Bhoomica Agro Industries Ltd., Uttar Pradesh V. ITO, New Delhi

ITA 6008/DEL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6970 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 11-05-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 04-11-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 143(3); 68; 10; 2

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C : NEW DELHI BEFORE SHRI I.C.SUDHIR , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI , ACCOUNTANT MEMBER I TA NO . 6008/DEL/2015 (ASSESSMENT YEAR: 2005 - 06 ) BHOOMICA AGRO INDUSTRIES LTD., 4/66, SECTOR - 2, RAJENDER NAGAR, SAHIBABAD, UTTAR PRADESH PAN:AAACB0240J VS. ITO, WARD - 2(4), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. J. B. SHARMA, FCA REVENUE BY: SH. SUNIL SHARMA, CIT DR DATE OF HEARING 12/05/ 2016 DATE OF PRONOUNCEMENT 08 / 07 /2016 O R D E R PER PRASHANT MAHARISHI , A . M . 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - 2, NEW DELHI DATED 24.07.2015 FOR THE ASSESSMENT YEAR 2005 - 06. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THE ORDER OF THE LD. A.O WARD 2(4), NEW DELHI, IN THE ASSESSEE'S CASE, IS BAD IN LAW AS WELL AS FACTS OF THE CASE, SINCE LD. A.O. HAS TREATED RS. 6,45,168 / - ON ACCOUNT OF AGRICULTURE INCOME AS UNDISCLOSED INCOME OF THE ASSESSEE AND RAISED DEMAND OF TAX FOR A SUM OF RS. 3,39,830/ - DESPITE THAT THE ASSESSEE HAS PROVIDED' FULL PROOF OF HIS SUBSTANTIAL LAND HOLDINGS AND INCOME THEREFROM THROUGH VARIOUS SUBMISSIONS MADE FROM TIME TO TIME AT THE TIME OF ASSESSMENT PROCEEDINGS . 2. KEEPING IN VIEW OF JUSTICE ASS ESSEE HAD FILED AN APPEAL BEFORE HON'BLE CIT (APPELS - 2) AND INSTEAD OF EXPECTATION, THE ORDER OF THE HON'BLE CIT (APPEALS - 2), DELHI IS SURPRISING AND EMBARRASSING FOR ASSESSEE , SINCE INSTEAD OF PROVIDING ANY RELIEF, INCOME HAD BEEN FURTHER ENHANCED BY RS.22,16,012.00 WHICH WAS ALLOWED BY LD. A.O. 3. IT APPEARS THAT HON'BLE CIT (APPEALS - 2) HAS NOT CONSIDERED THE DOCUMENTS PRODUCED BEFORE LD. A.O. AS CONFIRMED BY LD. A.O. IN ASSESSMENT ORDER. 4. HON'BLE CIT (APPEALS - 2) HAS PASSED ORDER SIMPLY STATING THAT IN PAGE 12 THAT NOTICE SENT AT THE ADDRESS M ENTIONED IN FORM NO.35 OR AT THE ADDRESS MENTIONED IN THE ASSESSMENT ORDER BUT IT APPEARS THAT ASSESSEE IS NOT INTERESTED IN PROSECUTING THE APPEALS. 5. HON'BLE CIT (APPEALS - 2) HAS ENHANCED INCOME MERELY PN THE BASIS OF NON APPEARANCE AND UNSERVED NOTI CE WHICH IS HIGHLY UNJUSTIFIED , ARBITRARY AND LOOKS TO BE VINDICTIVE IN APPROACH WHICH CAN'T BE EXPECTED FROM THE APPELLATE. 6. HON'BLE CIT (APPEALS - 2) AND LD. A.O. HAS NOT CONSIDERED THE FACTS THAT THE COMPANY IS CONTINUOUSLY AND REGULARLY ASSESSED AS AGRICULTURAL UNIT UNDER SECTION 2 AND SECTION 10 OF THE INCOME TAX ACT,1961 AND NO TAX HAD BEEN PAGE 2 OF 3 LEVIED ON THE AGRICULTURAL INCOME DURING THE PREVIOUS YEAR THOUGH ASSESSEE HAD FACED ASSESSMENT IN ASSESSMENT YEAR 1995 - 96,1996 - 97 AND 2001 - 02 . 7. IT IS HIGHLY SURPRISING THAT LD.A.O AND HON'BLE CIT (APPEALS - 2) HAS NOT GIVEN ANY WEIGHTAGE TO THE ASSESSEE'S FILLING , IN WHICH ALL INCOME HAS BEEN EXEMPTED U/S 10(1) OF I.T.ACT,1961.SINCE, ASSESSEE HAS AGRICULTURE AS ONLY SOURCE OF INCOME THEREFORE LD.A.O.'S DEMAND AND ENHANCED BY HON'BLE CIT (APPEALS - 2) - IS TOTALLY UNJUSTIFIED AND ARBITRARY. 8. THE LD AO HAS MADE ADDITION OF RS. 50,000/ - AND HONBLE CIT(APPEALS - 2) HAD CONFIRMED THE SAME ON ACCOUNT OF SHARE APPLICATION MONEY IGNORING THE VARIOUS DETAILS PRODUC ED FOR VERIFICATION TO THEM. 3. THE BRIEF FACTS ARE THAT ASSESSEE IS A COMPANY ENGAGED IN AGRO ACTIVITIES. IT FILED ITS RETURN OF INCOME OF RS. 12468/ - ON 31.10.2005. THE INCOME WAS ASSESSED U/S 143(3) WHEREIN RS. 645168/ - IS TREATED AS UNEXPLAINED OF THE A SSESSEE U/S 68 OF THE INCOME TAX ACT HOLDING THAT 1 BIGHA OF LAND CAN FETCH ONLY RS. 10000/ - ANNUALLY AND THEREFORE THE BALANCE INCOME WAS HELD TO BE INCOME FROM NON - AGRICULTURE. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A) , WHO IN TURN ENHANCE THE ADDITION TO THE INCOME FROM RS. 645168/ - TO RS. 2861180/ - . THE LD CIT(A) ENHANCED THIS INCOME AS THE ASSESSEE HAS NOT BEEN ABLE TO FURNISH THE EVIDENCE THAT THE SAID INCOME ACTUALLY EMANATED FROM AGRICULTURAL ACTIVITIES. THE LD CIT(A) FURTHER HELD THAT IN THE SIMILAR CIRCUMSTANCES IN ASSESSEES OWN CASE THE ENTIRE AGRICULTURAL INCOME OF THE APPELLANT IS TREATED AS UNDISCLOSED INCOME. THEREFORE THE ASSESSEE IS IN APPEAL BEFORE US. 4. BEFORE US THE LD AR FURNISHED A WRITTEN S UBMISSION HAS SUBMITTED THAT DESPITE OF DETAILS OF OWNERSHIP OF THE LAND AS WELL AS THE LEASE DEED ALONG WITH THE KHASRA NOS PRODUCED BEFORE THE LD CIT(A) IT WAS HELD AGAINST THE ASSESSEE. HE FURTHER SUBMITTED THAT THE ENTIRE ADDITION WAS MADE WRONGLY AND NON APPRECIATION OF THE FACTS. 5. THE LD DR RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. THE MAIN ARGUMENT OF THE ASSESSEE IS THAT THE ORDER OF THE LD CIT(A) IS IN CONTRADICTION IN CALCULATION OF LAND AR EA WHEREIN EXTRA LAND OF AROUND 115 BIGHAS FOR TEMPORARY USE WAS CONSIDERED BECAUSE OF NON PRODUCTION OF EVIDENCE OF 115 BIGHAS AND FURTHER THE CALCULATION OF LAND WAS ALSO ARBITRARY. FURTHER, THE FATE OF THE ORDER OF THE LD CIT(A) FOR AY 2007 - 08 AS STATED IN PARA NO. 3.9.1 OF THE ORDER OF THE LD CIT(A) IS NOT KNOWN. THEREFORE IN THE INTEREST OF JUSTICE WE SET ASIDE THE WHOLE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE AFRESH ABOUT THE PAGE 3 OF 3 VERACITY OF AGRICULTURAL INCOME OF THE ASSESSEE COMPANY WI TH RESPECT TO LAND CULTIVATED AND ALSO THE AGRICULTURAL ACTIVITIES. NEEDLESS TO SAY THAT REASONABLE OPPORTUNITY OF HEARING AND ADDUCING THE EVIDENCE BE GRANTED TO THE ASSESSEE BEFORE DECIDING THE ISSUE. IN THE RESULT GROUND NO. 1 TO 7 OF THE APPEAL IS SET ASIDE BACK TO THE FILE OF ASSESSING OFFICER WITH THE ABOVE DIRECTION. 7. THE GROUND NO. 8 WAS AGAINST THE CONFIRMATION OF THE ADDITION OF RS. 50000/ - ON ACCOUNT OF SHARE APPLICATION MONEY. 8. THE APPELLANT HAS NOT BEEN ABLE TO CONTROVERT THE FINDING OF THE LD A SSESSING OFFICER THAT THE SHARE HOLDER HAS FILED A LETTER DATED 21.02.2007 THAT HE HAS NOT INVESTED ANY SUM IN THE COMPANY. FURTHERMORE, THE SAME FACTS REMAINED BEFORE THE LD CIT(A). EVEN ON APPEAL BEFORE US NO SPECIFIC ARGUMENT WERE ADVANCED BY THE APPELL ANT. IN VIEW OF THIS WE DISMISS GROUND NO. 8 OF THE APPEAL. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 0 8 / 07 /2016 . - S D / - - S D / - ( I.C.SUDHIR ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 8 / 07 / 2016 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI