St. Suman Bansal (Legal Heir of Late Sh. Rakesh Bansal), New Delhi V. ITO, New Delhi

ITA 1136/DEL/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6397 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 28-02-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAMESH CHANDRA
• Assessee Lawyers: J S KOCHAR
• Keywords: Sale consideration of property below Jantri Value; Revision of order; Rectification of order; Application of stay; Block assessment
• Section: 143(3); 50C; 263; 63

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F , NEW DELHI) BEFORE SHRI R. P. TOLANI, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER STAY NO.146/DEL/2014 IN I.T.A.NO. 1136/DEL/2014 AND I.T.A. NO.1136 /DEL/2014 ASSESSMENT YEAR : 2009-10 SUMAN BANSAL, VS. ITO, WARD 35(2), L/H OF RAKESH BANSAL, NEW DELHI 160, JAGRITI ENCLAVE, DELHI 110 092 GIR / PAN: AHOPB9178P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI J. S. KOCHAR, CA RESPONDENT BY : SHRI RAMESH CHANDRA, CIT DR ORDER PER T.S. KAPOOR, AM: THIS APPEAL IS FIELD BY THE ASSESSEE AGAINST THE O RDER OF CIT PASSED U/S 263 OF THE ACT. THE ASSESSEE HAD ALSO FILED STAY A PPLICATION FOR STAYING THE PROCEEDINGS BY THE ASSESSING OFFICER IN CONSEQUENCE OF ORDER PASSED U/S 263. 2. AT THE OUTSET, THE LD. A.R. INVITED OUR ATTENTIO N TO PAPER BOOK PAGE 13 WHEREIN COPY OF ASSESSMENT ORDER WAS PLACED AND IT WAS SUBMITTED THAT THE ASSESSMENT WAS COMPLETED U/S 143(3) VIDE ORDER DATE D17.12.2011. HE FURTHER TOOK US TO PAGE 12 OF THE PAPER BOOK WHERE A COPY OF ORDER DATED 19.12.2013 PASSED U/S 154/155 WAS PLACED. ITA NO.1136/DEL/2014 STAY NO.146/DEL/2014 2 3. LD. A.R. SUBMITTED THAT THE SAID ASSESSMENT ORDE R WAS RECTIFIED AS IN ORIGINAL ASSESSMENT PROCEEDINGS, THE CAPITAL GAIN W AS NOT COMPUTED AS PER THE PROVISIONS OF SECTION 50C. HE FURTHER TOOK US TO PAGE 11 OF THE PAPER BOOK WHERE A COPY OF NOTICE U/S 263 WAS PLACED WITH A VIEW TO APPRISE THE BENCH THAT NOTICE CONTAINED SAME REASON OF NOT CONS IDERING PROVISIONS OF SECTION 50C IN THE ORIGINAL ASSESSMENT ORDER AND TH EREFORE, LD. CIT HAD HELD THAT ORDER WAS ERRONEOUS AND PREJUDICIAL. IT WAS S UBMITTED THAT ORDER DATED 17.12.2011 WAS ALREADY MERGED WITH THE RECTIFIED OR DER DATED 19.12.2013, THEREFORE, CIT COULD NOT HAVE ISSUED NOTICE U/S 263 OF THE ACT FOR RECTIFYING ORDER DATED 17.12.2011. HE FURTHER SUBMITTED THAT THOUGH NOTICE U/S 263 ONLY TALKED ABOUT THE OMISSION OF APPLYING THE PROV ISIONS OF SECTION 50C BUT CIT SET ASIDE THE ENTIRE ASSESSMENT ORDER AND DIREC TED THE ASSESSING OFFICER TO COMPLETE THE ASSESSMENT OF THE ASSESSEE DE NOVO AND IN THIS RESPECT, OUR ATTENTION WAS INVITED TO PAPER BOOK PAGE 10 WHERE A COPY OF CONCLUDING PARAGRAPH OF CIT ORDER WAS PLACED. LD. A.R. SUBMIT TED THAT IN VIEW OF THE DIRECTION OF CIT, THE ASSESSING OFFICER HAS ALREADY ISSUED NOTICE FOR REASSESSMENT AND OUR ATTENTION WAS INVITED TO COPY OF NOTICE U/S 143(2) DATED 17.02.2014 ISSUED BY THE ASSESSING OFFICER. LD. A. R. SUBMITTED THAT BY ISSUING NOTICE U/S 143(2) ALONG WITH DETAILED QUEST IONNAIRE, ON THE DIRECTIONS OF LD. CIT THE ASSESSING OFFICER HAS CAUSED IRREPAR ABLE LOSS TO ASSESSEE WHEREAS LD. CIT SHOULD HAVE RESTRICTED HIMSELF TO T HE POINTS RAISED IN THE NOTICE U/S 263. THEREFORE, HE ARGUED THAT THE ORDE R PASSED U/S 263 DIRECTING THE ASSESSING OFFICER TO START PROCEEDINGS DE NOVO IS BOTH ILLEGAL AND DEVOID OF MERIT AS THE NECESSARY GRIEVANCE OF THE REVENUE HAD ALREADY BEEN RECTIFIED BY THE ORDER OF RECTIFICATION DATED 19.12 .2013. THEREFORE, IT WAS ITA NO.1136/DEL/2014 STAY NO.146/DEL/2014 3 PRAYED THAT ORDER PASSED U/S 263 BE QUASHED. RELIA NCE WAS PLACED ON THE FOLLOWING CASE LAWS: I) CIT VS KALYAN SOLVENT EXTRACTION LTD. 276 ITR 1 54 II) CIT VS ANSAL PROPERTIES & IND. LTD. 315 ITR 225 4. LD. D.R. ON THE OTHER HAND ARGUED THAT THE ASSES SING OFFICER HAD NOT APPLIED HIS MIND AND, THEREFORE, ORDER PASSED U/S 2 63 IS VALID. LD. A.R. IN HIS REJOINDER SUBMITTED THAT THE ASSESSEE WAS ISSUE D NOTICE FOR REVISION OF ORDER DATED 17.12.2011, WHICH ON THE DATE OF ISSUE OF NOTICE, DID NOT EXIST AS IT HAD ALREADY GOT MERGED WITH THE RECTIFICATION OR DER PASSED ON 19.12.L2013. 5. WE HAVE HEARD RIVAL PARTIES AND HAVE GONE THROUG H THE MATERIAL PLACED ON RECORD. THE STAY APPLICATION WAS ORIGINALLY FIX ED FOR HEARING ON 09.15.2014 AND IT WAS FELT BY THE BENCH THAT INSTEA D OF CONSIDERING STAY AGAINST PROCEEDINGS FOR FRESH ASSESSMENT, THE APPEA L FILED BY THE ASSESSEE AGAINST ORDER U/S 263 CAN BE DISPOSED OF. THEREFOR E THE APPEAL WAS PREPONED FOR HEARING AND ON 16.05.2014, THE APPEAL OF THE AS SESSEE WAS HEARD ON MERITS. WE FIND THAT ASSESSMENT IN THIS CASE WAS O RIGINALLY COMPLETED U/S 143(3) ON 17.12.2011 AND THE ORDER WAS RECTIFIED U/ S 154 ON 19.12.2013 WHEREBY THE ASSESSING OFFICER HAD RECTIFIED THE MIS TAKE OF NOT CONSIDERING THE PROVISIONS OF SECTION 50C IN ORIGINAL ASSESSMEN T PROCEEDINGS. THEREFORE, THE DATE OF ISSUE OF NOTICE U/S 263 IS 2 7.01.2014 WHICH IS AFTER THE DATE OF RECTIFIED ORDER DATED 19.12.2013. THE ORDE R DATED 17.12.2011 WHICH WAS SOUGHT TO BE RECTIFIED, DID NOT EXIST. THE ASS ESSEE IN RESPONSE TO THE NOTICE U/S 263 HAD BROUGHT THIS MATTER TO THE NOTIC E OF CIT BUT CIT WITHOUT CONSIDERING THE SUBMISSIONS, PASSED ORDER U/S 263 F OR INITIATING PROCEEDINGS DE NOVO WHICH IS NOT LEGALLY VALID AND IS NOT BASED UPON THE FACTS OF THE PRESENT CASE. HON'BLE M.P. HIGH COURT IN THE CASE OF CIT VS KALYAN ITA NO.1136/DEL/2014 STAY NO.146/DEL/2014 4 SOLVENT EXTRACTION LTD. (SUPRA), IN THE SIMILAR CIR CUMSTANCES, HAS HELD AS UNDER: ON THE DATE 21 ST MARCH, 1989, WHEN CIT SOUGHT TO EXERCISE HIS SUO MOTU REVISIONAL POWERS UNDER S.263 AGAINST THE ASSE SSMENT ORDER DT. 13 TH MARCH, 1987, THE SAME WAS ALREADY RECTIFIED BY ASS ESSING OFFICER ON 14 TH MARCH, 1989, UNDER S.154. IN THIS VIEW OF THE MAT ER, THE CIT HAD NO JURISDICTION TO SET ASIDE THAT ORDER WHICH S TOOD ALREADY RECTIFIED. IN OTHER WORDS, THE CIT COULD AT BESTS INVOKE HIS SUO MOTU POWERS UNDER S.263 AS AGAINST THE ORDER DT. 14 MARC H, 1989, PASSED BY ASSESSING OFFICER AND NOT THE ONE ALREADY PASSED AND RECTIFIED, I.E., ORIGINAL ASSESSMENT ORDER DT. 13 TH MARCH, 1987. ONCE, THE ORIGINAL ORDER STANDS RECTIFIED, THEN IT LOSES ITS IDENTITY AT LEAST TO THE EXTENT IT STANDS RECTIFIED. IN SUCH CIRCUMSTANCES, THE CIT S HOULD HAVE INVOKED HIS SUO MOTU POWERS UNDER S.263 AGAINST THE SUBSEQU ENT RECTIFIED ORDER DT. 14 TH MARCH, 1989, IF HE WAS OF THE VIEW THAT THE SAME I S ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVEN UE. THEREFORE, TRIBUNAL MADE NO MISTAKE IN COMING TO A CONCLUSION THAT THE ORDER OF CIT PASSED UNDER S.263 WHICH HAD THE EFFECT OFFSETT ING ASIDE OF THE ASSESSMENT ORDER DT. 13 TH MARCH, 1987, IS WITHOUT JURISDICTION. CONCLUSION: ONCE THE ASSESSMENT ORDER WAS RECTIFIED BY THE ASSE SSING OFFICER UNDER S.154, ORIGINAL ORDER COULD NOT BE REVISED BY CIT UNDER S.263; ONLY THE RECTIFIED ORDER COULD BE REVISED UNDER S.2 63 IF IT WAS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE R EVENUE. 6. SIMILARLY, THE HON'BLE DELHI HIGH COURT IN THE C ASE OF CIT VS ANSAL PROPERTIES & IND. (P) LTD. 315 ITR 225, UNDER SIMIL AR CIRCUMSTANCES VIDE PARA 14 OF THE ORDER HELD AS UNDER: THE LD. COUNSEL FOR THE ASSESSEE ALSO SUPPORTED T HE IMPUGNED ORDER BY STATING THAT IN VIEW OF EXPLANATION (C) TO SECTI ON 263(1), IT WAS NOT OPEN TO THE COMMISSIONER TO HAVE A RELOOK INTO THE MATER UNDER SECTION 263 OF THE SAID ACT. HE SUBMITTED THAT BEC AUSE THE ISSUE OF LEVY OF SURCHARGE HAD ALREADY BEEN CONSIDERED BY TH E COMMISSIONER, INCOME-TAX (APPEALS) IN HIS ORDER DATED 11.12.2003 , IT WAS NOT OPEN TO THE COMMISSIONER TO EXERCISE HIS JURISDICTION WI TH REGARD TO SUCH ISSUE UNDER SECTION 263 IN VIEW OF THE SAID EXPLANA TION. IN RESPONSE, ITA NO.1136/DEL/2014 STAY NO.146/DEL/2014 5 MR. JOLLY WHO APPEARED ON BEHALF OF THE REVENUE STA TED THAT EXPLANATION (C) DOES NOT COME INTO PLAY AT ALL. HE SUBMITTED THAT THE COMMISSIONER SOUGHT TO REVISE THE ORDER DATED 28.03 .2003 AND NOT THE ORDER DATED 30.06.2003 WHICH WAS PASSED BY THE ASSE SSING OFFICER INVOKING THE PROVISIONS OF SECTION 154 OF THE SAID ACT. WE, HOWEVER, FIND THAT THE FACTS INDICATE A DIFFERENT STORY, THE BLOCK ASSESSMENT ORDER WAS PASSED ON 28.02.2002, THIS WAS TAKEN IN A PPEAL BY THE ASSESSEE AND AFTER THE COMMISSIONER, INCOME-TAX (AP PEALS) HAD PARTIALLY ALLOWED THE APPEAL, THE ASSESSING OFFICER GIVING EFFECT TO THE APPELLATE ORDER, PASSED HIS ORDER DATED 28.03.2003 UNDER SECTION 154. IT IS CLEAR THAT THERE CANNOT BE TWO ASSESSME NT ORDERS IN RESPECT OF THE SAME ASSESSEE FOR THE SAME ASSESSMENT PERIOD . WHEN THE COMMISSIONER ISSUED THE NOTICE UNDER SECTION 263, H E SOUGHT TO REVISE THE ORDER DATED 28.03.2003 WHICH HAD ALREADY BEEN S UPERSEDED BY THE ORDER DATED 30.06.2003 PASSED BY THE ASSESSING OFFI CER LEVYING SURCHARGE WHICH ORDER WAS ALSO, SET ASIDE IN APPEAL BY THE COMMISSIONER, INCOME-TAX (APPEALS) BY THE ORDER DAT ED 11.12.2003 AS INDICATED ABOVE. IT APPEARS THAT WHAT THE REVEN UE AUTHORITIES COULD NOT DO ADOPTING THE ROUTE OF SECTION 154 OF THE SAI D ACT, IT SOUGHT TO DO BY ADOPTING THE OTHER ROUTE OF SECTION 263 OF THE S AID ACT. BUT ONCE, THE COMMISSIONER OF INCOME-TAX (APPEALS) HAD ALREAD Y SHUT THE ISSUE OF LEVY OF SURCHARGE BY THE ORDER DATED 11.12.2003, IT WAS NOT OPEN TO THE COMMISSIONER TO INVOKE THE PROVISIONS OF SECTIO N 263 AND TO REOPEN THE ISSUE OVER AGAIN. FOR THIS REASON ALSO, THE ORDER UNDER SECTION 263 WAS WITHOUT JURISDICTION, CONSEQUENTLY, QUESTION NO.2 HAS TO BE DECIDED IN FAVOUR OF THE ASSESSEE AND AGA INST THE REVENUE. 7. WE FIND THAT THE CASE OF THE ASSESSEE IS SQUAREL Y COVERED BY THE ABOVE JUDICIAL PRONOUNCEMENTS. THEREFORE, IN THE PRESENT CASE ALSO, THE CIT HAD NO JURISDICTION TO PASS ORDER U/S 263 AGAINST THE ORDE R DATED 17.12.2011 WHICH ALREADY STOOD MERGED WITH THE ORDER U/S 154 DATED 1 9.12.2013. IN VIEW OF THE ABOVE, THE ORDER PASSED U/S 263 IS QUASHED AND APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO.1136/DEL/2014 STAY NO.146/DEL/2014 6 8. AS REGARDS STAY APPLICATION FILED FOR STAYING TH E PROCEEDINGS IN CONSEQUENCE OF THE ORDER PASSED U/S 263, THE SAME H AS BECOME INFRUCTUOUS AND, THEREFORE, DISMISSED. 9. IN NUTSHELL, APPEAL OF THE ASSESSEE IS ALLOWED A ND STAY APPLICATION IS DISMISSED. 10. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH JULY, 2014. SD./- SD./- ( R.P.TOLANI) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 04 TH JULY, 2014 SP COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). DATE OF HEARING DATE OF DICTATION DATE OF TYPING DATE OF ORDER SIGNED BY BOTH THE MEMBERS & PRONOUNCEMENT. ITA NO.1136/DEL/2014 STAY NO.146/DEL/2014 7 DATE OF ORDER UPLOADED ON NET & SENT TO THE BENCH CONCERNED.