Praveen Aggarwal, Delhi V. ITO, Ward- 20(2), New Delhi

ITA 1262/DEL/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7304 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 15-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: TIMSI SHARMA CA MS NEETU JAIN
• Keywords: Capital asset; Set aside
• Section: 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A .NO.-1262/DEL/2019 (ASSESSMENT YEAR-2009-10) PRAVEEN AGGARWAL 4, RACQUET COURT ROAD, CIVIL LINES, DELHI. PAN NO. AAFPA9686D (APPELLANT) VS ITO WARD 20(2) NEW DELHI. (RESPONDENT) APPELLANT BY MS. TIMSI SHARMA, CA MS. NEETU JAIN, CA RESPONDENT BY SHRI S.L. ANURAGI, SR. DR ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 31.12.2018 OF THE LD. CIT(APPEALS)-XXV, NEW DELH I RELEVANT TO ASSESSMENT YEAR 2009-10. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATE D HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE STATED THAT LD. CIT(A) ERRED IN LAW BY MERELY DISMISSING THE APPEAL ONLY ON THE BASIS OF NON-APPEARANCE WITHOUT DECIDING THE MATTER ON MERITS OF THE CASE. HENCE, SHE STATED THAT THE APPE LLATE ORDER IS ITA NO. 1262/D/2019 2 LIABLE TO BE SET ASIDE FOR FRESH CONSIDERATION. IT WAS FURTHER SUBMITTED THAT LEARNED COMMISSIONER OF INCOME TAX [ APPEALS] ERRED BOTH IN FACTS AND IN LAW IN UPHOLDING THE ADD ITION OF RS. 29,21,677/-BY TREATING LAND BEARING KHASRA NO. 111 MI N, WAZIRABAD, DELHI WAS A CAPITAL ASSET IN THE HANDS OF THE ASSESSEE ON THE DATE OF ITS PURPORTED TRANSFER, I.E. 06.03.2009 DESPITE THE FACT THAT THE SAID LAND HAD VESTED IN GRAM SABHA WA ZIRABAD SINCE 12.09.2006. IT WAS FURTHER SUBMITTED THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE ASSESSEES CASE, THE LD. COMMIS SIONER OF INCOME TAX [APPEALS] ERRED BOTH IN FACTS AND IN LAW IN UPHOLDING THE ADDITION OF RS.29,21,677/- BY TREATING LAND BEARIN G KHASRA NO. 111 MIN, WAZIRABAD, DELHI WAS A CAPITAL ASSET IN THE HANDS OF THE ASSESSEE ON THE DATE OF ITS PURPORTED TRANSFER, I.E . 06.03.2009 DESPITE THE FACT THAT SDM [CIVIL LINES], DELHI CONFI RMED THE SAID LAND HAD VESTED IN GRAM SABHA WAZIRABAD SINCE 12.09.2 006 ON DIRECT ENQUIRY MADE BY THE CIT [APPEAL] HIMSELF. IT WAS FURTHER SUBMITTED THAT LEARNED COMMISSIONER OF INCOME TAX ( APPEALS) ERRED BOTH IN FACTS AND IN LAW IN UPHOLDING THE ADD ITION OF RS. 29,21,677/- BY TAKING THE SALE CONSIDERATION OF THE A BOVE SAID LAND AS RS. 36,25,000/- IN THE HANDS OF THE ASSESSEE WHI LE THE ASSESSEE IS MERELY ENTERED INTO TRANSACTION AS POWER OF ATTO RNEY HOLDER NOT ITA NO. 1262/D/2019 3 AS REAL OWNER OF THE PROPERTY AND THE SALE CONSIDER ATION NEITHER ACCRUED TO THE ASSESSEE NOR RECEIVED BY HIM. IN SUP PORT OF HER CONTENTION, SHE FILED PAPER BOOK CONTAINING 1-104 IN WHICH SHE HAS ATTACHED THE COPY OF ASSESSMENT ORDER PASSED U/ S. 143(3) OF THE ACT DATED 1.12.2011 PASSED BY THE ITO, WARD 20(2) , NEW DELHI FOR THE ASSESSMENT YEAR 2009-10; ACKNOWLEDGEM