TaxTMI 
TaxTMI 
TaxTMI 
2013 (1) TMI 987
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....onal evidence before him. (ii) On the facts and in the circumstances of the case, the learned CIT(A) was not justified in making the determination of income at ₹ 3,87,640/- against the returned income of ₹ 1,68,088/-. (iii) That on the facts and in the circumstances of the case, the learned CIT(A) was not justified in not accepting the agricultural income shown by the assessee at ₹ 6,86,548/- and in treating the same as income from other sources and consequent addition of the same. (iv) That, on the facts and in the circumstances of the case, the learned CIT(A) was not justified in not allowing the deduction u/s 24 at 30% of the house property, rental receipt shown by the assessee at ₹ 33,000/-by treatingthe same as income from other sources and thus consequent addition." 2. During hearing of these appeals, in the case of Mohd. Atique, the assessee has challenged the action u/s 153C of the Act. The learned counsel for the assessee invited our attention to the recorded reasons for taking action u/s 153C of the Act by submitting that the documents were impounded u/s 133A of the Act, therefore, such action is without jurisdiction. It was pleaded that....
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....n of income disclosing agricultural income for various years under consideration. The stand of the revenue is that since the assessee filed the return showing agricultural income for various years for the first time, therefore, in real sense there is no income from agriculture and the Assessing Officer treated the agricultural income as income from other sources accordingly additions were made u/s 68 of the Act. The returned income as well as the assessed income are summarised as under :- Sl.No. A.Y. Agri. income on own land Agri. Income on lease hold land Amount of addition made by treating agricultural income as income from other sources 1 2001-02 2,82,348 4,04,200 6,86,548 2 2002-03 3,02,841 4,42,900 7,45,741 3 2003-04 3,25,611 4,85,900 8,11,511 4 2004-05 3,59,766 5,50,400 9,10,166 5 2005-06 4,88,376 5,93,400 10,81,776 6 2006-07 8,12,536 7,31,382 15,43,918 7 2007-08 7,88,000 7,86,930 15,74,930 6. If the table reproduced in the impugned order/assessment order is analysed, we find that the assessee has shown agricultural income, per acre, ranging from ₹ 6200/- to ₹ 10,000/-, respectively in the impug....
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....e ground that it was not filed during assessment proceedings. The assessee is basically an agriculturist for the last 40 years though having two trucks and also doing real estate business. So far as Khasra Khataunies are concerned, these are documents issued by the land revenue department of the Government and cannot be disbelieved unless and until any adverse material is brought on record. The statement of Mohd. Atique was recorded u/s 133A and in reply to question no. 3 he has stated that he has income from agriculture and in reply to question no. 6, he has claimed that he is having 30 - 40 acres of agricultural land in own name and nearly 150 -250 acres of land by other members of the family. Nearly 200 acres of agricultural land was claimed to be taken on lease (paper book pages 33 to 35 supports the claim of the assessee). Vide statement dated 24.9.2006 (Annexure 5-10) question no. 8, Shri Atique Ahmed tendered in his statement that they are doing business for the first time but their main occupation is agriculture where they are not maintaining any account. In statement dated 26.9.2006 Shri Shafique Khan (father of the assessee) in reply to question no. 4 (Annexure 12) claime....
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....02-03 and for the A.Y. 2004-05. In respect of Khasra for the a.Y. 2003-04, the same are placed at pages 7 to 30 and for the a.Y. 2005-06 at pages 7 to 31 and for the A.Ys. 2006-07 and 2007-08 at pages 7 to 56 of the paper book filed for the respective years. Copies of the purchase deeds showing purchase of land in the name of the assessee and other family members are placed at pages 81 to 184 of the paper book. 8. Additional evidence is necessary for proper appreciation of the issue in appeal and for adjudication of substantial justice. Such evidence may ultimately turn out to be to the benefit of either tax payer or the Revenue. Even in the matters which were earlier decided, fresh evidence may be admitted, though it may have the effect of different inference because res judicata has no application to income tax proceedings. From record we find that the assessee has been allowed very short time by the AO to comply with a number of inquiries and to produce various persons before the AO. Less than a month's time was given by the AO in case of 44 appeals of group, therefore, some of the evidences were filed before the CIT(A) which he should have accepted and proper opportunity shou....
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....tions have been made on the basis of entries made in the book marked as BS1. The total of such entries comes to ₹ 50,21,800/- (cash from Bhai Jan ₹ 17,09,800/- and cash paid ₹ 33,12,000/-). From the assessment stage itself it has been explained by the assessee that Bhai Jan is the nick name of Mohd. Atique. The cash book and books of accounts were impounded on 31.9.2006 (Annexure 22 and 21). The claim of the assessee is that these cash transactions were with respect to Navin Nav Yuvak (NN) and A.A. Real Estate (AA). It was contended that the assessee (Mohd. Atique) controls both the concerns and used to keep the cash of both the concerns with him. The claim of the assessee was rejected by the Assessing Officer. The learned first appellate authority in para 7.2 page 12 observed as under :- "The printout submitted before me is prepared on computer just to support the theory that the expenses are entered in the cash book of the two concerns. The cash book submitted before the A.O. did not have these entries. This clearly shows that the printout of cash book submitted before me are not reliable. In view of the above, it is held that the addition of ₹ 50,21,80....
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....indicated on the same set of papers, therefore, as per our considered view, amount paid by the assessee in excess of what he has received, can be treated as his unexplained income. Thus, the maximum addition which can be made works out to be ₹ 16,02,200/- (₹ 33,12,000/- (-) ₹ 17,09,800/-). Accordingly, the Assessing Officer is directed to restrict the addition to the extent of ₹ 16,02,200/- in place of ₹ 50,91,800/-. 13. The last ground pertains to not allowing deduction claimed u/s 24 at 30% of the house property rental receipt at ₹ 33,000/- by treating the same as income from other sources and consequent addition to the total income. The crux of arguments on behalf of the assessee is that the rental income from various properties situated at Safia College Road, Jawahar Chowk, Jumerati, Bhopal was claimed to have been received. These properties were claimed to have been purchased on 31.1.1987 and permission for construction of the same was obtained on 28.12.2003. The crux of arguments is that the permission certificate (Government document) and affidavit of tenant were not accepted by the learned CIT(A) being additional evidence and especially....
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....f substantial justice. Such evidence may ultimately turn out to the benefit of either tax payer or the department. We also find that the assessee was also allowed very short time by the Assessing Officer to comply with a number of inquiries, submission of documents and production of various persons before the Assessing Officer. The powers of the CIT(A) are co-terminus to admit fresh evidence with the powers of the Assessing Officer and these powers are stressed repeatedly by the Hon'ble M.P. High Court as well as the Hon'ble Supreme Court. For this purpose, reliance may be placed on - 1. CIT vs. Kanpur Coal Syndicate; 53 ITR 225(SC) 2. Indermal Natwarlal vs. ITO; 166 ITR 484 (MP) 3. ITO vs. Jute Corpn. of India Ltd.; 187 ITR 688 (SC) 4. CIT vs. Nirbhayram Daluram; 224 ITR 610 (SC) If the additional evidence is material in deciding the controversy and goes to the root of the matter, the same has to be accepeted as laid down in the case of CIT vs. Shiya Dawoodi Bohra Samaj (2008) 10ITJ 502 (MP) and CIT vs. Ku. Satya Setia; 143 ITR 486 16. There is also no law that the additional evidence should not be admitted. Only it has to be seen that the right of other party to r....
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.... CIT{A) was not justified in not applying the provisions of sec. 112 of the IT Act on shares of long term capital gain included in the hands of the appellant and in charging the tax on the normal rate in place of 20% applicable in the case of the appellant. 07. On the facts and in the circumstances of the case, the Id. CIT{A) was not justified in not accepting the opening cash balance of ₹ 5,00,000/- as on 01-042000 and in confirming addition of ₹ 5,00,000/- in the hands of the appellant 08. On the facts and in the circumstances of the case, the Id. CIT{A) was not justified in confirming the act of the assessing officer of not giving the credit for TOS , while assessing the income of the appellant on the basis of gross receipts from different govt. undertakings." 19. So far as ground no. 1 is concerned, it is evident from record that the assessee filed some addition evidences before the CIT(A) but he did not accept the same on the ground that the assessee did not file the same before the learned Assessing Officer. In our view, if this was the ground for not accepting the additional evidences, it was open for the learned CIT(A) to have accepted the same and calle....
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.... not covered u/s 44AE of the Act. 25. Before us, the learned counsel for the assessee submitted that though the trucks were run on contract basis but they were exclusively in possession of the assessee and the assessee was deriving income therefrom, the case of the assessee is clearly covered u/s 44AE of the Act. On the other hand, the learned CIT DR supported the orders of the authorities below with the submission that since the assessee is not the truck owner, no deduction u/s 44AE could be granted to him. 26. Considering the rival submissions in the guise of the facts obtaining in this case, we find that the Assessing Officer has made additions by estimating net profit at 8% on the income received from operation of trucks. The assessee has claimed computation of income from truck operation u/s 44AE which was declined by the Assessing Officer. The facts of the issue in brief are that the appellant has declared his income from business of truck operation u/s 44AE. The Assessing Officer observed that the assessee has taken trucks on hire from Anand Transport Company, Bombay Transport Company and Ekta Transport with a purpose to execute contract for transport of goods. The Asses....
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.... the reasonableness of profit rate applied by the Assessing Officer at 8%. The profit rate of 8% is applicable in case of contract receipts but here is a case of transportation. From the net profit declared on truck operation, we find that the assessee has shown net profit rate of 3.8% and 5.1% in the A.Ys. 2003-04 and 2004-05, respectively. In the A.Y. 2004-05 total receipts from transport business increased to ₹ 1,45,83,387/- as compared to transport receipt for the immediately preceding assessment year 2003-04 amounting to ₹ 32,47,740/-. In the A.Y. 2003-04, the assessee had shown net profit rate of 3.8% on the transport receipt of ₹ 32.47 lacs whereas in the A.Y. 2004-05, the assessee had shown transport receipt of ₹ 145.83 lacs and NP rate of 5.1%. Thus, it is clear that even after increase in transport receipts by more than four times, the assessee has shown better NP rate of 5.1% in place of 3.8% in the immediately preceding assessment year. Keeping in view the nature of the assessee's business, more than four times increase in turnover/receipts vis-à-vis better net profit rate shown by the assessee as compared to immediately preceding year, we....
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....he assessee's transaction with the sale transaction dated 23.10.1982 for plot of 1410 sq.ft. giving rise to the rate of ₹ 17.73 per sq.ft. 34. After considering the rival submissions, we find that the assessee was co-owner of land admeasuring 25765 sq.ft. situated at Ahmedabad Palace, Kohefiza. Bhopal. This property was acquired by the appellant and co-partners as inherited property It was sold during the year. While working out long term capital gain on sale of this land, the assessee claimed the fair market value as on 1.4.81 at ₹ 100 per sq.ft. The A.O. adopted the fair market value as on 1.4.81 at ₹ 17 per sq. ft. The Assessing Officer has adopted market value as on 1.4.1981 at ₹ 17/- per sq.ft. on the basis of sale transaction dated 23.10.1982 for the plot of 1410 sq.ft. sold for consideration of ₹ 25,000/- which resulted in rate of ₹ 17.73 per sq. ft. and accordingly worked out the long term capital gains at ₹ 95,85,816/- and the share of the assessee was worked out at ₹ 13,69,402/-. As the assessee has shown long term capital gains at ₹ 77,849/-, the Assessing Officer made addition of ₹ 12,91,553/-. 35. After ap....
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....d 23.10.1982 for the plot of 1410 sq. ft @ 17.73 sq.ft. i.e. for the consideration of ₹ 25,000/- and accordingly worked out the long term capkital gainat ₹ 95,85,816/- and the share of the minor son's of the appellant is ₹ 41,08,206/-. Since the appellant has shown the long term capital gain at ₹ 2,33,547/- the Assessing Officer made the addition of ₹ 38,74,659/- and taxed the same as in normal income. In this connection, it is submitted that the land of the appellant and his co owners was on the main road leading to Ahmedabad Palace of Nawab and just opposite of the flat house which was against the house of Nawab. While the transaction cited by theA.O. relates to the small patch of land far behind from the main road with a small service of land. In view of the above, both the transactions cannot be treated as identical and the market value as estimated by the A.O. at ₹ 17/- per sq.ft. in the year 1981 is too low. It is requested therefore the market value at ₹ 100 per sq. ft. be kindly accepted or the same be kindly increased suitably from ₹ 17/- per sq.ft. and the share of long term capital gain be kindly worked out and the addition....
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....dispute to the fact that the value of land is always determined as per its location whether on the main road or on service road, near to the land-marks or away from land-marks. Thus, we find that comparison made by the Assessing Officer was not proper and he has taken the value of plot which was situated at a very poor position as discussed hereinabove. Keeping in view the location of the assessee's plot which was on the main road, just opposite the flag house and by the side of Ahmedabad Palace residence of erstwhile rural of Bhopal Estate, the fair market value of this plot taken by the assessee at ₹ 100/- per sq. ft. as on 1.4.1981 was quite justified. The application of method of cost inflation index backwards also supports the rate of ₹ 100/- per sq. ft. taken by the assessee as on 1.4.1981. Accordingly, the addition made by the Assessing Officer is hereby deleted. 40. With regard to addition of ₹ 5 lacs on account of opening balance claimed during the A.Y. 2001-02, the facts are that during the assessment proceedings the appellant submitted a cash flow statement in which the opening balance as on 1.4.2000 was shown at ₹ 5,00,000/-. The Assessing Offi....
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.... taxes and TDS against the tax payable and direct the Assessing Officer to do so after verifying the factual position. 45. In the case of Mohd. Yusuf, the Revenue has taken the following common ground for the A.Ys. 2002-03, 2003-04 and 2004-05 :- "On the facts and in the circumstances of the case, the CIT(Appeal) has erred in deleting the substantive addition of ₹ 66,24,490/- (A.Y. 2002-03), ₹ 26,86,989/- (A.Y. 2003-04), ₹ 6,58,332/- (A.Y. 2004-05) made by the Assessing Officer." 46. The brief facts of the case are that the assessee was a working partner of M/s Anand Transport Company. A search and seizure operation u/s 132(1) of the Act was carried out in the case of Mohd. Shafique group of cases. The assessee is the son of Mohd. Shafique. During the search and seizure operation u/s 132(1) documents relating to the assessee were found. After recording reasons, notice u/s 153C was issued. Again a notice u/s 142(1) read with section 153C of the Act was issued. The return of income was filed u/s 153C. The assessee, in response to notice u/s 153C, appeared before the Assessing Officer wherein he was asked to furnish certain details as given in the questionnair....