Sri Bettaiah Shivalingaiah , Bangalore V. The Income TAx Officer Ward-3(2)(1), Bangalore

ITA 1353/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9902 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 27-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KABILA H
• Assessee Lawyers: S V RAVISHANKAR
• Keywords: Principle of natural justice; Cost of acquisition
• Section: 143(3); 2(14); 54; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 1353 / BANG/201 8 ASSESSMENT YEAR : 2 0 1 3 - 1 4 SHRI BETTAIAH SHIVALINGAIAH, NO. 92/19, 1 ST MAIN, 1 ST BLOCK, NAGARABHAVI 2 ND STAGE, BANGALORE 560 072. PAN: AEUPS8459M VS. THE INCOME TAX OFFICER, WARD 3 (2) (1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI S.V. RAVI S HANKAR, ADVOCATE RESPONDENT BY : SMT. KABILA H, JCIT (DR) DATE OF HEARING : 27 .0 3 .2019 DATE OF PRONOUNCEMENT : 29 .0 3 .2019 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME IS DIRECTED AGAINST THE ORDER PASSED BY LD. PR.CIT, BANGALORE 3, BANGALORE ON 27.02.2018 U/S. 263 FOR ASSESSMENT YEAR 2013-14. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE IMPUGNED ORDER OF THE LEARNED PR. COMMISSIONER OF INCOME TAX, BENGALURU-3 PASSED UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 IS OPPOSED TO LAW, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 2. THE LEARNED PR. COMMISSIONER OF INCOME-TAX HAS GROSSLY ERRED IN REVISING THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER WITHOUT APPRECIATING THAT THERE IS NO ERROR, MUCH LESS PREJUDICIAL TO THE INTERESTS OF THE REVENUE TO WARRANT A REVISION AND THEREFORE THE ORDER PASSED BY THE LEARNED PR. CIT IS ULTRA VIRES TO THE SCOPE OF SECTION 263 AND REQUIRES TO BE CANCELLED UNDER THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. THE DIRECTION TO MAKE FRESH ASSESSMENT AMOUNTS TO ORDERING FOR MAKING FISHING AND ROVING ENQUIRES WITHOUT ANY MATERIAL IN SUPPORT THEREOF AND CONSEQUENTLY THE IMPUGNED ORDER PASSED IS BAD IN LAW IS LIABLE TO BE CANCELLED. 3. THE LEARNED PR. COMMISSIONER OF INCOME-TAX FAILED TO APPRECIATE THAT THE ASSESSING OFFICER BEFORE COMPLETING ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT ON 30.03.2016 HAD MADE DETAILED ENQUIRIES ITA NO. 1353/BANG/2018 PAGE 2 OF 4 AND HENCE ON THE VERY SAME ISSUE NO ACTION CAN BE TAKEN UNDER SECTION 263 OF THE ACT AS THE ACTION OF THE ASSESSING OFFICER IS ACCORDANCE WITH LAW. 4. THE LEARNED PR. COMMISSIONER OF INCOME-TAX FAILED TO APPRECIATE THAT THE LEARNED ASSESSING OFFICER HAD INDEED VERIFIED THE DETAILS AND AFTER BEING FULLY SATISFIED BY THE SAID EXPLANATION AND AFTER APPLICATION OF MIND ACCEPTED THE INCOME FILED BY THE APPELLANT IN RESPECT OF ISSUE OF COMPENSATION RECEIVED TOWARDS ACQUISITION OF AGRICULTURAL LAND BY THE BANGALORE DEVELOPMENT AUTHORITY ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE LEARNED PR. COMMISSIONER OF INCOME TAX IS NOT JUSTIFIED IN EXERCISING REVISIONARY POWERS UNDER SECTION 263 OF THE ACT AS THE ENTIRE PROCEEDING IS WITHOUT JURISDICTION AND NOT IN ACCORDANCE WITH LAW ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THE LEARNED PR. COMMISSIONER OF INCOME TAX IS ALSO NOT JUSTIFIED IN LAW IN SETTING ASIDE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT BY HOLDING THAT THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. THE LEARNED PR. COMMISSIONER OF INCOME TAX ERRED IN HOLDING THAT THE ASSESSING OFFICER FAILED TO VERIFY INTO THE FACTS BEFORE MAKING THE ASSESSMENT WHEN THERE WAS ACTUAL ENQUIRY BY THE LEARNED ASSESSING OFFICER ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. THE LEARNED PR. COMMISSIONER OF INCOME TAX OUGHT TO HAVE CONSIDERED THAT THE LEARNED ASSESSING OFFICER HAS ALLOWED THE CLAIM OF THE APPELLANT THAT THE TRANSFER OF AGRICULTURAL LAND IS NOT LIABLE TO TAX IN VIEW OF PROVISIONS OF SECTION 2(14) (III) OF THE ACT AND FURTHER THE COMPENSATION RECEIVED TOWARDS ACQUISITION OF AGRICULTURAL LAND IS EXEMPTED FROM TAX UNDER SECTION 10(37) OF THE ACT HENCE IT IS NOT A CASE OF NON-APPLICATION OF MIND ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 9. THE LEARNED PR. COMMISSIONER OF INCOME TAX ERRED IN NOT CONSIDERING THAT MERELY BECAUSE THE ASSESSMENT ORDER DOES NOT ELABORATELY DISCUSS ON THE ISSUE WOULD NOT MEAN THAT THERE WAS LACK OF ENQUIRY ON THE PART OF THE ASSESSING OFFICER SO AS TO LEAD TO A CONCLUSION THAT THE ASSESSMENT ORDER IS ERRONEOUS ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 10. THE ORDER UNDER SECTION 263 OF THE ACT PASSED BY THE LEARNED PR. COMMISSIONER OF INCOME-TAX IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE IN AS MUCH AS NOT PROVIDING THE LETTER RECEIVED FROM THE TAHSILDAR FOR REBUTTAL OF THE APPELLANT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 11. THE LEARNED PR. COMMISSIONER OF INCOME-TAX HAS NOT PROVIDED THE APPELLANT SUFFICIENT OPPORTUNITY OF HEARING BEFORE PASSING THE ORDER UNDER SECTION 263 OF THE ACT AND CONSEQUENTLY THE ORDER PASSED IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND IT REQUIRES TO BE QUASHED ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 12. THE LEARNED PR. COMMISSIONER OF INCOME-TAX FAILED TO GIVE FINDING IN THE ORDER PASSED UNDER SECTION 263 OF THE ACT IN RESPECT OF THE CLAIM OF THE APPELLANT THAT THE SALE OF AGRICULTURAL LAND IS EXEMPTED FROM TAX ITA NO. 1353/BANG/2018 PAGE 3 OF 4 IN VIEW OF PROVISIONS OF SECTION 2(14) (III) WHICH WAS CLAIMED BY THE APPELLANT IN THE RETURN OF INCOME FILED ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 13. THE LEARNED PR. COMMISSIONER OF INCOME-TAX FAILED TO APPRECIATE THAT THE COMPENSATION RECEIVED A SUM OF RS.52,00,000/- FROM BANGALORE DEVELOPMENT AUTHORITY TOWARDS ACQUISITION OF AGRICULTURAL LAND BY THE APPELLANT IS NOT LIABLE TO TAX AS PER PROVISIONS OF SECTION 10(37) OF THE ACT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 14. THE LEARNED PR. COMMISSIONER FAILED TO APPRECIATE THAT THE APPELLANT CARRIED OUT THE AGRICULTURAL ACTIVITIES IN THE SAID LAND AND CONSEQUENTLY FULFILLED ALL THE CONDITIONS PRESCRIBED UNDER SECTION 10(37) OF THE ACT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 15. THE LEARNED PR. COMMISSIONER OF INCOME-TAX FAILED TO APPRECIATE THAT THE MAIN CLAIM OF THE APPELLANT IS THAT THE SALE OF AGRICULTURAL LAND IS NOT LIABLE TO BE TAXED IN VIEW OF PROVISIONS OF SECTION 2(14)(III) OF THE ACT AND FURTHER IN VIEW OF PROVISIONS OF SECTION 10(37) OF THE ACT THE COMPENSATION RECEIVED FROM BANGALORE DEVELOPMENT AUTHORITY FOR ACQUISITION OF THE SAID AGRICULTURAL LAND IS NOT LIABLE FOR TAX AND FURTHER THE APPELLANT IN THE ALTERNATIVE HAS SHOWN THE COMPUTATION BY CONSIDERING THE INDEXED COST OF ACQUISITION AS WELL INVESTMENT MADE OUT OF PROCEEDS OF AGRICULTURAL LAND TO SAY NIL INCOME ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 16. THE LEARNED PR. COMMISSIONER OF INCOME-TAX FAILED TO APPRECIATE THAT THE APPELLANT HAS NOT CLAIMED DEDUCTION UNDER SECTION 54 OF THE ACT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 17. THE LEARNED PR. COMMISSIONER OF INCOME-TAX ERRED IN HOLDING THAT THE CLAIM OF ASSESSEE THAT THE LAND IS AGRICULTURAL LAND IS INCORRECT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 18. THE APPELLANT CRAVES FOR LEAVE OF THE HON'BLE TRIBUNAL, TO ADD, ALTER, DELETE, AMEND OR SUBSTITUTE ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL AS MAY BE NECESSARY AT THE TIME OF HEARING. 19. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF APPEAL, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED FOR THE ADVANCEMENT OF SUBSTANTIAL CAUSE OF JUSTICE AND EQUITY. 3. THE ASSESSEE HAS RAISED AS MANY AS 19 GROUNDS OF APPEAL BUT THE ONLY GRIEVANCE OF THE ASSESSEE IS THIS THAT THE ORDER OF PR. CIT U/S. 263 IS NOT JUSTIFIED. 4. IN COURSE OF HEARING BEFORE US, THE LD. AR OF ASSESSEE SUBMITTED A COPY OF CONSEQUENTIAL ORDER PASSED BY THE AO ON 19.12.2018 U/S. 143(3) R.W.S. 263 ITA NO. 1353/BANG/2018 PAGE 4 OF 4 OF IT ACT, 1961 AND HE SUBMITTED THAT AS PER THIS ORDER, THE AO HAS MADE NO ADDITION CONSEQUENT TO THE ORDER PASSED BY LD. PR. CIT U/S. 263 AND INCOME ORIGINALLY COMPUTED BY THE AO AS PER THE ORDER PASSED BY THE AO U/S. 143(3) DATED 30.03.2016 AT RS. 16,96,747/- WAS REPEATED. HE SUBMITTED THAT IN VIEW OF THESE FACTS, THE PRESENT APPEAL OF ASSESSEE HAS BECOME INFRUCTUOUS. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF PR. CIT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN VIEW OF THIS FACT THAT IN THE CONSEQUENTIAL ORDER PASSED BY THE AO, HE HAS MADE NO ADDITION IN CONSEQUENCE TO THE DIRECTIONS OF PR. CIT AS PER THE IMPUGNED ORDER PASSED BY HIM U/S. 263, THIS APPEAL OF ASSESSEE HAS BECOME INFRUCTUOUS AND HENCE, DISMISSED ACCORDINGLY. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 29 TH MARCH, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.