ENT OF RETURN OF INCOME ALONGWITH COMPUTATION OF INCOME FO R THE FINANCIAL YEAR ENDED ON 31.3.2009 RELEVANT FOR THE ASSESSMENT YEAR 2009- 10; REPLY DATED 23.8.2011 CONTAINING COMPLETE FACTUA L BACKGROUND WITH RESPECT TO LAND BEARING KHASRA NO. 111 MIN, WA ZIRABAD, DELHI MEASURING THREE BIGHAS ALOGNWITH DOCUMENTARY EVIDE NCES SUBMITTED BEFORE THE LD. AO; REPLY DATED 11.10.2011 ALONGWITH COPY OF BANK ACCOUNT STATEMENT SHOWING NO PAYMENTS HAS BEEN RECEIVED AGAINST ALLEGED SALE OF LAND SUBMITTED BEF ORE THE AO; REPLY DATED 19.10.2011 ALONGWITH AFFIDAVITS OF KAMA L KISHORE AGGARWAL AND PRAVEEN AGGARWAL CONFIRMING THE FACT T HAT NO SALE WAS EFFECTED AND ALSO NO SALE CONSIDERATION PAID OR RECEIVED BY THE VENDEE AND VENDOR SUBMITTED BEFORE THE AO; REPLY DA TED 8.11.2011 EXPLAINING AS TO WHY THE ADDITION ON ACCOU NT OF LONG TERM CAPITAL GAIN SHOULD NOT BE MADE TO THE RETURN ED INCOME OF THE APPELLANT SUBMITTED THE AO; DETAILED WRITTEN SU BMISSIONS FILED ITA NO. 1262/D/2019 4 BEFORE THE LD. CIT(A) ON 14.3.2018; WRITTEN SUBMISSION S FILED BEFORE THE LD. CIT(A) ON 12.7.2017; WRITTEN SUBMISSION S FILED BEFORE THE LD. CIT(A) ON 3.5.2018; WRITTEN SUBMISSIONS FILED BEFORE THE LD. CIT(A) ON 28.8.2018; COPY OF NOTICE DATE FIXE D FOR THE HEARING OF THE APPEAL UNDER SECTION 250 OF THE ACT DATED 16.5.2017, WHICH WAS NOT PROPERLY CONSIDERED BY THE R EVENUE AUTHORITIES. IN VIEW OF ABOVE, SHE REQUESTED THAT T HE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE AO FOR FRESH ADJUDICATION, AFTER GIVING ADEQUATE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. 4. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER OF T HE AUTHORITIES BELOW AND OPPOSED THE REQUEST OF THE LD . COUNSEL FOR THE ASSESSEE. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CONTENTION RAISED BY THE LD. COUNSEL FOR THE ASSESSE E AND THE PAPER BOOK FILED BY THE ASSESSEE. I FIND CONSIDERA BLE COGENCY IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE ONLY ON TH E BASIS OF NON- APPEARANCE WITHOUT DECIDING THE MATTER ON MERITS OF THE CASE, WHICH IS NOT TENABLE. I FURTHER FIND THAT LD. CIT(A) HAS UPHELD THE ITA NO. 1262/D/2019 5 ADDITION OF RS. 29,21,677/-BY TREATING LAND BEARING KHASRA NO. 111 MIN, WAZIRABAD, DELHI WAS A CAPITAL ASSET IN THE HAND S OF THE ASSESSEE ON THE DATE OF ITS PURPORTED TRANSFER, I.E . 06.03.2009 DESPITE THE FACT THAT THE SAID LAND HAD VESTED IN G RAM SABHA WAZIRABAD SINCE 12.09.2006 AND ALSO BY TREATING LA ND BEARING KHASRA NO. 111 MIN, WAZIRABAD, DELHI WAS A CAPITAL ASS ET IN THE HANDS OF THE ASSESSEE ON THE DATE OF ITS PURPORTED TRANSFER, I.E. 06.03.2009 DESPITE THE FACT THAT SDM [CIVIL LINES], D ELHI CONFIRMED THE SAID LAND HAD VESTED IN GRAM SABHA WAZIRABAD SI NCE 12.09.2006 ON DIRECT ENQUIRY MADE BY THE CIT [APPEAL] HIMSELF. I FURTHER NOTE THAT THE ADDITION OF RS. 29,21,677/- BY TAKING THE SALE CONSIDERATION OF THE LAND IN DISPUTE WAS RS. 36,25,000 /- IN THE HANDS OF THE ASSESSEE WHILE THE ASSESSEE IS MERELY ENTERED INTO TRANSACTION AS POWER OF ATTORNEY HOLDER NOT AS REAL OWNER OF THE PROPERTY AND THE SALE CONSIDERATION NEITHER ACCRUED TO THE ASSESSEE NOR RECEIVED BY HIM. AFTER PERUSING THE PAP ER BOOK FILED BY THE LD. COUNSEL FOR THE ASSESSEE WHICH IS CONTAIN ING PAGES 1- 104 WHEREIN HE ATTACHED THE COPY OF ASSESSMENT ORD ER PASSED U/S. 143(3) OF THE ACT DATED 1.12.2011 PASSED BY THE I TO, WARD 20(2), NEW DELHI FOR THE ASSESSMENT YEAR 2009-10; ACKNOWLEDGEMENT OF RETURN OF INCOME ALONGWITH COMPU TATION OF ITA NO. 1262/D/2019 6 INCOME FOR THE FINANCIAL YEAR ENDED ON 31.3.2009 RELE VANT FOR THE ASSESSMENT YEAR 2009-10; REPLY DATED 23.8.2011 CONTA INING COMPLETE FACTUAL BACKGROUND WITH RESPECT TO LAND BE ARING KHASRA NO. 111 MIN, WAZIRABAD, DELHI MEASURING THREE BIGHAS ALOGNWITH DOCUMENTARY EVIDENCES SUBMITTED BEFORE THE LD. AO; REPLY DATED 11.10.2011 ALONGWITH COPY OF BANK ACCOUNT STATEMENT S HOWING NO PAYMENTS HAS BEEN RECEIVED AGAINST ALLEGED SALE OF LAND SUBMITTED BEFORE THE AO; REPLY DATED 19.10.2011 ALONGWITH AFFI DAVITS OF KAMAL KISHORE AGGARWAL AND PRAVEEN AGGARWAL CONFIRM ING THE FACT THAT NO SALE WAS EFFECTED AND ALSO NO SALE CONSIDER ATION PAID OR RECEIVED BY THE VENDEE AND VENDOR SUBMITTED BEFORE THE AO; REPLY DATED 8.11.2011 EXPLAINING AS TO WHY THE ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAIN SHOULD NOT BE MADE TO THE R ETURNED INCOME OF THE APPELLANT SUBMITTED THE AO; DETAILED WRITTEN SUBMISSIONS FILED BEFORE THE LD. CIT(A) ON 14.3.2018; WRITTEN SUB MISSIONS FILED BEFORE THE LD. CIT(A) ON 12.7.2017; WRITTEN SUBMISSION S FILED BEFORE THE LD. CIT(A) ON 3.5.2018; WRITTEN SUBMISSIONS FILED BEFORE THE LD. CIT(A) ON 28.8.2018; COPY OF NOTICE DATE FIXE D FOR THE HEARING OF THE APPEAL UNDER SECTION 250 OF THE ACT DATED 16.5.2017, WHICH WERE NOT ADEQUATELY CONSIDERED BY T HE REVENUE AUTHORITIES. ITA NO. 1262/D/2019 7 5.1 KEEPING IN VIEW OF THE FACTS CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, I AM OF THE CONSIDERED VIEW THAT THE ISSUES IN DISPUTE ARE REQUIRED TO BE RE-ADJUDICATED BY THE ASSESSING OFFICER, AFTER CONSIDERING THE CONTENTION S RAISED BY THE ASSESSEE, AS AFORESAID AND GIVE ADEQUATE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE AND CONSIDERED ALL THE DOCUME NTS / EVIDENCES FILED BY THE ASSESSEE AS WELL AS THE CASE LAWS CITED BY THE LD. COUNSEL FOR THE ASSESSEE, IF ANY. ASSESSEE I S ALSO DIRECTED TO FULLY COOPERATE WITH THE AO IN THE PROCEEDINGS A ND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT AND FILE ALL THE NECESS ARY DOCUMENTS / EVIDENCES TO SUBSTANTIATE ITS CASE. I HOLD AND DI RECT ACCORDINGLY. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED ON 26-04-2019. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED :26-04-2019 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT, NEW DELHI.