ITO, DUNGARPUR V. Smt. Sharda Bai patel, DUNGARPUR

ITA 118/JODH/2014

• Counselvise Citation: 11823314 RSA 2014
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 26-02-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Keywords: Additional evidence
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N. K. SAINI, ACCOUNTANT MEMBER I.T.A. NO. 118/JODH/2014 ASSESSMENT YEAR: 2006-07 PAN NO. DVWPS 1850 Q INCOME TAX OFFICER, VS. SMT. SHARDA BAI PATEL, WARD, DUNGARPUR. L/H LATE SHRI AMBA LAL PATEL, GHANTALA DARWAJA, DUNGARPUR. (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI N.A. JOSHI, D.R. ASSESSEE BY : NONE. DATE OF HEARING : 15/05/2014 DATE OF PRONOUNCEMENT : 15/05/2014 ORDER PER N. K. SAINI: THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE OR DER DATED 02/12/2013 OF LD. CIT(A), UDAIPUR. DURING THE COURSE OF HEARIN G, NO BODY WAS PRESENT ON BEHALF OF THE ASSESSEE, NEITHER ANY ADJOURNMENT WAS SOUGHT. WE, THEREFORE, PROCEEDED TO DECIDE THE APPEAL OF THE DEPARTMENT EX PARTE QUA THE ASSESSEE AFTER HEARING THE LD. D.R. ON MERIT. FOLLOWING GROU NDS HAVE BEEN RAISED IN THIS APPEAL. ON THE FACTS AND IN THE PRESENT CIRCUMSTANCES OF T HE CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN 1. DELETING THE ADDITION OF RS. 25,96,960/- MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN BY IGNORING THE REGISTERED SALE D EED DATED 02/03/2006 BY WHICH PROPERTY WAS TRANSFERRED AND RE LYING ON SALE 2 AGREEMENT DATED 06/03/1998 WHICH WAS NOT REGISTERED AND NOT PRODUCED BEFORE THE ASSESSING OFFICER. 2. DELETING THE ADDITION BY ADMITTING THE ADDITIONA L EVIDENCES FILED BY THE ASSESSEE BY IGNORING THE PROVISIONS OF RULE 46A(1) OF THE I.T. RULES WITHOUT GIVING ANY OPPORTUNITY TO THE AS SESSING OFFICER TO REBUT THE ADDITIONAL EVIDENCES. THAT THE APPELLANT CARVES TO ADD, AMEND, ALTER, DEL ETE OR MODIFY ANY OR ALL THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. THE LEARNED D.R. AT THE FIRST INSTANCE, ARGUED G ROUND NO. 2, WHICH RELATES TO THE ADMISSION OF ADDITIONAL EVIDENCES FI LED BY THE ASSESSEE BY IGNORING THE PROVISIONS OF RULE 46A(1) OF THE I.T. RULES. 3. FACTS RELATED TO THIS ISSUE IN BRIEF ARE THAT A SSESSING OFFICER CAME TO NOTICE THAT (LATE) SHRI AMBALAL PATEL, S/O SHRI MOT ILAL PATEL, R/O- GHANTALAL DARWAJA HAD SOLD A PLOT OF LAND ADMEASURING 6400 SQ . FT. SITUATED AT DUNGARPUR RATANPUR ROAD TO SHRI KARAN SINGH, SHRI R AISINGH AND SHRI LOKENDRA SINGH SISODIYA THROUGH SALE DEED OF RS. 6. 00 LACS ON 02/3/2006. IT HAD ALSO BEEN NOTICED THAT SHRI AMBALAL PATEL WAS N OT AN INCOME TAX ASSESSEE AND WAS NOT FILING THE RETURN OF INCOME. T HE ASSESSING OFFICER ALSO NOTICED THAT SHRI AMBALAL PATEL HAD EXPIRED, HE, TH EREFORE AFTER RECORDING THE REASONS FOR NOT DISCLOSING THE CAPITAL GAIN, WHICH WAS CHARGEABLE TO TAX, ISSUED NOTICE U/S 148 OF THE I.T. ACT, 1961 (HEREIN AFTER REFERRED AS THE ACT) TO THE ASSESSEE BEING THE LEGAL HEIR OF DECEASED SHRI AMBALAL PATEL, ON 22/7/2010. IN RESPONSE TO THE SAID NOTICE, THE ASSE SSEE FILED HER REPLY DATED 20/8/2010 AND SUBMITTED THAT SHE IS ONLY THE HOUSE WIFE AND DOING NO 3 BUSINESS AND IS OF 80 YEARS OF AGE. SHE REQUESTED T O DROP THE PROCEEDINGS. THE ASSESSING OFFICER, HOWEVER, FRAMED THE ASSESSME NT U/S 144 OF THE ACT AT AN INCOME OF RS. 25,96,959/-. 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND FURNISHED CERTAIN NEW EVIDENCES TO SUBSTANTIATE THA T THE TRANSACTION WAS COMPLETED ON 17/2/2001, THEREFORE, THE CAPITAL GAIN TAX LIABILITY IF ANY, ARRIVED IN THE ASSESSMENT YEAR 2001-02 ONLY, AS PER THE PRO VISIONS APPLICABLE FOR CAPITAL GAIN TAX LIABILITY. 5. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, ALTHOUGH, JUSTIFIED THE ASSESSING OFFICER FOR TAKIN G THE ACTION U/S 147 READ WITH SECTION 148 OF THE ACT BUT DELETED THE ADDITION ON MERIT BY HOLDING THAT THE CAPITAL GAIN WAS ACTUALLY DERIVED BY THE ASSESSEE I N THE ASSESSMENT YEAR 2001-02 AND NOT IN THE YEAR UNDER CONSIDERATION. NO W THE DEPARTMENT IS IN APPEAL. 6. THE LEARNED D.R. SUBMITTED THAT THE ASSESSEE DID NOT ATTEND AND AVOIDED THE PROCEEDINGS BEFORE THE ASSESSING OFFICE R. IT WAS FURTHER SUBMITTED THAT CERTAIN NEW EVIDENCES WERE PRODUCED BEFORE THE LD. CIT(A), BUT HE HAD NOT GIVEN ANY OPPORTUNITY TO THE ASSESSING OFFICER AND EVEN DID NOT ASK FOR THE REMAND REPORT. THEREFORE, HE VIOLATED THE PROVISION S OF RULE 46A(1) OF THE IT RULES. HE REQUESTED TO SEND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARN ED D.R. AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESEN T CASE, IT APPEARS THAT THE 4 LD. CIT(A) WITHOUT PROVIDING OPPORTUNITY OF BEING H EARD TO THE ASSESSING OFFICER AND EVEN WITHOUT ASKING FOR THE REMAND REP ORT ON THE NEW EVIDENCES FURNISHED BY THE ASSESSEE, DECIDED THE CASE. WE, TH EREFORE, THINK IT APPROPRIATE TO SET ASIDE THE ORDER PASSED BY THE LD . CIT(A) AND REMAND THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO BE DE CIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTU NITY OF BEING HEARD. 8. IN THE RESULT, APPEAL OF THE DEPARTMENT IS ALLOW ED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 15/05/2014) . SD/- SD/- (HARI OM MARATHA) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 15 TH MAY, 2014 *RANJAN COPY FORWARDED TO: 1. APPELLANT- 2. RESPONDENT- 3. CIT(A) 4. CIT 5. D.R. BY ORDER ASSISTANT REGISTRAR ITAT, JODHPUR.