SHRI Laxmi Narayan Soni, Khandwa V. THE ITO, Khandwa

ITA 925/IND/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2317 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 07-06-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 06-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B K BORICHA
• Assessee Lawyers: S N AGRAWAL
• Keywords: Income from undisclosed sources; Opportunity of being heard; Revised return
• Section: 133A; 234B

Judgement Text

1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.925/IND/2016 ASSESSMENT YEAR: 2011-12 APPELLANT BY SHRI S.N. AGRAWAL & SHRI PANKAJ MOGRA RESPONDENT BY SHRI B.K. BORICHA DATE OF HEARING 08.02.2018 DATE OF PRONOUNCEMENT 15 .02.2018 O R D E R PER MANISH BORAD, AM THIS APPEAL FILED BY THE ASSESSEE PERTAI NING TO ASSESSMENT YEAR 2011-12 IS DIRECTED AGAINST THE ORDER OF LD. C OMMISSIONER OF INCOME-TAX (APPEALS)-22 (HOLDING CONCURRENT JURISDI CTION OF CIT(A), INDORE-2) DATED 17.6.2016 WHICH IS ARISING OUT OF T HE ORDER U/S 143(3)/147 OF THE INCOME TAX ACT DATED 10.12.2013 F RAMED BY THE ITO, KHANDWA. SHRI LAXMI NARAYAN SONI KHANDWA VS. INCOME TAX OFFICER KHANDWA (APPELLANT) (RESPONDENT ) PAN NO.ATQPS 2130Q 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- ( I) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) ERRED IN ASSESSING THE TOTAL INCOME OF THE APPELLANT OF RS. 11,43,440/- ON THE BASIS OF REVISED COMPUTATION EVEN WHEN NO REVISED RETURN WAS FILED AND THE APPELLANT AHS D ISPUTED THEN SAME DURING THE COURSE OF ASSESSMENT ITSELF AND ALS O IN THE FIRST APPEAL WITHOUT PROPERLY APPRECIATING THE FACTS OF T HE CASE AND SUBMISSION MADE BEFORE HIM. (II) THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F CASE, THE LD. CIT(A) ERRED IN RESTRICTING THE AGRICULTURAL INCOME OF RS.1,10,000/- IN PLACE OF AGRICULTURAL INCOME ORIGI NALLY DECLARED OF RS.6,48,241/- ON THE BASIS OF REVISED COMPUTATIO N OF INCOME EVEN WHEN NO REVISED RETURN WAS FILED BY THE APPELL ANT. (III) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN NOT DECIDING THE GROUND OF APP EAL CHALLENGING THE CHARGING OF INTEREST U/S 234A OF RS . 23,032/- AND RS.97,886/- U/S 234B OF THE ACT. 3 3. BRIEFLY STATED, THE FACTS, AS CULLED OUT FROM RE CORD, ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM AGRICULTURAL OPERATIONS AND ALSO EARNED INTEREST ON LOANS PROVID ED ON SHORT TERM BASIS. THE SURVEY WAS CONDUCTED AT THE BUSINESS PRE MISES ON 7.1.2011 U/S 133A OF THE ACT. DURING THE COURSE OF SURVEY, THE ASSESSEE SURRENDERED RS. 10 LACS UNDER VARIOUS HEAD S TO BE OFFERED TO TAX FOR THE A.Y. 2011-12 AND THE BROTHER OF THE ASSESSEE MR. MANOJ SONI SURRENDERED RS. 10,18,000/-. THE SURREN DER MADE BY THE ASSESSEE CONSISTED OF CASH OF RS.5,85,000/- AND ADVANCE OF GIRVI AT RS.4,15,000/-. SUBSEQUENTLY, THE ASSESSEE FILED RETURN OF INCOME ON 31.3.2012 DISCLOSING INCOME AT RS. 3,93,4 40/- AND AGRICULTURAL INCOME AT RS. 6,48,247/-. THEREAFTER, NOTICES U/S 143(2) AND 143(2) OF THE ACT WERE DULY SERVED UPON THE ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASS ESSEE FILED REVISED COMPUTATION OF INCOME DECLARING INCOME AT R S.11,43,440/- IN PLACE OF RS. 3,93,400/- SHOWN IN THE RETURN OF I NCOME AND SIMILARLY AGRICULTURAL INCOME WAS ALSO REVISED IN T HE REVISED COMPUTATION AT RS. 1,10,000/- WHICH WAS ORIGINALLY DECLARED AT RS.6,48,241/-. HOWEVER, THE ASSESSEE DID NOT FILE A NY REVISED RETURN OF INCOME. THE LEARNED AO DURING THE COURSE OF ASSE SSMENT 4 PROCEEDINGS FURTHER CAME ACROSS VARIOUS DETAILS OF SALE OF AGRICULTURE PRODUCE, CASH INCOME RECEIVED FROM SALE OF BUFFALOS, CASH DEPOSITS IN VARIOUS BANK ACCOUNTS TOTALING TO RS. 7 LACS. HE ACCORDINGLY COMPLETED THE ASSESSMENT IN THE LIGHT O F THE REVISED COMPUTATION OF INCOME FILED BY THE ASSESSEE AS WELL AS OTHER INFORMATION GATHERED AND ASSESSED THE INCOME AT RS. 18,43,440/- AND AGRICULTURAL INCOME AT RS. 1,10,000/-. WHILE AS SESSING THE INCOME, THE LEARNED ASSESSING OFFICER TOOK THE BASI S OF THE REVISED INCOME SHOWN IN THE COMPUTATION AT RS. 11,43,440/- AND FURTHER ADDED UNACCOUNTED INCOME OF RS. 7 LACS TOWARDS UNEX PLAINED CASH DEPOSITED IN THE BANK. 4. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A) AND PARTLY SUCCEEDED WHEREIN THE CIT(A) DELE TED RS. 7 LACS BY APPLYING THE FINDINGS MADE IN THE CASE OF BROTHER O F THE ASSESSEE, SHRI MANOJ SONI AND ALSO THE FACT THAT THE CASH OF RS. 5.85 LACS AND ADVANCE ON GIRVI AT RS. 4.15 LAC WAS TREATED AS EXP LAINED. THE LEARNED CIT(A), HOWEVER, MADE NO SPECIFIC FINDING O N THE GROUNDS RELATING TO ASSESSING THE AGRICULTURAL INCOME AS WE LL AS THE GROUND CHALLENGING THE ACTION OF THE ASSESSING OFFICER ADO PTING THE 5 RETURNED INCOME AT RS.11,43,440/- EVEN WHEN NO REVI SED RETURN OF INCOME WAS FILED. 5. AGGRIEVED, THE ASSESSEE HAS COME UP IN APPEAL BE FORE THE TRIBUNAL. 6. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE COMMONLY SUBMITTED FOR GROUND NOS. 1 AND 2 THAT THE ASSESSEE S MAIN SOURCE OF INCOME IS FROM AGRICULTURE AND INCOME IS EARNED THROUGH CHEQUE AS WELL AS CASH SO MUCH THAT DURING THE YEAR UNDER APPEAL THE GROSS RECEIPTS FROM SALE OF AGRICULTURAL PRODUCE WA S RS.28.78 LACS WHICH, INTER ALIA, INCLUDED RECEIPT OF RS.8.11 LACS FROM THE SALE OF SOYABEAN, ARBI, BHUSI, ETC. HE CONTENDED THAT THE A SSESSEE DID NOT FILE ANY REVISED RETURN OF INCOME AND THE REVISED C OMPUTATION OF INCOME WAS FILED IN THE WRONG BELIEF AS THE ASSESSE E WAS NOT WELL VERSE WITH THE TAXATION LAWS. 7. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER CO NTENDED BY REFERRING TO PAPER BOOK PAGES 94 TO 97 WHEREIN A CH ART HAS BEEN PREPARED FOR THE AVAILABILITY OF CASH JOINTLY IN TH E HANDS OF THE ASSESSEE AND HIS BROTHER AS PER WHICH, ON THE DATE OF SURVEY, THERE WAS CASH BALANCE OF RS.20,03,400/- AND THIS STATEME NT DID NOT 6 INCLUDE ANY AGRICULTURAL INCOME EARNED IN CASH. TH E DETAILS MENTIONED IN THIS CHART ARE ONLY FOR THE WITHDRAWAL S MADE FROM BANK ACCOUNTS. THE CASH BALANCE OF RS. 20,03,400/- ON THE DATE OF SURVEY I.E. 7.1.2011 ITSELF TAKES CARE OF THE SURRE NDERED INCOME OF RS. 20,18,000/-. HE, THEREFORE, SUBMITTED THAT NO ADDITION SHOULD HAVE BEEN SUSTAINED BY THE LEARNED CIT(A). 8. ON THE OTHER HAND, THE LEARNED DR SUBMITTED SU PPORTING THE ORDER OF THE CIT(A) AND FURTHER ADDED THAT THE ASSESSEE HAS HIMSELF GIVEN THE REVISED COMPUTATION OF INCOME AND PAID DUE TAXES THEREON AND THE PLEA TAKEN BY THE ASSESSEE BEFORE T HE CIT(A) AS WELL AS BEFORE THE TRIBUNAL IS JUST AN AFTER-THOUGHT. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. THE ASSESSEES GRIEVANCE IN GROUND NOS. 1 AND 2 RELATES TO THE ORDER OF THE CIT(A) CONFIRMING THE ACTION OF THE ASSESSING OFFICER ASSESSING THE INCOME AT RS. 11,43 ,440/- AS AGAINST THE INCOME DECLARED BY THE ASSESSEE AT RS.3 ,93,440/- THEREBY MAKING ADDITION OF RS.7,50,000/- AND FURTHE R ASSESSING THE INCOME FROM AGRICULTURE AT RS.1,10,000/- AGAINST TH E ORIGINALLY DECLARED AGRICULTURAL INCOME OF RS. 6,48,241/-. FRO M PERUSAL OF THE 7 SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE DURING THE COURSE OF HEARING, FINDINGS OF THE CIT(A) AS WELL A S THE PAPER BOOK RUNNING FROM PAGE 1 TO 97 THE FOLLOWING FACTS EMERG E OUT :- (I) THE ASSESSEE O WNS AGRICULTURAL LAND ADMEASURING 36 ACRES AT GRAM KUNDIA AND IS REGULARLY EARNING AGRICULTURAL I NCOME. (II) DURING THE YEAR TOTAL REVENUE FROM SALE OF AGR ICULTURAL PRODUCE DISCLOSED BY THE ASSSESSEE DURING THE ASSESSMENT PR OCEEDINGS IS RS.28.78 LACS. (III) THE ASSESSEE IS ALSO ENGAGED IN THE BUSINESS OF EARNING INTEREST ON SHORT TERM LOANS AND ADVANCES (IV) AS PER THE STATEMENT FILED FROM PAGE 94 TO 96 WHICH DEPICTS AVAILABILITY OF CASH WITHDRAWN BY THE ASSESSEE AND HIS BROTHER FROM 16.4.2009 TILL THE DATE OF SURVEY AND ALSO DEP OSITS OF CASH IN BANK, LEAVES THE NET FIGURE OF RS.20,03,400/- WH ICH, AS PLEADED BY THE LEARNED COUNSEL FOR THE ASSESSEE, WA S CASH IN HAND WITH THE ASSESSEE AND HIS BROTHER AND, THEREFO RE, THE ALLEGED SURRENDER IS DULY EXPLAINED. 8 9. ON THE OTHER HAND, THE LEARNED CIT(A) WHILE ADJU DICATING THE GROUNDS RAISED BY THE ASSESSEE MIXED THE FACTS AND FIGURES OF THE ASSESSEE AND HIS BROTHER. NO SPECIFIC FINDING ON THE ISSUE OF AGRICULTURAL INCOME HAS BEEN GIVEN. THERE IS NO DI SCUSSION ABOUT THE AVAILABILITY OF CASH JOINTLY IN THE HANDS OF TH E ASSESSEE, THE SOURCE OF WHICH IS FROM WITHDRAWAL AND BANK ACCOUNT AND THE CASH INCOME EARNED FROM AGRICULTURE IS OVER AND ABOVE TH E CASH BALANCE. LOOKING THIS FACTUAL MATRIX, A QUESTION WAS POSED T O BOTH THE PARTIES AS TO WHY NOT TO SEND THE ISSUES RAISED IN THIS APPEAL TO THE FILE OF THE CIT(A) FOR DE NOVO ADJUDICATION TO WHICH NO PARTY OBJECTED. 10. WE, THEREFORE, IN THE GIVEN FACTS AND CIRCUMST ANCES OF THE CASE AND LOOKING TO THE FACTUAL MATRIX AND THE FACT S MENTIONED BY THE LEARNED COUNSEL FOR THE ASSESSEE IN THE COURSE OF HEARING WITH REFERENCE TO PAPER BOOK, ARE OF THE CONSIDERED OPIN ION THAT THE ISSUE RAISED IN THIS APPEAL NEEDS TO BE READJUDICATED BY THE LEARNED CIT(A) AND IF NECESSARY REMAND REPORT CAN BE CALLED FOR FROM THE ASSESSING OFFICER. WE ALSO DIRECT THE ASSESSEE TO APPEAR BEFORE THE CIT(A) WITH ALL THE DOCUMENTARY EVIDENCE INCLUDING DETAILS 9 SUBMITTED IN THE PAPER BOOK WITHOUT TAKING UNNECESS ARY ADJOURNMENT UNLESS OTHERWISE REQUIRED. NEEDLESS TO MENTION THAT THE ASSESSEE WILL BE PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 15 TH FEBRUARY, 2018. SD/- SD/- (KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER FEBRUARY 15 TH , 2018 COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR DN/- BY ORDER PRIVATE SECRETARY/DDO, INDORE 1. DATE OF DICTATION : 8.2.2018 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 9.2.2018 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR.P.S./P .S: 10.1.2018 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISSTANT R EGISTRAR FOR SIGNATURE OF THE ORDER. 9. DATE OF DESPATCH OF THE ORDER: 10