Om Parkash, Kurukshetra V. ITO, W-2, Kurukshetra

ITA 1166/CHANDI/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 1528 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 26-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 54B

Judgement Text

आयकर अपील य अ धकरण,च डीगढ़ यायपीठ “एकल सद यीय’, च डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH ‘SMC’ CHANDIGARH ीमती दवा संह, या#यक सद य BEFORE: SMT. DIVA SINGH, JM आयकर अपील सं./ ITA No. 1166/CHD/2019 नधा रण वष / Assessment Year : 2011-12 Shri Om Parkash, House No. 51, Village-Kheri Ram Nagar, Kurukshetra. Versus The ITO, Ward-2, Kurukshetra. थायी लेखा सं./PAN No: BLSPP7652R अपीलाथ /Appellant यथ /Respondent नधा रती क ओर से/Assessee by : Shri Ajay Jain, C.A. राज व क ओर से/ Revenue by : Dr. Ranjit Kaur, Sr.DR स ु नवाई क तार$ख/Date of Hearing : 18.05.2022 उदघोषणा क तार$ख/Date of Pronouncement : 23.05.2022 आदेश/ORDER The present appeal has been filed by the assessee wherein the correctness of the order dated 27.06.2019 of CIT(A) Karnal pertaining to 2011-12 assessment year is assailed on the following grounds : 1. That the Ld. Commissioner of Income Appeals has wrongly upheld the addition of capital gain of Rs 1498000/- on sale of ancestral land in the hands of appellant without appreciating the fact that land sold belonged to Hindu undivided family & not self acquired land . 2. That the Ld. Commissioner of Income Appeals has wrongly disallowed the exemption of Rs.1498000/- claimed under section 54B of Income Tax Act. ITA/1166/CHD/2019 A.Y. 2011-12 Page 2 of 5 3. That the Ld CIT(A) has wrongly upheld the disallowance of deduction under section 54B of Rs 1498000/- claimed against sale of ancestral agricultural land without appreciating the fact that the case of appellant has been reopened under section 147 for verification of cash deposit. 4. That the ld assessing officer has wrongly invoked the provisions of section 147/148 of income tax Act. 2. The relevant facts of the case are that the assessee's case was reopened u/s 147 of the Act on account of the fact that he had failed to furnish the source of cash deposits of Rs.30 lacs made in his Saving Bank Account maintained with State Bank of India, Kurukshetra. The assessee as per record is said to have stated that the only source of income was agriculture income and that the amount was deposited from the sale proceeds of agricultural land and agriculture produce out of agricultural activity. The specific piece of land was stated to have been sold alongwith his brother and the amount was said to have been accruing from the said sale and some of savings from the earlier years. These facts are found recorded at page 2 of the assessment order and further recorded at page 3 of the assessment order. The assessee, accordingly, put forth the claim of exemption u/s 54B as recorded at page 4-5 of the impugned order. The AO ultimately concluded at page 5 of the assessment order as under : ITA/1166/CHD/2019 A.Y. 2011-12 Page 3 of 5 “From the perusal of Sale Deed No 227 dated 20.05.2011, it is noticed that the land is purchased jointly having equal share by Smt Kanta Devi W/o Sh Om Parkash S/o Sh Nanha Ram, and Smt Darshani Devi W/o Sh Ram Kumar S/o Sh Nanha Ram, R/o Village Kheri Ram Nagar, Tehsil Thanesar, Distt Kurukshetra for Rs. 42,15,000/-. Further, from the perusal of computation of Long Term Capital Gain furnished by the assessee, it is noticed that the assessee has claimed u/s 54B of the Income Tax Act, 1961 amounting to Rs. 14,98,000/- (2179000- 681000) on account of purchase of land by his wife, Smt. Kanta Devi. As the land is purchased by the wife of the assessee, Smt. Kanta Devi, hence deduction claimed by the assessee under section 54B of the Income Tax Act, 1961 is not allowable. Accordingly, the assessee was asked to show cause as to why deduction claimed under section 54B amounting to Rs. 14,98,000/- may be allowed as for seeking deduction under section 54B of the Income Tax, 1961 the new asset purchased is to be in the name of the assessee himself but in this case, the new asset purchased in the name of his wife, Smt. Kanta Devi......” 3. The assessee carried the issues in appeal before the CIT(A) explaining the fact that the specific asset sold was HUF property and the land was purchased in the name of the wife as the stamp duty to be paid for women was much less and since his wife was also a co-parcener, hence the claim may be allowed. However, the said claim was dismissed by the CIT(A). 4. Aggrieved, the assessee is in appeal before the ITAT. 5. The ld. AR reiterates his submissions on facts. He filed a copy of the ‘Jamabandi’ and copy of the Purchase Deed vide pages 1 to 8 and 9 to 11 for the respective period. It was also his submission that these documents were available before the CIT(A) and the AO, however, they failed to consider or discuss them. It was also his submission that there is no finding on record about the status of the ITA/1166/CHD/2019 A.Y. 2011-12 Page 4 of 5 land whether it is HUF or not. However, the fact that the relevant documents are not found discussed were not disputed by her. 6. In the light of the facts discussed in the earlier part of this order and the submissions of the parties before the Bench, I find on a consideration of the material available on record that the issue on facts needs to be addressed. Parties were required to argue whether the remand be made to the AO or the CIT(A). Both the parties agreed that the remand be made to the AO. 7. Accordingly, on a consideration of the facts, circumstances and submissions of the parties before the Bench, it is deemed appropriate to set aside the impugned orders and restore the issues back to the file of the AO to ascertain the status of the ,and which was sold and then decide the issue in accordance with law after giving the assessee a reasonable opportunity of being heard. The assessee in its own interests is directed to ensure full and proper participation before the AO and not abuse the trust reposed. It is made clear that in the eventuality of abuse of the trust reposed, the AO shall be at liberty to pass an order on the basis of the material available on record. ITA/1166/CHD/2019 A.Y. 2011-12 Page 5 of 5 8. Said order was pronounced in the Open Court at the time of hearing itself. 9. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the Open Court on 23 rd May,2022. Sd/- ( दवा संह ) (DIVA SINGH) या#यक सद य/Judicial Member “प ू नम” आदेश क त*ल+प अ,े+षत/ Copy of the order forwarded to : 1. अपीलाथ / The Appellant – 2. यथ / The Respondent 3. .आयकर आय ु -त/ CIT 4. आयकर आय ु -त (अपील)/ The CIT(A) 5. +वभागीय त न0ध, आयकर अपील$य आ0धकरण, च2डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड फाईल/ Guard File आदेशान ु सार/ By order, सहायक पंजीकार/ Assistant Registrar