Sri Mahendra Prasad Agarwal, Hyderabad V. The ITO Ward 16(1), Hyderabad

ITA 490/HYD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61921 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-09-2011
• Assessment Year: 1997-1998
• Appeal Filed On: 25-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K VISWANATHAM
• Assessee Lawyers: A V RAGHURAM
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER & SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NOS.488 &489/HYD/2011 ASSESSMENT YEARS : 1997-98 & 1999-2000 SHRI SHYAM SUNDER AGARWAL, -V- INCOME- TAX OFFICER, HYDERABAD. WARD-16(1),HYDERABAD. PAN:ACCPA 8826 G ( APPELLANT) ITA NOS.490 & 491/HYD/2011 ASSTT. YEARS 1997-98 & 1999-2000 SRI MAHENDRA PRASAD -V- HYDERABAD. PAN: ACCPA 8826 G (APPELLANT) (RESPONDENT) INCOME-TAX OFFICER, WARD-16(1), HYDERABAD. (RESPONDENT) ASSESSEES BY : SRI A.V. R AGHU RAM DEPARTMENT BY : SRI K. VISWAN ATHAM DATE OF HEARING : 26-04-2012 DATE OF PRONOUNCEMENT : 25 -06-2012. ORDER PER SAKTIJIT DEY, JM: THESE FOUR APPEALS, FILED BY TWO DIFFERENT ASSESSEE S ARE DIRECTED AGAINST DIFFERENT ORDERS ALL DATED 16-2-20 10 OF CIT (A)-V, HYDERABAD AND THEY PERTAIN TO THE ASSESSMENT YEARS 1997-98 AND 1999-2000. SINCE COMMON AND IDENTICAL ISSUES AR E INVOLVED IN THESE APPEALS, THESE ARE CLUBBED TOGETHER AND DI SPOSED OF BY THIS COMBINED ORDER FOR THE SAKE OF CONVENIENCE. ITA NOS.488 TO491 OF 2011 S/SRI SHYAM SUNDER AGARWAL & MAHENDRA PRASAD AGARWAL., HYD. 2 2. SINCE GROUNDS AND FACTS INVOLVED IN ALL THESE AP PEALS ARE QUITE COMMON AND IDENTICAL, FOR THE SAKE OF BREVITY , WE DEAL WITH FACTS AS MENTIONED IN ITA NO.488/HYD/2011 PERTAININ G TO ASSESSMENT YEAR 1997-98. 3. FACTS SATED IN BRIEF ARE, IN THE RETURN FILED FOR THE ASSESSMENT YEAR 1997-98, THE ASSESSEE DISCLOSED TO TAL INCOME OF RS.2,51,752/- AND AGRICULTURAL INCOME OF RS.1,96 ,108/-. ASSESSMENT ORDER WAS PASSED U/S 144 OF THE ACT DETE RMINING TOTAL INCOME AT RS.7,17,460/- AND AGRICULTURAL INCO ME OF RS.50,000/-. ASSESSEE WENT IN APPEAL AGAINST THE A SSESSMENT ORDER SO PASSED BEFORE THE CIT (A) AND HAVING FAI LED THERE APPROACHED THE ITAT. THE ITAT IN ITS ORDER DATED 2 -2-2001 SET ASIDE THE ASSESSMENT DIRECTING THE AO TO REDO IT DE NOVO AFTER EXAMINING THE MRO OR THE PERSON RESPONSIBLE FOR MAI NTAINING ADANGAL REGISTER AND ALLOWING THE ASSESSEE TO CROSS EXAMINE THEM. 4. IN THE REASSESSMENT PROCEEDING INITIATED AS PER THE DIRECTIONS OF THE ITAT, THE AO ISSUED SUMMONS TO TA HSILDAR, SHAMSHABAD MANDAL AND TAHSILDAR RAJENDRANAGAR MANDA L TO APPEAR AND PRODUCE DOCUMENTS AS PER THE LETTERS ENC LOSED TO THE SUMMONS. THE CONCERNED TAHSILDARS DID NOT APPEAR IN PURSUANCE TO THE SUMMONS ON THE PLEA OF DISLOCATION OF OFFICIAL WORK. HOWEVER CERTAIN INFORMATION WERE GIVEN BY TH E CONCERNED TAHSILDARS. AS PER INFORMATION FURNISHED BY TAHSIL DAR SHAMSABAD MANDAL LITTLE GOURD WAS GROWN IN THE LAND RECORDED IN THE NAME OF MAHENDRA KUMAR AND JOWAR WAS GROWN O N LAND RECORDED IN NAME OF SHYAM SUNDER. SO FAR AS AGRICU LTURAL LAND UNDER RAJENDRANAGAR MANDAL IS CONCERNED, THE CONCE RNED TAHSILDAR INFORMED THAT THE CONCERNED LAND IS RECO RDED IN THE ITA NOS.488 TO491 OF 2011 S/SRI SHYAM SUNDER AGARWAL & MAHENDRA PRASAD AGARWAL., HYD. 3 NAME OF SRI RAMACHANDRAIAH AND HIS FAMILY MEMBERS. WHEN THESE FACTS WERE CONFRONTED TO THE ASSESSEE, HE SUB MITTED BEFORE THE AO COPIES OF SALE DEEDS ETC. EC COPIES AND OTH ER DOCUMENTS IN SUPPORT OF HIS CLAIM THAT THE CONCERNED LANDS BE LONG TO HIM AND MAHENDRA PRASAD AGARWAL. HE FURTHER CONTENDED THAT THE FACT REGARDING PURCHASE OF LAND COULD BE EASILY VER IFIED FROM THE SUB REGISTRARS OFFICE. IN SUPPORT OF CLAIM OF AGR ICULTURAL INCOME THE ASSESSEE SUBMITTED THAT TWO BOREWELLS HAVE BEE N DUG UP FOR THE PURPOSE OF CULTIVATION. IT WAS ALSO SUBMITTED THAT THE ASSESSEE HAD PURCHASED THE LAND WITH STANDING CROP. SO FAR AS CULTIVATION OF GRAPE IS CONCERNED THE ASSESSEE SUBM ITTED THAT THE SALE DEED WILL REVEAL THAT ASSESSEE HAS PAID FOR M ANDVA WHICH GIVES SUPPORT TO GRAPE PLANTS. 5. THE AO ON THE BASIS OF INFORMATION GATHERED FROM THE OFFICE OF TAHSILDAR REJECTED THE CLAIM OF AGRICULTU RAL INCOME AND ADDED IT AS INCOME FROM OTHER SOURCES. THE ASSESSE E CHALLENGED THE ASSESSMENT ORDER BY FILING AN APPEAL BEFORE THE CIT (A). THE CIT (A) SUSTAINED THE ASSESSMENT ORDER BY HOLDING THAT THE LANDS ARE NOT FIT FOR CULTIVATION OF ANY OTHER AG RICULTURAL PRODUCE EXCEPTING LITTLE GOURD AND JOWAR. THE CIT (A) ALSO CONCLUDED THAT VEGETABLE AND SEEDLESS GRAPES CANNOT BE GROWN ON WATER LOGGED LAND. THE FINDING OF THE CIT (A) I S CONTAINED IN PARA-2.6 OF HIS ORDER. 6. WE HAVE HEARD SUBMISSIONS OF THE PARTIES AND PER USED MATERIALS ON RECORD. THE ONLY DISPUTE IN THE PRESE NT APPEAL IS WHETHER THE ASSESSEE IS HAVING ANY AGRICULTURAL INC OME OR NOT. ALL ALONG IT HAS BEEN THE CLAIM OF THE ASSESSEE THA T ALONG WITH SHRI MAHENDRA PRASAD AGARWAL, HE WAS HOLDING AGRICU LTURAL LAND OF 3.5 ACRES IN SURVEY NO.25/1, VILLAGE GANDIGUDA, MANDAL ITA NOS.488 TO491 OF 2011 S/SRI SHYAM SUNDER AGARWAL & MAHENDRA PRASAD AGARWAL., HYD. 4 SHAMSABAD, RR DISTRICT AND 2.5 ACRES AT GAGANPAHAD AND DERIVING INCOME FROM SALE OF AGRICULTURAL PRODUCE L IKE VEGETABLES, SEEDLESS GRAPE AND PADDY. FROM THE DOCUMENTARY EVI DENCE PRODUCED BY THE ASSESSEE AS WELL AS FROM THE ENQUIR Y MADE WITH THE TAHSILDAR THE UNDISPUTED FACT WHICH EMERGES IS THAT HE ASSESSEE ALONG WITH MAHENDRA PRASAD AGARWAL WAS HOL DING AGRICULTURAL LAND. HOWEVER, THE AO AND THE CIT (A) ARE DISPUTING THE CLAIM OF INCOME DERIVED FROM SALE OF AGRICULTUR AL PRODUCE. EXACTLY FOR THIS REASON THE ITAT EARLIER HAS SET AS IDE THE ASSESSMENT SPECIFICALLY DIRECTING THE AO TO EXAMINE THE MRO AND THE PERSON RESPONSIBLE FOR MAINTAINING THE ADAN GAL REGISTER AND THEREAFTER DECIDE THE ISSUE AFTER GIVING AN OPP ORTUNITY OF CROSS EXAMINATION TO THE ASSESSEE. IT IS SEEN THAT ITATS DIRECTION HAS NOT BEEN COMPLIED. NEITHER THE MRO O R THE PERSON RESPONSIBLE FOR MAINTAINING ADANGAL REGISTER WERE E XAMINED NOR ASSESSEE WAS GIVEN AN OPPORTUNITY TO CROSS EXAMINE THEM. HAD THE AO ENFORCED ATTENDANCE OF MRO OR THE PERSON RES PONSIBLE FOR MAINTAINING ADANGAL REGISTER THEN VITAL INFORMA TION COULD HAVE BEEN ELICITED WHICH WOULD HAVE THROWN LIGHT ON THE ASSESSEES CLAIM OF AGRICULTURAL INCOME. ACCORDING TO THE INFORMATION RECEIVED FROM THE OFFICE OF THE TAHSILD AR LITTLE GOURD AND JOWAR IS GROWN IN THE LAND. BEFORE THE AO THE ASSESSEE HAD SUBMITTED CERTIFIED TRUE COPY OF THE REVENUE RECORD S (PAHANI) WHICH CLEARLY PROVES OWNERSHIP OF LAND IN THE NAME OF ASSESSEE SRI MAHENDRA PRASAD AGARWAL. THE ASSESSEE HAD ALSO PRODUCED COPY OF SALE DEED WHICH REVEALS THAT THE ASSESSEE H AD PURCHASED THE LAND WITH STANDING CROP AND MANDAVA. THE EVIDE NCE PRODUCED BY THE ASSESSEE TO SOME EXTENT PROVES THAT THE ASSESSEE WAS HAVING SOME INCOME FROM AGRICULTURE. EVEN THE INFORMATION OBTAINED FROM THE OFFICE OF THE TAHSILD AR REVEALS THAT JOWAR AND LITTLE GOURD IS GROWN IN SOME OF THE LAND. ITA NOS.488 TO491 OF 2011 S/SRI SHYAM SUNDER AGARWAL & MAHENDRA PRASAD AGARWAL., HYD. 5 THEREFORE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE EVEN THOUGH MAY NOT BE ACCEPTABLE IN TOTO BUT AT THE SAM E TIME IT CANNOT BE RULED OUT TOTALLY. THE CIT (A) HAS NOT C ONSIDERED THIS FACT AT ALL AND HAS SIMPLY ADOPTED THE FINDING OF T HE ASSESSING OFFICER. IN FACT WHAT HAS BEEN QUOTED AS SUBMISSIO N OF THE ASSESSEE IN PARA 2.5 OF THE CIT (A)S ORDER COULD N OT HAVE BEEN THE SUBMISSION OF THE ASSESSEE. THE NATURE OF AGRI CULTURAL PRODUCE CULTIVATED AND REASONABLE INCOME FROM SALE OF SUCH PRODUCE COULD HAVE BEEN PROPERLY ASCERTAINED HAD T HE AO EXAMINED THE MRO OR THE PERSON RESPONSIBLE FOR MAIN TAINING THE ADANGAL REGISTER. IN THE AFORESAID CIRCUMSTANCES, WE THINK IT PROPER TO RESTORE THE ASSESSMENT BACK TO THE FILE O F THE AO WHO SHALL MAKE A DETAILED ENQUIRY BY EXAMINING THE MRO OR THE PERSON MAINTAINING ADANGAL REGISTER TO FIND OUT THE CORRECTNESS OF THE ASSESSEES CLAIM OF AGRICULTURAL INCOME. TH E AO SHALL ALLOW THE ASSESSEE AN OPPORTUNITY OF CROSS EXAMINAT ION AND COMPLETE THE ASSESSMENT AFTER AFFORDING A REASONABL E OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, ALL APPEALS FILED BY THE ASSESSEE S ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER WAS PRONOUNCED IN THE COURT ON 25-06-2012. S SS SD/ D/D/ D/- -- - ( (( ( CHANDRA POOJARI) CHANDRA POOJARI) CHANDRA POOJARI) CHANDRA POOJARI) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER S SS SD/ D/D/ D/- -- - (SAKTIJIT DEY) (SAKTIJIT DEY) (SAKTIJIT DEY) (SAKTIJIT DEY) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED THE 25 TH JUNE, 2012 ITA NOS.488 TO491 OF 2011 S/SRI SHYAM SUNDER AGARWAL & MAHENDRA PRASAD AGARWAL., HYD. 6 COPY FORWARDED TO: 1. S/SRI K.VASANTKUMAR, A.V. RAGHU RAM, P. VINOD & B. PEDDI RAJULU, ADVOCATES, FLAT NO.610, 6 TH FLOOR, BABUKHAN ESTATE, BASHHIRBAGH, HYDERABAD. 2. ITO, WARD-16(1), HYDERABAD. 3. THE CIT (A)-V, HYDERABAD. 4. THE CIT CONCERNED, HYDERABAD 5. THE DR, ITAT, HYDERABAD JMR* ITA NOS.488 TO491 OF 2011 S/SRI SHYAM SUNDER AGARWAL & MAHENDRA PRASAD AGARWAL., HYD. 7 ITA NOS.488 TO491 OF 2011 S/SRI SHYAM SUNDER AGARWAL & MAHENDRA PRASAD AGARWAL., HYD. 8 ITA NOS.488 TO491 OF 2011 S/SRI SHYAM SUNDER AGARWAL & MAHENDRA PRASAD AGARWAL., HYD. 9 ITA NOS.488 TO491 OF 2011 S/SRI SHYAM SUNDER AGARWAL & MAHENDRA PRASAD AGARWAL., HYD. 10 ITA NOS.488 TO491 OF 2011 S/SRI SHYAM SUNDER AGARWAL & MAHENDRA PRASAD AGARWAL., HYD. 11 ITA NOS.488 TO491 OF 2011 S/SRI SHYAM SUNDER AGARWAL & MAHENDRA PRASAD AGARWAL., HYD. 12