Shri Haribhai Chhaganbhai Bharwad, Ahmedabad v. The Income tax Officer,Ward-11(4),, Ahmedabad

ITA 1628/AHD/2010 | 2003-2004
Pronouncement Date: 04-04-2014 | Result: Partly Allowed

Appeal Details

RSA Number 162820514 RSA 2010
Assessee PAN ACFPB0905Q
Bench Ahmedabad
Appeal Number ITA 1628/AHD/2010
Duration Of Justice 3 year(s) 10 month(s) 17 day(s)
Appellant Shri Haribhai Chhaganbhai Bharwad, Ahmedabad
Respondent The Income tax Officer,Ward-11(4),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 04-04-2014
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 04-04-2014
Date Of Final Hearing 27-03-2014
Next Hearing Date 27-03-2014
Assessment Year 2003-2004
Appeal Filed On 17-05-2010
Judgment Text
C IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD C BENCH . .. . . .. . !' !' !' !' #$ %& #$ %& #$ %& #$ %& &' ( & &' ( & &' ( & &' ( & ' ' ' ' BEFORE S/SHRI G.C. GUPTA VICE-PRESIDENT AND TEJ RAM MEENA ACCOUNTANT MEMBER) ITA NO.1628 AND 1629/AHD/2010 [ASSTT.YEAR : 2003-2004 AND 2004-2005] SHRI HARIBHAI CHHAGANBHAI BHARWAD 211 NEW CLOTH MARKET O/S. RAIPUR GATE RAIPUR AHMEDABAD 380 022. PAN : ACFPB 0905 Q /VS. ITO WARD-11(4) AHMEDABAD. ITA NO.1431/AHD/2011 [ASSTT.YEAR : 2007-2008] ITO WARD-11(4) AHMEDABAD. /VS. SHRI HARIBHAI CHHAGANBHAI BHARWAD 211 NEW CLOTH MARKET O/S. RAIPUR GATE RAIPUR AHMEDABAD 380 022. ITA NOS.2352 AND 2353/AHD/2012 [ASSTT.YEAR : 2003-2004 AND 2004-2005] ITO WARD-11(4) AHMEDABAD. /VS. SHRI HARIBHAI CHHAGANBHAI BHARWAD 211 NEW CLOTH MARKET O/S. RAIPUR GATE RAIPUR AHMEDABAD 380 022. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( ( -*+ -*+ -*+ -*+ / RESPONDENT) .% / 0 &/ ASSESSEE BY : SHRI TUSHAR HEMANI ( / 0 &/ REVENUE BY : SHRI J.P. JHANGID SR.DR 2 / %3'/ DATE OF HEARING : 27 TH MARCH 2014 ITA NO.1628 AND 1629/AHD/2010 & 1431/AHD/2011 ITA NOS.2352 AND 2353/AHD/2012 -2- 456 / %3'/ DATE OF PRONOUNCEMENT : 04/04/2014 &7 / O R D E R PER G.C. GUPTA VICE-PRESIDENT: THESE APPEALS BY THE ASSESSEE AND REVENUE ARE DIRECTED AGAINST THE ORDER OF THE C IT(A). THESE ARE BEING DISPOSED OF WITH THIS CONSOLIDATED ORDER. ITA NO.1628/AHD/2010 AND 1629/AHD/2010 (ASSESSEES APPEALS) (ASSTT.YEARS : 2003-2004 AND 2004-2005) - QUANTUM APPEALS: 2. THE GROUND NO.1 IN BOTH THESE APPEALS PREFERRED BY THE ASSESSEE RELATES TO THE ISSUE OF VALIDITY OF ACTION OF THE A O IN REOPENING THE ASSESSMENT FRAMED UNDER SECTION 147 OF THE ACT. TH E LEARNED COUNSEL FOR THE ASSESSEE HAS NOT ADDRESSED ANY ARGUMENTS ON THI S ISSUE AND ACCORDINGLY GROUND NO.1 IN BOTH THESE APPEALS IS D ISMISSED. 3. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUT SET SUBMITTED THAT THE ASSESSEE HAS ONLY AGRICULTURAL INCOME AS HIS SOURCE OF INCOME AND THEREFORE IN ACCORDANCE WITH THE RATIO OF THE DECI SION OF THE ITAT AHMEDABAD BENCHES IN GOPALBHAI V. BHOIWALA VS. ITO ITA NO.3008/AHD/2009 WHEREIN HELD THAT NO ADDITION COU LD BE MADE UNLESS THE AO OR CIT(A) PROVES THAT AN ASSESSEE HAS ANY OT HER SOURCE OF INCOME WHICH IS TAXABLE UNDER THE IT ACT. THE LEARNED D R HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE . HE SUBMITTED DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE COULD NOT BE E XPLAINED BY THE ASSESSEE AND THEREFORE HAS UNEXPLAINED INVESTMENT WHICH IS ALSO SOURCE OF INCOME. MOREOVER THE ASSESSEE HAS SHOWN OTHER INCOME ON AC COUNT OF SALE OF MILK AND FERTILIZERS ETC. ITA NO.1628 AND 1629/AHD/2010 & 1431/AHD/2011 ITA NOS.2352 AND 2353/AHD/2012 -3- 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS ON THIS ISS UE. WE FIND THAT THE DECISION RELIED UPON BY THE LEARNED COUNSEL FO R THE ASSESSEE SHALL NOT BE APPLICABLE TO THE FACTS OF THE ASSESSEE AS THE ASSESSEE HAS OTHER SOURCES OF INCOME OTHER THAN THE AGRICULTURAL INCOME AND T HE SUBMISSIONS MADE BY THE LEARNED DR COULD NOT BE CONTROVERTED ON BEHALF OF THE ASSESSEE AND ACCORDINGLY THIS LEGAL OBJECTION RAISED BY THE ASS ESSEE IS DISMISSED. 5. OTHER GROUNDS OF THE APPEAL OF THE ASSESSEE IN BOTH THE ASSESSMENT YEARS BEFORE US RELATED TO THE ISSUE OF ESTIMATE O F AGRICULTURAL INCOME OF THE ASSESSEE FOR THE RELEVANT ACCOUNTING PERIODS. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS DECLAR ED AGRICULTURE INCOME OF RS.11 72 158/- AND RS.20 43 149/- FOR THE A.Y.2003- 04 AND 2004-05 RESPECTIVELY AND THE TOTAL AREA OF LAND UNDER CULTI VATION WAS 49-60-19 HECTORS OUT OF WHICH THE LAND OWNED BY THE ASSESSE E WAS 11-64-36 HECTORS AND THE LAND OWNED BY OTHERS WAS 37-95-83 HECTORS. HE SUBMITTED THAT THE FACT THAT THE ASSESSEE HAS CULTIVATED LAND OF O THERS HAS NOT BEEN DOUBTED BY THE REVENUE AUTHORITIES. HE SUBMITTED T HAT THE AO HAS ESTIMATED THE AGRICULTURE INCOME OF THE ASSESSEE AT A LESSER FIGURE AND HAS MADE ADDITION OF DIFFERENCE BETWEEN THE TWO FIGURES I.E. AGRICULTURE INCOME DECLARED BY THE ASSESSEE AND AS ESTIMATED B Y THE AO AT RS.4 67 177/- AND RS.4 96 259/- IN THE ASSTT. YEARS 2003-04 AND 2004-05 RESPECTIVELY. THE ASSESSEE PREFERRED APPEAL TO T HE CIT(A) WHO IN TURN INSTEAD OF APPRECIATING THE ASSESSEES SUBMISSIONS MADE IN THIS REGARD NOT ONLY DISMISSED THE CONTENTION OF THE ASSESSEE BUT ALSO MADE ENHANCEMENT BY ESTIMATING THE AGRICULTURE INCOME OF THE ASSESSE E FOR THE RELEVANT ASSESSMENT YEARS AT A MEAGER FIGURE OF RS.84 322/- FOR EACH ASSESSMENT YEAR AND HAS MADE ENHANCEMENT BY DIRECTING THE AO TO ASSESS THE DIFFERENCE BETWEEN THE AGRICULTURE INCOME SHOWN BY THE ASSESSEE AND THE ITA NO.1628 AND 1629/AHD/2010 & 1431/AHD/2011 ITA NOS.2352 AND 2353/AHD/2012 -4- FIGURE OF RS.84 322/- ESTIMATED AS AGRICULTURE INCO ME BY HIM. HE SUBMITTED THAT THE ONLY REASON ADVANCED BY THE CIT( A) FOR ESTIMATING THE AGRICULTURE INCOME FROM 49-60-19 HECTORS OF AGRICUL TURE LAND AT A MEAGER SUM OF RS.84 322/- WAS THE FIGURE OF YIELD OF VARIO US CROPS AS TAKEN BY THE CIT(A) FROM THE AUTHENTIC WEBSITE OF THE GOVT. OF G UJARAT VIZ. DIRECTOR OF AGRICULTURE/STATISTICS WHICH SHOWS THE YIELD OF VA RIOUS CROPS IN DIFFERENT DISTRICTS OF GUJARAT. HE SUBMITTED THAT THERE IS N O OTHER EVIDENCE BROUGHT ON RECORD BY THE CIT(A) TO MAKE THE HEAVY ADDITION AND INVOKING HIS POWER TO MAKE ENHANCEMENT OF THE INCOME OF THE ASSE SSEE FOR BOTH THESE ASSESSMENT YEARS. 6. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF TH E LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE HAS SOLD ITS AGRICULTURAL CROP FOR BOTH THESE ASSESSMENT YEARS ONLY TO PRIVAT E PARTIES IN CASH AND NOT THROUGH MANDI COMMITTEE CONTROLLED BY THE GOVERNMEN T. THE ASSESSEES SHARE IN AGRICULTURE PRODUCE IN THE LAND OWNED BY O THERS SHALL DEFINITELY BE LESS THAN AS COMPARED TO THE AGRICULTURE LAND OWNE D BY THE ASSESSEE HIMSELF. HE SUBMITTED THAT THE ASSESSEES LAND WAS NON-IRRIGATED AND THE YIELD WAS REASONABLY ESTIMATED BY THE CIT(A). HE S UBMITTED THAT THE ASSESSEE HAS NOT PRODUCED ANY ELECTRICITY BILLS FOR THE RELEVANT ASSESSMENT YEARS AND THEREFORE IT COULD BE VALIDLY PRESUMED THAT THE ASSESSEE HAS NO FACILITY OF BOREWELL ETC. DURING THE RELEVANT PERIO D. HE SUBMITTED THAT THE ASSESSEE COULD NOT PRODUCE THE COMPLETE SALE BILLS IN SUPPORT OF ITS CASE AND IT IS ALSO DOUBTFUL THAT WHETHER THE ASSESSEE HAS AT ALL GROWN IN THE LAND BELONGING TO HIM OR TO THE OTHER FARMERS AS I N RESPECT OF 4-68-43 HECTORS OF LAND NO CROP IS SHOWN AS GROWN IN THE R EVENUE RECORDS OF THE REVENUE AUTHORITIES. HE SUBMITTED THAT THE ASSESSE E WAS GIVEN NUMBER OF OPPORTUNITIES BY THE CIT(A) TO CONTROVERT THE OFFIC IAL WEBSITE OF THE ITA NO.1628 AND 1629/AHD/2010 & 1431/AHD/2011 ITA NOS.2352 AND 2353/AHD/2012 -5- DIRECTOR OF AGRICULTURE/STATISTICS BUT THE ASSESSE E HAS FAILED TO CONTROVERT THE SAME AND DID NOT EVEN FILED ANY REPLY BEFORE THE REVENUE AUTHORITIES. THE ASSESSEE COULD NOT FILE ANY CERTIFICATE FROM TH E AGRICULTURE DEPARTMENT OF THE GOVT. OF GUJARAT AND SO CALLED CERTIFICATE FILED AT PAGE NOS.10 & 11 OF THE COMPILATION FOR THE SUBSEQUENT ASSESSMENT YE AR 2007-08 IS GENERAL IN NATURE. THE ASSESSEE HAS ALSO NOT SHOWN ANY P AYMENT OF LAND REVENUE SO AS TO ESTABLISH THAT IT HAS GROWN CROP TO THE EX TENT THE ASSESSEE HAS CLAIMED IN ITS RETURN OF INCOME. THE LAND IN QUEST ION SEEMS TO BE NON- PRODUCTIVE HAVING SOME SALTY WATER IN THE AREA AND THE AGRICULTURE INCOME HAS BEEN INFLATED BY THE ASSESSEE JUST TO COVER THE BANK DEPOSITS MADE BY THE ASSESSEE DURING THE RELEVANT PERIOD. HE SUBM ITTED THAT THE ONUS WAS ON THE ASSESSEE TO PROVE THAT THE ASSESSEE HAS EARN ED THE AGRICULTURE INCOME AS CLAIMED BY IT IN ITS RETURN OF INCOME. 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS CAREFULLY A ND HAVE PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND ALSO COPIES OF VARIOUS DOCUMENTS FILED BY THE ASSESSEE IN ITS COMPILATION BEFORE US. WE FIND THAT THE ONLY DISPUTE IN THESE APPEALS OF THE ASSESSEE IS REGARDI NG ESTIMATE OF AGRICULTURE INCOME OF THE ASSESSEE FROM 49-60-19 HECTORS OF AGR ICULTURE LAND WHICH INCLUDES THE LAND OWNED BY OTHERS AT 37-95-83 HECTO RS WHICH HAS BEEN TAKEN FOR CULTIVATION BY THE ASSESSEE ON SHARED BAS IS. THE ASSESSEE HAS SHOWN THE AGRICULTURE INCOME FROM LAND AT RS.11 72 158/- AND RS.20 43 149/- FOR THE ASSTT.YEAR 2003-04 AND 2004- 05 RESPECTIVELY. HOWEVER THE AO HAS TAKEN A VIEW THAT THE ASSESSEE HAS SHOWN THE EXAGGERATED FIGURE OF AGRICULTURE INCOME AND HAS MA DE HIS OWN ESTIMATE OF AGRICULTURE INCOME AND DIFFERENCE BETWEEN THE TWO F IGURES AT RS.4 67 177/- AND RS.4 96 259/- FOR ASSTT.YEAR.2003-04 AND 2004-0 5 RESPECTIVELY WAS ADDED AS UNDISCLOSED INCOME IN THE HANDS OF THE ASS ESSEE. IN APPEAL THE ITA NO.1628 AND 1629/AHD/2010 & 1431/AHD/2011 ITA NOS.2352 AND 2353/AHD/2012 -6- CIT(A) HAS NOT ONLY REJECTED THE CONTENTIONS OF THE ASSESSEE BUT HAS MADE ENHANCEMENT OF THE INCOME OF THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS 2003-04 AND 2004-05 AND HAS HELD THE AGRICULTURE IN COME AT RS.84 322/- EACH FOR THE ASSESSMENT YEAR 2003-04 AND 2004-05 AN D THE BALANCE AMOUNT DIRECTED TO BE ADDED AS UNDISCLOSED INCOME IN THE H ANDS OF THE ASSESSEE. WE FIND THAT THE FACT THAT THE ASSESSEE HAS 49-60-1 9 HECTORS OF AGRICULTURE LAND INCLUDING THE LAND OWNED BY OTHERS OF 37-95-83 HECTORS HAS NOT BEEN DISPUTED BY THE REVENUE. THE ONLY REASON ADVANCED BY THE CIT(A) FOR ESTIMATING THE AGRICULTURE INCOME OF THE ASSESSEE A T A SUM OF RS.84 322/- FOR EACH OF THE RELEVANT ASSESSMENT YEAR WAS THAT T HE FIGURE OF YIELD OF VARIOUS CROPS AS APPEARING IN THE WEBSITE OF GOVERN MENT OF GUJARAT VIZ. DIRECTOR OF AGRICULTURE/STATISTICS IS LOW AND HE AD OPTED THE FIGURE OF YIELD AS PER THE WEBSITE OF GOVT. OF GUJARAT AT RS.84 322 /- FOR EACH OF THE ASSESSMENT YEAR 2003-04 AND 2004-05. IN OUR CONSID ERED VIEW THIS APPROACH OF THE CIT(A) IN DETERMINING THE AGRICULTU RE INCOME OF THE ASSESSEE FOR THE RELEVANT YEARS IS NOT IN ACCORDANC E WITH LAW AND IS NOT SUSTAINABLE. THE WEBSITE OF THE GOVT. OF GUJARAT H AS SHOWN THE YIELD OF VARIOUS CROPS IN DIFFERENCE DISTRICTS OF THE GUJARA T ON GENERAL BASIS AND COULD NOT BE APPLIED AS SUCH TO ESTIMATE THE AGRI CULTURE INCOME OF A PARTICULAR CASE. THE CIT(A) HAS NOT MADE ANY FURTH ER INQUIRIES IN THIS MATTER AND HAS APPLIED MECHANICALLY YIELD RATE AS PER THE WEBSITE OF THE GOVT. OF GUJARAT AND HAS NOT ONLY REJECTED THE APPE AL OF THE ASSESSEE BUT HAS GONE A STEP FURTHER AND HAS MADE ENHANCEMENT OF THE ASSESSABLE INCOME OF THE ASSESSEE FOR BOTH THE RELEVANT ASSESS MENT YEARS. WE FIND NO OTHER MATERIAL HAS BEEN BROUGHT ON RECORD BY THE RE VENUE TO MAKE THE ADDITION BY ESTIMATING THE AGRICULTURE INCOME AT A LOWER FIGURE THAN AS DECLARED BY THE ASSESSEE. IN REPLY TO A SPECIFIC Q UESTION FROM THE BENCH THE LEARNED DR SUBMITTED THAT NO INQUIRY WITH THE SARPANCH / PATWARI OR ANY ITA NO.1628 AND 1629/AHD/2010 & 1431/AHD/2011 ITA NOS.2352 AND 2353/AHD/2012 -7- OTHER REVENUE AUTHORITIES WERE MADE WITH REGARD TO THE YIELD OF CROP BY THE AO OR THE CIT(A). HE STATED THAT NO INSPECTOR WAS DEPUTED BY THE AO OR THE CIT(A) IN THE VILLAGE WHERE THE AGRICULTURE LAND IS SITUATED TO FIND OUT THE YIELD OF VARIOUS CROPS IN THE SPECIFIC CASE OF THE ASSESSEE. WE FIND THAT IN CASE THE DEPARTMENT HAS DOUBT REGARDING THE EXTENT OF AGRICULTURE INCOME DECLARED BY THE ASSESSEE IT COULD HAVE MADE FURTHER INQUIRIES IN THE MATTER BY CALLING FOR REVENUE RECORDS LIKE G IRDAWRI (YIELD RECORD OF THE CROP) OR ATLEAST COULD HAVE DEPUTED SOME INSPE CTOR OF INCOME-TAX DEPARTMENT ON THE SPOT FOR MAKING FURTHER INQUIRY. WE ARE OF THE VIEW THAT IN THE ABSENCE OF ANY MATERIAL BROUGHT ON RECO RD ON BEHALF OF THE REVENUE AUTHORITIES THE ESTIMATE OF AGRICULTURE IN COME FOR THE RELEVANT YEARS MADE BY THE CIT(A) IS NOT IN ACCORDANCE WITH LAW AND ACCORDINGLY IS REJECTED. 8. THIS LEAVES US TO THE ISSUE OF A FAIR ESTIMATE O F AGRICULTURE INCOME OF THE ASSESSEE FOR THE RELEVANT YEARS. WE FIND THAT IN THIS CASE NEITHER THE REVENUE NOR THE ASSESSEE HAS MADE EFFORTS TO BRING THE TRUTH ON RECORD AND HAS ESTIMATED AGRICULTURE INCOME WHATEVER WAS CONV ENIENT TO BOTH THE SIDES. WE FIND THAT NO G IRDAWRI OR ANY OTHER RECORD OF YIELD OF CROP FOR THE RELEVANT PERIODS WAS MADE AVAILABLE BY THE ASSE SSEE. THE CROP HAS PARTLY BEEN CLAIMED TO HAVE BEEN SOLD TO THE PERSON S IN THE VILLAGE ITSELF IN CASH FOR WHICH THE ASSESSEE COULD NOT PRODUCE ANY EVIDENCE. THE ASSESSEE HAS NOT EVEN CARED TO FILE THE RECEIPT OF THE LAND REVENUE PAID BY THE ASSESSEE FOR THE RELEVANT YEARS IF ANY. THE E LECTRICITY BILLS FIGURES WERE VERY LESS FOR BOTH THE RELEVANT ASSESSMENT YEARS A ND THEREFORE IT COULD NOT BE SAID THAT THE AGRICULTURE LAND OF THE ASSESEE WA S IRRIGATED WITH TUBE- WELL ETC. CERTIFICATE FROM THE AGRICULTURE DEPARTM ENT AS FILED AT PAGE NO.10 & 11 OF THE COMPILATION BY THE ASSESSEE FOR THE SUB SEQUENT ASSESSMENT ITA NO.1628 AND 1629/AHD/2010 & 1431/AHD/2011 ITA NOS.2352 AND 2353/AHD/2012 -8- YEAR 2007-08 IS GENERAL IN NATURE AND DOES NOT PER TAIN TO THE ASSESSEE AND THEREFORE COULD NOT BE FOLLOWED. IT IS ALSO A FAC T THAT THE SHARE OF THE ASSESSEE IN THE CROP ON LAND OWNED BY OTHERS WOULD BE LESS AS COMPARED TO THE CROP ON LAND OWNED BY THE ASSESSEE HIMSELF. CIT(A) HAS MENTIONED IN PARA-4 SUB-PARA 3.1 OF HIS APPELLATE ORDER THAT IN RESPECT OF 4-68-43 HECTARE OF LAND NO CROP IS SHOWN AS GROWN. THE ASS ESSEE COULD NOT CONTROVERT THE SAME. THE ASSESSEE HAS NOT AVAILED NUMBER OF OPPORTUNITIES GIVEN BY THE CIT(A) TO CONTROVERT THE YIELD OF VARI OUS CROPS FIGURES AS PER THE OFFICIAL WEBSITE OF THE DIRECTOR OF AGRICULTURE /STATISTICS. THE ASSESSEE HAS NOT FILED ANY EVIDENCE OF PAYMENT OF LAND REVEN UE FOR THE RELEVANT YEARS IF ANY. IN THESE FACTS WE ARE OF THE VIEW THAT THE ASSESSEE COULD NOT PROVE THE EXTENT OF AGRICULTURE INCOME SHOWN BY IT FOR THE RELEVANT ASSESSMENT YEARS. IN THESE PECULIAR FACTS AND CIRC UMSTANCES OF THE CASE WHERE NEITHER THE REVENUE NOR THE ASSESSEE HAS MADE SINCERE EFFORTS FOR DETERMINATION OF AGRICULTURE INCOME IN THIS CASE W E ARE OF THE VIEW THAT SOME REASONABLE ESTIMATE HAS TO BE MADE. CONSIDER ING ENTIRE FACTUAL MATRIX OF THE CASE INCLUDING THE EXTENT ON LAND HO LDING OF 49-60-19 HECTORS AND THE FACT THAT IT INCLUDES THE LAND OWNE D BY OTHERS AT 37-95-83 HECTORS WHICH GIVES LESSER INCOME TO THE ASSESSEE AS THE INCOME HAS TO BE SHARED WITH THE OWNER OF THE LAND AND THE FACT THA T THE LAND IS NEITHER NEHARI (CANAL IRRIGATED) NOR HAVE BORE-WELL AS NO ELECTR ICITY BILLS COULD BE PRODUCED BY THE ASSESSEE AND THAT PART OF THE A GRICULTURE PRODUCTION WAS SOLD IN CASH TO PRIVATE PERSONS IN THE VILLAGE ITSELF FOR WHICH NO EVIDENCE IS AVAILABLE THAT IN RESPECT OF SOME PART S OF AGRICULTURE LAND NO CROP WAS SHOWN AS GROWN IN THE REVENUE RECORDS OF T HE AUTHORITIES AND THE CERTIFICATE FILED BY THE ASSESSEE FROM THE AGRI CULTURE DEPARTMENT OF THE GOVERNMENT FOR LATER ASSTT.YEAR 2007-2008 WAS GENER AL IN NATURE WE HOLD THAT ENDS OF THE JUSTICE SHALL BE MET IF THE AGRIC ULTURE INCOME OF THE ITA NO.1628 AND 1629/AHD/2010 & 1431/AHD/2011 ITA NOS.2352 AND 2353/AHD/2012 -9- ASSESSEE IS ESTIMATED AT RS.10 00 000/- (RUPEES TEN LAKHS) FOR THE ASSTT.YEAR 2003-04 AND RS.17 00 000/- (RUPEES SEVEN TEEN LAKHS) FOR THE ASSTT.YEAR 2004-05 AS AGAINST RS.11 72 158/- FOR T HE ASSTT.YEAR 2003-04 AND RS.20 43 149/- FOR THE ASSTT.YEAR 2004-05 SHOWN BY THE ASSESSEE AND ACCORDINGLY THE DIFFERENTIAL AMOUNT OF RS.1 72 158 /- AND RS.3 43 149/- BE ADDED AS INCOME IN THE HANDS OF THE ASSESSEE FOR TH E ASSTT.YEAR 2003-04 AND 2004-05 RESPECTIVELY. WE DIRECT ACCORDINGLY A ND THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE PARTLY ALLOWED. ITA NO.1431/AHD/2011 (ASSTT.YEAR 2007-2008) (REVENU ES QUANTUM APPEAL: 9. THE GROUNDS OF THE APPEAL OF THE REVENUE ARE AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS ON DELETING THE ADDITION OF RS.21 38 423/- MADE BY THE AO ON ACCOUN T OF INCOME FROM UNDISCLOSED SOURCE WITHOUT PROPERLY APPRECIATI NG THE FACTS OF THE CASE AND THE MATERIALS BROUGHT ON RECORD BY THE AO. 1.2 THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE AO HAS CORRECTLY WORKED OUT T HE AGRICULTURAL INCOME TO RS.3 36 532/- AT THE RATES SPECIFIED BY T HE GOVERNMENT; THE ASSESSEE COULD NOT PRODUCE VARIOUS DETAILS CALL ED FOR BY THE AO AND TO SUBSTANTIATE HIS CLAIM OF AGRICULTURAL INCOM E. 10. BOTH THE PARTIES BEFORE US SUBMITTED THAT CONTE NTIONS OF THE PARTIES BEFORE THE TRIBUNAL ARE SIMILAR AS WERE FOR THE EA RLIER ASSESSMENT YEARS 2003-04 AND 2004-05. WE HAVE CONSIDERED RIVAL SU BMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND CO PIES OF VARIOUS DOCUMENTS FILED BY THE ASSESSEE IN THE COMPILATION BEFORE US. WE FIND THAT THE FACTS OF THE CASE FOR THE RELEVANT ASSESSMENT Y EARS 2007-08 ARE MORE OR LESS SIMILAR AS WERE IN THE EARLIER ASSESSMENT YEAR S 2003-04 AND 2004-05. THE ONLY DIFFERENCE IS THAT IN THIS YEAR THE ASSES SEE HAS PRODUCED CERTAIN ITA NO.1628 AND 1629/AHD/2010 & 1431/AHD/2011 ITA NOS.2352 AND 2353/AHD/2012 -10- ELECTRICITY BILLS WHICH SHOWS THAT THE ASSESSEE WA S HAVING THE BENEFIT OF A TUBE-WELL DURING THE PERIOD. THE ASSESSEE HAS FILE D A CERTIFICATE FROM AGRICULTURE DEPARTMENT OF GOVT. OF GUJARAT IN PAGE NO.10 AND 11 OF THE COMPILATION FOR THE ASSTT.YEAR 2007-08 BUT THAT SH ALL NOT HELP THE CASE OF ASSESSEE AS THE SAME IS GENERAL IN NATURE AND DOE S NOT PERTAIN TO THE SPECIFIC AGRICULTURE LAND OF THE ASSESSEE. THE ASS ESSEE HAS FILED SALE BILLS OF THE RELEVANT PERIOD AND THE AGRICULTURE PRODUCE PROCEEDS SOLD IN THE MANDI WERE RECEIVED BY CHEQUES. HOWEVER THE ASSESSEE HAS NOT FILED GIRDAWRI (REVENUE RECORD FOR EXTENT AND TYPE OF CROP ETC.). NO SPECIFIC CERTIFICATE FROM THE REVENUE RECORD COULD BE PRODUC ED BY THE ASSESSEE. IN THIS YEAR THE AO HAS OBSERVED THAT THE ASSESSEE HA S CULTIVATED HIS OWN LAND OF 11-64-36 HECTORS AND HAS CULTIVATED THE LAN D OF OTHER FARMERS MEASURING 27-91-65 HECTORS AT SHARE BASIS OF 75% AN D 25%. THUS THE LAND OF OTHER OWNERS CULTIVATED BY THE ASSESSEE IS LESS AS COMPARED TO EARLIER ASSESSMENT YEARS 2003-04 AND 2004-05 WHICH WAS 37-95-83 HECTORS. THE AO HAS OBSERVED THAT THE ASSESSEE HAS NOT FURNISHED ANY PROOF OF LABOUR EXPENDITURE DIESEL EXPENSES BESID ES THE FERTILIZERS ETC. THE CIT(A) HAS GIVEN A FINDING THAT THE FACTS OF TH IS RELEVANT ASSESSMENT YEAR ARE ENTIRELY DIFFERENT FROM EARLIER YEARS OF T HE ASSESSEE BECAUSE THE ASSESSEE HAS BEEN ABLE TO FILE VARIOUS EVIDENCES WH ICH WERE GIVEN TO THE AO FOR REMAND REPORT AND THE AO HAS NOT BEEN ABLE T O CONTROVERT THE SAME EXCEPT SHOWING THAT THE ADDITION WAS MADE ON THE BA SIS OF ENHANCEMENT MADE IN THE EARLIER YEARS BY THE CIT(A). WE FIND T HAT IN THE RELEVANT ASSESSMENT YEAR ALSO NEITHER THE REVENUE NOR THE AS SESSEE HAS MADE SINCERE EFFORTS TO BRING TRUTH ON RECORD AND HAS NOT FILED THE RELEVANT REVENUE RECORD TO JUDGE THE TYPE AND EXTENT OF CROP DURING THE YEAR. THE AO HAS NOT MADE INQUIRIES FROM THE REVENUE AUTHORITIES NO R HAS DEPUTED ANY INSPECTOR TO MAKE NECESSARY INQUIRY IN THIS MATTER. HE HAS MERELY ITA NO.1628 AND 1629/AHD/2010 & 1431/AHD/2011 ITA NOS.2352 AND 2353/AHD/2012 -11- FOLLOWED THE YIELD AS PER THE WEBSITE OF THE DIRECT OR OF AGRICULTURE/ STATISTICS. IN THESE FACTS WE ARE OF THE VIEW THA T SOME REASONABLE ESTIMATE HAS TO BE MADE ON THE EXTENT OF THE AGRICULTURE INC OME FOR THE RELEVANT YEAR AND CONSIDERING THE ENTIRE FACTUAL MATRIX OF THE CA SE INCLUDING THE FACT THAT THE ASSESSEE HAS PRODUCED SOME EVIDENCE OF AGRICULT URE PRODUCE RECEIPTS DURING THE YEAR AND THAT THE LAND WAS HAVING THE BE NEFIT OF TUBE-WELL AND THAT THE LAND OF OTHER OWNERS UNDER CULTIVATION IS LESS THIS YEAR BY ABOUT 10 ACRES WE HOLD THAT THE ENDS OF JUSTICE SHALL BE ME T IF THE AGRICULTURE INCOME OF THE ASSESSEE FOR THE RELEVANT PERIOD IS D ETERMINED AT RS.20 00 000/- (RUPEES TWENTY LAKHS) AS AGAINST RS. 24 74 955/- DECLARED BY THE ASSESSEE AND ACCORDINGLY THE DIFFERENTIAL AMOUNT OF RS.4 74 955/- BE TAXED AS INCOME IN THE HANDS OF THE ASSESSEE. W E DIRECT ACCORDINGLY AND THE GROUNDS OF THE APPEAL OF THE REVENUE ARE PA RTLY ALLOWED. ITA NOS.2352 AND 2353/AHD/2012 (A.Y.2003-04 AND 200 4-05 : PENALTY UNDER SECTION 271(1)(C) OF THE ACT (REVENUES APPEA LS) 11. IN THESE TWO APPEALS OF THE REVENUE IDENTICAL ISSUE IS RAISED REGARDING IMPOSITION OF PENALTY UNDER SECTION 271(1 )(C) OF THE ACT. 12. THE GROUNDS OF THE APPEALS OF THE REVENUE ARE A S UNDER: FOR A.Y.2003-04 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.3 38 022/- LEVIED U/S.271(1)(C) OF TH E ACT HOLDING THAT THE AO DID NOT HAVE ANY JURISDICTION TO PASS ANY PE NALTY U/S.271(1)(C) LEVYING PENALTY OF RS.3 38 022/- IN RESPECT OF AMOUNT OF INCOME OF RS.10 87 834/- WHICH WAS ENHANCED BY T HE CIT(A) WHILE ADJUDICATING THE QUANTUM APPEAL OF THE ASSESS EE AGAINST THE ASSESSMENT ORDER PASSED U/S.143(3) R.W.S. 147 OF TH E ACT. ITA NO.1628 AND 1629/AHD/2010 & 1431/AHD/2011 ITA NOS.2352 AND 2353/AHD/2012 -12- 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT CONSIDERING THE FACT THAT THE PENALTY LEVIED U/S.271(1)(C) OF R S.3 38 022/- ON THE INCOME OF RS.10 87 834/- IS IN PURSUANCE OF THE DIR ECTION OF THE LD.CIT(A) AND THE ASSESSEE HAS NOT CHALLENGED THE J URISDICTION AT THE TIME OF INITIATION AND UNTIL FINALIZATION OF PENALT Y PROCEEDINGS. FOR A.Y.2004-05 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.6 42 477/- LEVIED U/S.271(1)(C) OF TH E ACT HOLDING THAT THE AO DID NOT HAVE ANY JURISDICTION TO PASS ANY PE NALTY U/S.271(1)(C) LEVYING PENALTY OF RS.6 42 477/- IN R ESPECT OF AMOUNT OF INCOME OF RS.19 58 825/- WHICH WAS ENHANCED BY THE CIT(A) WHILE ADJUDICATING THE QUANTUM APPEAL OF THE ASSESSEE AGA INST THE ASSESSMENT ORDER PASSED U/S.143(3) R.W.S. 147 OF TH E ACT. 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT CONSIDERING THE FACT THAT THE PENALTY LEVIED U/S.271(1)(C) OF R S.6 42 477/- ON THE INCOME OF RS.19 58 825/- IS IN PURSUANCE OF THE DIR ECTION OF THE LD.CIT(A) AND THE ASSESSEE HAS NOT CHALLENGED THE J URISDICTION AT THE TIME OF INITIATION AND UNTIL FINALIZATION OF PENALT Y PROCEEDINGS. 13. THE LEARNED DR SUBMITTED THAT THE CIT(A) HAS CO MMITTED AN ERROR IN DELETING PENALTY UNDER SECTION 271(1)(C) OF THE ACT BY HOLDING THAT THE AO DID NOT HAVE JURISDICTION TO IMPOSE PENALTY IN RESP ECT OF THE AMOUNT OF INCOME WHICH WAS ENHANCED BY THE CIT(A) WHILE ADJU DICATING THE QUANTUM APPEALS OF THE ASSESSEE AGAINST THE ASSESS MENT ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT. 14. THE LEARNED DR SUBMITTED THAT IT IS THE AO WHI CH HAS JURISDICTION TO IMPOSE PENALTY UNDER SECTION 271(1)(C) EVEN THOUGH THE INCOME WAS ENHANCED BY CIT(A) IN THE QUANTUM APPEAL OF THE ASS ESSEE. ON MERITS OF THE CASE HE SUBMITTED THAT THE ASSESSE HAS INFLATE D ITS AGRICULTURAL INCOME AND THE CIT(A) HAS MADE A SUBSTANTIAL ADDITION BY H OLDING THAT THE AGRICULTURAL INCOME OF THE ASSESSEE WAS ONLY RS.84 322/- FOR EACH OF THE ASSESSMENT YEARS 2003-04 AND 2004-05 AND THE BALAN CE AMOUNT OF ITA NO.1628 AND 1629/AHD/2010 & 1431/AHD/2011 ITA NOS.2352 AND 2353/AHD/2012 -13- RS.10 87 834/- AND RS.19 58 825/- FOR A.Y.2003-04 A ND 2004-05 RESPECTIVELY WAS NOT AGRICULTURAL INCOME AND THE A DDITION WAS MADE UNDER SECTION 69 OF THE ACT FOR THESE ASSESSMENT YEARS A ND THEREFORE THE ASSESSEE WAS GUILTY FOR FILING OF INACCURATE PARTIC ULARS OF INCOME. 15. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT EVEN ON MERITS NO PENALTY U/S.271(1)(C) COULD BE LEVIED AS THE AGR ICULTURE INCOME HAS BEEN ESTIMATED BY THE REVENUE AUTHORITIES BY WAY OF ESTI MATE ONLY AND THERE IS NO EVIDENCE BROUGHT ON RECORD TO SUGGEST THAT THE A SSESSEE HAS FILED INACCURATE PARTICULARS OF INCOME. 16. WE HAVE CONSIDERED RIVAL SUBMISSIONS CAREFULLY AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE AGRICULTURE INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AND THE CIT(A ) BY WAY OF ESTIMATE ONLY. THERE COULD POSSIBLY BE NO SCIENTIFIC FORMUL A TO DETERMINE THE AGRICULTURE INCOME FROM THE AGRICULTURE LAND OF AN ASSESSEE AND THUS SOME ELEMENT OF GUESS WORK HAS TO BE ACCEPTED IN SUCH TY PE OF CASES. THE ASSESSEE HAS SHOWN CERTAIN AMOUNT AS HIS AGRICULTUR E INCOME FOR THE RELEVANT ASSESSMENT YEARS FROM 49.60 HECTARES OF AG RICULTURE LAND AND THE AO HAS MADE AN ADDITION OF RS.4 67 177/- IN THE A.Y .2003-04 AND RS.4 96 259/- IN THE A.Y.2004-05 BY ESTIMATING THE AGRICULTURE INCOME OF THE ASSESSEE AT LESSER FIGURE. IN THE FIRST APPEAL BEFORE THE CIT(A) THE CIT(A) HAS ESTIMATED THE AGRICULTURE INCOME OF THE ASSESSEE AT RS.84 322/- EACH FOR A.Y.2003-04 AND 2003-04 BY WAY OF ESTIMATI ON AND THE BALANCE AMOUNT OF RS.10.87 LAKHS AND RS.19.58 LAKHS FOR THE ASTT.YEAR 2003-04 AND 2004-05 RESPECTIVELY WAS ADDED UNDER SECTION 69 AS INCOME IN THE HANDS OF THE ASSESSEE AND THIS RESULTED IN ENHANCE MENT OF THE INCOME OF THE ASSESSEE IN APPEAL AT THE STAGE OF THE CIT(A). THE ASSESSEE PREFERRED SECOND APPEAL BEFORE THE TRIBUNAL AND WE HAVE PART LY ALLOWED THE APPEAL ITA NO.1628 AND 1629/AHD/2010 & 1431/AHD/2011 ITA NOS.2352 AND 2353/AHD/2012 -14- OF THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS 2003- 04 AND 2004-05 AS DISCUSSED IN THE FOREGOING PARAS OF THIS ORDER AND ENHANCEMENT MADE BY THE CIT(A) HAS BEEN DELETED IN TOTO AND THE ADDITION MADE BY THE AO BY ESTIMATING THE FIGURE OF AGRICULTURE INCOME FOR THE RELEVANT ASSESSMENT YEARS AT A LESSER FIGURE THAN AS DECLARED BY THE AS SESSEE HAS ALSO BEEN REDUCED AND THE ASSESSEE HAS GOT PART RELIEF IN BOT H THESE APPEALS BEFORE US. IN THESE FACTS WE FINDS THAT FIGURE OF AGRICULTURE INCOME HAS CHANGED WITH EVERY STAGE OF LITIGATION. THERE IS NO MATERIAL BR OUGHT ON RECORD ON BEHALF OF THE REVENUE TO SUGGEST THAT THE ASSESSEE HAS INF LATED ITS AGRICULTURE INCOME FOR THE RELEVANT ASSESSMENT YEARS. PART ADD ITION MADE BY THE AO WAS SUSTAINED BY THE TRIBUNAL ONLY BY WAY OF ESTIMA TE OF AGRICULTURE INCOME ALTHOUGH NO DETAILED INQUIRY WAS MADE BY TH E AO BY DEPUTING INSPECTOR ON THE SPOT OR MAKING INQUIRIES WITH THE CONCERNED REVENUE OFFICERS. IN THESE FACTS OF THE CASE WE ARE OF TH E CONSIDERED OPINION THAT SINCE PART OF THE ADDITION HAS BEEN SUSTAINED ONLY BY WAY OF ESTIMATION MADE FOR THE AGRICULTURE INCOME OF THE ASSESSEE FO R THE RELEVANT ASSESSMENT YEARS THE ASSESSEE COULD NOT BE HELD GU ILTY FOR CONCEALMENT OF INCOME OR FILING OF INACCURATE PARTICULARS OF INCOM E AND NO PENALTY U/S.271(1)(C) COULD LEGALLY BE IMPOSED ON THE ASSES SEE. ACCORDINGLY THE GROUNDS OF THE APPEALS OF THE REVENUE FOR BOTH THE ASSESSMENT YEARS ARE DISMISSED. 17. WE ARE NOT ADJUDICATING THE LEGAL ISSUE RAISED BY THE REVENUE WITH REGARD TO THE JURISDICTIONAL OF THE AO IN IMPOSING PENALTY FOR THE REASON THAT THE PENALTY HAS BEEN FOUND AS NOT LEVIABLE ON ITS MERITS IN THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE ASSESSEE. 18. IN THE COMBINED RESULT ASSESSEES APPEALS IN I TA NO.1628 & 1629/AHD/2010 AND REVENUES APPEAL IN ITA NO.1431/A HD/2011 ARE ITA NO.1628 AND 1629/AHD/2010 & 1431/AHD/2011 ITA NOS.2352 AND 2353/AHD/2012 -15- PARTLY ALLOWED AND THE REVENUES APPEALS IN ITA NO. 2352 AND 2353/AHD/2012 ARE DISMISSED. SD/- SD/- ( %& %& %& %& /T.R. MEENA) &' ( /ACCOUNTANT MEMBER ( .. /G.C. GUPTA ) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER DR/AR ITAT AHMEDABAD