YAJESHWAR R GARG,MUMBAI vs. ACIT CIR 27(3), MUMBAI

आदेश / O R D E R

2.1. I have considered the rival submissions and perused the material available on record. Without going into much deliberation, I find from the assessment order that the case of the assessee was fixed for various dates as is evident from column-11 (page-1 of the assessment order) and the assessee himself attended the proceedings along with authorized representative from time to time and furnished the necessary details. Likewise, before the ld. Commissioner of Income Tax (Appeals), the assessee remained present and even remand report was sought from the Assessing Officer, therefore, I am not satisfied with the assertion of the assessee that proper opportunity of being heard was not provided to him, thus, this ground is having no merit, therefore, dismissed.

3.1. The next addition pertains to addition of Rs.5 lakh made by the ld. Assessing Officer. The ld. counsel for the assessee explained that the assessee is a farmer holding about 80 bighas (16 acres) of cultivated/irrigated fertile land situated in village Gajipur, Tehsil, Nagina, Dist. Bijnaur (U.P.). The assessee also furnished a letter from the Tehsildar and also copy of khautini evidencing growing of paddy, wheat, chara, etc. On the other hand, the ld. DR defended the addition made by the ld. Assessing Officer and confirmed by ld. Commissioner of Income Tax (Appeals).

3.2. I have considered the rival submissions and perused the material available on record. It is noted that the ld. Assessing Officer made addition of Rs.5 lakh disallowing the claim of the assessee that there was no evidence of sale of Eucalyptus Plantation that it was planted twenty years back and further the assessee could not tell the weight and height of trees. I have examine the issue, perused the material available on record, affidavit of the assessee, confirmation of payment by B.B. Sales Corporation on behalf of Shiv Hari Ply Woods (Pvt.) Ltd. certificated dated 26/11/2002, issued by the Tehsildar, wherein, it was confirmed that the assessee planted the Eucalyptus trees in the year 1978, confirmation by one Shri Niranjan Singh, son of Shri Buddhu Singh, resident of village Gajipur, who planted the trees. The ownership of land is not dispute, thus, I am not satisfied with the observation of the ld. Assessing Officer that the assessee could not tell the height of Eucalyptus trees, weight of wood, etc. The assessee even personally appeared before me and I examined him. I am satisfied with the explanation of the assessee and the evidence filed before this Tribunal. The ld. Assessing Officer made enquiries u/s 133(6) of the Act from M/s B.B. Sales Corporation, Mahim, wherein, Shri H. B. Bomble, proprietor, categorically stated that he made the payment of Rs.5 lakh on behalf of the M/s Shiv Hari Plywood through cheque. He also showed the copy of accounts along with reply. Thus, keeping in view, totality of facts and the material available on record, the addition so made deserves to be deleted.

3.3. The next addition made by the Assessing Officer is Rs.2,60,500/- from undisclosed sources. The ld. counsel for the assessee invited my attention to page-5 of the paper book containing khautini and growing of various crops. The genuineness of khautini even has not been doubted by the ld. Assessing Officer. Even the ownership of land is not doubt. However, I found from the khautini that the ownership of land is in the name of Shri Ashis Garg. On questioning from the assessee, it was explained that Ashis Garg is his son and is a marine engineer and the agricultural operation is got done by him from the labour residing in the village. I find that the khautini is duly certified by the Tehsildar, Nagina, Dist. Bijanuar and the growing of crops like dhan (paddy), wheat, chara, is not in dispute. Even the ld. Commissioner of Income Tax (Appeals) allowed wheat crop, therefore, growing of crop is not in dispute. Keeping in view, the ownership of land/extent of land safely it can be concluded that the claimed amount can easily be grown from the land explained before me. However, since the land is in the name of Shri Ashis Garg (son of the assessee), the ld. Assessing Officer only has to examine that there should not be double claim, one in the name of Ashis Garg and another one by the assessee from the same land. The assessee is directed to produce the evidence that no such claim has been made by Shri Ashis Garg for the same land. Subject to this verification, the addition is deleted.

Finally, the appeal of the assessee is partly allowed.

This order was pronounced in the open in the presence of ld. representative from both sides at the conclusion of the hearing on 28/01/2016.