Late Shri Gordhanbhai M. Jaksania, RAJKOT-GUJARAT V. The Deputy Commissioner of Income Tax, Central Circle-2, RAJKOT-GUJARAT

ITA 450/RJT/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6864 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-01-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 22-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SONTAKKE
• Assessee Lawyers: DM RINDANI
• Section: 153A; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV , JUDICIAL MEMBER ./ ITA NO . 450 AND 488 / RJT / 20 1 3 / ASS TT. YEAR : 2005 - 06 AND 2011 - 12 LATE SHRI GO R DHANBHAI M. JAKASANI LR SHRI KISHORBHAI G. JAKASANIA 601, NEW EMPIRE APARTMENTS SAURASHTRA UNIVERSITY ROAD RAJKOT. VS DCIT, CENT.CIR.2 RAJKOT / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI D.M. RINDANI, CA REVENUE BY : SHRI ARVIND SONTAKKE, DR / DATE OF HEARING : 3 0 / 1 0 /201 7 / DATE OF PRONOUNCEMENT: 01 / 1 1 /201 7 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : PRESENT TWO APPEALS ARE DIRECTED AT THE INSTANCE OF ASSESSEE AGAINST ORDERS OF THE LD.CIT(A) - IV, AHMEDABAD DATED 23.10.2013 AND 13.11.2013 PASSED FOR THE ASSTT.YEARS 2005 - 06 AND 2011 - 12 RESPECTIVELY. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING ADDITION S OF RS.5,28,329/ - AND RS.7,14,173/ - WHICH WERE ADDED BY THE ASSESSING OFFICER WITH THE AID OF SECTION 68 IN THE ASSTT.YEAR 2005 - 06 AND 2011 - 12 RESPECTIVELY. 3. WITH THE LD.REPRESENTATIVES, WE HAVE GONE THROUGH TH E RECORD. THE FACTS ON ALL VITAL POINTS ARE COMMON IN BOTH THE ASSESSMENT YEARS. THEREFORE, FOR THE FACIL I TY OF REFERENCE, WE TAKE THE FACTS MAINLY FROM THE ASSTT.YEAR 2005 - 06. ITA NO . 450 AND 488 /RJT/201 3 2 4. IT EMERGES OUT FROM RECORD THAT A SEARCH UNDER SECTION 132 OF THE INCOME TAX ACT , 1961 WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE ON 24.6.2010. NOTICE UNDER SECTION 153A OF THE ACT WAS SERVED UP ON THE ASSESSEE. IN RESPONSE TO THE NOTICE , THE ASSESSE E FILED RETURN OF INCOME IN BOTH THE ASSESSMENT YEARS DECLARING NIL INCOME. HE DECLARED AGRICULTURE INCOME OF RS. 2,47,671/ - AND RS.5,30,094/ - IN THE ASSTT.YEAR S 2005 - 06 AND 2011 - 12 RESPECTIVELY. THE ASSESSING OFFICER FOUND THAT A SUM OF RS. 7,76,000/ - WAS DEPOSITED IN STATE BANK OF SAURASHTRA, RING ROAD B RANCH , RAJKOT ON 6.12.2004. SIMILARLY, HE FOUND THAT A SUM OF RS.12,44,267/ - WAS DEPOSITED IN CASH ON DIFFERENT DATES DURING THE ACCO UNTING PERIOD RELEVANT TO THE ASSTT .YEAR 2011 - 12. WHEN THE ASSESSEE WA S ASKED TO EXPLAIN THE SO URCE OF DEPOSITS ALONG WITH NATURE OF TRANS A CTION, THEN, HE POINTED OUT THAT HE HAS AGRICULTURE INCOME. THESE AMOUNTS WERE DEPOSITED OUT OF PAST SAVINGS. THE LD.AO DID NOT ACCEPT THIS EXPLAN ATION OF THE ASSESSEE. HE MADE AN ADDI TION OF RS.7,76,000/ - IN THE ASSTT.YEAR 2005 - 06 AND RS.12,44,267/ - IN THE ASSTT.YEAR 2011 - 12. ON APPEAL, THE LD. C IT(A) HAS GRANTED SET OFF OF AGRICULTURE INCOME DECLARED BY THE ASSESSEE VIZ. OUT OF AN ADDITION MADE OF RS.7,76,000/ - IN THE ASSTT.YEAR 2005 - 06, THE LD.CIT(A) HAS DELETED THE ADDITION OF RS. 2,47,671/ - ON THE G R OUND THAT AGRICULTURE INCOME DISCLOSED BY THE ASSESSEE IS TO BE SET OFF AGAINST ALLEGED UNEXPLAINED DEPOSITS, BECAUSE, THIS MUCH CASH AMOUNT WAS AVAILABLE WITH THE ASSESSEE. SIMILAR LY, IN THE ASSTT.YEAR 2011 - 12, A SET OFF OF RS. 5,30,094/ - WAS GRANTED. IN THIS WAY, THE LD.CIT(A) HAS CONFIRMED AN ADDITION OF RS.5,28,329/ - IN THE ASSTT.YEAR 2005 - 06 AND RS.7,14,173/ - IN THE ASSTT.YEAR 2011 - 12. 5. THE CONTENTION O F THE LD.COUNS E L FOR THE ASSESSEE WAS THAT THE ASSESSEE HAS AGRICULTURE INCOME IN THE PAST ALSO. HE HAS NO OTHER SOURCE OF INCOME. IN SPITE OF SEARCH NOTHING WAS FOUND. THEREFO RE , THE BENE FIT OF EARLIER YEAR S AGRICULTURE INCOME SHOULD BE GIVEN. HE POINTED OUT THAT FROM TH E ASSTT .YEAR 2005 - 06 ONWARDS IF RS.2,50,000/ - WAS ITA NO . 450 AND 488 /RJT/201 3 3 CONSIDERED AS ANNUAL AGRICULTURE INCOME THEN UPTO A.Y.2009 - 10 IT COULD BE ACCUMULATED TO RS.1 0 , 0 0 , 0 0 0 / - . THE LD. C IT(A) OUGHT TO HAVE GIVEN BENEFIT THIS TOTAL AC C UMU LATED INCOME. ON THE OTHER HAND, THE LD.DR RELIED UPON ORDERS OF THE REVENUE AUTHORITIES BELOW. 6. ON DUE CONSIDERATION OF THE ABOVE FACTS, WE ARE OF THE VIEW THAT THE LD.CIT(A) OUGHT TO HAVE NOT CONFIRMED THE ADDITIONS MADE BY THE ASSESSING OFFICER. IT IS PERTINENT TO OBSERVE THAT IN SPTE O F SE ARCH OPERATION, DEPARTMENT COULD NOT LAY ITS HAND ON ANY OTHER INCOME GENERATING APPARATUS IN THE HANDS OF THE ASSESSEE. THE CONTENTION OF THE ASSESSEE WAS THAT IN THE YEAR 2005 - 06, HE WAS 65 YEARS OF AGE. HE HAS NO OTHER SOURCE OF INCOME EXCEPT AGRIC ULTURE INCOME. I N SUCH SITUATION , INCOME FROM OTHER SO URCE COULD N O T BE ASSUMED IN HIS HAND. THERE COULD BE AGRICULTURE INCOME IN THE ASSESSMENT YEAR 20 0 4 - 05, 2003 - 04, 2002 - 03 ETC. THE ASSESSEE MIGHT BE HAVIN G A SUM OF RS.7,76,000/ - . BENE FIT OF THIS AGRICU LTURE INCOME AVAILABLE IN THE ASSTT.YEAR 2005 - 06 OUGHT TO BE GIVEN TO THE ASSESSEE I N THE SUBSEQUENT YEARS. THIS AMOUNT COULD BE PERCOLATED DOWN TO THE ASSTT.YEAR 2006 - 07 AND 2007 - 08 ; APART FROM ADDITIONAL INCOME GENERATED IN THESE YEARS. CONS IDERING TH IS HARD FACT OF DAY - TO - DAY LIFE, PARTICULARLY, IN THE CASE OF AN AGRICULTURIST, WHO IS NOT SUPPOSED TO MAINTAIN ANY BOOKS OF ACCOUNTS, IT COULD NOT BE E X P E C T E D THAT HE WOULD PRODUCE CASH BOOK, LEDGER ACCOUNT IN SUPPORT OF HIS CLAIM. TH E REFORE, WE ALLOW BO TH APPEALS OF THE ASSES S EE AND DELETE ADDITIONS. 7 . IN THE RESULTS, BOTH APPEAL S OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE CO URT ON 1 S T NOVEMBER, 201 7 AT RAJKOT . S D / - S D / - ( PRAMOD KUMAR ) ACCOUNTANT MEMBER ( RAJPAL YADAV) JUDICIAL MEMBER RAJKOT ; DATED 0 1 / 11 /201 7