TaxTMI 
TaxTMI 
2007 (12) TMI 310
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....r section 143(2) and sought an adjournment for 4-3-2000, on which date too, he did not cause appearance. Thereafter, a show-cause notice dated 15-3-2000 was issued along with a notice under section 142(1) of the Act and, in response to which part reply was furnished on 20-3-2000 and further time was sought for filing the balance details on 27-3-2000. On this date also, the assessee failed to cause appearance and, accordingly, the Assessing Officer framed assessment under section 144 on 30-3-2000 and computed the income of the assessee at Rs. 14,58,810. On appeal before the CIT(A), the assessee submitted that the reply to the show-cause notice was filed before the Assessing Officer on 30-3-2000 at around 6 PM but the reply was not considered by the Assessing Officer and, hence, he was not justified in proceeding to make an order under section 144 of the Act. In this connection assessee submitted as under:- "In this connection it is submitted that there is a misunderstanding of facts and therefore, misstatement of the facts in the order passed by the Assessing Officer on this account. The facts are that the assessee was being represented in the department by Income-tax practitione....
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....ssessee. Therefore, the pre-conditions required for invoking the provisions contained in section 144 of the Act has not been complied with. He drew our attention to the submission made before the CIT(A) and affidavit filed by the assessee. On the basis thereof he has submitted that once the counsel for the assessee had acted in accordance with the direction of the Assessing Officer, there was no justification for the Assessing Officer to frame the assessment under section 144 of the Act. On the other hand, the ld. DR has relied upon the order of the Assessing Officer/CIT. 5. We have heard the rival submissions of the parties and perused the material to which our attention was drawn during the course of hearing. There is no dispute that the notice dated 18-9-1999, 23-12-1999 and 17-2-2000 had remained uncomplied with. The submissions of the assessee, however, is that once the assessee had complied with the show-cause notice dated 15-3-2000 by filing reply on 20-3-2000 and 30-3-2000, there was no occasion to frame the assessment under section 144 of the Act. The contention of the assessee is that the reply was filed on 30-3-2000 only on the verbal directions of the Assessing Offic....
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.... this statement the closing balance as on 31-3-1997 is Rs. 70,862 whereas as per the books of account of the assessee is Rs. 58,889. The difference of Rs. 11,972 could not be satisfactorily explained. Moreover, this is additional evidence filed before him. Hence he has rejected the evidence filed and confirmed the addition made by the Assessing Officer. 7. Before us, the Ld. counsel for the assessee has submitted that the CIT(A) was not justified in rejecting the confirmation filed as an additional evidence. He has submitted that the amount represented credits from purchase made from M/s. Vijay Udyog. He drew our attention to the fact that the confirmation so filed by assessee along with its submission had also been forwarded to the Assessing Officer for his report and since the Assessing Officer had not made any comments on such evidence furnished by the assessee, it was incumbent upon the CIT(A) to have accepted such additional evidence filed by the assessee. Further, CIT(A) was not justified in rejecting the confirmation on the ground of difference in balance since the invoices issued by M/s. Vijay Udyog and reconciliation of closing balance had also been furnished before him....
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....nd that the assessee was unable to lead proper evidence or on the ground that the evidence led was of such a nature as to create a very high degree of suspicion. There should be no objection to consider any evidence produced to test its authenticity relevance and then to act on it. If the evidence is genuine, reliable, proves the assessee's case, then the assessee should not be denied the opportunity. But on the other hand, if the evidence led turns out to be spurious, fabricated or of irrelevant nature, such consequences as are provided for under the law will ensue. It is, therefore, incorrect to shut out an assessee in the process of administration of justice from leading evidence to prove its case. The earlier inability to lead evidence should not be held against the assessee unless it is known to the Court or suggested to the Court or there was evidence to suspect that the evidence was fabricated." 9. In the light of the aforesaid judicial pronouncement, which are fully applicable to the facts of the assessee, we hold that the CIT(A) was not justified in not admitting the confirmation from M/s. Vijay Udyog as additional evidence. The Ld. CIT(A) has held reading the aforesaid....
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....ontended that books of account along with vouchers evidencing the agriculture income had been produced in the course of assessment proceedings, therefore, he was not justified in holding that details of agriculture activity had not been furnished in the course of assessment proceedings. The assessee further placed reliance on the reply dated 29-3-2000 filed with the Assessing Officer on 30-3-2000, which was not considered by the Assessing Officer while making the assessment. It was submitted that the decision in case of H.H. Maharaja Vibhuti Narain Singh (supra) is inapplicable as the same is not under the Income-tax Act but under Agriculture Tax Act of a State. Reference was also made to the decision of the Apex Court in the case of CIT v. Raja Benay Kumar Sahas Roy [1957] 32 ITR 466 . Also evidence including copies of Khasra Girdawari showing the land use as per revenue records, sale books, purchase book, vouchers, death certificate and bank statement of Shri B.C. Maheshwari, confirmation of accounts were also filed to establish the genuineness of agricultural operations. In view of the above facts and circumstances, it was submitted that the addition made to the returned income ....
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....e on record in which flowers' cultivation is duly reflected. Therefore, anything stated to be contrary in the impugned order by the learned CIT(A) has to be ignored. The entries in Khasra Girdawari are further supported by the report of the Inspector who visited place twice and confirmed that nursery was being run at agricultural land owned by the assessee. He noted several plants and saplings in polythene bags for sale of customers. There is further statement on oath of Shri Maheshwari who was stated to an expert in this line of a business, and admittedly helped the assessee in carrying on nursery business. At page 59 of the Paper Book, there is a copy of statement of the assessee recorded under section 131 on 29-1-1997. It is seen from the statement that she was subjected to a very lengthy cross-examination which she withstood. She gave detail of business, which was carried on by her for earning agricultural income. The said statement has not been challenged on any material point although as noted earlier she was subjected to a lengthy cross-examination. Therefore, there is direct evidence on record that agricultural activity in the shape of planting and growing of seeds, plants,....
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....s been accepted by the revenue department. In fact in assessment year 1994-95 too the Assessing Officer partially accepted the claim of the assessee but, however, on appeal the Tribunal has accepted the entire claim of the assessee. In that year the Assessing Officer made the extensive investigation with regard to the nature of activity carried on by the assessee and it was only on the consideration of such material, it was held that assessee was engaged in agricultural activities. The report of the inspector obtained in the course of assessment proceedings for assessment year 1994-95 has also been placed at page 55 of the paper book, which clearly shows that the operation of land are being undertaken with help of human skill and labour. It also establishes that there is no rest house or dwelling houses constructed there except that the land under reference is covered by boundary wall of stones. In fact, similar income of Rs. 6,47,570 had also been declared as agricultural income in assessment year 1995-96 which too stand accepted by the revenue department. Thus, it can be concluded that the assessee is engaged in agricultural operation on the said land and therefore, income has to....
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....ght kilometers of Municipal limit of Delhi, therefore, the income derived from the agriculture activity cannot be income within the meaning of section 2(1A) of the Act is not based on correct appreciation of facts of the case. Section 2(1A) of the Act defines the agriculture income which reads as under :- "2(1A).-'agricultural income' means- (a )any rent or revenue derived from land which is situated in India and is used for agricultural purposes; (b )any income derived from such land by- (i )agriculture; or (ii )the performance be a cultivator or receiver of rent-in-kind of any process ordinarily employed by a cultivator or receiver of rent-in-kind to render the produce raised or received by him fit to be taken to market; or (iii)the sale by a cultivator or receiver of rent-in-kind of the produce raised or received by him, in respect of which no process has been performed other than a process of the nature described in paragraph (ii) of this sub-clause; (c )any income derived from any building owned and occupied by the receiver of the rent or revenue of any such land, or occupied by the cultivator or the receiver of rent-in-kind, of any land with respect to wh....