ITO, Kolar V. Smt. Jayalakshmma,

ITA 133/BANG/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95273 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 25-08-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 24-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUNIL KUMAR AGARWALA J
• Keywords: Capital asset; Additional evidence
• Section: 142(1); 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER A ND SHRI VIJAY PAL RAO, JUDICIAL MEMBER 1. ITA NO S . 132 / BANG/20 14 (ASSESSMENT YEAR S : 2005 - 06 ) 2. ITA NO S . 133/ BANG/20 14 (ASSESSMENT YEAR S : 2005 - 06 ) INCOME - TAX OFFICER, WARD - 2, KOLAR. VS. APPELLANT 1. SMT. NAGAMMA, CHINNAKOTE, BANGARPET TALUK, KOLAR DIST. PAN: AHDPN5179P 2. SMT.JAYALAKSHMMA, CHINNAKOTE, BANGARPET TALUK, K OLAR DIST. PAN: AJZPJ6211A RESPONDENT APPELLANT BY: SHRI SUNIL KUMAR AGARWALA, JCIT(DR) RESPONDENT S BY: SHRI ZAIN AHMED KHAN, CA DATE OF HEARING : 25/08/2015 DATE OF PRONOUNCEMENT: 30 / 0 9 /2015. O R D E R PER VIJAY PAL RAO , JM : T HESE TWO APPEALS BY THE REVENUE ARE DIRECTED AGAINST T WO SEPARATE ORDERS OF THE CIT(A) , BOTH DATED 22/10/2013 IN CASE OF TWO RELATED ASSESSEES FOR THE ASSESSMENT YEAR 2005 - 06 . ITA NO S . 132 & 133 /BANG/201 4 SMT. NAGAMMA. & SMT.JAYALAKSHMAMMA PAGE 2 OF 5 2. THE REVENUE HAS RAISED THE COMMON GROUNDS IN THESE APPEALS AS UNDE R : I. THE CIT(A) HAS ERRED IN ADMITTING FRESH EVIDENCES IN THE FORM OF SALE DEED AND OTHER SUBMISSIONS WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSING OFFICER AS PER RULE 46A. II. THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT THE AO WAS LEFT WITH NO OPTION, BUT TO CONCLUDE THE ASSESSMENT U/S 144 OF THE INCOME TAX ACT, DUE TO NON - COMPLIANCE FROM THE ASSESSEE. III. THE CIT(A) HAS ERRED IN HOLDING THAT THE LAND IN QUESTION WAS NOT A CAPITAL ASSET AS PER SEC.2(14)(III)(A) OR (B) OF THE INCOME - TAX ACT. IV. THE APPELLA NT CRAVES FOR PERMISSION TO ADD OR DELETE THE GROUNDS OF APPEAL AT THE TIME OF HEARING THE CASE. 3. THERE WAS NO RETURN OF INCOME FILED BY THESE ASSESSEES. THE AO ISSUED A NOTICE U/S 142(1) ON 13/11/2007 WHICH WAS SERVED ON THE ASSESSEE. HOWEVER , THERE WAS NO RESPONSE FROM THE ASSESSEE. ACCORDINGLY, THE AO FRAMED ASSESSMENT U/S 144 BRING THE ENTIRE SALE CONSIDERATION OF THE LAND OF RS.43,12,050/ - TO CAPITAL GAIN TAX . 4. BEFORE THE CIT(A), THE ASSESSEE CONTENDED THAT THE ASSESSEE HAD 1/ 3 RD SHARE EACH IN THE AGRICULTURAL INCOME IN QUESTION WHICH WAS SOLD FOR A CONSIDERATION OF RS.43,12,500/ - AND THEREFORE, THE SHARE OF EACH OF THE ASSESSEES IS RS.14,37,500/ - . THE ASSESSEE FURTHER CONTENDED THAT THIS IS AN ANCESTRAL AGRICULTURAL LAND AND, ITA NO S . 132 & 133 /BANG/201 4 SMT. NAGAMMA. & SMT.JAYALAKSHMAMMA PAGE 3 OF 5 THEREFORE, DOES NOT FALL UNDER THE DEFINITION OF THE CAPITAL ASSET AS PER SEC.2(14)(III)(A) AND (B) OF THE IT ACT. THE ASSESSEE HAS ALSO CONTENDED BEFORE THE CIT(A) THAT THE SHARE OF THE ASSESSEE BEING 1/3 RD HAS BEEN WORKED OUT AS PER THE ORDER OF THE HON BLE HIGH COURT, AGREEMENT TO SELL AND SALE DEED, HOWEVER, WHICH COUL D NOT BE PRODUCED BEFORE THE AO. T HE CIT(A) ALLOWED THE APPEALS OF THE ASSESSEES BY HOLDING THAT THE LAND IN QUESTION DOES NOT FALL UNDER THE DEFINITION OF ASSET AS PER THE PROVISION S OF SEC.2(14)(III) OF THE ACT. 5. BEFORE US, T HE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEES DID NOT APPEAR BEFORE THE AO NOR FILED ANY DOCUMENT OR AN EXPLANATION WAS FILED BEFORE THE AO IN SUPPORT OF THE CLAIM THAT THE LAND IN QUESTION DOES NOT FALL UNDER THE DEFINITION OF CAPITAL ASSET AS PER THE PROVISIONS OF SEC.2(14)(III). HOWEVER, THE ASSESSEE FILED ADDITIONAL EVIDENCE FOR THE FIRST TIME BEFORE THE CIT(A) WHICH WAS CONSIDERED BY THE CIT(A) WHILE DECIDING THE ISSUE WI THOUT GIVING AN OPPORTUNITY TO THE AO TO REBUT OR COUNTER THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. 6. ON THE OTHER HAND, THE LEARNED AR OF THE ASSESSEE HAS SUPPORTED THE ORDERS OF THE CIT(A) AND SUBMITTED THAT THE DOCUMENTS FILED BEFORE TH E CIT(A) CANNOT BE DISPUTED BECAUSE THESE DOCUMENTS ARE IN THE PUBLIC DOMAIN BEING THE HIGH COURT ORDER, AGREEMENT TO SELL AND SALE DEED. ITA NO S . 132 & 133 /BANG/201 4 SMT. NAGAMMA. & SMT.JAYALAKSHMAMMA PAGE 4 OF 5 7. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD, WE FIND THAT THE ASSE SSEES BEFORE US DID NOT APPEAR BEFORE THE AO AND EVEN DID NOT FILE ANY RETURN OF INCOME. THE ASSESSMENTS WERE COMPLETED U/S 144 FOR WANT OF A PPEARANCE AS WELL AS FOR NON - REPRESENTATION ON BEHALF OF THE ASSESSEES. IT IS CLEAR THAT BEFORE THE CIT(A), ASSE SSEE PRODUCED THE ADDITIONAL EVIDENCE IN THE SHAPE OF AGREEMENT TO SELL, SALE DEED AND HIGH COURT ORDER WHEREBY THE SHARES OF THE ASSESSEES WERE DETERMINED. IT WAS FURTHER SUBMITTED BY THE ASSESSEE THAT THE LAND IN QUESTION IS AN AGRICULTURAL LAND AND DO ES NOT FALL UNDER THE DEFINITION OF CAPITAL ASSET. THE CIT(A) ACCEPTED THE CLAIM OF THE ASSESSEE BEING LAND IN QUESTION DOES NOT FALL UNDER THE DEFINITION OF CAPITAL ASSET AS PER THE PROVISIONS OF SEC.2(14))(III). THUS THE DOCUMENTS WHICH WERE FILED BEFO RE THE CIT(A) WERE NOT PUT TO THE AO FOR EXAMINATION AND VERIFICATION AS WELL AS FOR COMMENTS OF THE AO. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTERESTS OF JUSTICE, WE ARE OF THE VIEW THAT THE ADDITIONAL EVIDENCE WHICH WAS PRODUCED BEFORE THE CIT(A) WITHOUT GIVING OPPORTUNITY TO THE AO IS REQUIRED TO BE VERIFIED AND EXAMINED AT THE LEVEL OF THE AO ON THE POINT THAT THE ASSESSEES ARE HAVING ONLY 1/3 RD SHARE IN THE SAID LAND AND FURTHER THAT THE LAND IN QUESTION IS AN AGRICULTURAL LAND AND DO ES NOT FALL UNDER THE DEFINITION OF CAPITAL ASSET AS PER THE PROVISIONS OF SEC.2(14)(III) OF THE ACT. ACCORDINGLY, WE RESTORE THE MATTER IN BOTH THE APPEALS TO THE RECORD OF THE AO FOR DECIDING THE ISSUE DE NOVO AFTER CONSIDERING AND EXAMINING THE RELEVAN T RECORD FILED BY THE ITA NO S . 132 & 133 /BANG/201 4 SMT. NAGAMMA. & SMT.JAYALAKSHMAMMA PAGE 5 OF 5 ASSESSEE BEFORE THE CIT(A). NEEDLESS TO SAY THE ASSESSEE SHALL BE GIVEN A PROPER OPPORTUNITY OF HEARING. 8. IN THE RESULT, THE APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRON OUNCED IN THE OPEN COURT ON 30 TH SE PTEMBER , 201 5 . S D/ - S D/ - ( ABRAHAM P GEORGE ) ( VIJAY PAL RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER EKSRINIVASULU COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE T RIBUNAL BANGALORE