Shri Shrikant Shukla, Indore V. THE ACIT, Circle 5(1), Indore

ITA 101/IND/2017

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5681 (ITAT-INDORE)
• Duration Of Justice: 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 15-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: AVINASH AGRAWAL
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Principle of natural justice
• Section: 50C; 54; 144

Judgement Text

SHRI KRISHNAKANT SHUKLA ITA NO.100/IND/2017 SHRIKANT SHUKLA ITA NO. 101/IND/201 7 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .. , . . , !'!# BEFORE SHRI C. M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER 1. . . $ /. I.T.A. NO.100/IND/2017 2. . . $ /. I.T.A. NO.101/IND/2017 %& / ASSESSMENT YEAR: 2006-07 1. SHRI KRISHNAKANT SHUKLA 654, KHAJRANA ABOVE PIPAL CHOWK NEAR RAM MANDIR INDORE 2. SHRIKANT SHUKLA 564, KHAJRANA ABOVE PIPAL CHOWK NEAR RAM MANDIR INDORE VS. ASSTT. COMMISSIONER OF INCOME TAX 5(1) INDORE / // / APPELLANTS / // / RESPONDENT . . ./ PAN: BDNPS 9624K & BDNPS 9624K / // / APPELLANTS BY SHRI AVINASH AGRAWAL / // / RESPONDENT BY SHRI MOHD. JAVED / // / DATE OF HEARING 21.03.2017 / // / DATE OF PRONOUNCEMENT 27.03.2017 / // / O R D E R PER BENCH THESE APPEALS ARE FILED BY THE ABOVE-MENTIONED ASSE SSEES AGAINST DIFFERENT ORDERS OF LEARNED COMMISSIONER OF INCOME TAX-II, SHRI KRISHNAKANT SHUKLA ITA NO.100/IND/2017 SHRIKANT SHUKLA ITA NO. 101/IND/201 7 2 INDORE [HEREINAFTER REFERRED TO AS THE CIT (A)] D ATED 26.10.2016. THESE APPEALS PERTAIN TO ASSESSMENT YEAR 2006-07 AS AGAINST APPEALS DECIDED IN RESPECT OF DIFFERENT ASSESSMENT ORDERS DATED 30.11.2012 PASSED U/S. 144/254 OF THE INCOME TAX AC T, 1961 (HEREIN AFTER REFERRED TO AS 'THE ACT) BY THE ACIT 5(1), INDORE [HEREINAFTER REFERRED TO AS THE AO']. 1. IN THESE APPEALS, FOLLOWING COMMON GROUNDS OF APPEA L HAVE BEEN TAKEN BY THESE ASSESSEES :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE: - 1. THE LD. CIT(A) ERRED IN SUSTAINING THE ASSESSMEN T WHICH IS BARRED BY LIMITATION, PASSED WITHOUT JURISDICTION, BAD IN LAW, CONTRARY TO MATERIAL AND LAW AND/OR WAS ILLEGAL. 2. THE LD. CIT(A) ERRED IN SUSTAINING THE ADDITION OF RS. 5.69 LAKH UNDER SECTION 50C 3. THE LD. CIT(A) ERRED IN SUSTAINING THE ADDITION OF RS. 5.69 LAKH AS THE LD. A.O. DID NOT FOLLOW THE DIRECTION O F HON. ITAT, INDORE BENCH TO CONSIDER THE CASES RELIED UPON BY T HE ASSESSEE ALONG WITH THE REPORT OF AVO AND THEN DECI DE IN ACCORDANCE WITH THE LAW. SHRI KRISHNAKANT SHUKLA ITA NO.100/IND/2017 SHRIKANT SHUKLA ITA NO. 101/IND/201 7 3 4. THE LD. CIT(A) FAILED TO CONSIDER THAT THE DVOS VALUATION WAS WITHOUT ANY BASIS AND THEREFORE THE SAME SHOULD HAVE BEEN IGNORED. 5. THE LD. CIT(A) FAILED TO CONSIDER THAT THE CIRCU LAR NO. 5/2010 DATED 3.6.2010 WAS APPLICABLE IN THE FACTS OF PRESE NT CASE AS THE PROPERTY WAS NOT REGISTERED IN THE YEAR OF S ALE. 6. THE LD. CIT(A) FAILED TO CONSIDER THAT THE CASE OF CIT VS. SUGANTHA RAVINDRAM (2013) 32 TAXMANN.COM 274(MADRAS ) WAS APPLICABLE IN THE FACTS OF PRESENT CASE AS THE PROPERTY WAS NOT REGISTERED IN THE YEAR OF SALE. 7. THE LD. CIT(A) FAILED TO CONSIDER THAT THE CASE OF NAVNEET KUMAR THAKKAR 110 ITD 525 (JODH) WAS APPLICABLE IN THE FACTS OF PRESENT CASE AS THE PROPERTY WAS NOT REGIS TERED IN THE YEAR OF SALE. 8. THE FINDINGS OF LD. CIT(A) ARE CONTRARY TO FACTS AND LAW. 9. THAT THE ORDER OF LEARNED CIT(APPEALS) IS A NON- SPEAKING ORDER AND THEREFORE ILLEGAL AND BAD IN LAW. 2. SINCE THE FACTS INVOLVED IN BOTH THESE APPEALS ARE EXACTLY SIMILAR WITH EACH OTHER EXCEPT THE FIGURES, WE SHAL L DECIDE ITA NO. 100/IND/2017 FIRST BEING THE LEAD CASE. SHRI KRISHNAKANT SHUKLA ITA NO.100/IND/2017 SHRIKANT SHUKLA ITA NO. 101/IND/201 7 4 ITA NO. 100/IND/2017 2.1 SUCCINCTLY, FACTS AS CULLED OUT FROM THE ORD ERS OF LOWER AUTHORITIES ARE THAT THE ORIGINAL ASSESSMENT IN THI S CASE WAS COMPLETED DETERMINING THE TOTAL INCOME OF THE ASSES SEE AT RS.17,52,520/- AS AGAINST THE RETURNED INCOME OF RS .5,63,724/-. WHILE COMPLETING THE ASSESSMENT THE ASSESSING OFFIC ER MADE ADDITION U/S 50C OF THE ACT. ON APPEAL THE LEARNED CIT(A) GRANTED PART RELIEF TO THE ASSESSEE. ON FURTHER APPEAL, TH E TRIBUNAL REMITTED THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION AFTER AFFORDING DUE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. THEREFORE, THE ASSESSING OFFICER ISSUED NOTICE U/S 143(2) OF THE ACT. THE ASSESSING OFFICER ALSO ISSUED A LETTER ASKING T HE ASSESSEE TO SHOW REASONS AS TO WHY THE REPORT OF THE AVO SHOULD NOT BE REJECTED AS THE SAME IS NOT ACCEPTABLE IN VIEW OF T HE PROVISIONS OF SECTION 50C OF THE ACT. THE ASSESSING OFFICER FIXED THE CASE FOR HEARING ON 18.10.2012 BUT NEITHER THERE WAS ANY REP RESENTATION ON BEHALF OF THE ASSESSEE NOR ANY REPLY WAS FILED. THE ASSESSING OFFICER ALSO CONTACTED THE LEARNED COUNSEL FOR THE ASSESSEE ON PHONE ON 29.10.2012 IN RESPONSE TO WHICH HE ASSURED THAT HE WOULD ATTEND WITH REPLY. HOWEVER, NONE ATTENDED. THE ASSESSING OFFICER ALSO SHRI KRISHNAKANT SHUKLA ITA NO.100/IND/2017 SHRIKANT SHUKLA ITA NO. 101/IND/201 7 5 PROVIDED SIMILAR OPPORTUNITIES TO THE ASSESSEE ON 2 2.11.2012 BUT THE ASSESSEE DID NOT REMAIN PRESENT. HOWEVER, WRIT TEN SUBMISSION WAS FILED IN DAK ASKING FOR ADJOURNMENT. THE ASSESS ING OFFICER ALSO MADE A REQUEST OVER TELEPHONE ON 29.10.2012 BUT TO NO AVAIL. IN THE WAKE OF THE NON-COOPERATION ON THE PART OF THE ASSE SSEE, THE ASSESSING OFFICER INFERRED THAT THE ASSESSEE HAS NO THING TO PROVIDE ANY MATERIAL IN SUPPORT OF HIS CLAIM. THE CLAIM OF THE ASSESSEE WAS THAT THE AVOS REPORT SHOULD NOT BE REJECTED WITHOU T PROVIDING OPPORTUNITY. THE ASSESSING OFFICER OBSERVED THAT MO RE THAN SUFFICIENT OPPORTUNITY HAS BEEN PROVIDED TO THE ASS ESSEE BUT HE HAS FAILED TO REPRESENT HIS CASE. HOWEVER, THE ASSESSIN G OFFICER OBSERVED THAT THE REPORT OF THE AVO CANNOT BE ACCEPTED AS IN THE PROVISIONS OF SECTION 50C OF THE ACT, IF THE VALUE OF THE SALE CONSIDERATION SHOWN BY THE ASSESSEE IS BELOW THAN THE VALUE DETER MINED BY THE REGISTERED AUTHORITY, THE VALUE AS DETERMINED IS TO BE ADOPTED AS SALE CONSIDERATION FOR THE PURPOSE OF COMPUTING CAP ITAL GAINS. IN THE INSTANT CASE, THE ASSESSEE HAS SHOWN SALE CONSI DERATION FOR LAND-2 AT RS.60.14 LACS. THE REGISTERING AUTHORITY VALUED THE SAME AT RS.88.54 LACS. ON THE OBJECTION OF THE ASSESSEE, THE ASSESSING OFFICER REFERRED THE MATTER TO THE DVO WHO VALUED T HE LAND AT SHRI KRISHNAKANT SHUKLA ITA NO.100/IND/2017 SHRIKANT SHUKLA ITA NO. 101/IND/201 7 6 RS.71.52 LACS BELOW THAN THE VALUE ADOPTED BY THE R EGISTERING AUTHORITY. THE ASSESSEE CLAIMED THAT THE VALUE OF T HE LAND SHOULD BE ADOPTED AT RS.58.87 LACS AS PER REPORT OF AVO. HOWE VER, THE ASSESSING OFFICER DID NOT AGREE WITH THE SAME. IN T HIS CASE THE ITAT, INDORE BENCH, HAD SET ASIDE THE ISSUE TO THE FILE O F THE ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSEE SHOULD BE GIVEN SUFFICIENT OPPORTUNITY NOT ONLY TO PRESENT THE CASE BUT ALSO TO FURNISH EVIDENCE IN SUPPORT OF ITS CONTENTIONS. THE TRIBUNAL ALSO DIRECTED THE ASSESSING OFFICER TO CONSIDER THE CASE S RELIED UPON BY THE ASSESSEE ALONG WITH THE REPORT OF THE AVO. HOWE VER, THE ASSESSING OFFICER PROCEEDED TO MAKE THE ASSESSMENT U/S 144 OF THE ACT IN THE ABSENCE OF NON-COOPERATION ON THE PART O F THE ASSESSEE. ACCORDINGLY, THE ASSESSING OFFICER DETERMINED THE V ALUATION OF THE PROPERTY AT RS.71.52 LACS ON THE GROUND THAT THE VA LUATION OFFICER HAS DULY APPLIED HIS MIND TO THE ENTIRE FACTS OF TH E CASE INCLUDING THE POINTS RAISED BY THE ASSESSEE. 2.2 BEING AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED CIT(A) WHO, AFTER ELABORATELY DISCUSSING TH E ISSUE, CONFIRMED THE ACTION OF THE ASSESSING OFFICER. SHRI KRISHNAKANT SHUKLA ITA NO.100/IND/2017 SHRIKANT SHUKLA ITA NO. 101/IND/201 7 7 2.3 NOW, THE ASSESSEE IS IN APPEAL BEFORE THE TRI BUNAL. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE VALUATIO N ADOPTED BY THE ASSESSING OFFICER. ON THE OTHER HAND, THE LEARNED D R SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 2.4 AFTER CAREFUL CONSIDERATION OF THE SUBMISSIONS OF THE PARTIES IN VIEW OF THE FACTS OF THE CASE, WE FIND THAT IN T HIS CASE THE ASSESSING OFFICER HAS MADE THE ASSESSMENT U/S 144/2 54 OF THE IT ACT. IT IS A WELL SETTLED PRINCIPLE OF NATURAL JUST ICE THAT NO-BODY SHOULD BE CONDEMNED UNHEARD. PRINCIPLE OF NATURAL R EQUIRES THAT SUFFICIENT OPPORTUNITY OF BEING HEARD SHOULD BE PRO VIDED TO THE ASSESSEE BEFORE DECIDING THE ISSUE AGAINST HIM. WE ARE OF THE VIEW THAT SINCE THE ASSESSING OFFICER HAS DECIDED THE MA TTER WITHOUT HEARING THE ASSESSEES IN VIOLATION OF THE PRINCIPLE S OF NATURAL JUSTICE AND FAIR PLAY, THIS APPEAL NEEDS TO BE RESTORED TO HIS FILE FOR DECIDING THE SAME AFTER PROVIDING DUE OPPORTUNITY OF BEING H EARD TO THE ASSESSEES. WE, THEREFORE, FOLLOWING THE PRINCIPLE O F NATURAL JUSTICE, RESTORE THIS APPEAL TO THE FILE OF THE ASSESSING OF FICER WITH THE DIRECTION TO FRAME FRESH ASSESSMENT AFTER PROVIDING THE ASSESSEES DUE OPPORTUNITY OF BEING HEARD. WE ALSO DIRECT THE ASSESSING OFFICER SHRI KRISHNAKANT SHUKLA ITA NO.100/IND/2017 SHRIKANT SHUKLA ITA NO. 101/IND/201 7 8 TO CONSIDER THE DECISIONS IN THE CASES OF CIT VS. S UGANTHA RAVINDRAM (2013) 32 TAXMANN.COM 274(MAD.) AND NAVNE ET KUMAR THAKKAR; 110 ITD 525 (JODH) AS CITED BY THESE ASSES SEE IN THE GROUNDS OF APPEAL AS QUOTED ABOVE. NEEDLESS TO MENT ION THAT THE ASSESSEE IS AT LIBERTY TO FILE EVIDENCE, IF ANY, IN SUPPORT OF HIS CLAIM BEFORE THE ASSESSING OFFICER. ITA NO. 101/IND/2017 2.5 SINCE THE FACTS OF THE PRESENT CASE ARE IDENTI CAL WITH ITA NO. 100/IND/2017, FOLLOWING THE REASONING GIVEN THEREIN ABOVE, WE ISSUE SIMILAR DIRECTIONS TO THE ASSESSING OFFICER A ND DECIDE THIS APPEAL ACCORDINGLY. 3. IN THE RESULT, THE APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. 4. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH MARCH, 2017. S D / - SD/- ( . . ) (C.M.GARG) JUDICIAL MEMBER ( . . ) (O.P.MEENA) ACCOUNTANT MEMBER MARCH 27 TH 2017 SHRI KRISHNAKANT SHUKLA ITA NO.100/IND/2017 SHRIKANT SHUKLA ITA NO. 101/IND/201 7 9 DN/-