Amitabha Chaudhuri, Durgapur V. DCIt, Circle - 2, Durgapur

CO 115/KOL/2008

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9869 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 10 month(s) 24 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 12-08-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 16-08-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 18-09-2008
• Court: TRIBUNAL
• Department Lawyers: DAVID Z CHAWNGTHU ACIT
• Assessee Lawyers: P K ROY
• Keywords: Principle of natural justice; Cost of acquisition; Fair market value; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [BEFORE HONBLE SRI SHAMIM YAHYA, AM & HONBLE SR I GEORGE MATHAN, JM] ITA NO.1542/KOL/2008 ASSESSMENT YEAR : 2001-02 ( APPELLANT ) (RESPONDENT) D.C.I.T., CIRCLE-2, .. -VS- AMITABHA CHAUDHURI DURGAPUR BURDWAN (PAN:ACDPC 1857 E) C.O.NO.115/KOL/2008 ITA NO.1542/KOL/2008 ASSESSMENT YEAR : 2001-02 ( CROSS OBJECTOR) (RESPONDENT) AMITABHA CHAUDHURI .. -VS- D.C.I.T., CIRCLE-2, BURDWAN DURGAPUR (PAN:ACDPC 1857 E) FOR THE DEPARTMENT SHRI DAVID Z.CHAWNGTHU, ACIT, SR.DR FOR THE ASSESSEE SHRI P.K.ROY, ADVOCATE DATE OF HEARING : 08.08.2014 DATE OF PRONOUNCEMENT : 12. 08.2014. ORDER PER SHRI SHAMIM YAHYA, AM THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY T HE ASSESSEE EMANATE FROM THE ORDER OF LD. C.I.T.(A)- DURGAPUR DT. 27.05.2008 AND PERTAIN TO ASSESSMENT YEAR 2001-02. 2. THE GROUNDS OF APPEAL RAISED IN REVENUES APPEAL READ AS UNDER :- I.THAT AS FAR AS FACTS AND CIRCUMSTANCES OF THE CA SE, LD.CIT(A) WAS NOT JUSTIFIED IN CALCULATING THE FMV OF EACH SHARE AS O N 01/04/81 BY TAKING THE VALUE OF ASSETS AS PER REVALUATION REPORT DATED 25.03.96. II. THAT LD.CIT(A) ERRED IN TAKING THE VALUE OF ASS ETS AS PER REVALUATION REPORT DATED 25/-3/96 AS NEITHER SUCH REVALUATION REPORT I S AVAILABLE IN THE RECORDS NOR THE SAID REVALUATION REPORT DATED 25.03.96 IS A PART OF THE RECORD. III. THAT LD.CIT(A) WAS NOT JUSTIFIED IN CALCU LATING THE FMV OF SHARES AS ON 01/04/81 BY BACK CALCULATING THE INDEXED COST OF AC QUISITION AS THE ISSUE WAS NEVER RAISED BY THE ASSESSEE DURING THE COURSE OF ASSESSM ENT PROCEEDINGS. ITA.NO.1542 &CO.115/KOL/2008 AMITABHA CHAUD HURI, DURGAPUR A.YR.2001-02 2 IV. THAT LD.CIT(A) ALSO VIOLATED THE PROVISION OF R ULE 46A BY ACCEPTING THE REVALUATION REPORT DATED 25/03/1996, AS SUCH REVALU ATION REPORT IS NEITHER AVAILABLE ON RECORDS NOR WAS PRODUCED AT ANY TIME DURING ASSE SSMENT PROCEEDINGS. 2.1. THE GROUNDS OF APPEAL RAISED IN ASSESSEES APP EAL READ AS UNDER :- I.FOR THAT YOUR HUMBLE PETITIONER AS FAR AS FACTS AND CIRCUMSTANCES OF THE CASE LD.CIT(A) WAS NOT JUSTIFIED IN CALCULATING THE FMV OF EACH SHARE. THE FMV OF EACH SHARE AS ON 01-04-1981 WITHOUT CONSIDERING THE REPO RT OF THE CHARTERED ACCOUNTANT, ROY SUBODH AND ASSOCIATES WHO IS A TECHNICAL PERSON AND PROPERLY QUALIFIED FOR DOING SO. 2. THE LD.CIT(A) WHILE PASSED THE ORDER DID NOT CON SIDER THE INDEXATION COST OF ACQUISITION AND WRONGLY CALCULATED WITHOUT OBSERVIN G EXPLANATION III OF SECTION 48 OF THE INCOME TAX ACT READ WITH SUB-CLAUSE III (A) AND II OF SECTION 49(1). THE CALCULATION IS TOTALLY WRONG WHICH IS APPENDED AS INDEXED COST OF ACQUISITION MEANS AN AMOUNT WHICH BEARS TO THE COST OF ACQUISITION THE SAME PRO PORTION AS COST INFLATION INDEX FOR THE YEAR IN WHICH THE ASSET IS TRANSFERRED BEARS TO THE COST INFLATION INDEX FOR THE FIRST YEAR IN WHICH THE ASSET WAS HELD BY THE ASSESSEE OR FOR THE YEAR BEGINNING ON THE 1 ST DAY OF APRIL 1981 WHICHEVER IN LATER. IN RESPECT OF 7 S HARES ACQUIRED AFTER THE DEMISE OF MOTHER OF THE ASSESSEE THE VALUE SHOULD BE RECALCUL ATED AS PER ABOVE NOTED SECTIONS I.E. SECTION 48 AND 49 OF THE INCOME TAX ACT. 3. THE CHARTERED ACCOUNTANTS VALUATION REPORT WAS S UBMITTED IN WHICH THE FMV OF PER SHARE AS ON 31.03.1981 WAS DETERMINED BY THE CA, ROY SUBODH AND ASSOCIATES AS RS.90284/- WHEREAS YOUR PETITIONER OF HIS OWN MOTIO N HAS TAKEN RS.55350/- PER SHARE VALUE AS ON 31.03.1982 WRONGLY. IF RECTIFIED IT WIL L BE LITTLE BIT LOWER THAN THAT TAKEN FOR CONSIDERATION AS ON 31.03.1981 SHOULD HAVE BEEN CON SIDERED IN COURSE OF PASSING ORDER IN THE APPELLATE STAGE. 2.2. THE ASSESSEES REPLY TO THE GROUNDS OF APPEAL READS AS UNDER :- THE LD.DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-2, DURGAPUR IS GROSSLY ERRED BY PUTTING GROUNDS OF APPEAL MENTIONING WRONG OBSERVATIONS IN POINT 1 TO 4 WHICH IS AS UNDER : 1. YOUR PETITIONER IS IN THE OPINION THAT LD.CIT(A) WA S NOT JUSTIFIED AT ALL BY CALCULATING THE FMV OF EACH SHARE WHICH INCLUDES THE 7 SHARES A LSO ACQUIRED BY THE ASSESSEE AT THE TIME OF DEATH OF HIS MOTHER. 2. THE BALANCE SHEET SUBMITTED BY YOUR ASSESSEE AS ON 31.03.199 IN WHICH THE RESOLUTIONS TAKEN ON 25-03-1996 BY THE BOARD OF DIR ECTORS WAS VERY MUCH A PART OF THE RECORD SO THE GROUNDS TAKEN BY THE LD.DEPUTY COMMIS SIONER OF INCOME TAX, CIRCLE-2, DURGAPUR IS WRONG BOTH IN FACTS AND IN LAW. 3. THE OBJECTION OF BACK CALCULATION MADE BY THE LD. C IT(A) SHOULD NOT BE CONSIDERED AS JUSTIFIED. THE LD.DEPUTY COMMISSIONER OF INCOME TAX , CIRCLE-2, DURGAPUR DID NOT UTTER FOR ACCEPTING ASSESSEES VALUE OR TAKEN CONSI DERATION OF ROY SUBODH AND ASSOCIATES REPORT WHICH IS BIASED IN NATURE AND IN LAW. 4. 4. THE LD.DEPUTY COMMISSIONER OF INCOME TAX,CIRCLE- 2, DURGAPUR IS NOT AT ALL JUSTIFIED BY WHISPERING THE VIOLATION OF RULE 46A O F THE INCOME TAX RULES BY THE CIT(A). THAT IS NOT FRESH EVIDENCE; IT WAS IN THE F ILE SINCE HE SUBMITTED THE ORIGINAL RETURN FOR 2001-2002. HE IS GROSSLY ERRED BY MENTIO NING THE VIOLATION OF THE PROVISIONS OF RULE 46A WHICH IS OBJECTED TOO. ITA.NO.1542 &CO.115/KOL/2008 AMITABHA CHAUD HURI, DURGAPUR A.YR.2001-02 3 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE RECORDS. WE FIND THAT THE MAIN CONTENTION RAISED IN THE REVENUE S APPEAL IS THAT REVALUATION REPORT DATED 25.03.1996 RELIED UPON BY THE LD. CIT( A) WAS NOT AVAILABLE IN THE RECORDS. IN THIS REGARD THE LD.DR ALSO SUBMITTED TH AT HE HAD MADE NECESSARY VERIFICATION AND SUCH A REPORT IS NOT AVAILABLE IN THE RECORDS. HOWEVER, THE ASSESSEE, ON THE OTHER HAND, HAS REITERATED THAT SUCH A REPORT W AS AVAILABLE. HE HAS ALSO SUBMITTED THAT IT IS NOT A FRESH EVIDENCE AS IT WAS IN THE FI LES SINCE THE SUBMISSION OF THE RETURN. FURTHERMORE WE NOTE THAT IN THE CROSS OBJECTION THE ASSESSEE HAS URGED THAT THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE REPORT OF T HE CHARTERED ACCOUNTANT WHICH WAS SUBMITTED BY THE ASSESSEE. 3.1. UPON CAREFUL CONSIDERATION WE NOTE THAT INTERE ST OF NATURAL JUSTICE WILL BE SERVED IF THE MATTER IS REMITTED TO THE FILE OF AO. THE AO IS DIRECTED TO CONSIDER THE ISSUE AFRESH. THE AO SHALL TAKE INTO ACCOUNT THE SU BMISSIONS MADE BEFORE THE LD. CIT(A). HE SHALL ALSO TAKE INTO ACCOUNT THE OTHER S UBMISSIONS OF THE ASSESSEE REGARDING VALUATION REPORT BY THE CHARTERED ACCOUNT ANT. ACCORDINGLY WE REMIT THE ISSUE RAISED IN THE REVENUES APPEAL AND CROSS OBJE CTION TO THE FILE OF AO. NEEDLESS TO ADD THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTU NITY OF BEING HEARD. 4. IN THE RESULT THIS APPEAL OF THE REVENUE AND CRO SS OBJECTION OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 12.08.2014. SD/- SD/- [ GEORGE MATHAN ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 12.08.2014. R.G.(.P.S.) ITA.NO.1542 &CO.115/KOL/2008 AMITABHA CHAUD HURI, DURGAPUR A.YR.2001-02 4 COPY OF THE ORDER FORWARDED TO: 1. AMITABHA CHAUDURI, C/O P.K.ROY, ADVOCATE, D-30, LUN A STREET, BIDHAN NAGAR, DURGAPUR-713212, BURDWAN. 2 D.C.I.T., CIRCLE-2, DURGAPUR. 3 . CIT(A)-DURGAPUR 4. CIT KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES