Shri Manubhai Morarbhai Patel(HUF), V. The Income tax Officer,Ward-3(1), Baroda

ITA 990/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0099 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 29-07-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 17-03-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Keywords: Income from undisclosed sources; Principle of natural justice
• Section: 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'C' BEFORE SHRI BHAVNESH SAINI, JM & SHRI A N PAHUJA,AM ITA NO.990/AHD/2008 (ASSESSMENT YEAR:-2004-05) SHRI MANUBHAI MORARBHAI PATEL (HUF), JASPUR ROAD, PADRA 391 440 DISTRICT: BARODA [PAN: AABHM 4333 H] V/S INCOME-TAX OFFICER, WARD- 3(1),BARODA [APPELLANT] [RESPONDENT] ITA NO.991/AHD/2008 (ASSESSMENT YEAR:-2004-05) SHRI HARSHADBHAI M PATEL, JASPUR ROAD, PADRA 391 440 DISTRICT: BARODA [PAN: ADBPP 3552 A ] V/S INCOME-TAX OFFICER, WARD- 3(1),BARODA [APPELLANT] [RESPONDENT] ASSESSEES BY :- MS. URVASHI SHODHAN, AR REVENUE BY:- SHRI K M MAHESH, DR O R D E R A N PAHUJA: THESE APPEALS BY TWO DIFFERENT ASSESSEES AGAINST A COMMON ORDER DATED 18-12-2007 OF THE LD. CIT(APPEAL S)-II, BARODA FOR THE AY 2004-05, WERE EARLIER DISPOSED OF VIDE O RDER DATED 13.6.2008. SUBSEQUENTLY, VIDE ORDER DATED 22.3.2010 IN MA NOS. 315& 316/AHD./2008, THE ITAT CONCLUDED THAT THE FOL LOWING COMMON GROUND REMAINED FROM BEING ADJUDICATED: 2 BOTH THE LOWER AUTHORITIES HAVE GROSSL Y ERRED IN HOLDING THAT NO CROP WAS GROWN BY THE APPELLANT ON THE LAND TAKEN ON LEA SEHOLD RIGHTS THOUGH THE LAND OWNERS HAD DEPOSED BEFORE THE LD. AO OF HAVING GIVEN THE LAND ON LEASE FOR CULTIVATION TO THE APPELLANT. THE LD. AO HAS FU RTHER ERRED IN HOLDING THAT NO AGRICULTURAL INCOME WAS EARNED BY THE APPELLANT SIN CE THE LEASE AGREEMENT WAS NOT REGISTERED OR NOTARIZED AND PROCEEDED TO DE NY THE BENEFIT OF AGRICULTURAL INCOME HAVING BEEN EARNED FROM THE SAI D LEASED LAND. THIS ACTION OF BOTH THE LOWER AUTHORITIES IS IN CLEAR BREACH OF PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DESERVES TO BE QUASHED. ITA NO.990&991/AHD/2008 2 ACCORDINGLY, THE AFORESAID ORDER DATED 13.6.2008 WAS RECALLED TO THE LIMITED EXTENT FOR DISPOSING OF THE AFORESAID G ROUND. 2 FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE THAT RETURN DECLARING INCOME OF RS.45,771/- BESIDES AGRICULTURAL INCOME O F RS.8,91,371/- FILED ON 28-07-2004 BY THE ASSESSEE SHRI MANUBHAI MORARBHAI PATEL, HUF, ENGAGED IN THE BUSINESS OF MANUFACTURIN G, PROCESSING & TRADING IN RAW TOBACCO, BIDDI PATTIES & ITS BYE-PRO DUCTS, AFTER BEING PROCESSED U/S 143(1)(A) OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT],WAS SELECTED FOR SCRUTINY WITH THE ISSUE OF A NOTICE U/S 143(2) OF THE ACT ON 7.6.2005.DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER[AO IN SHORT] NOTICED THAT THE ASSESSEE, DID NOT CARRY OUT ANY PURCHASE & SALES ACTIVITY ON ACCOUNT OF UNFAVORABLE CONDITIONS AND LOSS OF RS.6, 553/- HAD BEEN INCURRED ON ACCOUNT OF ADMINISTRATIVE EXPENSES. BES IDES, INTEREST INCOME, THE ASSESSEE HAD SHOWN AGRICULTURAL INCOME OF RS.8,91,371/-FROM BOTH OWNED AS WELL AS LEASED AGRI CULTURAL LAND. THE SAID AGRICULTURAL INCOME COMPRISED SALE OF LEMO NS- RS.3,13,648/- & TOBACCO- RS.6,37,165/- AND EXPENSES OF RS.57,546/- I.E L/3 RD OF THE TOTAL EXPENSES OF RS.1,72,638/-, INCURRED B Y THE ASSESSEE, SHRI HARSHAD M PATEL & SHRI N.M.PATEL, WE RE DEBITED. ON PERUSAL OF THE 7/12 & 8A EXTRACTS FILED ALONG WITH THE LIST OF LANDS, THE AO NOTICED THAT THE ASSESSEE CULTIVATED, A TOTA L OF 11 HECT. 35 AREY & 87 SQ. MTS OF LAND DURING FYS 2002-03 & 2003-04. IT WAS CLAIMED THAT LEMONS WERE GROWN ON 4 HECT, 56 AREY & 8 SQ. MT DURING THE YEAR ON THE LAND OWNED BY THE ASSESSEE WHEREAS THE CROP OF TOBACCO WHICH WAS SOLD BY THE ASSESSEE TO M/S PRANA V (AN ASSOCIATE CONCERN OF THE ASSESSEE) AT THE BEGINNING OF THE PREVIOUS RELEVANT TO ASSESSMENT YEAR, WAS CLAIMED TO HAVE BE EN GROWN ON 7 HECT., 06 AREY & 71 SQ.MTS PARTIALLY ON ITS OWN AGR ICULTURAL LAND OF 2 HECT, 22 AREY & 37 SQ.MTS AS WELL AS LAND TAKEN ON LEASE, HAVING AREA OF 4 HECT, 84 AREY & 34 SQ. MTS IN THE F.Y.200 2-03 RELEVANT TO ITA NO.990&991/AHD/2008 3 A.Y.2003-04.SINCE THE ASSESSEE HAD SHOWN THE AGRICU LTURAL INCOME FROM SUCH LEASED LAND IN THE EARLIER YEAR, TO CHECK THE VERACITY OF THEIR CLAIM, THE ASSESSEE WAS REQUIRED TO SUBMIT R ELEVANT EVIDENCE/DOCUMENTS IN SUPPORT OF THEIR CONTENTION O F GROSS REALIZATIONS OF RS.6,37,165/- FROM TOBACCO. IN RESP ONSE, THE ASSESSEE FILED A COPY OF AN AGREEMENT WITH THE LAND OWNERS (FARMERS) WHICH REVEALED THAT THE SAID LAND WAS TAK EN ON LEASE FROM ONE SHRI AMBALAL MOTIBHAI PATEL ( 2 HECT. 25 AREY & 63 SQ.MTS) & SHRI ANIL SOMABHAI PATEL (2 HECT, 41 AREY & 77 SQ.MTS). AS PER THE AGREEMENT, ASSESSEE HAD TO PAY RENT OF RS.50,000/- TO EACH OF THESE FARMERS FOR UTILIZATION OF THE SAID LAND AND IT WAS CLAIMED THAT THE SAID RENT WAS PAID TO THE FARMERS DURING THE FY 200 2-03 AT THE TIME OF AGREEMENT ITSELF. IT WAS STATED THAT DURING THE FY 2002-03, THE ASSESSEE INCURRED AGRICULTURAL EXPENSES OF RS.2,60, 155/-, INCLUDING TOWARDS THE AFORESAID RENT . DURING THE COURSE OF A SSESSMENT PROCEEDINGS, ASSESSEE PRODUCED THESE FARMERS, WHO CONFIRMED THAT THEIR LAND WAS TAKEN ON LEASE BY THE ASSESSEE DURIN G THE F.Y.2002- 03. HOWEVER, COPIES OF 7/12 OF THE AGRICULTURAL LAN D OF THESE FARMERS OBTAINED FROM MAMLATDAR OFFICE, PADRA, REVEALED THA T THERE WAS NO RECORD OF ASSESSEE'S HAVING TAKEN UP FARMING ON ABO VE-MENTIONED LAND WHILE THE SO-CALLED AGREEMENTS, SIGNED ONLY BY THE FARMER WERE NEITHER REGISTERED NOR NOTARIZED . IN FACT, AS PER THE LAND RECORDS, THE FARMING / AGRICULTURAL ACTIVITY WAS CARRIED OUT BY THE LAND OWNERS THEMSELVES & IN ONE CASE, THE NAME OF THE CULTIVATO R WAS NEITHER OF THE LAND OWNER NOR THAT OF THE ASSESSEE. EVEN THE CROPS GROWN DURING THE YEAR WERE DIFFERENT FROM THE ASSESSEE'S CONTENTION OF HAVING GROWN TOBACCO ON THESE LEASED LANDS. AFTER HAVING AN EXPLANATION FROM THE ASSESSEE, ESPECIALLY WHEN I) T HE ASSESSEE FAILED TO PROVE ACTUAL PAYMENT OF RENT TO THE LAND OWNERS OF THE AG RICULTURAL LAND WHILE AS PER THE NORMAL PRACTICE OF TAKING AGRICULT URAL LAND ON LEASE TO CARRY OUT AGRICULTURAL ACTIVITY, THE LAND OWNERS WERE PAID THE MONEY IN INSTALLMENTS & NOT IN ONE GO & THAT TOO IN ADVANCE; II) THE AGREEMENTS SIGNED ONLY BY THE LAND OWNER WERE NEITH ER REGISTERED ITA NO.990&991/AHD/2008 4 NOR NOTARIZED AND III) AS PER THE LAND REVENUE RECORDS OF THE SAID LAND, THE FARMING/AGRICULTURAL ACTIVITY WAS CARRIED OUT BY EITHER THE LAND OWNERS THEMSELVES & IN ONE CASE BY A THIRD PAR TY & NOT LAND OWNER OR THE ASSESSEE AND IV) THERE WAS NO EVIDENCE REGARDING ASSESSEE HAVING CARRIED OUT ANY AGRICULTURAL ACTIVI TY ON THE SAID LAND OR HAVING CULTIVATED TOBACCO ON SUCH LAND, AC CORDINGLY, THE AO REJECTED THE CONTENTIONS OF THE ASSESSEE THAT THEY HAD AGRICULTURAL INCOME ON SALE OF TOBACCO CULTIVATED ON THE SAID LE ASED LAND. THESE FINDINGS OF THE AO WERE NEVER DISPUTED IN APPEAL BE FORE THE LD. CIT(A) OR ANY GROUND WAS TAKEN. 2.1 AS REGARDS AGRICULTURAL INCOME FROM OWN LANDS, SINCE THE ASSESSEE FAILED TO FURNISH THE DETAILS OF EXPENDITU RE INCURRED TO CULTIVATE THE CROP OF TOBACCO DURING THE FINANCIAL YEAR 2002- 2003 WHILE ITS CULTIVATION IS A SPECIALISED ACTIVITY, RE QUIRING MANUAL LABOUR AND FERTILIZED SOIL AND THE ASSESSEE HAVING SHOWN NEGLIGIBLE EXPENSES AMOUNTING TO RS.93,328/- DURING PREVIOUS Y EAR RELEVANT TO A.Y.2003-04 AND RS.57,546/- IN THE YEAR UNDER CONS IDERATION AND THAT TOO WITHOUT INCURRING ANY EXPENDITURE ON FERTI LIZERS NAMELY CHHANIYA KHATAR AND CONSIDERING THE LOCATION OF LAN D, THE AO ACCEPTED THE ASSESSEE'S PRODUCTION OF TOBACCO AT 1 800 KGS PER HECTARE AND ACCORDINGLY, THE EXCESS PRODUCTION OF T OBACCO SHOWN BY THE ASSESSEE WAS HELD TO BE NON-GENUINE. THEREFORE, THE AO ACCEPTED ASSESSEE'S AGRICULTURAL INCOME OF RS.3,90 .902/-(LEMON INCOME-RS.3,13,648/-+ TOBACCO INCOME-RS.1,34,800 (- ) AGRI. EXPENSES-RS.57,546/- AND THE AMOUNT OF RS.5,00,000/ - WAS ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES. 3. LIKEWISE IN THE CASE OF SHRI HARSHADBHAI M PATE L, THE AO REJECTED THE CONTENTIONS OF THE ASSESSEE HAVING ANY AGRICULTURAL INCOME FROM LEASED LAND AND ACCEPTED AGRICULTURAL I NCOME FROM OWN LANDS AT RS.1,57,325/-,RESULTING IN AN ADDITION OF RS. 4 LACS. ITA NO.990&991/AHD/2008 5 4. ON APPEAL, THE ASSESSEE DID NOT DISPUTE THE FIND INGS OF THE AO REGARDING AGRICULTURAL INCOME FROM LEASED LAND NO R RAISED ANY GROUND IN THAT CONNECTION AND MERELY DISPUTED THE AFORESAID ADDITION OF RS. 5 LACS IN THE CASE OF SHRI MANUBHAI MORARBHAI ,HUF AND RS. 4 LACS IN THE CASE OF SHRI HARSHADBHAI M PA TEL . ACCORDINGLY, THE LD. CIT(A) VIDE HIS COMMON ORDER D ATED 18.12.2007 CONCLUDED AS UNDER: 2 THE FIRST COMMON GROUND OF APPEAL IN ALL THESE A PPEALS IS AGAINST ASSESSING OFFICER'S ORDER TREATING EXCESSIV E PRODUCTION ON ACCOUNT OF AGRICULTURAL AS INCOME FROM OTHER SOURCE S. 2.1. ASSESSING OFFICER CONCLUDED THIS ISSUE BY HOLD ING THAT THE PRODUCTION SHOWN BY THE APPELLANTS ARE AS HIGH AS 2 .5 TIMES OF THE AVERAGE TOBACCO PRODUCTION PER ACRE IN BARODA DISTR ICT. ASSESSING OFFICER DID NOT ACCEPT THE APPELLANT'S CONTENTION T HAT DATA PUBLISHED BY THE DIRECTOR OF AGRICULTURAL IS FOR STATISTICAL PURPOSE SINCE THE DETAILS HAS BEEN PREPARED ON THE BASIS OF INFORMATI ON COLLECTED FROM THE DISTRICT AND THE PRODUCTION SHOWN BY THE APPELL ANT ARE MORE THAN DOUBLE THAN THE AVERAGE PRODUCTION SHOWN BY THE AGR ICULTURE DEPARTMENT. AGRICULTURAL EXPENSES DETAILS ALSO WERE NOT SUBMITTED COMPLETELY. CONSIDERING THE VARIOUS FACTS ASSESSING OFFICER TREATED PRODUCTION AT 1800 KG. PER HECTER AND PRODUCTION IN EXCESS OF THE SAME WAS TREATED AS INCOME FROM UNDISCLOSED SOURCES . 2.2. APPELLANTS SUBMITTED THAT ADDITION MADE BY THE ASSESSING OFFICER ON THE BASIS OF STATISTICAL DATA PUBLISHED BY DIRECTOR OF AGRICULTURE IS NOT CORRECT SINCE THE APPELLANTS DER IVED INCOME FROM PRODUCTION AND SALE OF TOBACCO. IN THE ABSENCE OF A NY CLINCHING EVIDENCE, THE ALLEGED EXCESS PRODUCTION CANNOT BE T REATED AS UNDISCLOSED INCOME. APPELLANT ALSO STATED THAT PROD UCTION VARIES ON ACCOUNT OF VARIOUS FACTORS SUCH AS QUALITY OF LAND, AVAILABILITY OF WATER, QUALITY OF SEEDS, PESTICIDES, ETC. THE DECIS ION OF ITAT, MUMBAI, IN THE CASE OF ITO VS A/V D ESTATE PVT. LTD ., 46 TTJ 143 WHEREIN IT IS HELD THAT SURVEY REPORT OF FINANCE MI NISTRY CANNOT BE SUBSTITUTED FOR PROOF. WHEN THE APPELLANT'S COUNSEL WAS GIVEN THE COPY OF ITAT, AHEMDABAD'S ORDER IN THE CASE OF FATI MA I VOHRA &. OTHERS ITA NO.L661/A/2004 IN WHICH 45 MAUNDS PER AC RE PRODUCTION OF TOBACCO WAS ACCEPTED, APPELLANT'S COUNSEL SUBMIT TED THE DETAILS OF PRODUCTION PER ACRE IN TERMS OF MAUNDS AND REQUE STED THAT SINCE YIELD SHOWN BY THE APPELLANTS AS UNDER, ARE NEAR TO THE ESTIMATION MADE BY HON. ITAT, ADDITION MADE BY THE ASSESSING O FFICER SHOULD NOT BE CONFIRMED. NAME OF THE APPELLANT TOBACCO YIELD PER ACRE ITA NO.990&991/AHD/2008 6 SHRI HARSHAD M. PATEL - 62.09 MAUNDS SHRI NARENDRABHAI M. PATEL - 60.66 MAUNDS SHRI MANUBHAI M. PATEI, HUF- 54.18 MAUNDS 2.3. I HAVE CONSIDERED THE SUBMISSIONS OF THE COUNS EL AND FACTS OF THE CASE. IN ALL THE APPEALS ASSESSING OFFICER FOUN D THAT PRODUCTION OF TOBACCO SHOWN WAS MUCH HIGHER AS COMPARED TO THE PRODUCTION DATA COLLECTED BY DIRECTORATE OF AGRICULTURE. SINCE THE AGRICULTURE PRODUCTION IS EXEMPT FROM TAXATION, ASSESSING OFFIC ER HELD THAT APPELLANTS DISCLOSED EXCESS PRODUCTION AND HE TREAT ED SUCH EXCESS PRODUCTION BEYOND 1800 KG. PER HECTRE AS UNDISCLOSE D INCOME. THE SUBMISSIONS OF THE APPELLANT'S COUNSEL AND THE FACT S MENTIONED BY THE ASSESSING OFFICER ARE SIMILAR TO THE CASE OF FA TIMA I. VOHRA VS DCIT & OTHERS WHEREIN HON. ITAT, AHMEDABAD, C BENCH , AFTER CONSIDERING THE VARIOUS FACTS, PRODUCTION OF 45 MAU NDS OF TOBACCO IN ONE ACRE WAS ESTIMATED. THE RELEVANT EXTRACT OF THE SAID DECISION IS EXTRACTED BELOW: '5.1 THEREFORE, FOR ESTIMATING THE PRODUCTION OF AS SESSEE'S, WE HAVE TO CONSIDER ALL THE STATEMENTS, CERTIFICATES G IVEN BY DIFFERENT TALATIES, GRAM SEVAK, SARPUNCH AND AGRICU LTURAL UNIVERSITY ALONGWITH THE RESULT SHOWN BY THE ASSESS EES IN THEIR BOOKS OF ACCOUNT. THE DIFFERENT TALATIES HAVE GIVEN DIFFERENT FIGURES OF AGRICULTURAL PRODUCTION IN ONE ACRE. ON AN ANALYSIS OF ALL THESE DOCUMENTS COUPLED WITH THE FINDING REC ORDED BY THE ID. ASSESSING OFFICER AS WELL AS BY THE ID.CIT( APPEALS), WE ARE OF THE VIEW THAT END OF JUSTICE WOULD MEET IF W E ESTIMATE THE PRODUCTION OF 45 MAUNDS OF TOBACCO IN ONE ACRE. THE ID. ASSESSING OFFICER SHALL RE-COMPUTE A FIGURE OF 45 M AUNDS PER ACRE IN PLACE OF 30 MAUNDS TAKEN BY HIM. THERE, TH E COMMON GROUND WITH REGARD TO DISALLOWANCE OF AGRICULTURAL INCOME IS PARTLY ALLOWED IN ALL THE APPEALS. SINCE THE ISSUE INVOLVED IN THE CASES OF APPELLANTS IS SAME AS ALREADY DECIDED BY THE ITAT, RESPECTFULLY FOLLOWING THE AFORESAID DECISION, I DIRECT THE ASSESSING OFFICER TO ESTIMAT E THE PRODUCTION OF TOBACCO AT THE RATE OF 45 MAUNDS PER ACRE. ADDITION OF EXCESS PRODUCTION BEYOND 45 MAUNDS PER ACRE IS CONFIRMED. THE ASSESSING OFFICER ALLOWED 1800 KG. PER HECTARE AND ON CONVERS ION OF THE SAME IT COMES TO 36.44 MAUNDS PER ACRE. CONSIDERING THE SAME THE ASSESSING OFFICER WILL ALLOW THE PRODUCTION AT THE RATE OF 45 MAUNDS PER ACRE INSTEAD OF 36.44 MAUNDS. 5. ON FURTHER APPEAL, THE ITAT AHMEDABAD BENCH C VIDE THEIR ORDER DATED 13-06-2008 IN ITA NOS.990&991/AHD/2008 CONCLU DED AS UNDER: ITA NO.990&991/AHD/2008 7 7 WE FIND THAT THE CIT(A) WHILE RESTRICTING THE AD DITION MADE BY THE AO FOLLOWED THE ORDER OF THE ITAT IN OTHER CASE IN THE CASE OF FATIMA J VOHRA (SUPRA) ON SIMILAR ISSUE, WHICH WE FIND NO IN FIRMITY. NOTHING BETTER HAS BEEN BROUGHT TO OUR NOTICE TO PROVE THE CASE OF THE ASSESSEE AND TO CONTRADICT THE FINDINGS OF THE TAX AUTHORITIES, AND TO PROVE OTHERWISE, THEREFORE, ORDERS OF THE TAX AUTHORITIES DESERVES N O INTERFERENCE BY US. WE ACCORDINGLY CONFIRM THE ORDER OF THE CIT(A) ON THIS ISSUE. 6. THEREAFTER, THESE ASSESSEES FILED MISCELLANEOU S APPLICATIONS IN MA NOS.315 AND 316/AHD/2008,CONTENDING THAT THE AF ORESAID GROUND NO.2 IN THEIR APPEALS HAD NOT BEEN DISPOSED OF. AF TER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES, THE TRIBUNAL V IDE SEPARATE ORDERS DATED 22-03-2010 IN MA NOS.315& 316/AHD/2008 HELD AS UNDER:- 4. THE LD. DR ON THE OTHER HAND OPPOSED THE MISC. APPLICATION ON THE GROUND THAT IT DOES NOT ARISE FROM THE ORDER OF CIT (A).NO SUCH GROUND WAS RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND TH ERE IS NO ADJUDICATION BY HIM ON THIS ISSUE. IN ANY CASE IT WOULD BE A CLE AR EXERCISE IN FUTILITY AND FOR THAT MATTER ORDER OF THE TRIBUNAL SHOULD NOT BE RECALLED. THE LD. DR FURTHER SUBMITTED THAT IT IS NOT RULED OUT THAT LD. AR DID NOT PRES THIS GROUND DURING THE COURSE OF HEARING BEFORE TRIBUNAL. ONCE THIS IS SO THEN ALSO ORDER IS NOT REQUIRED TO BE RECALLED. 5. THE LD. DR FURTHER SUBMITTED THAT THIS GROUND C AN NOT BE ALLOWED TO BE ADMITTED BECAUSE IT REQUIRES INVESTIGATION OF FACTS AND IS NOT PURELY A LEGAL GROUND. EVEN OTHERWISE ,EVEN IF IT IS ADMITTED,STIL L RESULT IS LIKELY TO BE NIL BECAUSE TRIBUNAL CAN NOT ADJUDICATE THIS GROUND AS IT HAS NOT BEEN RAISED BEFORE THE LD. CIT(A). 6 IN REJOINDER LD. AR FAIRLY ADMITTED THAT HE HAS N OT RAISED THIS ISSUE BEFORE THE LD. CIT(A) BUT HE HAS RAISED A GENERAL G ROUND ABOUT THE PROPOSED ADDITION BY THE AO. THEREFORE, THIS GROUND REMAINED NON- ADJUDICATED SHOULD BE CONSIDERED AS PART OF THAT GR OUND. 7 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL ON RECORD. IT IS UNDISPUTED FACT THAT THIS GROUND R AISED BY THE ASSESSEE HAS REMAINED FROM BEING ADJUDICATED. THIS IS AN INADVER TENT ERROR AND THEREFORE IN ORDER TO ADJUDICATE THIS GROUND WE RE- CALL THE ORDER OF THE TRIBUNAL AND DIRECT THE REGISTRY TO POST IT FOR HEA RING IN DUE COURSE. EVEN THOUGH THIS IS A FACT THAT RELEVANT ISSUE HAS NOT B EEN RAISED BEFORE THE CIT(A) OR ISSUE MIGHT REQUIRE INVESTIGATION OF THE FACTS, BUT SINCE ONCE THE GROUND IS RAISED BY THE ASSESSEE, IT IS REQUIRED TO BE DISPOSED OF AND AS IT HAS NOT BEEN DONE SO THE ORDER OF THE TRIBUNAL IS R EQUIRED TO BE RE-CALLED TO THIS LIMITED EXTENT. ITA NO.990&991/AHD/2008 8 7. IN VIEW OF THE FOREGOING, THESE APPEALS WERE SCH EDULED FOR HEARING BEFORE US FOR ADJUDICATING THE AFORESAID GR OUND NO.2 IN THESE TWO APPEALS. THE LD. AR ON BEHALF THESE TWO ASSESS EES WHILE CARRYING US THROUGH THE IMPUGNED CONTENDED THAT SI NCE THE LAND OWNERSHIP , BASIC OPERATION OF CULTIVATION OF TOBAC CO AND SALE BY THE ASSESSEE TO PRANAV TRADING CO. AND SUBSEQUENT SALE BY THEM TO OUTSIDERS, WAS NOT DENIED, THE AO SHOULD HAVE ACCEP TED THEIR AGRICULTURAL INCOME FROM LEASED LAND. TO A QUERY BY THE BENCH, THE LD. AR COULD NOT POINT OUT AS TO WHETHER THE FINDI NGS OF THE AO. REJECTING THE CONTENTIONS OF THESE ASSESSEES, HAVIN G ANY AGRICULTURAL INCOME FROM LEASED LAND, WERE DISPUTED BEFORE THE L D. CIT(A) NOR ANY SUCH GROUND ON THIS ISSUE WAS EVEN RAISED BEFOR E THE LD. CIT(A).ON THE OTHER HAND, THE LD. DR WHILE REITERAT ING THEIR SUBMISSIONS DURING THE HEARING OF MISCELLANEOUS APPLICATION A RGUED THAT SINCE THE ISSUE RAISED IN THIS GROUND WAS NEVER RAISED BEFORE THE L D. CIT(A), ITAT DO NOT HAVE JURISDICTION TO ADJUDICATE THIS GROUND AT THIS STAG E . 8. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF THE CASE. THERE IS NOTHING TO SUGGEST THAT THESE AS SESSEES EVER DISPUTED THE FINDINGS OF THE AO, REJECTING THE CONT ENTIONS OF THE ASSESSEES, HAVING ANY AGRICULTURAL INCOME FROM LEA SED LANDS, BEFORE THE LD. CIT(A) NOR ANY GROUND ON THIS ISSUE WAS EVEN RAISED BEFORE THE LD. CIT(A). THE AO HAS CLEARLY OBSERVED IN THE ASSESSMENT ORDER THAT THERE IS NO EVIDENCE THAT THESE ASSESSEES CUL TIVATED ANY TOBACCO ON THE SAID LEASED LANDS WHILE THE 7/12 EXTRACTS OF THESE LANDS REFLECTED DIFFERENT CROPS. THE AO FURTHER CONCLUDED THAT THE ASSESSEES FAILED TO PROVE ACTUAL PAYMENT OF RENT TO THE LAND OWNERS OF THE AGRICULTU RAL LAND AND AS PER THE LAND REVENUE RECORDS OF THE SAID LAND, THE FARMING/AGRICULTURAL ACTIVITY WAS CARRIED OUT BY EI THER THE LAND OWNERS THEMSELVES & IN ONE CASE BY A THIRD PARTY & NOT LAND OWNER OR THE ASSESSEE. THERE WAS NO EVIDENCE REGARDING T HESE ASSESSEES HAVING CARRIED OUT ANY AGRICULTURAL ACTIVITY ON THE SAID LAND OR ITA NO.990&991/AHD/2008 9 HAVING CULTIVATED TOBACCO ON SUCH LAND, THE AO CL EARLY MENTIONED. ACCORDINGLY, THE AO REJECTED THE CONTENTIONS OF THE ASSESSEE THAT THEY HAD AGRICULTURAL INCOME ON SALE OF TOBACCO CU LTIVATED ON THE SAID LEASED LAND. THESE FINDINGS OF THE AO WERE NE VER DISPUTED IN APPEAL BEFORE THE LD. CIT(A) OR ANY GROUND WAS TAKE N. DURING THE COURSE OF HEARING OF MISCELLANEOUS APPLICATION, THE LD. AR DID NOT DISPUTE THE SUBMISSIONS OF THE LD. DR THAT THE AFORESAID GROUND NO.2 DOES NOT ARISE FROM THE ORDER OF THE LD. CIT(A) ;RATHER LD. AR ADMITTED THA T THIS ISSUE WAS NEVER RAISED BEFORE THE LD. CIT(A). IN THESE CIRCUMSTANCES, ESPE CIALLY WHEN NO SUCH GROUND RELATING TO AGRICULTURAL INCOME FROM LEASED LANDS, WAS RAISED BEFORE THE LD. CIT(A), CONSEQUENTLY, SUCH ISSUES NOW RAISED BEFOR E US DO NOT EMERGE FROM THE IMPUGNED ORDER OF THE LD. CIT(A). IF THERE IS NO DECISION OF THE F IRST APPELLATE AUTHORITY AND NO GROUND IS TAKEN IN THE APPEAL FIL ED BEFORE HIM ON A PARTICULAR PORTION OF THE ASSESSMENT, IT CAN NOT BE SAID THAT THE ASSESSEE IS STILL AGGRIEVED BY THE DECISION OF THE FIRST APPELLATE AUTHORITY IN NOT GRANTING SUCH RELIEF TO HIM. HONBLE JURISDICTIONAL HIGH COURT IN THEIR DECISION IN CIT VS. KARAMCHAND PREMCHAND PRIVATE LTD.,74 ITR 254(GUJ) HELD THAT T HE TRIBUNAL IS NOT ENTITLED TO ALLOW THE ASSESSEE TO AGITATE AN ISSUE WHICH WAS NO T RAISED BEFORE THE FIRST APPELLATE AUTHORITY AND THERE IS NO DECISION OF SUCH AUTHORITY ON THE ISSUE, EVEN IF THE ASSESSEE HAS RAISED THE ISSUE IN THE M EMORANDUM OF APPEAL AND SEEKS TO AGITATE IT. .SIMILARLY IN SMT. ARUDHANTI B ALKRISHNA VS. ITO,103 ITR 763(GUJ), THE HONBLE JURISDICTIONAL HIGH COURT HEL D THAT THE ASSESSEE IS NOT ENTITLED TO QUESTION THE DECISION OF THE OFFICER ON A POINT IN AN APPEAL TO THE TRIBUNAL, WHICH WAS NOT RAISED OR DECIDED BY THE AP PELLATE ASSISTANT COMMISSIONER. SIMILAR VIEW WAS TAKEN IN HUKAMCHAND & MANNALAL & C O.,126 ITR 251(MP) AND UGAR SUGAR WORKS LTD. VS. CIT,141 I TR 326(BOM.).SINCE ISSUES RAISED IN AFORESAID GROUND NO 2 IN THE APPE AL BEFORE US DO NOT EMERGE FROM THE IMPUGNED ORDER NOR HAVE BEEN RAISED BEFORE THE LD. CIT(A), ACCORDINGLY, IN THE LIGHT OF AFORESAID DECISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT, WE HAVE NO ALTERNATIVE BUT TO DISMISS THE SAID GROUND . ITA NO.990&991/AHD/2008 10 9. IN THE RESULT, BOTH THESE APPEALS ARE DISMISSED . ORDER PRONOUNCED IN THE COURT TODAY ON 27-08-2010 SD/- SD/- (BHAVNESH SAINI) JUDICIAL MEMBER (A N PAHUJA) ACCOUNTANT MEMBER DATE : 27 -08-2010 COPY OF THE ORDER FORWARDED TO: 1. SHRI MANUBHAI MORARBHAI PATEL (HUF), JASPUR ROAD , PADRA 391 440 DISTRICT: BARODA 2. SHRI HARSHADBHAI M PATEL, JASPUR ROAD, PADRA 3 91 440 DISTRICT: BARODA 3. ITO, WARD-3(1), BARODA 4. CIT CONCERNED 5. CIT(A)-II, BARODA 6. DR, BENCH-C, ITAT, AHMEDABAD 7. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD