The ITO, Ward-2,, Vapi v. Shri Narendrabhai R.Desai, Valsad

MA 102/AHD/2010 | 2004-2005
Pronouncement Date: 27-08-2010 | Result: Dismissed

Appeal Details

RSA Number 10220524 RSA 2010
Assessee PAN BHOPD0186C
Bench Ahmedabad
Appeal Number MA 102/AHD/2010
Duration Of Justice 4 month(s)
Appellant The ITO, Ward-2,, Vapi
Respondent Shri Narendrabhai R.Desai, Valsad
Appeal Type Miscellaneous Application
Pronouncement Date 27-08-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 27-08-2010
Assessment Year 2004-2005
Appeal Filed On 27-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI MAHAVIR SINGH JUDICIAL MEMBER AND SHRI A.N. PAHUJA ACCOUNTANT MEMBER M.A.NO.102/AHD/2010 (ARISING OUT WITH ITA NO.2553/AHD/2007 ASSESSMENT YEAR:2004-05 DATE OF HEARING:27.8.10 DRAFTED::27.8 .10 INCOME TAX OFFICER VAPI WARD-2 VAPI V/S . SHRI NARENDRABHAI R DESAI AT PALSANA VIA UNDWADA TAL. PARDI DIST. VALSAD PAN NO.ABHOPD0186C (ORIGINAL RESPONDENT) (ORIGINA L APPELLANT) (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI K.M.MAHESH SR-DR RESPONDENT BY:- SHRI R.M. UPADHYAY AR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- BY WAY OF THIS MISCELLANEOUS APPLICATION (MA) THE REVENUE HAS REQUESTED THE BENCH TO AMEND ITS ORDER AS REGARDS TO FINDING S OF OWNERSHIP OF ASSETS AND ASSESSMENT IN THE HANDS OF HUF PASSED IN ITA NO.2553/AHD/2007 DATED 27-02- 2009. 2. THE REVENUE BEFORE US HAS RAISED THE ISSUE AS UN DER:- THE ISSUE OF OWNERSHIP OF ASSETS AND INCOME GENERA TED THERE FROM CAME INTO BEING ONLY DURING THE COURSE OF ASSESSMENT PROCEEDI NGS WHEN THE ASSESSEE MADE AN ENTIRELY NEW CLAIM THAT THE LAND & CATTLE B ELONGED TO THE HUF AND HENCE INCOME THERE FROM SHOULD BE ASSESSED IN THE H ANDS OF THE HUF. THE CLAIM WAS APPROPRIATELY DEALT WITH AN REJECTED IN T HE ASSESSMENT ORDER. THE VIEW HELD IN THE ASSESSMENT ORDER WAS FURTHER ENDOR SED BY THE LD. CIT(A) AFTER DETAILED ANALYSIS. IT APPEARS THAT IT IS A MI STAKE APPARENT ON RECORD IN THE HONBLE ITAT NOT APPRECIATING THE OBSERVATIONS MADE IN THE ASSESSMENT ORDER AND IN THE APPEAL AS WELL. THE ASSESSEES CLAIM REG ARDING OWNERSHIP OF MA NO.102/AHD/2010 (A/O ITA NO.2553/AHD/2007) A.Y.04-05 ITO VAPI WD-2 V. SH. NARENDRABHAI R DESAI PAGE 2 ASSETS IN THE HANDS OF HUF OUGHT NOT HAVE BEEN ACCE PTED IN ABSENCE OF ANY RETURN FILED BY THE HUF AND THE INCOME BEING DECLAR ED BY A A HIMSELF IN HIS INDIVIDUAL CAPACITY YEAR AFTER YEAR. WE FIND THAT THE TRIBUNAL IN ITS ORDER IN PARA-5 HAS DEALT WITH THE ISSUE OF OWNERSHIP AS UNDER:- 5. WE FIND THAT THE REVENUE AUTHORITY HAVE ACCEPTE D THAT THERE WAS A PARTITION OF BIGGER HUF OF THE ASSESSEE ON 23-04-19 98 NO DOUBT THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME OF HUF THAT DOES NOT MEAN THE STATUS OF HUF IS GONE. FOR THE STATUS OF HUF TO BE REMAINED INTACT THE NUCLEUS IS REQUIRED. HERE THE LAND AND CATTLE ARE THE NUCLEUS OF THE HUF. WHETHER THE ASSESSEE HAS FILED THE RETURN OF INCOME FOR THAT THE ASSESSING OFFICER CAN TAKE PROPER ACTION UNDER THE PROVISION OF THE ACT. ACCORDINGLY WE ARE OF VIEW THAT THE HUF EXISTS AND THE CORRECT MET HOD IS TO ASSESS INCOME INTO CORRECT HANDS. THE HON'BLE CALCUTTA HIGH COUR T IN THE CASE OF MAYNAK PODDAR (HUF) V. WEALTH-TAX OFFICER (2003) 262 ITR 6 33 HAS DEALT WITH THAT THE QUESTION OF ASSESSMENT OF INCOME RELYING ON THE CALCUTTA HIGH COURTS DECISION IN THE CASE OF CIT V. BHASKAR MITTER (1994 ) 73 TAXMAN 437 (CAL) AND IN THE CASE OF MAYNAK PODDAR (HUF) (SUPRA) AND HELD AS UNDER:- THUS UNLESS THE DEFINITION OF NET WEALTH READ W ITH THE DEFINITION OF ASSET AS PROVIDED IN SECTION 2(M) AND SECTION 2(E A) RESPECTIVELY INCLUDES A BUILDING LET OUT TO A TENANT USED FOR CO MMERCIAL PURPOSES THE SAME CANNOT BE SUBJECTED TO WEALTH-TAX. EVEN IF THE ASSESSEE HAD INCLUDED THE SAME IN HIS RETURN THAT WOULD NOT PRE CLUDE THE ASSESSEE FROM CLAIMING THE BENEFIT OF LAW. THERE CANNOT BE A NY ESTOPPEL AGAINST THE STATUE. A PROPERTY WHICH IS NOT OTHERWISE TAXA BLE CANNOT BECOME TAXABLE BECAUSE OF MISUNDERSTANDING OR WRONG UNDERS TANDING OF LAW BY THE ASSESSEE OR BECAUSE OF HIS ADMISSION OR ON HIS MISAPPREHENSION. IF IN LAW AN ITEM IS NOT TABLE NO AMOUNT OF ADMISS ION OR MISAPPREHENSION CAN MAKE IT TAXABLE. THE TAXABILITY OR THE AUTHORITY TO IMPOSE TAX IS INDEPENDENT OF ADMISSION. NEITHER THE RE CAN BE ANY WAIVER OF THE RIGHT BY THE ASSESSEE. THE DEPARTMENT CANNOT RELY UPON ANY SUCH ADMISSION OR MISAPPREHENSION IF IT IS NOT OTHERWISE TAXABLE. THIS QUESTION WAS DEALT WITH BY THIS COURT IN BHASKAR MITTERS CASE (1974) 73 TAXMAN 437 AT PARAGRAPH 8 AT PAGE 442. IN THIS DE CISION THIS COURT OBSERVED:- AN ASSESSEE IS LIABLE TO PAY TAX ONLY UPON SUCH IN COME AS CAN BE IN LAW INCLUDED IN HIS TOTAL INCOME AND WHICH CAN BE L AWFULLY ASSESSED UNDER THE ACT. THE LAW EMPOWERS THE INCOME-TAX OFFI CER TO ASSESS THE INCOME OF AN ASSESSEE ACCORDING TO LAW AND DETERMIN E THE TAX PAYABLE THEREON IN DOING SO HE CANNOT ASSESS AN ASSESSEE O N AN AMOUNT WHICH IS NOT TAXABLE IN LAW EVEN IF THE SAME IS SH OWN BY AN ASSESSEE. THERE IS NO ESTOPPEL BY CONDUCT AGAINST LAW NOR IS THERE ANY WAIVER OF THE LEGAL RIGHT AS MUCH AS THE LEGAL LIABILITY TO B E ASSESSED OTHERWISE THAN ACCORDING TO THE MANDATE OF THE LAW (SIC). IT IS ALWAYS UPON TO AN ASSESSEE TO TAKE THE PLEA THAT THE FIGURE THOUGH S HOWN IN HIS RETURN OF TOTAL INCOME IS NOT TAXABLE IN LAW. MA NO.102/AHD/2010 (A/O ITA NO.2553/AHD/2007) A.Y.04-05 ITO VAPI WD-2 V. SH. NARENDRABHAI R DESAI PAGE 3 ACCORDINGLY WE FIND THAT THE ASSESSMENT OF INCOME OF AGRICULTURE & MILK INCOME SHOULD BE ASSESSED IN THE STATUS OF HUF WHO IS A REAL OWNER. ACCORDINGLY WE DIRECT THE ASSESSING OFFICER TO ASS ESS THE SAME IN THE HANDS OF HUF. ACCORDINGLY GROUND NO.1 IS DECIDED IN FAV OUR OF THE ASSESSEE AND AGAINST THE REVENUE AS REGARDS TO STATUS OF THE HUF . AS REGARDS TO GROUND NO.2 AND 4 THE ADDITION ON ACCOUNT OF PURCHASE OF F ERTILIZERS AND ADDITION OF SALE MILK INCOME BEING CONSEQUENTIAL. THE ASSESSING OFFICER WILL RE-DECIDE IN THE HANDS OF HUF AS PER THE PROVISION OF THE ACT. WE FIND THAT TRIBUNAL HAS ADJUDICATED THE ISSUE AFT ER DELIBERATING AND TAKING CONCISE VIEW HENCE THERE IS NO MISTAKE APPARENT FROM THE RECORD WHICH CAN BE RECTIFIED. THE REVENUE NOW WANT TRIBUNAL TO REVIEW ITS ORDER WHICH IS NOT PERMISSIBLE U/S.254(2) OF THE INCOME-TAX ACT 1961 AND THIS MA OF REVENUE IS DISMISSED. 3. IN THE RESULT REVENUE MA IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 27/08 /2010 SD/- SD/- (A.N. PHAUJA) (MA HAVIR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD DATED : 27/08/2010 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-VALSAD 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD