Shri Santosh Kumar Sharma, Bareilly V. Income Tax Officer- 2(2), Bareilly

ITA 167/LKW/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6608 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: YOGESH AGARWAL S MT ALKA
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

I.T.A. NOS.167 & 168/LKW/2019 ASSESSMENT YEAR:2009-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.167/LKW/2019 ASSESSMENT YEAR:2009-10 SHRI SANTOSH KUMAR SHARMA, VILLAGE MAHESHPUR THAKURAN, POST CHAUBARI, DISTT. BAREILLY. PAN:ARQPS 3491 J VS. INCOME TAX OFFICER -2(2), BAREILLY. (APPELLANT) (RESPONDENT) ITA NO.168/LKW/2019 ASSESSMENT YEAR:2009-10 SHRI VIJAY KUMAR SHARMA, VILLAGE MAHESHPUR THAKURAN, POST CHAUBARI, DISTT. BAREILLY. PAN:FHUPS 5978 F VS. INCOME TAX OFFICER -2(3), BAREILLY. (APPELLANT) (RESPONDENT) O R D E R THESE ARE TWO SEPARATE APPEALS FILED BY THE SEPARAT E ASSESSEES AGAINST THE SEPARATE ORDERS OF CIT(A) BOTH DATED17/ 08/2017. BOTH THE APPEALS INVOLVE SIMILAR ISSUES THEREFORE, THESE WER E HEARD TOGETHER AND FOR APPELLANT BY SHRI YOGESH AGARWAL, ADVOCATE RESPONDENT BY S MT. ALKA SINGH SINGH, D. R. DATE OF HEARING 02/08/2019 DATE OF PRONOUNCEMENT 02/08/2019 I.T.A. NOS.167 & 168/LKW/2019 ASSESSMENT YEAR:2009-10 2 THE SAKE OF CONVENIENCE ARE BEING DISPOSED OF BY A COMMON AND CONSOLIDATED ORDER. 2. GROUND NOS. 1 TO 8 IN I.T.A. NO.167 AND GROUND N OS. 1 TO 5 IN I.T.A. NO.168 ARE LEGAL GROUNDS, WHICH HAVE NOT BEEN PRES SED BY LEARNED A. R. HOWEVER, IN SUPPORT OF GROUND NO. 9 IN I.T.A. NO.16 7 AND GROUND NO. 6 IN I.T.A. NO.168, LEARNED A. R. FILED PETITION FOR ADM ISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF THE APPELLATE TRIBUNAL RU LES. THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE IS A COPY OF LETTER WRITTEN BY TEHSILDAR, SADAR, BAREILLY CERTIFYING THEREIN THAT THE LAND OF THE AS SESSEE WAS OUTSIDE THE MUNICIPAL LIMITS OF BAREILLY. LEARNED A. R. SUBMIT TED THAT THESE EVIDENCES PROVE THAT THE LANDS SOLD BY THE ASSESSEES WERE OUT SIDE THE MUNICIPAL LIMITS AND THEREFORE, CAPITAL GAIN ARISING THEREFROM WAS N OT SUBJECTED TO CAPITAL GAIN TAX. LEARNED A. R. SUBMITTED THAT THESE ADDIT IONAL EVIDENCE GO TO THE ROOT OF THE MATTER AND THESE COULD NOT BE FILED BEF ORE THE AUTHORITIES BELOW AS THESE WERE OBTAINED AFTER THE AUTHORITIES BELOW HAD PASSED THE RESPECTIVE ORDERS. THEREFORE, IT WAS PRAYED THAT T HESE SHOULD BE ADMITTED AND SHOULD BE ADJUDICATED. 3. LEARNED D. R., ON THE OTHER HAND, VEHEMENTLY ARG UED THAT THE ADDITIONAL EVIDENCE CANNOT BE ACCEPTED AS THE ASSES SEE DID NOT FILE THESE DOCUMENTS BEFORE THE ASSESSING OFFICER AND BEFORE L EARNED CIT(A) ALSO NOTHING WAS FILED AND IN FACT THE ASSESSEE DID NOT APPEAR BEFORE THE CIT(A). MOREOVER, IT WAS ARGUED THAT THE ASSESSING OFFICER, IN HIS ORDER, HAS NOTED THAT ON THE BASIS OF LETTER OF TEHSILDAR DATED 14/0 9/2016, THE LAND IN QUESTION DID FALL IN THE MUNICIPAL LIMITS AND THERE FORE, THE ASSESSING OFFICER HAS RIGHTLOY ASSESSED THE INCOME FROM CAPITAL GAIN AND THE ADDITIONAL EVIDENCES ARE NOTHING BUT AN AFTERTHOUGHT AND THERE FORE, THESE SHOULD NOT BE ADMITTED. I.T.A. NOS.167 & 168/LKW/2019 ASSESSMENT YEAR:2009-10 3 4. LEARNED A. R., IN HIS REJOINDER, SUBMITTED THAT THE ASSESSING OFFICER HAD MENTIONED THE LETTER DATED 14/09/2016 BUT THE L ETTER SPECIFICALLY STATED THAT THE VILLAGE WAS WITHIN THE MUNICIPAL LIMIT AND THERE IS NO MENTION OF PARTICULAR LANDS OF ASSESSEES WHEREAS, AS PER THE A DDITIONAL EVIDENCE, THE LAND BELONGING TO ASSESSEES WAS OUTSIDE THE MUNICIP AL LIMITS. MOREOVER, IT WAS ARGUED THAT THE ASSESSING OFFICER HAS NOT CONFR ONTED TO THE ASSESSEES THE SAID LETTER DATED 14/09/2016 AND THEREFORE, IN ALL FAIRNESS, THE ADDITIONAL EVIDENCE SHOULD BE ADMITTED AND ADJUDICATED. 5. I HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THR OUGH THE MATERIAL PLACED ON RECORD. I FIND THAT ASSESSING OFFICER DI D MENTION THE FACT OF HAVING OBTAINED LETTER DATED 14/09/2016 WHICH HE HA S NOTED IN THE LAST PAGE OF HIS ORDER. THE ASSESSING OFFICER HAS NOTED THAT THE LAND WAS SITUATED IN VILLAGE KARELI, BAREILLY AND WAS SITUAT ED WITHIN THE LOCAL LIMITS OF NAGAR NIGAM, BAREILLY. IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS NOT NOTED THAT THIS LETTER WAS CONFRONTED TO THE AS SESSEE. THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE HAS BEEN OBTAINED BY THE ASSESSEE AFTER THE DATE OF PASSING OF ASSESSMENT ORDER AND THE ORDER O F CIT(A) AND THESE EVIDENCES SPECIFICALLY STATE THAT THE LAND IN QUEST ION WAS OUTSIDE THE MUNICIPAL LIMITS THEREFORE, THE FACT OF NOT CONFRON TING LETTER DATED 14/09/2016 TO THE ASSESSEE COUPLED WITH THE FACT TH AT THE EVIDENCES WERE OBTAINED AFTER THE AUTHORITIES HAD PASSED ORDERS, N ECESSITATES THAT THE ADDITIONAL EVIDENCES BE TAKEN ON RECORD AND THEREFO RE, THESE ARE ADMITTED. SINCE THE ADDITIONAL EVIDENCES HAVE BEEN ADMITTED, WHICH HAVE NOT BEEN EXAMINED BY THE AUTHORITIES BELOW THEREFORE, I DEEM IT APPROPRIATE TO REMIT THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WHO SHOULD READJUDICATE THE ISSUE AFRESH AFTER TAKING INTO ACCOUNT THE ADDI TIONAL EVIDENCES FILED BY I.T.A. NOS.167 & 168/LKW/2019 ASSESSMENT YEAR:2009-10 4 THE ASSESSEE. NEEDLESS TO SAY, THE ASSESSEES WILL BE PROVIDED REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 02/08 /2019) SD/. ( T. S. KAPOOR ) ACCOUNTANT MEMBER DATED:02/08/2019 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW