Bhanwersingh Rajpurohit, PALI V. ITO, JODHPUR

ITA 625/JODH/2007

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54331 (ITAT-JODHPUR)
• Duration Of Justice: 4 year(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-07-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 30-07-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Keywords: Difference of opinion
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER I.T.A. NO. 625/JU/2007 A.Y. : 2001-02 BHANWER SINGH RAJPUROHIT, C/O M.L. KOKA, ADVOCATE, C/O MANOJ MOTORS, 108, MAHAVEER MARG, PALI (RAJASTHAN) (PAN NO. AKHPR 2107 H) VS. INCOME TAX OFFICER, WARD-1(1), JODHPUR ASSESSEE BY: NONE DEPARTMENT BY : SH. G.R. KOKANI, (D.R.) ORDER ORDER ORDER ORDER PER RAJPAL YADAV, JM PER RAJPAL YADAV, JM PER RAJPAL YADAV, JM PER RAJPAL YADAV, JM THE ASSESSEE IS IN APPEAL BEFORE US AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 16.3.2007 PASSED FOR ASSESSMENT YEAR 2001-02. 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT L D. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE P ENALTY AMOUNTING TO ` 1,16,129/- IMPOSED U/S 271(1)(C) OF THE IT ACT . 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSES SEE HAS FILED HIS RETURN OF INCOME IN WHICH HE DECLARED A SUM OF ` 3, 39,700/- AS AGRICULTURE INCOME. AN ASSESSMENT ORDER WAS PASSED U/S 143(3) ON 31.3.2004 WHEREBY THE ASSESSING OFFICER HAS DETERMI NED THE TOTAL INCOME AT ` 4,84,659/-. THE ASSESSING OFFICER HAS ASSESSED THE AGRICULTURE INCOME, AS INCOME FROM OTHER SOURCES. HE INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C) ON THE GROUND THA T ASSESSEE HAS 2 FURNISHED INACCURATE PARTICULARS OF HIS INCOME. A S HOW CAUSE U/S. 274 READ WITH SECTION 271(1)(C) WAS ISSUED TO THE ASSE SSEE. AFTER PROVIDING AN OPPORTUNITY OF HEARING, THE ASSESSING OFFICER HAS PASSED THE PENALTY ORDER ON 24.3.2006 WHEREBY HE IMPOSED A PENALTY OF ` 1,16,129/-. 4. APPEAL TO THE LD. COMMISSIONER OF INCOME TAX (AP PEALS) DID NOT BRING ANY RELIEF TO THE ASSESSEE. 5. IN RESPONSE TO THE NOTICE OF HEARING, NO ONE HAS APPEARED ON BEHALF OF THE ASSESSEE BEFORE US AND THEREFORE, WIT H THE ASSISTANCE OF LD. DEPARTMENTAL REPRESENTATIVE, WE HAVE GONE THROU GH THE RECORDS CAREFULLY AND PROCEEDED TO DECIDE THE APPEAL EX-PA RTE QUA THE ASSESSEE. 5.1 ON DUE CONSIDERATION OF THE RECORDS, IT REVEAL ED THAT ASSESSEE OWNS 20 BIGHA OF AGRICULTURAL LAND. HE HAS SUBMITT ED THE TITLE DEED, COPY OF JAMABANDI, GIRDAWARI AND COPY OF VALUATION R EPORT BY AN ADVOCATE WHO IS ON THE PANEL OF BANKS. WITH THE H ELP OF THESE DOCUMENTS, IT WAS CONTENDED BY THE ASSESSEE THAT HE HAS 20 BIGHA OF FERTILE LAND WHICH IS SITUATED ADJOINING TO GANGA S AGAR POND FROM WHICH HE IS IRRIGATING THE LAND. THE ASSESSING OF FICER HAS DISBELIEVED THE CLAIM OF THE ASSESSEE MAINLY FOR TWO REASONS. FIR STLY, ASSESSEE FAILED TO FURNISH THE DETAILS OF EXPENDITURE INCUR RED ON AGRICULTURAL OPERATION AND SECONDLY, IT WAS PRACTICALLY NOT POSS IBLE FOR THE ASSESSEE TO CARRY OUT THE AGRICULTURAL OPERATION AT KISANGAR H, BECAUSE HE IS 3 TRADING MARBLE STONE AT ABU ROAD, THE DISTANCE BETWE EN THESE TWO PLACES IS SUBSTANTIAL AND IT WAS NOT ECONOMICAL FOR THE ASSESSEE TO CARRY OUT THE AGRICULTURAL OPERATION. THE ASSESSI NG OFFICER FURTHER OBSERVED THAT GANGA SAGAR POND REMAINED EMPTY FROM T HE LAST SO MANY YEARS AND THEREFORE, NO IRRIGATION COULD BE CAR RIED OUT FROM THIS POND BY THE ASSESSEE. ON DUE CONSIDERATION OF THES E FACTS, WE ARE OF THE VIEW THAT IT IS DIFFERENCE OF OPINION BETWEEN T HE ASSESSEE AND THE ASSESSING OFFICER ABOUT THE QUANTIFICATION OF AGRI CULTURE INCOME. THE ASSESSING OFFICER CANNOT SAY THAT ASSESSEE FAILED TO GIVE ANY EXPLANATION IN SUPPORT OF HIS CLAIM AND THAT EXPLAN ATION WAS FOUND TO BE FALSE. THE POSSIBILITY OF EARNING INCOME FROM 2 0 BIGHA OF LAND WHICH IS ROUGHLY 60000 SQMTRS. CANNOT BE RULED OUT. THE ASSESSING OFFICER IN OUR OPINION, RATHER ADOPTED TOO HARSH A PPROACH TOWARDS THE ASSESSEE WHEREBY HE EXPECTED THE MAINTENANCE OF EX ACT DETAILS IN CONNECTION WITH AGRICULTURAL OPERATION. TO OUR MI ND, IT IS HIGHLY IMPROBABLE TO EXPECT MAINTENANCE OF RECORD FOR SUCH EXPENSES FROM ANY AGRICULTURIST. THIS SECTION DOES NOT BELONG TO ORGANIZED SECTOR WHICH USED TO MAKE PAYMENT THROUGH ACCOUNT PAYEE CH EQUE OR MAINTAIN THE BOOKS OF ACCOUNTS. IN THE PRESENT CASE , THOUGH THE ASSESSEE IS IN THE BUSINESS ALSO AND HE COULD MAINTA IN THE ACCOUNTS, BUT OTHERWISE MOST OF THE FARMERS ARE ILLITERATE. THE ASSESSING OFFICER 4 OUGHT TO HAVE CONSIDERED THE VOLUME OF LAND HOLDING POSSESSED BY THE ASSESSEE BEFORE VISITING HIM WITH THE PENALTY, WHETH ER 20 BIGHA OF LAND COULD GENERATE AN INCOME OF ` 3,39,000/- OR NOT? IT IS NOT SUCH A CLAIM WHICH SUGGESTS THAT ASSESSEE HAS MADE A DELIBERATE ATTEMPT OF UDISCLOSED INCOME IN THE GARB OF AGRICULTURE INCOME. THE ASSESSEE HAS SUBMITTED THE DETAILS OF THE AGRICULTURE AND TRI ED TO EXPLAIN HIS CASE. IN OUR OPINION, HE DOES NOT DESERVE TO BE V ISITED WITH THE PENALTY, HENCE, WE ALLOW THE APPEAL OF THE ASSESSEE AND DELETE THE PENALTY. 6. IN THE RESULT, THIS APPEAL BY THE ASSESSEE IS ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 29/8/2011. SD/- SD/- [K.D. RANJAN] [K.D. RANJAN] [K.D. RANJAN] [K.D. RANJAN] [RAJPAL YADAV] [RAJPAL YADAV] [RAJPAL YADAV] [RAJPAL YADAV] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATE 29/8/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, JODHPUR