Sh. Ajmer Singh, Jalandhar V. The Income-tax Officer, Phagwara

ITA 457/ASR/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8741 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 24-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 11-07-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Additional evidence; Agreed addition
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 234B

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, (CIRCUIT BENCH AT JALANDHAR) BEFORE : SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI T.S. KAPOOR,ACCOUNTANT MEMBER ITA NO. 457(ASR.)/2014 ASSESSMENT YEAR: 2007-08 SH. AJMER SINGH, C/O SODHI AND SAMRA TRADERS, VILL. JANDIALA, TEH. PHILLAUR (JALANDHAR) (PAN: BGFPS2139L) (APPELLANT) V S.. INCOME-TAX OFFICER, WARD-2, PHAGWARA. (RESPONDENT) ASSESSEE BY SH. RAKESH JOSHI, ADVOCATE REVENUE BY SMT. BALVINDER KAUR, DR ORDER PER A.D. JAIN, J.M.: THIS IS ASSESSEES APPEAL AGAINST THE CIT(A)S ACTI ON IN CONFIRMING ADDITION OF RS.8,28,000/- AS INCOME FROM UNDISCLOSED SOURCES INSTEAD OF AGRICULTURAL INCOME. 2. THE BRIEF FACTS, AS PER CIT(A)S ORDER, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND A PARTNER IN THE FIRM NAMELY M/S SODHI & SAMRA WHICH DEALS IN THE TRADING OF TIMBER. THE ASS ESSEE FILED HIS DATE OF HEARING 24.01.2017 DATE OF PRONOUNCEMENT 28.02.2017 ITA NO. 457/ASR./2014 2 RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 14.11.2007 DECLARING THEREIN AN INCOME OF RS.1,14,250/-. DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED BY THE AS SESSING OFFICER THAT THE ASSESSEE IN ITS RETURN HAD SHOWN A GRICULTURAL INCOME OF RS.18,00,000/- FOR RATE PURPOSES. THE ASS ESSING OFFICER MADE DETAILED ENQUIRIES WITH REGARD TO THE EARNING OF THE HUGE AGRICULTURE INCOME BY MAKING INDEPENDENT ENQUI RIES. DURING THE COURSE OF ENQUIRIES, IT HAD BEEN FOUND T HAT THE ASSESSEE HAD FURNISHED J-FORM IN RESPECT OF AN AGRI CULTURAL INCOME RECEIPT OF RS.7,04,292/-, THE AUTHENTICITY A ND GENUINENESS OF WHICH COULD NOT BE PROVED BY THE ASS ESSEE. IT HAD ALSO BEEN NOTICED THAT SOME RECEIPTS OF THE AGRICUL TURE INCOME HAD NOT BEEN DISCLOSED BY THE ASSESSEE AND THE SAME CAME TO THE NOTICE OF THE ASSESSING OFFICER DURING THE COURSE O F ENQUIRIES. THE DETAIL IN RESPECT OF AGRICULTURE EXPENSES WAS A LSO NOT FOUND TO BE MAINTAINED BY THE ASSESSEE. THE ASSESSING OFF ICER ALSO MADE ENQUIRIES WITH REGARD TO THE AGRICULTURAL LAND OWNED BY THE ASSESSEE AND THE AGRICULTURAL LAND BELONGING TO OTH ERS WHICH HAD BEEN STATED TO BE TAKEN BY THE ASSESSEE ON LEASE FO R EARNING AGRICULTURE INCOME. IN RESPECT OF LAND BELONGING TO OTHERS, THE ITA NO. 457/ASR./2014 3 ASSESSING OFFICER HAD FOUND THAT THE NAME OF ASSESS EE WAS NOT MENTIONED AS USER OF LAND IN THE GOVERNMENT RECORDS . THE ASSESSING OFFICER ALSO MADE ENQUIRIES WITH REGARD T O PER ACRE YIELD OF WHEAT, PADDY AND SUGARCANE AND WITH REGARD TO PER ACRE EXPENSES FROM THE CONCERNED GOVERNMENT AUTHORITIES. AFTER TAKING INTO ACCOUNT ALL THE INFORMATION GATHERED DU RING THE COURSE OF ASSESSMENT PROCEEDINGS, AS WELL AS THE SU BMISSIONS MADE BY THE ASSESSEE, THE ASSESSING OFFICER ESTIMAT ED THE AGRICULTURAL INCOME OF THE ASSESSEE AT RS.9,72,000/ -,AS AGAINST THE DECLARED AGRICULTURAL INCOME OF RS.18,00,000/-. THE ASSESSING OFFICER, THEREFORE, TREATED THE BALANCE A GRICULTURE INCOME OF RS.8,28,000/- AS INCOME OF THE ASSESSEE F ROM UNDISCLOSED SOURCES AND MADE AN ADDITION OF RS.8,28 ,000/- TO THE RETURNED INCOME OF THE ASSESSEE. APART FROM THI S, ANOTHER AGREED ADDITION OF RS.4,911/- WAS ALSO MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED INTEREST INCOME. THE ASSESSMENT IN THE CASE OF THE ASSESSEE WAS, THEREFO RE, COMPLETED BY THE ASSESSING OFFICER VIDE ORDER PASSED UNDER SE CTION 143(3) OF THE ACT, DATED 30.12.2009, AT AN ASSESSED INCOME OF ITA NO. 457/ASR./2014 4 RS.9,47,160/- + AGRICULTURAL INCOME OF RS.9,72,000/ - FOR RATE PURPOSES. 3. THE LD. CIT(A) UPHELD THE ADDITION HOLDING AS F OLLOWS : 6.4 I HAVE CONSIDERED THE OBSERVATIONS OF THE ASSE SSING OFFICER AS MADE BY HIM IN THE ASSESSMENT ORDER AS W ELL AS IN THE REMAND REPORT. I HAVE ALSO CONSIDERED THE WRITTEN S UBMISSIONS OF THE ASSESSEE AS WELL AS ITS COUNTER COMMENTS ON THE REPORT OF THE ASSESSING OFFICER. I HAVE FURTHER CONSIDERED THE AD DITIONAL EVIDENCES PRODUCED BY THE ASSESSEE DURING THE COURS E OF APPELLATE PROCEEDINGS. IN MY OPINION, THE ADDITIONAL EVIDENCE S NOW PRODUCED BY THE ASSESSEE ONLY SUPPORT THE ARGUMENTS TAKEN BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING S. IN MY FURTHER OPINION, THE ASSESSEE COULD HAVE EASILY PRO DUCED THESE EVIDENCES DURING THE COURSE OF ASSESSMENT PROCEEDIN GS AS THESE DOCUMENTS FURTHER SUPPORT THE ARGUMENTS OF THE ASSE SSEE TAKEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT MU NIM OF M/S SAMRA COMMISSION AGENTS HAS CHEATED HIM AND ISSUED HIM THE BOGUS J-FORM. IN MY CONSIDERED OPINION, ALTHOUGH TH E ASSESSING OFFICER HAS OBJECTED TO THE ADMISSION OF ADDITIONAL EVIDENCE BUT THE SAME SHOULD BE ADMITTED FOR THE SAKE OF JUSTICE . MOREOVER, THERE IS NOTHING NEW WHICH IS BEING BROUGHT ON RECO RD BY PRODUCING ADDITIONAL EVIDENCE. I, THEREFORE, ADMIT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS FOR THE SAKE OF JUSTICE. 6.5 ON CAREFUL CONSIDERATION OF THE MATERIAL BROUGH T ON RECORD, I AM OF THE OPINION THAT THE ASSESSEE FAILE D TO PROVE THAT HE EARNED AGRICULTURE INCOME OF RS. 18,00,000/- DURI NG THE YEAR UNDER CONSIDERATION. EVEN THE PRODUCTION OF ADDITIO NAL EVIDENCE WILL NOT HELP THE ASSESSEE AS WHATEVER HAS BEEN STA TED IN THE ADDITIONAL EVIDENCES HAS ALREADY BEEN CONSIDERED BY THE ASSESSING ITA NO. 457/ASR./2014 5 OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS . THE PRODUCTION OF ADDITIONAL EVIDENCES ALSO APPEARS TO BE AN AFTERTHOUGHT. THE ASSESSEE COULD NOT EVEN DISPROVE THE AUTHENTICITY OF THE INFORMATION COLLECTED BY THE AS SESSING OFFICER FROM THE GOVERNMENT AUTHORITIES WITH REGARD TO THE YIELD AND EXPENSES. THE ASSESSEE ALSO FAILED TO PROVIDE ANY E VIDENCE WITH REGARD TO THE SALE OF WHEAT BY MUNIM OF M/S SAMRA C OMMISSION AGENTS TO OTHERS. AFFIDAVIT FILED BY M/S SAMRA COMM ISSION AGENTS IS A SELF SERVING DOCUMENT. SIMILARLY, THE DOCUMENT PRODUCED BY THE ASSESSEE WITH REGARD TO MEETING OF GRAM PANCHAY AT IS ALSO A SELF SERVING DOCUMENTS AND CANNOT BE RELIED UPON IN THE ABSENCE OF CORE EVIDENCE WITH REGARD TO SALE OF WHEAT IN RE SPECT OF WHICH BOGUS J-FORM HAS BEEN SUBMITTED BEFORE THE ASSESSIN G OFFICER. MOREOVER, THE PRODUCTION OF WHEAT FROM THE SAME ARE A OF LAND CANNOT BE MORE THAN THE PRODUCTION OF PADDY AS IS A PPARENT FROM THE REPORT OF THE GOVERNMENT AUTHORITIES WHEREAS TH E ASSESSEE HAS SHOWN MORE PRODUCTION OF WHEAT THAN PADDY FROM THE SAME AREA OF LAND UNDER CULTIVATION. THIS IS ALSO A KNOWN FAC T THAT THE AVERAGE AGRICULTURE EXPENSES RANGES BETWEEN 40% TO 55% DEPENDING UPON THE CROP GROWN BUT THE ASSESSEE HAS SHOWN ONLY EXPENSES OF RS.5,24,424/- FOR EARNING AGRICULTURE I NCOME OF RS.23,24,424/- WHICH ALSO INCLUDE THE EXPENSES PAID BY ASSESSEE TO OTHER PERSONS WHOSE LAND HAS BEEN TAKEN ON LEASE. I F THE LAND IS TAKEN ON LEASE THE EXPENSES WILL BE MORE BUT THE EX PENSES SHOWN BY THE ASSESSEE ARE ALMOST HALF THE EXPENSES WHICH ARE USUALLY INCURRED FOR EARNING AGRICULTURE INCOME. 6.6 IN VIEW OF THE ABOVE STATED FACTS AND IN THE CI RCUMSTANCES OF THE CASE, I AM OF THE CONSIDERED OPINION THAT TH E ASSESSING OFFICER HAS PASSED A WELL REASONED ORDER WHICH DO N OT REQUIRE ANY INTERFERENCE. I, THEREFORE, UPHOLD THE ACTION OF TH E ASSESSING OFFICER IN MAKING ADDITION OF RS.8,28,000/- TO THE R ETURNED INCOME OF THE ASSESSEE BY TREATING THE EXCESS AGRICULTURE INCOME SHOWN BY THE ASSESSEE TO THE EXTENT OF, RS.8,28,000/- AS INCO ME FROM UNDISCLOSED SOURCES. THE ASSESSEE HAS NOT ASKED FOR CROSS ITA NO. 457/ASR./2014 6 EXAMINATION OF SHRI PAVITTAR SINGH DURING THE COURS E OF APPELLATE PROCEEDINGS. IN MY OPINION, THE ACCEPTANCE OF HIGHE R AGRICULTURE INCOME IN ANY PRECEDING OR SUCCEEDING YEAR WILL ALS O NOT MAKE ANY DIFFERENCE AS THE FACTS PREVAILING IN THOSE YEA RS MAY BE DIFFERENT. IN THE RESULT, GROUNDS NO. 2 TO 11 OF AP PEAL TOKEN BY THE ASSESSEE ARE DISMISSED. 7. THE GROUND NO. 12 OF APPEAL TAKEN BY THE ASSESSE E IS CONSEQUENTIAL IN NATURE AND DO NOT REQUIRE ANY ADJU DICATION AS PER SETTLED POSITION OF LAW WITH REGARD TO CHARGING OF INTEREST UNDER SECTION 234A, 234B AND 234C OF THE ACT. 4. THE ASSESSEE HAS PLACED ON RECORD BEFORE US (APB 1-20) COPIES (ENGLISH TRANSLATION) OF KHASRA GIRDAWARIES PERTAINING TO THE LAND OF ASSESSEE, FOR THE PERIOD 2006-07 TO 200 8-09, AS EVIDENCE THAT WHEAT WAS CULTIVATED ON THE LAND DURI NG F.YS. 2006-07 & 2007-08. THESE KHASRA GIRDAWARIES ARE STA TED TO HAVE BEEN FILED BEFORE THE AO. A PERUSAL OF THE ORDERS O F BOTH THE AUTHORITIES BELOW SHOWS THAT NEITHER OF THEM HAS TA KEN INTO CONSIDERATION THESE KHASRA GIRDAWARIES BEFORE PASSI NG THEIR RESPECTIVE ORDERS. 5. A KHASRA GIRDAWARI IS THE PRIMARY DOCUMENT EVIDE NCING CULTIVATION OF AGRICULTURAL CROPS, OR ABSENCE THERE OF OVER LAND. IF SUCH DOCUMENTARY EVIDENCE IS PRODUCED, NON-CONSIDER ATION ITA NO. 457/ASR./2014 7 THEREOF WOULD RESULT IN AN ORDER PASSED AS A RESULT OF NON- READING OF SUCH MATERIAL DOCUMENTARY EVIDENCE, REND ERING THE ORDER UNSUSTAINABLE IN LAW. THEREFORE, IN THE INTER EST OF JUSTICE, WE DEEM IT APPROPRIATE TO REMIT THIS MATTER TO THE FILE OF THE AO, TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW ON TAKI NG INTO CONSIDERATION THESE KHASRA GIRDAWARIES, PROVIDED TH E ASSESSEE FILES BEFORE HIM THE ORIGINAL CERTIFIED COPIES THER EOF IN THE VERNACULAR ALONG WITH THE ENGLISH TRANSLATION COPIE S FILED BEFORE US. THE ASSESSEE SHALL BE AFFORDED ADEQUATE OPPORTU NITY OF HEARING TO SUPPORT HIS CASE AND, NO DOUBT, THE ASSE SSEE SHALL COOPERATE IN THE FRESH PROCEEDINGS BEFORE AO. ALL P LEAS AVAILABLE TO THE ASSESSEE UNDER THE LAW SHALL REMAIN SO AVAIL ABLE TO HIM. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, APPEAL IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.02.2017. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28.02.2017. *AKS* ITA NO. 457/ASR./2014 8 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR, ITAT ASSISTANT REGISTRAR