Shri Bholabhai Becharbhai Patel, Surat v. The Income tax Officer, Ward-9(1),, Surat

ITA 2482/AHD/2007 | 2004-2005
Pronouncement Date: 13-08-2010 | Result: Partly Allowed

Appeal Details

RSA Number 248220514 RSA 2007
Assessee PAN AAVPP5911C
Bench Ahmedabad
Appeal Number ITA 2482/AHD/2007
Duration Of Justice 3 year(s) 2 month(s) 6 day(s)
Appellant Shri Bholabhai Becharbhai Patel, Surat
Respondent The Income tax Officer, Ward-9(1),, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 13-08-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 13-08-2010
Date Of Final Hearing 03-08-2010
Next Hearing Date 03-08-2010
Assessment Year 2004-2005
Appeal Filed On 07-06-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : AHMEDABA D (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HON'BLE S HRI N.S. SAINI A.M.) I.T.A. NO. 2482/AHD./2007 ASSESSMENT YEAR : 2004-2005 SHRI BHOLABHAI BECHARBHAI PATEL SURAT -VS.- IN COME TAX OFFICER WARD-9(1) SURAT (PAN : AAVPP 5911 C) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.N. VEPARI RESPONDENT BY : SHRI K.M. MAHESH SR. D.R. O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 10.01.2007 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-V SURAT FOR TH E ASSESSMENT YEAR 2004-05. 2. THE GROUND NO. I RAISED BY THE ASSESSEE IN HIS A PPEAL IS AGAINST INVOKING THE PROVISIONS OF SECTION 145(3) OF THE INCOME TAX ACT MADE BY THE ASSESSING OFFICER FOR DETERMINING THE AGRICULTURAL INCOME. AT THE TIME OF HEARING BEFORE US THIS GROUND OF APPEAL WAS NOT PRESSED BY THE LD. COUNSEL OF THE ASSESSEE. THEREFORE THIS GR OUND OF APPEAL IS DISMISSED BEING NOT PRESSED. 3. GROUND NO. II IS AGAINST TREATMENT OF RS.4 64 79 2/- AND RS.11 133/- OUT OF AGRICULTURE INCOME EARNED BY THE ASSESSEE AS INCOME FROM OTHER SOURCES. 3.1. AT THE TIME OF HEARING ON BEHALF OF ASSESSEE SHRI R.N. VEPARI LD. COUNSEL APPEARED AND POINTED OUT THAT IN THE ASSESSMENT ORDER THE ASSES SING OFFICER HAS TAKEN THE VIEW IN PARA B. 6 TO 2 ITA NO. 2482/AHD/2007 9 AT PAGES 6 TO 10 BY MENTIONING THAT THE LANDS ARE IN THE JOINT NAMES OF THE ASSESSEE AND HIS FAMILY MEMBERS AGRICULTURE INCOME EMANATING FROM S UCH LANDS WOULD NOT BE FULLY OF THE ASSESSEE BUT ONLY PART OF THE ASSESSEE THE BALANCE PART BELONGING TO OTHER CO-OWNERS AND THEREFORE PROPORTIONATE PART AS WORKED OUT BY THE ASSESSING OFFICER BELONGING TO OTHERS HAS BEEN TREATED AS INCOME FROM OTHER SOURCES. THE LD. COUNS EL OF THE ASSESSEE POINTED OUT THAT IN THE EARLIER YEAR I.E. IN THE ASSESSMENT YEAR 2003-04 A LSO THE ASSESSING OFFICER IN THE ASSESSMENT ORDER HAD TAKEN THE AGRICULTURE INCOME OF THE ASSES SEE AT RS.1 09 134/- AND THE BALANCE AMOUNT OF RS.3 08 764/- FOR BELONGING TO THE OTHER CO-OWNE RS AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE UNDER SECTION 68 OF THE INCOME TAX ACT 19 61.IN THE IMPUGNED ORDER THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) CONFIRMED THE A DDITION. HOWEVER ITAT VIDE ORDER DATED 29.02.2008 IN ASSESSEES OWN CASE IN ITA NO. 72/AHD/2007 FOR THE ASSESSMENT YEAR 2003- 04 RESTORED THE MATTER BACK TO THE FILE OF ASSESSIN G OFFICER. THE SAID FINDING OF THE TRIBUNAL IS CONTAINED IN PARAS 5 & 6 OF ITS ORDER. IN VIEW OF T HIS THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT FOLLOWING THE DECISION DATED 29.02.2008 OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2003-04 (SUPRA) THE MATTER BE RESTORED TO THE FILE OF ASSE SSING OFFICER FOR DECIDING THIS ADDITION AFRESH. 4. ON THE OTHER HAND SHRI K.M. MAHESH LD. SR. D.R . APPEARING ON BEHALF OF THE REVENUE COULD NOT CONTROVERT THE AFORESAID SUBMISSIONS OF T HE LD. COUNSEL OF THE ASSESSEE. 5. HAVING HEARD BOTH THE SIDES WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT IN THE ASSESSME NT YEAR 2003-04 THE ISSUE REGARDING TREATMENT OF INCOME FROM BUSINESS OUT OF AGRICULTURE INCOME EARN ED BY THE ASSESSEE AS INCOME FROM OTHER SOURCES WAS RESTORED TO THE FILE OF ASSESSING OFFI CER BY THE ITAT VIDE DECISION DATED 29.02.2008 IN ASSESSEES OWN CASE IN ITA NO. 72/AHD /2007. THE RELEVANT PARAS 5 & 6 ARE CONTAINED IN PAGES 7 TO 9 OF THE ORDER DATED 29.02. 2008 (SUPRA). BY RESPECTFULLY FOLLOWING THE ORDER OF ITAT DATED 29.02.2008 IN ASSESSEES OWN CA SE WE RESTORE THE CONTROVERSY INVOLVED IN THIS GROUND OF APPEAL TO THE FILE OF ASSESSING OFFI CER WHO WILL RE-ADJUDICATE THE ADDITION AFRESH IN ACCORDANCE WITH LAW AFTER GIVING ADEQUATE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. 3 ITA NO. 2482/AHD/2007 6. THE LAST GROUND OF APPEAL IS REGARDING LEVY OF I NTEREST UNDER SECTION 234. LEVY OF INTEREST UNDER SECTION 234 IS MANDATORY. HOWEVER ASSESSING OFFICER WILL ALLOW CONSEQUENTIAL RELIEF UNDER THIS SECTION. 7. IN THE RESULT FOR STATISTICAL PURPOSES THE APP EAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 13.08.201 0 SD/- SD/- (N.S. SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13 / 08 / 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR ITAT AHMEDABAD LAHA/SR.P.S.