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Shri Shyam Sunder Agarwal,Hyderabad. -v- Income-tax Officer,Ward-16(1),Hyderabad.
June, 28th 2012
         IN THE INCOME TAX APPELLATE TRIBUNAL

           HYDERABAD           "A " BENCH, HYDERABAD

  BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER &
          SHRI SAKTIJIT DEY, JUDICIAL MEMBER

 ITA Nos.488 &489/Hyd/2011
 Assessment Years : 1997-98 & 1999-2000


Shri Shyam Sunder Agarwal,           -v-        Income-tax Officer,
Hyderabad.                                      Ward-16(1),Hyderabad.
 PAN:ACCPA 8826 G

   ( Appellant)                                   (Respondent)

  ITA Nos.490 & 491/Hyd/2011
  Asstt. Years 1997-98 & 1999-2000


                                                  Income-tax Officer,
  Sri Mahendra Prasad          -v-
                                                  Ward-16(1),
  Hyderabad.
                                                  Hyderabad.
  PAN: ACCPA 8826 G
                                                   (Respondent)
  (Appellant)



    Assessees by           :         Sri A.V. Raghu Ram
    Department by         :          Sri K. Viswanatham

      Date of hearing       :              26-04-2012
      Date of Pronouncement :              25 -06-2012.




                                  ORDER

PER SAKTIJIT DEY, JM:

      These four appeals, filed by two different assessees are
directed against different orders all dated 16-2-2010 of CIT (A)-V,
Hyderabad and they pertain to the assessment years 1997-98
and 1999-2000. Since common and identical issues are involved
in these appeals, these are clubbed together and disposed of by
this combined order for the sake of convenience.
                                                ITA Nos.488 to491 of 2011
                                             S/Sri Shyam Sunder Agarwal &
                                            Mahendra Prasad Agarwal., Hyd.



2.      Since grounds and facts involved in all these appeals are
quite common and identical, for the sake of brevity, we deal with
facts as mentioned in ITA No.488/Hyd/2011 pertaining to
assessment year 1997-98.


3.      Facts    sated in brief are, in the return filed for the
assessment year 1997-98, the assessee disclosed total income
of Rs.2,51,752/- and agricultural income of Rs.1,96,108/-.
Assessment order was passed u/s 144 of the Act determining
total income at Rs.7,17,460/- and agricultural income of
Rs.50,000/-. Assessee went in appeal against the assessment
order     so passed before the CIT (A) and having failed there
approached the ITAT. The ITAT in its order dated 2-2-2001 set
aside the assessment directing the AO to redo it de novo after
examining the MRO or the person responsible for maintaining
Adangal register and allowing the assessee to cross examine
them.


4.      In the reassessment proceeding initiated as per the
directions of the ITAT, the AO issued summons to Tahsildar,
Shamshabad Mandal and Tahsildar Rajendranagar Mandal to
appear and produce documents as per the letters enclosed to the
summons.        The    concerned   Tahsildars   did   not     appear   in
pursuance to the summons on the plea of dislocation of official
work. However certain information were given by the concerned
Tahsildars.       As    per   information   furnished    by    Tahsildar
Shamsabad Mandal little gourd was grown in the land recorded
in the name of Mahendra Kumar and Jowar was grown on land
recorded in name of Shyam Sunder. So far as agricultural land
under     Rajendranagar Mandal is concerned, the concerned
Tahsildar informed that the concerned land is recorded in the
                                    2
                                             ITA Nos.488 to491 of 2011
                                          S/Sri Shyam Sunder Agarwal &
                                         Mahendra Prasad Agarwal., Hyd.



name of Sri Ramachandraiah and his family members.              When
these facts were confronted to the assessee, he submitted before
the AO copies of sale deeds etc. EC copies and other documents
in support of his claim that the concerned lands belong to him
and Mahendra Prasad Agarwal. He further contended that the
fact regarding purchase of land could be easily verified from the
Sub Registrar's office. In support of claim of agricultural income
the assessee submitted that two borewells have been dug up for
the purpose of cultivation.      It was also submitted that the
assessee had purchased the land with standing crop. So far as
cultivation of grape is concerned the assessee submitted that the
sale deed will reveal that assessee has paid for `mandva' which
gives support to grape plants.


5.    The AO on the basis of information gathered from the
office of Tahsildar rejected the claim of agricultural income and
added it as income from other sources. The assessee challenged
the assessment order by filing an appeal before the CIT (A). The
CIT (A) sustained the       assessment order by holding that the
lands are not     fit for    cultivation of any other agricultural
produce excepting little gourd and jowar.         The CIT (A) also
concluded that vegetable and seedless grapes cannot be grown
on water logged land. The finding of the CIT (A) is contained in
para-2.6 of his order.


6.    We have heard submissions of the parties and perused
materials on record. The only dispute in the present appeal is
whether the assessee is having any agricultural income or not.
All along it has been the claim of the assessee that along with
Shri Mahendra Prasad Agarwal, he was holding agricultural land
of 3.5 acres in survey No.25/1, village Gandiguda, Mandal
                                  3
                                           ITA Nos.488 to491 of 2011
                                        S/Sri Shyam Sunder Agarwal &
                                       Mahendra Prasad Agarwal., Hyd.






Shamsabad, RR District and 2.5 acres at Gaganpahad and
deriving income from sale of agricultural produce like vegetables,
seedless grape and paddy.      From the documentary evidence
produced by the assessee as well as from the enquiry made with
the Tahsildar the undisputed fact which emerges is that he
assessee along with Mahendra Prasad Agarwal was holding
agricultural land. However, the AO and the CIT (A) are disputing
the claim of income derived from sale of agricultural produce.
Exactly for this reason the ITAT earlier has set aside the
assessment specifically directing the AO to examine the MRO
and the person responsible for maintaining the Adangal register
and thereafter decide the issue after giving an opportunity of
cross examination to the assessee.       It is seen that ITAT's
direction has not been complied. Neither the MRO or the person
responsible for maintaining Adangal register were examined nor
assessee was given an opportunity to cross examine them. Had
the AO enforced attendance of MRO or the person responsible
for maintaining Adangal register then vital information could
have been elicited which would have thrown light on the
assessee's claim of agricultural income.       According to the
information received from the office of the Tahsildar little gourd
and jowar is grown in the land. Before the AO the assessee had
submitted certified true copy of the revenue records (pahani)
which clearly proves ownership of land in the name of assessee
Sri Mahendra Prasad Agarwal. The assessee had also produced
copy of sale deed which reveals that the assessee had purchased
the land with standing crop and mandava.            The evidence
produced by the assessee to some extent proves that the
assessee was having some income from agriculture.         Even the
information obtained from the office of the Tahsildar       reveals
that jowar and little gourd is grown in some of the land.
                                4
                                                 ITA Nos.488 to491 of 2011
                                              S/Sri Shyam Sunder Agarwal &
                                             Mahendra Prasad Agarwal., Hyd.



Therefore agricultural income shown by the assessee even
though may not be acceptable in toto but at the same time it
cannot be ruled out totally. The CIT (A) has not considered this
fact at all and has simply adopted the finding of the assessing
officer.   In fact what has been quoted as submission of the
assessee in para 2.5 of the CIT (A)'s order could not have been
the submission of the assessee.            The nature of agricultural
produce cultivated and reasonable income from sale of such
produce could have been properly ascertained                 had the AO
examined the MRO or the person responsible for maintaining the
Adangal register.    In the aforesaid circumstances, we think it
proper to restore the assessment back to the file of the AO who
shall make a detailed enquiry by examining the MRO or the
person maintaining Adangal register to find out the correctness
of the assessee's claim of agricultural income.           The AO shall
allow the assessee an opportunity of cross examination and
complete     the    assessment     after    affording    a    reasonable
opportunity of being heard to the assessee.


7.     In the result, all appeals filed by the assessees are treated as
allowed for statistical purpose.

       Order was pronounced in the Court on 25-06-2012.

   d/-
  Sd/-                                   d/-
                                        Sd/-
 (CHANDRA POOJARI)                     (SAKTIJIT DEY)
ACCOUNTANT MEMBER                      JUDICIAL MEMBER


Dated the 25th June, 2012




                                   5
                                         ITA Nos.488 to491 of 2011
                                      S/Sri Shyam Sunder Agarwal &
                                     Mahendra Prasad Agarwal., Hyd.



Copy forwarded to:

  1. S/Sri K.VasantKumar, A.V. Raghu Ram, P. Vinod & B.
     Peddi Rajulu, Advocates, Flat No.610, 6th Floor, Babukhan
     Estate, Bashhirbagh, Hyderabad.
  2. ITO, Ward-16(1), Hyderabad.
  3. The CIT (A)-V, Hyderabad.
  4. The CIT concerned, Hyderabad
  5. The DR, ITAT, Hyderabad
Jmr*




                              6
        ITA Nos.488 to491 of 2011
     S/Sri Shyam Sunder Agarwal &
    Mahendra Prasad Agarwal., Hyd.




7
        ITA Nos.488 to491 of 2011
     S/Sri Shyam Sunder Agarwal &
    Mahendra Prasad Agarwal., Hyd.




8
        ITA Nos.488 to491 of 2011
     S/Sri Shyam Sunder Agarwal &
    Mahendra Prasad Agarwal., Hyd.




9
         ITA Nos.488 to491 of 2011
      S/Sri Shyam Sunder Agarwal &
     Mahendra Prasad Agarwal., Hyd.




10
         ITA Nos.488 to491 of 2011
      S/Sri Shyam Sunder Agarwal &
     Mahendra Prasad Agarwal., Hyd.




11
         ITA Nos.488 to491 of 2011
      S/Sri Shyam Sunder Agarwal &
     Mahendra Prasad Agarwal., Hyd.




12
 
 
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