The Income tax Officer, Abohar V. Sh. Judgeprit Singh, Fazilka

ITA 600/ASR/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73185 (ITAT-AMRITSAR)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 30-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NOS. 599 & 600(ASR)/2013 ASSESSMENT YEARS: 2008-09 & 2009-10 PAN: BEOPS3739F INCOME TAX OFFICER, VS. SH. JUDGEPRIT SINGH, WARD- II(4), ABOHAR S/O- SH. MALKIAT SINGH, VILLAGE SHAHPURA, FAZILKA (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, SR. DR RESPONDENT BY: NONE DATE OF HEARING: 21.01.2014 DATE OF PRONOUNCEMENT: 23.01.2014 ORDER PER BENCH 1. THE REVENUE HAS FILED THE AFORESAID TWO APPEALS AGAINST THE CONSOLIDATED ORDER DATED 30.07.2013 PASSED BY LEARN ED CIT(APPEALS), BATHINDA, FOR THE ASSESSMENT YEARS 2008-09 & 2009-1 0. IN BOTH THE APPEALS, THE REVENUE HAS RAISED COMMON GROUNDS OF A PPEALS, EXCEPT THE DIFFERENCE IN AMOUNT, THEREFORE WE PROCEED TO DECID E BOTH THE APPEALS BY PASSING A CONSOLIDATED ORDER AND THE GROUNDS TAKEN BY THE REVENUE IN I.T.A. NO. 599(ASR)/2013 ARE REPRODUCED AS UNDER: 2 I.T.A. NOS. 599 & 600(ASR)/2013 ASSESSMENT YEARS: 2008-09 & 2009-10 I. THAT THE LEARNED CIT(A), BATHINDA, HAS ERRED IN DEL ETING ADDITION OF RS. 8,90,500/- FOR THE ASSESSMENT YEAR 2008-09 W ITHOUT CONSIDERING THE FACTS OF THE CASE. THE A.O. HAS RIG HTLY BEEN ESTIMATE THE AGRICULTURE INCOME AT RS. 3,50,000/- A ND TREATED THE AMOUNT OF RS. 8,90,500/- AS INCOME FROM OTHER SOURC E AGAINST THE TOTAL AGRICULTURE INCOME DECLARED BY THE ASSESSEE A T RS. 12,40,500/- BECAUSE THE ASSESSEE FAILED TO PRODUCE GIRDAWARI OF LAND IN HIS NAME AND PROOF OF SALE OF AGRICULTURE PRODUCE FROM WHOM IT COULD BE VERIFIED THAT ASSESSEE HAS CULTIVATED THE AGRICU LTURE LAND IN QUESTION. II. THAT THE APPELLANT RESERVES ITS RIGHT TO ADD, AMEND ALTER OR WITHDRAW ANY GROUNDS OF APPEAL BEFORE THE SAME IS F INALLY HEARD. 2. THE AFORESAID APPEALS CAME UP FOR HEARING BEFORE THE BENCH ON 21.01.2014 BY ISSUING NOTICE TO THE ASSESSEE THROUG H RPAD. HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AS WELL AS THE OR DER PASSED BY THE REVENUE AUTHORITY, WE ARE OF THE VIEW THAT NO USEFU L PURPOSE WOULD BE SERVED TO ISSUE NOTICE TO THE ASSESSEE AGAIN AND AG AIN. THEREFORE, WE PROCEED TO DECIDE THE ISSUE IN DISPUTE EX-PARTE ASS ESSEE AFTER HEARING LEARNED DR. 3. LEARNED DR HAS RELIED UPON THE ORDER PASSED BY T HE ASSESSING OFFICER. 4. WE HAVE PERUSED THE IMPUGNED ORDER PASSED BY THE LEARNED FIRST APPELLATE AUTHORITY WHEREIN THE LEARNED FIRST APPELLATE AUTHORITY 3 I.T.A. NOS. 599 & 600(ASR)/2013 ASSESSMENT YEARS: 2008-09 & 2009-10 HAS ADJUDICATED AND DECIDED THE ISSUE IN DISPUTE, T HE RELEVANT PORTIONS OF THE IMPUGNED ORDER AT PAGE 7 TO 11, ARE REPRODUCED AS UNDER: I HAVE PERUSED THE ASSESSMENT ORDER/REMAND REPORT OF THE A.O. AND WRITTEN SUBMISSIONS FILED BY THE A/R OF THE APP ELLANT AND THE APPEAL IS DECIDED AS UNDER:- 1. THE FIRST ISSUE WHICH NEEDS TO BE ADJUDICATED IS THE EXTENT OF LAND CULTIVATED BY THE APPELLANT. 1.1 IT IS ADMITTED FACT THAT THE APPELLANT ALONG WITH HIS FATHER AND MOTHER OWNS 251 KANAL 8 MARLA OF AGRICULTURE LA ND AT VARIOUS PLACES. THE DETAILS OF THE LAND AND EVIDENCE OF OWN ERSHIP WERE FURNISHED BEFORE THE A.O. DURING THE COURSE OF ASSE SSMENT PROCEEDINGS. 1.2 DURING THE COURSE OF ASSESSMENT PROCEEDINGS F OR A.Y. 2008-09 AND 2009-10 THE APPELLANT FILED AN AFFIDAVI T FROM HIS FATHER STATING THE FACT THAT THE APPELLANT HIMSELF WAS CUL TIVATING THE WHOLE OF THE AGRICULTURE LAND OF THE FAMILY. THE FATHER OF T HE APPELLANT HAS FURTHER CONFIRMED IN THE AFFIDAVIT THAT HE IS NOT F ILING ANY RETURN OF INCOME. IT HAS BEEN STATED BY THE A/R OF THE APPELL ANT THAT THE A.O. HAS DISBELIEVED THE STATEMENT OF THE FATHER IN THE AFFIDAVIT WITHOUT EXAMINING HIM. HE HAS RELIED ON THE JUDGMENT OF HON 'BLE SUPREME COURT IN THE CASE OF MEHTA PARIKH & CO. VS. CIT (19 56) 30 ITR 181 IN WHICH IT HAS BEEN HELD THAT IT IS NOT OPEN FOR T HE DEPARTMENT TO CHALLENGE THE CORRECTNESS OF THE STATEMENT MADE BY THE DEPONENT IN THEIR AFFIDAVITS UNLESS THE DEPONENT IS CROSS-EXAMI NED WITH REFERENCE TO THE STATEMENT MADE BY HIM IN THE AFFIDAVIT. 1.3 THE A.O. HAS DISCUSSED THE CONTENTS OF THE AF FIDAVIT OF THE FATHER OF THE APPELLANT IN DETAIL IN PARA 3 ON PAGE 2 AND 3 OF THE ASSESSMENT ORDER. BUT THE OBJECTION OF THE A.O. IS THAT THE GIRDAWRI OF THE LAND IS IN THE NAME OF THE FATHER AND THE ACCOU NT WITH THE COMMISSION AGENT FOR SALE OF CROP HAS ALSO BEEN MAI NTAINED IN THE NAME OF THE FATHER. 4 I.T.A. NOS. 599 & 600(ASR)/2013 ASSESSMENT YEARS: 2008-09 & 2009-10 1.4 DURING THE COURSE OF APPELLATE PROCEEDINGS, A /R OF THE APPELLANT HAS STATED THAT THE CROP IS SOLD THROUGH THE COMMISSION AGENT AND IN THE CASE OF A JOINT FAMILY THE ACCOUNT WITH THE COMMISSION AGENT IS GENERALLY MAINTAINED IN THE NAME OF THE HE AD OF THE FAMILY. THE A.O. HAS IGNORED THE FACT THAT THERE ARE NO SEP ARATE ACCOUNTS IN THE NAME OF THE APPELLANT OR HIS MOTHER WITH THE CO MMISSION AGENT FOR THE SALE OF THE CROP PERTAINING TO THE ENTIRE FAMIL Y. HE HAS FURTHER STATED THAT IN CASE OF CULTIVATION BY THE JOINT FAM ILY, THE GIRDAWRI (RECORD OF THE NAME OF THE CULTIVATOR WITH THE REVE NUE DEPARTMENT) IS NOT CHANGED EVEN IF THE CULTIVATION OF THE ENTIRE L AND OF THE FAMILY IS DONE BY ONE OF THE FAMILY MEMBERS WITH THE MUTUAL A RRANGEMENT AMONGST THE FAMILY MEMBERS. 1.5 THE A/R OF THE APPELLANT ARGUED DURING THE CO URSE OF APPELLATE PROCEEDINGS THAT THE A.O. HAS NOT DISPUTE D THE FACT THAT THE APPELLANT IS A BACHELOR AND HE IS ONLY SON OF HIS P ARENTS AND HE HAS FURTHER STATED THAT HE WAS CONTRIBUTING TOWARDS HOU SE HOLD EXPENSES WHICH CAN BE CONSIDERED AS LEASE MONEY (THEKA) FOR ALLOWING HIM TO CULTIVATE THE LAND OF THE FAMILY. THE A.O. IN THE R EMAND REPORT HAS REJECTED THIS CONTENTION OF THE APPELLANT BECAUSE O F THE REASONS ALREADY DISCUSSED ABOVE. 1.6 THE ABOVE STATED FACTS PROVE THAT THE APPELLA NT WAS CULTIVATING THE WHOLE OF THE AGRICULTURE LAND OWNED BY ALL THE MEMBERS OF THE FAMILY. THE A.O. HAS REJECTED THE ST ATEMENT OF FATHER OF THE APPELLANT IN THE AFFIDAVITS FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS WITHOUT CROSS EXAMINING HIM REGARDING H IS STATEMENT THAT THE APPELLANT WAS CULTIVATING THE WHOLE OF THE LAND OF THE FAMILY. THE A.O. HAS ALSO FAILED TO MAKE ANY INDEPENDENT FIELD ENQUIRY EITHER DURING A.Y. 2008-09 OR A.Y. 2009-10 TO REBUT THE CO NTENTIONS OF THE APPELLANT AND STATEMENT OF THE FATHER IN THE AFFIDA VITS. I RESPECTFULLY FOLLOW THE JUDGMENT OF APEX COURT IN THE CASE OF ME HTA PARIKH (SUPRA) TO CONCLUDE THAT THE APPELLANT WAS CULTIVAT ING THE WHOLE OF THE LAND OF THE FAMILY. 1.7 BESIDES THE LAND OF THE FAMILY, THE APPELLANT HAS PROVED THAT HE CULTIVATED 19 ACRES OF AGRICULTURE LAND OWN ED BY SH. MANJIT SINGH, S/O- SH. HARNEK SINGH R/O- VILLAGE MAHUANA D URING A.Y. 5 I.T.A. NOS. 599 & 600(ASR)/2013 ASSESSMENT YEARS: 2008-09 & 2009-10 2008-09 AND 2009-10. THE A.O. HAS DISCUSSED THE CON TENTIONS OF THE STATEMENTS IN THE REMAND REPORT THAT SH. MANJIT SIN GH STATED IN HIS STATEMENT THAT NO WRITTEN AGREEMENT WAS MADE AS THE RE IS NO GENERAL PRACTICE IN THE VILLAGE TO EXECUTE WRITTEN AGREEMEN T FOR GIVING THE LAND ON THEKA. THE A.O. HAS STATED THAT THE ISSUE BE DEC IDED ON MERITS WITHOUT POINTING OUT ANY FLAW IN THE STATEMENT OF S H. MANJIT SINGH. 1.7 THE APPELLANT HAS FAILED TO PRODUCE SH. GURMA NDER SINGH, R/O VILLAGE KATTIANWALI FOR PROVING THE FACT THAT THE APPELLANT CULTIVATED 17 ACRES OF AGRICULTURE LAND OF THIS PER SON DURING A.Y. 2008-09. THUS THIS LAND IS NOT BEING CONSIDERED TO BE CULTIVATED BY THE APPELLANT. 1.8 THUS IT STANDS PROVED THAT THE APPELLANT WAS CULTIVATING 50 ACRES OF AGRICULTURE LAND DURING THE RELEVANT PE RIOD FOR A.Y. 2008- 09 AND 2009-10. (251 KANAL 8 MARLE = 31 ACRES OF TH E FAMILY + 19 ACRES SH. MANJIT SINGH). 