Dr. Krishan Das, Muzaffarnagar V. ITO, Muzaffarnagar

ITA 4100/DEL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53329 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 14-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 09-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Keywords: Rectification of order
• Section: 143(3); 54; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH I NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI K.G. BANSAL ITA NO. 4100/DEL/2011 ASSESSMENT YEAR: 2006-07 SHRI KRISHAN DAS, VS. INCOME-TAX OFFICER, 148/2, ANSARI ROAD, WARD 2(2), MUZAFFARNAGAR. MUZAFFARNAGAR. (PAN: ABSPD7073R) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ANKIT GU PTA, ADV. RESPONDENT BY: SHRI AK MONGA, SR . DR DATE OF HEARING : 23.11.2011 DATE OF PRONOUNCEMENT : 30.11.2011 ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LEARNED CIT(APPEALS) DATED 21.06.2011 PASSED FOR ASSESSMENT YEAR 2006-07. THE GROUNDS OF APPEALS TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH RULE 8 OF THE ITAT'S RULES, THEY ARE DESCRIPTIVE AND ARGUM ENTATIVE IN NATURE. IN BRIEF, GRIEVANCE OF ASSESSEE IS THAT LEARNED CIT(AP PEALS) HAS ERRED IN CONFIRMING THE ORDER OF ASSESSING OFFICER PASSED UN DER SEC. 154 OF THE INCOME-TAX ACT, 1961 VIDE WHICH ASSESSING OFFICER H AS ASSESSED THE AGRICULTURAL INCOME OF HUF IN THE HANDS OF ASSESSEE . 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A MEDICAL PROFESSIONAL. HE HAS FILED HIS RETURN OF INCOME ON 27.7.2006 DECLARING AN INCOME OF RS.1,01,610. AN ASSESSMENT ORDER WAS PASS ED UNDER SEC. 143(3) OF THE ACT ON 21.10.2008 WHEREBY ASSESSING OFFICER HAS MADE AN ADDITION OF RS.24,000 ON ACCOUNT OF LOW HOUSEHOLD EXPENSES. HE DETERMINED THE TAXABLE INCOME OF THE ASSESSEE AT RS.1,25,610. ASSE SSING OFFICER THEREAFTER ISSUED A NOTICE UNDER SEC. 154 ON 27.1.2009. HE OBS ERVED THAT COPY OF KHATAUNI EXHIBITING AGRICULTURAL LAND MEASURING 1.9 640 HECTOR COMPRISED IN REVENUE ESTATE HARENTI PARAGANA PUR CHAPPAR, DISTT. MUZAFFARNAGAR IS AVAILABLE ON THE RECORD. ACCORDING TO THE ASSESSING OFFICER, THIS LAND IS OWNED BY ASSESSEE, BUT HE HAS NOT DECLARED ANY AGRI CULTURAL INCOME FROM THIS LAND. HE CONFRONTED THE ASSESSEE AS TO WHY HE HAS N OT DECLARED ANY AGRICULTURAL INCOME. IN REPLY TO HIS QUERY, IT WAS SUBMITTED BY THE ASSESSEE THAT AGRICULTURAL LAND HAS BEEN INHERITED BY THE AS SESSEE FROM HIS GREAT GRAND-FATHER, THEREFORE, IT IS AN ANCESTRAL PROPERT Y, WHICH ACTUALLY AND LEGALLY BELONGS TO HUF AND NOT TO THE ASSESSEE IN HIS INDIV IDUAL CAPACITY. ASSESSING OFFICER DID NOT ACCEPT THIS CONTENTION. HE ESTIMATE D THE AGRICULTURAL INCOME AT RS.50,000 AND INCLUDED IN THE TOTAL INCOME OF TH E ASSESSEE FOR RATE PURPOSES. 3 3. APPEAL TO THE LEARNED CIT(APPEALS) DID NOT BRING ANY RELIEF TO THE ASSESSEE. 4. BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE SUBM ITTED THAT HE HAS NOT DECLARED ANY AGRICULTURAL INCOME FROM THIS LAND. TH E STATUS OF THE LAND WHETHER BELONGS TO HUF OR TO THE ASSESSEE CANNOT BE DECIDED IN A PROCEEDING UNDER SEC. 154 OF THE ACT. HE PRAYED THA T THERE CANNOT BE ANY PRIMA FACIE ADJUSTMENT REQUIRED TO BE MADE IN THE P RESENT CASE. ON THE OTHER HAND, LEARNED DR RELIED UPON THE ORDERS OF THE REVE NUE AUTHORITIES BELOW. 5. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. THE POWERS OF RECTIFICATION UNDER SEC. 154 OF THE ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM T HE RECORD AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMEN TS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY C ONCEIVABLY BE TWO OPINIONS. THE STATUS OF THE AGRICULTURAL LAND WHETH ER BELONGS TO THE ASSESSEE OR TO THE HUF HAS TO BE DETERMINED. THIS DETERMINAT ION CANNOT BE CARRIED OUT BY WAY OF A PRIMA FACIE ADJUSTMENT UNDER SEC. 1 54 OF THE INCOME-TAX ACT, 1961. ASSESSING OFFICER OUGHT TO HAVE CONSIDER ED THIS ISSUE DURING THE SCRUTINY ASSESSMENT PROCEEDINGS. IN VIEW OF THE ABO VE DISCUSSION, WE ALLOW 4 THE APPEAL OF THE ASSESSEE AND SET ASIDE THE ORDER OF THE LEARNED CIT(APPEALS) AND QUASH THE RECTIFICATION ORDER PASS ED BY THE ASSESSING OFFICER. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. DECISION PRONOUNCED IN THE OPEN COURT ON 30.11.201 1 SD/- SD/- ( K.G. BANSAL ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30/11/2011 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR