Joginder Singh, Yamunanagar V. ITO, W-5, Yamunanagar

ITA 1275/CHANDI/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7440 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-08-2021
• Assessment Year: 2008-2009
• Appeal Filed On: 23-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MEENAKSHI VOHRA CIT
• Keywords: Opportunity of being heard; Additional evidence; Cost of acquisition; Fair market value; Tax effect; Set aside
• Section: 147; 148; 144

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCHES, SMC CHANDIGARH (VIRTUAL COURT) .., ! BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT ITA NO.1275/CHD/2019 ASSESSMENT YEAR : 2008-09 SHRI JOGINDER SINGH S/O SORAN LAL VILLAGE: JARODA, TEHSIL JAGADHRI YAMUNA NAGAR THE ITO WARD NO. 5, YAMUNA NAGAR PAN NO: BEBPS6785N APPELLANT RESPONDENT !' ASSESSEE BY : SHRI ROHIT GOEL, CA #!' REVENUE BY : SMT. MEENAKSHI VOHRA, ADDL. CIT $ %! & DATE OF HEARING : 18/08/2021 '()*! & DATE OF PRONOUNCEMENT : 26/08/2021 '#/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 18/06/2019 OF LD. CIT(A)-4, LUDHIANA. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND FACTS IN CONFIRMING THE ACTION OF LEARNED A.O. IN REOPENING THE ASSESSMENT 147. (TAX EFFECT: 14,08,050/-) 2. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND FACTS IN CONFIRMING THE ACTION OF LEARNED A.O. WHEREBY A HUF PROPERTY IS ASSESSED IN INDIVIDUAL HANDS OF ASSESSEE. (TAX EFFECT: 14,08,050/-) 3. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND FACTS IN CONFIRMING THE ACTION OF LEARNED A.O. IN MAKING ADDITION OF RS. 22,67,610/- BEING LONG TERM CAPITAL GAIN. (TAX EFFECT: 14,08,050/-) 4. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FACT S IN NOT ALLOWING THE CORRECT VALUE OF INDEXED COST OF ACQUISITION OF LAND AS ON 1-4-1981 CLAIMED AT RS. 1,42,825/- AGAINST ALLOWED AT RS. 8,318/-. (TAX EFFECT: 2,22,339/-) 5. THAT APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR TO SUBSTITUTE THE ABOVE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF H EARING OF CASE. 2 2.1 ASSESSEE ALSO RAISED AN ADDITIONAL GROUND WHICH READ AS UNDER: 1. THE FOLLOWING ADDITIONAL GROUND IS PRAYED TO BE ADM ITTED: 'THAT AUTHORITIES BELOW HAVE ERRED IN FACTS AND LAW IN HOLDING THAT CAPITAL GAIN AGAINST SALE OF AGRICULTURE LAND IS TAXABLE IN AY 2008-09 IN PLA CE OF AY 2009-10.' 2. THE ATTENTION OF HON'BLE BENCH IS INVITED TO THE FACT THAT LAND IN QUESTION WAS SOLD ON 28-6-2007(AY 2008-09) BUT POSSESSION OF LAND AND SALE CONSIDERATION RECEIVED ON 1-10- 2008 (AY 2009-10). LAND IN QUESTION IS SOLD TO ZODI AC HOUSING AND INFRASTRUCTURE PRIVATE LIMITED ON 28-6-2007 BUT THE POSSESSION OF LAND WAS HANDED OVER ONLY AFTER RECEIPT OF FULL AND FINAL PAYMENT. THIS IS THE SAME COMPANY WHERE P UNJAB AND HARYANA HIGH COURT IN CRM 3672-M/2007 WHEREIN UNDER EXACTLY SAME CIRCUMST ANCES JURISDICTIONAL HC HAS DIRECTED LOCAL ADMINISTRATION OF JAGADHRI-YAMUNA NA GAR THAT THESE COMPANY BE NOT ALLOWED TO TAKE PHYSICAL POSSESSION OF THE LAND WIT HOUT FULL PAYMENT AND ALSO ORDERED THAT THOUGH THE APPEAL HAS BEEN FILED BY TAJINDER KUMAR AND HELD THAT THE ORDER WILL APPLY TO OTHER FARMERS AND THEY ARE NOT REQUIRED TO APPROACH THE COURT FOR GETTING RELIEF. HOWEVER, THE ISSUE INVOLVED IN THIS ADDITIONAL GROUND IS A L EGAL GROUND ON THE FACTS TO BE DECIDED AS PER THE PROVISIONS OF LAW. THE SAME GOES TO THE ROOT OF THE MATTER AND CLEARLY TRANSPIRES FROM THE PROCEEDINGS BEFORE THE LOWER AU THORITIES WITH COMPLETE FACTS ON RECORD AND RELIANCE IS PLACED ON THE DECISION OF HON'BLE S UPREME COURT IN THE CASE OF NATIONAL THERMAL POWER COMPANY LIMITED VS. CIT - 229 ITR 383 (SC). IN THE LIGHT OF ABOVE, HON'BLE BENCH IS REQUESTED T O ADMIT THE ADDITIONAL GROUND OF APPEAL UNDER RULE 11 OF INCOME TAX APPELLATE TRIBUNAL RULE S 1963. 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ALTHOUGH THE AFORESAID ADDITIONAL GROUND IS EMBEDDE D IN GROUND NO. 3. HOWEVER PRECAUTIONARY IT HAS BEEN RAISED AS AN ADDITIONAL G ROUND FOR WHICH NO NEW FACT ARE REQUIRED AS THE SAME ARE AVAILABLE ON THE RECORD. T HEREFORE THIS ADDITIONAL GROUND MAY BE ADMITTED IN VIEW OF THE RATIO LAID DOWN BY T HE HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER COMPANY LIMITED VS. CIT 229 ITR 383. 4. IN HER RIVAL SUBMISSIONS THE LD. DR OPPOSED THE ADMISSION OF THE ADDITIONAL GROUND AND SUBMITTED THAT THIS GROUND WAS NOT RAISE D BY THE ASSESSEE BEFORE THE LD. CIT(A), THEREFORE, IT MAY NOT BE ADMITTED. 5. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES, IT IS NOTICED THAT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS PURELY A LEGAL GROUND WHICH GOES TO THE ROOT OF THE MATTER AND NO NEW FACTS ARE REQUIRED WH ICH ARE ALREADY AVAILABLE ON THE RECORD. THEREFORE BY KEEPING IN VIEW THE RATIO LAID DOWN BY THE HON'BLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER COMPANY LTD. VS. CIT(SUPRA),THIS GROUND IS ADMITTED. 3 6. IN THE PRESENT CASE, THE ASSESSEE HAS CHALLENGED THE SUSTENANCE OF ADDITION MADE BY THE A.O. AND THAT AS TO WHETHER THE CAPITAL GAIN (IF ANY) FROM SALE OF AGRICULTURE LAND WAS TAXABLE IN THE ASSESSMENT YEAR UNDER CONSIDERATION I.E; A.Y. 2008-09 OR THE A.Y. 2009-10. 7. FACTS OF THE CASE IN BRIEF ARE THAT THE A.O. ON THE BASIS OF THE INFORMATION THAT THE ASSESSEE ALONGWITH CO-OWNERS HAD SOLD LAND MEAS URING 8 KANAL 16 MARLAS TO M/S ZODIAC HOUSING AND INFRASTRUCTURE PVT. LTD. DILSHAD GARDEN, NEW DELHI FOR RS. 60,50,000/- ON 28/06/2007 AND SINCE THE ASSESSEE HA D NOT DISCHARGED THE TAX LIABILITY, THE A.O. REOPENED THE CASE BY INITIATING THE PROCEEDINGS UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). AS THE ASSESSEE DID NOT COMPLY THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT THE A.O. ISSUED SEVERAL OTHER NOTICES. THE ASSESSEE FURNISHED THE WRITTEN SUBMISSIONS DT. 25/0 1/2016 WHICH HAS BEEN INCORPORATED BY THE A.O. IN PARA 3 OF THE ASSESSMEN T ORDER DT. 09/03/2016. THE ASSESSEE AGAIN FILED THE WRITTEN SUBMISSION ON 26/0 2/2016 WHICH HAS BEEN INCORPORATED IN PARA 3.1 OF THE AFORESAID ASSESSMEN T ORDER, FOR THE COST OF REPETITION THE SAME IS NOT REPRODUCED HEREIN. SINCE THE ASSESS EE DID NOT COMPLY WITH THE NOTICES ISSUED UNDER SECTION 148 OF THE ACT AND DID NOT FURNISH THE INCOME TAX RETURN, THE A.O. PROCEEDED UNDER SECTION 144 OF THE ACT AND FRAMED THE ASSESSMENT EXPARTE BY CONSIDERING THE INCOME OF RS. 22,67,610/- AS TAXABLE UNDER THE HEAD LONG TERM CAPITAL GAIN. 8. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND FURNISHED THE WRITTEN SUBMISSIONS DT. 22/02/2019 WH ICH HAVE BEEN INCORPORATED IN PARA 4.4 OF THE IMPUGNED ORDER BY THE LD. CIT(A), F OR THE COST OF REPETITION THE SAME IS NOT REPRODUCED HEREIN. 9. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSE E, THE LD. CIT(A) OBSERVED THAT DURING THE APPELLATE PROCEEDINGS THE ASSESSEE HAD F ILED THE ADDITIONAL EVIDENCES REGARDING THE COST OF ACQUISITION WHICH WERE ADMITT ED AND COMMENTS OF THE A.O. WERE SOUGHT. HOWEVER INSPITE OF THE REMINDER ISSUED ON 22/02/2019, 19/03/2019 AND 16/04/2019 TO THE A.O. COMMENTS WERE NOT RECEIVED. HOWEVER, THE LD. CIT(A) SUSTAINED THE ADDITION MADE BY THE A.O. AND CONFIRM ED THE VIEW TAKEN BY THE A.O. IN ADOPTING THE FAIR MARKET VALUE OF THE PROPERTY A S ON 01/04/1981. 10. NOW THE ASSESSEE IS IN APPEAL. 4 11. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTEN TION TOWARDS PAGE NO. 21 OF THE ASSESSEES PAPER BOOK WHICH IS THE COPY OF THE BANK STATEMENT AND SUBMITTED THAT THE AMOUNT IN LIEU OF SALE OF THE AGRICULTURE LAND WAS CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE AS ON 01/10/2008 THEREFORE THE TRANSACTIONS TOOK PLACE IN THE F.Y. 2008-09 PERTAINING TO THE A.Y. 2009-10 AND NOT THE A.Y. 2008-09. 11.1 HE FURTHER SUBMITTED THAT THE HON'BLE JURISDIC TIONAL HIGH COURT VIDE JUDGMENT DT. 05/02/2009 IN CWP NO. 1908 OF 2009 IN THE CASE OF TEJINDER KUMAR AND ANOTHER VS. STATE OF HARYANA AND OTHERS, DIRECTED THE COLLE CTOR, YAMUNA NAGAR TO MAKE IMMEDIATE REMEDIAL MEASURES TO PREVENT CREATION OF THIRD PARTY RIGHTS, CHANGE OF THE NATURE OF THE LAND OR DISPOSSESSION OF THE FARM ERS TO WHOM FULL SALE CONSIDERATION HAS NOT BEEN PAID SO FAR. OUR ATTENTION WAS DRAWN T OWARDS PAGE NOS. 24 TO 26 OF THE ASSESSEES PAPER BOOK WHICH IS THE COPY OF THE AFOR ESAID JUDGMENT. IT WAS ACCORDINGLY SUBMITTED THAT THE PURCHASER WAS NOT IN POSSESSION OF THE LAND TILL THE CHEQUE WAS CLEARED ON 01/10/2008 AND THE POSSESSION WAS ALREADY WITH THE ASSESSEE, THEREFORE THIS TRANSACTION WAS PERTAINING TO THE A.Y. 2009-10 AND NOT TO THE A.Y. UNDER CONSIDERATION I.E; A.Y. 2008-09. 12. IN HER RIVAL SUBMISSIONS THE LD. DR STRONGLY SU PPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE JU DGMENT DT. 05/02/2009 WAS NOT BROUGHT TO THE NOTICE OF THE A.O. OR TO THE LD. CIT (A) BY THE ASSESSEE AND THAT THE TRANSACTION PERTAINED TO THE YEAR UNDER CONSIDERATI ON AS THE ASSESSEE EXECUTED THE REGISTERED SALE DEED ON 28/06/2007 AND RECEIVED THE CHEQUE NO. 10951 DT. 27/06/2007 FOR RS. 21,03,125/-. THEREFORE THE TRANS ACTION WAS PERTAINING TO THE A.Y UNDER CONSIDERATION AND RIGHTLY CONSIDERED BY THE A .O. IN THE SAID ASSESSMENT YEAR. 13. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT APPEARS THAT THE BANK STATEMENT NOW FURNISHED BY THE ASSESSEE SHOWING THA T THE AMOUNT OF RS. 21,03,125/- VIDE CHEQUE NO. 10951 WAS CREDITED IN THE ACCOUNT O F THE ASSESSEE ON 01/10/2008 WAS NEITHER BEFORE THE A.O. WHO PASSED THE ASSESSME NT ORDER EXPARTE NOR BEFORE THE LD. CIT(A). IT IS ALSO NOT CLEAR AS TO WHETHER THE JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT NOW RELIED BY THE LD. COU NSEL FOR THE ASSESSEE WAS BROUGHT TO THE NOTICE OF THE LD. CIT(A). I, THEREFORE, BY C ONSIDERING THE TOTALITY OF THE FACTS, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE A.O. TO BE 5 ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PRO VIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD AND BY CONSIDERING THE D OCUMENTS NOW FURNISHED BY THE ASSESSEE BEFORE THIS BENCH OF THE TRIBUNAL. 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 26/08/2021 ) SD/- .., ( N.K. SAINI) ! / VICE PRESIDENT AG DATE: 26/08/2021 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE