Harish Chand Katara, Agra V. I.T.O.-Ward-2(3), Agra

ITA 105/AGR/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7022 (ITAT-AGRA)
• Duration Of Justice: 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 19-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Keywords: Capital asset; Principle of natural justice; Cost of acquisition
• Section: 2(14); 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA(SMC) BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 105/AGRA/2011 ASSTT. YEAR : 2006-07 SHRI HARISH CHAND KATARA, VS. INCOME-TAX OFFICER , A-3, KRISHNAPURI, GARHI BHADAURIA, WARD 2(3), AG RA. PRATAP NAGAR, AGRA. (PAN : ALRPK 0954 H) (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI ANURAG SINHA, ADVOCATE FOR RESPONDENT : SHRI A.K. SHARMA, JR. DR ORDER THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDE R DATED 29.12.2010 OF LEARNED CIT(A) ON THE FOLLOWING GROUNDS : 1. BECAUSE THE ASSESSMENT ORDER IS BAD IN LAW AND ON THE FACTS OF THE CASE AS THE NOTICE UNDER SECTION 148 I S AGAINST THE LAW. 2. BECAUSE THE AUTHORITIES BELOW HAVE ERRED IN MAK ING THE ADDITION ALLEGEDLY AS INCOME FROM UNDISCLOSED SOURC ES IGNORING THE MATERIAL ON RECORD AND WITHOUT JUDICIOUSLY CONSIDER ING THE OBJECTION IN RECORDING THE REASONS AND THE EXPLANATION MADE. 3. BECAUSE THE ASSESSMENT IS BAD IN LAW AS THE AUT HORITIES BELOW HAVE MADE IT FLAGRANTLY VIOLATING THE PRINCIP LES OF NATURAL JUSTICE. THE REASONS RECORDED FOR TAKING ACTION U/S . 148 IS NOT VALID AND CORRECT AS WELL AS THE ASSESSING OFFICER HAS NO T DISPOSED OFF THE OBJECTION RAISED BY THE ASSESSEE IN RESPECT OF PROC EEDINGS UNDER SECTION 148. 2 4. BECAUSE THE AUTHORITIES BELOW HAVE ERRED IN CAL CULATING THE INDEXED COST OF ACQUISITION. LATER ON, THE ASSESSEE FILED REVISED GROUNDS OF APP EAL ON 20.05.11, WHICH ARE AS UNDER : 1. BECAUSE ON DUE CONSIDERATION OF THE FACTS AND I N THE CIRCUMSTANCES OF THE CASE AUTHORITIES BELOW ERRED I N ALLOWING BENEFIT OF INDEXATION ON THE BASIS OF PAYMENTS DATES (F.Y. 2001-02 & 2004- 05_ AS AGAINST THE CLAIM OF THE APPELLANT TO HAVE B EEN ALLOWED INDEXATION FROM THE DATE OF ALLOTMENT (F.Y. 1991-92 ). 2. BECAUSE IN ANY VIEW OF THE MATTER ORDER OF THE AUTHORITIES BELOW IS BAD BOTH ON FACTS AND IN LAW. 2. AT THE TIME OF HEARING, SHRI ANURAG SINHA, ADVOC ATE, THE LD. COUNSEL FOR THE ASSESSEE MADE A STATEMENT THAT HE IS NOT PRESSING L EGAL ISSUE MENTIONED IN GROUND NO. 1 TO 3 RAISED IN ORIGINAL GROUNDS OF APPEAL. HE HAS ALSO INDORSED THE SAME. HE REQUESTED THAT THE ISSUE INVOLVED IN ORIGINAL GROUN D NO. 1 TO 3 MAY BE DISMISSED. ON THE CONTRARY, THE LEARNED DR HAS NOT RAISED ANY OBJECTION. KEEPING IN VIEW OF THE STATEMENT OF THE LD. COUNSEL OF THE ASSESSEE, T HE ISSUE INVOLVED IN ORIGINAL GROUND NO. 1 TO 3 IS DISMISSED BEING NOT PRESSED. 3. AS REGARDS TO THE ISSUE INVOLVED IN REVISED GROU ND NO. 1 REPRODUCED ABOVE, THE ASSESSEE HAS CHALLENGED ALLOWING OF BENEFIT OF INDEXATION ON THE BASIS OF PAYMENTS DATES (F.Y. 2001-02 & 2004-05) AGAINST THE CLAIM OF THE ASSESSEE TO HAVE BEEN ALLOWED INDEXATION FROM THE DATE OF ALLOTMENT (F.Y. 1991-92). BOTH THE 3 PARTIES HAVE NOT DISPUTED THE FACTS NARRATED BY THE REVENUE AUTHORITIES. THEREFORE, THERE IS NO NEED TO REPEAT THE SAME. 4. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE MADE A STATEMENT THAT THE ISSUE INVOLVED IN REVISED GROUND NO. 1 REGARDIN G ALLOWING THE BENEFIT OF INDEXATION FROM THE DATE OF ALLOTMENT HAS ALREADY B EEN DECIDED BY THE ITAT, MUMBAI BENCH A IN THE CASE OF SMT. LATA G. ROHRA VS. DCI (2008) 21 SOT 541 (MUMBAI) AND CHARANBIR SINGH JOLLY & ANR. VS. ITO ( 2006) 5 SOT 89 (MUMBAI). THEREFORE, HE REQUESTED THAT THE BENEFIT OF INDEXAT ION SHOULD BE ALLOWED TO THE ASSESSEE FROM THE DATE OF ALLOTMENT, I.E., F.Y. 199 1-92. ON THE CONTRARY, THE LD. DR HAS NOT RAISED ANY OBJECTION ON THE REQUEST OF THE ASSESSEE. 5. I HAVE HEARD THE BOTH PARTIES, PERUSED THE RELEV ANT RECORD AVAILABLE WITH ME ESPECIALLY THE ORDER PASSED BY THE ITAT, MUMBAI AND THE CASE LAWS CITED BY THE LD. COUNSEL FOR THE ASSESSEE. FOR THE SAKE OF CONVENIEN CE, THE RELEVANT PORTION OF THE ORDER IN THE CASE OF LATA G. ROHRA VS. DCIT (SUPRA) AS UNDER : AS PER S. 2(14) R/W.S 2(14)(VI), THE RIGHTS IN FLA T, ACQUIRED BY THE ASSESSEE ON EXECUTION OF PURCHASE AGREEMENT ON 7 TH AUG., 1993, COME WITHIN THE PURVIEW OF THE TERM CAPITAL ASSET . FROM THE PERUSAL OF LANGUAGE USED IN EXPLN. (III) TO S. 48, WHICH PR OVIDES FOR MANNER OF ACQUISITION AND NOT ACTUAL PAYMENTS MADE BY THE ASS ESSEE, HENCE, THERE IS NO MERIT IN THE ALTERNATE CONTENTION OF TH E REVENUE THAT THE BENEFIT OF INDEXATION SHOULD BE GIVEN ON THE BASIS OF DATES OF ACTUAL PAYMENTS MADE BY THE ASSESSEE. THE ASSESSMENT ORDER IS CORRECT IN LAW. THUS, ON MERITS, THE ISSUE IS COVERED IN FAVOU R OF ASSESSEE. 4 SIMILARLY, IN ANOTHER DECISION REFERRED TO BY THE L D. COUNSEL IN THE CASE OF CHARANBIR SINGH JOLLY & ANR. VS. ITO (SUPRA), MUMBA I BENCH OF TRIBUNAL HAS DECIDED THE SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE . THUS, ON THE BASIS OF ABOVE OBSERVATIONS, THE MUMBAI BENCH OF TRIBUNAL CONCLUDE D THAT FOR THE PURPOSE OF COMPUTING CAPITAL GAINS, BENEFIT OF INDEXATION SHOU LD BE GIVEN QUA THE DATE OF COST OF ACQUISITION OF THE ASSET AND NOT ACTUAL PAYMENTS MADE BY ASSESSEE. RESPECTFULLY FOLLOWING THE AFORESAID ORDERS PASSED BY ITAT, MUMB AI BENCH, I AM OF THE CONSIDERED OPINION THAT THE ISSUE IN DISPUTE HAS AL READY BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN THE CASES OF SMT. LATA G. ROHRA VS. DCI (SUPRA)) AND CHARANBIR SINGH JOLLY & ANR. VS. ITO (SUPRA). I, THEREFORE, D ECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. THE ASSESSING OFFICER IS DIRECTED TO GIVE BENEFIT OF INDEXATION TO THE ASSESSEE QUA THE DATE OF COST FROM THE DATE OF ACQU ISITION OF THE ASSET AND NOT ACTUAL PAYMENTS MADE BY ASSESSEE FOR THE PURPOSE OF CAPITA L GAIN. 6. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.05.2011. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 31 ST MAY, 2011 *AKS/- 5 COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY