MRS.USHA UMESH MISHRA, MUMBAI V. INCOME TAX OFFICER 31(3)(2), MUMBAI

MA 613/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7889 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-08-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 05-12-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Rectification of order; Opportunity of being heard; Principle of natural justice
• Section: 254(2); 68

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI PAVANKUMAR GADALE ( JM) M.A. NO. 613/MUM/2019 ARISING OUT OF I.T.A. NO. 2003/MUM/2018 (ASSESSMENT YEAR 2012-13) MRS. USHA UMESH MISHRA 1801, AMBROSIA, ORCHARD AVENUE, HIRANANDANI GARDENS, POWAI MUMBAI-400 076. PAN : ADSPM7580Q VS. ITO-31(3)(2) CGO BUILDING PRATISHTHA BHAVAN, NEW MARINE LINES M.K. ROAD MUMBAI-20. (APPELLANT) (RESPONDENT) ASSESSEE BY NONE DEPARTMENT BY MS. SMITA VERMA DATE OF HEARING 27.08.2021 DATE OF PRONOUNCEMENT 30.08.2021 O R D E R PER SHAMIM YAHYA (AM) :- BY WAY OF THIS MISCELLANEOUS APPLICATION ASSESSEE SEEKS RECTIFICATION OF MISTAKE APPARENT FROM RECORD UNDER SECTION 254(2) O F THE I.T. ACT IN THE ORDER OF THE ITAT IN ITA NO. 2003/MUM/2018 FOR ASSESSMENT YEAR 2012-13 VIDE ORDER DATED 5.4.2019. 2. DESPITE SEVERAL NOTICES NOBODY IS APPEARING IN T HIS CASE AND THE MISCELLANEOUS APPLICATION IS PENDING FOR THE PAST F OUR YEARS. HENCE, WE PROCEED TO DECIDE THIS MISCELLANEOUS APPLICATION BY HEARING LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSING RECORD. TH E ITAT IN THE AFORESAID ORDER HAS CONFIRMED THE ORDER OF LEARNED CIT(A) WHE REIN ASSESSEES CLAIM OF AGRICULTURAL INCOME WAS REJECTED AND ADDITION WAS M ADE UNDER SECTION 68 OF THE ACT. THE SAID DECISION WAS RENDERED AFTER DULY HEARING BOTH THE PARTIES. IN MISCELLANEOUS APPLICATION ASSESSEES SUBMISSION ARE AS UNDER :- 1) AGRICULTURE INCOME DISALLOWED OF RS.2,270,601/- FOR NO REASON WRITTEN SUBMISSION AND RELEVANT DOCUMENTS SUBMITTED. MRS. USHA UMESH MISHRA 2 2) UNDER THE CIRCUMSTANCES, IT IS HUMBLY SUBMITTED THA T THE APPLICANT MAY BE GIVEN OPPORTUNITY OF BEING HEARD ONLY BY RECALLIN G THE IMPUGNED ORDER, IT IS SUBMITTED WITH GREAT RESPECT THAT KEEPING WITH THE STA TUTORY RESPECT THAT IN KEEPING WITH STATUTORY PRINCIPLE OF NATURAL JUSTICE THE IMPUGNED ORDER MAY BE RECALLED AND THE APPEAL MAY BE FIXED AGAIN FO R FRESH HEARING. 3. WE NOTE THAT THE ASSESSEES PLEA IN THE AFORESAI D MISCELLANEOUS APPLICATION IS TOTALLY UNSUSTAINABLE. THE ITAT HAS PASSED THE ORDER AFTER CONSIDERING SUBMISSIONS OF BOTH THE PARTIES AND CON CLUSION OF THE ORDER IN THIS REGARD MAY BE GAINFULLY REFERRED AS UNDER : 5. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RE CORDS. LEARNED COUNSEL OF THE ASSESSEE REITERATED THE SUBMISSIONS M ADE BEFORE LEARNED CIT(A). HE SUBMITTED THAT EVIDENCE IN THE FORM OF 7/12 EXTRACT ARE THERE. HOWEVER, LEARNED COUNSEL OF THE ASSESSEE COULD NOT P RODUCE ANY OTHER EVIDENCE IN SUPPORT OF THE CLAIM OF AGRICULTURAL INCO ME. 6. PER CONTRA LEARNED DEPARTMENTAL REPRESENTATIVE SUBM ITTED THAT THERE IS NO COGENT EVIDENCE WHATSOEVER FOR THE CLAIM OF AGRI CULTURAL INCOME. HE SUBMITTED THAT THE AUTHORITIES BELOW HAVE RIGHTLY REJECT ED THE CLAIM OF THE ASSESSEE REGARDING THAT INCOME. 7. UPON CAREFUL CONSIDERATION WE FIND THAT ASSESSING THIS CASE IS CLAIMING THAT ASSESSEE ALONGWITH HER FAMILY MEMBERS ARE HOLDING HUGE AMOUNT OF LAND. THAT THEY HAVE GIVEN THE TASK TO A PERSON NAMED B ABLU TO PERFORM AGRICULTURAL ACTIVITY. 8. THAT THE SAID PERSON DOES ALL THE WORK AND INCURS EXPENDITURE AND AFTER DEDUCTING THE EXPENSE DEPOSITS THE NET RECEIPTS IN ASSESSEES BANK ACCOUNT. WE FIND THAT THIS IS ONLY A SELF SERVING STA TEMENT. NOT AN IOTA OF EVIDENCE IS ON RECORD REGARDING THE PERFORMANCE OF A GRICULTURAL ACTIVITY OR EXPENDITURE OR SALE OF THE AGRICULTURE PRODUCE. WE FIN D THAT LEARNED CIT(A) HAS CORRECTLY PLACED RELIANCE UPON A CATENA OF CASE L AWS. HE ALSO REFERRED TO ITAT DECISION IN ASSESSEES OWN GROUP CASE WHEREIN SUCH CLAIM OF AGRICULTURAL INCOME WAS REJECTED. ITAT DECISION AS REFERRED IN PARA 4.2.10 IN CIT(A)S ORDER ABOVE FINDS THAT AFTER THE PURCHASE O F LAND FOR RS. 37,30,007/- THE ASSESSEE HAS SHOWN RETURN OF AGRICULTURAL INCOME IN JUST TWO YEARS MORE THAN THE AMOUNT INVESTED IN LAND. THE ASSESSEE HERE IS SHOWING A SPECIFIC AMOUNT OF AGRICULTURAL INCOME BUT IS NOT GIVING THE DE TAILS. IT IS CLEARLY AN UNEXPLAINED DEPOSIT IN BANK WHICH HAS BEEN GIVEN THE GARB OF AGRICULTURAL INCOME. ACCORDINGLY, WE ARE OF THE CONSIDERED OPIN ION THAT ASSESSEES CLAIM OF AGRICULTURAL INCOME IS TOTALLY BOGUS AND NOT AT ALL SUSTAINABLE IN LAW. 9. IN THE BACKGROUND OF AFORESAID DISCUSSION AND PR ECEDENT WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LEARNED CIT(A). MRS. USHA UMESH MISHRA 3 4. FROM THE ABOVE IT IS APPARENT THAT BY WAY OF MIS CELLANEOUS APPLICATION ASSESSEE IS SEEKING REVIEW OF THE ORDER OF THE ITAT WHICH IS NOT SUSTAINABLE IN LAW. HENCE, THIS MISCELLANEOUS APPLICATION BY THE A SSESSEE STANDS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 30.8.2021. SD/- SD/- (PAVANKUMAR GADALE) (SHAM IM YAHYA) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI; DATED : 30/08/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI