Income-tax Officer, Ward - 5, Nanded V. Krishna Gangadhar Kshirsagar, L/h. of Smt. Sumanbai Gangadhar Kshirsagar, Nanded

ITA 1472/PUN/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7627 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 09-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Additional evidence; Tax effect; Capital Gains
• Section: 142(1); 133(6); 147; 148; 132; 144

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.1472/PUN/2017 / ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER, WARD-5, NANDED. . / APPELLANT V/S SHRI KRISHNA GANGADHAR KASHIRSAGAR, L/H OF SMT. SUMANBAI GANGADHAR KSHIRSAGAR, PLOT NO.1, MALEGAON ROAD, MUNJAJI NAGAR, NANDED. PAN: APJPK8604E. . / RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI SUDHENDU DAS. PER ANIL CHATURVEDI, AM : THIS APPEAL FILED BY THE REVENUE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) 1, AURANGABAD DATED 28.03.2017 FOR A.Y. 2009-10. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- IN THIS CASE A SEARCH AND SEIZURE ACTION U/S 132 OF TH E ACT WAS CARRIED OUT IN THE CASE OF SMT. VANDANA GANAPATI MORGE (I.E., SHARDA GROUP OF CASES), WHEREIN IT WAS FOUND THAT ASSESSEE I.E., LA TE SMT. SUMANBAI GANGADHAR KSHIRASAGAR HAD SOLD LAND ADMEASURIN G 1.90R / DATE OF HEARING : 20.08.2019 / DATE OF PRONOUNCEMENT: 16.10.2019 2 AT TARODA, NANDED ON 20.02.2009 FOR A CONSIDERATION OF RS.3 0.63 LAKHS AND FURTHER FOUND THAT SMT. VANDANA GANAPATI MORGE PAID ON MONEY AMOUNTING TO RS.54,75,810/- TO THE ASSESSEE. ON VERIFICATION, IT IS NOTICED THAT ASSESSEE DID NOT FILE ANY RETURN OF INCOM E FOR A.Y. 2009-10. ACCORDINGLY NOTICE U/S 148 OF THE ACT WAS ISS UED AND SERVED ON ASSESSEE. THEREAFTER, NOTICES U/S 142(1) AND U /S 133(6) WERE ALSO ISSUED. CONSEQUENTLY, AO COMPLETED THE ASSESS MENT U/S 144 R.W.S. 147 OF THE ACT ON 14.03.2016 ASSESSING THE TOT AL INCOME AT RS.85,38,810/- BY MAKING ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAINS. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DATED 28.03.2017 (IN APPEAL NO.ABD/C(T(A)-1/135/2016-17) ALLOWED THE APPEAL OF ASSESS EE. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW IN AP PEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A) ERRED IN ACCEPTING THE FACT THAT AN OMISSION TO SERVE OR ANY DEFECT IN THE SERVICE OF NOTICES PROVIDED BY PROCEDURAL PROVISION S DOES NOT EFFACE OR ERASE THE LIABILITY TO PAY TAX WHERE SUCH LIABILITY IS CREATED BY DISTINCT SUBSTANTIVE PROVISIONS [CHARGING SECTIONS}. 2. ON THE FACTS AND IN THE .CIRCUMSTANCES OF THE CA SE, THE CIT(A) ERRED IN NOT CONSIDERING THE FACT THAT THE LACK FOR NOTICE D OES NOT AMOUNT TO THE REVENUE AUTHORITY HAVING HAD NO JURISDICTION TO ASS ESS. AN ASSESSMENT PROCEEDING DOES NOT CEASE TO BE A PROCEEDING UNDER THE ACT MERELY BY REASON OF WANT OF NOTICE. IT WILL BE A PROCEEDING L IABLE TO BE CHALLENGED AND CORRECTED. 3. THE ORDER OF THE CIT(A) BE VACATED AND THAT OF THE A.O. BE RESTORED. 4. THE APPELLANT REQUESTS FOR ADMISSION OF AN ADDIT IONAL GROUND OF APPEAL OR ADDITIONAL EVIDENCES IF REQUIRED TO SUPPO RT HIS CASE. 3. ALL THE GROUNDS BEING INTER-CONNECTED ARE CONSIDERED TOGETHE R. 4. ON THE DATE OF HEARING, NONE APPEARED ON BEHALF OF TH E ASSESSEE NOR ANY ADJOURNMENT APPLICATION WAS FILED THOUGH THE HEAR ING WAS 3 ADJOURNED TO THE PRESENT DATE AT THE REQUEST OF LD.A.R . WE THEREFORE PROCEED TO DECIDE THE PRESENT APPEAL BASED ON THE MAT ERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTA TIVE. 5. BEFORE US, LD.D.R., AT THE OUTSET, FAIRLY ADMITTED THAT TH E TAX EFFECT ON THE GROUNDS RAISED BY REVENUE IS BELOW THE LIMIT PRESCRIBED BY THE RECENT CBDT CIRCULAR DT.11.07.2018 AND THEREFORE T HE APPEAL BE DECIDED ACCORDINGLY. 6. WE HAVE HEARD THE LD.D.R. AND PERUSED THE MATERIAL AVA ILABLE ON RECORD. ON PERUSING THE GROUNDS OF APPEAL RAISED BY THE REVENUE, WE FIND THAT REVENUE IS AGGRIEVED BY THE ORDER OF LD. CIT(A ) IN RESPECT OF THE RELIEF GIVEN BY HIM. AS PER THE RECENT ANNOUNCEME NT OF CENTRAL BOARD OF DIRECT TAXES (CBDT) DATED 11.07.2018 (CIRCULAR NO . 3 OF 2018), NO DEPARTMENT APPEALS ARE TO BE FILED AGAINST RELIEF G IVEN BY LD. CIT(A) BEFORE THE INCOME TAX APPELLATE TRIBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST, EXCEEDS RS.20 LAKHS AND IT FURTHER STA TES THAT THE INSTRUCTIONS WILL APPLY RETROSPECTIVELY TO THE PENDING APPEALS ALSO . 7. IN THE PRESENT CASE, SINCE IT IS AN UNDISPUTED FACT T HAT ON THE ADDITIONS WHICH ARE IN DISPUTE, THE TAX EFFECT IS LESS THAN R S.20 LAKHS AND IN THE ABSENCE OF ANY MATERIAL PLACED ON RECORD BY T HE REVENUE TO DEMONSTRATE THAT THE ISSUE IN THE PRESENT APPEAL IS COV ERED BY EXCEPTIONS PROVIDED IN PARA 10 OF THE AFORESAID CBDT CIRCU LAR, WE ARE OF THE VIEW THAT THE MONETARY LIMIT PRESCRIBED BY THE INST RUCTIONS OF THE AFORESAID CBDT CIRCULAR WOULD BE APPLICABLE TO THE PRES ENT APPEAL OF THE DEPARTMENT. WE THEREFORE HOLD THE PRESENT APPEA L OF REVENUE TO BE NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT AND AC CORDINGLY 4 DISMISS THE APPEAL OF REVENUE WITHOUT EXPRESSING ANY OPIN ION ON MERITS OF THE CASE. HOWEVER, IN CASE THERE IS ANY ERROR IN THE COMPUTATION OF THE TAX EFFECT INVOLVED OR IF FOR ANY REASON, THE AFORESAID CBDT CIRCULAR IS NOT APPLICABLE, IT WOULD BE OPEN TO THE REVENUE TO SEEK REVIVAL OF THE APPEAL. THUS, THE GROUNDS OF THE REVENUE ARE DISMISSED. 8. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED ON 16 TH DAY OF OCTOBER, 2019. ( SD/- SD/- CHOWLA ) ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER ! / ACCOUNTANT MEMBER PUNE; DATED : 16 TH OCTOBER, 2019. YAMINI '#$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-1, AURANGABAD. PR. CIT-1, AURANGABAD. !'##$%, ' $% , / DR, ITAT, B PUNE; ')*+/ GUARD FILE. / BY ORDER // TRUE COPY // , -.#/$0 / SR. PRIVATE SECRETARY ' $% , / ITAT, PUNE.