Shri Gulamnabi S.Vohra, Anand V. The Income tax Officer,Ward-1, Anand

ITA 419/AHD/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9932 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-09-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 09-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JHA SRDR
• Keywords: Income from undisclosed sources; Set aside
• Section: 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO.419-420/AHD/2010 ASSESSMENT YEARS:2003-04 & 2004-05 DATE OF HEARING:9.9.10 DRAFTED:14.9.1 0 GULAMNABI S VOHRA, PROP. SAMIR STATIONARY & CYCLE MART, MADNA PARK,OPP. WATER WORKS, ANAND, PAN NO.ADRPV7895E V/S . INCOME TAX OFFICER, WARD-1, ANAND (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI TUSHAR P HEMANI, AR REVENUE BY:- SHRI S.K. JHA, SR-DR O R D E R THESE TWO APPEALS BY ASSESSEE ARE ARISING OUT OF T HE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-IV, BARODA IN APPEAL NO. CA B/IV-A-38-39/09-10 BY EVEN DATE 07-12-2009. THE ASSESSMENTS WERE FRAMED BY ITO WARD-1, ANAND U/S.143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) VIDE HIS DIFFERENT ORDERS DATED 24-02-2006 AND 28-11-2006 FOR ASSESSME NT YEARS 2003-04 & 2004-05 RESPECTIVELY. THE PENALTIES UNDER DISPUTE WAS LEVIE D BY ASSESSING OFFICER U/S.271(1) R.W.S. 274 OF THE ACT VIDE ORDER DATED 19-03-2009 AND 25-03-2009. 2. THE ONLY COMMON ISSUE IN THESE APPEALS OF ASSESS EE IS AGAINST THE ORDER OF CIT(A) IN CONFIRMING THE LEVY OF PENALTY MADE BY AS SESSING OFFICER U/S.271(1)(C) OF THE ACT. FOR THIS, ASSESSEE HAS RAISED COMMON GROUN D IN BOTH THE YEARS, EXCEPT AMOUNT THE GROUNDS ARE SAME IN BOTH THE APPEALS AND FOR THE SAKE OF CLARITY, WE WILL TAKE UP THE GROUND AS RAISED IN ASSESSMENT YEAR 200 3-04:- 1. THE PENALTY ORDER PASSED BY THE ASSESSING OFFIC ER U/S.271(1) OF IT ACT CONFIRMED BY THE FIRST APPEAL AUTHORITY IS BAD IN L AW AND DESERVES TO BE UNCALLED FOR. 2. THE ASSESSING OFFICER AS WELL AS FIRST APPELLANT AUTHORITY HAS ERRED IN LAW & ON FACTS IN LEVYING AND CONFIRMING RESPECTIVELY PEN ALTY OF RS.90,370/- ON ITA NO 419-20/AHD/2010 A.YS.03-04 & 0 4-05 GULAMNABI S VOHRA V. ITO WD-1 ANAND PAGE 2 ADDITION TOWARDS AGRICULTURAL INCOME. THE SAID PENA LTY DESERVES TO BE DELETED. 3. THE BRIEF FACTS ARE THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME CLAIMING AGRICULTURAL INCOME AT RS.3,28,230/- AND RS.3,55,32 0/- IN BOTH THE YEARS. THE ASSESSING OFFICER IN FIRST ASSESSMENT YEAR I.E. 200 3-04 CONCLUDED THAT ASSESSEE HAS NOT CARRIED OUT ANY AGRICULTURAL ACTIVITY AND ACCOR DINGLY TREATED THE ENTIRE AGRICULTURAL INCOME AS UNDISCLOSED U/S.68 OF THE ACT. IN ASSESSM ENT YEAR 2004-05, ASSESSING OFFICER OUT OF AGRICULTURAL INCOME DECLARED AT RS.3 ,55,320/- DISALLOWED THE AGRICULTURAL INCOME AT RS.2,51,847/- AND TREATED TH E SAME AS INCOME FROM OTHER SOURCES AND ADDED TO THE RETURNED INCOME. THE ADDIT IONS IN BOTH THE YEARS WERE CONFIRMED BY TRIBUNAL AND NO FURTHER APPEALS AGAINS T CONFIRMATION WERE CARRIED ON BY ASSESSEE BEFORE HONBLE JURISDICTIONAL HIGH COUR T. THE ASSESSING OFFICER, ACCORDINGLY LEVIED THE PENALTY AT RS.90,370/- AND R S.74,450/- IN BOTH ASSESSMENT YEARS I.E. 2003-04 AND 2004-05 RESPECTIVELY, ON THE BASIS THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. AGGRIEV ED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A) AND CIT(A) CONFIRMED THE LEVY OF PENA LTY BY GIVING FOLLOWING FINDINGS IN PARA-4 OF HIS APPELLATE ORDER, WHICH IS COMMON IN BOTH TH E YEARS:- 4. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AND APPELLANTS SUBMISSIONS. THE INCOME SHOWN AS AGRICULTURAL INCOM E WAS TAXED AS INCOME FROM UNDISCLOSED SOURCES AS PER FACTUAL FINDINGS IN THE ASSESSMENT ORDER, WHICH WERE UPHELD UPTO ITAT. THE APPELLANT WAS UNAB LE TO PROVE EXISTENCE OF LAND STANDING IN HIS NAME FOR CARRYING OUT AGRICULT URAL ACTIVITIES AND COULD NOT ESTABLISH CLAIM OF TAKING LAND ON LEASE. WHEN THE A SSESSING OFFICER ATTEMPTED TO VERIFY THE SALE BILLS AS WELL AS LEASE RENTALS B Y ISSUING SUMMONS/NOTICE U/S.133(6), THEY COME BACK UN-SERVED. APPELLANT, ON BEING ASKED, FAILED TO PRODUCE THE CONCERNED PARTIES. THE ONUS OF ESTABLIS HING GENUINENESS OF AGRICULTURAL INCOME WAS SQUARELY OF THE APPELLANT, WHICH COULD NOT BE DISCHARGED BY HIM AT ALL. ON THE CONTRARY, THE INVE STIGATIONS BY THE ASSESSING OFFICER PROVED THAT THE AGRICULTURAL INCOME TAXED A S INCOME FROM UNDISCLOSED SOURCES WAS NOT GENUINE. APPELLANTS CONTENTION REG ARDING THE ADDITION BEING NOT CORRECTLY MADE U/S.68 IS NOT RELEVANT AT THIS S TAGE, WHEN THE ADDITION HAWS BEEN UPHELD UPTO ITAT. FURTHER, AS PER EXPLANATION1 BELOW SECTION 271(1)(C), WHERE THE ASSESSEE FAILS TO OFFER AN EXPLANATION IN RESPECT OF ADDITION MADE TO HIS INCOME, THE SAME IS DEEMED TO REPRESENT INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. IN VIEW OF THIS, P ENALTY U/.S.271(1) OF RS.90,370/- IS CONFIRMED. 4. BEFORE ME LD. COUNSEL FOR THE ASSESSEE., SHRI TU SHAR P HEMANI STATED THAT THE FINDING OF CIT(A) IS WRONG IN RESPECT OF THE FA CT THAT THE ASSESSEE IS UNABLE TO PROVE THE LAND HOLDING IN HIS NAME AND COULD NOT ES TABLISH TAKING OF LAND ON LEASE. ITA NO 419-20/AHD/2010 A.YS.03-04 & 0 4-05 GULAMNABI S VOHRA V. ITO WD-1 ANAND PAGE 3 LD. COUNSEL FOR ASSESSEE FURTHER STATED THAT THE AS SESSEE HAS FILED COMPLETE DETAILS BEFORE ASSESSING OFFICER IN RESPECT OF 7/12 EXTRACT S OF OWN LAND HOLDING AS WELL AS LEASE AGREEMENT IN RESPECT OF LAND TAKEN ON LEASE. HE FILED COPIES BEFORE ME ALSO. IN VIEW OF THESE, LD. COUNSEL FOR THE ASSESSEE STATED THAT LET THIS ISSUE BE EXAMINED AFRESH BY THE CIT(A) AFTER TAKING INTO CONSIDERATIO N THE LAND HOLDING PAPERS AND LEASE AGREEMENTS IN RESPECT OF OWN LAND AS WELL AS LAND TAKEN ON LEASE. 5. AFTER HEARING BOTH THE SIDES, I FIND THAT THIS F ACT HAS NOT BEEN PROPERLY CONSIDERED AND EVEN NOW BEFORE ME ASSESSEE HAS FILE D COMPLETE DETAILS ON LAND HOLDING IN THE FORM OF 7/12 EXTRACT FROM THE REVENU E RECORDS AS WELL AS LEASE AGREEMENT AND THIS DOCUMENT NEEDS VERIFICATION AT T HE LEVEL OF CIT(A) AFRESH SO THAT HE CAN GIVE HIS FINDING IN RESPECT OF THE LAND HOLD ING AND ACCORDINGLY DECIDE THE ISSUE OF LEVY OF PENALTY IN BOTH THE YEARS. IN VIEW OF THESE DOCUMENTS, I SET ASIDE THE COMMON ISSUES IN BOTH THE APPEALS OF ASSESSEE TO TH E FILE OF CIT(A) FOR FRESH ADJUDICATION TAKING INTO CONSIDERATION THE ABOVE DO CUMENTS AND ACCORDINGLY THESE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES AS IND ICATED ABOVE. 6. IN THE RESULT, BOTH APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 09/09/2010 SD/- (MAHAVIR SIN GH) (JUDICIAL MEMBER) AHMEDABAD, DATED : 09/09/2010 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-VI, BARODA 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD