P.Abdul Azeez, Palakkad V. DCIT, Trichur

ITSSA 115/COCH/2005

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8136 (ITAT-COCHIN)
• Duration Of Justice: 7 year(s) 27 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 26-04-2012
• Assessment Year: misc
• Appeal Filed On: 26-05-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI
• Assessee Lawyers: C R HARISH
• Section: 132

Judgement Text

1 IT(SS)A NO.115 /COCH/2005 IT(SS)A NO.142/COCH/2005 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T(SS)A NO. 115/COCH/2005 (BLOCK PERIOD 01-04-1996 TO 28-08-2002) P ABDUL AZEEZ VS THE DY.CIT, CENT.CIR PAZHERI HOUSE THRISSUR THENKARA, MANNARKKAD PALAKKAD PAN : ABNPA4325N (APPELLANT) (RESPONDENT) I.T(SS)A NO. 142/COCH/2005 (BLOCK PERIOD 01-04-1996 TO 28-08-2002) DY.CIT, CENT.CIR VS SHRI P ABDUL AZEEZ THRISSUR THENKARA, MANNARKKAD, PALAKKAD ASSESSEE BY : SHRI C.R. HARISH REVENUE BY : SHRI S.R. SENAPATI DATE OF HEARING : 26-04-2012 DATE OF PRONOUNCEMENT : 22-06-2012 O R D E R PER N.R.S. GANESAN (JM) BOTH THE APPEALS OF THE ASSESSEE AND THE REVENUE A RE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX(A)-I, KOCHI DATED 18- 03-2005 AND PERTAINS TO BLOCK PERIOD 01-04-1996 TO 28-08-2002. SINCE BOTH THE AP PEALS OF THE ASSESSEE AND THE REVENUE ARISE OUT OF THE SAME ORDER OF THE COMMISSI ONER OF INCOME-TAX(A), WE HEARD THEM TOGETHER AND DISPOSE OF THE SAME BY THIS COMMO N ORDER. 2 IT(SS)A NO.115 /COCH/2005 IT(SS)A NO.142/COCH/2005 2. LET US FIRST TAKE THE ASSESSEES APPEAL IN ITSS 115/COCH/2005. 3. SHRI C.R. HARISH, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THERE WAS SEARCH U/S 132 OF THE ACT AT THE PREMISES OF THE AS SESSEE. THE ASSESSEE FILED RETURN FOR THE BLOCK PERIOD DISCLOSING AN INCOME OF RS.2,17,81 3. HOWEVER, THE ASSESSING OFFICER COMPUTED THE INCOME AT RS.13,29,030. THE LD.REPRES ENTATIVE FURTHER SUBMITTED THAT ON APPEAL BY THE ASSESSEE, THE COMMISSIONER OF INCOME- TAX(A) SUSTAINED THE ADDITION OF RS.2,46,000 ON ACCOUNT OF AGRICULTURAL INCOME. ACC ORDING TO THE LD.REPRESENTATIVE DURING THE BLOCK PERIOD UNDER CONSIDERATION THE ASS ESSEE WAS CULTIVATING 2.47 ACRES OF RUBBER ESTATE AND ANOTHER 8.84 ACRES OF COCONUT, AR ACANUT, PEPPER VINES, ETC. THE ASSESSING OFFICER ESTIMATED THE INCOME FROM AGRICUL TURE ON FINDING THAT THE ESTIMATION MADE BY THE ASSESSEE WAS VERY HIGH AND THUS HE REST RICTED THE AGRICULTURAL INCOME TO THE EXTENT OF RS.5,46,926. THE COMMISSIONER OF INC OME-TAX(A) DIRECTED THE ASSESSING OFFICER TO ADMIT THE AGRICULTURAL INCOME ORIGINALLY DECLARED; HOWEVER, REJECTED THE CLAIM OF THE ASSESSEE TOWARDS AGRICULTURAL INCOME TO THE EXTENT OF RS.2,46,000. THE LD.REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAS P URCHASED 1.84 ACRES OF RUBBER PLANTATION ON 17-10-1996 AND THE SAME WAS DISCLOSED IN THE RETURN OF INCOME. DUE TO PURCHASE OF THIS PROPERTY, THE ASSESSEE HAS DISCLOS ED ADDITIONAL AGRICULTURAL INCOME OF RS.2,46,000 FOR THE BLOCK PERIOD. THE LD.REPRESENT ATIVE SUBMITTED THAT THE INCOME WAS ESTIMATED ON THE BASIS OF THE GUIDELINES ISSUED BY THE RUBBER BOARD. THEREFORE, BOTH THE AUTHORITIES BELOW OUGHT TO HAVE ACCEPTED THE AD DITIONAL AGRICULTURAL INCOME OFFERED BY THE ASSESSEE. 4. ON THE CONTRARY, SHRI S.R. SENAPATI, THE LD.DR S UBMITTED THAT THE ASSESSEE CLAIMED AGRICULTURAL INCOME OF RS.2,40,000; HOWEVER , NO MATERIAL WAS FILED BEFORE THE LOWER AUTHORITIES. IN THE ABSENCE OF ANY MATERIAL, THE COMMISSIONER OF INCOME-TAX(A) DIRECTED THE ASSESSING OFFICER TO ASSESS THE AMOUNT OF RS.2,46,000 AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD. 3 IT(SS)A NO.115 /COCH/2005 IT(SS)A NO.142/COCH/2005 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSE SSEE HAS FILED THE RETURNS OF INCOME REGULARLY DISCLOSING AGRICULTURAL INCOME. THE ASSE SSEE HAS ALSO DISCLOSED ADDITIONAL AGRICULTURAL INCOME OF RS.2,46,000 FOR THE BLOCK PE RIOD. THOUGH THE ASSESSEE CLAIMS THAT A RUBBER PLANTATION TO THE EXTENT OF 1.85 ACRES WAS PURCHASED ON 17-10-1996, NO MATERIAL IS PRODUCED TO SUPPORT THE CONTENTION OF T HE ASSESSEE EITHER BEFORE THE LOWER AUTHORITIES OR BEFORE THIS TRIBUNAL. MOREOVER, NO MATERIAL WAS FOUND DURING THE COURSE OF SEARCH OPERATION. THE ASSESSEE DISCLOSED THIS A DDITIONAL INCOME OF RS.2,46,000 IN THE RETURN FILED FOR THE BLOCK PERIOD. ADMITTEDLY, THI S SUM OF RS.2,46,000 WAS NOT DISCLOSED EARLIER TO THE DEPARTMENT AND NO MATERIAL WAS ALSO FOUND DURING THE COURSE OF SEARCH OPERATION. IT IS A CLAIM MADE BY THE ASSESSEE BEFO RE THE ASSESSING OFFICER IN THE BLOCK RETURN OF INCOME FILED AS ADDITIONAL AGRICULTURAL I NCOME. THEREFORE, WHEN THE ASSESSEE CLAIMS THAT AN ADDITIONAL AGRICULTURAL INCOME AND T HE SAME WAS NOT DISCLOSED EARLIER THE CLAIM OF THE ASSESSEE HAS TO BE EXAMINED IN THE LIG HT OF THE MATERIAL AVAILABLE ON RECORD. THE LOWER AUTHORITIES FOUND THAT NO MATERIAL IS AVA ILABLE ON RECORD TO SUPPORT THE CLAIM OF THE ASSESSEE, THEREFORE, TAKING INTO CONSIDERATI ON THE RETURN ALREADY FILED, REJECTED THE CONTENTION OF THE ASSESSEE WITH REGARD TO THE A DDITIONAL AGRICULTURAL INCOME. THEREFORE, THE COMMISSIONER OF INCOME-TAX(A) DIRECT ED THE ASSESSING OFFICER TO TAKE AGRICULTURAL INCOME AT RS.2,46,000 AS AGAINST RS.5, 46,926 ADOPTED BY THE ASSESSING OFFICER. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. ACCORDINGLY, THE SAME IS CONFIRMED. 6. NOW COMING TO THE APPEAL OF THE REVENUE, THE FIR ST GROUND OF APPEAL IS WITH REGARD TO DELETION OF RS. 1,12,000 BEING THE DEFICI ENCY IN AGRICULTURAL INCOME OF THE ASSESSEES WIFE. 7. SHRI S.R. SENAPATI, THE LD.DR SUBMITTED THAT THE RE WAS A DEFICIENCY IN THE CASH FLOW STATEMENT FILED BY THE ASSESSEES WIFE. THE D EFICIENCY IN CASH FLOW STATEMENT WAS ADDED AS UNDISCLOSED INCOME OF THE ASSESSEE. ACCOR DING TO THE LD.DR, WHEN THE 4 IT(SS)A NO.115 /COCH/2005 IT(SS)A NO.142/COCH/2005 ASSESSEE CLAIMS THAT THE AGRICULTURAL INCOME OF THE ASSESSEES WIFE WAS USED BY HIM, THE DEFICIENCY FOUND HAS TO BE ADDED AS UNDISCLOSED INC OME IN HIS HANDS. 8. ON THE CONTRARY, SHRI C.R. HARISH, THE LD.REPRES ENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEES WIFE WAS IN POSSESSIO N OF AGRICULTURAL LAND AND CULTIVATED THE SAME. THE ASSESSING OFFICER RESTRICTED THE AGR ICULTURAL INCOME DECLARED BY THE ASSESSEES WIFE TO THE EXTENT OF RS.1,12,000 AND TH E SAME WAS TREATED AS INCOME OF THE ASSESSEE. ACCORDING TO THE LD.REPRESENTATIVE, IF A T ALL THERE IS ANY DEFICIENCY, IT HAS TO BE ADDED IN THE HANDS OF THE ASSESSEES WIFE AND NOT I N THE HANDS OF THE ASSESSEE. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSE SSEES WIFE IS HAVING AGRICULTURAL LAND AND RECEIVES AGRICULTURAL INCOME. THE DEFICIENCY F OUND IN THE CASH FLOW STATEMENT OF ASSESSEES WIFE WAS TREATED AS UNDISCLOSED INCOME I N THE HANDS OF THE ASSESSEE. NO MATERIAL WAS FOUND DURING THE COURSE OF SEARCH OPER ATION. THE ENTIRE ADDITION WAS MADE ON THE BASIS OF THE CASH FLOW STATEMENT FILED BEFORE THE ASSESSING OFFICER. AS RIGHTLY OBSERVED BY THE COMMISSIONER OF INCOME-TAX( A), IF AT ALL THERE IS ANY DEFICIENCY, THE SAME HAS TO BE CONSIDERED AS UNDISCLOSED INCOME OF THE ASSESSEES WIFE AND NOT AS UNDISCLOSED INCOME OF THE ASSESSEE. THEREFORE, THI S TRIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. WE UPHOLD THE OR DER OF THE COMMISSIONER OF INCOME- TAX(A). 10. THE NEXT GROUND OF APPEAL IS WITH REGARD TO DEL ETION OF ADDITION OF RS. 2,52,286 TOWARDS PERSONAL EXPENSES. 11. SHRI S.R. SENAPATI, THE LD.DR SUBMITTED THAT TH E ASSESSEE HAS DISCLOSED RS.4,69,714 AS HOUSEHOLD EXPENSES FOR THE BLOCK PER IOD. THE ASSESSING OFFICER FOUND THAT THIS IS ON THE LOWER SIDE. THEREFORE, HE ESTI MATED THE EXPENSES AT RS.7,22,000 AND THE DIFFERENCE OF RS.2,52,286 WAS ADDED AS UNDISCLO SED INCOME. ACCORDING TO THE LD.DR, 5 IT(SS)A NO.115 /COCH/2005 IT(SS)A NO.142/COCH/2005 THE ASSESSING OFFICER ESTIMATED THE COST OF LIVING AND OTHER EXPENSES ON THE BASIS OF THE LIFE STYLE. THEREFORE, THE COMMISSIONER OF INCOME- TAX(A) OUGHT NOT HAVE DELETED THE ADDITION. 12. ON THE CONTRARY, SHRI C.R. HARISH, THE LD.RPERE SENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS FAILED TO CONSIDER THE EXPENSES DISCLOSED BY THE ASSESSEE BY TAKING INTO CONSIDERATION THE LIFE STYL E OF THE FAMILY MEMBERS. NO SEIZED MATERIAL WAS FOUND DURING THE COURSE OF SEARCH OPER ATION. ACCORDING TO THE LD.REPRESENTATIVE, THE PERSONAL EXPENSES DISCLOSED BY THE ASSESSEE WERE OVER AND ABOVE THE INSURANCE PREMIUM, ADVANCE-TAX AND OTHER TAXES PAID. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, THE COMMISSIONER OF INCOME-TAX(A ) HAS RIGHTLY DELETED THE ADDITION. 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICE R REJECTED THE CLAIM OF THE ASSESSEE ONLY ON THE GROUND THAT THE PERSONAL EXPENSES SHOWN BY THE ASSESSEE IS VERY LOW. NO MATERIAL WAS FOUND DURING THE COURSE OF SEARCH OPER ATION WITH REGARD TO THE PERSONAL EXPENSES INCURRED BY THE ASSESSEE. IN THE ABSENCE OF ANY MATERIAL FOUND DURING THE COURSE OF SEARCH OPERATION THIS TRIBUNAL FIND THAT THERE CANNOT BE ANY ADDITION AS UNDISCLOSED INCOME. THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LOWER AUTHORITY. ACCORDINGLY THE SAME IS CONFIRMED. 14. THE NEXT GROUND OF APPEAL IS WITH REGARD TO DIR ECTION OF THE COMMISSIONER OF INCOME-TAX(A) TO VERIFY THE CONFIRMATION LETTER IN RESPECT OF LOAN OF RS.2 LAKHS. 15. WE HEARD THE LD.REPRESENTATIVES FOR THE REVENUE AND THE ASSESSEE. THE ASSESSEE HAS CLAIMED AN NRE LOAN TO THE EXTENT OF RS.2 LAKHS FROM ONE ABUTY. THE ASSESSING OFFICER TREATED THE SAME AS UNDISCLOSED INCOME. HO WEVER, THE COMMISSIONER OF INCOME-TAX(A) DIRECTED THE ASSESSING OFFICER TO VER IFY THE CONFIRMATION LETTER SAID TO BE FILED BY THE ASSESSEE AND OTHER DOCUMENTS FOR THE P URPOSE OF GENUINENESS. WHEN THE 6 IT(SS)A NO.115 /COCH/2005 IT(SS)A NO.142/COCH/2005 ASSESSEE FILED THE CONFIRMATION LETTER, IT IS THE D UTY OF THE ASSESSING OFFICER TO EXAMINE THE SAME. THE CREDITWORTHINESS, IDENTITY OF THE CR EDITOR AND GENUINENESS OF THE TRANSACTION HAS TO BE EXAMINED IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. ACCORDINGLY THE SAME IS CONFIRMED. 16. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE AND THE REVENUE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND JUNE, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 22 ND JUNE, 2012 PK/- COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH