Shri Vinodbhai Nanjibhai Kikani, Surat V. The Income tax Officer,Ward-9(4), Surat

ITA 605/AHD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5532 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 23-02-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B D BAROT
• Keywords: Corroborative evidences
• Section: 271(1)(c); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH SMC SMC SMC SMC BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI N NN N. .. .S. SAINI S. SAINI S. SAINI S. SAINI, , , , ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT ITA NO. 605 /AHD/ 2010 ASSESSMENT YEAR :2004-05 SHRI VINODBHAI N.KINANI, D-21 JAY GANGESHWAR SOCIETY,HIRA BAUG, VARACHHA ROAD, SURAT. VS. THE INCOME TAX OFFICER, WARD 9(4), AAYAKAR BHAVAN, MAJURA GATE, SURAT. PAN/GIR NO. : AOWPK 3438 C (A PPELLANT ) .. ( RESPONDENT ) APPELLANT BY : NONE (WRITTEN SUBMISSION) RESPONDENT BY: SHRI B. D. BAROT, D.R. O R D E R O R D E R O R D E R O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-V, SURAT DATED 23-12-2009. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, AS WELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING O FFICER ERRED IN LEVYING PENALTY OF RS.22,150/-. 2. HE OUGHT TO HAVE CONSIDERED OUR REPLY DATED 16- 2- 2009 SUBMITTED ALONG WITH PROOF FAVOURABLY. 3. THE LEARNED C.I.T.(A)-V, SURAT ERRED IN CONFIRM ING THE PENALTY OF RS.22,150/- WITHOUT APPRECIATING THE SOF FILED BEFORE HIM FAVOURABLY. 3. THE BRIEF FACTS OF THE CASE ARE THAT RETURN OF I NCOME SHOWING TOTAL INCOME OF `.49,639/-AND AGRICULTURAL INCOME O F `.1,10,860/-. SINCE THE ASSESSEE COULD NOT SUBMIT THE REQUIRED DE TAILS EXPLAINING THE SOURCE OF AGRICULTURAL INCOME THE ASSESSMENT WA S PASSED UNDER SECTION 144 TREATING AGRICULTURAL INCOME OF ` .1,10,860/- AS ITA NO.605/AHD/2010 SHRI VINODBHAI N. KINANI ASSESSMENT YEAR :2004-05 - 2 - UNEXPLAINED AND ADDED TO THE TOTAL INCOME. ON APPEA L, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) CONFIRM ED THE ADDITION MADE BY LEARNED ASSESSING OFFICER BY OBSER VING THAT MERELY FILING EXTRACTS OF 7/12,8A DOES NOT PROVE T HAT THE LAND WAS ACTUALLY OWNED BY THE ASSESSEE AND THAT THE ASSESSE E HAS DERIVED INCOME OUT OF SUCH LAND. IN THE ABSENCE OF ANY EVID ENCE TO SHOW THAT LANDS WERE ACTUALLY CULTIVATED, THE INCOME COU LD NOT BE TREATED AS AGRICULTURAL INCOME MERELY RELYING ON EN TRIES IN REVENUE RECORD. 4. THE LEARNED ASSESSING OFFICER THEREAFTER, LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON THE ASSESSEE FOR CONCEALMENT OF INCOME OF `.22,150/-. 5. IN APPEAL, THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) CONFIRMED THE PENALTY BY OBSERVING AS UND ER :- I HAVE GONE THROUGH THE VIEWS OF THE LEARNED ASSESSING OFFICER AND THE SUBMISSIONS OF THE APPELL ANT. THE FACT THAT THE AGRICULTURAL INCOME HAS BEEN GENUINEL Y EARNED HAS TO BE PROVED BY THE ASSESSEE. MERE FURNISHING O F ABSTRACT OF 7/12 AND 8A DOES NOT PROVE THAT THE INC OME HAS BEEN GENUINELY EARNED FROM AGRICULTURAL ACTIVITY. T HIS IS A VIEW WHICH HAS BEEN TAKEN BY LEARNED COMMISSIONER O F INCOME TAX (APPEALS) AS WELL AS THE LEARNED ASSESSI NG OFFICER. THE ASSESSEE WAS REQUIRED TO SUBMIT NECESS ARY SUPPORTING EVIDENCE EXPLAINING THE OWNERSHIP OF THE LAND, CARRYING OUT OF AGRICULTURAL OPERATIONS AND SALE OF THE AGRICULTURAL PRODUCTS FROM SUCH ACTIVITIES. THE ASS ESSEE HAS NOT DONE THAT. IN VIEW OF THIS, I DO NOT FIND ANY I NFIRMITY WITH THE ORDER OF THE LEARNED ASSESSING OFFICER IN IMPOS ING THE PENALTY. THE PENALTY, THEREFORE, IS CONFIRMED. HE THEREFORE, DISMISSED THE APPEAL. 6. IN THE INSTANT CASE, AT THE TIME OF HEARING NEIT HER THE ASSESSEE NOR ANY OTHER AUTHORISED PERSON APPEARED B EFORE ME. THE ASSESSEE HAS FILED A WRITTEN SUBMISSION AND PRA YED THAT THE APPEAL BE DISPOSED OF AFTER CONSIDERING THE WRITTEN SUBMISSION FILED. ACCORDINGLY, THE LEARNED DEPARTMENTAL REPRES ENTATIVE WAS HEARD AND THE WRITTEN SUBMISSION OF THE ASSESSEE AS WELL AS MATERIAL AVAILABLE ON RECORDS WERE PERUSED. ITA NO.605/AHD/2010 SHRI VINODBHAI N. KINANI ASSESSMENT YEAR :2004-05 - 3 - 7. IN THE INSTANT CASE THE ASSESSEE DECLARED AGRICU LTURE INCOME OF `. 1,10,860/- FOR THE YEAR UNDER CONSIDERATION. DURING THE COURSE OF THE ASSESSMENT THE LEARNED ASSESSING OFFICER OBS ERVED THAT NO EVIDENCE OF OWNING OF AGRICULTURE LAND BY THE ASSES SEE COULD BE PRODUCED AND THEREFORE, HE DID NOT ACCEPT THE AGRIC ULTURE INCOME AND TREATED `. 1,10,860/- AS UNDISCLOSED INCOME OF THE ASSESSEE. THE LEARNED ASSESSING OFFICER ACCORDINGLY LEVIED PE NALTY UNDER SECTION 271(1)(C) OF `.22,150/-. ON APPEAL, LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ABOVE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 8. BEFORE US ALONG WITH THE WRITTEN SUBMISSION THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE FILED COP Y OF 7/12 AND 8A FORM AND COPY OF SALE BILLS AND IT IS STATED THA T THESE EVIDENCES OF AGRICULTURAL INCOME WERE DULY FILED BEFORE THE L OWER AUTHORITIES AND THE LOWER AUTHORITIES WERE NOT JUSTIFIED IN CON FIRMING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. HE P LACED RELIANCE ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE O F C.I.T. VS. RELIANCE PETROPRODUCTS PVT. LTD., (2010) 322 ITR 1 58(SC) FOR CONTENDING THAT THE LEVY OF PENALTY IN THE INSTANT CASE WAS NOT JUSTIFIED. 9. ON THE OTHER HAND, LEARNED DEPARTMENTAL REPRESEN TATIVE SUBMITTED THAT THE ASSESSEE COULD NOT FILE ANY EVID ENCE TO SHOW THAT HE OWNED ANY AGRICULTURE LAND FROM WHICH HE CO ULD HAVE DERIVED AGRICULTURAL INCOME. HE ALSO POINTED OUT F ROM 7/12 CERTIFICATE THAT THE CROP MENTIONED THEREIN AS TO H AVE GROWN AS SUGAR CANE WHEREAS THE ASSESSEE HAS NOT SHOWN ANY I NCOME FROM SALE OF SUGAR-CANE AND THE ASSESSEE HAS PRODUCED TH E BILL WHICH RELATES TO SALE OF BANANA AND NO EVIDENCE WAS PRODU CED TO SHOW THAT THE ASSESSEE HAD ACTUALLY GROWN BANANA. THE LE ARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE COULD NOT EXPLAIN THE ABOVE DISCREPANCY POINTED OUT BY THE LEARNED DEPART MENTAL REPRESENTATIVE IN 7/12 CERTIFICATE AND SALE BILLS. IN THE ABOVE ITA NO.605/AHD/2010 SHRI VINODBHAI N. KINANI ASSESSMENT YEAR :2004-05 - 4 - CIRCUMSTANCES, I DO NOT FIND ANY GOOD REASON TO INT ERFERE WITH THE ORDERS OF THE LOWER AUTHORITIES WHEN THE ASSESSEE C OULD NOT FURNISH ANY MATERIAL TO SHOW THE EXISTENCE OF AGRICULTURE LAND FROM WHICH HE CLAIMED TO HAVE DERIVED AGRICULTURE INCOME OF `. 1,10,860/- BY GROWING BANANA. IN THE CASE OF RELIANCE PETROPRODUC TS PVT. LTD., (SUPRA)HON'BLE SUPREME COURT HAS HELD THAT WHERE TH ERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE THERE I S NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C). A MER E MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDING THE INC OME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AM OUNT TO FURNISHING INACCURATE PARTICULARS. IN THE INSTANT CASE THE ASSESSEE HAS PRODUCED SALE BILLS FOR SALE OF AGRICULTURE PRO DUCE I.E. BANANA WHEREAS FORM NO.7/12 FILED SHOWS THAT THE AGRICULTU RE LAND WAS USED BY THE ASSESSEE FOR PRODUCING SUGAR-CANE. THUS , THE ASSESSEE COULD NOT BRING ANY EVIDENCE ABOUT THE OWNING OF AG RICULTURAL LAND ON WHICH BANANA WAS PRODUCED BY IT BY SELLING WHICH HE EARNED AGRICULTURAL INCOME. THUS, THE CLAIM OF THE ASSESSE E ABOUT EARNING OF AGRICULTURAL INCOME WAS INCORRECT ERRONEOUS AND FALSE. THEREFORE, THE DECISION OF THE HON'BLE SUPREME COUR T IN RELIANCE PETROPRODUCTS PVT. LTD., IS NOT APPLICABLE TO THIS CASE. THUS, THIS GROUND OF APPEAL IS DISMISSED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 30TH JULY, 2010. SD/- ( N.S. SAINI ) ACCOUNTANT MEMBER AHMEDABAD; ON THIS 30TH DAY OF JULY, 2010 PATKI ITA NO.605/AHD/2010 SHRI VINODBHAI N. KINANI ASSESSMENT YEAR :2004-05 - 5 - COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)- 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 20-7-10 --------------- ---- 2. DRAFT PLACED BEFORE AUTHORITY 20-7-10 ----- -------------- 3. DRAFT PROPOSED & PLACED 22-7-10 ------------ ------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 22-7-10 ------------------- JM 5. APPROVED DRAFT COMES TO P.S ---------------- -- ------------------ 6. KEPT FOR PRONOUNCEMENT ON ---------------- --- ----------------- 7. FILE SENT TO THE BENCH CLERK ---------------- -------------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------