Shri Dulichand Gole, v. The DCIT, 5(1),

ITA 112/IND/2005 | 1996-1997
Pronouncement Date: 28-01-2010 | Result: Partly Allowed

Appeal Details

RSA Number 11222714 RSA 2005
Assessee PAN ABLPG0398R
Bench Indore
Appeal Number ITA 112/IND/2005
Duration Of Justice 4 year(s) 11 month(s) 24 day(s)
Appellant Shri Dulichand Gole,
Respondent The DCIT, 5(1),
Appeal Type Income Tax Appeal
Pronouncement Date 28-01-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted DB
Tribunal Order Date 28-01-2010
Date Of Final Hearing 18-01-2010
Next Hearing Date 18-01-2010
Assessment Year 1996-1997
Appeal Filed On 03-02-2005
Judgment Text
1 IN THE INCOME TAX APPELATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH AND SHRI V.K. GUPTA AM ITA NO.112/IND/05 A.Y. 1996-97 DULICHAND GOLE BADWANI APPELLANT PAN AABLPG0398R VS ASSTT. COMMISSIONER OF INCOMETAX CIRCLE 5(1) INDORE RESPONDENT APPELLANT BY S/SHRI AJAY TULSIYAN & MAHESH AGRAWAL RESPONDENT BY SMT. APARNA KARAN SR. DR O R D E R PER JOGINDER SINGH JM THIS APPEAL IS BY THE ASSESSEE AGAINST THE ORDER O F THE LD. CIT(A) DATED 31.12.2004 ON THE FOLLOWING GROUNDS: 2 1. T HE LD. CIT(A) HAS ERRED IN CONFIRMING THE REOPENING OF ASSESSMENT U/S 148 OF THE INCOME TAX ACT. 1.1 IT WAS PROVED BEFORE THE LD. CIT(A) AS WELL AS BEFO RE THE LD. AO THAT THE MATERIAL FOUND DURING THE SEARCH OPERATION CANNOT B E USED OTHER THAN BLOCK ASSESSMENT. 2. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.11 38 164/- ON ACCOUNT OF INCOME EARNED FROM MONEY LENDING AND PAW NING BUSINESS. 2.1 IT WAS PROVED BEFORE THE LD. CIT(A) AS WELL AS LD. AO THAT THE ASSESSEE HAD A SUFFICIENT MONEY FOR MONEY LENDING AND PAWNIN G BUSINESS IN PREVIOUS YEARS WHICH IS OUT OF PURVIEW FOR TAXATION PURPOSE. 2.2 IT WAS ALSO PROVED BEFORE THE LD. CIT(A) THAT THE I NCOME WAS ESTIMATED BY THE LD. AO LEVYING THE DIFFERENCE OF ASSETS AS ON 0 3.08.94 TO 31.03.96 WHICH IS FOR 20 MONTHS. AS SUCH THE INCOME WASA FO R 20 MONTHS WHICH CANNOT BE ADDED AS INCOME OF THE PREVIOUS YEAR. 2.3 THE ADDITION MADE MAY KINDLY BE DELETED OR IN THE A LTERNATIVE BE RESTRICTED TO A REASONABLE FIGURE. 3. THAT THE LD. CIT(A) HAS ERRED IN NOT GIVING FULL CR EDIT OF RS. 2 00 000/- AS AGRICULTURAL INCOME IN DIFFERENCE OF OPENING AND CL OSING ASSETS. 3.1 IT WAS PROVED BEFORE THE LD. CIT(A) AS WELL LD. AO THAT THE ASSESSEE HAS BEEN DOING JOINT AGRICULTURAL ACTIVITIES WITH ALL H IS FAMILY MEMBERS AND LD. CIT(A) HAS HIMSELF ALLOWED 10 000/- PER ACRE AGRIC ULTURAL INCOME IN BLOCK ASSESSMENT APPEAL. 3 3.2 THE CLAIM OF AGRICULTURAL INCOME OF RS.50 000/- MAY KINDLY BE ACCEPTED IN FULL. 2. DURING HEARING OF THIS APPEAL WE HAVE HEARD LEA RNED REPRESENTATIVES FROM BOTH THE SIDES AND CONSIDERED THE ARGUMENTS PUT FOR TH BY THEM. AT THE OUTSET THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT PRESS GROU ND NOS. 1 TO 2.3 OF THE GROUNDS OF APPEAL CONSEQUENTLY THE SAME ARE DISM ISSED AS NOT PRESSED. 3. THE ONLY COMMON GROUND RAISED BY THE ASSESSEE IS THAT THE CLAIM OF AGRICULTURAL INCOME OF RS. 50 000/- MAY KINDLY BE A LLOWED IN FULL BY PLEADING THAT THE ASSESSEE IS HAVING 25 ACRES OF AGRICULTURA L LAND AND IN THE BLOCK ORDER RS. 25 LACS FOR SIX YEARS HAS BEEN ACCEPTED AS AGRI CULTURAL INCOME BY THE DEPARTMENT ITSELF. OUR ATTENTION WAS INVITED TO PAG ES 160 TO 178 OF THE PAPER BOOK. THOUGH THE LEARNED SENIOR DR DEFENDED THE IM PUGNED ORDER BUT DID NOT CONTROVERT THIS FACTUAL ASSERTION OF THE ASSESSEE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON THE FILE. WE HAVE FOUND THAT THE TRI BUNAL VIDE ORDER DATED 31.10.2006 (IT(SS)A NO. 15 AND 38/IND/05 THAT TOO IN THE CASE OF THE ASSESSEE ALLOWED THE APPEAL OF THE ASSESSEE AND ACCEPTED THE AGRICULTURAL INCOME AT RS.25 52 614/- IN PLACE OF RS.20 20 000/- ESTIMATED BY THE LEARNED CIT(A). THIS FACTUAL MATRIX WAS NOT CONTROVERTED BY THE REVENUE BEING A MATTER OF RECORD THEREFORE WE ARE ALSO REFRAINING FROM REPRODUCING THE RELEVANT PORTION OF THE ORDER (INTERNAL PAGE 18 AND PAPER BOOK PAGE 177). IN VIEW OF THIS THIS GROUND OF THE ASSESSEE IS ALLOWED. 4 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 28 TH JANUARY 2010. (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER 28.01.2010 COPY TO APPELLANT RESPONDENT CIT CIT(A) DR GU ARD FILE *DN/-