Surinder Kumar Gera, V. CIT,

ITA 4575/DEL/2007

• Counselvise Citation: 457520114 RSA 2007
• Duration Of Justice: 6 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 02-04-2014
• Assessment Year: 1996-1997
• Appeal Filed On: 22-11-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SH SH SH S K MUKHI
• Section: 234B

Judgement Text

ITA NO. 4575/DEL/2007 1 IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL NEW NEW NEW NEW DELHI BENCH DELHI BENCH DELHI BENCH DELHI BENCHES ESES ES G GG G , , , , NEW DELHI NEW DELHI NEW DELHI NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI S.V. MEHROTRA, S.V. MEHROTRA, S.V. MEHROTRA, S.V. MEHROTRA, ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER AND AND AND AND SHRI SHRI SHRI SHRI JOGINDER SINGH, JUDICIAL JOGINDER SINGH, JUDICIAL JOGINDER SINGH, JUDICIAL JOGINDER SINGH, JUDICIAL MEMBER MEMBER MEMBER MEMBER I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO. 4575/DEL/2007 4575/DEL/2007 4575/DEL/2007 4575/DEL/2007 A.Y. : A.Y. : A.Y. : A.Y. : 1996 1996 1996 1996- -- -97 9797 97 SH. SURINDER KUMAR SH. SURINDER KUMAR SH. SURINDER KUMAR SH. SURINDER KUMAR GERA, PROP. GERA, PROP. GERA, PROP. GERA, PROP. M/S MEGHALAYA M/S MEGHALAYA M/S MEGHALAYA M/S MEGHALAYA HANDLOOM HOUSE, HANDLOOM HOUSE, HANDLOOM HOUSE, HANDLOOM HOUSE, THROUGH COUNSEL THROUGH COUNSEL THROUGH COUNSEL THROUGH COUNSEL RAMESH RAHEJA & RAMESH RAHEJA & RAMESH RAHEJA & RAMESH RAHEJA & ASSOCIATES, ASSOCIATES, ASSOCIATES, ASSOCIATES, 139 139 139 139- -- -HUDA, SECTOR HUDA, SECTOR HUDA, SECTOR HUDA, SECTOR- -- -11, 11, 11, 11, PHASE PHASE PHASE PHASE- -- -1, PANIPAT 1, PANIPAT 1, PANIPAT 1, PANIPAT- -- - 132103 (HARYANA) 132103 (HARYANA) 132103 (HARYANA) 132103 (HARYANA) (PAN: ACRPG5899E) (PAN: ACRPG5899E) (PAN: ACRPG5899E) (PAN: ACRPG5899E) VS. VS. VS. VS. INCOME TAX INCOME TAX INCOME TAX INCOME TAX OFFICER, WARD OFFICER, WARD OFFICER, WARD OFFICER, WARD- -- -2, 2, 2, 2, PANIPAT, PANIPAT, PANIPAT, PANIPAT, (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY ASSESSEE BY ASSESSEE BY ASSESSEE BY : :: : SH. SH. SH. SH. S.K. MUKHI, ADVOCATE S.K. MUKHI, ADVOCATE S.K. MUKHI, ADVOCATE S.K. MUKHI, ADVOCATE DEPARTMENT BY DEPARTMENT BY DEPARTMENT BY DEPARTMENT BY : : : : SMT. RENUKA JAIN GUPTA, SMT. RENUKA JAIN GUPTA, SMT. RENUKA JAIN GUPTA, SMT. RENUKA JAIN GUPTA, CIT(DR) CIT(DR) CIT(DR) CIT(DR) ITA NO. 4575/DEL/2007 2 DATE OF HEARING : 02-4-2014 DATE OF PRONOUNCEMENT : 11-4-2014 ORDER ORDER ORDER ORDER PER PER PER PER JOGINDER SINGH : J JOGINDER SINGH : J JOGINDER SINGH : J JOGINDER SINGH : JM MM M THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), KA RNAL DATED 21.9.2007 PERTAINING TO ASSESSMENT YEAR 1996-97. 2. THE REVISED GROUNDS RAISED BY THE ASSESSEE READ AS UNDER:- 1. THAT THE LD. CIT (A) IS NOT JUSTIFIED IN CONCU RRING WITH THE ACTION OF THE AO WHICH IS WITHOUT JURISDIC TION BEING CONTRADICTORY ON VARIOUS COUNTS AND PROVISION S OF LAW AND THUS IS ILLEGAL, BAD IN LAW AND UNCALLED FOR. 2. THAT THE LD. CIT (A) IS NOT JUSTIFIED IN CONCUR RING WITH THE ACTION OF THE AO IN CONFIRMING THE ADDITIO N OF RS 26,52,840/- WHICH IS WITHOUT JURISDICTION BEING CONTRADICTORY ON VARIOUS COUNTS AND PROVISIONS OF L AW AND THUS IS ILLEGAL, BAD IN LAW AND UNCALLED FOR. ITA NO. 4575/DEL/2007 3 3. THAT THE LD. CIT (A) IS NOT JUSTIFIED IN CONCURR ING WITH THE ACTION OF THE AO IN CONFIRMING THE LEVY OF INTEREST U/S 234B OF THE INCOME TAX ACT, 1961 WHICH IS ILLEGAL, BAD IN LAW AND UNCALLED FOR. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, DELETE OR SUBSTITUTE ANY OF THE GROUNDS APPEAL ON OR BEFORE THE DISPOSAL OF THE PRESENT APPEAL. 3. ORIGINALLY THE ASSESSEE HAS RAISED MANY GROUNDS BUT LATER ON SUMMARIZED / REVISED THE GROUNDS AS MENTIONED HEREINABOVE. THE FIRST GROUND RAISED BY THE ASSESSE E PERTAINS TO CONCURRENCE WITH THE ACTION OF THE AO ON THE PLE A THAT THE SAME IS WITHOUT JURISDICTION, BEING CONTRARY ON VA RIOUS COUNTS AND ALSO THE PROVISION OF LAW. THE LD. COUNSEL DID NOT PRESS THIS GROUND AND BROADLY ARGUED ON MERIT. THEREFORE, WITHOUT GOING INTO MUCH DELIBERATION THIS GROUND OF THE ASS ESSE IS DISMISSED AS NOT PRESSED. 4. THE MAIN GRIEVANCE OF THE ASSESSEE PERTAINS TO C ONFIRMING THE ADDITION OF RS. 26,52,840/-. THE CRUX OF ARGUM ENT ON BEHALF OF THE ASSESSEE IS THAT AN AGRICULTURE LAND APPROXI MATELY 102 ACRES WAS TAKEN ON LEASE BY THE ASSESSEE, ON WHICH AGRICULTURE ITA NO. 4575/DEL/2007 4 OPERATION WAS DONE AND AGRICULTURE INCOME WAS DECLA RED. IT WAS PLEADED THAT THE ADDITION WAS MADE BY THE DEPAR TMENT MERELY ON THE GROUND THAT THE OWNERS OF THE LAND WE RE NOT PRODUCED BEFORE THE DEPARTMENT. HOWEVER, IT WAS ST RONGLY CONTENDED THAT BOTH THE PERSONS WERE DULY PRODUCED BEFORE THE LD. JCIT ON 19.3.1999, BUT, TO THE REASONS BEST KNOWN TO THE DEPARTMENT THESE PERSONS WERE NOT EXAMINED AND ULT IMATELY TO SHOW THEIR PRESENCE BOTH THESE PERSON FILED AFF IDAVITS, DULY SWORN BEFORE THE NOTARY PUBLIC. THE LD. COUNSEL TOO K US VARIOUS PAGES OF THE PAPER BOOK TO SUBSTANTIATE HIS CLAIM . IT WAS FURTHER PLEADED THAT THE FAMILY SETTLEMENT WAS DULY PRODUCED BEFORE THE DEPARTMENT FOR WHICH OUR ATTENTION WAS INVITED TO PAGES 56 TO 61 OF THE PB. IT WAS ALSO POINTED OUT THAT THE CASE OF THE ASSESSEE IS FOR THE ASSTT. YEAR 1996-97 WHE REAS THE REPORT OF THE INSPECTOR WAS SENT FOR ASSTT. YEAR 1995-96 WHEN NO AGRICULTURE OPERATION WAS CARRIED OUT. BY FURTH ER SUBMITTING THAT EVEN OTHERWISE, THE REPORT IS FOR 37 KANAL (P AGE. 40) WHEREAS THE ASSESSEE DID AGRICULTURAL OPERATION IN 102 ACRES OF LAND. IT WAS ASSERTED THAT EVEN THE INSPECTOR OF T HE DEPARTMENT IS SAYING THAT AGRICULTURE INCOME OF R S. 2 LAKH CAN ONLY BE OBTAINED FROM 37 KANAL, THEREFORE, FROM THI S ANGLE ALSO ITA NO. 4575/DEL/2007 5 THE ASSESSEE RATHER DECLARED LESS AGRICULTURAL INCO ME. RELIANCE WAS PLACED UPON THE DECISION FROM HONBLE PUNJAB AN D HARYANA HIGH COURT IN THE CASE OF CIT VS. JARNAIL SINGH KARTA 3 CIT VS. JARNAIL SINGH KARTA 3 CIT VS. JARNAIL SINGH KARTA 3 CIT VS. JARNAIL SINGH KARTA 316 ITR 160 16 ITR 160 16 ITR 160 16 ITR 160 (P&H). (P&H). (P&H). (P&H). 4.1 ON THE OTHER HAND, SMT. RENUKA JAIN GUPTA, LD. CIT(DR) STRONGLY OPPOSED THE ASSERTION MADE BY THE LD. COUN SEL BY CLAIMING THAT INSPITE OF THE DIRECTIONS ISSUED TO T HE ASSESSEE THE CLAIMED OWNERS OF THE LAND WERE NOT PRODUCED B EFORE THE OFFICER, THERE WAS NO PROOF OF AGRICULTURAL OPERATI ON DONE BY THE ASSESSEE AND EVEN THE LAND IS NOT OWNED BY THE SONS AS HAS BEEN CLAIMED. IT WAS ALSO PLEADED THAT THE LAND WA S LEASED FOR ONE YEAR AND WHY NOT FOR LATER YEARS. STRONG PLEA WAS RAISED THAT THE ASSESSEE HAD NO EXPERIENCE OF AGRICULTURAL OPERATION AND EVEN NO CULTIVATION WAS DONE BY THE ASSESSEE. R ATHER SHAM TRANSACTION WAS CREATED BY THE ASSESSEE. THERE FORE, THE DECISION TAKEN BY THE LD. CIT(A) MAY BE UPHELD. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIE F ARE THAT THE ASSESSEE CLAIMED AGRICULTURAL INCOME OF RS. 26,52,8 40/- IN HIS RETURN OUT OF THE TOTAL AGRICULTURAL PRODUCE OF RS. 32,66,650/- AFTER CLAIMING VARIOUS EXPENSES. THE ASSESSEE IS A ITA NO. 4575/DEL/2007 6 BUSINESSMAN HAVING A PROPRIETARY HANDLOOM CONCERN IN PANIPAT. THE ASSESSEE CLAIMED THAT HE, WITH THE HEL P OF AGRICULTURAL LABOUR CULTIVATED 102 ACRES OF LAND AT VILLAGE HANDWARA, (J&K). THE ASSESSEE CLAIMED THAT HE TOOK 102 ACRES OF LAND ON LEASE FROM SH. ASHOK RAINA AND SH. ROSHA N LAL SONS OF LATE NEELKANTH AND PRODUCED WHEAT, MOONG AND CAT TLE GRASS AND THE AGRICULTURE PRODUCE WAS SOLD TO M/S SHIV FO OD TRADERS, GRAIN MERCHANTS, DELHI. THE ASSESSEE CLAIMED THAT OUT OF THE SALE PRODUCE THE WHEAT AMOUNTING TO RS. 9,78,484/- AND MOONG AMOUNTING TO RS. 17,31,250/- WERE SOLD WHEREAS THE CATTLE GRASS AMOUNTING TO RS. 5,18,000/- WAS SOLD TO M/S M AQBOOL CATTLE FEED DEALERS, VADIPARA, HANDRWARA, KASHMIR. AS PER PARA 9 OF THE IMPUGNED ORDER AND ALSO DESCRIBED AT PAGE 2 OF THE ASSESSMENT ORDER THE FOLLOWING DOCUMENTS WERE P RODUCED BY THE ASSESSEE IN SUPPORT OF HIS CLAIM FOR AGRICUL TURAL INCOME. A) PHOTOCOPIES OF THE LEASE AGREEMENT OF AGRICULTU RE LAND. B) THE SOURCE OF PAYMENT OF LEASE RENT. C) THE SOURCE OF EXPENDITURE ON AGRICULTURE OPERAT IONS. D) PHOTOCOPIES OF THE PAYMENT VOUCHERS TO PERSONS EMPLOYED FOR AGRICULTURE ACTIVITIES. ITA NO. 4575/DEL/2007 7 E) PHOTOCOPIES OF SALE OF CRAPS WITH QUANTITATIVE DETAILS. F) PHOTOSTAT COPIES OF BILLS OF AGRICULTURE INPUTS, PESTICIDES, SEEDS AND FERTILIZERS. G) PHOTOSTAT COPIES OF TRANSPORT BILLS, GOODS RECEI PT WITH TRUCK/ VEHICLE NUMBER. 5.1 THE ASSESSEE WAS ASKED BY THE DEPARTMENT TO PRO DUCE VARIOUS OTHER DETAILS AS MENTIONED IN THE ASSESSMEN T ORDER. AS PER THE REVENUE NO OTHER DETAILS WERE FILED, BUT TH E ASSESSEE PRODUCED REGISTER CONTAINING DETAILS OF EXPENSES AS HAS BEEN MENTIONED IN PARA 10 OF THE ORDER IN APPEAL. THE DE PARTMENT CLAIMED THAT CERTAIN ENQUIRIES / INVESTIGATION WERE CONDUCTED AND ONE INSPECTOR SH. SURINDER SINGH SETHI WAS DEPU TED TO MAKE ENQUIRY AND ON THE BASIS OF REPORT THE CLAIM O F THE ASSESSEE WAS REJECTED. THE ASSESSEE IS IN APPEAL BE FORE THIS TRIBUNAL. 5.2 IF THE MATERIAL AVAILABLE ON RECORD, THE OBSERV ATIONS MADE IN THE ASSESSMENT ORDER, CONCLUSION DRAWN IN THE IM PUGNED ORDER AND THE ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSELS ARE KEPT IN JUXTAPOSITION AND ANALYSED. WE NOTE THA T THE ASSESSEE DULY FURNISHED THE PHOTOCOPIES OF LEASE A GREEMENT FOR THE AGRICULTURE LAND, SOURCE OF PAYMENT OF LEAS E RENT, SOURCE ITA NO. 4575/DEL/2007 8 OF EXPENDITURE DONE ON AGRICULTURE OPERATION, PHOTO COPIES OF PAYMENT VOUCHERS TO PERSONS EMPLOYED FOR AGRICULT URE ACTIVITIES, PHOTOCOPIES OF SALE OF CROP WITH QUA NTITATIVE DETAILS, PHOTOCOPIES OF BILLS OF AGRICULTURE INPUT, SEEDS, PESTICIDES AND FERTILIZERS ETC. THEREFORE, THE CONT ENTION OF THE AO AS WELL AS OF THE CIT(DR) THAT NECESSARY DETAILS WERE NOT FURNISHED BY THE ASSESSEE IS NOT SUBSTANTIATED WIT H FACTS. WE FURTHER NOTE THAT THE ASSESSEE HAS ALSO FILED AN AF FIDAVIT THAT THE TWO SONS OF SH. NEELKANTH WERE DULY PRODUCED ON 19.3.1999 BEFORE THE LD. JCIT BUT HE DID NOT EXAMINE THEM TO THE REASON BEST KNOWN TO HIM. THEREFORE, THE CONTENTION OF TH E DEPARTMENT THAT OWNERS OF THE LAND WERE NOT PRODUCE D IS ALSO WITHOUT ANY SUBSTANCE. THE FAMILY SETTLEMENT WAS DU LY PRODUCED BEFORE THE DEPARTMENT WHICH IS EVEN PRODUC ED BEFORE US IN THE PAPER BOOK. THEREFORE, OWNERSHIP OF LAND IS DULY SUBSTANTIATED BY THE ASSESSEE. BOTH THE PERSON S DULY FILED AFFIDAVITS, SWORN BEFORE THE NOTARY PUBLIC, KARNAL CLEARLY TENDERING THAT BOTH THE PERSONS ARE SONS OF NEELKAN TH RAINA, BONAFIDE RESIDENTS OF THE VILLAGE AND ALSO SOLE OWN ERS OF AGRICULTURE LAND DULY MENTIONING KHASRA NO. IN THE AFFIDAVITS IT HAS BEEN DULY MENTIONED THAT THE LAND WAS INHERITE D BY THEM ITA NO. 4575/DEL/2007 9 IN 1990 AND DULY ANNEXED PHOTOCOPIES OF THE TILE DE EDS, KHASRA, KHATONI, GIRDAVRI AND LAND MAP BY FURTHER M ENTIONING THAT THE AGRICULTURE LAND WAS GIVEN ON LEASE TO AS SESSEE FOR ONE YEAR (1.11.1994 TO 31.10.1995) FOR A CONSIDERAT ION RENT OF RS. 5100/- PER MONTH. THE AFFIDAVIT SPECIFICALLY ST ATES THAT THE LAND WAS DULY CULTIVATED BY THE ASSESSEE AND THEY RECEIVE THE COMPLETE RENT OF THE LEASE PERIOD. EVEN THE NOTARY PUBLIC THROUGH ITS SEAL AFFIX ON THE AFFIDAVIT HAS DULY CE RTIFIED THAT THE AFFIDAVITS WERE DULY SOLEMNLY AFFIRMED BEFORE IT. THEREFORE, THE CONTENTION OF THE DEPARTMENT THAT THE CONCERNED P ERSONS WERE NOT PRODUCED BEFORE THEM IS NOT SUBSTANTIATED. ON QUESTIONING FROM THE BENCH REGARDING THEIR PRESENCE IN THE OFFICE OF THE DEPARTMENT, IT WAS CLARIFIED THAT THE OFFICER DID NOT EXAMINE THEM AND FINALLY TO SHOW THEIR PRESENCE IN KARNAL, THEY HAVE TO FILE AFFIDAVITS. IN SUCH A SITUATION ALLEGATION OF THE DEPARTMENT THAT THE OWNERS OF THE LAND WERE NOT PRO DUCED IS WITHOUT ANY REASON AND IN SUCH A SITUATION THE ASSE SSEE CANNOT BE LEFT IN LURCH. EVEN THE ASSESSEE DULY PRODUCED THE AGREEMENT EXECUTED AT JAMMU ON 1 ST DAY OF NOVEMBER, 1994 AND IS DULY ATTESTED AND SIGNED BY THE LESSEE AND THE LESSOR. ITA NO. 4575/DEL/2007 10 5.3 SO FAR AS THE ALLEGATION OF THE DEPARTMENT THAT NO AGRICULTURE OPERATION WAS DONE BY THE ASSESSEE IS A LSO NOT SUBSTANTIATED BECAUSE BOTH THE PERSONS (OWNERS OF T HE LAND) HAVE CLEARLY TENDERED IN THEIR AFFIDAVITS THAT AGRI CULTURAL OPERATION WAS DONE. THE ASSESSEE DULY FURNISHED T HE PROOF OF SALE OF AGRICULTURE PRODUCE AND DULY ANNEXED THE BI LLS OF M/S SHIVA TRADERS, DELHI. EVEN VIDE LETTER DATED 20.3.2 013 ADDRESSED TO THE ITO, IT HAS BEEN MENTIONED THAT DU RING ASSESSMENT PROCEEDINGS THE ASSESSEE HIMSELF OFFERED TO PRODUCE THE LANDLORD BEFORE THE JCIT, KARNAL TO CON FIRM THE LEASE OF AGRICULTURE LAND, BUT THE AO DID NOT EXAMI NE THEM. THE CONTENTS OF THIS LETTER HAS NOT BEEN DENIED BY THE DEPARTMENT, THEREFORE, THE ALLEGATION MADE BY THE D EPARTMENT IN THE ASSESSMENT ORDER AS WELL AS IN THE IMPUGNED ORDER ARE NOT SUBSTANTIATED. WE FURTHER NOTE THAT VIDE LETTER DATED 19.11.1998 A LETTER WRITTEN BY JCIT, KARNAL AND ADD RESSED TO THE JT. DIRECTOR, INCOME TAX INVESTIGATION, THERE IS A MENTION OF CERTAIN FACTS VIDE PARA 5 IT HAS BEEN SPECIFICALLY REPORTED THAT ON NECESSARY ENQUIRIES REGARDING SALE OF AGRICULTUR AL PRODUCE TO SHIV FOOD TRADERS, IT HAS BEEN CONFIRMED THAT AGRIC ULTURE PRODUCE TO THE EXTENT OF RS. 27,48,875/- WAS SOLD B Y THE ITA NO. 4575/DEL/2007 11 ASSESSEE AND THE AMOUNT WAS PAID (THROUGH BANK DRAF T DATED 16.3.1996 FOR RS. 4,50,225, BANK DRAFT DATED 19.3.1 996 FOR RS. 11 LACS AND RS. 11,98,650/- THROUGH BANK DRAFT DATE D 20.3.1996). EVEN AS PER INTERNAL LETTER WRITTEN BY ADDL. DIRECTOR INVESTIGATION TO DCIT, INCOME TAX (SPECIAL RANGE) VIDE LETTER DATED 3.11.1997 THE NECESSARY ENQUIRIES WERE MADE AND ON THE VERIFICATION OF BOOKS OF SHIV FOOD TRADERS I T WAS CONFIRMED THAT THEY HAVE SOLD THE GRAIN ON COMMISSI ON BASIS OF THE ASSESSEE (PAGE. 72 OF THE PB). AT PAGE 73 TO 7 5 OF THE PB, THERE ARE BILLS FROM SHIV FOOD TRADERS CERTIFYING S ALE OF GOODS OF THE ASSESSEE. ALL THESE DOCUMENTS CLEARLY SHOWS TH AT AGRICULTURE PRODUCE WAS DULY SOLD THROUGH COMMISSIO N AGENT I.E. SHIV FOOD TRADERS. THEREFORE, THE CLAIM OF TH E ASSESSEE IS FURTHER FORTIFIED. THE ASSESSEE HAS ALSO SHOWN REG ISTER AND OTHER DOCUMENTS FOR PURCHASE OF SEEDS AND PESTICIDE S ETC. AND IT IS QUITE IMPOSSIBLE THAT THE ASSESSEE WILL HAVE A PHOTOGRAPH OF ITS CROPS AND THEN PRODUCE THE SAME BEFORE THE D EPARTMENT AT A LATER STAGE. FROM THIS ANGLE THE ASSESSEE IS H AVING A STRONG CASE IN ITS FAVOR. ITA NO. 4575/DEL/2007 12 5.4 EVEN AT PAGE 46 OF THE ORDER OF THE LD. CIT(A) THERE IS A MENTION THAT EVEN THE ENQUIRY CONDUCTED BY THE DDIT , THE STAND OF THE ASSESSEE HAS BEEN CONFIRMED WAS CLAIME D BY THE ASSESSEE. THE RELIEF WAS DENIED TO THE ASSESSEE ON THE GROUND THAT THE REPORT MERELY CONFIRMS THAT M/S SHIV FOOD TRADERS SOLD THE GRAINS ON COMMISSION BASIS OF THE ASSESSEE BUT IT DOES NOT GIVE THE COMPLETE PICTURE OF THE ENTIRE AGRICULTURE INCOME AND AGRICULTURAL OPERATIONS. HOWEVER, WE ARE NOT IN AGR EEMENT WITH THIS OBSERVATION, BECAUSE HOW THE SALE OF THE AGRIC ULTURAL PRODUCE CAN GIVE THE PICTURE OF AGRICULTURE OPERATI ON. BUT CERTAINLY CONFIRMS THE STAND OF THE ASSESSEE THAT A GRICULTURE PRODUCE WAS SOLD THROUGH M/S SHIV FOOD TRADERS. AT PAGE 48 OF THE IMPUGNED ORDER THERE IS A MENTION BY THE LD. C IT(A) THAT MR. ROSHAN LAL RAINIA AND ASHOK RAINA ARE NOT OWNIN G 102 ACRES OF LAND. IT IS VERY STRANGE THAT WHEN THE LA ND WAS INHERITED BY BOTH THESE PERSONS STILL THE DEPARTMEN T IS ALLEGING THAT THEY WERE NOT HAVING THE LAND, MORE SPECIFICAL LY WHEN THE OWNERSHIP OF THE LAND HAS BEEN CLEARLY ESTABLISHED. ALL THESE FACTS ARE CLEARLY INDICATING THAT THE LAND WAS TAKE N ON LEASE BY THE ASSESSEE FROM SH. ROSHAN LAL RAINA AND ASHOK RA INA, DID AGRICULTURE OPERATION. EVEN IF WE GO BY THE ITA NO. 4575/DEL/2007 13 REPORT OF THE INSPECTOR ITSELF THAT APPROXIMATELY R S. 2 LACS CAN BE EARNED FROM 37 KANALS OF LAND. THEN BY THAT LOGI C ALSO THE ASSESSEE EASILY CAN EARN THE CLAIMED AMOUNT OF RS. 26,52,840/- OUT 816 KANALS (102 ACRES). 5.5 IF THIS ISSUE IS ANALYSED WITH ANOTHER ANGLE T HAT WHEN THE ASSESSEE HAS PRODUCED THE MATERIAL IN SUPPORT OF EA RNING OF INCOME WHETHER THE CLAIMED INCOME CAN BE PROCURED O UT OF 102 ACRES. AS DISCUSSED ABOVE, WE ARE OF THE VIEW T HAT DEFINITELY THE CLAIMED INCOME CAN EASILY BE EARNED OUT OF 102 ACRES. THE BONAFIDES OF ESTIMATE OF INCOME IS SUPPO RTED BY THE DECISION FROM HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT VS. JARNAIL SINGH KARTA (SUPRA) CIT VS. JARNAIL SINGH KARTA (SUPRA) CIT VS. JARNAIL SINGH KARTA (SUPRA) CIT VS. JARNAIL SINGH KARTA (SUPRA). . . . 5.6 DURING HEARING, THE LD. CIT(DR) ALSO CONTENDED THAT EVEN IT IS PRESUMED THAT THE LAND WAS TAKEN ON LEASE BU T STILL NO AGRICULTURE OPERATION WAS CARRIED OUT. ON THE BASIS OF MATERIAL AVAILABLE ON RECORD, SAFELY IT CAN BE CONCLUDED THA T THIS PRESUMPTION OF THE REVENUE IS ALSO WITHOUT ANY BAS E AND SECONDLY, NO PRUDENT PERSON WILL SPEND ON TAKING TH E LAND ON LEASE AND THEN WILL KEEP THE LAND WITHOUT AGRICULT URE OPERATION. RATHER THE DOCUMENTARY EVIDENCE PRODUCED BY THE ASS ESSEE BEFORE THE REVENUE AUTHORITIES AS WELL AS THIS TRI BUNAL CLEARLY ITA NO. 4575/DEL/2007 14 INDICATES THAT AGRICULTURAL OPERATIONS WAS CARRIED OUT AND THE CLAIMED INCOME WAS EARNED OUT OF THE AGRICULTURAL OPERATION WHICH WAS FURTHER FORTIFIED BY THE PROOF OF SALE. W E FURTHER NOTE THAT FOR ASSTT. YEAR 1997-98 AGRICULTURE INCOME TO THE TUNE OF RS. 9,58,510/- WAS ACCEPTED BY THE DEPARTMENT, THER EFORE, THE CONTENTION OF THE LD. CIT(DR) THAT THE ASSESSEE HIM SELF WAS NOT DOING AGRICULTURE OPERATION IS ALSO WITHOUT ANY BAS IS. EVEN OTHERWISE IT IS ALWAYS NOT NECESSARY THAT THE ASSES SEE HIMSELF WILL DO THE AGRICULTURE OPERATION RATHER IT CAN BE GOT THROUGH AGRICULTURAL LABOUR. THE IN VIEW OF THESE FACTS TH IS GROUND OF THE ASSESSEE STANDS ALLOWED. 6. SO FAR AS CHARGING OF INTEREST U/S. 234B IS CONC ERNED, AS WE HAVE ALREADY ALLOWED MAIN GROUND OF THE ASSESS EE, THIS GROUND HAS BECOME ACADEMIC IN NATURE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/4/2014. SD/- SD/- [ [[ [S.V. MEHROTRA S.V. MEHROTRA S.V. MEHROTRA S.V. MEHROTRA] ]] ] [ [[ [JOGINDER SINGH JOGINDER SINGH JOGINDER SINGH JOGINDER SINGH] ]] ] ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER DATE 11/4/2014 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR ITA NO. 4575/DEL/2007 15 COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 4575/DEL/2007 16