Smt. Champaben A. Desai, Valsad V. ITO, Ward-1, Vapi

ITA 790/SRT/2018

• Counselvise Citation: [NaN] 107 COUNSELVISE.COM (IT) 1853 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 31-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकरअपीलसं./ITA No.790/SRT/2018 (Ǔनधा[रणवष[ / Assessment Years: (2010-11) (Virtual Court Hearing) Smt. Champaben A. Desai, Ankleshwar Bunglow, Bawari Faliya, Tukwada, Tal. Pardi, Valsad, Gujarat. Vs. The ITO, Ward-1, Vapi. èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AMAPD3476D (Assessee) (Respondent) Assessee by : Shri Rajesh Upadhyay, AR Revenue by : Ms Anupama Singla, Sr. DR स ु नवाईकȧतारȣख/ Date of Hearing : 22/11/2021 घोषणाकȧतारȣख/Date of Pronouncement : 04/01/2022 आदेश / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2010-11, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), Valsad [in short “the ld. CIT(A)”] in Appeal No. CIT(A)/VLS/170/17-18/363 dated 25.10.2018, which in turn arises out of an order passed by the Assessing Officer under section 143(3) r.w.s 147 of the Income Tax Act, 1961 [hereinafter referred to as the “Act”] dated 29.08.2017. 2. Grounds of appeal raised by the assessee are as follows: “1. Ld. CIT(A) Valsad has erred in law and on fact to upheld action of the AO for reopening of assessment for AY 2010-11 only because of AIR information that the assessee has made cash deposit of Rs.10,25,000 in her bank account. 1.1 ld. CIT(A) Valsad has erred in law and on fact to upheld AO's action for reopening of assessment u/s 147 ignoring the fact that the assessee is a widow lady, residing in village Tukwada of district Valsad and having no other source of income, other than, agriculture. 1.2 Ld CIT(A) Valsad has erred in law and on facts to confirm AO's action u/s 147 as legal and correct overlooking the fact that the AO has not supplied reasons to the assessee as required under the law, especially looking at the fact that AO's reopening is beyond the period of four years. Page | 2 ITA No.790/SRT/2018 Assessment Year. 2010-11 Champaben A. Desai 2. Ld. CIT(A) Valsad has erred in law and on facts to confirm AO's addition of Rs.10,25,000/- being unexplained cash credit u/s 69A of the Act, which is in fact cash deposits made by the assessee in her bank account during FY 2009-10. 3. Ld CIT(A) Valsad has erred in law and on facts to upheld AO's addition of Rs.2,00,000 made on account of bogus agriculture income.” 3. Succinct facts are that assessee`s case was re-opened u/s 147 of the Income Tax Act, 1961 by recording the reasons that assessee had deposited cash to the tune of Rs.10,25,000/- in the savings bank account with Axis Bank, Vapi during financial year 2009-10 and has not filed his return of income. The assessing officer observed that as per AIR details, the assessee had deposited cash of Rs.10,25,000/- in his saving bank account held with ICICI Bank, Vapi during the year under consideration. During the assessment proceedings, assessee submitted copy of 7/12 for the land 782/6 and 782/8 total area is 0-13-16 and the land is in the name of four members including assessee. The assessing officer rejected the contention of the assessee and observed that as per provisions of the section 69A of the Income-tax Act, the assessee has not offered any explanations or submitted any details or supporting documents in respect of cash deposit in his bank account as well as agriculture income earned during the year, therefore, addition of Rs.10,25,000/- made to total income on account of unexplained cash deposits as per provisions of 69A of the Income-tax Act and remaining amount of Rs.2,00,000/- (12,25,000 - 10,25,000) claimed as agriculture income was treated as unexplained income during the year under consideration and added to the total income or the assessee. 4. On appeal, ld CIT(A) confirmed the action of the assessing officer. Aggrieved, the assessee is in further appeal before us. 5. We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. Shri Rajesh Upadhyay, learned Page | 3 ITA No.790/SRT/2018 Assessment Year. 2010-11 Champaben A. Desai Counsel for the assessee argued that assessee submitted copy of 7/12 for the land 782/6 and 782/8 total area is 0-13-16. The ld Counsel also submitted that some cash has been deposited out of past savings of assessee from agricultural activities. Considering sufficient land holding and past savings, the addition should not be made. On the other hand, ld DR for the Revenue submitted that during the course of assessment proceedings, assessee has not submitted sufficient details to prove nature, source and genuineness of cash deposited in bank account. 6. We note that assessee is a senior citizen. She is Agriculturalist ( Farmer). She does not have any income except income from agricultural activities. During the assessment stage, assessee submitted copy of 7/12 for the land 782/6 and 782/8 for total area is 0-13-16. In response to letter issued by the assessing officer, on 16.1.2017 for clarification of cash deposit, the assessee filed reply wherein she enclosed a copy of sale deed for the sale of agriculture land at Pardi Taluka, Tukwada. All these facts were before the assessing officer. 7. Based on these facts, ld Counsel has contended against the addition of Rs.12,25,000/- as income from other source, stating that it was an agriculture income for the year. Assessee had not filed original return of income for the year under consideration or for the consequent year (A.Y. 2010-11 to 2012-13). Due to non-filing of return and as per AIR information of cash deposit of Rs.10,00,000 or more in a saving bank account during F.Y. 2009-10, a letter dated 30.07.2013 was issued to the assessee by the assessing officer. In response to the same, assessee submitted as follows: " I am 67 years old woman, deposited Rs. 10,00,000/- which consist of my previous year savings, agriculture income, sales of agriculture land, money from my late husband and gift from my father. Since I don't have taxable income, IT Return has not been filed." During assessment proceedings, in response to notice of 148 of the Act, assessee filed return of income on 03.05.2017 showing agriculture income of Rs.12,25,000/-. Again in response to show cause notice of AO dated 18.08.2017, Page | 4 ITA No.790/SRT/2018 Assessment Year. 2010-11 Champaben A. Desai assessee filed a reply before the assessing officer on 04.09.2017 (which was not considered by the AO, because order was already passed on 29.08.2017) in which vide point no.3, assessee stated that the amount of Rs.10,25,000/- is not income during the year under consideration. However, the amount is consisting of previous year also. 8. From the above facts we note that assessee has adequate land holding to prove the cash deposit in the bank account. The Ld. Counsel submits before us the land records and the land holding papers which is placed at paper book page no.23 to 31 of assessee`s paper book. We note that considering the land holding and the fact that some cash was deposited out of past savings, the addition should not be made especially when assessee does not have other income except agricultural income. We note that assessee is doing agricultural activities and her income is only from agricultural activities. If a person has only agricultural income and no other income, then no addition can be made to the total income, unless and until the assessing officer proves that the assessee has any other source of income which is taxable under the Income-tax Act. The assessing officer has not brought on record any material or evidence to show that assessee was having any other source of income except agricultural income, which is not taxable. That is why, the assessee has chosen not to file the income tax return, as the agricultural income is exempt from tax. 9. We note that assessee (senior citizen) does not have any other income except from agricultural activities, hence taking into account the principal of natural justice, the addition should not be made, as the assessing officer did not prove other income of the assessee, except agricultural income. That is, assessing officer has failed to point out any other income of assessee. At this juncture, we would like to cite the famous golden words of Lord Morris. As Per Lord Morris of Borth-y-Gest, (Wisemjan v Borneman 45TC 540, 554 (HL), [1970] 75 ITR 652, 657), he said that: Page | 5 ITA No.790/SRT/2018 Assessment Year. 2010-11 Champaben A. Desai “That the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various, divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only “fair play in action”. Nor do we wait for directions from Parliament. The common law has abundant riches: there may we find what Bylaes J called “the justice of the common law”. 10. Taking into account the aforesaid facts and circumstances, we are not inclined to accept the contention of the Assessing Officer in any manner and hence the addition so made is deleted. Hence this ground of the assessee is allowed. 11. In the result, appeal of the assessee is allowed. Order is pronounced on 04/01/2022 by placing result on notice board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat / Ǒदनांक/ Date: 04/01/2022 SAMANTA Copy of the Order forwarded to: 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat