Sh. Balbir Singh Chaudri S/O Sh. Lakhi Singh, Hoshiarpur V. The Commissioner of Income Tax, Jalandhar

ITA 193/ASR/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3740 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-12-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 20-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VED PAL SINGH LD
• Assessee Lawyers: J K PASSI LD
• Section: 148; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEMBER AND SH. N.K. CHOUDHRY, JUDICIAL MEMBER ITA NO.193 (ASR)/2015 A.Y : 2010-11 PAN : ACOPO-5590 B SHRI BALBIR SINGH CHOUDHRY VS . COMMISSIONER OF INCOME TAX (APPEAL), JALANDHAR. S/O SHRI LAKHI SINGH, VPO. LAKHINDER, TEH. DASYUYA, DISTT. HOSHIARPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. J. K. PASSI LD. A. R. RESPONDENT BY: SH. VED PAL SINGH, LD D.R. DATE OF HEARING : 20/12/2016 DATE OF PRONOUNCEMENT : 30/12/2016 ORDER PER N. K. CHOUDHRY:- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 01.04.2015 PASSED BY THE LEARNED CIT (A), I, JALANDHA R FOR THE ASSESSMENT YEAR 2010-2011. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. (I) THAT THE ORDER UNDER APPEAL IS AGAINST LAW AND FACT S OF THE CASE. (2) THAT THE LEARNED CIT (A) IS NOT JUSTIFIED IN U PHOLDING THE ORDER OF THE ASSESSING OFFICER REGARDING ADDITION OF RS. 15,26,000 /- DISALLOWANCES OF ASSESSEE CLAIM U/S 54 F OF THE ACT ON THE TECHNICAL GROUND. ITA NO.401/ASR/2016 A.Y. 2010-11 2 (3) THAT THE ASSESSEE DEPOSITED RS. 15,26,000/- UN DER CAPITAL GAIN SCHEME FOR 100 DAYS ONLY AND THE BANK AUTHORITY ON MATURIT Y OF THE CAPITAL GAIN STDR CONVERTED THE SAID AMOUNT IN NORMAL STDR WITHOU T PERMISSION OF THE ASSESSEE ON 01.10.2007. THE ASSESSEE CANNOT BE PENA LIZED FOR THE FAULT COMMITTED BY BANK AUTHORITY BY WAY OF DISALLOWANCES OF DEDUCTION U/S 543 F OF THE ACT, AS HELD IN THE CASE OF RAFIQUE V/S MUNSHI LAL AIR (SC) 1400 AND MAHAVEER PARSHAD JAIN V/S CIT (1988 172 IT R 331 (MP). (4) THAT THE BANK AUTHORITY CONVERTED THE SALES P ROCEEDS IN NORMAL STDR ON 01.10.2007, IT MEANS THE FAULT WAS COMMITTED BY THE ASSESSEE ON 01.10.2007 AND CAPITAL GAIN TAX SHOULD BE LEVIED IN THE YEAR, WHEN THE FAULT WAS COMMITTED THAT IS ON 01.10.2007 (ASSTT. Y EAR 2008-09) AND CAPITAL GAIN TAX CANNOT BE ASSESSED IN THE ASSESSMEN T YEAR 2010-11. (5) THAT THE DIRECTION GIVEN BY THE LEARNED CIT ( A) TO ASSESS THIS AMOUNT IN THE ASSTT YEAR 2010-11 IS ILLEGAL, UNJUSTIFIED AND U NWARRANTED BY THE FACTS OF CASE, BEING FAULT COMMITTED BY THE ASSESSEE ON 0 1.10.2007 WHEN THE BANK AUTHORITY CONVERTED THE SALES PROCEED OF CAPIT AL GAIN SCHEME STDR IN NORMAL STDR AND THE SAME SHOULD BE ASSESSED IN TH E ASSTT. YEAR 2008- 09. (6) THAT THE LEARNED CIT (A) DID NOT COMMENT ON TH E ASSESSEE PLEA REGARDING ASSESSING OF CAPITAL GAIN TAX IN THE A.Y. 2008-09 NO R GIVE ANY REASON FOR HIS AGREEMENT OR DISAGREEMENT, WHILE PASSING THE IM PUGNED ORDER. (7) THAT ORDER UNDER APPEAL BEING AGAINST LAW FACTS ON THE CASE IS LIABLE TO BE QUASHED. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER:- THE ASSESSEE DERIVES INCOME FROM PENSION, HOUSE PROPERTY, BANK INTEREST AND AGRICULTURE INCOME. RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010-11, DECLARING TOTAL I NCOME OF RS. 3,38,650/- AND AGRICULTURE INCOME OF RS. 9,00,00 0/- WAS FILED BY THE ASSESSEE ON 31.07.2007. THE SAID RETURN WA S PROCESSED U/S 143 (1) OF THROUGH MANUAL SELECTION AFTER OBTAINING APPROVAL OF JOINT COMMISSIONER OF INCOME TAX VIDE APPROVAL GRANTED ON 11.08.2011. STATUTORY NOTICES UND ER SECTION 143 (2)/142(1) OF THE INCOME TAX ACT, 1961 WERE ACCORD INGLY ISSUED TO THE ASSESSEE FROM TIME TO TIME. IN RESPONSE TO TH E SAID NOTICES, SHRI. J.K. PASSI, ADVOCATE, COUNSEL OF THE ASSESSEE ATTENDED THE ASSESSMENT PROCEEDINGS FROM TIME TO TIME A LONG WITH SHRI BALBIR SINGH CHOUDHARY. A DETAILED QUESTIO NNAIRE WAS ITA NO.401/ASR/2016 A.Y. 2010-11 3 ALSO ISSUED TO THE ASSESSEE ON 03.08.2011, WHICH WAS ALSO DUL Y SERVED UPON THE ASSESSEE. THE ASSESSEE HAS FURNISHED THE DETAILED INFORMATION AS REQUIRED. THE CASE WAS DISCUSSED I N DETAIL AND NECESSARY DETAILS/INFORMATION CALLED FOR AND FILED, WERE ALSO EXAMINED. 02. THE CASE OF THE ASSESSEE FOR THE YEAR UNDER CONSIDER ATION WAS SELECTED FOR SCRUTINY ON THE FACTS THAT ON 25.02.20 07 THE PUNJABI CO-OP HOUSING BUILDING SOCIETY LTD. MOHALI, O F WHICH THE ASSESSEE IS THE MEMBER, ENTERED INTO TRIPARTITE JOINT DEVELOPMENT AGREEMENT WITH M/S HASH BUILDERS (P) LTD, CHANDIGARH AND M/S TATA HOUSING DEVELOPMENT COMPANY L TD., MUMBAI. BY VIRTUE OF THE TRIPARTITE AGREEMENT, IT W AS AGREED UPON AMONG THESE PARTIES THAT THE PUNJABI CO-OP HOUSIN G BUILDING SOCIETY LTD., MOHALI, OWNER OF 21-2 ACRE LAN D, SHALL TRANSFER ITS LAND TO M/S TATA HOUSING DEVELOPMENT COM PANY LTD. ,IN LIEU OF MONETARY CONSIDERATION AND CONSIDERATION IN KIND. AS PER THE AGREEMENT, THE ASSESSEE WOULD RECEIVE RS. 82,50,0 00/- IN ADDITION TO ONE FLAT OF 2250 SQ FEET WORTH RS. 1,0 1,25,000/-. THE IMPORTANT FACT IS THAT AS PER THE JOINT DEVELOPM ENT AGREEMENT OWNER INCLUDES ITS MEMBERS. ACCORDINGLY, ASSESSMENT PROCEEDINGS FOR THE A.Y. 2007-08 WERE INITIATE D U/S 147/148 AND NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE. FINALLY THE ASSESSING OFFICER DETERMINED THE LIABIL ITY OF THE ASSESSEE AS UNDER;- 04. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE FURNISHED DETAIL OF INCOME FROM HOUSE PROPERTY TOTALING TO RS. 2,22,012/- WHEREAS IN THE COMPUTATION OF ASSESSABLE INCOME FILED ALONG WITH RETURN IT WAS DECLARE AS ?RS. 2,19,020/- WHEN CONFRONTED TO EXPLAIN THE DIFFERENCE THE ASSESSEE AND HIS COUNSEL REQUESTED TO ADD THE DIFFERENCE. ITA NO.401/ASR/2016 A.Y. 2010-11 4 ACCORDINGLY A SUM OF RS. 2,094/- IS ADDED TO THE TAXABLE INCOME OF THE ASSESSEE AFTER ALLOWING THE STATUTORY DEDUCTION @ 30% ON INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY (I.E. RS. 2,22,012 2,19,020 = 2992 @30%). SINCE THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF HIS INCOME PENALTY PROCEEDINGS U/S 271 (1) ARE BEING INITIATED SEPARATELY. 05. IN VIEW OF THE FACTS AND EVIDENCES BROUGHT ON RECORD , TOTAL TAXABLE INCOME OF THE ASSESSEE IS COMPUTED AS UNDER:- A) TOTAL TAXABLE INCOME AS DECLARE. RS. 3,38,65 0/- B) ADD:- I) ADDITION AS DISCUSSED IN PARA 3 TO 3.2 ABOVE RS. 1 5,26,000/- II) ADDITION AS DISCUSSED IN PARA 4 ABOVE RS. 2,094/- TOTAL INCOME: RS. 18,66,744/- ADD. AGRICULTURE INCOME AS DECLARED FOR RATE PURPOSE RS. 9,00,000/- 4. FEELING AGGRIEVED BY THE ORDER PASSED BY THE ASSESSING OF FICER, THE ASSESSEE PREFERRED THE FIRST APPEAL BEFORE THE LEARN ED CIT APPEAL. 5. THE LEARNED CIT (APPEAL) UPHELD THE ORDER OF THE A SSESSING OFFICER BY CONCLUDING AS UNDER:- I HAVE CONSIDERED THE OBSERVATIONS OF THE ASSESSING OFFICER AS MADE BY HIM IN THE ASSESSMENT ORDER. I HAVE ALSO CONSIDERED THE WRITTEN SUBMISSIO N FILED BY THE ASSESSEE VIDE LETTERS DATED 24.03.2015 AND 01.04.2015. I HAVE FURTHER CONSIDERED VARIOUS JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE LD. AR O F THE ASSESSEE. ON CAREFUL CONSIDERATION OF THE RIVAL CONTENTIONS, IT HAS BEEN NOTICED THAT THE IMP0UGNED ADDITION (CHALLENGED BY THE ASSESSEE IN PRESENT APPEAL) HAS BEEN MADE BY THE ASSESSING OFFICER BY ITA NO.401/ASR/2016 A.Y. 2010-11 5 FOLLOWING THE DIRECTIONS OF THE LD. CIT (A), JALAND HAR AS CONTAINED IN HIS APPELLATE ORDER IN THE CASE OF ASS ESSEE HIMSELF FOR THE A. Y. 2007-08 IN APPEAL NO. 201/10- 11/CIT (A) JALANDHAR DATED 29.03.2011. IT HAS ALSO BEEN NOTICED THAT THE ASSESSEE HAS NOT CHALLENGED T HE DIRECTIONS GIVEN BY THE ASSESSEE BEFORE THE HONORAB LE ITAT, AMRITSAR BENCH, AMRITSAR. MOREOVER, THE ORDER OF LD. CIT(A) , JALANDHAR FOR THE A. Y. 2007-08 WHICH CONTAIN THE DIRECTIONS GIVEN BY HIM TO TAX AN AMOUN T OF RS. 15,26,000/- IN A.Y. 2010-11 HAS BEEN CONFIRMED BY THE HONORABLE ITAT, AMRITSAR BENCH, AMRITSAR VID E ITS ORDER DATED 19.08.2013. NOW THE APPROPRIATE AUTHORITY TO CHALLENGE THE DIRECTIONS GIVEN BY LD. CIT (A) IN MY OPINION IS ONLY HONORABLE PUNJAB & HARYAN A HIGH COURT. IN MY OPINION, AS THE ADDITION UNDER CHALLENGE HAS BEEN MADE BY THE ASSESSING OFFICER AS PER DIRECTIONS GIVEN BY THE LD. CIT (A) IN HIS APPE LLATE ORDER FOR THE A.Y. 2007-08 DATED 29.03.2011, I DO N OT FIND ANY AMBIGUITY IN THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS. 15,26,000/- MOREO VER, IT IS AN ADMITTED FACT THAT THE AMOUNT OF RS. 15,26,000/- AFTER IT WAS WITHDRAWN FROM CAPITAL GAI N SCHEME HAS NOT BEEN UTILIZED FOR SPECIFIED PURPOSES WITHIN PRESCRIBED TIME LIMIT. THE JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE ASSESSEE HAS NO APPLICATION IN THE CASE OF ASSESSEE AS THE FACTS IN THOSE CASES ARE ENTIRELY DIFFERENT FROM THE FACTS OF THE CASE OF THE ASSESSEE. IN VIEW OF THE ABOVE STATED FACTS IN THE CIRCUMSTANCES OF THE CASE AND IN VIEW OF THE DISCUS SION ITA NO.401/ASR/2016 A.Y. 2010-11 6 MADE IN THE PROCEEDING PARAGRAPHS, I AM OF THE OPIN ION THAT THE ASSESSING OFFICER IS FULLY JUSTIFIED IN MA KING ADDITION OF RS. 15,26,00/- AS THE SAME HAS BEEN MAD E AS PER DIRECTIONS OF LD. CIT (A), JALANDHAR. THE ADDITION66 OF RS.15,26,000/- MADE BY THE ASSESSING OFFICER IS, THEREFORE, UPHELD. IN THE RESULT, GROUN DS NO. 1,2,3,4,5,6 AND 9 OF APPEAL TAKEN BY THE ASSESSEE A RE DISMISSED. THE GROUNDS NO. 7 AND 8 OF APPEAL TAKEN BY THE ASSESSEE ARE PREMATURE IN NATURE AND DO NOT REQUIRE ANY ADJUDICATION AT THIS STAGE. AS A RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. 6. FEELING AGGRIEVED BY THE SAID ORDER PASSED BY THE LEA RNED CIT (APPEAL), THE ASSESSEE PREFERRED THE INSTANT APPEAL WHICH IS UNDER CONSIDERATION. 7. THE LEARNED A. R. SPECIFICALLY EMPHASIZED THAT THE ASSE SSEE ADMITTED THE LIABILITY OF THE AMOUNT RS. 55,26,000 W HICH IS UNDER DISPUTE , HOWEVER SUBMITTED THAT THE SAME CAN BE TAXED EITHER UNDER IN THE ASSESSMENT YEAR 2008-09 OR 2009-010. 8. THE LEARNED DR ON THE OTHER HAND, HAS NOT RAISED ANY SPECIFIC OBJECTION WITH THE REGARD TO THE CONTENTION OF THE ASSE SSEE THAT THE AMOUNT UNDER DISPUTE CAN BE CONSIDERED FOR TAXATION PURPOSE EITHER IN THE ASSESSMENT YEAR 2008- 2009 OR 2009 -10. 9. WE HAVE GONE THROUGH WITH THE FACTS AND CIRCUMSTANCES OF THE CASE AS A SHORT ISSUE IS INVOLVED IN THE INSTANT APPEAL, W HETHER THE AMOUNT WHICH IS CONSIDERATION CAN BE SUBJECTED TO ASSESSMENT YEAR 2008-09 OR 2009-2010. WE ARE OF THE ITA NO.401/ASR/2016 A.Y. 2010-11 7 CONSIDERED OPINION THAT NO PREJUDICE SHALL BE CAUSED TO T HE REVENUE BECAUSE THE ASSESSEE HAS ALREADY ADMITTED HIS LIABI LITY AND ONLY PRAYING FOR TREATING THE AMOUNT IN THE YEA R 2008-09 OR 2009-10. IN OUR CONSIDERED OPINION JUSTICE WOULD BE MET, IF THE AMOUNT UNDER CONSIDERATION CAN BE CONSIDERED FOR TAXATIO N PURPOSE IN THE YEAR 2009-10 BECAUSE THE AMOUNT UNDER D ISPUTE HAS BEEN RECEIVED IN FEB. 2007, SO THREE YEARS HAS BEEN COMPLETED IN 2009-10 ONLY, HENCE WE ALLOWED THE INSTAN T APPEAL OF THE APPELLANT ASSESSEE WITH THE DIRECTION TO CONSIDER T HE AMOUNT UNDER CONSIDERATION IN THE ASSESSMENT YEAR 2009-10 . 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30/12/2016. SD/- SD/- (T.S. KAPOOR) (N.K. CHOUDHRY) ACCOUNTANT MEMBER JUDICI AL MEMBER DATED:30/12/2016 PK/PS COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: 2. THE 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER