TMI Blog2023 (5) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... and holding, calculation sheet, certificate from Horticulture Department etc., as above. Order passed by the Ld. CIT(A) is perverse to the facts on record. Accordingly, the amount u/s 69 confirmed by the CIT(A) is deleted. Decided in favour of assessee. - I.T.A. No. 311 And 84/Asr/2019 And 2021 - - - Dated:- 20-2-2023 - Dr. M. L. Meena, Accountant Member And Sh. Anikesh Banerjee, Judicial Member For the Appellant : Sh. Sudhir Sehgal and Sh. P. N. Arora, Adv. For the Respondent : Sh. Rajiv Wadhera, Sr. D.R. ORDER PER DR. M. L. MEENA, AM: Both the appeals have been filed by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals), Bathinda, dated 18.02.2019 in respect of Assessment Year 2009-10. 2. The assessee has raised the following grounds of appeal in ITA No. 311/Asr/2019: 1. The proceedings initiated by the AO u/s 147/148 are void ab-initio because the reasons recorded by the AO (reproduced in the assessment order) are reasons to suspect and not reasons to believe. 2. The proceedings initiated by the AO u/s 147/148 are void ab-initio because no satisfaction was recorded by the prescribed authority as provided u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23rd March, 2020 and in continuation of the order dated 8th March, 2021 directed that the period(s) of limitation, as prescribed under any General or Special Laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further orders. 4. That the Central Board of Direct Taxes vide its clarification dated 25.05.2021 has extended the limitation for counting the period of limitation for filing the appeal before the Commissioner of Income Tax (Appeals) till further order by the Hon ble Supreme Court. 5. It is submitted that when due/ reasonable opportunity have not been provided by the Ld. CIT(A), as the order as passed by the Ld. CIT(A) is void abinitio and, therefore, the Appellate order as passed by the Ld. CIT(A) vide order, dated 17.08.2021 deserves to be quashed. 6. Without prejudice to above grounds of appeals:- i) It is submitted that the CIT(A) has acted against the settled principle of law that the penalty proceedings are independent of assessment proceedings because penalty proceedings are quasi criminal proceedings. ii) It is also settled principle of law that the evidence filed during the cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.10.2008 +-Theka Received from Kinnus 4,00,000 - 15,96,500 03.11.2008 Cash Received from K.S. Company 1,50,000 - 17,46,500 08.11.2008 Cash received from agriculture income 4,11,150 21,57,650 11.11.2008 Cash received from Sohan Lai Co, 72,325.72 - 22,29,975.72 14.11.2008 Cash received from K.S. Company 1,50,000 - 23,79,975.72 21.11.2008 Cash deposit - 10,510 23,69,465.7 27.11.2008 Cash received from K.S. Company 2,95,525.67 - 26,64,991.39 01,03.2009 Sales of Potatoes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- on 12/03/2009. It need to be appreciated that potatoes are very inexpensive crop and for generating sale to the extent of Rs.34,00,000/- as has been claimed in the fund flow statement above it would require institutional selling and not the retail selling. The appellant might for such purposes necessarily engage itself into sophisticated farming and marketing. There is not even a shred of evidence to substantiate that contention. The version put forth by the appellant is unbelievable because even if he does not desire to keep the evidence for selling potatoes resulting into such a large cash accumulation would automatically leave behind footprints and trail. In absence of any such evidence the explanation of the appellant deserves dismissed. 4.2.3 Other Agriculture income: Besides the potatoes the appellant also provided evidence of amount received from K. S. Company and Sohan lal company for himself and his brother. These parties have confirmed the amounts on different dates. The appellant is entitled to benefit of the amounts from these sources to the extent of Rs. 8,67,850/- (1,00,000 + 1,50,000/- + 72,325/- + 1,50,000/- + 2,95,525/-). No benefit can be given f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat extent. The total benefit of agriculture income is Rs.10 lakhs plus Rs.8,67,850/-. Further the CIT(A) has challenged the cash flow [reproduced in para 4.2 on page 6 of the order] while rejecting the contention of the assessee regarding availability of funds to the extent of Rs.34,00,000/- from sale of crop of potato detailed as under:- Date Amount Opening balance as on 01.04.2008 20,00,000/- 01.03.2009 6,50,000/- 12.03.2009 7,50,000/- The contention of the assessee has been rejected only on the basis of presumption of the CIT(A) that the sale of potato to the tune of Rs.34,00,000/- would require institutional selling ft not retail selling fit the relevant findings is as under: - The appellant might for such purposes necessarily engage itself into sophisticated farming and marketing. There is not even a shred of evidence to substantiate that contention. The version put forth by the appellant is unbelievable because even if he does not desire to keep the evidence for selling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lture land of the family would not be in the possession of the assessee as the assessee owns only 4.5 acres of land (Para 4.2.1). The relevant observation of the CIT(A) is reproduced below:- It would be fallacy to take on record that entire sale proceeds of the family would be in the possession of the appellant as has been claimed but this is not believable the other family members would not part with their income. 8. It is seen that there is a contradiction in the findings of the Ld. CIT(A) as in para 4.2.3, the CIT(A) has accepted the agriculture income to the tune of Rs. 18,67,850/- by categorically recording the finding on the basis of total land holding of the family by observing as under: - However, considering the totally of circumstances of land holding of the family engaged in agriculture activity for past many years an estimated benefit of Rs.10 lakhs is being given because in the remand report also there is an indication that family might have income to that extent. The total benefit of agriculture income is Rs.10 lakhs plus Rs.8,67,850/- 9. The Ld. CIT (A) has stated that the appellant in the cash flow statement claimed a sum of Rs.34,00,000/- (Rs. 20, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Avtar Cold Storage, [Rampura Phul] of 3809 bags during F.Y. 2008-09 [PB-8-32]. 11. The AR contended that from the above stated facts, the amount of Rs.34,00,000/- as agricultural income taken by the assessee from sale consideration of potato is reasonable. 12. The Delhi bench of the ITAT in the case of Sanjeev Kumar Malik vs. ITO in ITA No.7732/Del/2018 dated 28.12.2022 held that where the assessee has established on record that it had receipts from sale of agriculture produced and has furnished the details of agriculture land holding, the claim of the assessee regarding the agriculture income cannot be denied only because invoices relating to sale are not available. The Ld. DR has not filed any objection or citation in rebuttal to the contention of the Ld. AR before us. 13. From the above, it is evident that the Ld. CIT(A) has merely suspected the size of land holding used for cultivation of potato on the basis of joint ownership without rebuttal to the additional evidence admitted on record or contentions raised by the appellant. The Ld. CIT(A) ought to have brought on record corroborative documentary evidence by way of examining the issue of share of family member s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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