Sukhjit Singh, Mohali V. ITO, Chandigarh

ITA 515/CHANDI/2009

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9218 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-07-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 12-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: GAGAN DEEP SINGH
• Keywords: Question of law
• Section: 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & MAHARISHTI PRASHAT KUMAR, ACCOUNTANT MEMBER ITA NO. 515/CHD/2009 ASSESSMENT YEAR: 2005-06 SH. SUKHJIT SINGH, VS. THE ITO, WARD 2(2), MOHALI CHANDIGARH PAN NO. AZXPS6692L (APPELLANT) (RESPONDENT) APPELLANT BY : SH. GAGANDEEP SINGH RESPONDENT BY : SH. MANJIT SINGH DATE OF HEARING : 02.08.2016 DATE OF PRONOUNCEMENT : 02.08.2016 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FIXED FOR HEARING PURS UANT TO THE DIRECTIONS OF THE HON'BLE PUNJAB & HARYANA HIGH COURT VIDE OR DER DATED SEPTEMBER 18, 2014 PASSED IN ITA NO. 335 OF 2013 VIDE WHICH THE H ON'BLE HIGH COURT HAS REMITTED THE MATTER TO THIS TRIBUNAL TO DECIDE THE SAME AFRESH. THE RELEVANT GROUND TAKEN BY THE ASSESSEE IN THIS APPEAL READS A S UNDER:- THAT THE LD. CIT(A) IS NOT JUSTIFIED IN CONCURRING WITH THE ORDERS OF THE A.O AND THEREBY CONFIRMING THE ADDITI ON OF RS.17,19,000/- WITHOUT APPRECIATING THE REQUISITE DOCUMENTS, EXPLANATION AND EVIDENCES AS FILLED BY THE APPELLANT IN SUPPORT OF HIS CONTENTIONS WHICH IS IL LEGAL AND BAD IN LAW AND THUS NEEDS INTERFERENCE OF THIS HON' BLE BENCH FOR WHICH THE PRESENT APPELLANT PRAYETH VIDE THIS PRESENT APPEAL. 2 2. THE APPEAL OF THE ASSESSEE WAS DECIDED BY THE TR IBUNAL IN ITA NO.515/CHD/2009 VIDE ORDER DATED 23.7.2009 WHEREIN IT WAS HELD AS UNDER: THE CRUX OF THE ARGUMENTS IS THAT THE IMPUGNED AMOUNTS WERE DEPOSITED IN THE BANK ACCOUNTS OF THE ASSESSEE FROM THE SALE PROCEEDS OF AGRICULTURE OF ALL THE FAMILY MEMBERS. IT WAS CLAIMED THAT THE PARENTS DID NOT DEPOSIT THEIR SALE PROCEEDS IN THEI R AMOUNT. ULTIMATELY, THE VISA WAS DENIED AND THE ASSESSEE JOINED LINCON LAW COLLEGE, SIRHIND IN ACADEMIC SESSION 2006-07. IN VIEW OF THESE FACTS ATLEAST, IT IS PROVED THAT THE ASSESSEE WANTED TO PURSUE HIS STUDIES IN LAW. NOW QUESTION ARISES WHETHER THE IMPUGNED AMOUNT CAN BE OBTAINED FROM SALE PROCEEDS/LEASE RENT OF 100 ACRES OF LAND. WE ARE OF THE VIEW THAT EVEN THE INCOME IF ESTIMATED A T THE RATE OF RS.25,000/- PER ACRE, STILL IT GOES TO RS.25 LAKHS. IF THE TOTALITY OF FACTS AND CIRCUMSTANCES ARE ANALYSED, IT CAN BE SAID THAT THE IMPUGNED AMOUNT OF RS.17,19,000/- CAN BE GROWN FROM 100 ACRES OF LAND. 3. PURSUANT TO THE ABOVE ORDER OF THE TRIBUNAL, THE REVENUE FILED AN APPEAL BEFORE THE HON'BLE PUNJAB & HARYANA HIGH COURT. TH E HON'BLE HIGH COURT IN ITA NO.626 OF 2010 VIDE JUDGMENT DATED 16.2.2011 VI DE PARAS 8 TO 10 HELD AS UNDER: 8. FROM A PERUSAL OF THE ORDER OF THE TRIBUNAL, WE FIND THAT THE TRIBUNAL HAD PROCEEDED TO RECORD THE FINDI NG DELETING THE ADDITION OF RS.17,19,000/- ON THE BASI S OF CONJECTURES THAT THE ASSESSEE MUST HAVE GROWN ON THE LAND AND THE AMOUNT SO DEPOSITED WAS F ROM THE SALE PROCEEDS OF PRODUCE GROWN ON 100 ACRES OF LAND WITHOUT THERE BEING ANY MATERIAL TO SUBSTANTIATE THE SAID C LAIM. THE RELEVANT FINDING RECORDED BY THE TRIBUNAL READS THU S:- 3 'WE ARE OF THE VIEW THAT EVEN THE INCOME IF ESTIMAT ED AT THE RATE OF RS.25,000/- PER ACRE, STILL IT GOES TO RS.25 LAKHS. IF THE TOTALITY OF FACTS AND CIRCUMSTANCES A RE ANALYSED, IT CAN BE SAID THAT THE IMPUGNED AMOUNT O F RS.17,19,000/- CAN BE GROWN FROM 100 ACRES OF LAND. ' 9. THE FINDING RECORDED BY THE TRIBUNAL BEING BASED ON CONSIDERATION OF NON-EXISTENT MATERIAL IS VITIATED AND LIABLE TO BE SET ASIDE. THE JUDGMENTS RELIED UPON BY LEAR NED COUNSEL FOR THE ASSESSEE HAS NO APPLICABILITY TO TH E FACTS OF THE PRESENT CASE. 10. ACCORDINGLY, THE SUBSTANTIAL QUESTION OF LAW IS ANSWERED IN FAVOUR OF THE REVENUE. THE APPEAL IS A LLOWED AND THE IMPUGNED ORDER PASSED BY THE TRIBUNAL IS SE T-ASIDE. THE MATTER IS REMITTED TO THE TRIBUNAL TO PROCEED A FRESH IN ACCORDANCE WITH LAW. 4. PURSUANT TO THE DIRECTIONS OF THE HON'BLE HIGH C OURT, THE MATTER WAS REHEARD BUT ON THE DATE FIXED FOR HEARING, NONE APP EARED ON BEHALF OF THE ASSESSEE AND THE TRIBUNAL PASSED EX. PARTE DECISIO N AND CONCLUDED AS UNDER:- 7. AS PER THE DIRECTIONS OF THE HON'BLE HIGH COURT , THE ONUS WAS UPON THE ASSESSEE TO ESTABLISH THAT IT HAD RECEIVED RS.17,19,000/- ON ACCOUNT OF SALE PROCEEDS OF PRODUCE GROWN ON HIS PIECE OF LAND. THE HON'BLE HI GH COURT HAD DIRECTED THE TRIBUNAL TO EXAMINE THE EVID ENCE IN THIS REGARD AS THE EARLIER FINDING OF THE TRIBUN AL WAS BASED ON CONSIDERATION OF NON-EXISTING MATERIAL. T HE TRIBUNAL IN THE FIRST ROUND OF APPEAL HAD PRESUMED THAT AS THE ASSESSEE WAS OWNING MORE THAN 100 ACRES OF L AND ALONGWITH HIS FAMILY MEMBERS, THE INCOME, IF ESTIMA TED @ RS.25,000/- PER ACRE WOULD BE RS.25 LACS, WHEREAS THE ASSESSEE HAD DEPOSITED ONLY A SUM OF RS.17,19,000/- IN HIS BANK ACCOUNT OUT OF THE SALE OF AGRICULTURAL PR ODUCE. HOWEVER, THE HON'BLE HIGH COURT HELD THE FINDINGS O F THE TRIBUNAL TO BE INCORRECT AND THE MATTER WAS SET ASI DE TO THE FILE OF THE TRIBUNAL. IN VIEW OF THE FINDING O F THE HON'BLE HIGH COURT AND ALSO THE ASSESSEE HAVING NOT 4 DISCHARGED HIS ONUS OF ESTABLISHING HIS STAND OF EA RNINGS FROM HIS AGRICULTURAL LAND AND IN THE ABSENCE OF AN Y EVIDENCE, WE FIND NO MERIT IN THE CLAIM OF THE ASSE SSEE. THE ALTERNATE PLEA OF THE ASSESSEE IN RESPECT OF CA SH DEPOSIT AND CASH WITHDRAWAL FROM THE SAME BANK IS A N ALTERNATE PLEA WHICH COULD NOT BE ENTERTAINED AT TH IS JUNCTURE AS IT IS SECOND ROUND OF PROCEEDINGS BEFOR E THE TRIBUNAL. IN THE ENTIRETY OF FACTS AND CIRCUMSTANC ES, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE DISMI SSED AND ADDITION OF RS.17,19,000/-MADE BY THE ASSESSING OFFICER IS UPHELD. 5. BEING AGGRIEVED BY THE ABOVE ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT. THE H ON'BLE HIGH COURT AGAIN SET ASIDE THE ORDER OF TRIBUNAL DATED 23.5.2013 AND REM ITTED THE MATTER TO THE TRIBUNAL TO DECIDE THE SAME AFRESH. 6. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES. THE SHORT ISSUE BEFORE US IS REGARDING THE SOURCE OF RS. 17,1 9,000/- INTO THE ACCOUNT OF THE ASSESSEE. THE CLAIM OF THE ASSESSEE IS THAT HE IS A N AGRICULTURIST AND THAT THE SOURCE OF THE DEPOSIT WAS OUT OF INCOME EARNED FROM SALE OF AGRICULTURAL PRODUCE. IT HAS ALSO BEEN CLAIMED THAT THE ASSESSEE ALONG WITH HIS FAMILY MEMBERS OWNS MORE THAN 100 ACRES OF CULTIVATED LAND AND THAT THE INCOME FROM THE PRODUCE OF THE SAID 100 ACRES OF LAND WAS THE S OURCE OF DEPOSIT IN THE BANK ACCOUNT. THE ASSESSEE HAS RELIED UPON THE STATEMEN T IN RELATION TO THE INCOME OF EACH MEMBER OF THE FAMILY FROM THE PRODUCE OF WHEAT , PADDY AND NARMA (COTTON CROPS). THE ASSESSEE HAS ALSO RELIED UPON T HE J FORMS ISSUED BY THE CONCERNED COMMISSION AGENT THOUGH WHOM THE AGRICULT URAL PRODUCE WAS SOLD IN THE MARKET. IT IS PERTINENT TO MENTION HERE THAT TH E J FORMS ARE ISSUED BY THE GRAIN MARKET COMMISSION AGENTS WHEN THE PRODUCE IS SOLD IN THE GRAIN MARKET. AS PER THE PUNJAB AGRICULTURAL PRODUCE MARKETS (GEN ERAL) RULES, 1962, IT IS 5 MANDATORY FOR A KACCHA ARTIA (A DEALER WHO, IN CO NSIDERATION OF COMMISSION OFFERS HIS SERVICES TO SELL AGRICULTURAL PRODUCE) T O ISSUE J FORMS AT THE TIME OF SALE OF PRODUCE BY THE FARMERS. IN THE J FORM, TH E NAME OF SELLER/ BUYER AND COMMISSION AGENT, THE NAME OF CROP / VOLUME OF PROD UCE SOLD, RATE AND INCIDENTAL CHARGES AND NET AMOUNT PAID TO FARMERS A RE MENTIONED. THE SAID J FORMS ALSO FORMS THE BASIS FOR TAXATION / MARKET FE ES AND IS ALSO TAKEN INTO CONSIDERATION FOR THE PURPOSE OF GRANT OF GOVERNMEN T INCENTIVE, BONUS BY THE GOVERNMENT. THE J FORMS ENSURES THAT THE NAME OF T HE SELLER OF THE CROPS, PRODUCER OF THE CROP IS ENTERED INTO THE OFFICIAL P URCHASE REGISTER OF THE CONCERNED FOOD & SUPPLIES DEPARTMENT AND PUNJAB MAN DI BOARD, HENCE, THE J FORMS ARE TREATED AS OFFICIAL PROOF OF THE SALE OF CROP BY THE FARMERS. THE LD. AR HAS FURTHER RELIED ON THE COPIES OF THE JAMABAN DI WHICH ARE THE DOCUMENTS SHOWING THE OWNERSHIP AND THE POSSESSION OF THE LAN D AND WHETHER THE LAND IS CULTIVABLE OR NOT. FURTHER, THE LD. AR HAS ALSO PLA CED RELIED ON THE GIRDAWARI WHICH ARE PREPARED BY THE CONCERNED LAND REVENUE OF FICIAL (PATWARI) ON HALF YEARLY BASIS MENTIONING AS TO IN WHAT PART OF LAND / KHASRA NUMBER, WHAT CROP HAS BEEN SOWN OR STANDING. BY RELYING UPON THE AB OVE EVIDENCES, THE LD. AR HAS CONTENDED THAT IT IS PROVED BEYOND DOUBT THAT T HE ASSESSEE ALONGWITH HIS FAMILY MEMBERS HAS OWNED ABOUT 100 ACRES OF AGRICUL TURAL LAND AND THAT THE INCOME FROM SALE OF AGRICULTURAL PRODUCE WAS ENOUG H TO COVER THE DEPOSIT OF RS. 17,19,000/- IN THE BANK ACCOUNT OF THE ASSESSEE . IT HAS BEEN FURTHER EXPLAINED THAT THE ASSESSEE AT THAT TIME WAS A STU DENT OF LAW AND HAD APPLIED FOR VISA FOR HIGHER STUDIES IN UK AND AS ADVISED, HE HA D TO SHOW NUMBER OF ENTRIES IN HIS BANK ACCOUNT, WHICH IS CONSIDERED BY THE CON CERNED AUTHORITY REGARDING THE FINANCIAL STABILITY OF A PERSON SEEKING VISA. I T WAS, THEREFORE, EXPLAINED THAT THE SAME AMOUNT WAS DEPOSITED, WITHDRAWN RE-DE POSITED AND RE-WITHDRAWN AND SO ON. THAT THE SAME AMOUNT WAS ROTATED FOR T HE PURPOSE OF MULTIPLE ENTRIES IN THE BANK ACCOUNT. 6 7. ON THE OTHER HAND, LD. DR HAS RELIED ON THE ORD ER OF THE ASSESSING OFFICER AND HAS DEMONSTRATED THAT THE ASSESSEE HAD NEVER ASSISTED TO EXPLAIN THE SOURCE OF DEPOSIT DURING THE ASSESSMENT PROCEEDINGS . THE ASSESSEE HAD NOT PRODUCED THESE EVIDENCES BEFORE THE ASSESSING OFFIC ER AND THAT THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT EX-PARTE OF TH E ASSESSEE U/S 144 OF THE INCOME-TAX ACT, 1961. 8. CONSIDERING THE ABOVE SUBMISSIONS OF THE ASSESSE E, WE ARE OF THE VIEW THAT THOUGH THE ASSESSEE BEFORE US HAS RELIED UPON THE VARIOUS EVIDENCES IN SUPPORT OF HIS CLAIM BUT THE BENEFIT OF THESE EVIDE NCE WAS NOT AVAILABLE TO THE ASSESSING OFFICER AT THE TIME OF FINALIZATION OF A SSESSMENT PROCEEDINGS. THE ASSESSING OFFICER HAD TO FINALIZE THE ASSESSMENT PR OCEEDINGS EX-PARTE OF THE ASSESSEE. CONSIDERING THE OVERALL FACTS AND CIRCUMS TANCES OF THE CASE, IN OUR VIEW, INTEREST OF THE JUSTICE WILL BE BEST SERVED, IF THE ENTIRE MATTER IS RESTORED FOR RE-EXAMINATION BY THE ASSESSING OFFICER. WE, TH EREFORE, SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER TO THE FILE O F THE ASSESSING OFFICER WITH A DIRECTION THAT THE ASSESSEE WILL PRODUCE THE RELEVA NT EVIDENCES BEFORE THE ASSESSING OFFICER IN SUPPORT OF HIS CLAIM AND THE A SSESSING OFFICER AFTER EXAMINING THOSE EVIDENCES WILL DECIDED THE ISSUE AF RESH IN ACCORDANCE WITH LAW. THE APPEAL OF THE ASSESSEE IS, THEREFORE, TREATED A S ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02.08.2016 SD/- SD/- (MAHARISHI PRASHANT KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 02 AUGUST, 2016 7 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR