SMT. LAXMI DEVI VERMA, JAIPUR V. INCOME TAX OFFICER, JAIPUR

ITA 06/JPR/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3274 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 02-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RUNI PAL CIT A
• Assessee Lawyers: SATISH KUMAR GUPTA
• Keywords: Additional evidence; Cost of acquisition; Competent authority; Reason to believe; Capital Gains
• Section: 143(3); 54F; 142(1); 143(2); 147; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 06/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2013-14 SMT. LAXMI DEVI VERMA PLOT NO. 110, GREEN PARK VIHAR, BENAD ROAD, DADI KA PHATAK, JAIPUR. CUKE VS. THE ITO, WARD-3(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ADXPV 5497 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. VEDANT AGARWAL (ADV.) & SH. SATISH KUMAR GUPTA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUNI PAL (ADDL. CIT) A LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 04/03/2021 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 04/05/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A)-I, JAIPUR DATED 06.11.2017 FOR THE ASSESSMEN T YEAR 2013-14. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT DURING T HE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SOLD AN IMMOVABLE P ROPERTY SITUATED AT TEHSIL CHOMU, JAIPUR FOR A CONSIDERATION OF RS. 94, 20,000/- ON 24.12.2012 WHICH WAS VALUED AT RS. 95,13,000/- BY T HE SUB-REGISTRAR ITA NO. 06/JP/2018 SMT LAXMI DEVI VERMA VS. ITO 2 FOR THE PURPOSE OF CHARGING STAMP DUTY BUT THE TRAN SACTION OF SALE OF ABOVE PROPERTY WAS NOT DISCLOSED IN THE RETURN OF I NCOME. IN THE ENQUIRIES CONDUCTED BY THE OFFICE OF DIT(I&CI), RAJ ASTHAN, JAIPUR, THE ASSESSEE HAS SUBMITTED A COMPUTATION OF INCOME SHOWING LONG TERM CAPITAL GAINS ON THE SALE OF SAID PROPERT Y AT RS. NIL TAKING SALE CONSIDERATION AT RS. 94,20,000/-, COST OF ACQUISITION OF RS 14,63,918/-, REGISTRY EXPENSES OF RS 1,83,136 /-, EXPENSES ON ACCOUNT OF COMMISSION AND DEVELOPMENT EXPENSES A MOUNTING TO RS 25,28,324/-AND CLAIMING DEDUCTION OF RS. 48,9 4,622/- U/S 54F OF THE ACT. FURTHER, IT HAS BEEN STATED BY THE AO THAT SPOT ENQUIRIES WERE MADE BY THE ITI FROM THE OFFICE OF D IT (I & CI), RAJASTHAN, JAIPUR ON 01.03.2015 WHEREIN IT WAS OBSE RVED THAT THE PLOTS OF LAND PURCHASED BY THE APPELLANT AT TEH SIL CHORNU WERE LYING VACANT AND NOT EVEN A BOUNDARY WALL WAS THERE. IN VIEW OF THE REPORT OF THE DIT(I &CI), RAJASTHAN , J AIPUR THE MATTER WAS EXAMINED BY THE AO AND HE HAD REASON TO BELIEVE THA T CAPITAL GAIN ON THE SALE OF PROPERTY FOR RS. 95,13,000/- HAD ESCAPE D ASSESSMENT AS THE TOTAL AMOUNT OF RS. 98,92,590/- WAS INVESTED BY THE APPELLANT IN THE PURCHASE OF TWO PLOTS BUT NO HOUSE WAS CONSTRUC TED THEREON AND CONSEQUENTLY, DEDUCTION U/S 54F OF THE ACT WAS NOT ALLOWABLE. THEREAFTER, NOTICE U/S 148 OF THE ACT WAS ISSUED ON 18.01.2016 AFTER SEEKING APPROVAL OF THE COMPETENT AUTHORITY. THEREA FTER NOTICE U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED CALLING FO R THE INFORMATION/DOCUMENTS AND THE ASSESSMENT WAS COMPLE TED U/S 147 R/W SECTION 143(3) OF THE ACT VIDE ORDER DATED 23.1 2.2016 WHEREIN INCOME FROM LONG TERM CAPITAL GAINS WAS COMPUTED WI THOUT ALLOWING DEDUCTION TOWARDS COMMISSION AND DEVELOPMENT EXPENS ES TOTALLING ITA NO. 06/JP/2018 SMT LAXMI DEVI VERMA VS. ITO 3 RS. 25,28,324/- CLAIMED BY THE ASSESSEE AND FURTHER DEDUCTION U/S 54F OF THE ACT WAS ALSO DENIED AS THE ASSESSEE HAD NOT MADE INVESTMENT IN HOUSE PROPERTY AND THE AMOUNT OF RS. 98,52,590/- WAS INVESTED IN VACATED RESIDENTIAL PLOT OF LAND ON LY. AGAINST THE SAID FINDINGS, THE ASSESSEES WENT IN APPEAL BEFORE THE LD. CIT(A) WHO HAS CONFIRMED THE ORDER OF THE ASSESSING OFFICE R AND AGAIN THE SAID FINDINGS, THE ASSESSEES IS NOW IN APPEAL BEFO RE US. 3. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT DURING THE APPELLATE PROCEEDINGS BEFORE THE LD CIT(A), THE ASSESSEE HAD MOVED AN APPLICATION UNDER RULE 46A FOR ADMISSION O F CERTAIN ADDITIONAL EVIDENCES WHICH ARE CRITICAL AND GERMANE TO ISSUE UNDER CONSIDERATION, HOWEVER THE LD. CIT(A) HAS ERRED IN NOT ACCEPTING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. IT WAS SUBMITTED THAT THE ASSESSEE HAS TAKEN A SPECIFIC GROUND OF APPEAL BEFO RE THIS BENCH REGARDING NON-ADMISSION OF ADDITIONAL EVIDENCES BY THE LD CIT(A) BESIDES OTHER GROUNDS OF APPEAL AND IT WAS ACCORDIN GLY PRAYED THAT THE ADDITIONAL EVIDENCES SO FILED BY THE ASSESSEE M AY BE ADMITTED AND THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE SAME. 4. IT WAS SUBMITTED BY THE LD AR THAT THE ASSESSING OFFICER HAS MENTIONED IN THE ASSESSMENT ORDER THAT ON 20.12.201 6 BEING THE SCHEDULED DATE OF HEARING, THE ASSESSEE DID NOT PRO DUCE ANY DOCUMENTS AS REQUIRED AND DID NOT PRODUCE THE PERSO NS TO WHOM THE COMMISSION WAS PAID. IN THIS REGARD, IT WAS SUB MITTED THAT THE ASSESSEE ALONG WITH HER AR, SHRI ANIL KUMAR AGARWAL , C.A., SHRI ITA NO. 06/JP/2018 SMT LAXMI DEVI VERMA VS. ITO 4 RAMESH KUMAR, HER HUSBAND AND SHRI MAJID KHAN DULY APPEARED BEFORE THE AO ALONG WITH DOCUMENTS AS EVIDENT FROM THE COPY OF VISITOR PASS ISSUED IN NAME OF SHRI RAMESH KUMAR BY THE INCOME TAX OFFICE DATED 20.12.2016 AS WELL AS NOTINGS IN T HE ORDERSHEET BY THE AO BUT THE ASSESSING OFFICER DID NOT ACCEPT THE SAME FOR THE REASON THAT THEY HAVE NOT COME AT THE GIVEN TIME I .E. TIME GIVEN BEFORE LUNCH. IT WAS ACCORDINGLY SUBMITTED THAT IT IS A CASE WHERE THE ASSESSING OFFICER HAS REFUSED TO ADMIT THE EVID ENCES WHICH OUGHT TO HAVE BEEN ADMITTED AND THE ASSESSEE WAS TH US PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCES WH ICH ARE GERMANE TO THE ISSUE UNDER CONSIDERATION. IT WAS ACCORDINGL Y SUBMITTED THAT IN THE INTEREST OF JUSTICE, THE ADDITIONAL EVIDENCE MAY BE ADMITTED AND THE MATTER MAY BE REMANDED BACK TO THE AO FOR N ECESSARY EXAMINATION. 5. PER CONTRA, THE LD. DR DRAWN OUR REFERENCE TO TH E FINDINGS OF THE LD. CIT(A) AND IT WAS SUBMITTED THAT THE LD. CI T(A) HAS TAKEN NOTE OF THE FACT THAT THE ASSESSING OFFICER HAS PRO VIDED SUFFICIENT OPPORTUNITIES TO THE ASSESSEE FROM TIME TO TIME. IT WAS FURTHER SUBMITTED THAT IT IS NOT DISPUTED THAT THE ASSESSEE APPEARED BEFORE THE ASSESSING OFFICER ON 20.12.2016, HOWEVER THE FA CT THAT THEY HAVE REACHED THE OFFICE AT AROUND 5.30 PM, THE TIME REFLECTED ON THE VISITING PASS ITSELF SHOWS THAT THE ASSESSEE DI D NOT WANT TO GIVE ANY TIME TO THE ASSESSING OFFICER FOR ANY FRUITFUL EXAMINATION OF THESE PERSONS FOR VERIFICATION. IT WAS FURTHER SUBM ITTED THAT EVEN IN THE NOTINGS IN THE ORDER SHEET DATED 20.12.2016 WHE REIN THE ASSESSEE HAS PUT HER SIGNATURE, THE ASSESSEE HAS NO T STATED THAT THE ITA NO. 06/JP/2018 SMT LAXMI DEVI VERMA VS. ITO 5 AO DID NOT TAKE ON RECORD THE EVIDENCES SOUGHT TO B E FILED BY HIM AND SHRI MAJID KHAN ALONG WITH THE ASSESSEE WERE PR ODUCED FOR NECESSARY EXAMINATION. IT WAS ACCORDINGLY SUBMITTED THAT THE CASE OF THE ASSESSEE DOES NOT COME WITHIN THE PURVIEW OF RULE 46A AND THEREFORE, THERE IS NO INFIRMITY IN THE FINDINGS OF THE LD. CIT(A) WHO HAS RIGHTLY REFUSED TO ADMIT THE ADDITIONAL EVIDENC ES SOUGHT TO BE FILED BY THE ASSESSEE. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE EVIDENCES SO SOUGHT TO BE ADMITTED ARE ADMITTEDLY RELATED TO THE TRANSACTION WHICH IS SUBJ ECTED TO LONG TERM CAPITAL GAINS AND ARE IN FORM OF BILLS, RECEIPTS, C ONFIRMATION, AFFIDAVITS ETC IN SUPPORT OF COMMISSION AND DEVELOPMENT EXPENS ES AND CLAIM OF CONSTRUCTION OF HOUSE AND DEDUCTION U/S 54F OF THE ACT. IT IS A SETTLED POSITION OF LAW THAT THE REVENUE CAN TAX WHAT IS TA XABLE UNDER THE LAW AND THE DEDUCTIONS WHERE CLAIMED AND FOUND ELIGIBLE SHOULD BE ALLOWED. THE SUBSTANTIAL JUSTICE SHOULD PREVAIL OVER THE PRO CEDURAL OR TECHNICAL ASPECTS. WE THEREFORE CONSIDERING THE FACT THAT THE SE EVIDENCES WHICH ARE NOW SOUGHT TO BE ADMITTED WOULD BE IN THE INTER EST OF PROPER ADJUDICATION OF THE ISSUES AT HAND, THE SAME ARE HE REBY ADMITTED AND THE MATTER IS SET-ASIDE TO THE FILE OF AO TO EXAMIN E THE SAME AND DECIDE THE MATTER AS PER LAW AFTER PROVIDING REASONABLE OP PORTUNITY TO THE ASSESSEE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ITA NO. 06/JP/2018 SMT LAXMI DEVI VERMA VS. ITO 6 ORDER PRONOUNCED IN THE OPEN COURT ON 04/05/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 04/05/2021. *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. LAXMI DEVI VERMA, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-3(3), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 06/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR