SMT. NEHA JOSHI, Indore V. The ITO 2(2), Indore

ITA 682/IND/2014

• Counselvise Citation: 68222714 RSA 2014
• Duration Of Justice: 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 14-10-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 05-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: C P RAWKA
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NOS.406/IND/2013 & 684/IND/2014 A.YS. : 2004-05 & 2005-06 SHRI VISHAL JOSHI, ITO,2(2), INDORE VS. INDORE APPELLANT RESPONDENT PAN NO : AFFPJ8888K I.T.A.NOS.407/IND/2013 A.Y. : 2004-05 SMT.SHOBHA JOSHI, ITO,2(2), INDORE VS. INDORE APPELLANT RESPONDENT PAN NO. AFFPJ8886H I.T.A.NOS.427/IND/2013 & 682/IND/2014 A.YS. : 2004-05 & 2005-06 SMT.NEHA JOSHI, ITO,2(2), INDORE VS. INDORE APPELLANT RESPONDENT SHRI VISHAL JOSHI, SMT. SHOBHA JOSHI, SMT. NEHA JOS HI AND SHRI VIJAY JOSHI, INDORE VS. ITO,2(2), INDOR E I.T.A.NOS. 406/IND/2013 ETC.A.YS. 2004-05 & 2005-06 2 2 PAN NO. AFFPJ8888K I.T.A.NOS.428/IND/2013 & 683/IND/2014 A.YS. : 2004-05 & 2005-06 SHRI VIJAY JOSHI, ITO,2(2), INDORE VS. INDORE APPELLANT RESPONDENT PAN NO. AFFPJ8887G A PPELLANT S BY : SHRI C.P.RAWKA, CA RESPONDENT BY : SHRI R. A. VERMA, DR O R D E R ALL THESE APPEALS RELATE TO ASSESSEES SHRI VISHAL J OSHI, SMT. SHOBHA JOSHI, SMT. NEHA JOSHI AND SHRI VIJAY J OSHI. 2. IN ALL THESE APPEALS, SHORT FACTS OF THE CASE ARE A S UNDER. DATE OF HEARING : 14 . 10 .2015 . DATE OF PRONOUNCEMENT : 03 . 1 1 .2015 SHRI VISHAL JOSHI, SMT. SHOBHA JOSHI, SMT. NEHA JOS HI AND SHRI VIJAY JOSHI, INDORE VS. ITO,2(2), INDOR E I.T.A.NOS. 406/IND/2013 ETC.A.YS. 2004-05 & 2005-06 3 3 3. IN ASSESSMENT YEAR 2004-05, SHRI VISHAL JOSHI HAD FILED RETURN OF INCOME DECLARING AGRICULTURAL INCOM E OF RS. 9,42,324/- AND INCOME FROM BUSINESS AT RS. 20,724/- . THE ASSESSMENT WAS COMPLETED U/S 143 OF THE ACT DETERMI NING THE TOTAL INCOME OF RS. 9,63,050/-. THE AO HAS TREATED AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES. T HE ASSESSEE HAS STATED IN THE RETURN OF INCOME THAT TH E ASSESSEE HAD SHOWN NET AGRICULTURAL INCOME. THEREFORE, THE A O HAS ASKED TO FURNISH THE DETAILS REGARDING AGRICULTURAL INCOME. IN RESPONSE TO THIS, THE ASSESSEE HAS FILED PHOTOCOPIE S OF BHU ADHIKARI AND RIN PUSTIKA OF SHRI VISHAL KUMAR S/O J AGDISH PRASAD PERTAINING TO VILLAGE MACHAL, BUT NO AGRICUL TURE INCOME HAS BEEN SHOWN FROM THIS AGRICULTURE LAND IN THE RE TURN OF INCOME. THE ASSESSEE HAS FILED A LEASE AGREEMENT ON RS. 4,000/- STAMP PAPERS DATED 1.7.2003 AND AS PER THIS LEASE AGREEMENT FIVE PERSONS OF JOSHI FAMILY HAS TAKEN TH E AGRICULTURE LAND. THE DESCRIPTION OF THE LAND AS PE R THE LEASE AGREEMENT IS REPRODUCED IN THE ASSESSMENT ORDER. BU T AS PER THE AO, NO AGRICULTURE INCOME HAS BEEN SHOWN FROM SHRI VISHAL JOSHI, SMT. SHOBHA JOSHI, SMT. NEHA JOS HI AND SHRI VIJAY JOSHI, INDORE VS. ITO,2(2), INDOR E I.T.A.NOS. 406/IND/2013 ETC.A.YS. 2004-05 & 2005-06 4 4 AGRICULTURE LAND IN THE RETURN OF INCOME. THE ASSES SEE HAS ALSO FILED A LEASE AGREEMENT ON A STAMP PAPER OF RS. 150 0/-. THIS LEASE DEED IS DATED 27.06.2003 AND IT HAS BEEN NOTA RIZED BY MOHAN PAL, NOTARY. THIS AGREEMENT HAS BEEN EXECUTED BETWEEN SHRI LAKHAN PATIDAR S/O SHRI ASHOK PATIDAR R/O GRAM KODRIYA TEHSIL MHOW, DIST. M.P. AND FOLLOWING PERSONS WERE SHOWN AS LEASE HOLDERS OF THE LAND :- SHRI VISHAL JOSHI S/O SHRI JAGDISH JOSHI SHRI VIJAY JOSHI S/O SHRI JAGDISH JOSHI SHRI JAGDISH JOSHI S/O SHRI MADANLAL JOSHI SMT. SHOBHA JOSHI W/O SHRI JAGDISH JOSHI SMT.NEHA JOSHI W/O SHRI VISHAL JOSHI ALL RESIDENT OF 32, BADA SARAFA, INDORE TEHSIL & DI STT. INDORE. THE DESCRIPTION OF THE LAND TAKEN ON LEASE IN THE L EASE AGREEMENT IS AS REPRODUCED IN THE ASSESSMENT ORDER. AGRICULTURE INCOME HAS BEEN SHOWN FROM THIS LAND. T HE AO HAS CARRIED OUT ENQUIRIES AND HELD THAT THERE WAS A CTUALLY NO AGRICULTURAL INCOME DURING THE ASSESSMENT YEAR. ON THE BASIS OF INVESTIGATION, THE INACCURACIES IN THE SUBMISSIO NS, THE AO SHRI VISHAL JOSHI, SMT. SHOBHA JOSHI, SMT. NEHA JOS HI AND SHRI VIJAY JOSHI, INDORE VS. ITO,2(2), INDOR E I.T.A.NOS. 406/IND/2013 ETC.A.YS. 2004-05 & 2005-06 5 5 HAS COME TO THE CONCLUSION FROM THE STATEMENT RECOR DED OF SHRI VISHAL JOSHI ON 10.07.2006. SHRI VISHAL JOSHI STATED ON OATH THAT HE TOOK THE LAND ON LEASE, HIRED THE TRAC TOR FOR PLOUGHING, PURCHASED GOBAR KHAD, NEEM KHAD AND SEED S AND SOLD THE FINAL PRODUCE TO M/S. GURUKRIPA HERBAL AGE NCY, INDORE, WHOSE PROPRIETOR IS SHRI RAJKUMAR DASHORE. THEREFORE, IN ORDER TO VERIFY THE AGRICULTURE EXPENSES, SHRI V ISHAL JOSHI WAS ASKED TO PRODUCE THE CONCERNED PARTIES FROM WHO M THE SERVICES HAVE BEEN TAKEN FOR AGRICULTURE OPERATION. SHRI VISHAL JOSHI DID NOT PRODUCE A SINGLE PERSON, NEITHER PROD UCED THE LAND OWNER NOR TRACTOR DRIVER, NOR THE PERSON FROM WHOM GOBAR KHAD WERE PURCHASED NOR HE DID PRODUCE GURUKR IPA HERBAL AGENCY FROM WHOM HE HAS CLAIMED TO HAVE PURC HASED MUSLI SEEDS AND CLAIMED TO HAVE MUSLI PRODUCED BY H IM. THE ASSESSEE WAS ASKED TO PRODUCE SHRI LAKHAN PATIDAR F ROM WHOM HE HAD CLAIMED THAT THE LAND HAD BEEN TAKEN FO R THE PURPOSE OF AGRICULTURE OPERATIONS TO GROW THE MUSLI . SUMMONS U/S 131 WAS ISSUED TO SHRI LAKHAN PATIDAR, BUT HE D ID NOT PRODUCE THE PERSON. SHRI RAJKUMAR DASHORE, WHO WAS SHRI VISHAL JOSHI, SMT. SHOBHA JOSHI, SMT. NEHA JOS HI AND SHRI VIJAY JOSHI, INDORE VS. ITO,2(2), INDOR E I.T.A.NOS. 406/IND/2013 ETC.A.YS. 2004-05 & 2005-06 6 6 PROPRIETOR OF M/S. GURUKRIPA HERBAL AGENCY, HIS HOU SE WAS RAISED AND HIS STATEMENT WAS RECORDED AND WHICH IS REPRODUCED IN THE CIT(A)S ORDER FROM PAGE 5 TO, 13 . FROM THE STATEMENT, IT WAS REVEALED THAT (I) NO BUSINESS WAS DONE IN THE NAME OF M/S. GURUKRIPA HERBAL AGENCY; (2) NO BILLS WERE GOT PRINTED, (3) NO, BOOKS OF ACCOUNT WERE MAINTAINED, (4) PAN NUMBER WAS TAKEN BY SHRI VISHAL JOSHI IN HIS NAME, (5) NO RETURN FILED, (6) NO BILLS WERE PRINTED AND ISSUED TO ANY ONE, (7) GUMASHTA NO. WAS TAKEN BY SHRI VISHAL JOSHI (8) BANK ACCOUNT WAS OPENED BY SHRI VISHAL JOSHI. 4. AFTER THIS, SHRI RAJKUMAR HAS ACCEPTED THAT HE HAS NOT CARRIED OUT ANY ACTIVITY ON 04.12.2006. RAJKUMAR DA SHORE SUBMITTED A LETTER TO CHIEF COMMISSIONER TO RECORD HIS STATEMENT ONCE AGAIN AND HE HAS SUBMITTED THE CIRCU MSTANTIAL EVIDENCE AND FROM WHICH IT CAN BE GATHERED THAT HE HAS GIVEN SHRI VISHAL JOSHI, SMT. SHOBHA JOSHI, SMT. NEHA JOS HI AND SHRI VIJAY JOSHI, INDORE VS. ITO,2(2), INDOR E I.T.A.NOS. 406/IND/2013 ETC.A.YS. 2004-05 & 2005-06 7 7 HIS STATEMENT IN THE PRESENCE OF INCOME-TAX OFFICER AND NOW HE WANTED TO GIVE A FRESH STATEMENT. THE AO DID NOT ACCEPT HIS REQUEST AND THE ASSESSEE WAS DENIED THIS OPPORTUNIT Y. 5. THE AO DID NOT GIVE OPPORTUNITY AND MADE THE ASSESSMENT TREATING THE AGRICULTURE INCOME AS INCOM E FROM OTHER SOURCES IN ASSESSMENT YEARS 2004-05 & 2005-06 IN THE CASE OF SHRI VISHAL JOSHI AND IN THE CASE OF SMT. S HOBHA JOSHI FOR ASSESSMENT YEAR 2004-05, IN THE CASE OF SMT. NE HA JOSHI FOR ASSESSMENT YEARS 2004-05 & 2005-06 AND IN THE C ASE OF SHRI VIJAY JOSHI FOR ASSESSMENT YEARS 2004-05 & 200 5-06. 6. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE ALONGWITH HIS SONS AND DAUGHTER-IN-LAW ENTERED INTO AGREEMENT WITH AGRICULTURAL OWNER FOR CARRYING OUT THE AGRICULTURE OPERATION, CASH CROP OF MUSLI WAS PRODU CED BY EXPLOITING LEASE HOLD LAND OF SHRI LAKHAN PATIDAR. THE ASSESSEE ALSO TRIED TO PRODUCE SHRI LAKHAN PATIDAR, BUT HE DID NOT APPEAR BEFORE THE ITO. SECONDLY, THE STATEMENT OF SHRI RAJKUMAR DASHORE, PROPRIETOR OF M/S. GURUKRIPA HERB AL AGENCY, WAS RECORDED IN CONTRAVENTION OF FIRST STAT EMENT. SHRI VISHAL JOSHI, SMT. SHOBHA JOSHI, SMT. NEHA JOS HI AND SHRI VIJAY JOSHI, INDORE VS. ITO,2(2), INDOR E I.T.A.NOS. 406/IND/2013 ETC.A.YS. 2004-05 & 2005-06 8 8 THEREAFTER, SHRI DASHORE APPROACHED TO CCIT, INDORE , AND FILED THE AFFIDAVIT THAT SHRI DASHORE MUST BE GIVEN RE-EX AMINATION BY THE ASSESSING OFFICER. THE AO HAS ALSO ASKED TO PRODUCE THE TRACTOR DRIVER AND THE ASSESSEE WAS ALSO ASKED TO PRODUCE THE PERSON TO WHOM THE MUSLI SOLD. THEREFORE, THE M ATTER MAY BE RESTORED AND THE ASSESSEE MUST BE GIVEN FULL OPP ORTUNITY OF HEARING. 7. THE LD. DR VEHEMENTLY OBJECTED ON THE GROUND THAT THE STATEMENT OF SHRI VISHAL JOSHI WAS RECORDED AND SHRI VISHAL JOSHI WAS NOT ABLE TO PRODUCE SHRI RAJKUMAR DASHORE TO WHOM THE FINAL SEEDS WERE SOLD. M/S. GURUKRIPA H ERBAL AGENCY, INDORE, FROM WHOM THE ASSESSEE HAS PURCHASE D THE SEEDS AND FINAL PRODUCE WAS ALSO SOLD TO M/S. GURUK RIPA AGENCY. NOW THE STATEMENT OF SHRI RAJKUMAR DASHORE WAS RECORDED WHEREIN HE HAS SPECIFICALLY DENIED TO, HAV E PURCHASED AND SOLD ANY PRODUCE FROM THE ASSESSEE. T HEREFORE, AGAIN NOW THE ASSESSEE WANTED TO RE-EXAMINE THE SAI D DASHORE AGAIN, WHICH IS NOT FAIR. THE ASSESSEE SHOU LD NOT BE GIVEN SO MUCH OPPORTUNITY. HE RELIED UPON THE DECIS ION OF SHRI VISHAL JOSHI, SMT. SHOBHA JOSHI, SMT. NEHA JOS HI AND SHRI VIJAY JOSHI, INDORE VS. ITO,2(2), INDOR E I.T.A.NOS. 406/IND/2013 ETC.A.YS. 2004-05 & 2005-06 9 9 HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF DR. S. C. GUPTA VS. CIT, (2001) 248 ITR 0782. SIMILARLY, HE RELIED UPON THE DECISION OF MUMBAI BENCH IN THE CASE OF PRANAV CONS TRUCTION CO. VS. ACIT, (1998) 61 TTJ 0145. 8. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PART IES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, I FIND THAT IN THIS CASE THE ASSESSEE HAS CLAIMED THAT HE HAS C ARRIED OUT AGRICULTURAL ACTIVITIES OF MULSI ON THE LAND OF ONE SHRI LAKHAN PATIDAR. THE ASSESSEE HAS EXECUTED AGREEMENT BETWEE N SHRI LAKHAN PATIDAR AND ALL ASSESSEES IN THIS CASE. AFTE R TAKING THE LAND ON LEASE, THE ASSESSEE CLAIMS THAT HE HAS PURC HASED THE SEEDS FROM ONE M/S. GURUKRIPA HERBAL AGENCY, FROM W HOM HE HAS PURCHASED THE MUSLI SEEDS AND SOLD THIS MUSLI P RODUCED TO IT. IN ORDER TO VERIFY THE CLAIM OF THE ASSESSEE , THE AO HAS ASKED TO PRODUCE THE EVIDENCE TO SHOW THAT HE HAS C ARRIED OUT BUSINESS WITH GURUKRIPA HERBAL AGENCY, TO PRODUCE T HE BILLS, TO PRODUCE THE BOOKS OF ACCOUNT, IF THE RETURN IS F ILED, GUMASHTA NUMBER WAS TAKEN BY SHRI VISHAL JOSHI OR N OT. HERE, IN THE INSTANT CASE, THE STATEMENT OF SHRI VI JAYKUMAR SHRI VISHAL JOSHI, SMT. SHOBHA JOSHI, SMT. NEHA JOS HI AND SHRI VIJAY JOSHI, INDORE VS. ITO,2(2), INDOR E I.T.A.NOS. 406/IND/2013 ETC.A.YS. 2004-05 & 2005-06 10 10 DASHORE WAS RECORDED BY THE INCOME TAX AUTHORITIES AND WHILE RECORDING STATEMENT, HE HAS DENIED TO HAVE CA RRIED OUT ANY BUSINESS WITH THE ASSESSEE. THEREAFTER, THE ASS ESSEE HAS FILED AN AFFIDAVIT BEFORE CIT(A) AND HE WANTED TO G IVE ANOTHER STATEMENT, BUT THE AO AND CIT(A) DID NOT ALLOW. IN OUR OPINION, THE LD. CIT(A) AND THE AO ARE JUSTIFIED IN THEIR ACTION BY NOT ALLOWING THE RE-STATEMENT OF SHRI RAJKUMAR D ASHORE, BUT AT THE SAME TIME IT IS THE CLAIM OF THE ASSESSE E THAT HE MAY BE ALLOWED TO CROSS-EXAMINE, BUT THAT WAS ALSO NOT ALLOWED. I, THEREFORE, CONSIDER THAT THE PRIMARY ON US TO PROVE THE FACT IS ON THE ASSESSEE, WHO CLAIMS THAT HE HAS CARRIED OUT AGRICULTURE ACTIVITIES. FROM THE FACTS OF THE RECOR D, IT REVEALS THAT THERE IS NO DISPUTE THAT A LEASE AGREEMENT ON STAMP PAPER WAS FILED BEFORE THE REVENUE AUTHORITIES. I F IND THAT EXCEPT FILING THIS AGREEMENT, THE ASSESSEE DID NOT FILE A SINGLE EVIDENCE. THE LD. AUTHORIZED REPRESENTATIVE SUBMITT ED THAT IN THE INTEREST OF JUSTICE AND FAIR PLAY, ONE MORE OPP ORTUNITY MUST BE GIVEN, BUT I AM INCLINED TO GIVE THE OPPORT UNITY, BUT IN THE INTEREST OF JUSTICE AND FAIR PLAY, I RESTORE THIS MATTER SHRI VISHAL JOSHI, SMT. SHOBHA JOSHI, SMT. NEHA JOS HI AND SHRI VIJAY JOSHI, INDORE VS. ITO,2(2), INDOR E I.T.A.NOS. 406/IND/2013 ETC.A.YS. 2004-05 & 2005-06 11 11 BACK TO THE FILE OF AO TO GIVE RE-EXAMINATION OF SH RI RAJKUMAR DASHORE. THE ASSESSEE IS DIRECTED TO PRODUCE SHRI R AJKUMAR DASHORE, PROPRIETOR OF M/S. GURUKRIPA HERBAL AGENCY . THE ASSESSEE IS ALSO DIRECTED TO PRODUCE THE LAND OWNER BEFORE THE AO. THE ASSESSEE IS DIRECTED TO PRODUCE THE TRACTOR DRIVER, IF HE IS AVAILABLE AND THE EVIDENCE WHICH SHOWS THAT T HE ASSESSEE HAS PURCHASED AND SOLD MUSLI TO M/S. GURUKRIPA HERB AL AGENCY. IF THE ASSESSEE FAILS TO PRODUCE WITHIN TWO MONTHS FROM THE DATE OF THIS ORDER, THEN THE AO IS AT LIBE RTY TO REPEAT THE ADDITION BY SPEAKING ORDER. 9. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE . THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 3 RD NOVEMBER, 2015. SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 3 RD NOVEMBER, 2015. CPU* SHRI VISHAL JOSHI, SMT. SHOBHA JOSHI, SMT. NEHA JOS HI AND SHRI VIJAY JOSHI, INDORE VS. ITO,2(2), INDOR E I.T.A.NOS. 406/IND/2013 ETC.A.YS. 2004-05 & 2005-06 12 12 1419