Sri Hari Prasad Budhia, Kolkata V. ACIT, C.C. - II, Kolkata, Kolkata

CO 95/KOL/2009

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 6878 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 24 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-05-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 22-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MALAKAR D R
• Assessee Lawyers: M L SARAF
• Keywords: Opportunity of being heard
• Section: 143(3); 153A; 69; 263

Judgement Text

, ' , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA ( ) . . , , , , , , ) [BEFORE SRI S.V. MEHROTRA, A.M. & SRI MAHAVIR SING H, J.M.] ! ! ! ! / I.T.A NO. 2080/KOL/2009 ASSESSMENT YEAR : 2002-2003 DEPUTY COMMISSIONER OF INCOME TAX, -VS.- SRI HARI PRASAD BUDHIA, KOLKATA CENTRAL CIRCLE-II, KOLKATA (PAN : AEEPB 9457 Q) ( '# /APPELLANT ) ( $%'# / RESPONDENT ) & C.O. NO. 95/KOL./2009 (ARISING OUT OF I.T.A. NO. 2080/KOL./2 009) ASSESSMENT YEAR : 2002-2003 SRI HARI PRASAD BUDHIA, KOLKATA -VS.- ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-II, KOLKATA (CROSS OBJECTOR) (RESPONDENT) FOR THE ASSESSEE : SHRI M.L. SARAF, A.R. FOR THE DEPARTMENT : SHRI S.K. MALAKAR, D.R. &' ( ) * &' ( ) * &' ( ) * &' ( ) * /DATE OF HEARING : 16.01.2012 +, ) +, ) +, ) +, ) * * * * /DATE OF PRONOUNCEMENT : 16.01.2012 - / ORDER PER SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER/ . . , :- THE APPEAL BEING ITA NO. 2080/KOL./2009 FILED BY THE REVENUE IS AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS), CENTRAL-I , KOLKATA DATED 22.10.2009 FOR THE ASSESSMENT YEAR 2002-03. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE-IN DIVIDUAL HAD SHOWN A TOTAL INCOME OF RS.11,10,869/- AND AGRICULTURAL INCOME OF RS.25,000 /-. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) ON A TOTAL INCOME OF RS.11,48,290/- INCLUDING AGRICULTURAL INCOME OF RS.25,000/- ON 17.09.2004. THE CASE WAS LATER REVIEWED BY LD. C IT(C)-III, KOLKATA UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 VIDE ORDER DATED 27.02.2007 AN D THE ASSESSMENT ORDER WAS SET ASIDE ON ITA NO. 2080/KOL./2009 & CO-95-KOL-2009 2 THE ISSUES MENTIONED IN THE ORDER WITH THE DIRECTIO N TO REFRAME THE SAME AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 3. IN PURSUANCE TO THE DIRECTIONS OF LD. CIT, THE A SSESSING OFFICER PROCEEDED TO MAKE FRESH ASSESSMENT. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD PURCHASED OFFICE SPACE MEASURING 1310 SQ. FT. MORE OR LESS AT 6 TH FLOOR OF 3C, CAMAC STREET, KOLKATA DURING THE YEAR UNDER SCRUTINY FOR A CONSIDERATION OF RS.24,23,500/ -. AS THE CONSIDERATION APPEARED TO BE LESS CONSIDERING THE AREA AND LOCATIONS ETC., THE ASSESS ING OFFICER REFERRED THE MATTER UNDER SECTION 142A TO THE VALUATION CELL TO DETERMINE THE FAIR MA RKET VALUE OF THE PROPERTY. AS PER VALUATION OFFICERS REPORT, THE VALUE OF THE SAID PROPERTY WA S RS.52,47,800/- AND, THEREFORE, THE ASSESSING OFFICER MADE AN ADDITION OF RS.28,24,300/- AS UNDIS CLOSED INVESTMENT OF THE ASSESSEE. BEING AGGRIEVED WITH THE ORDER OF ASSESSING OFFICER, THE ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(APPEALS) AND LD. CIT(APPEALS) DELETED THE ADDIT ION BY OBSERVING AT PARA 6 AS UNDER :- 6. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF T HE LD AR AND THE REPORT OF THE A.O AND D.V.O. THE ASSESSEE HAS N OT CONSTRUCTED A HOUSE, HENCE THERE IS NO QUESTION OF ESTIMATION OF THE INVESTMENT MADE BY HAVING A EXPERT OPINION. IN THIS CASE VALUATION OFFICER HAS ESTIMATED THE MARKET VALUE OF THE PURCHASED BY THE ASSESSEE B Y COMPARING THE SALES INSTANCES OF OTHER COMMERCIAL SPACE SOLD IN T HE LOCALITY. HOWEVER THE INSTANCES CITED ARE NOT AT ALL COMPARA BLE. THE VALUATION OFFICER HAS GIVEN TWO INSTANCES AND BOTH OF THEM RE LATE TO A NEWLY BUILD WELL KNOWN SHOPPING MALL OCCUPIED BY ESTABLIS HED BRANDS WHERE AS THE PROPERTY PURCHASED BY THE APPELLANT IS A LIT IGATED TENANTED OFFICE SPACE LOCATED IN 40 YEARS OLD BUILDING . MOR E OVER THIS IS THE ONLY BASIS FOR THE A.O TO CONCLUDE THAT THE PURCHAS E VALUE DECLARED BY THE APPELLANT IS NOT CORRECT. THE REPORT OF THE VAL UATION OFFICER WAS ONLY AND OPINION AND IN ABSENCE OF ANY OTHER MATERI AL EVIDENCE , IT CAN NOT BE TAKEN AS A CONCLUSIVE PROOF THAT ANY UNEXPLA INED PAYMENT HAS BEEN MADE BY THE APPELLANT FOR THE PURCHASE OF THE PROPERTY. HENCE CONSIDERING THE FACT OF THE CASE AND THE FINDING OF THE DIFFERENT COURTS RELIED BY THE APPELLANT, IT IS HELD THAT IN ABSENCE OF ANY POSITIVE OR CONCRETE MATERIAL EVIDENCE IN POSSESSION TO DISPUTE THE PURCHASE VALUE DECLARED BY THE APPELLANT, THE A.O WAS NOT JUSTIFIE D IN HOLDING THAT THE APPELLANT HAS MADE UNDISCLOSED INVESTMENT IN THE PU RCHASE OF THE PROPERTY. ACCORDINGLY THE ADDITION OF RS.28,24,300/ IS DELETED. BEING AGGRIEVED, THE DEPARTMENT IS IN APPEAL BEFORE THE TRIBUNAL. ITA NO. 2080/KOL./2009 & CO-95-KOL-2009 3 4. THE ASSESSEE HAS FILED CROSS OBJECTION BEING C.O . NO. 95/KOL./2009. WE FIRST TAKE UP THE CROSS OBJECTION AS THE SAME GOES TO THE ROOT OF THE MATTER. IN THE CROSS OBJECTION, THE ASSESSEE HAS TAKEN FOLLOWING GROUND OF APPEAL :- FOR THAT THE LEARNED CIT(A.) SHOULD HAVE ALSO ACCE PTED THE CONTENTION OF THE APPELLANT THAT REFERENCE MADE TO DVO ON 26.1 0.2007 BY THE ASSESSING OFFICER U/S. 142A WAS ITSELF ILLEGAL IN V IEW OF THE PROVISIONS OF PROVISO TO THE SAID SECTION SINCE ORIGINAL ASSESSME NT IN THIS CASE WAS MADE BEFORE 30.09.2004 ON 17.09.2004 AND THE SAID A SSESSMENT HAD BECOME FINAL AS NO APPEAL WAS FILED AGAINST THE SAM E AND THEREFORE, NO APPEAL WAS PENDING ON 30.09.2004. 5. APROPOS THIS ISSUE, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) ON 17.09.2004, AS IS EVIDENT FROM THE ASSESSMENT ORDER AND, THEREFORE, IN VIEW OF THE PROVISO TO SECTION 142A N O REFERENCE COULD BE MADE. LD. D.R. RELIED ON THE ORDER OF ASSESSING OFFICER. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE RECORDS OF THE CASE. SECTION 142A AUTHORIZES ASSESSING OFFICER TO MAKE REFERENCE TO THE VALUATION OFFICER FOR ESTIMATING THE VALUE OF ANY INVESTMENT REFERRED TO IN SECTION 69 OR 69B, ETC. THE PROVISO TO SECTION 142A READS AS UNDER :- PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY IN RESPECT OF AN ASSESSMENT MADE ON OR BEFORE THE 30TH DAY OF SEP TEMBER, 2004, AND WHERE SUCH ASSESSMENT HAS BECOME FINAL AND CONCLUSI VE ON OR BEFORE THAT DATE, EXCEPT IN CASES WHERE A REASSESSMENT IS REQUIRED TO BE MADE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A . THEREFORE, ONLY WHEN RE-ASSESSMENT IS REQUIRED TO B E MADE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A, REFERENCE COULD BE MADE, BUT IN OTHER CASES WHERE ASSESSMENT HAD BECOME FINAL ON OR BEFORE 30 TH SEPTEMBER, 2004, REFERENCE COULD NOT BE MADE. IN T HE PRESENT CASE, ADMITTEDLY, ORIGINAL ASSESSMENT HAD BECOME FINAL ON 17.09.2004 AND NO APPEAL HAD BEEN FILED BY THE ASSESSEE. UNDER SUCH CIRCUMSTANCES, REFERENC E COULD NOT BE MADE FOR RE-ASSESSMENT PROCEEDINGS PURSUANT TO ORDER UNDER SECTION 263. TH EREFORE, REFERENCE UNDER SECTION 142A WAS NOT IN ACCORDANCE WITH LAW. HENCE, NO ADDITION COUL D BE MADE ON THE BASIS OF THE SAID REFERENCE. IN THE RESULT, THIS GROUND OF CROSS OBJE CTION IS ALLOWED. ITA NO. 2080/KOL./2009 & CO-95-KOL-2009 4 7. AS WE HAVE ALREADY ALLOWED THE GROUND OF CROSS O BJECTION FILED BY THE ASSESSEE AT PARA 6 ABOVE, THE APPEAL FILED BY THE DEPARTMENT HAS BEC OME INFRUCTUOUS AND IS DISMISSED. 8. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMEN T IS DISMISSED AND THE CROSS OBJECTION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/ 01 /2012. & . / - 16/01/2012. SD/- SD/- [ MAHAVIR SINGH / ] [S.V. MEHROTRA/ ( . . )] JUDICIAL MEMBER/ ACCOUNTANT MEMBER/ DATED : 16/ 01/ 2012 COPY OF THE ORDER FORWARDED TO: 1. SHRI HARI PRASAD BUDHIA, 3C, CAMAC STREET, KOLKATA- 16 2 DCIT, CC-II, KOLKATA, 18, RABINDRA SARANI, KOLKATA- 1. 3. COMMISSIONER OF INCOME-TAX (APPEALS)- ,KOLKATA 4. CIT- , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, I.T.A.T., KOLKATA LAHA, SR. P.S.