Sh. Parminder Singh Grewal, Hoshiarpur, Hoshiarpur V. The Income tax Officer, Hoshiarpur

ITA 104/ASR/2013

• Counselvise Citation: 10420914 RSA 2013
• Duration Of Justice: 2 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-09-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 15-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TARSEM LAL
• Assessee Lawyers: TARUN BANSAL
• Keywords: Assessment record; Reassessment proceedings
• Section: 148; 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR(SMC). BEFORE SH. A.D. JAIN, JUDICIAL MEMBER I.T.A. NO.104(ASR)/2014 ASSESSMENT YEAR:2002-03 PAN :ABAPG6640F SH.PARMINDER SINGH GREWAL, VS. INCOME TAX OFFICER, HOSHIARPUR. WARD-III, HOSHIARPUR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.TARUN BANSAL, ADVOCATE RESPONDENT BY: SH.TARSEM LAL, DR DATE OF HEARING:14/09/2015 DATE OF PRONOUNCEMENT: 01/10/2015 ORDER THIS IS ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2 002-03, AGAINST THE ORDER DATED 21.12.2012 PASSED BY THE LEARNED CIT(A ), JALANDHAR. 2. THE MODIFIED GROUNDS OF APPEAL RAISED BY THE AS SESSE ARE AS FOLLOWS: 1. THAT THE INITIATION OF PROCEEDINGS U/S 148 AGAI NST THE APPELLANT IS BAD IN LAW BEING THE CONCERNED PROPERTY DOES NOT BELONG TO HIM. 2. THAT ITO II1(2), LUDHIANA HAD NO JURISDICTION OV ER THE APPELLANT ON THE DATE OF ISSUANCE OF SUCH NOTICE AN D JURISDICTION WAS WITH THE HOSHIARPUR-3. ITA NO.104(ASR)/2013 2 3. THAT THE LD. AO WRONGLY IGNORED THE LAW OF HUF, BEFORE MAKING ADDITION IN THE HANDS OF APPELLANT. 4. THAT THE AO TRIED TO BLOW HOT & COLD AS THE AGRI CULTURE INCOME FROM THE SAID LAND WAS EVER ASSESSED IN THE HANDS O F APPELLANT FOR RATE PURPOSES NEITHER IN THE PRECEDING & SUCCEE DING YEARS NOR IN THE YEAR UNDER APPEAL. 3. THE COMPLETED ASSESSMENT OF THE ASSESSEE WAS R EOPENED. IN THE REASSESSMENT PROCEEDINGS, THE ASSESSEE STATED THAT HALF ACRE OF LAND WAS SOLD ON 22.07.2001. AS PER REGISTRATION DEED, THE S ALE WAS MADE AT RS.3,25,000/-. HOWEVER, THE ASSESSEE ADMITTED TO HA VE RECEIVED RS.12,50,000/- AS PER AGREEMENT WITH THE PURCHASER, SH. BHOPAL SINGH. THE ASSESSEE ALSO STATED THAT HE HAD ONE ACRE OF ANCEST RAL LAND IN VILLAGE KULLIANWALA, OUT OF WHICH, HALF ACRE LAND WAS SOL D. NO CAPITAL GAINS TAX WAS PAID, AS THE SALE PROCEEDS WERE CLAIMED TO BE U TILIZED IN THE CONSTRUCTION OF A RESIDENTIAL HOUSE ON A PLOT OWNED BY HIS WIFE, SMT. LAKHBIR KAUR AND CLAIM FOR DEDUCTION U/S 54F OF THE ACT WAS MADE. I T WAS CONTENDED THAT THE LAND IN QUESTION WAS ANCESTRAL LAND WHICH DEVOLVED ON THE ASSESSEE AND HIS TWO BROTHERS THROUGH WILL EXECUTED BY THE FATHER A ND THAT AS SUCH, LAND SHOULD BE TREATED AS BELONGING TO THE HUF RATHER T O THE ASSESSEE INDIVIDUALLY. THE AO, REJECTING THIS STAND OF THE A SSESSEE, TAXED CAPITAL GAINS AT RS.12,50,000/-, TAKING THE COST OF ACQUISI TION, AS STATED BY THE ASSESSEE, AT RS.44,985/-. ITA NO.104(ASR)/2013 3 4. THE LD. CIT(A) DISMISSED THE ASSESSEES APPEAL, HOLDING AS FOLLOWS: GROUND NO. 3, 4 AND 6 RELATES TO THE CLAIM OF DEDUC TION U/S 54F OF THE I.T. ACT. THE AO FOR THE DENIAL OF SUCH DEDUCTI ON HAS HELD THAT SINCE THE RESIDENTIAL HOUSE CLAIMED TO HAVE BEEN MA DE ON THE LAND OWNED BY THE WIFE OF ASSESSEE, NO DEDUCTION WAS ALL OWABLE. HERE, THE AO HAS MISSED MOST VITAL ASPECT FOR CONSIDERATION T HAT NO COGENT EVIDENCE OF ANY SORT IS PRODUCED BY THE ASSESSEE TO SUBSTANTIATE ANY SUCH INVESTMENT MADE BY HIM, IN THE FIRST PLACE. I FIND FROM THE ORDER SHEET IN ASSESSMENT RECORDS THAT ON 27.07.09 THE AO HAS CATEGORICALLY ASKED THE ASSESSEE TO FURNISH DETAILS OF SOURCES FO R INVESTMENT MADE IN CONSTRUCTION OF HOUSE ALONGWITH DOCUMENTARY EVIDENC E. THE ASSESSMENT WAS COMPLETED ON 31.12.09 AND EVEN NOW B EFORE ME NO CREDIBLE EVIDENCE FOR ANY EXPENSES MADE AS INVESTM ENT IS FILED BY THE ASSESSEE ONLY THE LEGAL ARGUMENTS ARE MADE BY THE ASSESSEE AND WHEN THE FACTS SUPPORTING ARE NOWHERE. THE ONLY DOCUMENTS FILED ARE TWO BILLS FOR PURCHASE OF 10 BAGS OF CEMENT EACH BY SH . GREWAL SAHIB AND ONE SHEET WHERE SOME ACCOUNT OF MR. GREWAL C/O KRISHAN SINGH IN RESPECT OF PIPE, GLASS HANDLE KUBZA ETC IS GIVEN . EVEN THE DATE ON THIS DOCUMENT IS NOT CLEAR WHICH IS WRITTEN AS 18. 12.20 WHEREAS THE AMOUNT INVOLVED IS AROUND 35000 TO 40000 ONLY. I FE AR THIS ONE SWALLOW DOES NOT MAKE A SUMMER. IN ABSENCE OF ANY C OGENT AND CREDIBLE EVIDENCE OF ANY INVESTMENT MADE IN RESIDEN TIAL HOUSE (WHETHER ON THE LAND OWNED BY WIFE OR NOT) NO CONSI DERATION CAN BE GIVEN TO THE CLAIM OF DEDUCTION U/S 54F OF I.T. ACT . IN VIEW OF THIS CLAIM U/S 54F OF I.T. ACT CANT BE ALLOWED TO ASSES SEE UNLESS SUPPORTED BY THE FACTS WHICH ARE ABSENT IN THIS CAS E. THE CLAIM UNDER SECTION 54F OF I.T.ACT IS FOUND TO BE UNSUSTAINABLE . 5. AT THE OUTSET, IT IS SEEN THAT THE ASSESSEE HAS PLACED ON RECORD (APB 19-20) A JAMABANDI IN RESPECT OF THE LAND UNDER CON SIDERATION. IN THIS JAMABANDI, UNDER THE OWNERSHIP COLUMN, THE FOLLOWIN G RECITAL EXISTS: JAGIR SINGH, BAKHTAWAR SINGH SONS OF BACHINT SINGH S/O HARNAM SINGH EQUAL SHARE OWNER. ITA NO.104(ASR)/2013 4 ACCORDING TO THE ASSESSEE, THEREFORE, EVEN IN THE S AID JAMABANDI, WHICH IS THE PRIMARY DOCUMENT OF OWNERSHIP OF AGRICULTURAL L AND, THE LAND IN QUESTION HAS BEEN SHOWN AS JOINT LAND OF JAGIR SINGH, FATHER OF THE ASSESSEE ALONGWITH HIS BROTHER, BAKHTAWAR SINGH (UNCLE OF THE ASSESSEE ), IN EQUAL SHARES. THE ASSESSEE STATES TO HAVE FILED THIS JAMABANDI BEFORE THE LD. CIT(A), REQUESTING THAT IN ACCORDANCE THEREWITH, THE LAND IN QUESTION BE NOT TREATED AS OWNED INDIVIDUALLY BY THE ASSESSEE. 6. HOWEVER, A PERUSAL OF THE IMPUGNED ORDER SHOWS T HAT THIS JAMABANDI HAS NOT BEEN TAKEN INTO CONSIDERATION BY THE LD. CI T(A), WHILE DECIDING THE MATTER AGAINST THE ASSESSEE. THIS, DESPITE THE FACT THAT THE JAMABANDI IS A PRIMARY DOCUMENT OF OWNERSHIP OF AGRICULTURAL LAND. HENCE, IN THE INTEREST OF SUBSTANTIAL JUSTICE, THIS MATTER IS REQUIRED TO BE REMITTED TO THE FILE OF THE LD. CIT(A) TO DECIDE IT AFRESH IN ACCORDANCE WITH LAW O N CONSIDERING THE SAID JAMABANDI. ORDERED ACCORDINGLY. THE LD. DR HAS OPP OSED THIS COURSE OF ACTION STATING THAT THIS IS THE THIRD DEGREE OF INH ERITANCE AND AS PER THE MITAKSHARA LAW, ANY PROPERTY, TO ASSUME THE COLOUR OF HUF PROPERTY, HAS TO BE IN THE FOURTH DECREE; THAT IN THE PRESENT CASE, SH. BACHINT SINGH WAS THE GRANDFATHER AND NOT GREAT GRANDFATHER OF THE ASSESS EE. THIS OBJECTION SHALL ALSO BE TAKEN INTO CONSIDERATION AND DISPOSED OF I N ACCORDANCE WITH LAW BY THE LD. CIT(A). ITA NO.104(ASR)/2013 5 7. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON IST OCTOBER, 2012. SD/- (A.D. JAIN) JUDICIAL MEMBER DATED: IST OCTOBER, 2015 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH.PARMINDER SINGH GREWAL, HOSHIARPUR. 2. THE ITO WARD-III, HOSHIARPUR. 3. THE CIT(A), JALANDHAR. 4. THE CIT, JALANDHAR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.