Shri Ravi V.Agarwal, Ahmedabad V. The Income tax Officer,Ward-11(4), Ahmedabad

ITA 589/AHD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63034 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 10-10-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 23-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A TINKEY
• Assessee Lawyers: S N DIVETIA
• Keywords: Difference of opinion

Judgement Text

, , , , D, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ # ## #. .. .% %% % . .. .&'( &'( &'( &'(, , , , %) * %) * %) * %) * % ' % ' % ' % ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND A. K. GARODIA, ACCOUNTANT MEMBER) ITA NO.589/AHD/2010 [ASSTT.YEAR : 2004-2005] RAVIN V. AGARWAL 34, VISHWAKETU-II OPP: IOC PETROL PUMP, BODAKDEV JUDGES BUNGALOW ROAD AHMEDABAD. ABKPA 0683 L /VS. ITO, WARD-11(4) AHMEDABAD. ( (( (,- ,- ,- ,- / APPELLANT) ( (( (./,- ./,- ./,- ./,- / RESPONDENT) 01 2 3 %/ ASSESSEE BY : SHRI S.N.DIVETIA * 2 3 %/ REVENUE BY : SHRI A. TINKEY 5 2 16)/ DATE OF HEARING : 10 TH OCTOBER, 2012 7&8 2 16)/ DATE OF PRONOUNCEMENT : 02-11-2012 %9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL OF THE ASSESSEE FOR A.Y.2004-2005 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-XVI, AHMEDABAD DATED 17.12.200 9. THE ONLY ISSUE RAISED IN THIS APPEAL IS REGARDING VALIDITY O F PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT AMOUNTING TO RS.70,265 /-. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAS DISCLOSED AGRICULTURE INCOME FROM THE AGRICULTURE L AND AS CULTIVATED BY HIM. THE AGRICULTURE INCOME WAS SHOWN AT RS.4,09,6 95/- AND THE AO ADDED THE ENTIRE AMOUNT OF AGRICULTURE INCOME AS IN COME FROM OTHER SOURCES IN THE HANDS OF THE ASSESSEE. HE SUBMITTED THAT THE CIT(A) CONSIDERED THE ENTIRE FACTUAL MATRIX OF THE CASE AN D HELD THAT THE ASSESSEE ITA NO.589/AHD/2010 -2- HAS CULTIVATED TWO SETS OF AGRICULTURE LAND AND THI RD SET OF AGRICULTURE LAND WAS REGISTERED IN THE NAME OF THE ASSESSEE, AND THE OWNERSHIP THEREOF STILL LIES WITH THE ASSESSEE. HE SUBMITTED THAT THE CIT( A) HAS ESTIMATED THE AGRICULTURE INCOME FROM THE CULTIVATED AGRICULTURE LAND AT RS.1,75,480/- AND THE BALANCE AMOUNT WAS DIRECTED TO BE ADDED IN THE HANDS OF THE ASSESSEE. HE SUBMITTED THAT THE REVENUE HAS NOT PR EFERRED ANY APPEAL AGAINST THE ORDER OF THE CIT(A), AND THEREFORE THE FACT THAT THE ASSESSEE HAS CULTIVATED ON AGRICULTURE LAND HAS BECOME FINAL . THE ONLY DISPUTE WAS WITH REGARD TO FAIR ESTIMATE OF THE AGRICULTURE INC OME DECLARED BY THE ASSESSEE, AND ON ACCOUNT OF DIFFERENCE IN THE ESTIM ATION, NO PENALTY UNDER SECTION 271(1)(C) SHOULD BE IMPOSED ON THE ASSESSEE . THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT MERELY BECAUSE THE REVENUE HAS NOT P REFERRED APPEAL AGAINST THE ORDER OF THE CIT(A) IN THE QUANTUM CASE OF THE ASSESSEE, IS NO GROUND TO ARGUE THAT THE PENALTY WAS NOT IMPOSABLE UNDER SECTION 271(1)(C) OF THE ACT. HE RELIED ON THE ORDERS OF T HE AO AND THE CIT(A). 3. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE CIT(A) HAS PASSED A DETAILED SPEAKING ORDER AND AFTER CONSIDERING THE FACTUAL MA TRIX OF THE CASE OF THE ASSESSEE HAS HELD THAT THE ASSESSEE WAS IN THE POSS ESSION OF TWO SETS OF LAND AND HAS CULTIVATED THEM AND COTTON WAS GROWN T HEREON AND ON THE THIRD LAND PURCHASED FROM SHRI CHANDUJI THAKORE AND THE SAME WAS REGISTERED IN THE NAME OF THE ASSESSEE AND THE OWNE RSHIP THEREOF STILL LIES WITH THE ASSESSEE AND ON THIS LAND PADDY WAS GROWN. WE FIND THAT THE REVENUE HAS NOT PREFERRED ANY APPEAL AGAINST THE OR DER OF THE CIT(A) PASSED IN THE QUANTUM CASE OF THE ASSESSEE, AND THE REFORE THE FINDING OF THE CIT(A) THAT THE ASSESSEE HAS CULTIVATED THE AGR ICULTURE LAND IN ITA NO.589/AHD/2010 -3- QUESTION HAS BECOME FINAL. THE ONLY DISPUTE REMAIN S WITH REGARD TO FAIR ESTIMATE OF THE AGRICULTURE INCOME WHICH MAY HAVE B EEN EARNED BY THE ASSESSEE. WE FIND THAT THE CIT(A) HAS RECORDED THA T THERE IS NO MENTION AS TO WHETHER THE LAND WAS IRRIGATED OR UN-IRRIGATE D, AND THEREFORE YIELD APPLICABLE TO RICE TOTAL OR COTTON TOTAL AS PER THE GOVERNMENT OF GUJARAT STATISTICS IS CONSIDERED IN THIS CASE AND THE CIT(A ) HAS ESTIMATED THE AGRICULTURE INCOME OF THE ASSESSEE AT RS.1,75,480/- . WE FIND THAT THERE REMAINS ONLY A DIFFERENCE OF OPINION REGARDING THE FAIR ESTIMATE OF THE AGRICULTURE INCOME EARNED BY THE ASSESSEE BETWEEN T HE ASSESSEE AND THE REVENUE AUTHORITIES. WE FIND THAT ONCE IT IS ESTAB LISHED THAT THE ASSESSEE HAS GOT AGRICULTURE LAND CULTIVATED AND HAS PERFORM ED AGRICULTURE OPERATIONS AND HAS EARNED AGRICULTURE INCOME THERE FROM, AND THIS FINDING HAS BECOME FINAL, MERELY BECAUSE THERE WAS A DIFFER ENCE OF OPINION BETWEEN THE ASSESSEE AND THE REVENUE REGARDING FAIR ESTIMATE OF AGRICULTURE INCOME WHICH MAY HAVE BEEN EARNED BY TH E ASSESSEE DURING THE RELEVANT PERIOD, COULD NOT BE MADE A BASIS FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON THE ASSESSEE. IN THESE FACTS OF THE CASE, WE HOLD THAT IT WAS NOT A FIT CASE FOR LEVY O F PENALTY UNDER SECTION 271(1)(C) OF THE ACT, WHICH IS ACCORDINGLY CANCELLE D AND THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE ALLOWED. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( # ## #. .. .% %% % . .. .&'( &'( &'( &'( /A.K. GARODIA) %) * /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT VK* C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT