Kuldip Singh, Jagadhri V. ITO, W-3, Yamunanagar

ITA 1593/CHANDI/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8963 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 20-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C CHANDRAKANTA
• Keywords: Recovery proceedings; Cost of acquisition; Tax effect
• Section: 143(3); 54B; 54F

Judgement Text

, ,A, IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A CHANDIGARH BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER, AND SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO. 1593/CHD/2019 / ASSESSMENT YEAR: 2007-08 SHRI KULDEEP SINGH S/O SHRI RAMESHWAR DASS, VILLAGE- JARODA, TEHSIL- JAGADHRI, YAMUNA NAGAR INCOME TAX OFFICER, WARD-3, YAMUNA NAGAR ./PAN NO : DIFPK 9448J /APPELLANT /RESPONDENT /ASSESSEE BY : SHRI ROHIT GOEL, CA ! / REVENUE BY : SMT. C. CHANDRAKANTA, CIT ' #$ /DATE OF HEARING : 02.08.2021 %&'($ /DATE OF PRONOUNCEMENT : 04.08.2021 /ORDER PER ANNAPURNA GUPTA, A.M. : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APP EALS), PANCHKULA [IN SHORT REFERRED TO AS CIT(A)] DATED 14-09-2015 U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT,196 (HEREIN AFTER REFERRED TO AS ACT). ITA NO. 1593/CHD/2019 KULDEEP SINGH V. ITO, YAMUNA NAGAR 2 THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER: 1. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FACT S IN CONFIRMING AN ADDITION OF RS. 3,68,96,060/- MADE BY AO AS LONG TERM CAPITAL GAIN ON SALE OF AGRICULTURE LAND MEASURING 109 KANA L 7.5 MARLA FOR A CONSIDERATION OF RS.3,75,97,656/- BY HOLDING THE TR ANSFER OF LAND IN THE YEAR UNDER CONSIDERATION DESPITE THE FACT THAT ONLY 10% OF THE SALE CONSIDERATION WAS RECEIVED DURING THE YEAR AND BALANCE 90% CONSIDERATION WAS RECEIVED ON 14.08.2008 I.E. AY 20 09-10. (TAX EFFECT=RS.2,22,35,320/-) 2. THAT LEARNED CIT(APPEALS) HAS ERRED IN LAW AND FACT S IN NOT ALLOWING THE BENEFIT OF INVESTMENTS IN NEW AGRICULT URE LAND AMOUNTING RS. 2,63,62,932/- U/S 54B & CONSTRUCTION OF HOUSE AMOUNTING RS. 60,00,000/- U/S 54F INVESTED SUBSEQUE NT TO THE RECEIPT OF MONEY AGAINST SALE OF AGRICULTURE LAND. 3. THAT LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FAC T IN ADOPTING COST OF ACQUISITION AS ON 01.04.1981 WITHOUT CONSID ERING THE LOCATION/FACTS OF LAND SOLD. 4. THAT LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FAC TS IN CONFIRMING THE AO ACTION BY NOT ALLOWING THE BENEFIT OF IMPROV EMENT COST OF LAND. 5. THAT AUTHORITIES BELOW HAS ERRED IN LAW AND FACTS I N REOPENING THE ASSESSMENT U/S 148. 6. THAT APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR TO SUBSTITUTE THE ABOVE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIM E OF HEARING OF CASE. ITA NO. 1593/CHD/2019 KULDEEP SINGH V. ITO, YAMUNA NAGAR 3 2. LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE SOLITARY ISSUE INVOLVED RELATED TO TAXABILITY OF CAPITAL GAI N ON THE LAND SOLD BY THE ASSESSEE, WHICH THE ASSESSEE CLAIMED WA S TAXABLE IN THE YEAR WHEN THE FINAL PAYMENT WAS RECEIVED ON TH E ENCASHMENT OF UNDATED CHEQUES ISSUED BY THE PURCHASER , WHILE THE CONTENTION OF THE REVENUE WAS THAT THE TRANSFER WAS COMPLETED ON THE DATE OF REGISTRATION OF THE SALE DEED ITSELF WHICH TOOK PLA CE IN THE IMPUGNED YEAR AND HENCE THE CAPITAL GAIN WAS TAXABL E IN THE IMPUGNED YEAR. AT THE OUTSET, ITSELF LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ENTIRE FACTS AND CIRCUMSTANCES IN THE PRESENT APPEA L WERE IDENTICAL TO THAT IN THE CASE OF ONE MR. SHEO RAM W HICH STOOD ADJUDICATED BY THE ITAT IN ITA NO. 364/CHD/2017 VID E ORDER DATED 09.04.2018. LD. COUNSEL FOR THE ASSESSEE CONT ENDED THAT SHRI SHEO RAM WAS OWNER OF HALF OF A PIECE OF LAND WHICH THE ASSESSEE AND SHRI SHEO RAM HAD SOLD TOGETHER VIDE A COMMON SALE DEED. THIS FACT, HE POINTED OUT, FINDS MENTION IN T HE FINDINGS OF THE LD. CIT(A) AT PARA 6 OF HIS ORDER. DRAWING OUR ATTENTION TO THE SAME HE POINTED OUT THE FINDINGS OF THE LD. CIT (A) TO THE EFFECT THAT: ITA NO. 1593/CHD/2019 KULDEEP SINGH V. ITO, YAMUNA NAGAR 4 THE SALE DEED CLEARLY SHOWS THE NAME OF THE APPELLA NT ALONG WITH SHRI SHEO RAM AS SELLER OF LAND. IT ALSO SHOWS THAT APPELLANT ALONG WITH SHRI SHEO RAM HAVE HALF OF THE SHARE EAC H IN THE LAND WHICH WAS SOLD BY HIM . LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT SHEO RA M BEING OWNER OF HALF PORTION OF THE LAND, THE ISSUE IN HIS CASE WAS IDENTICAL AND STOOD ADJUDICATED BY THE ITAT VIDE IT S ORDER ABOVE. LD. COUNSEL FOR THE ASSESSEE FURTHER POINTED OUT T HAT THERE WAS DELAY IN THE FILING OF THE PRESENT APPEAL OF 1491 D AYS, AND THE DELAY WAS IN IDENTICAL FACTS AND CIRCUMSTANCES AS I N THE CASE OF SHEO RAM WHEREIN THE ASSESSEE HAD NOT RECEIVED THE ORIGINAL ORDER OF THE CIT(A) BUT ONLY A COPY OF THE SAME THA T TOO ON HIS WRITTEN REQUEST TO THE CIT(A) WHEN TAX RECOVERY PRO CEEDINGS WERE INITIATED ON HIM BY ISSUE OF NOTICE AND HE HAD RECE IVED A CALL FOR DEPOSITING THE OUTSTANDING DEMAND. THAT BEING AN IL LITERATE AGRICULTURIST HE WAS UNAWARE OF THE INTRICACIES OF THE TAX LAWS AND HAD ENTRUSTED HIS CASE TO A COUNSEL AND HAD NOT REC EIVED ANY ORDER PASSED BY THE CIT(A) AND IT WAS ONLY WHEN THE TAX R ECOVERY PROCEEDINGS WERE INITIATED THAT HE SOUGHT A COPY OF THE SAME FROM THE LD. CIT(A) AND PROMPTLY FILED AN APPEAL TO THE ITAT, RESULTING IN THE AFOREMENTIONED DELAY. HE STATED TH AT IN THE CASE ITA NO. 1593/CHD/2019 KULDEEP SINGH V. ITO, YAMUNA NAGAR 5 OF SHEO RAM ALSO THE DELAY WAS FOR THE SAME /IDENTI CAL REASON, WHICH HAD BEEN CONDONED BY THE ITAT. HE THEREFORE STATED THAT THE ISSUES STOOD CLEARLY COVERED IN ALL RESPECTS BY THE ORDER OF THE ITAT IN THE CASE OF SH EO RAM (SUPRA). LD. DR FAIRLY AGREED TO THE SAME AND POINTED OUT TH AT IN THE CASE OF SHEO RAM, THE ITAT HAD RESTORED THE MATTER TO TH E ASSESSING OFFICER. 3. WE HAVE HEARD BOTH THE PARTIES. WE HAVE ALSO GONE THROUGH THE ORDER OF THE ITAT IN THE CASE OF SHEO RAM (SUPR A). ADMITTEDLY THE ENTIRE FACTS IN THE PRESENT APPEAL A RE IDENTICAL TO THAT IN THE CASE OF SHEO RAM. SO MUCH SO THAT EVEN THE DELAY IN FILING THE PRESENT APPEAL IS IN IDENTICAL FACTS AND CIRCUMSTANCES AS IN THE CASE OF SHEO RAM (SUPRA). THE ITAT IN THE SA ID CASE HAD, WE HAVE NOTED, CONDONED THE DELAY, NOTING THE FACT THAT THE ASSESSEE WAS AN ILLITERATE AGRICULTURIST, IN ALL PR OBABILITY UNAWARE OF THE INTRICACIES OF TAX LAWS AND NOTING THE FACTS STATED ON OATH BY THE ASSESSEE THAT HE HAD ENTRUSTED HIS APPEAL TO A COUNSEL AND HAD NOT RECEIVED ANY ORDER OF THE CIT(A), COPY OF W HICH HE HAD RECEIVED ON AN APPLICATION FILED ONLY WHEN RECOVERY PROCEEDINGS WERE INITIATED ON HIM BY THE DEPARTMENT. THE ITAT A LSO TOOK NOTE ITA NO. 1593/CHD/2019 KULDEEP SINGH V. ITO, YAMUNA NAGAR 6 OF THE FACT THAT THE SERVICE OF THE ORDER COULD NOT BE ESTABLISHED SINCE ON AN RTI APPLICATION FILED BY THE ASSESSEE TO THE POSTAL DEPARTMENT REGARDING SERVICE OF THE ORDER, THE REPL Y RECEIVED STATED THAT BEING AN OLD ISSUE RECORDS WERE NOT AVA ILABLE. CONSIDERING ALL THE AFORESTATED FACTS THE ITAT HAD CONDONED THE DELAY. SINCE NO DISTINGUISHING FACTS HAVE BEEN BROU GHT TO OUR NOTICE, THE ORDER IN THE CASE OF SHEO RAM WILL APPL Y FOLLOWING WHICH THE DELAY IN THE PRESENT CASE IS ALSO CONDONE D. FURTHER ON MERITS ALSO, THE DECISION OF THE ITAT I N THE CASE OF SHEO RAM IS APPLICABLE, SINCE THE LD.DR HAS BEEN UN ABLE TO DISTINGUISH THE CASE WITH THAT IN SHEO RAM .FOLLOWI NG THE SAID DECISION WE RESTORE THE ISSUES RAISED TO THE AO WIT H THE DIRECTION TO ADJUDICATE THE SAME IN ACCORDANCE WITH THE DIREC TIONS OF THE ITAT IN THE CASE OF SHEO RAM IN ITA NO. 364/CHD/201 7 DATED 09.04.2018. 4. IN EFFECT, THE APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04.08.2021. SD/- SD/- (SATBEER SINGH GODARA) (ANNAPURN A GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER ITA NO. 1593/CHD/2019 KULDEEP SINGH V. ITO, YAMUNA NAGAR 7 DATED: 04.08.2021 GP/SR.PS &) *+,+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' - / CIT 4. ' - ( )/ THE CIT(A) 5. +./ 0 , $0 , 123/4 / DR, ITAT, CHANDIGARH 6. /35# / GUARD FILE &) ' / BY ORDER, / ASSISTANT REGISTRAR