2. THE SECOND ISSUE WHICH NEEDS TO BE ADJUDICATED IS THAT WHAT WAS THE ESTIMATED NET AGRICULTURE INCOME EARNE D BY THE APPELLANT FROM THE CULTIVATION OF 50 ACRES OF AGRICULTURE LAN D. 2.1 A.Y. 2008-09 THE A.O. HAS ESTIMATED THE AGRICULTURE INCOME OF RS. 350000/- WHICH COMES TO RS. 40000/- PER ACRE FROM 7 0 KANAL 6 MARLE (ABOUT 8 ACRE 6 KANAL 6 MARLE) NOW SINCE I HAVE COME TO THE CONCLUSION THAT THE APPELLANT WAS CULTIVATING 50 ACRES OF AGRICULTURE L AND THE ESTIMATED NET AGRICULTURE INCOME COMES TO RS. 2000000/- (40000 X 50 ACRE) AGAINST WHICH THE APPELLANT HAS DECLARED NET INCOME OF RS. 1240500/-. THUS NO ADDITION IS CALLED FOR ON ACCOUNT OF THE FACT TH AT THE APPELLANT HAS DECLARED EXCESS AGRICULTURE INCOME WHICH HAS BEEN A SSESSED UNDER THE HEAD INCOME FROM THE OTHER SOURCES BY THE A.O. AMOU NTING TO RS. 890500/- 2.2 A.Y. 2009-10 6 I.T.A. NOS. 599 & 600(ASR)/2013 ASSESSMENT YEARS: 2008-09 & 2009-10 THE A.O. HAS ESTIMATED THE AGRICULTURE INCOME OF RS. 406500/- WHICH COMES TO RS. 37000/- PER ACRE FROM 89 KANAL 2 MARLE (ABOUT 11 ACRE 1 KANAL 2 MARLE). NOW SINCE I HAVE COME TO THE CONCLUSION THAT THE APPELLANT WAS CULTIVATING 50 ACRES OF AGRICULTURE LAND THE ESTIMA TED NET AGRICULTURE INCOME COMES TO RS. 1850000/- (37000 X 50 ACRE) AGA INST WHICH THE APPELLANT HAS DECLARED NET INCOME OF RS. 1382000/-. THUS NO ADDITION IS CALLED FOR ON ACCOUNT OF THE FACT THAT THE APPEL LANT HAS DECLARED EXCESS AGRICULTURE INCOME WHICH HAS BEEN ASSESSED U NDER THE HEAD INCOME FROM THE OTHER SOURCES BY THE A.O. AMOUNTING TO RS. 975500/- 3. THE A.O. HAS RAISED FURTHER OBJECTION IN THE A SSESSMENT ORDER THAT THE APPELLANT FAILED TO BRING ON RECORD ANY DOCUMENT THAT THE AGRICULTURE INCOME DECLARED WAS FROM THE AGRICU LTURE ACTIVITIES. THE A.O. HAS ASSESSED THE INCOME ESTIMATED FROM AGR ICULTURE LAND OWNED BY THE APPELLANT AS AGRICULTURE INCOME AND TH E BALANCE INCOME HAS BEEN ASSESSED AS INCOME FROM OTHER SOURCES. 3.1 THE A/R OF THE APPELLANT HAS STATED DURING TH E COURSE OF APPELLATE PROCEEDINGS THAT FATHER OF THE APPELLANT HAS GIVEN A STATEMENT IN THE AFFIDAVIT THAT NO INVESTMENT WAS M ADE BY HIM. THE APPELLANT ALSO PRODUCED COPIES OF HIS BANK STATEMEN TS IN WHICH THERE IS NO SUBSTANTIAL INVESTMENT. THE A.O. HAS NOT GIVE N ANY FINDING THAT THE APPELLANT HAD ANY VESTED INTEREST OR MOTIVE TO DECLARE AGRICULTURE INCOME HIGHER THAN THE ACTUAL AMOUNT BECAUSE NO INV ESTMENT HAS BEEN MADE EITHER BY THE APPELLANT OR ANY OF HIS FAMILY M EMBERS. HE HAS RELIED ON THE JUDGMENT OF HON'BLE PUNJAB AND HARYAN A IN THE CASE OF JARNAIL SINGH HUF (2008) 36 IT REP 391 (P&H). 3.2 I HAVE CAREFULLY PERUSED THE ASSESSMENT ORDE R AND I FIND THAT THE A.O. HAS NOT RECORDED ANY FINDING OR BROUG HT ANY MATERIAL ON RECORD TO PROVE THAT THE APPELLANT OR EITHER OF HIS PARENTS TRIED TO PROVE THE SOURCE OF INVESTMENT IN ANY ASSET FROM THE AGRI CULTURE INCOME. THUS THE ACTION OF THE A.O. OF TREATING THE AGRICUL TURE INCOME AS INCOME FROM OTHER SOURCES IS AGAINST THE LAW LAID DOWN BY THE JURISDICTIONAL HIGH COURT ON IDENTICAL FACTS IN THE CASE OF CIT VS. 7 I.T.A. NOS. 599 & 600(ASR)/2013 ASSESSMENT YEARS: 2008-09 & 2009-10 JARNAIL SINGH HUF (SUPRA) IN WHICH IT HAS BEEN HELD ON PAGE 394 AS UNDER:- MOREOVER, THERE IS NO MATERIAL ON RECORD TO SHOW A NY VESTED INTEREST OR MOTIVE WITH THE ASSESSEE TO DECLARE AGR ICULTURE INCOME HIGHER THAN THE ACTUAL AMOUNT. THIS IS FOR T HE REASONS THAT THE COPIES OF THE BANK ACCOUNT DO NOT SHOW ANY INVESTMENT MADE BY THE ASSESSEE. IN FACT, THE ASSES SEE HAS SUPPORTED HIS PLEA BY FILING AN AFFIDAVIT TO THE EF FECT THAT THE INCOME EARNED DURING ASSESSMENT YEAR UNDER CONSIDER ATION WAS SPENT ON AGRICULTURE INPUTS OR HOUSEHOLD EXPENS ES. THUS, THE ESTIMATE DECLARED BY THE ASSESSEE CAN BE CONSTR UED AS BONA FIDE. THEREFORE, I AM DECLINED TO UPHOLD THE STAND OF THE ASSESSEE. IN VIEW OF THE ABOVE STATED FACTS AND LAW, I DIR ECT THE A.O. TO ASSESS THE AGRICULTURE INCOME OF THE APPELL ANT FOR RATE PURPOSES AT RS. 12,40,500/- AND RS. 13,82,000/- FOR A.Y. 2008-09 AND A.Y. 2009-10 RESPECTIVELY AND DELETE THE INCOME ASS ESSED UNDER THE HEAD INCOME FROM OTHER SOURCES AMOUNTING TO RS. 8,9 0,500/- AND RS. 9,75,500/- IN A.Y. 2008-09 AND A.Y. 2009-10 RESPECT IVELY. THE GROUND OF APPEAL NO. 2 IS TREATED AS ALLOWANCE IN B OTH THE APPEALS. IN THE RESULT, BOTH THE APPEALS ARE TREATED AS ALLO WED. 5. KEEPING IN VIEW THE ISSUE IN DISPUTE AS WELL AS THE ORDER PASSED BY LEARNED FIRST APPELLATE AUTHORITY REPRODUCED ABO VE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS FILED SUFFICIENT EVIDENC E FOR SUBSTANTIATING HIS CLAIM BEFORE THE REVENUE AUTHORITY AND THE LEARNED FIRST APPELLATE AUTHORITY HAS RIGHTLY DELETED THE ADDITION IN DISPU TE AFTER APPRECIATING THE EVIDENCE FILED BY THE ASSESSEE ON THE REMAND REPORT OF THE ASSESSING 8 I.T.A. NOS. 599 & 600(ASR)/2013 ASSESSMENT YEARS: 2008-09 & 2009-10 OFFICER. THEREFORE, NO INTERFERENCE IS REQUIRED IN THE WELL REASONED ORDER PASSED BY LEARNED CIT(A), BATHINDA, DATED 30.07.201 3. ACCORDINGLY, WE UPHOLD THE SAME AND DISMISS BOTH THE PRESENT APPEAL S FILED BY THE REVENUE. 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE REV ENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD JANUARY, 2014 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23 RD JANUARY, 2014 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SH. JUDGEPRIT SINGH S/O- SH. MALKIAT SINGH, VILLAGE SHAHPURA, FAZILKA 2. ITO, WARD- II(4), ABOHAR 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.