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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI AMIT SHUKLA, JM & SHRI S. RIFAUR RAHMAN, AM
आदेश / O R D E R Per Amit Shukla, Judicial Member: 1. The aforesaid appeal has been filed by assessee against order dated 05.02.2020 by the Ld. CIT (Appeals)-2, Thane, for the
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quantum of assessment for the A.Y. 2011-12. The assessee had taken as many as ten grounds, reading as under:- “(1) the “CIT(A)”, on a due consideration of facts and circumstances of the case, particularly that the assessment order dated 29.03.2014 that had been passed under section 143(3) itself was invalid, owing to selection of case for scrutiny assessment not being based on expression of opinion by the Assessing Officer, should have held that the said assessment order dated 29.03.2014 (which was subject matter of appeal before him) was void ab-initio; (2) otherwise also, initiation of proceedings for regular assessment under section 143(3) and so also conclusion thereof in terms of assessment order dated 29.03.2014, was not in accordance with the provisions of law and accordingly the same should have been declared as null and void by the “CIT(A)”; WITHOUT PREJUDICE TO THE AFORESAID (3) the “CIT(A)” has erred in law and on facts in sustaining addition of Rs.34,72,750/- being one half of agricultural income aggregating Rs.69,45,500/- (shown as agricultural income but treated as „cash credit‟ by the Assessing Officer); (4) the appellant’s version of agricultural income shown at Rs.69,45,500/- stood fully supported by documentary and other evidences and there was no justification, either on facts or in law
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to treat the sum of Rs.34,72,750/- as having remained unexplained; (5) after having accepted that the appellant had actually been engaged in „agricultural activities‟ as per the report submitted by the Assessing Officer [on a requisite being made by the “CIT(A)” during the course of appellate proceedings}, should have allowed the appellant’s claim for „agricultural income‟ as per appellant‟s version; (6) the authorities below have erred in law and on facts in sustaining an addition of Rs.2,93,188/-, owing to alleged discrepancy (ies) in figures of receipts from various customers (as noted by the Assessing Officer in para 6 of the assessment order dated 29.03.2014); (7) the Ld. “CIT(A)” has erred in law and on facts in sustaining disallowance of statutory deduction (30% of the gross rental income from house property), after holding that – (a) income as had been shown by the appellant was in the nature of income from business; and (b) no deduction was permissible under section 24(b) of the Act; (8) after having accepted the appellant’s version of the „rental income‟, the authorities below should have held that statutory deduction at the rate of 30% of „gross rental‟ was admissible to the appellant under section 24(a) of the Act;
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(9) in relation to the “Grounds of Appeal” mentioned above, the appellant begs to refer and rely upon the „Synopsis‟ as appearing in Annexure-I hereto. (10) the appellate order dated 05.02.2020 (served on the appellant on 11.03.2020) is contrary to facts, law & principle of natural justice; 2. After conclusion of hearing on 12.07.2022, Sri S.K. Garg, Advocate appearing on behalf of the assessee, had sought our permission to take Additional ground being ground no.11, reading as under:- “11. the learned assessing officer has erred in law and in facts in making an adhoc disallowance, out of expenses debited to Profit and Loss Account, aggregating Rs.12,34,31,972/- on the ground that the same had been partly incurred in cash on self made vouchers without any supporting evidences such as confirmation of the receipts on some of the bills / vouchers / nature of expenses were not properly mentioned. Inflation of such expenses cannot be ruled out and there is a possibility of non business expenditure considering the nature of business. In view of such deformities observed in details of such expense, hence to plug any revenue loss adhoc disallowance of Rs.30,00,000/- of expenses is proposed to be made on which the AR of the assessee agreed and accordingly Rs.30,00,000/- is disallowed and added back to the total income of the assessee.”
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On such request being made on behalf of the assessee, hearing of the said appeal was adjourned to 13.07.2022 the next date (for consideration of admissibility of „additional ground‟ as aforesaid and our decision thereon).
At the outset, the appeal has been filed belatedly and the assessee, an “individual” by status had filed affidavit seeking condonation of delay. During the course of hearing of appeal, the ld. counsel for the assessee had filed paper book which contained written submission dated 08.07.2022. In paras 2, 3, 4 and 5, of the said written submissions, following plea had been taken on the issue of delay in filing the appeal:- 2. The appeal had been filed belatedly, by more than six months, for the reasons enumerated in the petition for condonation of delay, and explanation for condonation of such delay had been filed in the form of affidavit duly sworn-in by the appellant himself (forming part of the appeal set itself on pages 37 to 39 thereof). From a perusal of the said affidavit/explanation, it would be seen that, such delay had occurred due to Janta Curfew declared by Government of India on 22.03.2020, before arrival of the expiry date for filing 2nd appeal before the Hon‟ble ITAT.
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Besides, the appellant himself had been victim of deadly corona virus. 3. The Government of India took due cognizance of the deadly disease Covid-19, and advised the Union Finance Ministry, to act in the direction of alleviating problems faced by public at large. The Union Finance Ministry had instructed the Central Board of Direct Taxes (CBDT), New Delhi, to issue necessary instructions from time to time and accordingly, ithad been extending various time limits, for compliance of various provisions under the Income Tax Act. 4. Cumulative effect of the situation as narrated above, was that there had been serious dislocation at the end of the appellant, who had been an individual by status, and such a dislocation had caused severe interruption even in day-to-day working of the appellant. This had lead to delay in filing the appeal within the stipulated period of sixty days. 5. Looking to the reasonableness and sufficiency of causes that had led to delay in filing the appeal before the Hon’ble ITAT, the same deserves to be condoned and the appellant respectfully prays for „indulgence‟ of the Hon‟ble Bench, to condone the delay and decide the appeal on merits thereof.
Ms. Smt. Mahita Nair, representing the department, did not contest the assessee‟s request for condonation of delay, as the delay explained by the assessee was on cogent reasons of outbreak of
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Covid-19 owing to which Janta Curfew had been declared by Government of India on 22.03.2020, before arriving of the expiry date of filing of 2nd appeal before the ITAT.
Looking to the aforesaid reasons for condonation of delay, we feel that it was purely due to circumstances beyond the control of assessee and is based on cogent reasonable grounds which was an inevitable situation faced by country at that point of time, therefore, we incline to condone the same. Accordingly, the delay in filing the appeal has been condoned and we proceed to hear the appeal (filed by the assessee) on merits thereof.
During the course of hearing on 12.07.2022, the Ld. (counsel for the appellant in so far as grounds no.1 and 2 which relate to challenge to selection of case for scrutiny assessment under computer aided scheme (CASS) based on „non-expression‟ of opinion by the ld. Assessing Officer, was given up by the ld. counsel of the assessee. With the result that, only grounds no.3, 4, 5, 6, 7, 8, 9 and 10 and additional ground being ground no.11 survive for
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our consideration and such grounds are decided in the way that follows. 9. So far as grounds no.3, 4 and 5 are concerned, the same relate to estimate of agricultural income at Rs.34,72,750/- as had been made by the ld. CIT(A)in his order dated 05.02.2019, in the following way:- “7.1 I have examined the facts of the matter the say of the AO in the assessment order and the arguments as well as evidences put forth on behalf of the appellant. Under various grounds of appeal, the appellant has disputed in the present appeal the addition on account of agricultural income of Rs.69,45,500/- reported by the appellant. I find that the dispute with regards to the genuineness of agricultural income is also prevalent in subsequent assessment years. In response to the directions of the CIT(A) in appeal proceedings in the case of the appellants wife Smt. Vandana Tripathi for A.Y. 2012-13, enquiries were carried out by the AO by deputing his circle inspector to visit the appellant‟s agricultural lands situated in MP and conduct necessary enquiries. The inspector of the circle visited and inspected the agricultural lands of both the appellant and his wife Smt. Vandana Tripathi and conducted necessary local enquiries. The circle inspector has reported that various types of agricultural crops as well as seasonal vegetables are raised on the land with the help of Shri Phanindra Bhushan Garg brother in law of the
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appellant. Photographs of the agricultural lands with crops standing thereon are also enclosed with the said remand report. I also find that the AO subsequent to such enquiries in the subsequent assessment proceedings for A.Y. 2013-14 accepted agricultural income of Rs.22,25,656/- out of total agricultural income of Rs.52,25,656/- reported for the said asst. year. Similarly for A.Y. 2014-15, the AO has accepted 50% of the agricultural income to be genuine. On the background of the above facts, particularly the remand report of the AO after inspecting the agricultural lands and his action of accepting agricultural income to the extent of 50%. I hold that in absence of agricultural accounts and supporting records maintained by the appellant, agricultural income to the extent of 50% can be accepted as arising from carrying on agricultural operations. Accordingly, I hold that out of total reported agricultural income of Rs.69,45,500/- declared by the appellant, 50% being Rs.34,75,750/- is to be accepted as arising from carrying on agricultural operations as provided u/s 2(1A) and the balance amount Rs.34,72,750/- is to be taxed as unexplained cash credit. Accordingly out of total addition of Rs.69,45,500/- the appellant gets relief of Rs.34,72,750/- and addition to the extent of balance Rs.34,72,750/- is confirmed. The appeal is decided accordingly.”
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Earlier, the Dy. CIT, Circle-3, Thane, hereinafter referred to as Assessing Officer had taken a view that there were no withdrawals for purchases of inputs for other expenses incurred on cultivation and also of sale of crops, as given in para 5 of the assessment order 29.03.2014, which reads as under:- “5. Agricultural Income:- The assessee has shown Rs.69,45,500/- as agricultural income. Accordingly information was called for from the assessee to substantiate claim of agricultural income. In response to the same the assessee has submitted 7/12 Extracts of land only and stated it on such large holding of land income shown from agriculture is very reasonable. But the argument of the AR of the assessee is not acceptable. Agricultural income is exempt from Income-tax and therefore to claim exemption assessee has to substantiate claim of agricultural activities. Assessee failed even to make a prima-facie case of agricultural activities. No corresponding withdrawal, expenses, purchase, sale is submitted. Hence under the facts and circumstances entire income shown under the head “Agricultural Income” treated as unaccounted cash credit u/s 68.”
After hearing both the parties and on perusal of records and from the discussions made by the authorities below, it is evident that the appellant‟s version of earning agricultural income to the
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extent of Rs.69,45,500/- had been disbelieved, primarily on the ground that there are no withdrawals for expenses and other „inputs‟ (purchases), and evidences for sale of crops had not been produced, either before the Assessing Officer or even in 1st appeal. Sri Garg learned AR, invited our attention to the order dated 13.10.2017 passed by ld. CIT(A)-2, Pune in the case of Smt. Vandana Tripathi (wife of the appellant) for the assessment year 2011-12, which showed that the appellant also did have agricultural land under his cultivation (like his wife Smt. Vandana Tripathi) and his minor children, on which agricultural operations were being looked after by one Sri Phanindra Bhushan Garg, brother of Smt. Vandana Tripathi, a close and trusted relative. The modus operandi followed by Sri Phanindra Bhushan Garg had been that he himself had been incurring all the expenses, as were required for the purposes of cultivation, including expenses incurred on purchase of “inputs” and he himself had been selling the crops grown on the agricultural land belonging to the appellant and his minor children. Only net agricultural income, net of all the expenses, was being remitted to the appellant and the remittances
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so received at the end of the appellant, were being credited in his „capital account‟, as appearing in the books of the proprietary concern, namely Indian Corporation, (as belonging to the appellant).
From such „capital account‟, the agricultural income was being transferred, to be deposited in the regular bank account of the appellant and the net income so deposited (in the bank accounts of the appellant) was being disclosed as agricultural income by the appellant in the returns filed by him, year after year, including the year under reference here. Thus, the appellant‟s version of agricultural income stood proved from the documentary evidences, if not direct, but circumstantial evidences had been maintained in regular course. It is a law well settled that circumstantial evidences, even though the same may not be admissible in court of law, but the constitute „material‟, for the purposes of assessment. The ld. DR on the other hand relied very heavily upon the assessment order dated 29.03.2014 and the appellate order dated 05.02.2020.
We have considered the matter in its entirety. It is seen that the appellant belong to a family of farmers and was having
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agricultural land holding in his native place in the State of Madhya Pradesh in the name of himself and his minor children. After he had shifted to Maharashtra, particularly Thane, the land holdings and agricultural operation at Satna (Madhya Pradesh), were being looked after by a close relative. Net agricultural income that had enured to the appellant, was being disclosed by him, on the basis of remittances from the „care taker‟, which were being credited to the capital account of the appellant, as appearing in the books of account of his proprietary concern, namely Indian Corporation and such books of account had not been rejected rather found to be acceptable.. Besides, there is another angle also. Even if the assessee‟s version is not supported by documentary evidences, although it was not the case here, yet circumstantial evidences, are to be given due credence as per the decision of Hon‟ble Supreme Court in the case of Dhakeshwari Cotton Mills Ltd. vs. CIT reported in (1955) 26 ITR 775, wherein their lordships have observed and held as under:- “....The ITO is not barred by technical rules of evidence and pleadings, and he is entitled to act on material which may not be accepted as evidence in a Court of law, but in making the
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assessment under sub-s. (3) of s.23 the ITO is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment under s.23(3)...." (776)
In view of the discussions made above, the existence of „agricultural income‟ is acceptable in these facts and circumstances. Accordingly, we direct that his version of agricultural income at Rs.69,45,500/- be accepted and one half of the same which worked out to Rs.34,72,750/- [as had been sustained as „undisclosed income‟ by the ld. CIT(A)] is directed to be modified. No doubt, the level of agricultural income as shown in this year is higher as compared to the assessment year 2014-15 wherein the matter had been examined by us in greater details vide our order of even date, yet such income cannot be said to be having any set pattern, as quantum thereof varies with so many extraneous factors and even dependent a vagaries of whether.
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In the result the grounds no.3, 4 and 5 are allowed and the appellant gets a relief of Rs.34,72,750/- [which had been assessed by the ld. CIT(A) as undisclosed income.]
Coming to ground no.6, which refers to an addition of Rs.2,93,188/-as had been made by the ld. Assessing Officer, owing to variation between payments made/balance appearing in the accounts of various parties, including Punjab National Bank, as per discussion made in paras 6 and 6.1 of the assessment order, which are reproduced hereunder:- “6. On going through the income reconciliation statement vis-a-vis 26AS details, it is observed that, the assessee has not accounted the receipt which he received from various parties. The details of differences are as under:-
Sr. Name of the Party Income as per Income as per Difference No. 26AS return 1 Kuehne+Nagel Pvt. Rs. 66,180/- Rs. 60,000/- Rs.6.180/- Ltd. 2 Casby Logistics Pvt. Rs. 2,42,462/- Rs. 2,42,333/- Rs.129/- Ltd. 3 Punjab National Rs. 32,341/- Rs. 31,992/- Rs.349/- Bank 4 House full Rs. 4,16,934/- Rs. 3,35,912/- Rs.81,622/- International Ltd. 5 Jai Prakash Tiha Rs.17,52,360/- Rs.16,94,985/- Rs.57,375/-
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Tiwari 6 K D Logistics Rs. 6,60,147/- Rs. 5,22,921/- Rs.1,37,226/- 7 K.D. Supply Chain Rs. 94,307/- Rs. 84,000/- Rs.10,307/- Solution Pvt. Ltd. Total Rs.2,93,188/-
6.1 The AR of the assessee was specifically asked why the difference of Rs.2,93,188/- should not be added to the total income of the assessee. The AR of the assessee has not submitted any substantial details. Hence Rs.2,93,188/- and the same is added back to the total income of the assessee. Penalty proceedings u/s 271(1)(c) is also initiated separately on this amount for furnishing inaccurate particulars of income.”
From the said particulars, it would be seen that, besides other parties, the one is Punjab National Bank. The difference between assessee‟s version as per statement given by Punjab National Bank, may be on account of reconciliation and/or interest allowed by the Bank. Such an addition has been upheld by the ld. CIT (A) in the appellate order, under reference here, without dwelling upon the issue. It appears to us that addition had been made by the Assessing Officer and sustained by the ld. CIT(A), without making due enquiries from the persons concerned. It is a requirement of principles of natural justice that, in case any addition made,
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various aspects of the same have to be confronted to the assessee/noticee.
As full facts are not before us, we deem it proper to set aside the issue of addition of Rs.2,93,188/-for being redecided and reconsidered by the Assessing Officer himself, after making due enquiries from the parties concerned, with a rider that in case he is not satisfied by their version, he would give an opportunity to cross examine the parties concern. Unless process of making enquiries from the persons concerned and the appellant is given an opportunity to cross examine them, no addition could be legally made and we hold so. Accordingly, the issue of addition of Rs.2,93,188/- is set aside and restored to the file of the Assessing Officer, for reconsideration and redecision and in case there is any variation, the Assessing Office should give an opportunity to cross examine the persons/parties concerned by the appellant himself or through his authorised representative.
Coming to the grounds no.7 and 8, crux of the same is that the Assessing Officer had treated rental income as has been recorded in the books of account of the assessee‟s proprietary
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concern, namely Indian Corporation, as business income and on that basis he had denied the statutory deduction as was admissible for computation of income under the head „income from house property‟. Sri Garg stated that income yielded by letting out of „galas‟ stood included in the books of account maintained by it, in regular course. Such books of account had not been rejected, by invoking sub-section (3) of section 145 of the Act. Further, this treatment in books has been accepted in earlier years looking from this angle, it was not proper for the Assessing Officer to treat “rental income” as disclosed by the assessee as income from business and deny statutory deduction as is admissible under section 24(b) of the Act. The ld. DR relied upon AO.
Considering this fact that it is purely rental income from lease of „gala‟, we hold that there was no justification to treat „rental income‟ disclosed separately by the assessee year after year and accepted also by the Assessing Officer as business income and deny the claim of the assessee, for statutory deduction, under section 24(b) of the Act. Therefore, we hold that observations made by the authorities below/non-observation of any kind either way, by the ld.
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CIT(A), does not justify the treatment given to the rental income, and accordingly disallowance of Rs.21,97,805/- being 30% of rental of Rs.73,26,080/- was not proper. Accordingly, we hold that „rental income‟ could not have been assessed as business income, but under a specified head, i.e. income from house property and statutory deduction under section 24(b) should be allowed. This is more so for the reason that in the subsequent assessment years 2012-13 and 2013-14, no such disallowance had been made, nor rental income had been treated as business income as per assessment order Dt. 25.03.2015 and Dt. 29.03.2016 u/s 143(3) of the I.T. Act, 1961 respectively.
Now we take up the issue of adhoc disallowance of Rs.30,00,000/- as had been made by the Assessing Officer, after making following observations:- “7. On going through the P/L account it is seen that the assessee has debited Rs.12,34,31,972/- as expenses in various head which have been partly incurred in cash based on self made vouchers without any supporting evidences such as confirmation of the receipts. On some of the bills/vouchers nature of expenses were not property mentioned. Inflation of such expenses cannot be ruled out and there is a possibility of non business expenditure
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considering the nature of business. In view of such deformities observed in the details of such expense hence, to plug any revenue loss adhoc disallowance of Rs.30,00,000/- of expenses is proposed to be made on which the AR of the assessee agreed and accordingly Rs.30,00,000/- is disallowed and added back to the total income of the assessee.”
( 22. Sri Garg, the ld. AR submitted for our reconsideration, that disallowance of Rs.30,00,000 had been made in a very casual manner and that too on the ground that expenses had been incurred in cash, on the strength of self made vouchers. He pleaded that, looking to the nature of expenses claimed under various heads and the fact that the same had been entered on day to day basis in the books of account of the „proprietary concern‟ of the assessee, namely Indian Corporation and in view of the further fact that such books of account had been audited also, no such disallowance and that too on adhoc basis, was called for and unjustified. The said adhoc disallowance had not been contested in the first appeal, but the same had been contested by way of additional ground. So far as material available with the appellant
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against such disallowance, Sri Garg referred to the additional ground itself which contained a narration given by the Assessing Officer, to the effect that the expenses had been incurred on the strength of self made vouchers and such payments had been made in cash. 23. The ld. DR objected to such plea as it was raised in the appeal at any stage. 24. We have considered the rival submissions and our opinion that such adhoc disallowance was not at all called for as the Assessing Officer had aggregated all the „outgoings‟ as appearing on the debit side of the related Profit & Loss Account for the year ending on 31.03.2011 which was fully audited. Apart from that nothing has been pointed out by the AO that that certain discrepancy has been found in the details and therefore, then AR has agreed for addition when he was confronted. At least nothing has been brought on record. We are unable to subscribe to such adhoch disallowance, particularly when the same are entered in the books of account kept and maintained on day-to-day basis and in regular course of business. Such records had been audited also, by
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the independent auditors. Thus, the adhoc disallowance of Rs.30,00,000 as had been made by the ld. Assessing Officer does not have any merit. Accordingly, the same is deleted and the assessee gets relief of Rs.30,00,000/-.
In the result, the appeal filed by the assessee is allowed in the manner indicated above.
Orders pronounced in the open court on 28th July, 2022. Sd/- Sd/- (S. Rifaur Rahman) (Amit Shukla) Accountant Member Judicial Member मुंबई Mumbai;नदनधंक Dated : 28/07/2022 Sr.PS. Dhananjay
आदेशकीप्रतितितिअग्रेतिि/Copy of the Order forwarded to : 1. अपीलधथी/ The Appellant 2. प्रत्यथी/ The Respondent 3. आयकरआयुक्त(अपील) / The CIT(A) 4. आयकरआयुक्त/ CIT- concerned 5. नवभधगीयप्रनतनननध, आयकरअपीलीयअनधकरण, मुंबई/ DR, ITAT, Mumbai 6. गधर्ाफधईल / Guard File आदेशानुसार/ BY ORDER,
.उि/सहायकिंजीकार (Dy./Asstt.Registrar) आयकरअिीिीयअतिकरण, मुंबई/ ITAT, Mumbai