Vipin Gupta, Delhi V. ITO, New Delhi

ITA 1658/DEL/2014

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5571 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 20-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Cost of acquisition
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D , NEW DELHI BEFORE S H. R. K. PANDA , ACCOUNTANT MEMBER AND MS. BEENA A. PILLAI , JUDICIAL MEMBER ITA NO. 1658 /DEL/201 4 ASSESSMENT YEAR: 20 09 - 10 VIPIN GUPTA B - 24, G. F. VIVEK VIHAR, DELHI PAN AFLPG9776R VS ITO WARD 34 (2) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY SHRI J. B. SHARMA , CA RESPONDENT BY S H . ARUN KUMAR, SR. DR DATE OF HEARING: 22 /0 5 /2018 DATE OF PRONOUNCEMENT: 22 / 0 5 /2018 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 22.10.2013 OF THE CIT (A) XXVII, NEW DELHI RELATING TO A. Y. 2009 - 10. 2. FACTS OF THE CASE , IN BRIEF , ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND IS ENGAGED IN THE BUSINESS OF PROPERTY DEALING. HE FILED HIS RETURN OF INCOME ON 23.12.2009 DECLARING TOTAL INCOME OF RS.3,44,742/ - . THE ASSESSING OFFICER ON THE BASIS OF AIR INFORMATION REGARDING SALE OF PROPERTY ON 12.03.2009 FOR A CONSIDER ATION OF RS. 37.12 LACS ASKED THE ASSESS EE TO EXPLAIN AS TO WHY PROVISIONS OF SECTION 5 0 C SHOULD NOT BE INVOKED . W HILE I TA NO. 1658 /DE L/20 1 14 2 DOING SO HE OBSERVED THAT THE PROPERTY WAS SOLD FOR RS.3,50,000/ - WHEREAS ACCORDING TO THE CONCERNED REVENUE AUTHORITIES THE COST OF THE PROPERTY IS RS.3 7 ,12,000/ - . R EJECTING TH E VARIOUS EXPLANATION GIVEN BY THE ASSESSEE AND INVOK ING THE PROVISIONS OF SECTION 5 0 C OF THE IT ACT 1961 , T HE ASSESSING OFFICER MADE ADDITION OF RS. 37,12,000/ - ON ACCOUNT OF LONG TERM CAPITAL GAIN. 3. SINCE NONE APPEARED BEFORE THE CIT (A) , THE LD. CI T (A) UPHELD THE ACTION OF THE ASSESSING OFFICER BY OBSERV ING AS UNDER : - ALL THE GROUNDS ARE AGAINST THE ADDITION OF RS.37,12,000/ - AND THEREFORE, DISPOSED OFF TOGETHER. AS PER THE GROUNDS OF APPEAL, APPELLANT IS ONLY AN AGENT BUT HE ADMITS THAT THE S ALE DEED WAS ENTERED BY THE APPELLANT ON 12.03.2009 AND THE VALUE SHOWN IN THE SALE DEED WAS RS.3,50,000/ - . HOWEVER, THE STAMP DUTY AUTHORITIES FIXED THE VALUE AT RS.35,12,000/ - AND A. O. ADAPTED THIS VALUE AS THE FULL VALUE OF CONSIDERATION AND COMPLETED THE ASSESSMENT. THE APPELLANT HAD ENCLOSED A FEW POWERS OF ATTORNEY ALONG WITH THE APPEAL MEMO BUT THESE POWERS OF ATTORNEY ARE SILENT REGARDING THE AMOUNT PAID FOR ACQUISITION. ALL THE POWERS OF ATTORNEY ARE GENERAL POWERS OF ATTORNEY AND MOST OF THEM AR E NOT CLEAR TO DECIPHER THE NATURE OF TRANSACTION OR THE PERSONS INVOLVED AND IT MAKES NO MENTION ABOUT THE AMOUNTS INVOLVED IN THE TRANSACTIONS. IN THE ABSENCE OF ANY EVIDENCE TO INDICATE THAT THE APPELLANT WAS ONLY AN AGENT AND THERE WERE OTHERS INVOLVE D IN THE TRANSACTION CLAIMED BY THE APPELLANT, THE ADDITION OF RS.37,12,000/ - MADE BY THE A. O. NEEDS TO BE SUSTAINED. THE ONUS IS ON THE APPELLANT TO PROVE THAT HE IS ONLY AN AGENT AND THERE WERE OTHERS INVOLVED IN THE TRANSACTION AND THIS ONUS IS NOT DI SCHARGED BY THE APPELLANT IN THIS CASE. THERE IS ALSO NO MENTION ABOUT THE SHARES OF THE OTHER POWER OF ATTORNEY HOLDERS EVEN IF THE CLAIM OF THE APPELLANT THAT HE WAS ONLY AN AGENT IS CORRECT. IN THE ABSENCE OF THE COST OF ACQUISITION OR COST OF IMPROVE MENT, I AM ALSO CONSTRAINED TO CONSIDER RS. 37,12,000/ - AS THE FULL VALUE OF CONSIDERATION AND TO SUSTAIN THE ADDITION MADE BY THE A.O. AS A RESULT, ALL THE GROUNDS OF APPEAL STANDS REJECTED . 4 . AGGRIEVED WITH SUCH ORDER OF THE CIT (A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS : - 1 . ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. A.O. OF WARD I TA NO. 1658 /DE L/20 1 14 3 34(2), DELHI HAD ERRED AT THE TIME OF PASSING ORDER RATHER ARBITRARY PASSED THE ORDER AND RAISED DEMAND OF RS.2 7,66,651/ - U/S.L43(3) OF I.T.ACT,1961 WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF CASE. 2 . HOPING FOR THE RELIEF WHEN APPEAL HAD BEEN FILED BY THE ASSESSEE IN FRONT OF HON BLE CIT(APPEALS - XXVII), DELHI HAD ALSO ARBITRARY PASSED THE ORDER WITHOUT CONSID ERING OUR SUBMISSIONS. 3 . IT IS IMPORTANT TO MENTION HEREIN THAT ALL THE NOTICES ISSUED TO ASSESSEE FOR HEARING ON 16 . 05 . 2012 , 09.08.2012, 09.10.2012, 05.11.2012, 04.01.2013, 20.03.2013, 17.09.2013 AND FINAL HEARING NOTICE ON 18.10.2013 (AS CONFIRMED BY HON BLE CIT (APPEALS XXVII) ORDER IN SECOND PARAGRAPH) WERE NOT SERVED DUE TO CHANGE OF ADDRESS. 4 . MOREOVER, ORDER OF HON BLE CIT (APPEALS XXVII) COULD NOT BE SERVED TO ASSESSEE , AND A CERTIFIED COPY OF SAME HAS BEEN COLLECTED BY MR. DIVY SETHI THROUGH OFFICE OF HON BLE CIT (APPEALS XXVII) ON 21.01.2014. 5 . HON BLE CIT(APPEALS - XXVII) HAD DENIED/REJECTED THE APPEAL SIMPLY STATING THAT THE APPELLANT HAD ENCLOSED A FEW POWER OF ATTORNEY AND ALL THE POWER OF ATTORNEY ARE GENERAL POWER OF ATTORNEY AND MOST OF THEM ARE NOT CLEAR TO DECIPHER THE NATURE OF TRANSACTION OR THE PERSONS INVOLVED .YOUR HIGHNESS, APPELLANT HAD NOT BEEN GIVEN AN OPPORTUNITY (DUE TO NON COMMUNICATION OF NOTICES) TO CLARIFY THE NATURE OF TRANSACTIONS AND PERSONS INVOLVED. 5. THE LD. COUNSEL FOR TH E ASSESSEE SUBMITTED THAT THE ASSESSEE WAS NEITHER THE REGISTERED OWNER OF THE PROPERTY NO R THE BENEFICIAL OWNER OF THE PROPERTIES TO TRANSFERRED. HE SIMPLY ACTED AS A COORDINATING AGENT ON BEHALF OF OTHERS. IT IS ALSO HIS SUBMISSION THAT DUE TO CERTAIN RE ASONS THE ASSESSEE COULD NOT BE REPRESENTED PROPERLY BEFORE THE CIT (A) AT THE TIME OF HEARING FOR WHICH HE HAS PASSED AN EX - PARTE ORDER SUSTAINING THE ADDITION MADE BY THE ASSESSING OFFICER . HE SUBMITTED THAT THE ADDITION SUSTAINED BY THE CIT(A) SHOULD BE DELETED. IN HIS ALTERNATE CONTENTION , HE SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. 6. THE LD. DR ON THE OTHER HAND WHILE SUPPORTING THE ORDER OF THE CIT(A) SUBMITTED THAT HE HAS NO OBJECTION I F THE MATTER IS RESTORED TO THE FILE OF THE CIT (A). I TA NO. 1658 /DE L/20 1 14 4 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND DUE TO NON FURNISHING OF PROPER DETAILS BEFORE THE ASSESSING OFFICER, HE MADE AD DITION OF RS. 37,12,000/ - TO THE TOTAL INCOME OF THE ASSESSEE. SINCE NONE APPEARED BEFORE THE CIT (A) HE UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER IN THE EX - PARTE ORDER PASSED BY HIM. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE IN TEREST OF JUSTICE WE DEEM IT PROPER TO RESTORE THIS ISSUE TO THE FILE OF THE CIT (A) WITH THE DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS CASE. THE ASSESSEE IS ALSO HEREBY DIRECTED NOT TO SEEK ANY ADJOURNMENT BEFORE THE CIT ( A) AND COOPERATE FOR EARLY DISPOSAL OF THE APPEAL . N EEDLESS TO SAY THE LD. CIT (A) SHALL DECIDE THE ISSUE AS PER FACT AND LAW AFTER GIVING DUE OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE A RE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES . 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 9 . PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON 2 2 .0 5 .2018. SD/ - SD/ - ( BEENA A. PILLAI ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER *NEHA* DATE: - 22 .0 5 .2018 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRA R ITAT NEW DELHI I TA NO. 1658 /DE L/20 1 14 5 DATE 1. DRAFT DICTATED ON 22 .0 5 .2018 PS 2. DRAFT PLACED BEFORE AUTHOR 22 .0 5 .2018 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. I TA NO. 1658 /DE L/20 1 14 6