The ACIT, 1(1), V. Shri Subhash Yadav,

ITA 500/IND/2007

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1489 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-10-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 17-09-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: S S DESH
• Keywords: Unexplained cash credit; Wrong claim

Judgement Text

PAGE 1 OF 8 IN THE INCOME TAX APPELATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JM AND SHRI M.L. GUSIA, AM ITA NO.500/IND/2007 AY: 2004-05 ACIT-1(1), BHOPAL ..APPELLANT V/S. SUBHASH YADAV, 7, CIVIL LINES, BHOPAL (PAN AACPY 1851 F) ..RESPONDENT DEPARTMENT BY : SMT. APARNA KARAN, SR. DR ASSESSEE BY : SHRI S.S. DESHPANDE, CA ORDER PER JOGINDER SINGH, JM THIS APPEAL IS BY THE REVENUE FOR THE ASSESSMENT YE AR 2004-05, CHALLENGING THE ORDER OF LD. CIT(A)-I, BHOPAL DATED 5.7.2007. T HE FIRST GROUND RAISED IS THAT THE FIRST APPELLATE AUTHORITY ERRED IN DELETIN G THE ADDITION OF RS.6,12,527/- MADE ON ACCOUNT OF UNEXPLAINED CREDITS ON ACCOUNT O F SALE OF NIMBU SPECIALLY WHEN THE LAND ON WHICH NIMBU WAS CULTIVATED WAS TAK EN ON LEASE DURING THE YEAR UNDER CONSIDERATION FOR ONE YEAR WHEREAS NIMBU CROPS TAKES 4 TO 5 YEARS TO GROW. 2. DURING HEARING OF THE APPEAL, WE HAVE HEARD LD. REPRESENTATIVES OF BOTH SIDES AND CONSIDERED THE ARGUMENTS ADVANCED BY THEM . THE CRUX OF ARGUMENTS ON BEHALF OF THE REVENUE IS IN SUPPORT TO THE ASSESSMENT ORDER BY PAGE 2 OF 8 CONTENDING THAT FIRSTLY THE LAND WAS TAKEN ON LEASE FOR ONE YEAR AND SECONDLY THE CROPS OF NIMBU TAKES 4 TO 5 YEARS IN PROVIDING YIELD. ON THE OTHER HAND, THE LD. COUNSEL FOR ASSESSEE STRONGLY DEFENDED THE IMPUGNED ORDER BY CONTENDING THAT THE LAND WAS TAKEN ON LEASE IN THE YEAR 1997 WHEN THE CROP WAS VERY MUCH READY. THE LEASE IS RENEWED EVERY YEA R SO THAT THE OWNERSHIP OF THE LAND DOES NOT COME INTO DISPUTE. OUR ATTENTI ON WAS INVITED TO VARIOUS PAGES OF THE PAPER BOOK. PLEA WAS ALSO RAISED THAT NECESSARY DETAILS WERE FURNISHED BEFORE THE LD. ASSESSING OFFICER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON THE FIL E. BEFORE COMING TO ANY CONCLUSION, WE ARE REPRODUCING HEREWITH THE RELEVAN T PORTION FROM THE ASSESSMENT ORDER ITSELF: IN THE COURSE OF SCRUTINY, WHILE VERIFYING THE AGRICULTURAL INCOME OF THE ASSESSEE, IT WAS SEEN THAT THE ASSESSEE OWNS 45.74 ACRES OF AGRICULTURAL LAND AND HE ALSO HAS TAKEN 43.25 ACRES OF AGRICULTURAL LAND ON LEASE, FOR DOING AGRICULTURAL ACTIVITIES. THE ASSESSEE HAS FURNISHED SEVERAL DETAILS OF AGRICULTURAL ACTIVITIES. THESE DETAILS A LSO INCLUDED DETAILS OF AGRICULTURAL PRODUCE WISE DETAI LS, DETAILS OF LAND HOLDINGS, BOTH SELF OWNED AS WELL A S TAKEN ON LEASE, AREA WISE DETAILS OF PRODUCTION OF AGRICULTURAL PRODUCES, DETAILS OF EXPENSES MADE IN AGRICULTURAL ACTIVITIES, ETC. IT WAS SEEN THAT THE ASSESSEE HAS SHOWN GROSS RECEIPT OF PAGE 3 OF 8 RS.29,61,284/- AS SALE OF AGRICULTURAL PRODUCES, AFTER DEDUCTING EXPENDITURE TO THE TUNE OF RS.840105/-, NET AGRICULTURAL INCOME OF RS.2121179/- HAS BEEN ARRIVED AT. THE AGRICULTURAL PRODUCES, THAT THE ASSESSEE HAS SHOWN TO HAVE PRODUCED ARE AWALA, CHANA, COTTON, MANGO, NIMBU, SOYABEAN AND WHEAT. THE ASSESSEE HAS ALSO PRODUCED COPIES OF LEASE DEEDS FOR OBTAINING THE AGRICULTURAL LAND FROM TWO PERSONS, NAMED AS SHRI SHRI GHISIRAM YADAV OF VILL. BORAWAN OF DISTT. KHARGON, FROM WHOM HE HAS OBTAINED 34 ACRES OF LAND. THIS DEED WAS EXECUTED ON 23.5.2003 AND ACCORDING TO THE CLAUSE OF DEED, THE ASSESSEE WOULD BE PAYING A TOTAL OF RS.25500/- AS LEASE RENT FOR THE LEASE PERIOD OF JUNE 2003 TO MAY 2004. THE SECOND ONE IS SHRI ANIL YADAV OF SAME VILLAGE FROM WHOM THE ASSESSEE HAS OBTAINED 26.20 ACRES OF LAND FOR A PERIOD OF JUNE 2003 TO MAY 2004 FOR A TOTAL LEASE RENT OF RS.68880/- IF THE AFORESAID FACTS MENTIONED IN THE ASSESSMENT ORDER ARE ANALYSED, CERTAIN UNDISPUTED FACTS ARE OOZING OUT THAT THE ASSESSEE O WNS 45.74 ACRES OF AGRICULTURAL LAND AND 43.25 ACRES TAKEN WAS ON LEAS E, CONSEQUENTLY, THE ASSESSEE WAS DOING AGRICULTURAL ACTIVITIES ON 89 AC RES (APPROX.) OF LAND. ADMITTEDLY, THE ASSESSEE FURNISHED THE NECESSARY DE TAILS INCLUDING PRODUCTION WISE DETAILS, DETAILS OF LAND HOLDINGS, AREA WISE D ETAILS OF PRODUCTION AND EXPENSES. THE ASSESSEE ALSO EXPLAINED THE AGRICULTU RAL PRODUCES NAMELY, AWALA, CHANA, COTTON, MANGO, NIMBU, SOYABEAN AND WH EAT. THE ASSESSEE ALSO PAGE 4 OF 8 FURNISHED COPIES OF LEASE DEED FOR OBTAINING THE LA ND FROM TWO CONCERNED PERSONS. THE PLEA OF THE ASSESSING OFFICER AS WELL AS OF THE LD. SR. DR IS THAT THE LAND WAS TAKEN ON LEASE FOR ONE YEAR, THEREFORE , THE NIMBU CANNOT BE GROWN AS THE NIMBU PLANTS TAKES 4 TO 5 YEARS FOR GI VING PRODUCTION. WE HAVE PERUSED THE LEASE DEED (PAGES 15 TO 20 OF THE PAPER BOOK). IT IS SEEN THAT THE LEASE DEED IS RENEWED YEAR AFTER YEAR SO THAT THE O WNERSHIP OF LAND DOES NOT GETS DISPUTE AND SECONDLY AT PAGES 15 & 18A OF THE PAPER BOOK, THERE IS A CLEAR MENTION THAT ON THE LAND MEASURING 19.71 ACRE S, THE NIMBU PLANT/TREES ARE THERE AND THE ASSESSEE IS PERMITTED TO ENJOY TH E CROP. THERE IS A FURTHER MENTION THAT AFTER 31.5.2001, THE ASSESSEE WILL NOT BE IN POSSESSION OF THE LAND AND IT WILL BE FURTHER RENEWED, THEREFORE, THE ASSERTION/SUSPICION OF THE REVENUE THAT NO NIMBU CROP CAN BE GROWN IN ONE YEAR IS AUTOMATICALLY ANSWERED. EVEN OTHERWISE, THE LD. ASSESSING OFFICER HAS NOT MENTIONED ANYWHERE EITHER THE BILLS FOR SALE OF NIMBU ARE BOG US OR NO NIMBU TREES WERE STANDING ON CONCERNED LAND. EVEN THE ASSESSING OFFI CER HAS NOT BOTHERED TO EXAMINE THE ISSUE FROM THIS ANGLE OR TO DEPUTE HIS SUBORDINATE TO GET A FIRSTHAND KNOWLEDGE OF THE FACTUAL POSITION. EVEN T HE ASSESSING OFFICER HAS NOT EXAMINED THE PERSONS WHO ISSUED THE BILLS, THEREFOR E, IT CAN BE SAID THAT SUSPICION CANNOT TAKE THE SHAPE OF EVIDENCE, HOWEVE R, STRONG IT MAY BE SPECIALLY WHEN THE ASSESSEE FURNISHED THE NECESSARY DETAILS AS MENTIONED IN THE ASSESSMENT ORDER ITSELF. THE STAND OF THE LD. A SSESSING OFFICER IS BASED UPON THE CASE IN SUMATI DAYAL VS. CIT (214 ITR 801) (SC) WHICH IS BASED UPON PAGE 5 OF 8 HUMAN PROBABILITIES. WE ARE OF THE CONSIDERED OPINI ON THAT THIS CASE RATHER FAVOURS THE ASSESSEE FIRSTLY BECAUSE THE NECESSARY DETAILS WERE FURNISHED BY THE ASSESSEE AND SECONDLY THE ASSESSING OFFICER HAS NOT CONTROVERTED THE CLAIM OF THE ASSESSEE IN ANY MANNER. DURING HEARING OF THE APPEAL, THE LD. DR ALSO POINTED OUT THAT THE CLAIM OF THE ASSESSEE IS NOT JUSTIFIED BECAUSE NO LEVELLING/PLOUGHING OF THE LAND WAS DONE BY THE ASS ESSEE. WE ARE NOT AGREEING WITH THIS ASSERTION BECAUSE WHEN THE FULLY GROWN NIMBU TREES ARE AVAILABLE ON THE LAND WHERE IS THE QUESTION OF LEVE LLING THE LAND OR PLOUGHING THE SAME BECAUSE THE CROP WAS READY FOR PLUCKING. W E HAVE ALSO PERUSED THE WRITTEN SUBMISSION FURNISHED BEFORE THE LD. FIRST A PPELLATE AUTHORITY AND THE CONCLUSION DRAWN IN THE IMPUGNED ORDER. EVEN THERE IS A FINDING IN THE ORDER OF THE LD. CIT(A) THAT RATHER PROPER OPPORTUNITY WA S NOT PROVIDED TO THE ASSESSEE BY THE ASSESSING OFFICER. EVEN THE DETAILS /RECORDS SUBMITTED DURING ASSESSMENT PROCEEDINGS HAS NEITHER BEEN DISBELIEVED NOR ANY CONTRARY MATERIAL HAS BEEN BROUGHT ON RECORD. THE LAND ON WH ICH NIMBU CROP WAS GROWN WAS IN THE POSSESSION OF THE ASSESSEE SINCE 1 997-98 AND THE IMPUGNED ASSESSMENT YEAR IS 2004-05, THEREFORE, THE ASSERTIO N OF THE REVENUE THAT THE NIMBU CROPS TAKE 4 TO 5 YEARS IS AUTOMATICALLY ANSW ERED. THE ASSESSEE HAS DISCHARGED HIS ONUS BY FURNISHING THE NECESSARY DET AILS IN EVERY ASPECT AND THE SALE PROCEEDS ARE SUPPORTED WITH NECESSARY BILL S, CONSEQUENTLY, THERE IS NO INFIRMITY IN THE STAND OF THE LD. CIT(A) IN DELE TING THE IMPUGNED ADDITION. PAGE 6 OF 8 4. IN ITS NEXT GROUND, THE REVENUE HAS CHALLENGED T HE DELETION OF ADDITION OF RS.74,020/- MADE ON ACCOUNT OF UNEXPLAINED CREDI T ON ACCOUNT OF SALE OF MANGO IN FEBRUARY & MARCH, 2003 WHEN THE CROP IS NO T RIPE. IDENTICAL ASSERTION WAS MADE BY THE LD. SR. DR. ON THE OTHER HAND, THE LD. COUNSEL FOR ASSESSEE CONTENDED THAT RAW MANGO (KERRY) WAS SOLD BY THE ASSESSEE. ON HEARING THE RIVAL SUBMISSIONS, IT IS SEEN THAT AN A DDITION OF RS.26060/- AND RS.47,960/- WAS MADE BY THE ASSESSING OFFICER FOR A LLEGED SALE OF MANGO IN THE MONTH OF FEBRUARY & MARCH, 2003 RESPECTIVELY ON THE BASIS THAT THE MANGO CROP STARTS IN APRIL, 2003. THERE IS NO DISPU TE TO THE FACT THAT THE ASSESSEE MAINTAINED COMPLETE BOOKS OF ACCOUNTS WHIC H WERE NOT REJECTED BY THE ASSESSING OFFICER AND EVEN NO DISCREPANCY WAS P OINTED OUT. THE PRESUMPTION OF THE ASSESSING OFFICER IS NOT BASED U PON ANY MATERIAL FACT AND THE ASSESSING OFFICER HAS NOT MADE ANY INQUIRY WHET HER THE ASSESSEE MADE A BOGUS CLAIM. EVEN THERE IS NO MENTION IN THE ASSESS MENT ORDER THAT EITHER THE MANGO TREES WERE NOT STANDING ON THE LAND OR NO CRO P WAS GROWN BY THE ASSESSEE. IN VIEW OF THIS FACT, WE AFFIRM THE STAND OF THE LD. CIT(A) ON THE REASONING MENTIONED WHILE DISPOSING OF GROUND NO.1 ABOVE. 5. THE REVENUE HAS ALSO CHALLENGED THE DELETION OF ADDITION OF RS.2,02,615/- MADE ON ACCOUNT OF UNEXPLAINED CREDIT ALLEGED ON ACCOUNT OF SALE OF SOYABEAN, RS.45,074/- FOR COTTON AND RS.51, 800/- FOR CHANA RS.105741/-. THE CRUX OF THE ARGUMENTS ON BEHALF OF THE REVENUE IS IN SUPPORT OF THE ASSESSMENT ORDER WHEREAS THE ASSESSE E HAS DEFENDED THE PAGE 7 OF 8 IMPUGNED ORDER. WE HAVE FOUND THAT DURING ASSESSMEN T PROCEEDINGS AS WELL AS FIRST APPELLATE PROCEEDINGS, THE ASSESSEE FURNIS HED THE COMPLETE DETAILS OF CROPS AND THE BOOKS OF ACCOUNTS MAINTAINED BY THE A SSESSEE IN RESPECT OF AGRICULTURAL OPERATION/SALE PROCEEDS AND THE SALE V OUCHERS WERE ALSO PRODUCED AS HAS BEEN MENTIONED IN ASSESSMENT ORDER AS WELL AS IN APPELLATE ORDER. THE COPIES OF KHASRA NAKAL WERE ALSO SUBMITT ED BEFORE THE AUTHORITIES TO PROVE THAT THE CROPS WERE GROWN BY THE ASSESSEE. THERE IS A FURTHER MENTION IN THE IMPUGNED ORDER THAT THE ENTRIES OF SALE OF IMPUGNED CROPS, THEIR QUANTITY AND DESCRIPTION WERE VERY MUCH FURNI SHED BY THE ASSESSEE EVEN THE PRODUCTION OF CROPS HAS NOT BEEN DISBELIEVED/DI SPUTED NOR THE EXPENDITURE. IN VIEW OF THIS FACT AND THE DECISION IN KAMAL KISHOR CHANDAK VS. ITO (2006) (103 TTJ (JD) 843), WHICH HAS BEEN RELIE D UPON BY THE LD. FIRST APPELLATE AUTHORITY ALSO, IT IS ESTABLISHED THAT TH E ASSESSEE FURNISHED THE NECESSARY DETAILS TO PROVE THE CROPS, SALE THEREOF WITH THE SUPPORT OF THE SALE VOUCHERS. THE KHASRA NAKAL IS A EVIDENCE, CERTIFIED BY THE REVENUE PATWARI, FOR THE PRODUCTION OF CROPS, CANNOT BE BURST ASIDE UNLE SS AND UNTIL CONTRARY FACTS ARE BROUGHT ON RECORD, CONSEQUENTLY, WE ARE IN AGRE EMENT WITH THE STAND OF THE LD. CIT(A) IN DELETING THE ADDITION OF RS.20261 5/-. THIS GROUND OF THE REVENUE IS ALSO HAVING NO MERIT. 6. THE LAST GROUND PREFERRED BY THE REVENUE IS THAT THERE IS A CONTRAVENTION TO RULE 46A(3) OF THE IT RULES. UNDER THE AFOREMENTIONED FACTS, WE ARE OF THE CONSIDERED OPINION THAT IF THERE IS A NY CONTRAVENTION THAT HAS PAGE 8 OF 8 BEEN DONE TO THE ASSESSEE AND NOT TO THE ASSESSING OFFICER, SECONDLY EVEN IN THE ASSESSMENT ORDER, AS REPRODUCED ABOVE, THE LD. ASSESSING OFFICER ITSELF HAS ADMITTED THAT THE DETAILS OF OWNERSHIP OF LAND, LAND TAKEN ON LEASE, PROOF OF SALE OF CROPS, EXPENSES INCURRED, LEASE DEED, AR EA WISE DETAILS OF PRODUCTION WERE FURNISHED BY THE ASSESSEE, THEREFOR E, THERE IS NO MERIT IN THIS GROUND OF THE REVENUE. IN THE RESULT, THIS APPEAL OF THE REVENUE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.10.2009. (M.L. GUSIA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30.10.2009 !VYAS! COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR