Miss Gurmit Singh Mann,, Kangra v. DCIT,, Palampur

ITA 137/CHANDI/2010 | 2004-2005
Pronouncement Date: 22-10-2010 | Result: Partly Allowed

Appeal Details

RSA Number 13721514 RSA 2010
Assessee PAN AEEPM0171L
Bench Chandigarh
Appeal Number ITA 137/CHANDI/2010
Duration Of Justice 8 month(s) 19 day(s)
Appellant Miss Gurmit Singh Mann,, Kangra
Respondent DCIT,, Palampur
Appeal Type Income Tax Appeal
Pronouncement Date 22-10-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 22-10-2010
Date Of Final Hearing 27-08-2010
Next Hearing Date 27-08-2010
Assessment Year 2004-2005
Appeal Filed On 03-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI G.S.PANNU ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA JUDICIAL MEMBER ITA NOS.134 TO 140/CHD/2010 ASSESSMENT YEARS: 2001-02 TO 2007-08 SHRI GURMIT SINGH MANN VS. THE DCIT C/O M/S DHARAMSHALA TEA COMPANY CIRLCE PALAMPUR KANGRA PAN NO. AEEPM0171L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI J.S.BHASIN RESPONDENT BY: SMT.JAISHREE SHARMA ORDER PER SUSHMA CHOWLA JM THESE SEVEN APPEALS BY THE ASSESSEE ARE AGAINST TH E SEPARATE ORDERS OF CIT(A) SHIMLA ALL DATED 30.11.2009 RELATING TO A SSESSMENT YEARS 2001- 02 TO 2007-08 AGAINST THE ORDER PASSED UNDER SECTIO N 153A READ WITH SECTION 143(3) OF THE I.T. ACT. 2. ALL THE APPEALS OF THE ASSESSEE HAVING IDENTICAL GROUNDS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLID ATED ORDER FOR THE SAKE OF CONVENIENCE 3. THE ASSESSEE HAS RAISED THE FOLLOWING COMMON GRO UNDS OF APPEAL IN ASSESSMENT YEARS 2001-02 TO 2005-06. 2 1. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN TAKING A V IEW OF HER OWN THAT MANDATORY PRIOR APPROVAL OF ADDL CI T U/S 153D WAS TAKEN IN THIS CASE ON 31.12.2008 THOU GH IT WAS NOT MENTIONED IN THE ASSTT. ORDER PASSED ON THE SAME DATE. 2. THAT THE LD. CIT(A) ERRED IN SUSTAINING THE ADDITIO N OF RS. 1 32 600/- OUT OF TOTAL ADDITION OF RS. 2 54 60 0/- (ASSESSMENT YEAR 2001-02) MADE BY LD. ASSESSING OFFICER ON ERRONEOUS AND INADEQUATE GROUNDS. 3. THAT FOR WANT OF PROPER OPPORTUNITY GIVEN TO ASSESS EE TO REBUT THE COMMENTS OF THE LD. ASSESSING OFFICER NO COGNIZANCE OF THE SAME COULD BE TAKEN . 4. THE ASSESSEE HAS ALSO RAISED THE OTHER GROUNDS I N ADDITION TO THE COMMON GROUNDS OF APPEAL IN ASSESSMENT YEARS 2006-0 7 AND 2007-08 WHICH SHALL BE DEALT BY US IN LATER. 5. THE GROUND NO.1 RAISED BY THE ASSESSEE IN ALL TH E YEARS UNDER APPEAL INCLUDING THE ASSESSMENT YEARS 2006-07 AND 2007-08 HAS NOT BEEN PRESSED BY THE LD. AR FOR THE ASSESSEE AND THE SAME IS DIS MISSED AS NOT PRESSED. 6. THE ISSUE IN GROUND NOS. 2 & 3 RAISED BY THE ASS ESSEE IS AGAINST THE ADDITION MADE ON ACCOUNT OF DEPOSITS IN BANK ACCOUN T AS INCOME FROM OTHER SOURCES BY NOT ACCEPTING THE PLEA OF THE ASSE SSEE THAT THE SAME IS INCOME FROM ORCHARD IN THE RELEVANT YEARS. THE FAC TS IN ALL THE YEARS ARE IDENTICAL HOWEVER REFERENCE IS MADE TO FACTS IN A SSESSMENT YEAR 2001-02 FOR ADJUDICATING THE ISSUE. 3 7. THE BRIEF FACTS OF THE CASE ARE THAT THE PURSUAN T TO THE SEARCH ON 21.3.2007 ON GROUP OF CASES OF M/S SIMBHAOLI SUGAR MILLS LTD. NOTICE U/S 153A OF THE ACT WAS ISSUED AND THE ASSESSEE WAS REQ UISITIONED TO FILE THE RETURNS OF INCOME. THE ASSESSEE WAS THE CHAIRMAN A ND MANAGING DIRECTOR OF THE SAID COMPANY AND HIS RESIDENTIAL PREMISES IN NEW DELHI WERE ALSO SEARCHED. VARIOUS DOCUMENTS WERE FOUND AND SEIZED FROM THE DEFENCE COLONY RESIDENCE OF THE ASSESSEE AND ALSO FROM THE FACTORY UNIT. THE ASSESSEE IN ASSESSMENT YEAR 2001-02 HAD DECLARED IN COME FROM SALARY INCOME FROM OTHER SOURCES AND INCOME FROM AGRICULTU RE. IN RESPONSE TO NOTICE U/S 153A OF THE ACT SAME INCOME WAS DISCLOSE D BY THE ASSESSEE. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS TH E ASSESSEE WAS REQUIRED TO PROVE THE AGRICULTURAL INCOME DISCLOSED IN THE RETURN OF INCOME IN VARIOUS ASSESSMENT YEARS ALONG WITH THE D ETAILS AS TO WHEN THE AGRICULTURAL LAND WAS ACQUIRED. THE ASSESSEE WAS ALSO REQUISITIONED TO FURNISH DESCRIPTION OF AGRICULTURAL HOLDINGS IN THE NAMES OF OTHER MEMBERS OF HIS FAMILY. THE ASSESSEE WAS ALSO ASKED TO FUR NISH THE LIST OF ASSETS AND LIABILITIES AND EXPLAIN THE SOURCES OF DEPOSITS IN THE SAVING BANK ACCOUNT WITH SBI HAPUR IN THE NAME OF SMT. GURJIV AN KAUR MANN THE DECEASED MOTHER OF THE ASSESSEE. IT WAS EXPLAINED BY THE ASSESSEE THAT HIS MOTHER WAS NOT ASSESSED TO TAX AND THE DEPOSITS WER E MADE FROM HER AGRICULTURAL INCOME. THE ASSESSEE WAS ALSO ASKED T O EXPLAIN WHY THE SAID BANK ACCOUNTS IN THE NAME OF HIS MOTHER BE NOT PRE SUMED AS A BENAMI OF THE ASSESSEE AND THE DEPOSITS IN THE SAID BANK ACCO UNTS BE NOT ADDED IN THE HANDS OF THE ASSESSEE. THE ASSESSING OFFICER NOTED THE MOTHER OF THE ASSESSEE TO HAVE MADE DEPOSITS IN TWO ACCOUNTS ONE WITH SBI AND THE SECOND WITH PNB HAPUR. THE CASH DEPOSIT IN THE AB OVE SAID ACCOUNTS WERE CLAIMED TO BE INCOME FROM ORCHARD AND AGRICULT URAL INCOME. THE EXPLANATION OF THE ASSESSEE WAS THAT HIS MOTHER WAS HAVING A TEA ESTATE AT 4 VILLAGE TOWA TEHSIL DHARAMSHALA AND 7 BIGAS AND 13 BISWAS IN VILLASGE SALONI DISTRICT GHAZIABAD. THE TEA ESTATE AS PER HER WILL WAS BEQUEATHED TO THE ASSESSEE AND THE LAND AT VILLAGE SALONI TO H ER GRAND DAUGHTER I.E. DAUGHTER OF THE ASSESSEE BEFORE US. NO ASSETS WERE BEQUEATHED TO THE SISTER OF THE ASSESSEE. THE ASSESSEE HAD FURNISHED THE DETAILS OF EARNINGS FROM THE AGRICULTURAL LAND IN THE NAME OF HIS MOTHE R FOR THE CAPTIONED YEARS AND THE CLAIM WAS THAT OUT OF THE SAID EARNIN GS AMOUNTS WERE DEPOSITS IN SBI BANK FROM YEAR TO YEAR. THE SAID D ETAILS ARE INCORPORATED UNDER PARA 16 IN THE ASSESSMENT ORDER. THE ASSES SING OFFICER ON THE PERUSAL OF THE SAID DETAILS WAS OF THE OPINION THAT THE EARNING SHOWN FROM THE LAND AT SALONI APPEARED TO BE EXAGGERATED. THE ASSESSING OFFICER FURTHER FOUND THE LAND OF ONLY SEVEN BIGHAS PURCHAS ED ON 9.6.1993 AND THE OTHER PORTIONS OF THE LAND AS PER THE ASSESSING OFF ICER WERE PURCHASED IN THE YEAR 2006-07. THE ASSESSING OFFICER FURTHER F ROM THE KISAN BAHI ENCLOSED FOR LAND AT SALONI OBSERVED THAT THERE WAS NO ORCHARD ON THIS LAND AND IT WAS PURELY AGRICULTURAL LAND. THE ASS ESSING OFFICER CONSIDERED THE AGREEMENTS BETWEEN THE MOTHER OF THE ASSESSEE AND THE THIRD PARTY UNDER WHICH THE LADY HAD AGREED TO SELL MANGO CROP FOR A PERIOD TO TWO YEARS FROM SEPT 2000 TO AUGUST 2002. REJECTING THE EXPLANATION OF THE ASSESSEE THE ASSESSING OFFICER OBSERVED THAT THE LAND OWNED BY THE MOTHER COULD AT MOST FETCH RS. 50 000/ - PER ANNUM AND CONSEQUENTLY THE DEPOSITS IN SBI HAPUR WERE HELD T O BE UNACCOUNTED INCOME OF THE ASSESSEE. IN ASSESSMENT YEAR 2001- 02 A SUM OF RS. 3 04 600/- WAS DEPOSITED IN SBI ACCOUNT HENCE THE REMAINING INCOME OF RS. 2 54 600/- WAS TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE. SIMILAR ADDITION WAS MADE IN THE OTHER YEARS ON ACC OUNT OF DEPOSITS IN THE SAID BANK ACCOUNT WHICH ARE ALSO CHALLENGED BY THE ASSESSEE BEFORE US. 5 8 DURING THE COURSE OF APPELLATE PROCEEDINGS THE CIT(A) RECEIVED THE COMMENTS OF THE ASSESSING OFFICER ON THE WRITTEN SU BMISSIONS FILED BY THE ASSESSEE WHICH IN TURN WERE PROVIDED TO THE ASSE SSEE FOR HIS REBUTTAL AND IN THE ABSENCE OF ANY REJOINDER BY THE ASSESSEE T HE CIT(A) PRESUMED THAT THE ASSESSEE HAD NOTHING TO SAY IN THE MATTER. THE CIT(A) CONSIDERED THE DOCUMENTARY EVIDENCE FURNISHED BY THE ASSESSEE BEIN G AN UNREGISTERED AGREEMENT DATED 2.3.2001 FOR A PERIOD OF TWO YEARS AND OBSERVED THAT THE INCOME FOR ONE YEAR COMES TO RS. 1 72 000/- FROM LA ND AT SALONI. IN THE ABSENCE OF ANY RECEIPTS OF AGRICULTURAL INCOME THE CREDIT WAS RESTRICTED TO RS. 1 72 000/- IN ASSESSMENT YEAR 2001-02 AND RS. 1 44000/- IN ASSESSMENT YEAR 2002-03 AS AGAINST ADDITION OF RS. 3 04 600/- MADE BY THE ASSESSING OFFICER IN ASSESSMENT YEAR 2001-02 AND RS. 144000/- IN ASSESSMENT YEAR 2002-03. THE ADDITION IN THE BALANCE YEARS WERE U PHELD IN THE ABSENCE OF ANY OTHER DOCUMENTARY EVIDENCE OF RECEIPT OF AGRICU LTURAL INCOME. THE ASSESSEE IN APPEAL BEFORE US AGAINST THE SAID ADD ITION. 9. THE MAIN GRIEVANCE OF THE ASSESSEE WAS THAT SUFFICIENT OPPORTUNITY WAS NOT AFFORDED TO THE ASSESSEE BY THE CIT(A) TO REBUT THE COMMENTS OF THE ASSESSING OFFICER AND AS SUCH THE SAME CANNOT B E GIVEN ANY COGNIZANCE. THE ASSESSEE HAS ALSO MOVED AN PETITIO N UNDER RULE 29 OF THE I.T. RULES FOR ADMISSION OF ADDITIONAL EVIDENCE BEI NG THE MAP SHOWING PHYSICAL LOCATION OF AGRICULTURAL LAND / ORCHARD HE LD BY THE ASSESSEE AND HIS MOTHER AT VILLAGE SALONI COPY OF WHICH IS ENCL OSED AT PAGE 64 OF THE PAPER BOOK AND COPIES OF KHASRA NO IN RESPECT OF AG RICULTURAL LAND HELD BY HIS MOTHER AT VILLAGE SALONI SHOWING DESCRIPTION OF CROPS SOWN DURING EACH OF THE FIVE YEARS FROM 2001-02 TO 2005-06 AS O BTAINED FROM THE REVENUE RECORDS OF STATE GOVERNMENT COPIES OF WHIC H ARE PLACED AT PAGES 66 TO 69 OF THE PAPER BOOK. THE LD. AR POINTED OU T THAT THE ASSESSING 6 OFFICER ALONGWITH HIS COMMENTS MADE BEFORE THE CIT( A) HAD FILED THE COPY OF KHATONI IN RESPECT OF HIS OWN LAND (ASSESSI NG OFFICERS LAND) THAT THE SAME BORE THE DESCRIPTION OF CROP SOWN ON AGRICULTURAL LAND. THE SAID DOCUEMTNS WERE CONFRONTED TO THE ASSESSEE BUT THE COUNTER TO THE SAID COMMENTS COULD NOT BE FILED AS SUFFICIENT OPPORTUNI TY WAS NOT AFFORDED TO THE ASSESSEE. THE LD. AR FURTHER ADMITTED THAT THE COPY OF KISAN BAHI AND PURCHASE DEED WERE FILED BEFORE THE ASSESSING OFFIC ER WHICH DID NOT BEAR THE DESCRIPTION OF ORCHARD AND HENCE THE EXISTENCE OF THE ORCHARD AND INCOME THERE FROM WAS DISBELIEVED. THE COPY OF SUC H DOCUMENTS ARE PLACED AT 7 TO 29 OF THE PAPER BOOK. THE ADDITIONA L EVIDENCE BEING REVENUE RECORDS OF THE STATE GOVERNMENT WERE PLEADE D TO BE ADMITTED. THE LD. DR FOR THE REVENUE POINTED OUT THAT ADEQUAT E OPPORTUNITY WAS AFFORDED BY THE CIT(A) AND THE ASSESSEE FAILED TO R EBUT THE COMMENTS OF THE ASSESSING OFFICER AND HENCE NO OPPORTUNITY IS T O BE ALLOWED 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PER USED THE RECORDS. WE FIND THE SUFFICIENT OPPORTUNITY WAS NOT AFFORDED BY CIT(A) FOR THE ASSESSEE TO FILE REJOINDER TO THE COMMENTS OF ASSES SING OFFICER. IN THE TOTALITY OF FACTS AND CIRCUMSTANCES AND IN ORDER TO ADJUDICATE THE ISSUE RAISED IN THE PRESENT APPEAL BY WAY OF COMMON GROUN DS OF APPEAL RAISED BY THE ASSESSEE VIDE GROUND NOS. 2 & 3 WE ARE OF T HE VIEW THAT THE ADDITIONAL EVIDENCE FURNISHED BY THE ASSESSEE BEING THE REVENUE RECORDS OF THE STATE GOVERNMENT RELATING TO THE LAND HOLDIN GS OF THE ASSESSEE AND HIS MOTHER GO TO THE ROOT OF THE ISSUE RAISED BEFOR E US. THE QUESTION TO BE ADDRESSED BY US IS IN CONNECTION WITH THE CLAIM OF THE ASSESSEE WHETHER THE DEPOSITS IN THE AFORESAID ACCOUNTS ARE ON ACCOU NT OF THE AGRICULTURAL INCOME EARNED ON THE LAND HELD IN THE NAME OF ASSES SEE AND HIS MOTHER 7 AND THE ADDITIONAL EVIDENCE REFERRED TO BY THE ASSE SSEE ARE IN RESPECT OF THE AGRICULTURAL LAND HOLDINGS OF THE ASSESSEE AND HIS DECEASED MOTHER SHOWING DESCRIPTION OF CROPS SOWN DURING EACH OF TH E FIVE YEAR I.E. 2001- 02 TO 2005-06. IN THE ENTIRETY OF THE FACTS AND CIR CUMSTANCES WE DEEM IT FIT TO ADMIT THE SAID ADDITIONAL DOCUMENTS FURNISHE D BY THE ASSESSEE WHICH IN TURN GO TO THE ROOT OF THE ISSUE. HOWEVER IN ORDER TO ADJUDICATE THE ISSUE WE DEEM IT FIT TO RESTORE THE SAME BACK TO THE FILE OF ASSESSING OFFICER TO DECIDE THE ISSUE IN LINE WITH THE ADDITI ONAL EVIDENCE FILED BY THE ASSESSEE TO PROVE HIS CASE. THE ASSESSEE IS DIR ECTED TO FURNISH THE SAID EVIDENCE BEFORE THE ASSESSING OFFICER TO PROVE HIS CLAIM OF THE RECEIPT OF AGRICULTURAL INCOME. THE ASSESSING OFFICER SHALL D ECIDE THE ISSUE AFTER CONSIDERING THE EVIDENCE IN TOTALITY AND IN ACCORD ANCE WITH LAW. A REASONABLE OPPORTUNITY OF HEARING SHALL BE AFFORDED TO THE ASSESSEE. THE GROUND NOS. 2 & 3 RAISED BY THE ASSESSMENT YEARS 20 01-02 TO 2005-06 ARE THUS ALLOWED FOR STATISTICAL PURPOSES. SIMILAR ADD ITION HAS BEEN MADE IN ASSESSMENT YEARS 2006-07 AND IN LINE WITH OUR OBSER VATIONS WE RESTORE THE SAID ISSUE ALSO BACK TO THE FILE OF ASSESSING O FFICER TO ADJUDICATE UPON THE CLAIM OF THE ASSESSEE VIS-A-VIS HIS EARNING FRO M AGRICULTURE AND THE CONSEQUENT DEPOSITS IN THE BANK ACCOUNT. THE GROUN D NO.4 RAISED BY THE ASSESSEE IN ASSESSMENT YEAR 2006-07 IS ALLOWED FOR STATISTICAL PURPOSES. 12. THE ASSESSEE HAS RAISED GROUND NO. 2 IN ASS ESSMENT YEAR 2006-07 AGAINST THE ADDITION OF RS. 1 79 980/- ON ACCOUNT O F UNEXPLAINED SOURCE OF HEARING AID PURCHASED. THE PLEA OF THE ASSESSEE IN THIS REGARD WAS THAT SOURCE OF PURCHASE OF HEARING AID WAS OUT OF THE AG RICULTURAL INCOME EARNED BY THE ASSESSEE FROM THE ORCHARD WHICH WAS NOT ACCEPTED BY THE ASSESSING OFFICER AND WAS UPHELD BY THE CIT(A). IN LINE WITH OUR DIRECTIONS IN THE PARAS HEREINABOVE WHERE THE ISSUE OF ISSUE OF 8 DETERMINATION OF AGRICULTURAL INCOME IN THE HANDS O F THE ASSESSEE HAS BEEN RESTORED BACK TO THE ASSESSING OFFICER THE ISSUE I N GROUND NO.2 IS ALSO RESTORED BACK TO ASSESSING OFFICER. 13. THE ISSUE IN GROUND NOS.3 RAISED BY THE ASS ESSEE IN ASSESSMENT YEAR 2006-07 IS AGAINST THE ADDITION OF RS. 1 50 000/- BY REJECTING THE EXPLANATION OF THE ASSESSEE VIS-A-VIS CASH FLOW. TH E EXPLANATION OF THE ASSESSEE IN THIS REGARD WAS THAT IT WAS NOT MAINTAI NING ANY BOOKS OF ACCOUNT AS HE HAD INCOME FROM SALARY AND OTHER SOUR CES IN ADDITION TO THE AGRICULTURAL INCOME. DURING THE YEAR UNDER CONSIDER ATION THE ASSESSEE HAD RETURNED INCOME OF RS. 12 19 860/- AND AGRICULTURA L INCOME OF RS. 8 64 000/- AND THE TWO EXPLAINS THE SOURCE OF PURCH ASE OF A.C. IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES AND IN VIEW OF THE INCOME DECLARED BY THE ASSESSEE WE FIND NO JUSTIFICATION IN THE SAID A DDITION OF RS. 1 50 000/-. ACCORDINGLY WE DIRECT THE ASSESSING OFFICER TO DEL ETE THE ADDITION OF RS. 1 50 000/-. THE GROUND NO.3 RAISED BY THE ASSESSEE IN ASSESSMENT YEAR 2006-07 IS ALLOWED. 14. THE ONLY REMAINING ISSUE RAISED BY THE ASSE SSEE IN ASSESSMENT YEAR 2007-08 IS AGAINST ADDITION OF RS. 70 000/-. THE A SSESSEE HAS EXPLAINED IT HAD WITHDRAWN CASH OF RS. 70 000/- ON 20.2.2007 FR OM ITS BANK ACCOUNT WHICH IN TURN WAS DEPOSITED IN PPF ACCOUNT ON 27. 3.2007. OUR ATTENTION WAS DRAWN TO THE EXPLANATION FILED BEFORE THE CIT(A ). HOWEVER WE FIND THAT THE EVIDENCE OF THE SAID WITHDRAWAL FROM THE B ANK ACCOUNT ON THE AFORESAID DATE IS NOT AVAILABLE ON RECORD. IN THE INTEREST OF JUSTICE WE REMIT THE ISSUE BACK TO THE FILE OF ASSESSING OFFIC ER TO ALLOW THE ASSESSEE AN OPPORTUNITY TO PROVE ITS CLAIM. IN CASE THE AM OUNT HAS BEEN SO WITHDRAWN BY THE ASSESSEE THE SOURCE OF THE DEPOSI T IN PPF ACCOUNT 9 SHOULD BE TREATED AS EXPLAINED. THE GROUND OF APPEA L RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 15. IN THE RESULT ALL THE APPEALS OF THE ASSE SSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF OCTOBER 2010 SD/- SD/- (G.S.PANNU) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : OCTOBER 2010 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR