Girish Chand Agarwal, Jaipur V. I.T.O.,Ward-46(1), Kolkata

ITA 1137/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7472 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-12-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 14-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM BILASH MEENA
• Assessee Lawyers: S M SURANA; N M BHANSALI
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Competent authority; Assessment record; Capital Gains
• Section: 143(3); 50C; 2(14); 142(1); 133(6); 143(2); 147; 131; 148; 263; 63; 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 1137 / KOL / 2019 ASSESSMENT YEAR :2009-10 GIRISH CHAND AGARWAL D-5A, MEEERA MARG VANDANA APARTMENT, BANI PARK, JAIPUR-302012 [ PAN NO.AEOPA 7922 H ] V/S . INCOME TAX OFFICER, WARD-46(1), 3, GOVT. PLACE (WEST),B.B.D BAG, KOLKATA-700 001 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI S.M. SURANA, ADVOCATE & SHRI N.M. BHANSALI, ADVOCATE /BY RESPONDENT SHRI RAM BILASH MEENA, CIT-DR /DATE OF HEARING 24-12-2019 /DATE OF PRONOUNCEMENT 29-01-2020 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009-10 ARISES AGAINST THE PRINCIPAL COMMISSIONER OF INCOME TAX-16 KOLKATAS M .NO.PCIT- 16/KOL/U/S263/2018-19/8438-40 DATED 29.03.2019, INV OLVING PROCEEDINGS U/S 263 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES SOLE SUBSTANTIVE GRIEVANCE PLEAD THAT THE PCIT HEREIN HAS ERRED IN LAW AND ON FACTS IN ASSUMING IS U/S. 2 63 OF THE ACT REVISION JURISDICTION VIDE FOLLOWING DETAILED DISCUSSION:- ITA NO.1137/KOL/2019 A.Y.2009 -10 GIRISH CHAND AGARWAL VS. ITO WD-46(1), KOL. PAGE 2 IN THIS CASE THE ASSESSMENT FOR A.Y. 2009-10 WAS CO MPLETED ON 30.12.201.2. U/S. 147 READ WITH SECTION 143(3) OF THE INCOME-TAX ACT, 1961. ORIGINAL RETURN OF INCOME WAS FILED FOR A.Y. 2009-10 AT A TOTAL INCOME OF RS. 3,08,8691-. A RETURN WAS ALSO FILED ON 31.08.2016 THROUGH E-FILING IN RESPONSE TO NOTIC E U/S.148. THE ASSESSMENT WAS REOPENED ON THE FOLLOWING GROUNDS BY THE ITO, WD-3( 2), JAIPUR WHO HAS RECORDED SATISFACTION FOR RE-OPENING AS UNDER : 'AS PER INFORMATION RECEIVED FROM SUB-REGISTRARS, T HE ASSESSEE HAS SOLD PROPERTY/PROPERTIES AT KHASRA NO. 376, 377, 378, 37 9, 381, 393/2314, KUKAS, AMER, JAIPUR ON 29.07.2008. AS PER THE PROVISIONS O F SECTION 50C OF THE INCOME TAX ACT, 1961 THE SALE CONSIDERATION OR REGI STERED VALUE, WHICHEVER IS HIGHER, IS RS.73,67,140/-. AS PER THE RECORDS AVAIL ABLE WITH THIS OFFICE THE ASSESSEE HAS NOT FILED HIS RETURN OF INCOME FOR A. YR. 2009-2010, CONSEQUENT TO NON-FILING OF RETURN OF INCOME BY THE ASSESSEE I T IS ESTABLISHED THAT INCOME FROM CAPITAL GAINED AMOUNTING TO RS.73,67,140/- HAS ESCAPED ASSESSMENT. HENCE, IT IS A FIT CASE FOR ISSUANCE OF NOTICE U/S. 148 OF THE IT ACT, 1961/OR A.YR. 2009-2010. IN VIEW OF THE ABOVE REASONS, IT IS REQUESTED THAT NECESSARY APPROVAL AS LAID DOWN UNDER SUB SECTION (2) OF SECTION 151 OF THE I T ACT , 1961 MAY KINDLY BE ACCORDED'. 2. SUBSEQUENTLY, THE CASE WAS TRANSFERRED TO ITO, W ARD-46(1), KOLKATA FROM THE IT.O., WARD-3(2), JAIPUR ON THE BASIS OF PAN TRANSF ER OF THE ASSESSEE. THE RE- ASSESSMENT PROCEEDING U/S. 147 WAS THEREFORE STARTE D BY THE ITO, WARD-46(1), KOLKATA VIDE ISSUE OF NOTICE U/S. 148 READ WITH SEC TION 143(2) OF THE IT. ACT, 1961 ON 07.11.2016. DURING THE REASSESSMENT PROCEEDING THE ITO.,WARD-46(1), KOLKATA HAS CALLED FOR INFORMATION U/S.133(6) FROM SUB-REGISTRA R, JAIPUR-VI, RAJASTHAN REGARDING THE MARKET VALUE OF THE PROPERTY SOLD BY THE ASSESS EE JOINTLY WITH HIS WIFE, MRS. ASHA AGARWAL ON 29.07.2008. THE I.T.O., WARD-46(1), KOLK ATA HAS ISSUED TWO LETTERS TO SUB-REGISTRAR, JAIPUR-VI, RAJASTHAN FIRST ON 19.09. 2016 WHICH WAS RETURNED UNSERVED AND SECONDLY ON 13.12:2016 WHICH WAS SERVED. HOWEVE R, IT WAS STATED BY THE IT.O, WARD-46(1), KOLKATA THAT NO REPLY WAS RECEIVED. THE A.O. HAS THEN RELIED UPON THE PHOTOCOPY OF A LETTER FROM PATWARI OF GRAM KUKUS, T EHSIL ALWAR, DISTRICT-JAIPUR CERTIFYING THAT THE AGRICULTURAL LAND WAS SITUATED MORE THAN 9 KM AWAY FROM THE MUNICIPAL LIMITS AND THE LAND WAS AN AGRICULTURAL L AND. THE A.O. HAS NOT VERIFIED THE- SAID CERTIFICATE FROM THE PATWARI DIRECTLY AND THAT NO LETTER U/S. 133(6) WAS ISSUED TO THE SAID PATWARI REGARDING CONFIRMATION OF CERTIFIC ATE AND NO ATTEMPT WAS MADE BY THE A.O. TO VERIFY THE GENUINENESS AND CORRECTNESS OF THE CERTIFICATE. THE A.O. COMPLETELY RELIED UPON THE SUBMISSION OF THE ASSESS EE AND THE ALLEGED CERTIFICATE OF THE PATWARI AND ACCORDINGLY NO CAPITAL GAIN WAS TAX ED ON THE SALE OF THE SAID LAND AND THE RE-ASSESSMENT U/S. 148 WAS COMPLETED AT THE ORIGINAL RETURN OF INCOME OF RS. 3,08,869/-. 3. SUBSEQUENTLY, A LETTER DATED 03.10.2017 WAS RECE IVED FROM THE PR.C.I.T-1, JAIPUR STATING THAT THE DAUGHTER OF THE ASSESSEE, MISS PUJ A AGARWAL HAS ALSO SOLD LAND WHICH WAS ADJACENT TO THE LAND SOLD BY SRI G.C. AGA NVAL, THE ASSESSEE, IN THE, SAME YEAR AND THE ADDITION ON ACCOUNT OF CAPITAL GAIN FR OM THE SAID SALE OF THE LAND BY ASSESSEE'S DAUGHTER, MISS PUJA AGARWAL WAS MADE BY THE IT.O., WARD-3(2), JAIPUR ON THE BASIS OF THE VERIFICATION CARRIED OUT BY SRI RAVINDER PRATAP SINGH, PATWARI, TEHSIL ALWAR ALONG WITH INCOME-TAX INSPECTOR, SRI P . C. GUPTA ON 16.09. IN THE JOINT INSPECTION IT WAS FOUND THAT THE SAID LAND SOLD BY THE ASSESSEE WAS WITHIN 5.7 KM DISTANCE OF MUNICIPAL ORATION OF JAIPUR AND THEREFO RE THE LAND WAS NOT AN AGRICULTURAL LAND AND IT WAS A CAPITAL ASSET US. 2(14) OF THE I. T ACT, 1961. ANOTHER LETTER WAS RECEIVED FROM PR. C.I.T.-I, JAIPUR WHEREIN IT WAS S TATED THAT SRI RAMRAI SHARMA, PATWARI WHO HAS GIVEN CERTIFICATE DATED 03.09.2016 TO SRI G.C. AGARWAL, THE ITA NO.1137/KOL/2019 A.Y.2009 -10 GIRISH CHAND AGARWAL VS. ITO WD-46(1), KOL. PAGE 3 ASSESSEE AND WHO HAS PRODUCED THIS CERTIFICATE BEFO RE THE IT.O, WD-46(1),KOLKATA AT THE TIME OF RE-ASSESSMENT WAS INCORRECT AND FABRICA TED . IT IS FOUND THAT THE SAID PATWARI HAS SINCE RETIRED AND HE HAD GIVEN A LETTER DATED 15.09.2017 TO ITO WARD,- 3(2), JAIPUR STATING THAT THE EARLIER CERTIFICATE I SSUED BY HIM WAS WITHOUT ANY ACTUAL VERIFICATION OF THE LAND. HOWEVER, THE LOCATION OF THE LAND WAS ALSO VERIFIED BY TEHSILDER OF THE TEHSIL ALWAR, JAIPUR VIDE LETTER N O. LA/2017/5809 DATED 25.09.2017 (IN HINDI) WHO HAS ALSO CONFIRMED THAT THE PATWARI IN THE LATEST REPORT HAS GIVEN THE LOCATION OF THE LAND WITHIN 5.7 KM OF MUNICIPAL COR PORATION OF JAIPUR AFTER JOINT VERIFICATION OF PATWARI AND ITI. BASED ON THIS INFO RMATION IN CASE OF PUJA AGARWAL, PROCEEDING U/S. 263 WAS CARRIED OUT AND THE MATTER HAS REACHED TO THE HON'BLE HIGH COURT, RAJASTHAN. 4. IN VIEW IF THE INFORMATION RECEIVED FROM PR. C.I .T.-L, JAIPUR , THE CASE RECORDS OF SRI GIRISH CHANDRA AGARWAL WAS CALLED FOR BY ME AND EXA MINED AND IT WAS FOUND THAT THE A.O. HAS NOT TAXED THE CAPITAL GAIN OUT OF THE SALE OF THE LAND ON THE BASIS OF A XEROX LETTER ISSUED BY PATWARI PRODUCED BY THE ASSESSEE, WHICH WAS FOUND INCORRECT SUBSEQUENTLY, DURING A JOINT VERIFICATION OF I.T.I. , JAIPUR AND PATWARI, TEHSIL ALWAR JAIPUR. THEREFORE THE RE-ASSESSMENT ORDER DATED 30. 12.2016 WAS FOUND ERRONEOUS AND HENCE PREJUDICIAL TO THE INTEREST OF REVENUE. 5. A NOTICE U/S, 263 OF THE INCOME TAX ACT, 1961 WA S ISSUED TO THE ASSESSEE ON 11.05.2018 AT HIS HOWRAH ADDRESS. HOWEVER, NOTICE C OULD NOT BE SERVED ON THE GROUND OF LEFT ' AS PER THE POSTAL AUTHORITY REPORT. SUBSEQUENTLY, ANOTHER NOTICE WAS ISSUED AT THE HOWRAH ADDRESS OF G.C. AGARWAL AT 1 ST FLOOR, FLAT NO. 14, BUILDING NO. 4, CMS ROAD, SHANTINAGAR COLONY, LILUAH, HOWRAH-711 101. THE NOTICE WAS SERVED THROUGH AFFIXATION BY I.T.O., WARD-46(L), KOLKATA T HROUGH NOTICE SERVER ON 22.11.2018. HOWEVER, NO RESPONSE WAS RECEIVED IN RE PLY TO THIS OFFICE NOTICE DATED 22.11.2018 ALSO. SUBSEQUENTLY, REMINDER WAS ISSUED TO THE ASSESSEE AT THE HOWRAH ADDRESS VIDE LETTER DATED 04.02.2019 WHICH WAS ALSO RETURNED BY THE POSTAL AUTHORITY. FINALLY, A LETTER OF OPPORTUNITY FOR HEARING WAS SE NT ON 12.03.2019 AT THE ADDRESS OF THE DAUGHTER OF THE ASSESSEE, MISS PUJA AGARWAL AT JAIPUR WHICH WAS AVAILABLE FROM THE CORRESPONDENCE FOLDER OF THE ASSESSING OFFICER. THE SAID NOTICE HAS BEEN SERVED ON ASSESSEE ON 19.03.2019. 6. THE RELEVANT PORTION OF THE 263 NOTICE ARE AS UN DER : 'IN THE INSTANT CASE, RETURN OF INCOME FOR THE ASSE SSMENT YEAR 2009-10 WAS FILED BY THE ASSESSEE DECLARING TOTAL INCOME OF RS. 3,08,869/- AND THE ASSESSMENT WAS COMPLETED U/S 147 OF THE I.T. ACT, 1 961 ON 30.12.2016 ON THE BASIS OF RETURNED INCOME. SUBSEQUENTLY, IT WAS FOUND THAT THE ASSESSMENT WAS COMPLETED CONSIDERING THE PLOT OF LAND SOLD BY THE ASSESSEE DURING THE AS SESSMENT YEAR AS AGRICULTURAL LAND ON THE BASIS OF THE COPY THE PURP ORTED CERTIFICATE PRODUCED BY THE ASSESSEE FROM PATWARI OF GRAM KUKUS THESIL A MER, DIST. JAIPUR CERTIFYING THAT THE LAND IN QUESTION 11LAS AN AGRIC ULTURAL LAND SITUATED MORE THAN 9 KM AWAY FROM MUNICIPAL LIMITS, WITHOUT PROPE R VERIFICATION OF ITS CONTEXT VIZ. AUTHENTICITY AT ADMISSIBILITY FROM TEHSILDAR W HO WAS THE COMPETENT AUTHORITY TO CERTIFY THE NATURE AND ITS DISTANCE FR OM THE LIMIT OF LOCAL MUNICIPAL CORPORATION. IN VIEW OF THE ABOVE, THE ASSESSMENT ORDER PASSED U /S147 DATED 30.12.2016 APPEARS TO ERRONEOUS AND PREJUDICIAL TO THE INTERES T OF REVENUE. SINCE, THE LAND WAS TREATED AS AN AGRICULTURAL LAND WHICH CONS EQUENTLY EXEMPTED THE ASSESSEE FROM MAKING PAYMENT OF TAX ON CAPITAL GAIN WITHOUT DUE VERIFICATION AND ENQUIRY. ITA NO.1137/KOL/2019 A.Y.2009 -10 GIRISH CHAND AGARWAL VS. ITO WD-46(1), KOL. PAGE 4 CONSIDERING THE ABOVE FACTS, THE UNDERSIGNED IS PRO POSING TO REVISE THE ASSESSMENT ORDER YOU MAY PLEASE FURNISH YOUR WRITTE N OR ORAL SUBMISSION ON 30.11.2018 AT 12.30 P.M ' 7. IN RESPONSE TO OPPORTUNITY LETTER ISSUED ON 12.0 3.2019 THE ASSESSEE HAS SOUGHT ADJOURNMENT VIDE LETTER DATED 19.03.2019 AND ASKED FOR SEVEN DAYS TIME. ACCORDINGLY THE ASSESSEE WAS GIVEN FURTHER TIME UPT O 28.03.2019 TO FURNISH WRITTEN SUBMISSION. ON 26.03.2019' SRI N.M. BHANSALI, ADVOC ATE ATTENDED ANDFILED A WRITTEN SUBMISSION DATED 25.03.2019 ALONG WITH ' VAKALATNAMA '. A COPY OF THE SAME SUBMISSION HAS ALSO BEEN RECEIVED BY POST FROM THE ASSESSEE ON 28.03.2019 WHICH IS PLACED ON RECORD. THE CONTENTS OF THE SUBMISSION ARE AS UNDER : 'I HAVE RECEIVED YOUR ABOVE SHOW-CAUSE NOTICE U/S 2 63 DTD. 12.03.2019 ALONGWITH COPY OF NOTICE DTD. 11.05.2018, 02.11.201 8 AND 04.02.2019 ALLEGEDLY SENT AT MY OLD ADDRESS. IN THIS CONNECTIO N I STATE THAT I HAD NOT RECEIVED ANY NOTICED DTD. 11.05.2018, 02.11.2018 AN D 04.02.2019 AS ALLEGED IN YOUR NOTICE DTD. 12.03.2019. IT APPEARS THAT NOT ICES WERE SENT BY YOU AT MY OLD ADDRESS EVEN THOUGH MY NEW ADDRESS OF JAIPUR WA S INTIMATED TO THE A.O. IN 2015 ITSELF. FROM THE COPY OF YOUR EARLIER NOTIC E IT IS ALLEGED THAT THE ASSESSMENT ORDER PASSED U/S 147 DTD. 30.12.2016 APP EARS TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. SINCE T HE LAND WAS TREATED AS AGRICULTURAL LAND WHICH EXEMPTED THE ASSESSEE FROM MAKING PAYMENT OF TAX ON CAPITAL GAIN WITHOUT DUE VERIFICATION AND ENQUIR Y. IN RESPONSE TO YOUR SHOW- CAUSE I STATE THAT THE ASSESSMENT WAS COMPLETED BY THE A. O. AFTER DETAILED SCRUTINY AND AFTER EXAMINATION OF NECESSARY DETAILS , EVIDENCES, BANK STATEMENTS AND ALSO AFTER MAKING ENQUIRY U/S 133(6) . IN THIS CONNECTION CORRESPONDENCE WITH THE IT.O. IS ENCLOSED HEREWITH. THEREFORE YOUR ALLEGATION THAT THE ASSESSMENT WAS COMPLETED WITHOUT MAKING PR OPER ENQUIRY IS WRONG AND INCORRECT. THEREFORE ASSESSMENT SO MADE IS ERRO NEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND THE PROVISIONS OF SEC. 263 ARE NOT ATTRACTED IN MY CASE. I WOULD LIKE TO INVITE YOUR KIND ATTENTION THAT THE POWER U/S 263 CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE C OMMITTED BY THE A.O. EVERY ERRONEOUS ORDER CANNOT BE DISTURBED U/S 263. THE POWER OF SUO-MOTU REVISION U/S 263(1) OF THE IT. ACT, 1961 IS IN THE NATURE OF SUPERVISORY JURISDICTION AND CAN BE EXERCISED ONLY IF CIRCUMSTA NCES SPECIFIED THEREIN EXIST - VIDE OBSERVATIONS OF THE BOMBAY HIGH COURT - 203- ITR-108 (BOM) IN THE CASE OF GABRIEL INDIA LTD. YOUR PETITIONER STATES T HAT IT IS WELL SETTLED IN LAW THAT THE POWER U/S 263 OF THE INCOME TAX ACT 1961 C AN BE EXERCISED ONLY WHEN THE ASSESSMENT ORDER IS ' PREJUDICIAL TO THE INTERESTS OF THE REVENUE ' AS WELL AS ERRONEOUS ORDER. EVERY LOSS OF REVENUE A S A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. . THIS VIEW HAS BEEN WELL SETTLED BY THE APEX COURT I N THE CASE OF MALABAR INDUSTRIAL CO. LTD - VS-COMMISSIONER OF INCOME TAX 243-ITR-83, COMMISSIONER OF INCOME TAX (CENTRAL), LUDHIANA - VS - MAX INDIA LTD 295- ITR-282, COMMISSIONER OF INCOME TAX, SHIMLA -VS- GR EENWORLD CORPORATION 314-ITR81. THE LEARNED COMMISSIONER OF INCOME TAX E XERCISED HIS POWERS U/S 263 OF THE IT ACT 1961 MERELY TO SUBSTITUTE HIS VIEW WITH THAT OF THE ASSESSING OFFICER WHICH IS BEYOND THE SCOPE OF HIS POWERS U/S 263 OF THE IT ACT, 1961. IN THE CASE OF CIT-VS-MAX INDIA LTD. 295 -ITR-282 (SC) THE HON'BLE SUPREME COURT HAS HELD THAT THE PHRASE ' PREJUDICIAL TO THE INTEREST OF REVENUE ' IN SEC. 263 OF THE INCOME TAX ACT, 1961 HAS TO BE IN CONJUNCTION ITA NO.1137/KOL/2019 A.Y.2009 -10 GIRISH CHAND AGARWAL VS. ITO WD-46(1), KOL. PAGE 5 WITH THE EXPRESSION ' ERRONEOUS ' ORDER PASSED BY THE ASSESSING OFFICER. EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTEREST OF REVENUE'. IT HAS ALSO BEEN HELD THAT THE REVISION U/S 263 CANNOT BE MADE MEREL Y BECAUSE THE CIT IS NOT SATISFIED WITH THE ORDER PASSED BY THE ASSESSING OF FICER. IN THE CASE REFERRED ABOVE THE HON'BLE COURT HELD THAT WHERE THE VIEW EX PRESSED BY THE A.O. IS A POSSIBLE VIEW, THE CIT CANNOT HOLD THE ASST. ORDER AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTEREST OF REVENUE. FURTHER IT IS WELL SETTLED IN LAW THAT THERE IS A DISTINCTION BETWEEN ' LACK OF INQUIRY ' AND ' INADEQUATE INQUIRY '. IF THERE WAS ANY INQUIRY, EVEN INADEQUATE, THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE COMMISSIONER TO PASS ORDERS UNDER SECTION 263 OF TH E INCOME-TAX ACT, 1961, MERELY BECAUSE HE HAD A DIFFERENT OPINION IN THE MA TTER OF RELIANCE IN THIS REGARD IS MADE ON THE DECISION OF THE DELHI HIGH CO URT IN THE CASE CIT V. ANIL KUMAR SHARMA [2011] 335 ITR 83/[2010] 194 TAXMAN 50 4 (DELHI). WITHOUT PREJUDICE TO THE CONTENTION THAT THE PROVIS IONS OF SEC. 263 ARE NOT ATTRACTED IN THE FACTS OF MY CASE AND THE PROCEEDIN G DESERVES TO BE DROPPED, I STATE THAT I DO NOT AGREE WITH THE ISSUES RAISED IN YOUR NOTICE AS THE SALE CONSIDERATION OF AGRICULTURAL LAND WAS ESTABLISHED BY THE COPY OF DEED AND THE CERTIFICATE OF THE TAHESILDAR, PATWARI, WHO IS THE COMPETENT AUTHORITY IN THIS MATTER. FURTHER ENQUIRY U/S.133(6) WAS ALSO MA DE BY THE A.O. THE A.O HAS RIGHTLY ASSESSED THE INCOME OF THE ASSESSEE AFT ER CONSIDERING ALL THE MATERIALS, THEREFORE YOUR ALLEGATION OF THE ASSESSM ENT PAPERS TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE IS WRONG AND UNFOUNDED I, THEREFORE, REQUEST YOU TO KINDLY CONSIDER THE MATTER JUDICIALL Y AND DROP THE PROCEEDINGS U/S.263 UNDER INTIMATION TO ME'. 8. THE ASSESSMENT RECORD AND SUBMISSION OF THE ASSE SSEE HAVE BEEN EXAMINED BY ME. THE ONLY ISSUE UNDER CONSIDERATION FOR REVISION PROCEEDINGS IS WHETHER THE LAND SOLD BY THE ASSESSEE AT JAIPUR VIDE REGISTRATION DO CUMENT NO.2008396001129 DATED 29.07.2008 WAS THE CAPITAL ASSET AND CAPITAL GAIN W AS LIABLE TO BE TAXED BY THE ASSESSING OFFICER. AS HAS BEEN DISCUSSED IN PARA 2, 3 AND 4 ABOVE, BOTH TEHSILDER, ALWAR, JAIPUR AND PATWARI HAVE PHYSICALLY INSPECTED THE SAID LAND ON 16.09.2017 AND HAVE CERTIFIED THAT THE LAND WAS LOCATED WITHIN 5.7 KM. DISTANCE OF MUNICIPAL LIMIT OF JAIPUR CITY. THEREFORE, THE LAND WAS NOT AN AGRICUL TURAL LAND AND IT WAS A CAPITAL ASSET U/S.2(14) OF THE INCOME-TAX ACT, 1961. THE PATWARI WHO EARLIER GAVE A LETTER TO THE ASSESSEE COPY OF WHICH WAS PRODUCED BEFORE THE ASSE SSING OFFICER HAS ALSO WITHDRAWN HIS CERTIFICATE BY LETTER DATED 15.09.201 7 TO ITO,WD-3(2), JAIPUR AND HAS ADMITTED THAT THE SAID CERTIFICATE WAS ISSUED BY HI M WITHOUT ACTUAL PHYSICAL VERIFICATION OF THE LOCATION OF THE LAND. IN VIEW O F THE VALIDATION OF LOCATION OF THE SAID LAND BY TEHSILDER OF THE TEHSIL ALWAR, JAIPUR VIDE LETTER NO. LAL2017/5809 DATED 25.09.2017 WHICH WAS SUBMITTED BEFORE THE ITO,WD-3( 2), JAIPUR IT IS A FOREGONE CONCLUSION THAT THE SAID LAND WAS SITUATED WITHIN 5 .7 KM. DISTANCE OF MUNICIPAL LIMIT OF JAIPUR MUNICIPAL CORPORATION LIMIT, OPPOSITE OF JAI PUR GOLDEN PETROL PUMP AND POWER HOUSE. THEREFORE, IN VIEW OF THE CONCRETE EVIDENCES THERE IS NO IOTA OF DOUBT LEFT THAT THE LAND WAS NOT AN AGRICULTURAL LAND BUT THE CAPIT AL ASSET U/S.2(14) OF THE INCOME-TAX ACT, 1961 AND THE ASSESSING OFFICER HAS NOT CARRIED OUT DETAILED VERIFICATION AND ENQUIRIES INTO THE LOCATION OF THE LAND AND GENUINE NESS OF THE ALLEGED CERTIFICATE OF THE PATWARI SUBMITTED BY THE ASSESSEE WHICH IS NOW FOUND TO BE FALSE. THE HUGE BURDEN WAS CAST UPON THE ASSESSING OFFICER IN THE R E-ASSESSMENT PROCEEDING U/S.148 WHEN THE ASSESSMENT WAS RE-OPENED BY THE AS SESSING OFFICER HIMSELF ON THE GROUND OF ESCAPEMENT. IN THIS CONTEXT CASUAL ASSESS MENT DONE BY THE ASSESSING OFFICER WAS HIGHLY UNCALLED FOR. THE ASSESSING OFFI CER IS THEREFORE ERRED COMPLETELY IN ALLOWING THE EXEMPTION U/S.10 OF THE INCOME-TAX ACT , 1961 TO THE ASSESSEE AND NOT BRING INTO THE TAX THE CAPITAL GAINS WHICH THE ASSE SSEE WAS LIABLE TO PAY U/S.45 OF THE ITA NO.1137/KOL/2019 A.Y.2009 -10 GIRISH CHAND AGARWAL VS. ITO WD-46(1), KOL. PAGE 6 INCOME-TAX ACT, 1961. THE ASSESSMENT ORDER IS THERE FORE FOUND ERRONEOUS AND IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE . 9. THE HORT'BLE KOLKATA HIGH COURT IN THE CASE OF M /S RAJ MANDIR ESTATE PVT. LTD. (2016) 70 TAXMANN.COM 124 (CAL) HAS HELD THAT THE I NADEQUATE ENQUIRY IS A VALID GROUND FOR REVISION OF ASSESSMENT U/S.263. THE IT A T, KOLKATA IN THE CASE OF SUBHALAKSHMI VANIJYA PVT. LTD. VS. CIT (2015) IN ITA NO.1104/KOL/2015 BY ORDER DATED 30-07-2015 HAS HELD THAT THE FACT THAT NO ENQ UIRY WAS CONDUCTED IN THE CASE IS SUFFICIENT TO ITSELF FOR INVOKING OF PROVISIONS OF SECTION 263. THE HON'BLE SUPREME COURT IN THE CASE OF DENIEI MARCHANTS(P) LTD. VS. I TO BY ORDER DATED 29.11.2017, HAS DISMISSED SLP NO.23976/2017 OF THE ASSESSEE IN FAVOUR OF REVENUE FOR 263 PROCEEDING AND HAS UPHELD THE VIEW OF HON'BLE CALCU TTA HIGH COURT THAT INADEQUATE ENQUIRY IS A VALID GROUND FOR SETTING ASIDE ORDER U /S.263 AND THAT THE CIT HAS DIRECTED A.O. TO CARRY OUT DETAILED ENQUIRY, WHICH WAS PERFE CTLY VALID TO ASCERTAIN THE GENUINENESS & SOURCES OF SHARE APPLICATION MONEY. 10. AFTER HAVING CONSIDERED THE POSITION OF LAW AND FACTS OF THE CASE DISCUSSED ABOVE, THE ASSESSMENT ORDER U/S.143(3) DT.30.12.201 6 PASSED BY THE ASSESSING OFFICER IS HELD ERRONEOUS AND IN SO FAR AS IT IS PR EJUDICIAL TO THE INTEREST OF REVENUE. THE ASSESSMENT ORDER U/S.143(3) DT.19.12.2016 PASSE D BY THE ASSESSING OFFICER IS HEREBY CANCELLED AND THE ASSESSING OFFICER IS DIREC TED TO PASS A FRESH ASSESSMENT ORDER. ON THE ISSUES FOR WHICH THE ASSESSMENT IS DI RECTED TO BE REVISED ULS.263 OF THE INCOME-TAX ACT, 1961, THE ASSESSING OFFICER IS DIRE CTED TO COMPLETE THE REVISION ASSESSMENT PROCEEDING AND PASS A SPEAKING ORDER AFT ER CARRYING OUT ANY FURTHER ENQUIRIES NECESSARY AND MARSHALLING NECESSARY FACTS AND DOCUMENTS ON THE ISSUE OF GENUINENESS OF CLAIM OF HUGE AGRICULTURAL INCOME. T HE ASSESSEE SHOULD BE PROVIDED SUFFICIENT OPPORTUNITY BEFORE PASSING ANY ASSESSMEN T ORDER. 3. LEARNED AUTHORIZED REPRESENTATIVE INVITED OUR AT TENTION TO THE ASSESSEES PETITION DATED 28.11.2019 SEEKING TO RAI SE AN ADDITIONAL GROUND THAT THE ASSESSING OFFICER HAD NOT ISSUED ANY VALID NOTICE U/S 148 BEFORE COMPLETING THE RE-ASSESSMENT IN QUESTION DATED 30.1 2.2016 FORMING SUBJECT- MATTER OF REVISION PROCEEDINGS. THE REVENUE OBJECTE D THE ASSESSEES ADMISSION OF ADDITIONAL GROUND THAT SUCH A PLEA CHA LLENGING VALIDITY OF RE- ASSESSMENT ITSELF IS NOT ADMISSIBLE AND THAT TOO BY WAY OF ITS ADDITIONAL PLEA SOUGHT TO BE RAISED AT THIS STAGE BELATED STAGE. WE FIND NO MERIT IN REVENUES INSTANT TECHNICAL ARGUMENT. THIS TRIBUNALS CO-ORDI NATE BENCHS DECISION IN M/S D.D. DEPOSITS & ADVANCES PVT. LTD., VS. COMMISSIONE R OF INCOME TAX-1, KOLKATA IN ITA NO.1214/KOL/2013 DECIDED ON 11.05.2018 HAS DECLINED THE REVENUES IDENTICAL PLEA AS UNDER:- 7. WE SOUGHT TO KNOW WHAT IS TO WHETHER THE ASSESS EE COULD RAISE SUCH A PLEA IN THE INSTANT PROCEEDINGS INVOLVING QUESTION OF VALIDITY OF CITS ORDER PASSED U/S. 263 OF THE ACT. LEARNED COUNSEL TAKES AS TO A CO-ORDINATE BENCHS ORDER ITA NO.764- 766/KOL/2014 IN M/S CLASSIC FLOUR & & FOOD PROCESSING PVT. LTD. KOLKATA VS. CIT-IV, ITA NO.1137/KOL/2019 A.Y.2009 -10 GIRISH CHAND AGARWAL VS. ITO WD-46(1), KOL. PAGE 7 KOLKATA DECIDED ON 05.04.2017. LEARNED CO-ORDINATE BENCH HELD THAT AN ASSESSMENT IS IN THE NATURE OF PRIMARY PROCEEDINGS WHEREAS REV ISION PROCESS U/S. 263 OF THE ACT IS A COLLATERAL ONE WHEREIN VALIDITY OF THE FORMER CAN ALWAYS BE CHALLENGED. THIS TRIBUNALS DECISION IN M/S WESTLIFE DEVELOPMENT LTD . VS. PRINCIPAL CIT IN ITA NO. 686/MUM/2016 PLACES RELIANCE UPON HON'BLE APEX COUR TS JUDGMENT IN KIRAN SINGH & ORS. VS. CHAMAN PASWAN & ORS.(1955) 1 SCR 117 (SC). THEIR LORDSHIPS ARE OF THE VIEW THAT A DECREE PASSED BY A COURT WITHOUT JURISD ICTION IS A NULLITY WHICH COULD BE PUT TO CHALLENGE IN EXECUTION OR IN COLLATERAL PROC EEDINGS. THEIR LORDSHIPS CONCLUDE THAT ANY DEFECT OF JURISDICTION IN PECUNIARY OR TER RITORIAL OR IN RESPECT OF SUBJECT-MATTER OF THE ACTION STRIKES AT THE VERY AUTHORITY OF THE COURT TO PASS ANY DECREE AND THE SAME WOULD NOT CURABLE EVEN BY CONSENT OF THE PARTI ES. MR. SURANA TAKES PAINS TO ENLIGHTEN US THAT HON'BLE RAJASTHAN HIGH COURTS JU DGMENT IN DECP CHAND KOTHARI VS. CIT (1988) 179 ITR 381 (RAJ) ADOPTS THE VERY REASON ING IN CIVIL JURISPRUDENCE TO INCOME TAX PROCEEDINGS AS WELL. 8. LEARNED COUNSEL NEXT RELIES UPON THIS TRIBUNALS CO-ORDINATE BENCH DECISION IN DR. SB KALIDHAR VS. ITO WARD-4 IN ITA NO.1082/DEL/2016 DECIDED ON 27.11.2017. LEARNED CO-ORDINATE BENCH THERE IS ANNULS SIMILAR A SSESSMENT / RE-ASSESSMENT ON THE GROUND THAT NON ISSUE OF NOTICE U/S 143(2) OF T HE ACT AFTER FILING OF A RETURN RENDERS ENTIRE ASSESSMENT / RE-ASSESSMENT TO BE BAD IN THE EYES OF LAW. IT QUOTES HON'BLE APEX COURTS JUDGMENT IN ACIT VS. HOTEL BLUE MOON (2010) 321 ITR 362 (SC) WHILST QUASHING THE ASSESSMENT IN QUESTION TO BE NON EST & VOID. 9. MR. SURANA LASTLY TAKES US TO THE CASE RECORDS A S WELL INCLUDING ASSESSMENT NOTINGS. HE STATES THAT THERE IS NO COPY OF THE REL EVANT NOTICE IN ASSESSMENT RECORDS. HIS FURTHER CONTENTION IS THAT NEITHER ASSESSEE HAD AUTHORIZED ANYONE NOR ITS AUDITOR HAD EVER PUT IN APPEARANCE BEFORE THE ASSESSING OFF ICER DURING THE RE-ASSESSMENT IN QUESTION. WE INVITED LEARNED COUNSELS ATTENTION TO THE FACT THAT THE SAME AUDITOR HAD REPRESENTED THE ASSESSEE EVEN IN SECTION 263 AS WEL L AS CONSEQUENTIAL ASSESSMENT FRAMED ON 26.07.2014. MR. SURANA REITERATES THAT ON CE THE ORIGINAL ASSESSMENT / RE- ASSESSMENT IS NON EST, THE ABOVE AUDITORS SUBSEQUE NT ACT AND CONDUCT OR THAT OF THE ASSESSEE ITSELF CANNOT VALIDATE THE SAME AS HELD IN HON'BLE APEX COURTS DECISION (SUPRA). HE THEREFORE PRAYS THAT THE IMPUGNED RE-A SSESSMENT FRAMED ON 28.12.2010 IS TO BE HELD NON EST, NULL AND VOID AT THE THRESHO LD ITSELF AND THEREFORE, THERE IS NO SCOPE FOR THE CIT TO EXERCISE HIS JURISDICTION VEST ED U/S. 263 OF THE ACT. 10. MR. USMAN (CIT DR) REPRESENTS THE REVENUE. HE F IRST OF ALL INFORMS US THAT THE ASSESSMENT RECORD IN XEROX IS AVAILABLE WITH HIM. H E SUBMITS DURING THE COURSE OF HEARING THAT SINCE THE ASSESSING OFFICER HAD NOT MA DE PROPER ENQUIRIES DURING THE COURSE OF RE-ASSESSMENT, THE CIT HAS RIGHTLY INITIA TED THE IMPUGNED PROCEEDINGS AS UPHELD UPTO THE APEX COURT. THERE IS NO SCOPE LEFT THEREFORE IN THE INSTANT SECOND ROUND ONCE THE TRIBUNALS ORDER UPHOLDING THE SECTI ON 263 PROCEEDINGS OF THE ACT IS AFFIRMED UPTO HON'BLE APEX COURT. HE PLEADS THAT IT WOULD BE AN ANOMALOUS SITUATION IF THE INSTANT SECOND ROUND DISTURBS TRIBUNALS EARLIE R FINDING (SUPRA) HAVING ALREADY CONCLUDED THAT CIT HAD RIGHTLY EXERCISED HIS REVISI ON JURISDICTION AS RE-ASSESSMENT ORDER DATED 28.12.2010 IS ERRONEOUS CAUSING PREJUDI CE TO THE INTEREST OF THE REVENUE. 11. LEARNED CIT-DR EMPHASIZES THAT RELEVANT ASSESSM ENT RECORDS DULY CORROBORATE THE FACT THAT THE ASSESSING OFFICER HAD ISSUED U/S 143(2) NOTICE ON 16.11.2009 AS FOLLOWED BY SECTION 142(1) NOTICE. MR. USMAN STATES THAT THE ASSESSEES THIRD SUBSTANTIVE GROUND IN QUESTION TAKES ADVANTAGE OF T HE CIT ABOVE CRUCIAL OBSERVATION (SUPRA) GOING AGAINST THE ASSESSMENT RECORDS. HE PL EADS THAT THE SAME ARE NOT ITA NO.1137/KOL/2019 A.Y.2009 -10 GIRISH CHAND AGARWAL VS. ITO WD-46(1), KOL. PAGE 8 BINDING ON THE REVENUE SINCE THEY ARE NEITHER APPEA LABLE NOR RECTIFIABLE AT ITS BEHEST. HE FURTHER INVITES OUR ATTENTION TO THE CIT S NOTICE(S) INITIATING SECTION 263 PROCEEDINGS DATED 21.12.2011 AND 15.01.2013, AS WEL L AS ASSESSEES REPLY THERETO ON THE LATTER DATE TO THE EFFECT THAT IT HAD FILED ALL THE RELEVANT DETAILS AND DOCUMENTS AS CALLED DURING THE ASSESSMENT FROM TIME TO TIME. THE ASSESSEE HAD ASSERTED AS PER ITS REPLY THAT ALL OF ITS BOOKS OF ACCOUNT, BIL LS, VOUCHERS AND OTHER SUPPORTING DOCUMENTS HAD ALSO BEEN CALLED BY THE ASSESSING OFF ICER FOR EXAMINATION AS PRODUCED IN THE COURSE OF SCRUTINY FOLLOWED BY INDE PENDENT VERIFICATION THROUGH NOTICE / SUMMONS ISSUED U/S 133(6) / 131 OF THE ACT. LEARN ED DR FURTHER SUBMITS IN THE END THAT THE RE-ASSESSMENT IN QUESTION IS NEITHER NON EST NOR VOID SO AS NOT TO BE REVISED IN U/S 263 JURISDICTION VESTED WITH THE CIT. WE POS ED A SPECIFIC QUERY TO THE REVENUE AS TO WHETHER THE ASSESSMENT RECORDS COMPRISE OF TH E RELEVANT NOTICES ISSUED U/S 143(2) OR U/S. 142 142(1) OR NOT. THE REPLY RECEIVE D IS IN NEGATIVE. THE REVENUE EMPHASISES THAT THERE IS SUFFICIENT MATERIAL ON REC ORD INDICATING THAT SAID NOTICE(S) HAD VERY MUCH BEEN ISSUED BUT NOT FORMING PART OF T HE CASE RECORDS SINCE THE SAME HAS SEEN MULTIPLE ROUNDS OF PROCEEDINGS INVOLVING M OVEMENT OF THE CASE FILE FROM ONE AUTHORITY TO ANOTHER. LEARNED DR QUOTES SECTION 292B OF THE ACT AS WELL THAT THE ASSESSEE CANNOT PLEAD NON ISSUANCE OF NOTICE AT THI S BELATED STAGE ONCE IT HAD DEFENDED THE RELEVANT ASSESSMENT IS REVISION PROCEE DINGS. 12. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO R IVAL SUBMISSIONS. SUFFICE TO SAY, WE HAVE ALREADY NARRATED THE BASIC FACTS THAT OUR I NSTANT ADJUDICATION IS CONFINED TO ASSESSEES THIRD SUBSTANTIVE GROUND THAT THE CIT CO ULD NOT HAVE REVISED THE RE- ASSESSMENT IN QUESTION FRAMED ON 28.12.2010 SINCE T HE LATTER ONE IS A NON EST ORDER IN THE EYES OF LAW NOT EXIGIBLE TO REVISION. WE QUO TE ALL THE RELEVANT CASE LAW RELIED UPON AT THE ASSESSEES BEHEST (SUPRA) TO OBSERVE FI RST OF ALL THAT IT IS VERY MUCH OPEN FOR THE ASSESSEE TO CHALLENGE VALIDITY OF THE RE-AS SESSMENT IN SECTION 263 PROCEEDINGS ON THE GROUND THAT SAME ARE NON EST IN THE EYES OF LAW. CO-ORDINATE BENCHS DECISION(S) (SUPRA) HAVE ALREADY CONCLUDED THAT ASSESSMENT PROCEEDINGS ARE PRIMARY PROCEEDINGS WHEREAS THOSE U/S 263 OF TH E ACT ARE IN THE NATURE OF COLLATERAL PROCEEDINGS. THE QUESTION BEFORE US IN THIS BACKDROP OF FACTS IS AS TO WHETHER THE ASSESSING OFFICER CAN BE HELD TO HAVE I SSUED NOTICES U/S 143(2) OR 142(1) OF THE ACT OR NOT. IN CASE THE REPLY IS IN N EGATIVE, IT WOULD RENDER THE ENTIRE RE- ASSESSMENT BAD IN THE EYES OF LAW AS PER HON'BLE AP EX COURTS DECISION IN HOTEL BLUE MOON (SUPRA) FOLLOWED IN THIS TRIBUNALS CO-ORDINATE BE NCHS ORDER. WE NOW REVERT BACK TO THE RELEVANT FACTS OF THE CASE. IT EMERGES FROM THE CASE RECORDS THAT THE ASSESSING OFFICER HAD INITIATED THE IMPUGNED RE-OPE NING VIDE SECTION 148 NOTICE ISSUED ON 03.11.2009. THESE ASSESSMENT FILE NOTINGS DATED 16.11.2009 MAKE IT CLEAR THAT HE HAD ISSUED SECTION 143(2) AS WELL AS SECTIO N 142(1) NOTICE(S). LEARNED COUNSELS CASE IS THAT THERE IS NO SUCH NOTICE ON R ECORD. WE FIND NO MERIT IN THE INSTANT PLEA AS THE ABOVE NARRATED ASSESSMENT NOTIN GS MAKE IT CLEAR THAT ASSESSING OFFICER HAD INDEED ISSUED THE SAID TWO NOTICES. WE QUOTE SECTION 114(E) OF THE INDIAN EVIDENCE ACT TO PRESUME AS A COURT THAT THE ASSESSI NG OFFICER HAD PERFORMED AN OFFICIAL ACT OF COMPLETING RE-ASSESSMENT IN ASSESSE ES CASE AS PER THE PRESCRIBED PROCEDURE. WE REITERATE THAT ALTHOUGH ASSESSEE HAS PLEADED OF NEITHER IT ITSELF NOR ITS AUTHORIZED REPRESENTATIVE TO HAVE APPEARED DURING T HE COURSE OF SCRUTINY IN FURTHERANCE TO THE SAID NOTICE(S), THE ABOVE NARRAT ED FACTS SPEAK OTHERWISE WHEREIN IT HAD NOT EVEN FILED ITS AUTHORIZED REPRESENTATIVE AF FIDAVIT TO REBUT THE ABOVE ASSESSMENT NOTICE(S). THE VERY AUDITOR HAD BEEN CON TINUING TO REPRESENT THE ASSESSEES RIGHT FROM RE-ASSESSMENT TO SECTION 263 PROCEEDINGS AS WELL AS THE CONSEQUENTIAL ASSESSMENT FRAMED ON 26.07.2014. WE T AKE NOTE OF THE ASSESSEES REPLY FILED BEFORE THE CIT (SUPRA) AS WELL DEFENDIN G THE ABOVE ASSESSMENT TO HAVE BEEN COMPLETED AFTER CALLING NECESSARY BOOKS, BILLS , VOUCHERS AS WELL AS SUPPORTING DOCUMENTS FOR EXAMINATION AS PRODUCED AT ITS BEHEST FOLLOWED BY NOTICE / SUMMONS ITA NO.1137/KOL/2019 A.Y.2009 -10 GIRISH CHAND AGARWAL VS. ITO WD-46(1), KOL. PAGE 9 ISSUED U/S. 133(6) AND 131 OF THE ACT; RESPECTIVELY . WE ARE OF THE VIEW IN THESE FACTS THAT THE ASSESSEE COULD NOT HAVE PLACED ON RECORD T HE REQUIRED DOCUMENTS WITHIN ANY NOTICE AT ALL BEFORE SECTION 133(6)/131 PROCESS . THE ASSESSEES INSTANT SUBSTANTIVE GROUND THEREFORE APPEARS TO BE AS WELL WORDED ONE WHEREIN IT HAS SOUGHT TO REITERATE THE CITS OBSERVATION ONLY THAT THE AS SESSING OFFICER HAD NOT ISSUED THE SAID STATUTORY NOTICE(S) BEFORE COMPLETING THE ASSE SSMENT IN QUESTION. WE CONCLUDE IN VIEW OF THESE FACTS THAT THE CITS SAID OBSERVAT ION IS AGAINST THE ASSESSMENT RECORDS. MERE ON NON PRODUCTION OF THE NOTICE(S) IN QUESTION; IN OUR CONSIDERED VIEW, IS NOT SUFFICIENT TO CONCLUDE THAT THE ASSESSING OF FICER HAD NOT ISSUED SEC. 143(2) AND SEC. 142(1) NOTICES WHICH IS VIEW OF THE ABOVE OVER WHELMING SUPPORTIVE EVIDENCE IN THE NATURE OF ASSESSMENT PROCEEDINGS BEFORE US. WE QUOTE SEC. 136 OF THE ACT TO CONCLUDE THAT THE LEGISLATURE HAS INDEED TREATED PR OCEEDINGS BEFORE US INCOME TAX AUTHORITIES TO BE JUDICIAL PROCEEDINGS AS WELL. 4. COMING TO ADMISSION OF ASSESSEES ADDITIONAL GRO UND, WE NOTE THAT HON'BLE APEX COURTS LANDMARK DECISION IN NATIONAL THERMAL POWER CORPORATION. LTD. VS. COMMISSIONER OF INCOME-TAX (1998) 229 ITR 383 (SC) CONSIDERED IN ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT (2012) 137 ITD 26 (MUM) HOLDS THAT THE TRIBUNAL CAN VERY WELL ENTERTA IN AN ADDITIONAL GROUND IN ORDER TO DETERMINE THE CORRECT TAXABLE IN CASE PROV IDED THE RELEVANT FACTS ARE ALREADY ON RECORD. WE GO BY THE VERY REASONING HERE IN AS WELL TO ADMIT ASSESSEES ADDITIONAL GROUND. 5. WE NOW ADVERT TO THE RELEVANT FACTUAL MATRIX. TH ERE IS HARDLY ANY DISPUTE THAT IT IS THE ASSESSEES SALE DEED DATED 2 8.07.2008 REGARDING 1.93 HECT LAND IN KHASRH NO. 376 TO 393 MEASURING 7 BIGH AS 16 BISWA FOR 24,55,200/- WHICH FORMS THE SUBJECT-MATTER OF THE I NSTANT LIS. THE ASSESSEES CASE THROUGHOUT IS THAT THE SAID LAND IS AGRICULTUR AL NOT FORMING A CAPITAL ASSET SEC.2(14) OF THE ACT SINCE SITUATED AT A DISTANCE O F 9 K.M. FROM THE MUNICIPAL LIMITS. WE FURTHER FIND THAT AFTER THE EXECUTION OF THE ASSESSEES SALE DEED, THE ITO WARD-3(2) JAIPUR HAD ISSUED SEC. 148 NOTICE DAT ED 23.03.2016 AFTER FORMING REASONS TO BELIEVE THAT HER TAXABLE INCOME LIABLE TO BE ASSESSED AS ESCAPED ASSESSMENT. THE ASSESSEES LETTER DATED 27. 06.2016 PLEADED THAT HE HAD BEEN REGULARLY FILING HIS RETURNS BEFORE ITO WA RD-46(1) KOLKATA. THE RELEVANT RE-ASSESSMENT FORMING SUBJECT-MATTER UNDER CHALLENGED DATED 30.12.2016 ALSO INDICATES THAT AFTER RECEIVING THE ASSESSEES SAID LETTER / PETITION, THE ITO WARD-3(2) JAIPUR TRANSFERRED SEC. 148 PROCEEDINGS TO ITO ITA NO.1137/KOL/2019 A.Y.2009 -10 GIRISH CHAND AGARWAL VS. ITO WD-46(1), KOL. PAGE 10 WARD-46(1) KOLKATA VIDE ITS SPEED POST LETTER DATED 11.07.2016 AND THE IMPUGNED RE-ASSESSMENT STOOD FRAMED THEREAFTER. 6. MR. SURANA SUBMITS IN THIS FACTUAL BACKDROP THAT THE ASSESSING OFFICER JAIPUR DID NOT HAVE TERRITORIAL JURISDICTION IN ASS ESSEES CASE AND THEREFORE, THE ENTIRE RE-ASSESSMENT DESERVES TO BE QUASHED AS NON EST . THE REVENUES CASE ON THE OTHER HAND IS THAT THE ITO AT JAIPUR TR ANSFERRED THE CASE TO ITO WARD-46(2) KOLKATA AFTER COMING TO KNOW ABOUT THE A SSESSEE TO HAVE BEEN REGULARLY ASSESSED IN THE LATTER JURISDICTION. WE F IND NO FORCE IN REVENUES ARGUMENT. THE FACT REMAINS UNDISPUTED IS THAT ITO W ARD-3(2) JAIPUR WHO HAD ISSUED SEC. 148 NOTICE DATED 23.03.2016 DID NOT HAV E TERRITORIAL JURISDICTION TO ASSESS THE APPELLANT / TAXPAYER. THE LATTER ASSESSI NG AUTHORITY I.E., ITO WARD- 46(1) KOLKATA WHO FRAMED THE ASSESSMENT HAD NEVER I SSUED ANY SEC. 148 NOTICE AT ALL. WE OBSERVE IN THESE PECULIAR FACTS A ND CIRCUMSTANCES THAT THE RELEVANT RE-ASSESSMENT FRAMED IN ASSESSEES CASE IS NOT SUBSTANTIATE FOR WANT OF A VALID SEC. 148 NOTICE ISSUED BY THE ASSESSING OFFICER HAVING TERRITORIAL JURISDICTION. HON'BLE JURISDICTIONAL HIGH COURTS D ECISION IN (2016) 383 ITR 546 RAMSHILA ENTERPRISE PVT. LEARNED. VS. DCIT, CENTRAL CIRCLE, KOLKATA (CAL) HOLDS THAT THE PROCEEDINGS WITHOUT CONCERNED AUTHOR ITY HAVING TERRITORIAL JURISDICTION ARE NOT UPHELD. WE THEREFORE HOLD THAT THE RE-ASSESSMENT FORMING SUBJECT-MATTER OF PCITS SEC. 263 ASSUMPTION OF REV ISION JURISDICTION ITSELF STANDS QUASHED. HIS REVISION DIRECTIONS UNDER CHAL LENGE ARE THEREFORE NON EST TO THE LIMITED EXTENT BEING IN THE NATURE OF COLLAT ERAL PROCEEDING ONLY. WE ORDER ACCORDINGLY. 7. THIS ASSESSEES APPEAL IS ALLOWED IN ABOVE TERMS . ORDER PRONOUNCED IN THE OPEN COURT 29/01/2020 SD/- SD/- ( &) (( &) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP SR.P.S )- 29 / 01 /20 20 ITA NO.1137/KOL/2019 A.Y.2009 -10 GIRISH CHAND AGARWAL VS. ITO WD-46(1), KOL. PAGE 11 / COPY OF ORDER FORWARDED TO:- 1 . /APPELLANT-GIRISH CHAND AGARWAL D-5A, MEERA MARG VA NDANA APARTMENT, BANI PARK, JAIPU R-302012 2 . /RESPONDENT-ITO WARD-46(1), 3, GOVT. PLACE (WEST0, B.B.D. BAG, KOLKATA-001 3. 4 5 / CONCERNED CIT KOLKATA 4. 5- / CIT (A) KOLKATA 5 . 8 ((4, 4, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORDER/ , 4,