Smt. Poonam Chopra, New Delhi V. ITO, New Delhi

CO 276/DEL/2016

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 3771 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 8 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 30-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 22-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Additional evidence; Valuation report; Reason to believe
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO.3722/DEL/2016 ASSESSMENT YEAR: 2010-11 INCOME TAX OFFICER, WARD-50(4), NEW DELHI. V. SMT. POONAM CHOPRA, B-65/3, NARAINA INDL. AREA, NEW DELHI. TAN/PAN: AAEPC 3045R (APPELLANT) (RESPONDENT) CO NO.276/DEL/2016 ASSESSMENT YEAR: 2010-11 SMT. POONAM CHOPRA, B-65/3, NARAINA INDL. AREA, NEW DELHI. V. INCOME TAX OFFICER, WARD-50(4), NEW DELHI. TAN/PAN: AAEPC 3045R (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AMIT JAIN, SR.D.R. RESPONDENT BY: NONE DATE OF HEARING: 01 03 2018 DATE OF PRONOUNCEMENT: 30 05 2018 O R D E R PER AMIT SHUKLA, J.M.: THE AFORESAID APPEAL HAS BEEN FILED BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE AGAINST THE IMPUGNE D ORDER DATED 13.04.2016, PASSED BY LD. CIT (APPEALS)-XVII, NEW DELHI IN RELATION TO THE ORDER PASSED U/S.144/147 F OR THE ASSESSMENT YEAR 2010-11 ON FOLLOWING GROUNDS OF APP EAL. I.T.A. NO.3722/DEL/2016 & CO NO.276/DEL/2016 2 1. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION O F RS. 2,22,76,000/- ON ACCOUNT OF LONG TERM CAPITAL GAIN (LTCG) IN VIEW OF THE FACT THAT THE ASSESSEE HAS DECLARED THE LTCG IN AY 2010-11 ONLY. 2. THE LD. CIT (A) HAS DELETED THE ADDITION IN RESPEC T OF LTCG WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT DECLARED THE LTCG ON THE SALE OF THIS PROPERTY IN AY 2007-08. 3. THE LD. CIT (A) HAS NEITHER CONFIRMED THE ADDITION IN RESPECT OF LTCG NOR DISPOSE OF THE PENDING APPEAL IN AY 200 7-08 IN THIS ISSUE. 4. THE LD. CIT (A) ERRED IN ACCEPTING THE ADDITIONAL EVIDENCES I.E. AGREEMENT TO SALE OF 2006 INSTEAD OF REGISTERE D DEED OF 2009- 10, IN VIOLATION OF RULE 46(A). 5. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN AD MITTING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE DURING TH E COURSE OF APPELLATE PROCEEDINGS WITHOUT CONSIDERING THE MALAF IDE CONTENT AND NON-COOPERATION OF THE ASSESSEE DURING THE ORIGINAL RE-ASSESSMENT PROCEEDINGS U/S 147 OF THE IT ACT. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE ALONG WITH JOINT HOLDERS, SHRI SATISH CHOPRA AND SHRI KAPIL CHOPRA H AVE SOLD THE PROPERTY BEARING NO.B-1, MOHAN CO-OPERATIVE IND USTRIAL AREA, MATHURA ROAD, NEW DELHI IN THE FINANCIAL YEAR 2009-10 FOR RS.1,80,00,000/- THROUGH SALE DEED EXECUTED ON 21.08.2009. HOWEVER, THE POSSESSION OF THIS PROPERT Y WAS GIVEN TO THE BUYER IN THE ASSESSMENT YEAR 2007-08, WHILE REGISTRATION OF SALE DEED WAS MADE IN THE IMPUGNED ASSESSMENT YEAR 2010-11. THE ASSESSEE HAS DECLARED LONG TERM CAPITAL LOSS IN THE RETURN OF INCOME FROM THE SALE OF THIS PROPERTY IN ASSESSMENT YEAR 2010-11. SINCE THE SALE I.T.A. NO.3722/DEL/2016 & CO NO.276/DEL/2016 3 VALUE OF THIS PROPERTY WAS DONE BELOW THE STAMP VAL UATION RATE, THEREFORE, THE VALUATION OF THE PROPERTY WAS REFERRED TO THE DVO IN THE CASE OF SHRI KAPIL CHOPRA (ONE OF TH E JOINT HOLDERS) AND AS PER THE VALUATION REPORT DATED 21.0 8.2009, THE PROPERTY WAS VALUED AT RS.8,48,28,000/- AND ACC ORDINGLY, THE UNDER VALUATION WAS WORKED OUT AT RS.6,68,28,00 0/- AND 1/3 RD SHARE OF THE ASSESSEE WAS WORKED OUT TO RS. 2,22,76,000/-. ON THIS BASIS ASSESSEES CASE WAS RE OPENED VIDE NOTICE DATED 29.05.2013 U/S.148 WAS ISSUED AFT ER RECORDING THE FOLLOWING REASONS:- THE CASE OF SH. KAPIL CHOPRA, PAN AADPC4602P, WAS SCRUTINIZED IN A Y. 2010-11 AND ACIT, CIR-27(1), NEW DELHI FOUN D THAT THE ASSESSEE SH. KAPIL CHOPRA AND HIS JOINT HOLDER SH. SATISH CHOPRA AND SMT. POONAM CHOPRA HAVE SOLD A PROPERTY BEARING NO. B-1, MOHAN COOPERATIVE INDL. AREA, MATHURA ROAD, NEW DEL HI IN THE FINANCIAL YEAR 2009-10 FOR RS. 1,80,00,000/- THROUG H SALE DEED EXECUTED ON 21-08-2009. THE POSSESSION OF THIS PROPERTY WAS GIVEN TO THE BU YER IN A.Y. 2007-08 WHILE REGISTRATION OF THE SALE DEED WAS MAD E IN A.Y. 2010- 11. ASSESSEE HAS DECLARED A LONG TERM CAPITAL LOSS IN HER RETURN OF INCOME FOR SALE OF THIS PROPERTY HAVING BEEN CONSID ERED IN THE A.Y. 2010-11. AS THE SALE OF THIS PROPERTY HAS BEEN MADE BELOW STAMP VALUATION RATE, THEREFORE THIS PROPERTY TRANSACTION WAS REFERRED TO DISTT. VALUATION OFFICER, DELHI. AS PER VALUATION R EPORT RECEIVED FROM THE VALUATION CELL, THE VALUE OF SAID PROPERTY ON 2 1-08-2009 IS RS. 8,48,28,000/-. IT IS CLEAR THAT THERE IS A PROPERTY SOLD UNDERVALUED OF RS.6,68,28,000/- (8,48,28,000 - 1,80,00,000/-). IT MEANS THE 1/3 SHARE OF SMT. POONAM CHOPRA COMES TO RS. 2,22,7 6,000/- WHICH WAS ESCAPED CAPITAL GAIN TAXABLE TO HER. I.T.A. NO.3722/DEL/2016 & CO NO.276/DEL/2016 4 SINCE, THE POSSESSION OF THE PROPERTY SOLD HAS BEEN GIVEN TO THE BUYER IN A.Y. 2007-08, THE SAME CONSTITUTE TRANSFER OF A CAPITAL GAIN ASSET AS PER SECTION 2(47) OF THE I.T. ACT, 1961. T HEREFORE, THE A.Y. 2007-08 HAS ALSO BEEN RE-OPENED FOR ASSESSMENT, WHI LE A.Y. 2010- 11 IS ALSO BEING RE-OPENED ON PROTECTIVE BASIS AS ASSESSEE HERSELF HAS DECLARED THE TRANSACTION IN THIS A.Y. ON THE BASIS OF ABOVE INFORMATION, I HAVE REASONS T O BELIEVE THAT THE INCOME OF RS.2,22,76,000/- HAS ESCAPED ASSESSMENT A S DEFINED BY SECTION 147 OF THE INCOME-TAX ACT, 1961. THE INCOME OF RS. 2,22,76,000/- CHARGEABLE TO TAX HAS ESCAPED ASSESSM ENT FOR THIS ASSESSMENT YEAR 2010-11. THEREFORE, IT IS A FIT CAS E FOR ISSUANCE OF NOTICE U/S 148 OF THE INCOME-TAX ACT, 1961, HENCE, NOTICE U/S 148 OF THE INCOME-TAX ACT, 1961 IS ISSUED TO THE ASSESSEE . 3. THE ASSESSING OFFICER IN THE IMPUGNED ORDER HAS MENTIONED THAT HE HAS REASON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT OF RS.2,22,76,000/- FOR THE PERIOD RELEVANT TO THE ASS ESSMENT YEAR 2007-08 UNDER THE HEAD UNDISCLOSED LONG TERM CAPITAL GAIN AND ON PROTECTIVE BASIS AGAIN THE SAME AMOUNT HAS TO BE ADDED IN THE ASSESSMENT YEAR 2010-11 ALSO. 4. LD. CIT (A) NOTED THAT SINCE ALREADY THE CASE HA S BEEN REOPENED FOR THE ASSESSMENT YEAR 2007-08 AND IN THE CASE OF KAPIL CHOPRA ONE OF THE CO-OWNERS HE HAS ALREADY HE LD THAT CAPITAL GAIN ON SALE OF PROPERTY WOULD BE TAXABLE O NLY FOR THE ASSESSMENT YEAR 2007-08 AND FOLLOWING THE SAME VIEW HE HAS DECIDED THE APPEAL ACCORDINGLY. THE RELEVANT OBSERV ATION AND THE FINDING OF THE LD. CIT (A) READS AS UNDER:- I.T.A. NO.3722/DEL/2016 & CO NO.276/DEL/2016 5 3. GROUND NOS.2 AND 3 RELATE TO CONTENTION OF THE APPELLANT AGAINST RE-OPENING THE CASE AND GROUND NOS.4 AND 5 RELATE TO CONTENTION OF THE APPELLANT AGAINST ADDITION OF 2,2 2,76,000/- MADE BY THE AO. THE FACT OF THE CASE IS THAT THE APPELLA NT ALONG WITH HIS TWO BROTHERS IN LAWS WERE CO-OWNERS OF PROPERTY NO. E-6, BLOCK B-L, MOHAN COOPERATIVE INDUSTRIAL AREA, MATHURA ROAD, NE W DELHI HAVING EACH 1/3RD SHARE IN THE PROPERTY. THE IMPUGN ED PROPERTY WAS SOLD VIDE AGREEMENT TO SELL DATED 10.05.2006. H OWEVER, THE SALE DEED WAS REGISTERED ON 20.08.2009; THEREFORE, THE APPELLANT HAD SHOWN CAPITAL GAIN IN THE RETURN OF INCOME FILE D FOR THE A.Y. 2010-11 ON THE BASIS OF REGISTERED SALE DEED. THE A O HOWEVER REOPENED THE CASE FOR THE A.Y. 2007-08 ALSO AND ASS ESSED THE LONG TERM CAPITAL GAIN ON THE SAID YEAR, THEREBY, THE IM PUGNED CAPITAL GAIN WAS ASSESSED TWICE I.E. FOR THE A.Y. 2010-11 A ND A.Y. 2007- 08. IN THE CASE OF SHRI KAPIL CHOPRA, ONE OF THE CO -OWNERS, WHILE DECIDING THE APPEAL, I HELD THAT THE CAPITAL GAIN O N SALE OF PROPERTY WAS TAXABLE ONLY FOR THE A.Y. 2007-08, THEREFORE, I N THIS CASE ALSO, THE SAME VIEW IS TAKEN AND THE APPEAL IS ACCORDINGL Y DECIDED. 5. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. ACCORDINGLY, WE ARE DECIDING THE APPEAL BASED ON MATERIAL AVAILABLE ON RECORD AND THE ARGUMENT PLACE D BY THE LEARNED DR. 6. AFTER CONSIDERING THE RELEVANT FINDINGS GIVEN IN THE IMPUGNED ORDER, WE FIND THAT THE ASSESSING OFFICER WHILE RECORDING THE REASONS, HIMSELF HAS HELD THAT THE AL LEGED LONG TERM CAPITAL GAIN SHOULD BE ADDED IN THE ASSESSMENT YEAR 2007-08 WHICH WAS ALSO REOPENED U/S.147. IT WAS ONL Y ON PROTECTIVE BASIS THAT THE ASSESSING OFFICER HAS REO PENED THE ASSESSMENT FOR THE ASSESSMENT YEAR 2010-11 ALSO. HO WEVER I.T.A. NO.3722/DEL/2016 & CO NO.276/DEL/2016 6 WHILE COMPUTING THE INCOME HE HAS AGAIN MADE SUBSTA NTIVE ADDITION ON ACCOUNT OF UNDISCLOSED LONG TERM CAPITA L GAIN IN THIS YEAR ON THE GROUND THAT THE ASSESSEE HAS DISCL OSED THE LONG TERM CAPITAL GAIN/LOSS IN THE ASSESSMENT YEAR 2010-11, WHICH ON THE BASIS OF REGISTERED SALE DEED EXECUTED ON 21.08.2009. WHENCE, THE DEPARTMENT HAS TAKEN A STAN D THAT THE ALLEGED LONG TERM CAPITAL GAIN IS TO BE ADDED I N THE ASSESSMENT YEAR 2007-08 FOR WHICH ALREADY ACTION U/ S.147 HAS BEEN TAKEN AND THE LD. CIT (A) ALREADY IN THE C ASE OF CO- OWNER HAS HELD THAT THE SAME SHOULD BE TAXED IN THE ASSESSMENT YEAR 2007-08, THEN WE DO NOT FIND ANY RE ASON AS TO WHY THE SAME ADDITION SHOULD BE SUSTAINED IN THE ASSESSMENT YEAR 2010-11. THE ASSESSMENT OF SAME INC OME CANNOT BE MADE IN TWO YEARS, AND THEREFORE, WE DO N OT FIND ANY INFIRMITY IN THE AFORESAID REASONING OF THE LD. CIT (A). ACCORDINGLY, THE SAME IS CONFIRMED. 7. AS REGARDS THE ISSUE OF ADDITIONAL EVIDENCE ADMI TTED BY THE LD. CIT (A) IN GROUND NO.4, NOTHING HAS BEEN BR OUGHT ON RECORD BY THE LEARNED DR AS TO THERE WAS ANY KIND V IOLATION OF RULE 46A. THE ASSESSING OFFICER HIMSELF IN THE ASSE SSMENT ORDER HAS MENTIONED THAT THE POSSESSION OF THE PROP ERTY WAS GIVEN IN THE ASSESSMENT YEAR 2007-08 ONLY AND THE R EASON HAS ALSO BEEN GIVEN AS TO WHY THE DEPARTMENT WANTS TO TAX THE SAME ON SUBSTANTIVE BASIS IN ASSESSMENT YEAR 20 07-08. THUS, THE SAID GROUND RAISED BY THE REVENUE DOES NO T HOLD ANY MERIT. I.T.A. NO.3722/DEL/2016 & CO NO.276/DEL/2016 7 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. 9. IN THE CROSS OBJECTION, THE ASSESSEE HAS CHALLEN GED THE VALIDITY OF REOPENING U/S.147. SINCE, WE HAVE ALREA DY UPHELD THE ORDER OF THE LD. CIT(A) THAT THE IMPUGNED ADDIT ION SHOULD BE CONSIDERED ON MERITS IN ASSESSMENT YEAR 2007-08, THEREFORE, THE ISSUE OF REOPENING U/S 147 HAS BECOM E PURELY ACADEMIC. 10. IN THE RESULT, THE APPEAL OF THE REVENUE AS WEL L AS THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MAY, 2018. SD/- SD/- [PRASHANT MAHARISHI] [AMIT SHUKLA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30 TH MAY, 2018