MARIA HELENA DE SOUZA, GOA V. ITO 19(3)-3, MUMBAI

ITA 703/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88044 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 27-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 02-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA YADAV
• Keywords: Capital asset
• Section: 2(14)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, M UMBAI BEFORE S/SHRI D. KARUNAKAR RAO, (AM) AND AMIT SHUKLA, (JM) . , , ./I.T.A. NO.2649/MUM/2010 AND ITA NO.703/MUM/2012 ( ! / ASSESSMENT YEARS :2006-07 AND 2007-08) MS.MARIA HELENA DE SOUZA, HOUSE NO.120, VELSAO, PO CANCAULIM, GOA-403712 / VS. INCOME TAX OFFICER-19(3)(3), MUMBAI. ( '# / APPELLANT) .. ( $%'# / RESPONDENT) ' ./ &' ./PAN/GIR NO. :AAHPD5315Q '# ( / ASSESSEES BY SHRI MEHUL SHAH $%'# ) ( /REVENUE BY SHRI AKHILENDRA YADAV * ) + / DATE OF HEARING : 27.11.2014 ,-! ) + /DATE OF PRONOUNCEMENT : 14 .01.2015 / O R D E R PER AMIT SHUKLA, (JM) THE AFORESAID APPEALS WHICH ARE ARISING OUT OF ORD ERS DATED 14.1.2010 AND 16.12.2011 PASSED BY THE LD. CIT(A)- 30, MUMBAI FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08 RESPECTIVE LY, HAD ALREADY BEEN DECIDED BY THE TRIBUNAL VIDE ORDER DAT ED 12.10.2010. HOWEVER, CERTAIN GROUNDS INADVERTENTLY WERE LEFT TO BE ADJUDICATED BY THE TRIBUNAL, THEREFORE, ON THE APPLICATION FIL ED BY THE ASSESSEE, THE TRIBUNAL RECALLED THE ORDER VIDE ORDER DATED 2 4.5.2013, ONLY FOR THE LIMITED PURPOSES OF ADJUDICATING GROUND NO. 3 F OR THE ASSESSMENT I.T.A. NO.2649/MUM/2010 & 703/M/2012 2 YEAR 2006-07 AND GROUNDS NOS. 3 AND 4 FOR THE ASSES SMENT YEAR 2007-08. 2. SINCE GROUND NO.1 AND 2 FOR THE ASSESSMENT YEAR S 2006-07 AND 2007-08, HAS ALREADY BEEN DECIDED BY THE TRIBU NAL, THEREFORE, WE ARE ADJUDICATING ONLY THE ISSUE ARISING OUT OF G ROUND NOS. 3 AND 4 IN BOTH THE APPEALS. GROUND NO.3, WHICH IS COMMON FOR BOTH THE YEARS UNDER CONSIDERATION, IS THAT THE, LD. CIT(A) HAS ERRED IN LAW AND IN FACT IN DELETING THE ADDITION OF RS.15,000/- WH ICH WAS CLAIMED TO BE OUT OF AGRICULTURAL INCOME. THE ASSESSEE IN THE RETURN OF INCOME HAS CLAIMED AGRICULTURAL INCOME OF RS.15,000/- WHIC H HAS BEEN ADDED BY THE AO ON THE GROUND THAT THE ASSESSEE HAS NOT G IVEN ANY PROOF WITH REGARD TO THE EARNING OF THIS INCOME AND NO DO CUMENTARY EVIDENCE HAVE BEEN FILED WITH RESPECT TO THE LAND O N WHICH THE SAID AGRICULTURAL PRODUCE HAS BEEN GROWN. BEFORE THE A O, THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD SOLD COCONUTS GROW N FROM HER RESIDENTIAL PROPERTY AND THEREFORE, IT WAS CLAIMED UNDER THE HEAD AGRICULTURAL INCOME. SINCE THE ASSESSEE COULD NO T SUBMIT ANY PROOF, IT WAS ADMITTED BY THE ASSESSEE THAT THE SAM E MAY BE ADDED TO THE INCOME OF THE ASSESSEE, AS THE ASSESSEES IN COME WAS BELOW TAXABLE LIMIT EVEN AFTER THE ADDITION. THIS HAS BE EN CONFIRMED BY THE LD.CIT(A) ALSO. I.T.A. NO.2649/MUM/2010 & 703/M/2012 3 3. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE ASSESSEE WAS GROWING SAPLINGS OF COCONUT IN POTS FR OM HER RESIDENTIAL HOUSE WITHOUT ANY USAGE OF AGRICULTURAL LAND. THESE COCONUTS SAPLINGS HAVE BEEN SOLD, ON WHICH THE INCO ME HAS BEEN EARNED. SINCE, THE ASSESSEES INCOME WAS BELOW TAX ABLE LIMIT, IT WAS OFFERED AS INCOME. HOWEVER, LOOKING TO THE SMALLNES S OF THE AMOUNT, THE AGRICULTURAL INCOME SHOULD BE ACCEPTED. 4. AFTER HEARING BOTH THE PARTIES, WE FIND THAT TH ERE IS NO PROOF OR EVIDENCE HAS BEEN FILED EITHER BEFORE US OR BEFORE THE AUTHORITIES BELOW TO SHOW THAT THE ASSESSEE WAS CARRYING OUT S OME AGRICULTURAL ACTIVITY OF COCONUT SAPLING AND SELLING THE SAME. NO RECORDS IN THIS REGARD HAS BEEN MAINTAINED. WHEN ASSESSEE IS CLAIMI NG ANY INCOME BEING EXEMPT, THEN ONUS IS UPON THE ASSESSEE TO PR OVE. IN ABSENCE OF ANY SUCH EVIDENCE, WE HOLD THAT THE AGRICULTURAL INCOME HAS RIGHTLY BEEN ADDED TO THE TOTAL INCOME OF THE ASSESSEE. AC CORDINGLY, GROUND NO.3 FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08 IS DECIDED AGAINST THE ASSESSEE. 5. THE ASSESSEE, IN THE GROUND NO.4 OF THE APPEAL F OR ASSESSMENT YEAR 2007-08 HAS CHALLENGED THE ADDITION OF RS.2,4 2,670/-, WHICH WAS ON ACCOUNT OF SALE OF PERSONAL EFFECTS. THE AO ON PERUSAL OF THE BANK SUMMARY OF ICICI BANK NOTED THAT THE ASSESSEE HAS DEPOSITED I.T.A. NO.2649/MUM/2010 & 703/M/2012 4 A SUM OF RS.2,42,670/- IN THE BANK ACCOUNT WHICH W AS STATED TO BE ON ACCOUNT OF SALE OF HOUSE HOLD ITEMS. THE LIST OF HOUSE HOLD ITEMS HAVE BEEN INCORPORATED GIVEN BY THE AO AT PAGE 4 O F THE ASSESSMENT ORDER. THE CASE OF THE ASSESSEE WAS THA T ALONG WITH THE SALE OF HOUSE, THE ASSESSEE HAS ALSO SOLD HOUSE-HOL D ITEMS AS THE ASSESSEE WAS SHIFTING FROM BOMBAY TO GOA, THEREFOR E, THE SALE PROCEEDS OF HOUSEHOLD ITEMS CANNOT BE ADDED TO THE INCOME OF THE ASSESSEE AS THE PERSONAL EFFECTS CANNOT BE TAXED. T HE LD. CIT(A) CONFIRMED THE SAID ADDITION ON THE GROUND THAT THE ASSESSEE COULD NOT FURNISH THE DETAILS OF ANY HOUSEHOLD ITEMS EAR LIER AND NO PROOF HAS BEEN GIVEN THAT THE AMOUNT DEPOSITED WAS OUT OF SALE PROCEEDS OF HOUSE HOLD ITEMS. ACCORDINGLY, HE CONFIRMED TH E ADDITION OF RS.2,42,670/-. 6. BEFORE US, THE LD. COUNSEL SUBMITTED THAT HOUSE HOLD ITEMS HAVE BEEN SOLD TO FOUR PERSONS FROM WHOM THE ASSESSEE HA S RECEIVED THE PAYMENT IN CHEQUES AND AFTER A LAPSE OF SO MUCH TIM E, THE ASSESSEE WAS NOT ABLE TO SUBMIT ANY PROOF OF SALE OF THE HOU SEHOLD ITEMS. SINCE HOUSEHOLD ITEMS ARE IN THE NATURE OF PERSONAL EFFECTS, THEREFORE, THE SAME IS EXCLUDED FROM THE DEFINITION OF CAPITAL ASSETS AS GIVEN IN SECTION 2(14) OF THE ACT. LOOKING INTO FACTS AND CIRCUMSTANCES OF THE CASE, NO ADDITION IS CALLED FO R. I.T.A. NO.2649/MUM/2010 & 703/M/2012 5 7. ON THE OTHER HAND, THE LD. DR STRONGLY RELIED U PON THE ORDERS OF AUTHORITIES BELOW AND SUBMITTED THAT THERE SHOULD B E SOME PRIMA FACIE EVIDENCE TO SHOW THAT THE ASSESSEE HAS RECEIV ED MONEY FROM THE SALE OF HOUSE HOLD ITEMS AND ONCE NO PROOF HAS BEEN GIVEN, THEN PRESUMPTION IS THAT THE DEPOSIT HAS BEEN MADE OUT O F UNDISCLOSED INCOME. 8. AFTER CAREFULLY CONSIDERING THE RIVAL SUBMISSION S AND ALSO ON PERUSAL OF THE RELEVANT FINDINGS OF THE AUTHORITIES BELOW, WE FIND THAT THE ASSESSEE HAS GIVEN THE ENTIRE LIST OF HOUSE-HOL D ITEMS WHICH HAS BEEN SOLD AT THE TIME OF SELLING OF HER HOUSE. IT H AS BEEN STATED BEFORE US BY THE LD. COUNSEL THAT, THE AMOUNT FROM SUCH SALE PROCEEDS HAVE BEEN RECEIVED THROUGH ACCOUNT PAYEE C HEQUES. HOWEVER, THE ASSESSEE HAS FAILED TO FURNISH ANY CON FIRMATION FROM THE PERSONS WHO HAD BOUGHT SUCH HOUSEHOLD ITEMS. IF THE ITEMS HAVE BEEN SOLD AND AMOUNT HAVE BEEN RECEIVED THROUGH AC COUNT PAYEE CHEQUES, THEN THE ASSESSEE COULD HAVE FURNISHED THE CONFIRMATION LETTER FROM THE SAID PERSONS IN SUPPORT OF HER CONT ENTION. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE FEEL T HAT THIS MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE AO, TO VERIFY, WHETHER THE PAYMENT HAS BEEN RECEIVED THROUGH CHEQUES AND IF SO, THEN THE ASSESSEE SHOULD BE REQUIRED TO FURNISH CONFIRMATION FROM THE PERSONS WHO HAS BOUGHT THE HOUSEHOLD ITEMS OR CAN PRODUCE ANY OTHE R EVIDENCE TO I.T.A. NO.2649/MUM/2010 & 703/M/2012 6 SHOW THAT SALE PROCEEDS WAS MOSTLY ON ACCOUNT OF SE LLING OF HOUSEHOLD ITEMS. WE DIRECT THE ASSESSEE TO FURNISH NECESSARY EVIDENCE BEFORE THE AO AND IN CASE NO SUCH EVIDENC E IS FILED, THEN AO IS FREE TO DRAW ADVERSE INFERENCE. WITH THIS RE MARK, GROUND NO.4 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, BOTH EH APPEALS ARE ALLOWED FOR STATISTICAL PURPOSE. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 14TH JAN, 2015 . ,-! . /0 JAN, 2015 - ) 1* 2 SD SD ( . / D. KARUNAKAR RAO) ( / AMIT SHUKLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER * MUMBAI: 14TH JAN,2015. . . ./ SRL , SR. PS ' # $%& '&($ / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT 2. $%'# / THE RESPONDENT. 3. ( ) / THE CIT(A)- CONCERNED 4. / CIT CONCERNED 5. 451 $6 , + 6 , * / DR, ITAT, MUMBAI CONCERNED 6. 1 7* / GUARD FILE. / BY ORDER, TRUE COPY 8 & (ASSTT. REGISTRAR) + 6 , * /ITAT, MUMBAI