD BEEN ALLOWED BY THE ASSE SSING OFFICER. THE MERE FACT THAT HE HAS UPGRADED TO A C AR DOES NOT MEAN THAT THE VEHICLE HAS NOT BEEN USED FOR THE PUR POSE OF PROFESSION. IN VIEW OF THE ABOVE, I HOLD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN DISALLOWING THE APPELL ANTS CLAIM OF DEPRECIATION OF RS.1,39,945/-, INTEREST EXPENSES OF RS.35,920/- AND VEHICLE EXPENSES OF RS.26,300/-. T HE ASSESSING OFFICER IS DIRECTED TO ALLOW THE SAME. 7. ONCE THE GRIEVANCES OF THE ASSESSEE HAVE ALREADY BEEN REDRESSED BY THE FIRST APPELLATE AUTHORITY, THEREFO RE THESE GROUNDS ARE MISCONCEIVED AND WRONGLY RAISED BEFORE US BY THE AS SESSEE. WITH THE RESULT, THESE GROUNDS ARE HEREBY DISMISSED. ITA NOS.3766 TO 3769/AHD/2008 HARINATH MAHENDRABHAI JHA VS. ACIT ASST.YEARS 2000-01 TO 2003-04 - 6 - 8. IN THE RESULT, ASSESSEES APPEALS FOR ASSESSMENT YEARS 2000-01 TO 2002-03 ARE ALLOWED FOR STATISTICAL PURP OSES ONLY AND APPEAL FOR ASSESSMENT YEAR 2003-04 IS PARTLY ALLOW ED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 20/ 05 /2011. SD/- SD/- ( G.D. AGARWAL ) ( MUKUL KR. SHRAWAT ) VICE PRESIDENT (AZ) JUDICIAL ME MBER AHMEDABAD; DATED 20/ 05 /2011 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-IV, BARODA 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 1. DATE OF DICTATION..18/5/2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 18/05/2011 OTHER MEMBER 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 THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S20/05/2011 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20/05/2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER