D.C.I.T. 22(3), NAVI MUMBAI V. LATE SMT. DULARIDEVI JHA BY LEGAL HEIR SHRI RAMAKANT JHA, NAVI MUMBAI

ITSSA 26/MUM/2009

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9422 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 17-03-2010
• Assessment Year: misc
• Appeal Filed On: 02-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T T JACOB
• Assessee Lawyers: RAJESH B GUPTE
• Keywords: Difference of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, MUMBAI. BEFORE S/SHRI S.V.MEHROTRA, AM & R. S.PADVEKAR,JM I.T.(SS) A. NO.26/MUM/2009 BLOCK PERIOD 1.4.1989 TO 8.12.1999 THE DCIT 22(3), V. LATE SMT. DULARIDEVI JHA, TOWER NO.6, 3 RD FLOOR, VASHI RLY. STATION LEGAL HEIR SHRI RAMAKAN T JHA, COMPLEX, VASHI. 2, PARK VIEW SOCIETY, PARK AVEN UE, NAVI MUMBAI. SECTOR-17, NERUL, NAVI MUMBAI. PA NO.ACYPJ 3453 E (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI T.T.JACOB RESPONDENT BY : SHRI RAJESH B. GUPTE O R D E R PER S.V.MEHROTRA, AM THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER DATED 18.11.2008 OF LD CIT (A)-XXII, MUMBAI FOR THE BLOCK PERIOD 1.4.8 9 TO 8.12.1999. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN DELETING THE PENALTY LEVIED BY THE AO OF R S.4,34,771/- U/S.158BFA(2) OF THE I.T.ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD CIT (A) FAILED TO APPRECIATE THAT THE ASSESSEE WAS UNABLE T O PROVE OR SUBSTANTIATE THE FACT THAT THE INCOME AROSE FROM THE AGRICULTURA L LAND AND FROM THE AGRICULTURAL ACTIVITY DURING THE ASSESSMENTS AND PE NALTY PROCEEDINGS. 2. BRIEF FACTS OF THE CASE ARE THAT THE PROCEEDINGS U/S.158BD WERE TAKEN AGAINST THE ASSESSEE AND THE ASSESSMENT WAS COMPLETED AT A TOTA L INCOME OF RS.6,46,980/- AS AGAINST A SUM OF RS.NIL DISCLOSED IN THE BLOCK RETURN. FINAL LY, THE ADDITIONS MADE BY THE AO WERE IT(SS) A.26/M/2009 LATE SMT. DULARIDEVI JHA 2 UPHELD BY THE TRIBUNAL. THE ASSESSEES EXPLANATI ON IN THIS REGARD WAS THAT THE SAME WAS OUT OF HER AGRICULTURAL INCOME. HOWEVER, THE ASSESS EE WAS UNABLE TO PROVE THAT THE ACCUMULATED AMOUNT INDEED OUT OF AGRICULTURAL ACTIV ITY. THE AO, THEREFORE, LEVIED PENALTY U/S.158BFA(2). 3. BEFORE LD CIT (A), IT WAS SUBMITTED THAT THE ASS ESSEE WAS HAVING SUFFICIENT ANCESTRAL LAND IN HER NAME FROM WHERE AGRICULTURAL INCOME COULD HAVE BEEN EARNED. THE 7/12 EXTRACTS AND LAND REVENUE OFFICERS LETTER WER E ALL POINTERS TO THE FACT THAT THE ASSESSEE HAD INCOME FROM AGRICULTURE. IT WAS FURTH ER POINTED OUT THAT THE ASSESSEE WAS LIVING ALL ALONE AND WAS HAVING HUGE AMOUNT OF ANCE STRAL LAND HOLDING. HER ONLY SOURCE OF INCOME WAS THAT FROM AGRICULTURE. THE ASSESSEE HAD SPENT HER ENTIRE LIFE IN HER NATIVE PLACE AND THE ONLY AT THE FAG END OF HER LIFE, SHE CAME TO STAY WITH HER SON ALONGWITH HER SAVINGS AND KEPT THE SAME WITH HER SON. LD CIT (A ) DELETED THE PENALTY, INTER ALIA, OBSERVING AS UNDER:- .. THE AO HAS NOWHERE DOUBTED THE AGRICULTURAL LAN D HOLDINGS OR AGRICULTURAL INCOME OF THE APPELLANT WHILE LEVYING THE PENALTY ORDER. THE ONLY ISSUE DOUBTED IS THE QUANTUM OF AGRICULTURAL I NCOME GENERATED. THE AO HAS IN FACT STATED THAT THE APPELLANT HAS NOT BE EN ABLE TO PROVE GENERATION OF AGRICULTURAL INCOME TO COVER CASH FOU ND AND HAS THEREBY ACCEPTING THE AGRICULTURAL ACTIVITY OF THE APPELLAN T. AGGRIEVED, THE DEPARTMENT IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE REC ORD OF THE CASE. LD CIT (A) HAS RIGHTLY OBSERVED THAT THE AO HAS NOT DOUBTED THE AG RICULTURAL ACTIVITY BEING CARRIED OUT BY THE ASSESSEE. THE ASSESSEES EXPLANATION, HOWEVER, WAS NOT ACCEPTED ON THE GROUND THAT THE IMPUGNED AMOUNT COULD NOT BE GENERATED FROM THE AGRICULTURAL INCOME. THUS, THE QUANTUM OF AGRICULTURAL INCOME HAS PRIMARILY BEEN D ISPUTED BUT NOWHERE THE DEPARTMENT HAS POINTED OUT ANY OTHER SOURCE OF INCOME BEING AV AILABLE TO THE ASSESSEE. IT IS PRIMARILY A CASE WHERE THERE IS DIFFERENCE OF OPINION BETWEEN THE QUANTUM OF AGRICULTURAL INCOME BUT PER SE AGRICULTURAL ACTIVITY HAS NOT BEEN DOUBTED. THE AS SESSEES EXPLANATION WAS PLAUSIBLE AND MERELY BECAUSE THE SAME HAS NOT BEEN ACCEPTED DOES NOT AUTOMATICALLY ATTRACT PENAL PROVISIONS. THE ASSESSEES EXPLANATI ON HAS NOT BEEN FOUND TO BE FALSE IN ANY IT(SS) A.26/M/2009 LATE SMT. DULARIDEVI JHA 3 MANNER. UNDER SUCH CIRCUMSTANCES, THE ASSESSEE CAN NOT BE SADDLED WITH PENALTY. WE, ACCORDINGLY, DELETE THE PENALTY LEVIED U/S. 158BFA( 2) OF THE ACT. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. PRONOUNCED ON 22 ND MARCH, 2010 SD/- (R.S.PADVEKAR) (JUDICIAL MEMBER) SD/- (S.V. MEHROTRA) (ACCOUNTANTMEMBER) MUMBAI, DATED 22 ND MARCH , 2010 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)-, MUMBAI 4. COMMISSIONER OF INCOME TAX, CITY-, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH D, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI IT(SS) A.26/M/2009 LATE SMT. DULARIDEVI JHA 4 DATE INITIALS 1. DRAFT DICTATED ON 17.3.2010 PS 2. DRAFT PLACED BEFORE AUTHOR 17..3.2010 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM/JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/J M 5. APPROVED DRAFT COMES TO THE SR. PS PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER IT(SS) A.26/M/2009 LATE SMT. DULARIDEVI JHA 5