SMT. SHASHI SHARMA, Bhopal v. THE ACIT 1(2), Bhopal

ITSSA 181/IND/2013 | 2005-2006
Pronouncement Date: 17-11-2014 | Result: Allowed

Appeal Details

RSA Number 18122716 RSA 2013
Assessee PAN AEMPS0106B
Bench Indore
Appeal Number ITSSA 181/IND/2013
Duration Of Justice 1 year(s) 4 month(s) 6 day(s)
Appellant SMT. SHASHI SHARMA, Bhopal
Respondent THE ACIT 1(2), Bhopal
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 17-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 17-11-2014
Assessment Year 2005-2006
Appeal Filed On 11-07-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI P.K. BANSAL HONBLE ACCOUNTANT MEMBER AND SHRI MUKUL SHRAWAT HONBLE JUDICIAL MEMBER IT(SS) NO. 531 178 TO 181/IND/2013 : (A.Y : 2001 - 02 TO 2005 - 06) SMT. SHASHI SHARMA A - 70 SHAKTI NAGAR BHOPAL PAN : AEMPS0106B (APPELLANT) VS ASST . COMMISSIONER OF INCOME TAX - 1(2) BHOPAL ( RESPONDENT ) ASSESSEE BY : B.K. NEMA & K.P. DEWANI REVENUE BY : LALCHAND CIT DR DATE OF HEARING : 17 /09/2014 DATE OF PRONOUNCEMENT : 17 / 11 /2014 O R D E R PER BENCH 1. ALL THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDERS OF CIT(A) DT. 18.3.2013. EXCEPT FOR A.Y 2001 - 02 IN ALL OTHER A.YS THE ISSUE INVOLVED IS COMMON. IT(SS) NO. 531/IND/2013 (A.Y : 2001 - 02) 2. IN A.Y 2001 - 02 THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL : 1. THE NOTICE ISSUED BY ASSESSING OFFICER U/S 148 OF INCOME TAX ACT 1961 IS ILLEGAL INVALID AND BAD IN LAW AND THUS CONSEQUENT ASSESSMENT FRAMED THERE UPON BE CANCELLED. 2. THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE VALIDITY OF NOTICE ISSUED U/S 148 O F THE INCOME TAX ACT 1961 AND HOLDING THAT PROCEEDINGS U/S 147 OF INCOME TAX ACT 1961 ARE IN ORDER. 2 IT(SS) NO. 531 178 TO 181/IND/2013 (ASST. YEARS : 2001 - 02 TO 2005 - 06) 3. THE LEARNED ASSESSING OFFICER ERRED IN HOLDING THAT INVESTMENT MADE IN NSCS REMAINS UNEXPLAINED AND IS LIABLE TO BE ASSESSED AS INCOME. 4. THE LEARNED CIT(APPEALS) ERRED IN UPHOLDING THAT RS.1 80 000/ - BEING AMOUNT OF INVESTMENT MADE IN NSCS IS LIABLE TO ASSESSED TO TAX AS UNEXPLAINED INVESTMENT AT THE HANDS OF ASSESSEE. 5. THE LEARNED AUTHORITIES OUGHT TO HAVE ACCEPTED THE EXPLANATION OF ASSESSEE WITH REGARD TO INVESTMENT MADE IN NSCS AND NO ADDITION AT RS.1 80 000/ - OUGHT TO HAVE BEEN MADE. 6. THE ADDITION MADE BY ASSESSING OFFICER AT RS.1 80 000/ - ON ACCOUNT OF INVESTMENT MADE IN NSCS BY ASSESSEE IS UNJUSTIFIED UNWARRANTED AND EXCESSIVE. 7. THE ASS ESSEE DENIES LIABILITY TO BE ASSESSED TO INTEREST U/S 234A 234B AND 234C OF THE I.T. ACT 1961. WITHOUT PREJUDICE THE LEVY OF INTEREST U/S 234A 234B AND 234C IS UNJUSTIFIED UNWARRANTED AND EXCESSIVE. 3. GROUND NOS. 1 & 2 SINCE NOT PRESSED THEREFORE STAND S DISMISSED AS NOT PRESSED. 4. GROUND NOS. 3 TO 6 RELATE TO SUSTENANCE OF ADDITION OF RS.1 80 000/ - ON ACCOUNT OF INVESTMENT MADE BY THE ASSESSEE IN NSC. THE FACTS RELATING TO THIS ADDITION ARE THAT THE AO NOTED THAT THE ASSESSEE MADE INVESTMENT IN NSC TO THE EXTENT OF RS.1 80 000/ - . THE AO THEREFORE REOPENED THE ASSESSMENT. WHEN CALLED FOR THE ASSESSEE EXPLAINED THAT THE INVESTMENTS HAVE BEEN MADE OUT OF AMOUNT RECEIVED ON MATURITY OF NSC WHICH WAS PURCHASED BY THE ASSESSEE IN A.Y 1995 - 96. THE AO WITHOUT VERIFYING THE CORRECTNESS OF THE FACT FROM THE POST OFFICE MADE THE ADDITION. THE ASSESSEE WENT IN APPEAL BEFORE CIT(A). THE CIT(A) ALSO CONFIRMED THE ADDITION. 5. WE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONGWIT H THE ORDER OF THE TAX AUTHORITIES BELOW. WE NOTED THAT DURING THE COURSE OF THE SEARCH CONDUCTED AT THE RESIDENCE OF THE ASSESSEE ON 7.9.2009 3 IT(SS) NO. 531 178 TO 181/IND/2013 (ASST. YEARS : 2001 - 02 TO 2005 - 06) KVP NUMBERS AND NSC NUMBERS ALONGWITH THEIR DETAILS WERE FOUND. THE SOURCE OF THE NSC MATURED ON 19.1.2007 AND 24.1.2007 ARE DULY EXPLAINED FROM THIS CHART. THE SAID CHART IS REPRODUCED AS UNDER : 1. SOURCE OF NSC MATURED ON 19.01.2007 (MATURITY VALUE RS.1 90 120) S. NO. KVP/NSC DATE OF ISSUE FACE VALUE DATE OF MATURITY MATURITY VALUE INTEREST MATURITY VALUE 01 KVP - 17CC004847 NSC 621 24.01.95 19.01.01 10000 20000 19.01.01 19.01.07 20000 38024 18024 38024 02 KVP - 17CC004848 NSC 622 24.01.95 19.01.01 10000 20000 19.01.01 19.01.07 20000 38024 18024 38024 03 KVP - 12BB559261 NSC 623 24.01.95 24.01.95 19.01.01 5000 5000 2000 19.01.07 19.01.01 19.01.07 10000 10000 38024 18024 38024 04 KVP - 17CC004845 NSC 624 24.01.95 19.01.01 10000 20000 19.01.07 19.01.07 20000 38024 18024 38024 05 KVP - 17CC004846 NSC 625 24.01.95 19.01.01 10000 20000 19.01.07 19.01.07 20000 38024 18024 38024 TOTAL (RS.) 90120 190120 2. SOURCES OF NSC MATURED O N 24.01.2007 (MATURITY VALUE RS. 1 52 096 / - ) S. NO. KVP/NSC DATE OF ISSUE FACE VALUE DATE OF MATURITY MATURITY VALUE INTEREST MATURITY VALUE 1 KVP NSC 30EE616236 NSC 30EE616237 06.01.95 06.01.01 06.01.01 10000 10000 10000 06.01.01 24.01.07 24.01.07 20000 19012 19012 9012 9012 19012 19012 2 KVP NSC 30EE616238 NSC 30EE616239 06.01.95 06.01.01 06.01.01 10000 10000 10000 06.01.01 24.01.07 24.01.07 20000 19012 19012 9012 9012 19012 19012 3 KVP NSC 30EE616240 NSC 30EE616241 06.01.95 06.01.01 06.01.01 10000 10000 10000 06.01.01 24.01.07 24.01.07 20000 19012 19012 9012 9012 19012 19012 4 KVP NSC 30EE616242 NSC 30EE616243 06.01.95 06.01.01 06.01.01 10000 10000 10000 06.01.01 24.01.07 24.01.07 20000 19012 19012 9012 9012 19012 19012 TOTAL (RS.) 72096 152096 FROM THE SAID CHART NECESSARY KVP NUMBER WHICH GOT MATURED IN JANUARY 2001 AGAINST WHICH THE ASSESSEE CLAIMED THAT HE HAS PURCHASED THE NSC ARE APPARENT. WHEN THE ASSESSEE DOES NOT HAVE A COPY OF THE KVP AND THE AO DOUBTED THE SOURCE OF THE INVESTMENTS IN NSC THE AO SHOULD HAVE VERIFIED THE 4 IT(SS) NO. 531 178 TO 181/IND/2013 (ASST. YEARS : 2001 - 02 TO 2005 - 06) CORRECTNESS FROM THE POST OFFICE WHERE THE KVP GOT MATURED ON 19.1.2007 AND 6.1.2001 SO THAT THE SOURCE OF INVESTMENT AS CLAIM ED BY THE ASSESSEE COULD HAVE BEEN VERIFIED AS THE ASSESSEE CLAIMED THAT HE HAS INVESTED A SUM OF RS.1 00 000/ - ON 19.1.2001 WHILE A SUM OF RS. 80 000/ - ON 6.1.2001 ON WHICH DATE THE KVP GOT MATURED. SINCE WE ARE SATISFIED WITH THE SOURCE OF THE INVESTMEN T WE THEREFORE DELETE THE ADDITION. IN THE RESULT GROUND NOS. 3 TO 6 ARE ALLOWED. 6. GROUND NO. 7 IS CONSEQUENTIAL IN NATURE RELATING TO CHARGING OF INTEREST U/S 234A 234B AND 234C. WE DIRECT THE AO TO RE - COMPUTE THE INTEREST U/S 234A 234B AND 234C AFTER GIVING EFFECT TO THIS ORDER. IT(SS) NOS. 178 TO 181/IND/2013 (A.YS : 2002 - 2006) 7. THE ONLY ISSUE INVOLVED IN ALL THESE ASSESSMENT YEARS IN GROUND NOS. 1 AND 2 RELATE TO THE SUSTENANCE OF ADDITION BY THE AO UNDER THE HEAD INCOME FROM OTHER SOURCES OUT OF THE AGRICULTURAL INCOME RETURNED BY THE ASSESSEE IN THE VARIOUS YEARS AS DETAILED BELOW : ASSESSMENT YEAR AMOUNT 2002 - 03 RS.70 000/ - 2003 - 04 RS.30 000/ - 2004 - 05 RS.38 921/ - 2005 - 06 RS.1 00 000/ - 8. THE BRIEF FACTS RELATING TO THESE GROUNDS ARE THAT THE ASSESSEE WAS OWNING 19 ACRES OF AGRICULTURAL LAND. ASSES SEE HAS SHOWN AGRICULTURAL INCOME IN A.Y 2001 - 02 AT RS.2 72 082/ - WHICH HAS BEEN DULY ACCEPTED BY THE AO. IN THE SUBSEQUENT ASSESSMENT YEAR THE ASSESSEE HAS RETURNED FOLLOWING AGRICULTURAL INCOME : 5 IT(SS) NO. 531 178 TO 181/IND/2013 (ASST. YEARS : 2001 - 02 TO 2005 - 06) ASSESSMENT YEAR GROSS RECEIPT EXPENDITURE NET INCOME 2002 - 03 RS.4 20 700/ - RS.1 40 000/ - RS.2 80 700/ - 2003 - 04 RS.3 03 694/ - RS.1 23 964/ - RS.1 79 730/ - 2004 - 05 RS.5 33 431/ - RS.1 44 220/ - RS.3 89 211/ - 2005 - 06 RS. 4 06 200 / - RS.90 000/ - RS.3 16 200/ - THE AO DID NOT ACCEPT THE AGRICULTURAL INCOME AND TREATED THE WHOLE OF THE INCOME AS INCOME FROM OTHER SOURCES AND ASSESSED THE SAME IN THE HANDS OF DR. YOGIRAJ SHARMA HUSBAND OF THE ASSESSEE SUBSTANTIVELY AND PROTECTIVELY IN THE HANDS OF THE ASSESSEE. T HE ASSESSEE WENT IN APPEAL IN EACH OF THE ASSESSMENT YEARS. CIT(A) TOOK THE VIEW THAT SINCE THE AGRICULTURAL LAND IS OWNED BY THE ASSESSEE THE INCOME SO EARNED CANNOT FORM PART OF THE INCOME OF DR. YOGIRAJ SHARMA AND THEREFORE HE DIRECTED THE AO TO ASSES S THE AGRICULTURAL INCOME SUBSTANTIVELY IN THE HANDS OF THE ASSESSEE. THE CIT(A) WAS OF THE OPINION THAT THE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE IS ON THE HIGHER SIDE AND THEREFORE HE TREATED PART OF THE AGRICULTURAL INCOME RETURNED BY THE ASSESSEE AS INCOME FROM OTHER SOURCES AS DETAILED BELOW AND TO THAT EXTENT CONFIRMED THE ORDER OF AO. ASSESSMENT YEAR INCOME FROM OTHER SOURCES 2002 - 03 RS.70 000/ - 2003 - 04 RS.30 000/ - 2004 - 05 RS.38 921/ - 2005 - 06 RS.1 00 000/ - THE ASSE SSEE HAS COME IN APPEAL BEFORE US. 9. WE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONG WITH THE ORDER OF THE TAX AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE ORDER OF NAGPUR BENCH IN ITA NO. 1/NAG/2008 IN THE CASE OF SMT. RUKSANA BEGUM DT. 26.6.2009 IN WHICH IT HAS BEEN HELD THAT AGRICULTURAL INCOME AT RS. 30 500/ - PER ACRE IS REASONABLE IN THE ABSENCE OF DAY TO DAY ACCOUNT HAVING 6 IT(SS) NO. 531 178 TO 181/IND/2013 (ASST. YEARS : 2001 - 02 TO 2005 - 06) BEEN MAINTAINED BY THE ASSESSEE AS RELIED ON BY THE LD. AR. WE NOTED THAT DURING THE COURSE OF THE AS SESSMENT PROCEEDINGS THE ASSESSEE HAS PRODUCED BEFORE THE AO THE PROOF OF OWNING AGRICULTURAL LAND AS WELL AS ABSTRACT IN FORM - P2 COPY OF WHICH ALSO WAS PLACED BEFORE US FROM PG. 64 TO 88. THIS EVIDENCE PROVES THAT THE ASSESSEE IS CULTIVATING THE LAND A ND GETTING AGRICULTURAL PRODUCE. WE ALSO NOTED THAT THE ASSESSEE HAS RETURNED AGRICULTURAL INCOME DURING THE ASSESSMENT YEAR 2001 - 02 AT RS.2 72 082/ - WHICH IS APPARENTLY CLEAR FROM THE COPY OF THE RETURN AVAILABLE AT PG. 1 - 3. THE ASSESSMENT HAS BEEN RE - OP ENED U/S 148 BUT THE AO DID NOT DISPUTE THE AGRICULTURAL INCOME EARNED BY THE ASSESSEE AT RS.2 72 082/ - . WE NOTED THAT IN EACH OF THE YEAR THE NET AGRICULTURAL INCOME SHOWN BY THE ASSESSEE PER ACRE IS AS UNDER : ASSESSMENT YEAR INCOME FROM OTHER SOURCES 2002 - 03 RS.14 774/ - 2003 - 04 RS. 9 460/ - 2004 - 05 RS.20 485/ - 2005 - 06 RS.16 642/ - IN A.Y 2001 - 02 THE ASSESSEE HAS RETURNED AGRICULTURAL INCOME @ RS.14 320 / - PER ACRE WHICH HAS DULY BEEN ACCEPTED BY THE AO. WE HAVE ALSO GONE THROUGH THE DECISION OF NAGPUR BENCH OF THIS TRIBUNAL IN ITA NO. 1/NAG/2008 IN THE CASE OF SMT. RUKSANA BEGUM (SUPRA). IN THIS CASE WE NOTED THAT THIS TRIBUNAL VIDE ORDER DT. 26.6.20 09 HAS HELD AS UNDER : 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS ORDERS OF THE AUTHORITIES BELOW AND THE MATERIALS AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE IS OWNING AGRICULTURAL LAND WHERE AGRICULTURAL OPERATIONS HAVE BEEN CARRIED ON. THE AGRICULTURAL INCOME HAS BEEN DECLARED BY THE ASSESSEE IN EARLIER YEARS AND IN SUBSEQUENT YEARS AS WELL WHICH HAS BEEN ACCEPTED BY THE TRIBUNAL. IN THE YEAR UNDER CONSIDERATION THE CARRYING OF AGRICULTURAL ACTIVITIES IS NOT IN DISPUTE AND ONLY QUA NTUM OF REVENUE FROM SUCH ACTIVITIES IS IN DISPUTE. THE A.O. HAS REJECTED THE TOTAL AGRICULTURAL CLAIMED BY THE ASSESSEE WHEREIN THE LD. CIT(A) HAS ACCEPTED THE CLAIM OF THE ASSESSEE TO THE EXTENT OF RS.20 000/ - PER ACRE AS AGAINST RS.30 500/ - APPROXIMATEL Y ACCEPTED BY THE TRIBUNAL IN THE CASE OF LINK HOUSE INDUSTRY LTD. (SUPRA) WHICH DECISION HAS BEEN RELIED ON BY THE LD. CIT(A). HOWEVER THE LD. 7 IT(SS) NO. 531 178 TO 181/IND/2013 (ASST. YEARS : 2001 - 02 TO 2005 - 06) CIT(A) HAS NOT GIVEN ANY REASON FOR FIXING THE YIELD AT RS.20 000/ - PER ACRE. WE FURTHER FIND THAT THE ASSESSE E IS GROWING ORANGES AND MOSAMBIES WHICH ARE ALSO CASH CROPS AS IN THE CASE OF LINK HOUSE INDUSTRIES LTD. (SUPRA) HENCE WE SEE NO REASON NOT TO ACCEPT THE RATIO OF THAT DECISION IN TOTO. ACCORDIN GLY WE FIX THE YIELD AT RS.30 500/ - PER ACRE. CONSEQUENTLY THE ASSESSEE GETS FURTHER RELIEF OF RS.42 000/ - . THUS THIS GROUND OF APPEAL OF ASSESSEE IS ALLOWED IN PART. THE FACTS INVOLVED IN THIS CASE ALSO WE FEEL ARE SIMILAR TO THE FACTS IN THE CASE OF SMT. RUKSANA BEGUM. WE NOTED THAT THE CIT(A) IN EACH OF THE ASSESSMENT YEAR HAS ACCEPTED 90% OF THE RECEIPT FROM AGRICULTURE AS RETURNED BY THE ASSESSEE TO BE AGRICULTURAL INCOME BUT TREATED APPROXIMATELY 10% OF THE RECEIPT TO THE NON - AGRICULTURAL. THE BASIS OF MAKING ASSUMPTION IN THIS MANNER HAS NOT BEEN GIV EN. THERE CANNOT BE ANY THUMB RULE HOW MUCH INCOME ONE PERSON MAY DERIVE FROM AGRICULTURE. ONCE THE NAGPUR BENCH OF THIS TRIBUNAL HAS ACCEPTED RS.30 500/ - PER ACRE IN A.Y 1999 - 2000 WHICH IS MUCH ABOVE THE INCOME PER ACRE AS RETURNED BY THE ASSESSEE IN EA CH OF THE IMPUGNED ASSESSMENT YEAR WE ARE BOUND TO ACCEPT THE AGRICULTURAL INCOME AS RETURNED BY THE ASSESSEE IN EACH OF THE ASSESSMENT YEARS. WE ACCORDINGLY SET ASIDE THE ORDER OF CIT(A) ON THIS ISSUE AND DIRECT THE AO TO ACCEPT THE AGRICULTURAL INCOM E AS RETURNED BY THE ASSESSEE AS THE AGRICULTURAL INCOME IN EACH OF THE ASSESSMENT YEAR AND THE AGRICULTURAL INCOME SO DERIVED SHOULD BE ASSESSED IN THE HANDS OF THE ASSESSEE SUBSTANTIVELY. THUS GROUND NOS. 1 & 2 IN EACH OF ASSESSMENT YEARS IS ALLOWED. 10. GROUND NO. 3 IN EACH OF THE ASSESSMENT YEARS RELATE TO CHARGING OF INTEREST U/S 234A 234B AND 234C WHICH IS CONSEQUENTIAL IN NATURE. WE THEREFORE DIRECT THE AO TO RE - COMPUTE THE INTEREST U/S 234A 234B AND 234C AFTER GIVING EFFECT TO THIS ORDER. 11. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE FOR A.Y 2001 - 02 IS PARTLY ALLOWED WHILE THE APPEALS FOR A.YS 2002 - 03 TO 2005 - 06 ARE ALLOWED. 8 IT(SS) NO. 531 178 TO 181/IND/2013 (ASST. YEARS : 2001 - 02 TO 2005 - 06) 12. ORDER PRONOUNCED IN PURSUANCE OF RULE 34(4) OF ITAT RULES 1963 BY PUTTING ON NOTICE BOARD OF THE BENCH A T INDORE . SD/ - ( MUKUL SHRAWAT ) JUDICIAL MEMBER SD/ - (P.K. BANSAL) ACCOUNTANT MEMBER DATED : 17 / 11 /2014 *SSL* COPY TO : (1) ASSESSEE (2) REVENUE (3) CIT CONCERNED (4) CIT(A) CONCERNED (5) D.R (6) GUARD FILE TRUE COPY BY ORDER