ITO, New Delhi V. Sh. Malvinder Singh Grewal, Rampur

ITA 5892/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3558 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 31-10-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ARUN KUMAR YADAV SENIOR
• Keywords: Additional evidence
• Section: 54; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE HONBLE PRESIDENT, SHRI G.D. AGRAWAL AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.5892/DEL./2014 (ASSESSMENT YEAR : 2010-11) ITO, WARD 42 (3), VS. SHRI MALVINDER SINGH GREWAL, NEW DELHI. BHARAYA CO-OP. FARMS, P.O. RUDRA BILAS CHINI MILLS, BILASPUR, DISTRICT RAMPUR (U.P.). (PAN : ACZPG2829C) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.N. GUPTA, ADVOCATE REVENUE BY : SHRI ARUN KUMAR YADAV, SENIOR DR DATE OF HEARING : 31.10.2017 DATE OF ORDER : 08.11.2017 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, INCOME-TAX OFFICER, WARD 42 (3), NE W DELHI (HEREINAFTER REFERRED TO AS THE REVENUE) BY FILIN G THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 22.08.2014 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)- XXX, NEW DELHI QUA THE ASSESSMENT YEAR 2010-11 ON THE GROUND S INTER ALIA THAT :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN : ITA NO.5892/DEL./2014 2 1. ADMITTING ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A OF THE INCOME TAX RULE. 2. DELETING THE ADDITION OF RS.40,00,000/- MADE ON ACCOUNT OF INCOME FROM OTHER SOURCES AS THE ASSESSEE HAS DEPOSITED THE SAME IN HIS S/B A/C MAINTAINED IN PNB & HDFC BANK AND CLAIMED AS AGRICULTURAL INCOME. 3. DELETING THE ADDITION OF RS.11,66,295/- MADE ON ACCOUNT OF LTC GAIN AS THE ASSESSEE IS NOT ENTITLED FOR EXEMPTION U/S 54 OF THE ACT. 4. CIT (A) ERRED IN TREATING THE RETURN FILED U/S 139 (4) AS 139 (1) FOR ALLOWING EXEMPTION U/S 54 OF THE IT ACT. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICATION OF THE CONTROVERSY AT HAND ARE : ASSESSING OFFICER DURING THE SCRUTINY PROCEEDINGS NOTICED THAT THE ASSESSEE HAS DEPOSITED CASH TO THE TUNE OF RS.27,75,000/- AND RS.25,20,000/- (TOTAL RS.52,9 5,000/-) IN HIS SAVING ACCOUNTS MAINTAINED WITH PUNJAB NATIONAL BAN K AND HDFC BANK RESPECTIVELY. DURING ASSESSMENT PROCEEDINGS, ASSESSEE FURTHER DEPOSITED CASH AMOUNT OF RS.15,43,555/-. A SSESSEE CLAIMED THAT HE IS AN AGRICULTURIST HAVING LAND MEA SURING 53 HECTARES AND HE HAS ALSO TAKEN LAND OF RANBIR COLL ECTIVE CO- OPERATIVE SOCIETY MEASURING 41.264 HECTARES AND AGR ICULTURAL LAND OF MINI COLLECTIVE CO-OPERATIVE FARMING SOCIETY MEA SURING 12.6 HECTARES FOR AGRICULTURAL PURPOSES AND AS SUCH, ALL THE CASH DEPOSITS ARE FROM THE SALE OF AGRICULTURAL PRODUCE. REJECTI NG THE ITA NO.5892/DEL./2014 3 CONTENTIONS MADE BY THE ASSESSEE, AO MADE AN ADDITI ON OF RS.40,00,000/- TO THE INCOME OF THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES. AO ALSO MADE ADDITION OF RS.11,66,295/- UNDER THE HEAD LONG TERM CAPITAL GA IN QUA THE PROPERTY SITUATED AT HIDE MARKET, HUSSAIPURA, WEST AMRITSAR, ACQUIRED BY WAY OF AUCTION BY SMT. ROOP KAUR, GRAND MOTHER OF THE ASSESSEE AND THE ASSESSEE IS THE OWNER IN THE S AME TO THE EXTENT OF 1/6 TH SHARE. 3. ASSESSEE CARRIED THE MATTER BY WAY OF FILING APP EAL BEFORE THE LD. CIT (A) WHO HAS DELETED THE ADDITION MADE B Y THE AO BY PARTLY ALLOWING THE APPEAL. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF CHALLENGING T HE IMPUGNED ORDER PASSED BY LD. CIT (A) . 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. AT THE VERY OUTSET, THE LD. DR FOR THE REVENUE D REW OUR ATTENTION TO PARA 6 OF THE IMPUGNED ORDER PASSED BY LD. CIT (A) WHEREIN IT IS CATEGORICALLY MENTIONED THAT THE LD. CIT (A) HAS PERUSED AND RELIED UPON VARIOUS DOCUMENTS FILED BEF ORE HIM BY THE ASSESSEE. ADMITTING OF ADDITIONAL EVIDENCE U/S 46A OF THE INCOME- ITA NO.5892/DEL./2014 4 TAX ACT, 1961 (FOR SHORT THE ACT) HAS SINCE BEEN CHALLENGED BY THE REVENUE BY WAY OF RAISING GROUND NO.1. 6. IN PARA 5 OF THE IMPUGNED ORDER, THE LD. CIT (A) CATEGORICALLY MENTIONED THAT THE ASSESSEE HAS FILED PHOTOS OF THE AGRICULTURAL FARM TO PROVE THAT MANGOES AND GUAVA A RE STANDING IN THE AGRICULTURAL LAND AND TO FURTHER PROVE THAT THE ASSESSEE IS A RURAL FARMER. THE LD. CIT (A) ALSO MENTIONED IN PARA 5 T HAT DURING THE YEAR, ASSESSEE HAS NOT MAINTAINED ANY BOOKS OF ACCO UNTS AND EXPENSES HAVE BEEN INCURRED AS AND WHEN REQUIRED, H OWEVER FROM THE AVAILABLE RECORDS, HE HAS PREPARED THE INCOME & EXPENDITURE ACCOUNT TO SHOW THE NET AGRICULTURAL INCOME OF RS.4 0,00,000/-, THE SALE PROCEEDS THEREFORE HAS BEEN RECEIVED IN CASH. 7. ALL THESE FACTS GO TO PROVE THAT THE LD. CIT (A) HAS ENTERTAINED THE ADDITIONAL EVIDENCE BY VIOLATING TH E RULE 46A OF THE ACT WITHOUT PROVIDING AN OPPORTUNITY OF BEING H EARD TO THE AO. AO MUST HAVE GOT THE OPPORTUNITY TO PURSUE THE DOCU MENTS RELIED UPON BY THE LD. CIT (A) ON THE BASIS OF WHICH ADDIT ION HAS BEEN DELETED. WE HAVE ALSO NOTICED THAT THE LD. CIT (A) HAS ALSO PERUSED SOME DOCUMENTS BROUGHT ON RECORD BY THE ASSESSEE TO PROVE THAT THE AGRICULTURE OPERATION DURING THE YEAR UNDER ASS ESSMENT WAS CARRIED OUT BUT NO SUCH DOCUMENTS HAVE EITHER COME BEFORE AO NOR BEFORE THE TRIBUNAL. SO, IN THESE CIRCUMSTANCES, W E ARE OF THE ITA NO.5892/DEL./2014 5 CONSIDERED VIEW THAT THIS ISSUE IS REQUIRED TO BE R ESTORED TO THE AO WHO SHALL DECIDE AFRESH AFTER PROVIDING AN OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE. ASSESSEE IS ALSO AT LIBERTY TO PROVE THE DOCUMENTS OF SALE OF AGRICULTURE PRODUCE TO THE TUN E OF RS.40,00,000/- DURING THE YEAR UNDER ASSESSMENT BEF ORE OA. 8. RESULTANTLY, THE APPEAL OF THE REVENUE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 8 TH DAY OF NOVEMBER, 2017. SD/- SD/- (G.D. AGRAWAL) (KULDIP SINGH) PRESIDENT JUDICIAL MEMBER DATED THE 8 TH DAY OF NOVEMBER, 2017 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXX, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.