Nitin Prakash Gokhale, Satara V. Income-tax Officer,

ITA 1314/PUN/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2863 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-01-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 18-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Corroborative evidences
• Section: 143(3); 142(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , AM . / ITA NO. 1308 /PN/20 1 4 / ASSESSMENT YEAR: 200 6 - 0 7 SHRI KRISHNA BHIMRAO GOKHALE, H.NO.88, SHANIWAR PETH, TAL KARAD, DIST. SATARA 415100 . / APPELLANT PAN: ARPBG5955A VS. THE INCOME TAX OFFICER, WARD - 1, SAT ARA . / RESPONDENT . / ITA NO. 130 9 /PN/201 4 / ASSESSMENT YEAR: 200 6 - 0 7 LATE HIRABAI BHIMRAO GOKHALE, L/H ANIL BHIMRAO GOKHALE, H.NO.88, SHANIWAR PETH, TAL KARAD, DIST. SATARA 415100 . / APPEL LANT PAN: AR C P G0704G VS. THE INCOME TAX OFFICER, WARD - 1, SATARA . / RESPONDENT ITA NO S. 1308 TO 1315 /PN/201 4 KRISHNA BHIMRAO GOKHALE & ORS 2 . / ITA NO. 13 1 0 /PN/201 4 / ASSESSMENT YEAR: 200 6 - 0 7 MRS. CHAYA PRAKASH GOKHALE, H.NO.88, SHANIWAR PETH, TAL KARAD, DIST. SAT ARA 415100 . / APPELLANT PAN: ARB P G5 818N VS. THE INCOME TAX OFFICER, WARD - 1, SATARA . / RESPONDENT . / ITA NO. 131 1 /PN/201 4 / ASSESSMENT YEAR: 200 6 - 0 7 SHRI ANIL BHIMRAO GOKHALE, H.NO.88, SH ANIWAR PETH, TAL KARAD, DIST. SATARA 415100 . / APPELLANT PAN: A KDDG1175D VS. THE INCOME TAX OFFICER, WARD - 1, SATARA . / RESPONDENT . / ITA NO. 131 2 /PN/201 4 / ASSESSMENT YEAR: 200 6 - 0 7 SHRI SUNIL BHIMRAO GOKHALE, H.NO.88, SHANIWAR PETH, TAL KARAD, DIST. SATARA 415100 . / APPELLANT PAN: AR CPG0705H VS. THE INCOME TAX OFFICER, WARD - 1, SATARA . / RESPONDENT ITA NO S. 1308 TO 1315 /PN/201 4 KRISHNA BHIMRAO GOKHALE & ORS 3 . / ITA NO. 131 3 /PN/201 4 / ASSESSMENT YEAR: 200 6 - 0 7 MRS. KALPANA DILIP SALOKHE , H.NO.88, SHANIWAR PETH, TAL KARAD, DIST. SATARA 415100 . / APPELLANT PAN: CGJPS4360J VS. THE INCOME TAX OFFICER, WARD - 1, SATARA . / RESPONDENT . / ITA NO. 131 4 /PN/201 4 / ASSESSMENT YEAR: 200 6 - 0 7 SHRI NITIN PRAKASH GOKHALE, H.NO.88, SHANIWAR PETH, TAL KARAD, DIST. SATARA 415100 . / APPELLANT PAN: AR JPG7983Q PAN: AR JPG7983Q VS. THE INCOME TAX OFFICER, WARD - 1, SATARA . / RESPONDENT . / ITA NO. 131 5 /PN/201 4 / ASSESSMENT YEAR: 200 6 - 0 7 SHRI AMIT PRAKASH GOKHALE, H.NO.88, SHANIWAR PETH, TAL KARAD, DIST. SATARA 415100 . / APPELLANT PAN: A QIPG8655L VS. THE INCOME TAX OFFICER, WARD - 1, SATARA . / RESPONDENT ITA NO S. 1308 TO 1315 /PN/201 4 KRISHNA BHIMRAO GOKHALE & ORS 4 / APPELLANT BY : S /S HRI PRAYAG JHA AND PRATEEK JHA / RESPOND ENT BY : SHRI DHEERAJ KUMAR JAIN / RESPOND ENT BY : SHRI DHEERAJ KUMAR JAIN / DATE OF HEARING : 1 8 .0 1 .201 6 / DATE OF PRONOUNCEMENT: 20 . 0 1 .201 6 / ORDER PER SUSHMA CHOWLA, JM: THIS BUNCH OF A PPEAL S FILED BY THE DIFFERENT ASSESSEES ARE AGAINST THE RESPECTIVE ORDER S OF CIT (A) - I I I , PUNE , ALL DATED 16 . 04 .201 4 RELATING TO ASSESSMENT YEAR 200 6 - 0 7 AGAINST RESPECTIVE ORDER S PASSED UNDER SECTION 1 4 3 (3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) . 2. THIS BUNCH OF APPEALS FILED BY THE DIFFERENT ASSESSEES ON SIMILAR ISSUES WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. HOWEVER, REFERENCE IS BEING MADE TO THE FACTS AND ISSUES IN ITA NO.13 13 /PN/2014 TO ADJUDICATE THE ISSUES. 3 . THE ASSESSEE IN ITA NO. 13 13 /PN/201 4 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. THE L D CIT (A) ERRED I N UPHOLDING THE DECISION OF THE L D ITO THAT LAND UNDER 1. THE L D CIT (A) ERRED I N UPHOLDING THE DECISION OF THE L D ITO THAT LAND UNDER CONSIDERATION WAS NOT AGRICULTURAL LAND IGNORING THE FACTS THAT THE SAID LAND WAS SHOWN AS AGRICULTURAL LAND IN THE REVENUE RECORDS AND WAS UNDER ACTUAL CULTIVATION. 2. THE L D CIT (A) ERRED IN CONFIR MING THE ORDER OF THE L D AO WHO HELD THAT THE AGRICULTURAL LAND UNDER CONSIDERATION WAS AS ASSET IGNORING THE FACTS THAT THE SAID LAND WAS IN RURAL AREA AND KARAD MUNICIPALITY WAS NOT NOTIFIED BY THE CENTRAL GOVERNMENT IN THE NOTIFICATION NO. 9447 DATED 06 .01.1994 FOR THE PURPOSE OF S.2 (14) (III). 3. THE L D CIT (A) ERRED IN REJECTING THE ASSESSEE'S OBJECTION TO THE ADOPTION OF MARKET VALUE FOR COMPUTING LONG TERM CAPITAL GAINS AND NOT DIRECTING THE L D AO TO REFER PROPERTY FOR VALUATION TO THE VALUATION O FFICER OF THE DEPARTMENT. ITA NO S. 1308 TO 1315 /PN/201 4 KRISHNA BHIMRAO GOKHALE & ORS 5 4. THE L D CIT (A) ERRED IN NOT CONSIDERING THE MARKET VALUE OF THE LAND UNDER CONSIDERATION AS ON 01.04.1981 ON THE BASIS OF ACTUAL SALE INSTANCES FURNISHED BY THE ASSESSEE BUT CONFIRMING THE ORDER OF THE L D AO WHO ADOPTED A VER Y LOW VALUE FOR COMPUTING LONG TERM CAPITAL GAINS. 5. THE L D CIT (A) FURTHER ERRED IN DIRECTING THE L D AO TO TREAT THE AGRICULTURAL INCOME OF RS.5,000 / - AS INCOME FROM OTHER SOURCES WITHOUT GRANTING THE ASSESSEE SPECIFIC OPPORTUNITY OF BEING HEARD AS REQ UIRED U/S. 251 (2) OF THE IT ACT SINCE THIS RESULTED IN ENHANCEMENT OF INCOME. 6. THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO ONE ANTHER. 7. THE APPELLANT CRAVES LEAVE TO SEND OR AFTER ANY OF THE ABOVE GROUNDS OF APPEAL OR TO ADD NEW GROUNDS O F APPEAL DURING THE COURSE OF APPEAL PROCEEDINGS. 4. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUND S OF APPEAL, WHICH READ AS UNDER: - 1 . THE LEARNED CIT(A) ERRED IN UPHOLDING THE DECISION OF THE LEARNED AO, WITHOUT APPRECIATING THAT, THE ASSESSMENT ORDER PAS SED U/S 143(3) OF THE I T ACT, WITHOUT SERVING THE STATUTORY NOTICE U/S 143(2) OF THE I T ACT ON THE ASSESSEE, WAS BAD IN LAW LIABLE TO SET ASIDE. 2 . WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT THE LEARNED AO WAS NOT JUS TIFIED IN SUBJECTING TO TAX THE LONG TERM CAPITAL GAINS ON SALE OF AGRICULTURAL LAND WITHOUT ALLOWING THE BASIC EXEMPTION OF RS.1,00,000/ - WHICH WAS AVAILABLE TO AN INDIVIDUAL ASSESSEE U/S 112 OF THE I T ACT IN THE A Y 2006 - 07. 5. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ADDITIONAL GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE PURELY LEGAL, HENCE, THE SAME MERITS TO BE ADMITTED. HE FURTHER POINTED OUT THAT THE ISSUE RAISED VIDE ADDITIONAL GROUND OF APPEAL NO.1 I.E. NON - S ERVI CE OF NOTICE UNDER SECTION 143(2) OF THE ACT IS JURISDICTIONAL ISSUE AND THE SAME HAS TO BE DECIDED BEFORE ADJUDICATING THE GROUNDS OF APPEAL RAISED ON MERITS. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ADMITTED THAT THE ADDITIONAL GRO UND OF APPEAL NO.1 RAISED BY THE ASSESSEE WAS THE JURISDICTIONAL ISSUE. HE WAS FURTHER DIRECTED TO VERIFY THE CLAIM OF THE ASSESSEE THAT NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED UPON THE ASSESSEE. ON THE NEXT DATE OF HEARING, THE LEARNED DEPA RTMENTAL REPRESENTATIVE FOR THE REVENUE HAS FILED A LETTER DATED 11.01.2016 OF THE ASSESSING OFFICER, WARD - 1, SATARA, IN WHICH HE HAS STATED THAT ON ITA NO S. 1308 TO 1315 /PN/201 4 KRISHNA BHIMRAO GOKHALE & ORS 6 VERIFICATION OF THE RELEVANT CASE RECORDS, IT IS FOUND THAT NO NOTICES UNDER SECTION 143(2) OF THE ACT ARE IN THE FILES AND NO PROOFS OF SERVICES IN RESPECT OF THE SAME WERE THERE. 7. BRIEFLY, IN THE FACTS OF THE PRESENT CASE, THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 OF THE ACT. IN RESPONSE TO THE SAME, THE ASSESSEE FURNISHED RETURN OF INCOME ON 22.04.2009 DECLARING NIL INCOME, IN ADDITION TO AGRICULTURAL INCOME AT RS.5,000/ - . THE RETURN OF INCOME WAS ACCOMPANIED WITH THE STATEMENT OF TOTAL INCOME AND NOTE ON TRANSACTION I.E. OF SALE AND PURCHASE. THE ASSESSING OFFICER REFERRED TO THE TRANSACTIO N ENTERED INTO BY THE ASSESSEE AND THEREAFTER, VIDE PARA 3 NOTES THAT HE HAD ISSUED THE NOTICE UNDER SECTION 142(1) OF THE ACT, WHICH WAS SERVED ON THE ASSESSEE DIRECTING TO ATTEND OFFICE ON 28.05.2009 AT 11.00 A.M. ALONG WITH SUPPORTING EVIDENCE. IN RESP ONSE THERETO, THE ASSESSMENT PROCEEDINGS WERE TAKEN UP. 8. NOW, THE ASSESSEE BEFORE US HAS FILED AN ADDITIONAL GROUND OF APPEAL NO.1, IN WHICH HE HAS CHALLENGED THE ASSESSMENT ORDER BEING PASSED UNDER SECTION 143(3) OF WHICH HE HAS CHALLENGED THE ASSESSMENT ORDER BEING PASSED UNDER SECTION 143(3) OF THE ACT WITHOUT SERVING THE STATUT ORY NOTICE UNDER SECTION 143(2) OF THE ACT. THE ASSESSMENT ORDER SO PASSED IS CLAIMED TO BE BAD IN LAW AND LIABLE TO BE SET - ASIDE. THE ADDITIONAL GROUND OF APPEAL NO.1 FILED BY THE ASSESSEE IS A LEGAL ISSUE AND IN VIEW OF THE RATIO LAID DOWN BY THE HONB LE SUPREME COURT IN NATIONAL THERMAL POWER CO. LTD. VS. CIT (1998) 229 ITR 383 (SC) , THE SAME IS ADMITTED. THE ASSESSEE BY WAY OF THIS ADDITIONAL GROUND OF APPEAL HAS CHALLENGED THE ASSESSMENT ORDER PASSED IN THE PRESENT CASE BEING INVALID AND BAD IN LAW, SINCE NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED UPON THE ASSESSEE. THE ASSESSMENT IN THE HANDS OF THE ASSESSEE WAS INITIATED BY ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT PURSUANT TO WHICH, THE ASSESSEE FURNISHED THE RETURN OF INCOME DECLARI NG NIL INCOME AND AGRICULTURAL INCOME OF RS.5,000/ - . THE REQUIREMENT OF THE ACT THEREAFTER IS TO SERVE UPON THE ASSESSEE NOTICE UNDER SECTION 143(2) OF THE ACT . ADMITTEDLY, THE SAME HAS NOT BEEN SERVED ITA NO S. 1308 TO 1315 /PN/201 4 KRISHNA BHIMRAO GOKHALE & ORS 7 UPON THE ASSESSEE. THE REPORT OF ASSESSING OFFICER, WARD - 1, SATARA DATED 11.01.2016 ADMITTING THAT ON THE RECORDS, THERE ARE NO NOTICES UNDER SECTION 143(2) OF THE ACT ON FILE AND NO EVIDENCE OF SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT IS AVAILABLE. WHERE THE ASSESSEE HA D FURNISHED RETURN OF INCO ME, THEREAFTER, IT IS INCUMBENT UPON THE ASSESSING OFFICER TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN TIME LIMIT PRESCRIBED IN THE PROVISO TO SECTION 143(2) OF THE ACT. ADMITTEDLY, THE SAID CONDITION HAS NOT BEEN COMPLIED WITH BY THE ASSESSING OFFICER. IN SUCH CIRCUMSTANCES, WHERE THE ASSESSING OFFICER HAS NOT FOLL OWED THE PROVISIONS OF THE ACT IN SERVING UPON THE ASSESSEE A NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN PRESCRIBED PERIOD, WHICH IS A PRE - REQUISITE FOR FRAMING OF THE ASSESSMENT IN THE HANDS OF ASSESSEE, THEN THE ASSESSMENT ORDER SO PASSED IS WITHOUT JURISDICTION AND IS BAD IN LAW. WE FIND SUPPORT FROM THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN ACIT VS. HOTEL BLUE MOON (2010) 188 TAXMAN 113 (SC), THE CASE LAW RELIED UPON BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE . THOUGH , IN THE FACTS OF THE CASE BEFORE THE HONBLE SUPREME COURT (SUPRA), THE PROCEEDINGS WERE INITIATED UNDER SECTION 158BC OF THE ACT, THE HONBLE SUPREME COURT HELD THAT EVEN FOR COMPLETING B LOCK ASSESSMENT IN SUCH CASES, THE REQUIREMENT OF PROCEDURE WAS TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT AND IN THE ABSENCE OF THE SAME, THE ASSESSMENT MADE BY THE ASSESSING OFFICER WAS HELD TO BE INVALID. FURTHER, THE HONBLE PUNJAB & HARYANA HIGH COURT IN CIT VS. CEBON INDIA LTD. (2009) 184 TAXMAN 290 (PUNJ. & HAR) HAS LAID DOWN SIMILAR PROPOSITION IN RESPECT OF REGULAR ASSESSMENT COMPLETED UNDER SECTION 143(3) OF THE ACT, WITHOUT SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT. RELYING ON THE AFORESAID PROPOSITIONS, WE HOLD THAT THERE IS NO MERIT IN THE ASSESSMENT ORDER PASSED IN THE PRESENT CASE AND HENCE, THE SAME IS HELD TO BE WITHOUT JURISDICTION AND BAD IN LAW AND THE SAME IS SET - ASIDE. THE ADDITIONAL GROUND OF APPEAL NO.1 RAISED BY THE A SSESSEE IS THUS, ALLOWED. IN VIEW OF OUR HOLDING THE ASSESSMENT TO BE WITHOUT JURISDICTION AND BAD IN LAW, WE ARE NOT ADJUDICATING THE ISSUES RAISED ON MERITS OF THE ADDITIONS. ITA NO S. 1308 TO 1315 /PN/201 4 KRISHNA BHIMRAO GOKHALE & ORS 8 9 . THE FACTS AND ISSUES IN ITA NO S . 130 8 /PN/201 4 TO 131 2 /PN/201 4 AND ITA NOS.13 14/PN/2014 & 1315/PN/2014 ARE IDENTICAL TO THE FACTS AND ISSUES IN ITA NO. 13 13 /PN/201 4 AND OUR DECISION IN ITA NO. 13 13 /PN/201 4 SHALL APPLY MUTATIS MUTANDIS TO ITA NO S . 130 8 /PN/201 4 TO 1315/PN/2014 AND ITA NOS.1314/PN/2014 & 1315/PN/2014 AND HENCE, ASSESSMEN T IS HELD TO BE WITHOUT JURISDICTION AND BAD IN LAW . THE ADDITIONAL GROUND OF APPEAL NO.1 RAISED BY THE ASSESSEES IN ALL THE APPEALS IS THUS, ALLOWED. 1 0 . IN THE RESULT, ALL THE APPEAL S OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED ON THIS 20 TH D AY JANUARY , 201 6 . SD/ - SD/ - (PRADIP KUMAR KEDIA ) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; D ATED : 20 TH JANUARY, 2016. GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I I I , PUNE ; 4. / THE CIT - I I I , PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE