Harendra Singh , Meerut V. ITO, Ward- 1(3), Ghaziabad

ITA 1318/DEL/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2549 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 23-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VED PRAKASH MISHRA
• Keywords: Sale consideration of property below Jantri Value; Principle of natural justice; Set aside
• Section: 148

Judgement Text

HARENDRA SINGH VS. ITO/ I.T.A.NO.1318/DEL/2018/A.Y. 2009-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-1 NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER . . /. I.T.A NO.1318/DEL/2018 / ASSESSMENT YEAR:2009-10 HARENDRA SINGH 4/A1, SHRADHA PURI, PHASE-1, KHIRWA ROAD, KANKER KHERA, MEERUT, UTTAR PRADESH. VS. ITO WARD 1(3) MEERUT GHAZIABAD. PAN NO. AZQPS0314N APPELLANT / RESPONDENT /ASSESSEE BY SH. SANJAY MALIK, ADV. SH. SANKALP MALIK, ADV. /REVENUE BY SH. VED PRAKASH MISHRA, SR. DR / DATE OF HEARING: 26 .11 .20 20 /PRONOUNCEMENT ON 2 7 .11 .20 20 /O R D E R PER N.K. BILLAIYA, A.M. 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE CIT(A)2, NOIDA DATED 14.12.2017 PERTAINING TO AY 2 009-10. THE GRIEVANCE OF THE ASSESSEE READS AS UNDER: 1) THE ASSESSMENT ORDER IS ILLEGAL, VOID & WITHOUT JU RISDICTION OF THE AO PASSING THE ORDER. IT IS PRAYED THAT THE AS SESSMENT MAY PLEASE BE ANNULLED. A) NOTICE WAS ISSUED ON THE WRONG ADDRESS OF THE ASSES SEE AND WAS NOT RECEIVED BY HIM. B) THE ASSESSEE HAS BEEN ASSESSED AT MEERUT, HENCE ASSESSMENT MADE BY ANOTHER AO AT GHAZIABAD IS ILLEG AL. HARENDRA SINGH VS. ITO/ I.T.A.NO.1318/DEL/2018/A.Y. 2009-10 2 2) PROCEEDINGS U/S 148 BY THE AO IS ILLEGAL AND WITHOU T JURISDICTION AND IT IS PRAYED THAT THE ASSESSMENT M AY PLEASE BE ANNULLED. 3) ON THE FACTS OF THE CASE ADDITION OF RS. 36,24,000/ - MADE BY THE AO IS ILLEGAL AND WITHOUT JURISDICTION AND THE SAME MAY PLEASE BE DELETED. ASSESSEE WAS 1/6 TH OWNER IN THE PROPERTY SOLD. ASSESSING HIM OF THE TOTAL VALUE OF THE PROP ERTY IS WRONG, ILLEGAL AND VOID. CIT(A) DID NOT APPLIED TH E FACTS OF THE CASE AND PASSED AN ORDER WHICH IS WITHOUT MERITS. 4) THE LD. CIT(A) HAS NOT JUDICIALLY APPLIED THE FACTS OF THE CASE AND DECIDED THE APPEAL WITHOUT CONSIDERING THE FACT S OF THE CASE, NON-CONSIDERATION OF THE DOCUMENTARY EVIDENCE WAS AGAINST NATURAL JUSTICE. IT IS PRAYED THAT ADDITIO N OF RS. 14,74,000/- PROPOSED BY CIT(A) MAY PLEASE BE DELETE D. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E APPELLANT IS A RESIDENT OF MEERUT AND HAS BEEN FILING HIS RETURN F ROM THE SAME ADDRESS BEFORE THE ITO, WARD 1(3), MEERUT, GHAZIABAD. ON T HE BASIS OF AN AIR INFORMATION ITO, WARD 1(3), GHAZIABAD INITIATED REA SSESSMENT PROCEEDINGS. THE INFORMATION SUGGESTED THAT ASSESS EE HAS PURCHASED A PROPERTY WORTH RS. 36.24 LAKHS. ALL THE NOTICES AN D INTIMATIONS WERE ISSUED TO THE ADDRESS AT VILLAGE JOYA, MODI NAGAR W HICH WAS MENTIONED IN THE TRANSFER DEED OF THE PROPERTY. SINCE ALL THE N OTICES WERE SERVED AT THIS ADDRESS, WHERE THE ASSESSEE WAS NOT RESIDING H E COULD NOT RESPOND TO THE NOTICES AND THE ASSESSMENT WAS FRAMED EX PARTE U/S 144/147 OF THE ACT. HARENDRA SINGH VS. ITO/ I.T.A.NO.1318/DEL/2018/A.Y. 2009-10 3 3. ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) A ND THE CIT(A) WAS CONVINCED THAT NO SUCH PROPERTY WAS PURCHASED BY TH E ASSESSEE DURING THE YEAR UNDER CONSIDERATION AND, ACCORDINGLY, DELE TED THE ADDITION MADE BY THE AO. HOWEVER, THE FAA WAS OF THE OPINIO N THAT THE ASSESSEE HAS IN FACT SOLD SOME PROPERTY IN THE YEAR UNDER CO NSIDERATION AND, ACCORDINGLY, ISSUED NOTICE OF ENHANCEMENT. 4. ON THE BASIS OF THE SALE DEED THE CIT(A) WAS OF THE OPINION THAT THE ACTUAL SALE CONSIDERATION WAS RS. 28 LAKHS; WHEREAS THE VALUATION AS PER STAMP DUTY VALUE WAS SHOWN AT RS. 36.24 LAKHS. THE CIT(A) WAS OF THE FIRM BELIEF THAT THE ASSESSEE WAS LIABLE TO PAY CAP ITAL GAINS TAX AND, ACCORDINGLY, MADE THE ADDITION OF RS. 14.74 LAKHS T HEREBY DELETING THE ADDITION MADE BY THE AO AMOUNTING TO RS. 36.24 LAKH S. 5. BEFORE US, THE COUNSEL FOR THE ASSESSEE VEHEMENT LY STATED THAT THE ENTIRE ASSESSMENT WAS REOPENED ON THE BASIS OF AN A IR INFORMATION WHICH STATED THAT THE ASSESSEE HAS PURCHASED A PROPERTY, IT IS THE SAY OF THE COUNSEL THAT SINCE THE REOPENING WAS TO VERIFY THE PURCHASE TRANSACTION AND SINCE THE SAID TRANSACTION NEVER TOOK PLACE AND , THEREFORE, THE ADDITION MADE BY THE AO WAS DELETED BY THE CIT(A). THEREFORE, CIT(A) HAD NO POWER TO ENHANCE THE ASSESSMENT ON AN ALTOGE THER DIFFERENT ISSUE WHICH WAS NEVER THERE IN THE REASONS RECORDED FOR R EOPENING THE ASSESSMENT. HARENDRA SINGH VS. ITO/ I.T.A.NO.1318/DEL/2018/A.Y. 2009-10 4 6. PER CONTRA, THE DR STRONGLY SUPPORTED THE FINDIN GS OF THE CIT(A). IT IS THE SAY OF THE DR THAT THE POWERS OF THE CIT(A) ARE COTERMINOUS TO THAT OF THE AO AND HENCE, THE ENHANCEMENT IS LAWFUL. 7. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO CAREFULLY GONE THR OUGH THE RELEVANT DOCUMENTARY EVIDENCES BROUGHT TO OUR NOTICE. A PER USAL OF EXHIBIT 84 TO 92 SHOWS THAT THE ASSESSEE HAS BEEN FILING HIS RETU RN OF INCOME IN MEERUT. WE ALSO FIND THAT THE ADDRESS IN THE PAN CARD IS AL SO THAT OF MEERUT. WE FAIL TO UNDERSTAND HOW THE AO OF GHAZIABAD ASSUMED JURISDICTION TO REOPEN THE ASSESSMENT. 8. ASSUMING, YET NOT ACCEPTING, THAT THE NOTICE OF REASSESSMENT ISSUED WAS LAWFUL YET THE INFORMATION WAS IN RESPEC T OF PURCHASE OF A PROPERTY, WHEREAS NO SUCH PROPERTY WAS EVER PURCHAS ED BY THE ASSESSEE. 9. ON THESE FACTS THE CIT(A) DELETED THE ADDITION M ADE BY THE AO. HOWEVER, THE CIT(A) EXCEEDED HIS JURISDICTION IN MA KING THE ENHANCEMENT ON AN ISSUE WHICH WAS NEVER THERE IN TH E REASONS RECORDED FOR REOPENING THE ASSESSMENT. 10. WE ARE OF THE CONSIDERED VIEW THAT THE ENHANCEM ENT DONE BY THE CIT(A) IS BAD IN LAW AND THE REASSESSMENT NOTICE IS SUED BY THE AO, GHAZIABAD IS ALSO BAD IN LAW. WE, ACCORDINGLY, SET ASIDE THE ASSESSMENT AND QUASH THE SAME. SINCE THE FOUNDATION HAS BEEN REMOVED THE ORDER OF THE FIRST APPELLATE AUTHORITY BECOMES NON EST . HARENDRA SINGH VS. ITO/ I.T.A.NO.1318/DEL/2018/A.Y. 2009-10 5 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/11/2020. SD/- SD/- (MADHUMITA ROY) (N.K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27 TH NOVEMBER, 2020 * KAVITA ARORA, SR. P.S. COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A) / ITAT (DR)/GUARD FILE OF ITAT. BY ORDER ASSISTANT REGISTRAR, ITAT: DELHI BENCHES-DELHI