Sultan Singh, Meerut vs Assessee

This is an appeal by the assessee against the order dated 30th December, 2010 of learned CIT(A), Meerut.

2. Following grounds have been raised by the assessee :-

"1. That ld.A.O. has not considered that the appellant is an agriculturist and he has no other source or income except agriculture income. Therefore, ld.A.O. is in error in assuming agriculture income as income from other sources.

2. That ld.A.O. as well as ld.CIT(A) is in error in computing agriculture income on the basis of fictitious calculation on the basis of wheat and paddy however, in the year under consideration the sow sugarcane, cherry, paddy and wheat, detail of land and earning was furnished and copy of khasra and khatauni also filed which confirm the 2 ITA-881/Del/2011

stand of the assessee and CIT(A) is also in error in confirming the same.

3. That ld.A.O. is in error in calculating 1 hectare = 12.5 bigha however, 1 hectare = 11960/756 = 15.82 bigha, therefore total area of land comes to 5.446 hectare = 20 kachcha bigha, it is approximately 86.16 kachcha bigha. Hence calculation of A.O. on total area 68.10 bigha X 2,500/- per bigha comes to Rs.1,70,250/- is incorrect, correct value of the income is 86.16 bigha X 2,500 per bigha = 2,15,389/-. Hence agriculture income calculated by the A.O. is incorrect.

SCALE 1 hectare = 10000 sq.mtr. or 11960 sq. yard.

1 bigha = 756 sq. yard.

4. That the assessee has right to add/delete or modify any grounds of appeal during the appeal proceedings."

3. During the course of hearing, nor anybody attended on behalf of the assessee neither any adjournment was sought. We, therefore, proceeded ex-parte qua the assessee-appellant and the appeal is decided on merits after hearing the learned DR.

4. Facts of the case in brief are that the assessee filed the return of income on 28.06.2005 declaring an agricultural income of ` 3,35,780/- which was processed under Section 143(1) of the Income-tax Act, 1961 (hereinafter referred to as 'the Act' in short). Thereafter, the case was selected for scrutiny. The Assessing Officer framed the ex-parte order and accepted the agricultural income at ` 1,70,250/- instead of ` 3,35,780/- declared by the assessee. The remaining income that is ` 1,65,530/- was treated as income from other sources. Being aggrieved, the assessee carried the matter to the learned CIT(A) who sustained the addition made by the Assessing Officer by observing in paragraph 6 of the impugned order as under:-

3 ITA-881/Del/2011

"6. I have considered AO's order and the AR's submissions carefully. The AO has estimated the possible agricultural income of the assessee through a detailed exercise which shows application of mind. On the other hand, the assessee or the AR have not been able to controvert any argument of the AO. A reliance has been placed on the case of R.S. Farms in ITA No.2679 & 4303/Del/2000. I have gone through the said order and find that the decisions and the observations therein do not help the case of the appellant. The appeal is, therefore, dismissed."

5. During the course of hearing, learned DR supported the orders of authorities below and further submitted that the learned CIT(A) was justified in sustaining the addition made by the Assessing Officer because the assessee had not been able to controvert the observations of the Assessing Officer.

6. We have considered the submissions of the learned DR and have carefully gone through the material available on record. In the present case, it is an admitted fact that the Assessing Officer framed the assessment ex-parte without providing reasonable opportunity of being heard. Learned CIT(A) also confirmed the action of the Assessing Officer without assigning any cogent reason and even he has not discussed the facts and conclusion of the case of R.S. Farms relied by him. Therefore, the impugned order is a non-speaking order in the eyes of law. It is well-settled that nobody should be condemned unheard as per the maxim audi alteram partem In the present case, the Assessing Officer, without giving due and reasonable opportunity of being heard to the assessee, estimated the agricultural income without any basis and learned CIT(A) confirmed the action of the Assessing Officer in slipshod manner. We, therefore, deem it appropriate to set aside the impugned order and case is remanded to 4 ITA-881/Del/2011

the Assessing Officer to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.

7. In the result, the appeal is allowed for statistical purposes.

Decision pronounced in the open Court on 27th April, 2015.

Sd/- Sd/- (H.S. SIDHU) SIDHU) (N.K. SAINI) SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER

VK.

Copy forwarded to: -

1. Appellant : Shri Sultan Singh, 91, Kalyan Nagar, Meerut.

2. Respondent : Income Tax Officer, Ward-

Ward-2(3), 2(3), Meerut.

3. CIT

4. CIT(A)

5. DR, ITAT

Assistant Registrar