SHRI MOHAREE LAL GANGWAL, Jaipur V. ITO, Jaipur

ITA 836/JPR/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7833 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 29-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Wrong claim
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL: JAIPUR BENCH JAIPUR BEFORE SHRI SHAILEND RA K UMAR YADAV, JUDICIAL MEMBER, AND SHRI B. C. MEENA , ACCOUNTANT MEMBER . ITA.NO. 83 6 /JP /20 1 2 (ASSESSMENT YEAR: 200 5 - 0 6 ) SHRI MOHAREE LAL GANGWAL C/O SHRI NARENDRA GOSWAM I , ADVOCATE, G - 17/5, RAGHURAJ ENCLAVE, KRISHNA MARG, C - SCHEME, JAIPUR APPELLANT VS. INCOME TAX OFFICER, WARD 7 ( 3 ), JAIPUR RESPONDENT PAN: ADHPG4799G / BY APPELLANT : WRITTEN SUBMISSION / BY RESPONDENT : SHRI KAILASH MANGAL , D.R. / DATE OF HEARING : 0 3 .1 2 .2014 / DATE OF PRONOUNCEMENT : 5. 1 2 .2014 ORD ER PER SHAILENDRA KUMAR YADAV, J . M: THIS APPEAL HAS BEEN FILED BY THE ASSESSE E AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - II I, JAIPUR , DATED 20 . 0 7 .201 2 FOR A.Y. 200 5 - 0 6 ON THE FOLLOWING GROUND S : 1 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , LD. CIT(A) HAS SERIOU SLY ERRED IN CONFIRMING THE ORDER OF I.T .A. NO. 83 6 / JP /2 0 1 2 A.Y. 200 5 - 0 6 ( SHRI MOHAREE LAL GANGWAL VS. ITO ) PAGE 2 THE AO IN RESPECT OF PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS FURTHER ERRED IN TREATING THE AGRICULTURE IN COME AS INCOME FROM OTHER SOURCES WHEN NECESSARY EVIDENCES WERE DULY FILED SUPPORTING THE CLAIM. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS COMPLETELY IGNORED THE GIRDWARI AND JAMABANDI FILED WHICH ARE THE BASIC DOCUMENTS TO CO NFIRM THE OWNING OF AGRICULTURE LAND. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS RELIED ON THE AO S ORIGINAL ORDER DATED 23.07.2007 WHO HAS HIMSELF CONFIRMED IN THE OPENING PARAS THAT COPY OF JAMABANDI OF AGRICULTURE LAND FILED AND PLACED ON RECORD. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 WHICH WAS PASSED UNDER WRONG NOTION. 6. THE LD. CIT(A) SERIOUSLY ERRED IN NOT A PPRECIATING THAT NO FALSE CLAIM WAS PRESENTED BY THE APPELLANT WHICH COULD IN ANY WAY LEAD TO DEFRAUD THE REVENUE. THE PENALTY DESERVES TO BE STRUCK DOWN. 2. ASSESSING OFFICER HAS LEVIED PENALTY OF RS.81,100/ - UNDER PROVISIONS OF SECTION 271(1)(C) BY OB SERVING AS UNDER: RETURN OF INCOME WAS FILED ON 01.08.2005 DECLARING TOTAL INCOME OF RS.54,600 PLUS AGRICULTURE INCOME OF RS.3,00,000. THE CASE WAS SELECTED AS PER CASE AND NOTICE U/S 143(2) OF THE I.T. ACT, 1 961 WAS ISSUED ON 08.06.2006. T HE ASSESSEE H AS SHOWN TOTAL AGRICULTURE RECEIPTS OF RS.4,14,000 AND AFTER CLAIMING EXPENSES OF RS.1,14,000, NET AGRICULTURE INCOME OF RS.3,00,000 WAS DECLARED. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED THAT AGRICULTURE INCOME SHOWN WAS EITHER BASED O N THE BILLS IN THE NAME OF SHJ. JAGDISH SON OF THE ASSESSEE, A FACT WHICH WAS OWNED BY THE ASSESSEE OR WAS WITHOUT BILLS. ULTIMATELY, THE ASSESSEE COULD NOT ESTABLISH THE FACT THAT THE AGRICULTURE INCOME SHOWN BY HIM, BELONG TO HIM. ACCORDINGLY, ASSESSM ENT IN THIS CASE, WAS COMPLETED ON 23.07.2007 ON TOTAL INCOME OF RS.3,82,870 MAKING ADDITION I.T .A. NO. 83 6 / JP /2 0 1 2 A.Y. 200 5 - 0 6 ( SHRI MOHAREE LAL GANGWAL VS. ITO ) PAGE 3 OF RS.3,23,273 AS INCOME FROM OTHER SOURCE OUT OF THE AGRICULTURE RECEIPT SHOWN BY THE ASSESSEE. PENALTY PROCEEDINGS U/S 271(1)(C ) OF THE I.T. ACT. 1961 FOR CONCE ALMENT OF INCOME OR FURNISHING INACCURATE PARTICULAR WAS ALSO INITIATED BY ISSUING ON NOTICE DATED 23.07.2007. IN FIRST APPEAL, THE LD. CIT(A), VIDE HIS ORDER DATED 18.02.2008 UPHELD THE FINDING OF THE AO ON THE ISSUE OF INCOME DETERMINED AS INCOME FROM OTHER SOURCE AND SUSTAINED THE ADDITION ON THE ISSUE TO TUNE OF RS.2,92,500 AGAINST ADDITION MADE OF RS.3,23,273/ - . AGAINST THE ORDER OF CIT(A), ASSESSEE FILED FURTHER APPEAL BEFORE ITAT, JAIPUR AND THE HON BLE ITAT, JAIPUR BENCH, JAIPUR VIDE HIS ORDER N O. ITA NO. 994/JP/2008 DATED 29.08.2009 HAS ALSO UPHELD THE FINDING OF THE CIT(A) ON THE ISSUE OF INCOME TREATED AS INCOME FROM OTHER SOURCES. ONLY THE ISSUE REGARDING RE - DETERMINING SHARE OF AGRICULTURE LAND OWNED BY THE ASSESSEE, WHETHER IT WAS 1/5 TH OR 1/4 TH SHARE, THE ITAT, JAIPUR WAS SET - ASIDE AND RESTORED TO AO. FINALLY, THE AO HAS DECIDED THE RE - STORED ISSUE AND ORDER U/S 254/143(3) OF THE I.T. ACT. 1961 HAS BEEN PASSED ON 15.12.2009 AND TOTAL INCOME OF RS.545,600 + AGRICULTURE INCOME ASSESSED AS INCOME FROM OTHER SOURCES OF RS. 2,90,625) PLUS AGRICULTURE INCOME OF RS.9,375. THUS, ADDITION IN THIS CASE WAS MADE OF RS.2,90,625 AS INCOME FROM OTHER SOURCES. NOTICE U/S 274 READ WITH SECTION 271(1)(C) OF THE I.T. ACT, 1961 WAS ALSO ISSUED ON 15.12.20 09 FIXING THE DATE OF HEAR ON 13.01.2010 FOR CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE AR OF THE CONTENTION IS NOT CORRECT BECAUSE THE ADDITION MADE BY THE AO WAS BASED ON THE FACTS AND THESE FACTS WERE ALSO CONFIRMED BY TH E CIT(A) AS WELL AS ITAT, JAIPUR BENCH, JAIPUR. BY WAY OF FILING THE INACCURATE PARTICULARS OF INCOME, THE ASSESSEE HAS TRIED TO CONCEAL THE TAXABLE INCOME. IT IS CLEAR THAT THE ASSESSEE HAS CONCEALED OR FILED INACCURATE PARTICULARS OF INCOME BY WAY OF E NTIRE AS EXEMPTED INCOME. FURTHER, THE CASE LAWS CITED BY THE ASSESSEE ARE DISTINGUISHABLE ON FACTS. THEREFORE, CONTENTION OF THE ASSESSEE SUBMITTED VIDE HIS LETTER DATED 20.05.2010 & 21.06.2010 IS NOT CORRECT AND THUS, IS NOT ACCEPTED. CONSIDERING FACT S AND CIRCUMSTANCES OF THE CASE, I AM SATISFIED THAT THE ASSESSEE HAS DELIBERATELY CONCEALED AND FILED INACCURATE PARTICULARS OF INCOEM TO THE TUNE OF I.T .A. NO. 83 6 / JP /2 0 1 2 A.Y. 200 5 - 0 6 ( SHRI MOHAREE LAL GANGWAL VS. ITO ) PAGE 4 RS.2,90,625. THEREFORE, PENALTY U/S 271(1)(C) OF THE I.T. ACT, 1961 TO THE TUNE OF RS.81,100 IS IMPOSED, WHICH IS WORKED OUT AS UNDER WHICH WAS CONFIRMED BY CIT(A). 3. SAME HAS BEEN OPPOSED BEFORE US BY WAY OF WRITTEN SUBMISSIONS AND WHEREIN IT HAS BEEN REQUESTED TO DELETE THE PENALTY IN QUESTION. ON OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF PENALTY LEVIED BY AUTHORITIES BELOW. 4. AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT ASSESSEE DERIVES INCOME FROM HOUSE PROPERTY, BANK INTEREST AND AGRICULTURAL INCOME FROM ITS AGRICULTURAL ACTIVITIES. ASSESSEE H AS FILED ITS RETURN OF INCOME AT RS.54,600/ - AND AGRICULTURAL INCOME AT RS.3 LACS. ASSESSMENT WAS COMPLETED U/S. 143(3) OF INCOME TAX ACT AT RS. 3,82,870/ - AS UNDER: I) RENTAL INCOME AS PER RETURN 54600.00 II) AGRICULTURAL INCOME ASSESSED AS INCOME FR OM OTHER SOURCES 328273.00 -------------- 382873.00 ASSESSING OFFICER HAS ALSO IMPOSED PENALTY U/S. 271(1)(C) OF THE ACT AT RS.81,100/ - , WHICH WAS CONFIRMED BY CIT(A) WHICH SUBJECT MATTER OF APPEAL BEFORE US. AS STATED ABOVE THAT ASSESSEE HAS SHOWN INCOME OF RS.3 LACS, WHICH IS CLAIMED FROM 1/4 TH SHARE I.E. 17 BIGHAS OF AGRICULTURAL LAND. LAND HAS BEEN CLAIMED TO BE FERTILE ONE AND ELECTRIC CONNECTION FOR IRRIGATION. IT IS SETTLED LEGAL POSITION THAT PENALTY IS NOT AUTOMATIC ON THE BASIS OF QUANTUM ADDITION. THE REJECTION OF AGRICULTURAL I.T .A. NO. 83 6 / JP /2 0 1 2 A.Y. 200 5 - 0 6 ( SHRI MOHAREE LAL GANGWAL VS. ITO ) PAGE 5 INCOME IS NOTHING BUT ESTIMATION DONE BY LOWER AUTHORITIES WHILE MAKING ADDITIONS. ASSESSEE HAS DISC LO SED FACTS WHATEVER HE HAS WITH HIM IN HIS DOMAIN . E VEN IF SUCH A CLAIM WAS FOUND NOT TENABLE. IT D OES NOT ATTRACT PENALTY AUTOMATICALLY. THERE IS NOTHING AP P ARENTLY ON RECORD TO SUGGEST THAT ASSESSEE ACTED DELIBERATELY FOR FURNISHING INACCURATE PARTICULARS OF ITS INCOME. THE REJECTION OR ACCEPTANCE OF AGRICULTURE INCOME FROM UNDIS CLOS ED HOLDING IS NO THING OTHER THAN ESTIMATION WHICH CANNOT BE SOUND BASES OF LEVYING PENALTY IN QUESTION. KEEPING ALL THESE FACTS INTO CONSIDERATION, WE ARE OF THE VIEW THAT ASSESSING OFFICER WAS NOT JUSTIFIED IN LEVYING PENALTY IN QUESTION AND SAME DESERVES TO BE DELETED. IN FACTS AND CIRCUMSTANCES, PENALTY IN QUESTION IS DIRECTED TO BE DELETED. 5 . AS A RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON THIS THE 5 TH DAY OF DECEM BER, 2014. SD/ - SD/ - ( B. C. MEENA ) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY S.K.SINHA COPY FORWARDED TO: 1. THE APPELLANT - SHRI MOHAREE LAL GANGWAL 2. THE RESPONDENT - ITO, WARD 7 ( 3 ), JAIPUR 3. THE CIT 4. CIT(APPEALS) 5. THE DR 6. GUARD FILE (ITA NO. 8 3 6 /JP/ 2012 ) BY ORDER A.R., JAIPUR.