Sri Binoy Kumar Singh, , Daltonganj V. ACIT, Circle-3, Ranchi

ITA 195/RAN/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8709 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 22-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Capital Gains
• Section: 69; 144; 143(3); 56(2); 201; 251; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH E COURT AT KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 1 95 / RAN / 201 9 ASSESSMENT YEAR :2015-16 SRI BINOY KUMAR SINGH C/O M/S ABHAY ENTERPRISES, SUDNA, DALTONGANJ [ PAN NO.AFZPS 8151 C ] V/S . ACIT, CIRCLE-3 3 RD FLOOR, CENTRAL REVENUE BUILDING, RANCHI-834001 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI DEVESH PODDAR, ADVOCATE /BY RESPONDENT SHRI A.K. MOHANTI, ADDL. CIT-SR-DR /DATE OF HEARING 21-07-2020 /DATE OF PRONOUNCEMENT 21-07-2020 / O R D E R PER BENCH (ORAL):- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2015-16 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-RANCHIS ORDER DATED 07.03.2019 PASSED IN CASE NO. CIT(A), RANCHI/10258/2017-18, IN VOLVING PROCEEDINGS U/S 144 R.W.S.143(3) THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD SHRI DEVESH PODDAR AND SHRI A.K. MOHANTI, FOR THE ASSESSEE AND DEPARTMENT; RESPECTIVELY. 2. IT TRANSPIRES DURING THE COURSE OF HEARING THAT THE ASSESSEES SOLE SUBSTANTIVE GRIEVANCE CHALLENGES THE CIT(A)S ACTIO N MAKING TO SECTION ITA NO.195/RAN/2019 A.Y. 2015-16 SRI BINOY KR. SINGH VS. ACIT CIR-3, RAN PAGE 2 56(2)(VII) ADDITION OF 44.80 LAKH IN LOWER APPELLATE ORDER AS AGAINT SEC. 69 UNEXPLAINED INVESTMENT ADDITION OF 115,12,000/- INVOKED DURING THE REGULAR ASSESSMENT IN ISSUE. LEARNED DEPARTMENTAL REPRESENT ATIVE FAILS TO DISPUTE THE CLINCHING FACT THAT THE IMPUGNED ADDITION U/S 56(2) (VII) NEVER FORMED SUBJECT- MATTER OF ASSESSEES GROUNDS IN THE LOWER APPELLATE PROCEEDINGS NOR ANY SUCH ISSUE HAD ARISEN IN THE ASSESSMENT ORDER. THIS TRIB UNALS CO-ORDINATE BENCHS DECISION IN BIKRAM SINGH VS.DCIT, CIRCLE-15(1), NEW DELHI IN ITA NO. 3522/DEL/2013 DECIDED ON 13.04.2016 REVERSES SIMILAR ADDITION AS UNDER:- 11 . WE HAVE PERUSED ALL THE RECORDS AND HEARD BOTH TH E COUNSELS, IT IS PERTINENT TO KNOW THAT THE ASSESSING OFFICER HAS NO T DEALT THE REPLY AND THE ENCLOSURES/DOCUMENTS GIVEN ON THE DATE OF ASSES SMENT ORDER I.E. 19/11/2011, THE SAME WAS NOT TESTIFIED BEFORE THE C IT(A). THE CIT(A) SHOULD HAVE TAKEN COGNIZANCE OF ALL THOSE RECORDS A ND THE LETTERS. THIS SHOWS THAT THE CIT (A) HAS TOTALLY IGNORED THIS LET TER ALONG WITH THE ENCLOSURES/DOCUMENTS AND PASSED THE ORDER ACCORDING LY WHICH IS NOT TENABLE UNDER THE LAW. THE APPROPRIATE OPPORTUNITY WAS NOT GIVEN TO THE ASSESSEE. THE A.O HAS PROCEEDED TO COMPUTE INCOME O F THE ASSESSEE ON THE BASIS OF THE INCOME AS PER INTIMATION U/S 14 3(1) OF THE ACT; WHEREAS THE A.O WAS REQUIRED TO COMPUTE THE INCOME OF THE ASSESSEE ON THE BASIS OF INCOME RETURNED. THIS WAS A GROUND RAISED BEFORE THE CIT(A) AND IS A PART OF GROUND OF APPEALS IN THE PR ESENT APPEAL. IT BEING WHOLLY LEGAL GROUND OF THE APPEAL DESERVES TO BE AD JUDICATED. THE ASSESSING OFFICER HAS ACTED BEYOND THE JURISDICTION BY COMPUTING INCOME OF THE ASSESSEE ON THE BASIS OF THE INCOME A S PER SECTION 143(3) WHERE AS THE INTIMATION WAS U/S 143(1). THE CIT(A) ACTED BEYOND ITS POWER BY DIRECTING THE ASSESSING OFFICER TO TAX THE CAPITAL GAINS IN RESPECT OF SALE OF LAND AT GURGAON, THOUGH , THERE WAS NO ADDITION MADE BY THE ASSESSING OFFICER IN THE ASSES SMENT ORDER TO THAT RESPECT. CAPITAL GAIN IS AN INDEPENDENT AND DIFFERE NT SOURCE OF INCOME AND WAS NOT THE SUBJECT MATTER OF APPEAL BEFORE HIM NOR WAS THE ISSUE CONSIDERED BY THE ASSESSING OFFICER BY FRAMING AN A SSESSMENT ORDER. INSTEAD, THE ASSESSING OFFICER TERMED THE SAME AS C OMMISSION ON THE SALE OF LAND. THE LD. AR HAS RELIED ON THE VARIOUS CASE LAWS MORE PRECIOUSLY THAT OF SHAPOORJI PALLONJI MISTRY VS. CIT REPORTED IN 34 ITR 342 ( CONFIRMED BY THE APEX COURT IN 44 ITR 891 ) WHEREIN THE HONBLE BOMBAY HIGH COURT WHILE DEALING WITH THE POWERS OF THE CIT(A) HELD THAT CIT(A) WAS NOT EMPOWER TO ENHANCE AN INCOME ON AN ISSUE WHICH WAS NOT THE SUBJECT MATTER OF THE ASSESSMENT. THE R ATIO LAID DOWN IN THE JUDGMENT OF FULL BENCH OF DELHI HIGH COURT IN THE C ASE OF CIT VS. SARDARI LAL & CO. REPORTED IN 251 ITR 864 IS ALSO RELEVANT IN ASSESS EES CASE THAT THE CIT(A) CANNOT TOUCH UPON AN ISSUE WHICH DO ES NOT ARISE FROM ITA NO.195/RAN/2019 A.Y. 2015-16 SRI BINOY KR. SINGH VS. ACIT CIR-3, RAN PAGE 3 THE ORDER OF THE ASSESSMENT AND WAS OUTSIDE THE SCO PE OF THE ORDER OF THE ASSESSMENT. THE ORDER OF THE CIT(A) DOES NOT SU STAIN. WE ADOPT THE ABOVE EXTRACTED DETAILED REASONING MUT ATIS MUTANDIS AND DIRECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED ADDITI ON. 3. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT AT THE CLOSE OF HEAR ING ON TUESDAY 21 ST JULY, 2020 SD/- SD/- ( ') ($% ') (DR. A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) *DKP SR.P.S. &- 21 / 07/ 20 20 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SRI BINOY KUMAR SINGH, C/O M/S ABHAY ENT ERPRISES, SUDNA, DALTONGANJ, JHAR KHAND-822101 2. /RESPONDENT-ACIT, CIR-3, 3 RD FLOOR, CENTRAL REVENUE BUILDING, RANCHI-834001 3. 0 3 / CONCERNED CIT RANCHI 4. 3- / CIT (A) RANCHI 5. 6 %%0, 0, / DR, ITAT, RANCHI 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ 0,