SATISH CHANDRA, J. - (1.) THE present appeal has been filed by the assessee under Section 260A of the Income Tax Act, 1961 against the judgment and order dated 31.01.2008, passed by the Income -Tax Appellate Tribunal, Lucknow in ITA No. 882/Luc/02 for the assessment year mentioned above.
(2.) ON 30.06.2008, a coordinate Bench of this Hon'ble Court has admitted the appeal on the following substantial questions of law, reads as under: - "(b). Whether Income Tax authorities such as assessing officer, CIT(Appeals) or I.T.A.T. can take a different view in subsequent assessment year in the matter where facts and law are the same ? (e). Whether the same income derived from the house property as rent can be assessed to income tax first for Smt. Ansuya for the assessment year 1997 -98 and thereafter the appellant and thus income from house property of Lucknow was subjected to double taxation of income tax ? (g) Whether ITAT, Commissioner Income Tax (Appeals) and assessing officer can change the A.L.V. for rented property for 9 months to 12 months without any evidence to support the finding and a finding without evidence on record is unsustainable ? (j) Whether agriculture income given by the assessee if only partly accepted by the income tax authorities the non -accepted portion of the agriculture income can be treated as income from other sources without any evidence or material for the same ? (k) Whether agriculture being in "state list" under schedule VII of the Constitution of India any mode of keeping account of Agriculture income can be imposed by the income tax authorities ? (m) Whether I.T.A.T. or CIT (appeals) or assessing officer can pass any order in contravention to law laid down by the Hon'ble Supreme Court or this Hon'ble Court or any other Hon'ble High Court if the same is not at variance with law laid down by this Hon'ble Court and such order passed by the I.T.A.T. or CIT (appeals) or assessing officer shall be illegal void and inoperative ?" The brief facts of the case are that for the assessment year under consideration, the assessee has filed the return declared the income of Rs.2,80,120/ -, out of which, Rs.60,120/ - as the rental income and Rs.2,20,000/ - as agriculture income. The Assessing Officer (AO) observed that on 16.11.1992, the Tehsildar has issued a certificate, where the agriculture income was indicated at about Rs.84,000/ - only. Whereas for the assessment year under consideration, no evidence was produced. In these circumstances, the AO has estimated the agriculture income at Rs.50,000/ - and the remaining amount of Rs.1,70,000/ - was considered as income from undisclosed sources. The CIT(Appeals) upholds the same. However, in the second appeal, the Tribunal after considering the total area owned by the assessee and other material assessed the agricultural income at Rs.1,00,000/ -. Thus, the assessee got a relief of Rs.50,000/ -. Hence, the addition pertaining to agriculture income was sustained at Rs.1,20,000/ -. Regarding the rental income from the properties, it appears that the assessee was having two properties situated at Allahabad and Lucknow. For Allahabad property, the assessee has shown the rental income at Rs.90,000/ -. 1/5th for repair etc. i.e. Rs.18,000/ - was deducted. Thus, A.L.V. comes to Rs.90,000 -18,000 = Rs.72,000/ - only. The AO, as per computation given in his order, has taken the half share of the rental income of Rs.36,000/ - as the assessee is the co - sharer in this property. The claim under Section 23(1) of the Income Tax Act was denied, as the property was newly constructed property.
(3.) REGARDING the Lucknow property, the A.L.V. was taken at 9,900 per month, which comes at Rs.1,18,800/ - and 1/5th was deducted i.e. Rs.23,760/ -. Thus, the total income comes to Rs.95,040/ -.;