Smt Sadhna Sharma, Agra V. Dy.C.I.T.-1, Agra

ITA 513/AGR/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0395 (ITAT-AGRA)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-02-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 09-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 513/AGRA/2012 ASSTT. YEAR : 2005-06 LATE SMT. SADHNA SHARMA, VS. D.C.I.T. 1, THROUGH L/H. SHRI MAHESH CHAND SHARMA, AGRA. 10, OLD VIJAY NAGAR COLONY, AGRA. (PAN : ALJPS 5888 E) ITA NO. 516/AGRA/2012 ASSTT. YEAR : 2005-06 SHRI MAHESH CHAND SHARMA, VS. D.C.I.T. 1, 10, OLD VIJAY NAGAR COLONY, AGRA. AGRA (PAN : ATSPS 6503 K) (APPELLANTS) (RESPONDENT) APPELLANTS BY : SHRI ANIL VERMA, ADVOCATE RESPONDENT BY : SHRI WASEEM ARSHAD, SR. D.R. DATE OF HEARING : 20.02.2013 DATE OF PRONOUNCEMENT OF ORDER : 22.02.2013 ORDER PER BHAVNESH SAINI, J.M.: BOTH THE APPEALS BY DIFFERENT ASSESSEES ARE DIRECT ED AGAINST DIFFERENT ORDERS OF LD. CIT(A)-I, AGRA DATED 19.04.2012 FOR THE ASSE SSMENT YEAR 2005-06 CHALLENGING THE LEVY OF PENALTY U/S. 271(1)(C) IN A SUM OF RS.40,000/- EACH IN BOTH THE CASES. ITA NO. 513 & 516/AGRA/2012 2 2. THE LD. REPRESENTATIVES OF BOTH THE PARTIES STAT ED THAT THE FACTS ARE SAME IN BOTH THE APPEALS AND BOTH THE PARTIES MAINLY ARGUE D IN THE CASE OF ASSESSEE, SMT. SADHANA SHARMA FOR THE PURPOSE OF DISPOSAL OF BOTH THE APPEALS. THEREFORE, THE FACTS ARE TAKEN FROM THE CASE OF SMT. SADHANA SHARM A. 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE DECLARED RS.3,00,000/- AS AGRICULTURAL INCOME IN HER RETURN OF INCOME. THE AO FOUND THAT NO AGRICULTURAL LAND HAS BEEN PURCHASED AND EVEN NO AGRICULTURAL IN COME HAS BEEN SHOWN IN EARLIER YEARS. NO DETAILS OF AGRICULTURAL OPERATION HAVE BE EN FILED TO PROVE AGRICULTURAL INCOME. THE ASSESSEE CLAIMED AGRICULTURAL EXPENSES IN A SUM OF RS.29,225/-. THE ASSESSEE EXPLAINED BEFORE THE AO THAT SHE HAS AGRIC ULTURAL LAND IN AGRA WHICH IS SHOWN IN THE BALANCE SHEET AND EVEN IN THE ASSESSME NT YEAR 1998-99, RS.60,000/- HAS BEEN DECLARED AS AGRICULTURAL INCOME. COPY OF I T RETURN FOR THAT YEAR WAS ALSO PRODUCED. AO, HOWEVER, DID NOT ACCEPT THE CONTENTIO N OF THE ASSESSEE AND FOUND THAT EARNING OF AGRICULTURAL INCOME IS NOT SUBJECTE D TO VERIFICATION AND ACCORDINGLY, RS.3,00,000/- DECLARED AS AGRICULTURAL INCOME WAS C ONSIDERED AS INCOME FROM OTHER SOURCES AND ADDITION WAS ACCORDINGLY MADE. PENALTY PROCEEDINGS WERE INITIATED FOR FURNISHING INACCURATE PARTICULARS. THE ADDITION WAS CHALLENGED BEFORE THE LD. CIT(A) WHO HAS GONE THROUGH THE HISTORY OF THE ASSE SSEE AND DOCUMENTS BEFORE HIM AND ALSO CALLED FOR THE REMAND REPORT AND FOUND THAT FOR EARNING AGRICULTURAL ITA NO. 513 & 516/AGRA/2012 3 INCOME, STAND OF THE ASSESSEE HAS BEEN ACCEPTED IN THE ASSESSMENT YEAR 1998-99. THEREFORE, THERE WAS NO REASON NOT TO ACCEPT THE AG RICULTURAL INCOME IN THE ASSESSMENT YEAR UNDER APPEAL. SINCE THERE WAS FAILU RE ON THE PART OF THE ASSESSEE TO GIVE EXACT QUANTUM OF AGRICULTURAL INCOME, THEREFOR E, INCOME SHOWN BY THE ASSESSEE CANNOT BE ACCEPTED. SIMILARLY, THE AO HAS NOT DISPROVED THE CONTENTION OF THE ASSESSEE BY ANY EVIDENCE THAT NO CROPS WERE GRO WN IN THE AGRICULTURAL LAND. THEREFORE, CONSIDERING THE TOTALITY OF FACTS AND CI RCUMSTANCES AND HISTORY OF THE ASSESSEE, THE LD. CIT(A) ACCEPTED THE AGRICULTURAL INCOME OF RS.2,00,000/- AND ADDITION OF RS.1,00,000/- WAS CONFIRMED VIDE ORDER DATED 28.11.2008. THIS ORDER HAS BECOME FINAL BECAUSE NO FURTHER APPEAL WAS FILE D BEFORE THE TRIBUNAL BY EITHER PARTIES. THE AO VIDE SEPARATE ORDER LEVIED PENALTY ON THE ADDITION MADE OF RS.1,00,000/-. THE LD. CIT(A) CONFIRMED THE PENALTY AND DISMISSED THE APPEAL OF THE ASSESSEE. 4. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT THE ADDITION W AS MADE ON ESTIMATE BASIS AND THERE IS NO EVIDENCE ON RECORD TO PROVE THAT THE AS SESSEE CONCEALED THE PARTICULARS OF INCOME OR FILED INACCURATE PARTICULARS OF INCOME . HE HAS RELIED UPON THE DECISION OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT V S. IQBAL SINGH & CO., 180 TAXMAN 355 AND IN THE CASE OF CIT VS. MODI INDUSTRI AL CORPORATION, 34 DTR ITA NO. 513 & 516/AGRA/2012 4 (P&H) 158, IN WHICH ON ESTIMATED INCOME, CANCELLATI ON OF PENALTY WAS CONFIRMED. THE ASSESSEE OWNED AGRICULTURAL INCOME WHICH IS SHO WN IN THE BALANCE SHEET. AGRICULTURAL INCOME WAS ALSO DECLARED IN EARLIER YE AR. THEREFORE, ON MERE ESTIMATE OF INCOME, PENALTY IS NOT LEVIABLE. ON THE OTHER HA ND, THE LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD. THE ASSESSEE CLAIMED AGRICULTURAL INCOME OF RS.3,00,000 /- IN THE ASSESSMENT YEAR UNDER APPEAL, BUT THE AO TREATED THE SAME AS INCOME FROM OTHER SOURCES. THE LD. CIT(A) ON QUANTUM ACCEPTED THE CLAIM OF THE ASSESSEE OF AG RICULTURAL INCOME AT RS.2,00,000/- AND CONFIRMED THE ADDITION OF RS.1,00 ,000/-. THE LD. CIT(A) IN THE PENALTY ORDER FOUND THAT THE AGRICULTURAL INCOME DE CLARED BY THE ASSESSEE IS ALSO BASED ON ESTIMATE BASIS. THEREFORE, IT IS ADMITTED FACT THAT IT WAS AN ESTIMATE OF AGRICULTURAL INCOME DECLARED BY THE ASSESSEE AGAINS T WHICH THE LD. CIT(A) ALSO ESTIMATED THE AGRICULTURAL INCOME AND CONFIRMED THE ADDITION OF RS.1,00,000/-. THE ASSESSEE HAS DECLARED LAND OWNED BY HER IN EARLIER YEAR AS WELL AS EARNING OF AGRICULTURAL INCOME AND DECLARED THE SAME FACTS ALS O IN ASSESSMENT UNDER APPEAL AS WELL. THEREFORE, THE ASSESSEE HAS DECLARED COMPLETE FACTS BEFORE THE AUTHORITIES BELOW AND MERELY BECAUSE THE PART OF THE AGRICULTUR AL INCOME COULD NOT BE SUPPORTED THROUGH EVIDENCE WOULD NOT LEAD TO PRESUM PTION THAT THE ASSESSEE HAS ITA NO. 513 & 516/AGRA/2012 5 CONCEALED THE PARTICULARS OF INCOME OR FILED INACCU RATE PARTICULARS OF INCOME. HONBLE SUPREME COURT IN THE CASE HINDUSTAN STEEL L TD. VS. STATE OF ORISSA, 83 ITR 26 HELD THAT AN ORDER IMPOSING PENALTY FOR FAIL URE TO CARRY OUT A STATUTORY OBLIGATION IS THE RESULT OF QUASI CRIMINAL PROCEEDI NGS, AND PENALTY WILL NOT ORDINARILY BE IMPOSED UNLESS THE PARTY OBLIGED EITH ER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CONDUCT CONTUMACIOUS OR DIS HONEST OR ACTED IN CONSCIOUS DISREGARD OF ITS OBLIGATION. PENALTY WILL NOT ALSO BE IMPOSED MERELY BECAUSE IT WAS LAWFUL TO DO SO. HONBLE PUNJAB & HARYANA HIGH COUR T IN THE CASES OF DHILLON RICE MILLS, 256 ITR 447, CIT VS. RAVEL SINGH & CO. , 254 ITR 191 AND HARI GOPAL SINGH VS. CIT, 258 ITR 85 HAVE HELD THAT THE ADDITIONS MADE ON THE BASIS OF ESTIMATE AND NOT ON CONCRETE EVIDENCE OF CONCEALMEN T OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME, THEREFORE, NO PEN ALTY IS LEVIABLE. CONSIDERING THE FACTS OF THE CASE AS NOTED ABOVE AND HISTORY OF THE ASSESSEE IN WHICH THE ASSESSEE CLAIMED AGRICULTURAL INCOME AND STAND OF THE ASSESS EE HAS BEEN ACCEPTED IN EARLIER YEAR ALSO AND IN ASSESSMENT YEAR UNDER APPEAL SUBST ANTIAL CLAIM OF AGRICULTURAL INCOME HAS BEEN ACCEPTED ON ESTIMATE, WOULD CLEARLY PROVE THAT IT IS NOT A FIT CASE OF LEVY OF PENALTY. WE ACCORDING, SET SIDE THE ORDE RS OF THE AUTHORITIES BELOW AND CANCEL THE PENALTY IN THE CASE OF SMT. SADHANA SHAR MA. ITA NO. 513 & 516/AGRA/2012 6 6. THE FACTS ARE SAME IN THE CASE OF OTHER ASSESSEE , SHRI MAHESH CHAND SHARMA, IN WHICH ALSO SIMILARLY, AGRICULTURAL INCOM E WAS REDUCED FROM RS.3,00,000/- TO RS.1,00,000/-. THE FACTS ARE SAME AS HAVE BEEN CONSIDERED IN THE CASE OF SMT. SADHANA SHARMA (SUPRA). FOLLOWING THE REASONS FOR DECISION IN THE CASE OF SMT. SADHANA SHARMA (SUPRA), WE SET ASIDE T HE ORDERS OF THE AUTHORITIES BELOW AND CANCEL THE PENALTY. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY