Sri Manas Swaika, Kolkata V. I.T.O Wd - 7(1),kolkata., Kolkata

ITA 1660/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4468 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 05-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 30-05-2013
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUMAR KUREEL
• Keywords: Capital asset; Opportunity of being heard; Principle of natural justice; Earning of tax free income; Difference of opinion; Change of opinion
• Section: 2(14); 234B; 147; 148

Judgement Text

ITA NO.1660 /KOL/2013 SRI MANASSWAIKA 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A, KOLKATA (BEFORE SHRI S.S.VISWANETHRA RAVI, J.M. &DR.A.L.SAI NI, A.M.) ITA NO. 1660/KOL/2013 : ASSTT. YEAR : 2008- 09 SRI MANASSWAIKA 25B, SHAKESPEARE SARANI, KOLKATA 700 017 PAN: AKHPS 3743A VS I.T.O., WARD-7(1), P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE RESPONDENT BY:SHRI RAJAT KUMAR KUREEL, JCIT DATE OF HEARING : 05.09.2016 DATE OF PRONOUNCEMENT :-23/09/16 ORDER PER DR. A.L.SAINI, A.M .: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINI NG TO ASSESSMENT YEAR 2008-09, IS DIRECTED AGAINST THE ORDER PASSED BY TH E LD. COMMISSIONER OF INCOME- TAX (A) -VIII, KOLKATA IN APPEAL NO.282/CIT(A)-VIII /KOL/2011-12 DATED 22/03/2013, WHICH IN TURN ARISES OUT OF AN ORDER PA SSED BY THE ASSESSING OFFICER UNDER SECTION 143(3)/147 OF THE INCOME TAX ACT, 196 1 (IN SHORT, THE ACT), DATED 23/12/ 2011. 2. THE FACTS OF THE CASE ARE STATED IN BRIEF. THE A SSESSEE FILED RETURN OF INCOME ON 30 TH JULY, 2008 FOR RS.1,16,500/-.THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE ACT ON 27.09. 2008. THEREAFTER A NOTICE UNDER SECTION 148 DATED 24 TH JUNE, 2010 WAS SERVED ON THE ASSESSEE ON 25.06.2010 AFTER NOTING THE REASONS AS UNDER: ITA NO.1660 /KOL/2013 SRI MANASSWAIKA 2 THE RETURN OF ASSESSEE IS PERUSED. THE SCHEDULE FOR EXEMPT INCOME, UNDER COLUMN 5 SHOWS CLAIM OF EXEMPT INCOME OF RS.54,52,634/- WITH A HAND NOTED REASONS FOR EXEMPT INCOME AS SALE OF AGRICULTURAL LAND. IT IS SEEN TH AT THERE IS NO INCOME FROM AGRICULTURE SHOWN BY ASSESSEE IN PAR T. THEREFORE, CLAIM OF LAND BEING AGRICULTURE, PRIMA F ACIE, IS NOT TENABLE. IF THAT BE SO, CLAIM OF GAINS ON SALE OF SUCH LAND AS EXEMPT IS WITHOUT ANY BASIS. 3. THE AO COMPLETED THE ASSESSMENT UNDER SECTION 14 7 OF THE ACT AND MADE THE ADDITION ON ACCOUNT OF SALE OF AGRICUL TURAL LAND OBSERVING THE FOLLOWING: IN THE INSTANT CASE, ALTHOUGH ONUS IS ON ASSESSEE T O SUBSTANTIATE ITS CLAIM, IT ABJECTLY FAILED TO PRODU CE ANY PROOF THAT THE LAND IN QUESTION WAS AGRICULTURE AT THE TIME OF SALE. THEREFORE, IT CANNOT BE SAID THAT A BENEFI T WHICH THE CONSTITUTION GAVE A FARMER, SHALL BE GIVEN TO A BUSINESSMAN WHO DID NOT DO ANYTHING ON THE SAID LAN D. AS SUCH, I TREAT THE SAID LAND AT THE TIME OF SALE AS A LAND WHICH IS NOT AGRICULTURAL LAND. 9. CONCLUSION 1. SINCE THE LAND IS SITUATED WITHIN 3 KMS FROM TH E LOCAL LIMIT OF HOWRAH MUNICIPALITY, THE SAID LAND I S CAPITAL ASSET AS DEFINED U/S 2(14) OF THE I T ACT. 2. EVEN OTHERWISE THE SAID LAND IS NOT AGRICULTURAL LAND IN HAND OF ASSESSEE FOR REASONS MENTIONED IN ABOVE. 4. AGGRIEVED FROM THE ORDER OF THE ASSESSING OFFICE R, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD CIT (APPEALS) VI II-KOLKATA, WHO HAS CONFIRMED THE ACTION OF THE AO OBSERVING THE FO LLOWING: A STATEMENT SHOWING THE COMPLIANCE OF HEARING NOTIC ES AND ADJOURNED HEARING DATES OF THE A/R OF THE APPELLANT FROM TIME TO TIME IS GIVEN BELOW TO OBSERVE THE TREND OF WILLING NESS AND SERIOUSNESS OF THE APPELLANT TOWARDS THE DISPOSAL O F THE APPEAL.- ITA NO.1660 /KOL/2013 SRI MANASSWAIKA 3 DATE OF ISSUE DT. OF HEARING MODE OF COMMUNICATION REMARKS 17.10.12 07.11.12 NOTICE SERVER A/R APPEARED BUT REQUEST FOR ADJOURNMENT AND CONSIDERED HEARING ON 22.11.2012 . 22.11.12 FURTHER ADJOURNED TO 07.12.12 CONSIDERING THE REQUEST OF THE A/R 07.12.12 PARTLY DISCUSSED WITH A/R AND AGAIN ADJOURNED TO19.12.12 19.12.12 NONE APPEARED 23.01.13 13.02.13 SPEED POST A/R IS ASKED URGENTLY TO APPEAR WITH ALL THE DOCUMENTARY EVIDENCES IN SUPPORT OF THEIR APPEAL.NO COMPLIANCE IN THIS REGARD IS MADE EXCEPT TELEPHONIC REQUEST FOR ADJOURNMENT AND CONSIDERED.THE HEARING IS ADJOURNED TO 28.02.13 . 28.02.13 AGAIN TELEPHONIC REQUEST FOR FURTHER ADJOURNMENT TO 21.03.2013 AND CONSIDERED. 21.03.13 NEITHER APPEARED NOR THIS TIME ANY REQUEST COMES FROM THE A/R FROM THE ABOVE-STATEMENT IT IS NOTED THAT ACTIVE SE VERAL ATTEMPTS FOR DISPOSAL OF THE APPEAL WERE MADE BUT IN VAIN. UNDER THE CIRCUMSTANCES, IT IS PRESUMED THAT THE APPELLANT IS NOT ALL SERIOUS T O PURSUE THE APPEAL AS WELL AS NOTHING TO PRESENT BEFORE THE APPELLATE PRO CEEDINGS IN FAVOUR OF THE APPEAL FILED BY THE APPELLANT. IN VIEW OF THIS THE .APPEAL FILED BY THE APPELLANT IS HEREBY REJECTED AND DISMISSED. 5. NOT BEING SATISFIED WITH THE ORDER OF THE LD. CI T(A)-VIII, KOLKATA, THE ASSESSEE IS IN FURTHER APPEAL BEFORE U S. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PA SSED BY THE LD. C.I.T.(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 2. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PA SSED BY THE LD.C.I.T.(A) WITHOUT GIVING REASONABLE OPPORTUNITY OF HEARING TO ITA NO.1660 /KOL/2013 SRI MANASSWAIKA 4 THE ASSESSEE WHICH IS COMPLETELY ARBITRARY, UNJUSTI FIED AND ILLEGAL. 3. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I. T.(A) WAS WRONG IN NOT CONSIDERING THE MERIT OF THE CASE, THE REFORE, THE ORDER PASSED BY THE LD. C.I.T.(A) IS COMPLETELY ARB ITRARY, UNJUSTIFIED AND ILLEGAL. 4. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I. T.(A) WAS WRONG IN DITTOING THE ORDER OF THE A.O. AND NOT CON SIDERING THE FACTS THAT IN REOPENING THE ASSESSMENT U/S. 148 WHI CH IS MERE CHANGE OF OPINION AND AGAINST REQUIREMENT OF LAW, A S SUCH HIS FINDING IS COMPLETELY ARBITRARY, UNJUSTIFIED AND IL LEGAL. 5. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I. T.(A) WAS WRONG IN DITTOING THE ORDER OF THE A.O. AND CONFIRM ING THE ADDITION AMOUNTING TO RS.52,17,516/- AS LONG TERM C APITAL GAIN ON SALE OF AGRICULTURAL LAND WHICH IS EXEMPT U/S. 2 (14) OF THE I.T. ACT WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 6. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I. T.(A) WAS WRONG IN DITTOING THE ORDER OF THE A.O. AND NOT CON SIDERING THE FACTS THAT THE LAND SOLD WAS SALI LAND WHICH IS AGR ICULTURAL LAND AND IS EXEMPT FROM LONG TERM CAPITAL GAIN AMOUNTING TO RS.52,17,516/- WHICH IS COMPLETELY ARBITRARY, UNJUS TIFIED AND ILLEGAL. 7. FOR THAT THE INTEREST U/S. 234B & 234D AMOUNTIN G TO RS.11,66,251/- AND RS.5,832/- RESPECTIVELY CHARGED MECHANICALLY IS WRONG & ILLEGAL. 8. FOR THAT THE APPELLANT RESERVES THE RIGHT TO AD DUCE ANY FURTHER GROUND OR GROUNDS, IF NECESSARY, AT OR BEFO RE THE HEARING OF THE APPEAL. 6. WE FIRST DEAL WITH GROUND NO.2 RAISED BY THE ASS ESSEE BECAUSE THERE IS AN ISSUE INVOLVED IN RESPECT OF NATURAL JU STICE. GROUND NO.2 READS AS UNDER: ITA NO.1660 /KOL/2013 SRI MANASSWAIKA 5 2. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PAS SED BY THE LD.C.I.T.(A) WITHOUT GIVING REASONABLE OPPORTUN ITY OF HEARING TO THE ASSESSEE WHICH IS COMPLETELY ARBITRA RY, UNJUSTIFIED AND ILLEGAL. 6.1 THE LD. AR FOR THE ASSESSEE HAS SUBMITTED THAT HE HAS REQUESTED TO GIVE MORE TIME TO SUBMIT THE RELEVANT PAPERS BUT THE LD. CIT(A) HAS NOT HEARD HIM. THIS IS CLEARLY MENTIONED BY THE LD. CIT(A) IN HIS ORDER VIDE PARA 4 THAT THE ASSESSEE HAS REQUESTED OVER PH ONE ALSO TO ADJOURN THE HEARING AND REQUESTED HIM TO SUBMIT PAPERS. THE REFORE, THE ORDER DELIVERED BY THE LD. CIT(A) IS AGAINST THE NATURAL JUSTICE AND WE FEEL IT APPROPRIATE TO SEND BACK THE FILE TO THE LD. CIT(A) TO DECIDE THE CASE AFRESH, AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, WE ARE OF THE VIEW THAT THIS ISSUE REQ UIRES FRESH EXAMINATION AT THE END OF THE LD. CIT(A). ACCORDING LY, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THIS ISSUE TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO ASCERTAIN THE FACTS OF THE ASSESSEE, AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, AS DISCUSSED ABOVE. 7. IN THE RESULT, ALL GROUNDS OF APPEAL FILED BY TH E ASSESSEEARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23.09.2016 SD/- SD/- (S.S.VISWANETHRA RAVI) (DR. A.L.SAI NI) JUDICIALMEMBER ACCOUNTANT MEMBER DATED:23 /09/2016 TALUKDAR (SR.PS) ITA NO.1660 /KOL/2013 SRI MANASSWAIKA 6 COPY OF THE ORDER FORWARDED TO: 1. REVENUE 2 ASSESSEE 3. THE CIT-VIII-KOLKATA, 4. THE CIT(A)-I, 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES