Shri Jayantilal K.Talesara, Surat v. The Income tax Officer,Ward-2(3),, Surat

ITA 1217/AHD/2010 | 2006-2007
Pronouncement Date: 22-09-2010 | Result: Allowed

Appeal Details

RSA Number 121720514 RSA 2010
Assessee PAN ACMPT9814H
Bench Ahmedabad
Appeal Number ITA 1217/AHD/2010
Duration Of Justice 5 month(s) 2 day(s)
Appellant Shri Jayantilal K.Talesara, Surat
Respondent The Income tax Officer,Ward-2(3),, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 22-09-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 22-09-2010
Date Of Final Hearing 14-09-2010
Next Hearing Date 14-09-2010
Assessment Year 2006-2007
Appeal Filed On 19-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER DATE OF HEARING : 14/ 09 /2010 DRAFTED ON: 17/09/2010 ITA NO.1217/AHD/2010 ASSESSMENT YEAR : 2006-07 JAYANTILAL K.TALESARA E-2 PANCHRATNA GARDEN APARTMENT NR.BOMBAY MARKET UMARWADA SURAT VS. THE INCOME TAX OFFICER WARD-2(3) AYAKAR BHAVAN MAJURA GATE SURAT PAN/GIR NO. : ACMPT 9814 H ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : - NONE - RESPONDENT BY: SHRI S.K. JHA SR. D.R. O R D E R THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE W HICH HAS EMANATED FROM THE ORDER OF THE LEARNED CIT(APPEALS) -II SURAT DATED 11/01/2010 PASSED FOR ASSESSMENT YEAR 2006-07. TH E SOLITARY GROUNDS IN THIS APPEAL READS AS FOLLOWS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS.1 15 000/- IN RESPECT OF AGRICULTURAL INCOMES TR EATED AS INCOME FROM UNDISCLOSED SOURCES WHICH IS ABSOLUTEL Y ERRONEOUS AND NEEDS TO BE DELETED IN THE INTEREST O F NATURAL JUSTICE AND EQUITY. 2. AT THE OUTSET IT IS WORTH TO MENTION THAT AN AD JOURNMENT APPLICATION WAS MOVED FROM THE SIDE OF THE REPRESEN TATIVE OF THE ASSESSEE SEEKING TIME MERELY ON THE GROUND THAT THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE WAS SAID TO BE BUSY IN TAX AUDIT WORK. I ITA NO.1217/AHD /2010 JAYANTILAL K.TALESARA VS. ITO ASST.YEAR - 2006-07 - 2 - AM NOT CONVINCED WITH THE REASONING GIVEN IN THE AD JOURNMENT APPLICATION. I HAVE NOTICED THAT IN THE PAST AS W ELL THE SAME LEARNED REPRESENTATIVE OF THE ASSESSEE HAS MOVED AN APPLICA TION DATED 18/08/2010 WHICH WAS ACCEPTED BY THE ITAT AHMEDABAD BENCH AND ON 20 TH OF AUGUST-2010 ADJOURNMENT WAS GRANTED. THE CASE WAS AGAIN FIXED FOR HEARING AND THE NOTICE WAS ISSUED WELL IN TIME FIXING THE DATE OF HEARING ON 14/09/2010. AS NOTED SUPRA NOTED BY M E THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAS NOT F ILED ANY COMPILATION AS URGED EARLIER AND MADE AN EXCUSE THAT ON ACCOUNT OF SOME OTHER PROFESSIONAL ENGAGEMENTS THE CASE MAY BE ADJOURNED . WITH PAIN I HAVE TO EXPRESS THAT SUCH A CALLOUS AND A CASUAL APPROAC H OF A PROFESSIONAL WHO IS ENGAGED BY AN APPELLANT MUST NOT BE ENCOURAG ED BECAUSE A HIGHLY QUALIFIED PROFESSIONAL IS ENGAGED WITH THE HOPE AND EXPECTATION THAT THE COMPLIANCE SHOULD BE MADE BY HIM BEFORE ALL THE AUT HORITIES WITH PROMPTNESS AS PER LAW. MERELY FILING OF REPETITI VE ADJOURNMENTS DO NOT SETTLE THE DISPUTE. AS OBSERVED IN ONE OF THE LAND MARK DECISION BY A HIGH COURT THE CORRIDORS OF THE COURT ARE ALREADY FULL OF LITIGATION AND THE COURTS ARE OVER-BURDENED BECAUSE OF HUGE PENDENCY. CONSIDERING THE SMALLNESS OF THE DISPUTE AS ARISEN FROM THE GROUND REPRODUCED ABOVE I DEEM IT PROPER NOT TO GRANT ADJOURNMENT BUT TO PROC EED WITH THE CASE TO DECIDE ON MERITS EX-PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE. 3. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3) OF THE I.T. ACT 1961 DATED 04/1 2/2008 WERE THAT THE ASSESSEE IN HIS INDIVIDUAL CAPACITY HAS DISCLOSED INCOME AND FILED THE ITA NO.1217/AHD /2010 JAYANTILAL K.TALESARA VS. ITO ASST.YEAR - 2006-07 - 3 - RETURN UNDER THE PROVISIONS OF SECTION 44AF OF THE I.T. ACT 1961. THE APPELLANT HAS DISCLOSED AN AGRICULTURAL INCOME OF R S.1 15 100/-. THE APPELLANT WAS ASKED TO FURNISH THE NATURE OF CROP YIELD AND THE WHEREABOUTS OF THE AGRICULTURAL LAND. IN COMPLIAN CE IT WAS INFORMED THAT THE APPELLANT HAD AN AGRICULTURAL AT VILLAGE S AYMOND DIST: UDAIPUR. IT WAS ALSO STATED THAT THE AGRICULTURAL LAND BELON GED TO HIS FATHER. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AP PELLANT WAS NOT ABLE TO FURNISH FURTHER DETAILS OR EVIDENCES. ON ACCOU NT OF THE FAILURE ON THE PART OF THE ASSESSEE THE IMPUGNED AGRICULTURAL INC OME WAS STATED AS INCOME FROM UNDISCLOSED SOURCES AND TAXED ACCORDING LY. 4. BEFORE THE FIRST APPELLATE AUTHORITY THE APPELL ANT HAS FURNISHED AN EXPLANATION; REPRODUCED BELOW:- 5. IN THE WRITTEN SUBMISSION IT HAS BEEN CONTEND ED BY THE AR THAT THE ASSESSEE POSSESSED ANCESTRAL AGRICULTURAL LAND FOR SEVERAL YEARS. AS EVIDENCE A COPY OF THE FAMILY PARTITION DEED HAD BEEN FURNISHED. THE ASSESSEE ALSO HAD HIS OWN LAND WHIC H WAS PURCHASED IN THE YEAR 2000-01 IN SUPPORT OF WHICH THE PURCHASE DEED HAD BEEN FURNISHED. IT HAS BEEN CLAIMED THAT THE AGRICULTURAL ACTIVITY BEING AN UNORGANIZED ACTIVITY NO RECORDS WERE MAINTAINED BY THE ASSESSEE. THE ASSESSEE LIVES IN SURAT AND I S ENGAGED IN BUSINESS ACTIVITIES. HIS LAND HAD BEEN GIVEN TO A FARMER WHO SOLD THE AGRICULTURE PRODUCE AND AFTER DEDUCTING ALL TH E EXPENSES INCURRED GAVE THE NET SUM TO THE ASSESSEE. THE AR HAS ENCLOSED THE COPY OF AN AFFIDAVIT OF ONE SHRI SOHANLAL VARDI CHAND PALIWAL DECLARING THAT HE HAD CULTIVATED THE AGRICULTURAL L AND BELONGIGNG TO THE ASSESSEE AND THAT HE HAD GIVEN A SUM OF RS. 1.15 LACS TO THE ASSESSEE AS HIS 50% SHARE FOR THE FINANCIAL YEAR 20 05-06. THE AR HAS THEREFORE ARGUED THAT THE AO WAS NOT JUSTI FIED IN TREATING THE AGRICULTURAL INCOME OF RS.1 15 000 AS INCOME FR OM UNDISCLOSED SOURCES. ITA NO.1217/AHD /2010 JAYANTILAL K.TALESARA VS. ITO ASST.YEAR - 2006-07 - 4 - 4.1. HOWEVER LEARNED CIT(APPEALS) WAS NOT CONVINC ED AND IN HIS OPINION THOSE FRESH EVIDENCES COULD NOT BE ENTERTA INED BEING NOT WITHIN THE AMBITS PRESCRIBED UNDER THE RULE 46A OF THE RUL ES 1962. IT WAS HELD BY THE LEARNED CIT(APPEALS) THAT SIMPLY BECAUSE THE AGRICULTURAL ACTIVITY IS AN UNORGANIZED ACTIVITY IT DOES NOT MEAN THAT T HE TAXPAYER IS NOT REQUIRED TO MAINTAIN ANY RECORD. BY ASSIGNING THO SE REASONS THE LEARNED CIT(APPEALS) HAS AFFIRMED THE ACTION OF THE ASSESSING OFFICER. 5. FROM THE SIDE OF THE REVENUE LEARNED DEPARTMENT AL REPRESENTATIVE MR.S.K.JHA HAS SUPPORTED THE ORDERS OF THE ASSESSING OFFICER AND LEARNED CIT(APPEALS). HIS MAIN PLANK O F ARGUMENT WAS THAT THE APPELLANT HAS CHOSEN NOT TO FURNISH THE REQUISI TE DETAILS BEFORE THE ASSESSING OFFICER HOWEVER PLACED FRESH EVIDENCE BEFORE THE LEARNED CIT(APPEALS) WITHOUT ASSIGNING ANY COGENT REASON WH Y THOSE EVIDENCES WERE NOT FILED BEFORE THE ASSESSING OFFICER THEREF ORE RIGHTLY REJECTED AND NOT ENTERTAINED BY THE LEARNED CIT(APPEALS). IN THE ABSENCE OF SUPPORTING EVIDENCES THE ALLEGED AGRICULTURAL INCOM E WAS CORRECTLY TAXED IN THE HANDS OF THE ASSESSEE. 6. I HAVE PERUSED THE ORDERS OF THE AUTHORITIES BEL OW. IT APPEARS THAT THE APPELLANT DID NOT GET SUFFICIENT TIME OF PROPER COMPLIANCE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THOUGH HIS STATE MENT WAS RECORDED U/S.131 OF THE I.T. ACT 1961 ON 23/10/2008 AND TH EREAFTER A SHOW-CAUSE NOTICE WAS ISSUED ON 19/11/2008 BUT THE ASSESSMENT WAS COMPLETED ON 04/12/2008 DURING THAT PERIOD THE ASSESSEE HAS S OUGHT FURTHER TIME AS ALSO ACCEPTED HIS IGNORANCE ABOUT THE LEGAL KNOWLE DGE. ON ACCOUNT OF ITA NO.1217/AHD /2010 JAYANTILAL K.TALESARA VS. ITO ASST.YEAR - 2006-07 - 5 - THE SAID REASON THE APPELLANT HAS TRIED TO MAKE HI S CASE BEFORE THE FIRST APPELLATE AUTHORITY BY FURNISHING FEW EVIDENCES S UCH AS FAMILY PARTITION-DEED TO DEMONSTRATE THE POSSESSION OF AGR ICULTURAL LAND. HE ALSO FURNISHED THE PURCHASE-DEED OF AGRICULTURAL LA ND IN THE YEAR 2000-01. THE APPELLANT HAS ALSO FURNISHED AN AFFIDAVIT OF ON E SHRI SOHANLAL VARDICHAND PALIWAL WHO WAS SAID TO BE A FARMER CULT IVATING THE AGRICULTURAL LAND OF THE ASSESSEE. THE SAID DEPON ENT HAS STATED ON OATH THAT HE WAS ENTRUSTED AGRICULTURAL LAND BELONGING T O THE ASSESSEE AND OUT OF THE AGRICULTURAL CROP A SUM OF RS.1 15 000/- WAS GIVEN TO THE ASSESSEE. SINCE ALL THOSE EVIDENCES WERE NOT ADJUDICATED BY T HE LEARNED CIT(APPEALS) IN THE PRETEXT OF THE PROVISIONS OF RU LE 46A THEREFORE THE MAIN PLANK OF ARGUMENT IN SUPPORT OF EARNING OF AGR ICULTURAL INCOME REMAINED UNADJUDICATED. AS FAR AS THE PROVISIONS OF RULE 46A OF THE RULES 1962 ARE CONCERNED THE FIRST APPELLATE AUTH ORITY IS OTHERWISE AUTHORIZED TO ENTERTAIN FRESH EVIDENCE IF DEEM FIT AND AS PER LAW BUT THE CONDITION IS THAT BEFORE ENTERTAINING ANY FRESH DOC UMENTARY OR ORAL EVIDENCE IT IS OBLIGATORY ON THE PART OF THE LEARN ED CIT(APPEALS) TO CONFRONT THOSE EVIDENCES TO ASSESSING OFFICER. IN THE PRESENT CASE THIS RECOURSE WAS NOT FOLLOWED. THE EVIDENCES WHICH WE RE CLAIMED TO HAVE BEEN FURNISHED BEFORE THE LEARNED CIT(APPEALS) ARE YET TO BE INVESTIGATED AND TO BE ADJUDICATED UPON. I THERE FORE FEEL THAT THE NATURAL JUSTICE DEMANDS TO RESTORE THIS ISSUE BACK TO THE STAGE OF THE LEARNED CIT(APPEALS) SO THAT THOSE EVIDENCES CAN B E FURNISHED BY THE ASSESSEE FOR THE PURPOSE OF PROPER INVESTIGATION A S PER THE DIRECTIONS. I ALSO DIRECT THIS APPELLANT TO APPROACH THE LEARNED CIT(APPEALS) WITHIN 15 DAYS ON RECEIPT OF THIS ORDER SUO MOTU WITHOUT WAITING FOR ANY NOTICE ITA NO.1217/AHD /2010 JAYANTILAL K.TALESARA VS. ITO ASST.YEAR - 2006-07 - 6 - OF HEARING AND PRESET HIMSELF ALONG WITH ALL THOSE EVIDENCES. NEEDLESS TO MENTION THE LEARNED CIT(APPEALS) IS OTHERWISE FULLY EMPOWERED TO ACT AS PER LAW AFTER RECEIVING THIS ORDER. SINCE THE MATTER HAS BEEN RESTORED BACK FOR RE-ADJUDICATION AS PER LAW THER EFORE THIS GROUND MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS TREA TED AS ALLOWED ONLY FOR STATISTICAL PURPOSES. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 22/ 09/2010. SD/- ( MUKUL KR. SHRAWAT ) JUDICIAL MEMBER AHMEDABAD; DATED 22 ND SEPT-2010 T.C. NAIR SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-II SURAT 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD ITA NO.1217/AHD /2010 JAYANTILAL K.TALESARA VS. ITO ASST.YEAR - 2006-07 - 7 - 1. DATE OF DICTATION..14/09/2010 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 22/09/2010 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 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. 22/09/2010 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 22/09/2010 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER