M/s Kandhari Infrastructures Private Limited, Chandigarh V. Assitant Commissioner of income tax-Circle-2(1), Chandigarh

ITA 197/CHANDI/2020

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1188 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 25-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SUDERSHAN
• Assessee Lawyers: VINEET KHUR ANA
• Keywords: Application of stay; Question of law; Right to appeal; Revised return; Capital Gains
• Section: 143(3); 250; 201; 251; 73; 13; 119; 22

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH , CHANDIGARH , !' # $ % &' , '( BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 194 TO 197/CHD/2020 / A.YS : 2009-10 TO 2012-13 M/S KANDHARI INFRASTRUCTURE PRIVATE LIMITED, 177-F, INDUSTRIAL AREA, PHASE-1, CHANDIGARH THE ACIT, CIRCLE-2(1), CHANDIGARH PAN NO: AACCK7075L APPELLANT RESPONDENT & S.A. NOS. 13 TO 16/CHD/2020 IN ITA NO. 194 TO 197/CHD/2020 / A.YS : 2009-10 TO 2012-13 M/S KANDHARI INFRASTRUCTURE PRIVATE LIMITED, 177-F, INDUSTRIAL AREA, PHASE-1, CHANDIGARH THE ACIT, CIRCLE-2(1), CHANDIGARH PAN NO: AACCK7075L APPELLANT RESPONDENT ! / ASSESSEE BY : SHRI TEJ MOHAN SINGH, ADVOCATE & SHRI VINEET KHURANA, CA ' ! / REVENUE BY : SHRI ARVIND SUDERSHAN, JCIT # $ % / DATE OF HEARING : 20.03.2020 &'() % / DATE OF PRONOUNCEMENT : 06.05.2020 ') / ORDER PER BENCH : THE PRESENT APPEALS HAVE BEEN PREFERRED BY THE ASSE SSEE AGAINST THE ORDER DATED 27.12.2019 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-1, CHANDIGARH [HEREINAFTER REFERRED TO A S CIT (A)]. ALONGWITH THE PRESENT APPEALS, THE ASSESSEE HAS ALS O FILED APPLICATIONS SA-13 TO 16-CHD-2020 & ITA NOS. 194 TO 197/CHD/202 0 M/S KHANDHARI INFRASTRUCTURE PVT LIMITED . SEEKING STAY AGAINST THE RECOVERY OF THE TAX DEMAND ALONG WITH INTEREST FOR THE ASSESSMENT YEARS UNDER CONSIDERATION . 2. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED T HAT THE ASSESSEE HAS ALREADY DEPOSITED 27.2% OF THE DISPUTED TAX DEM AND FOR THE ASSESSMENT YEAR 2009-10 AND 20% OF THE TAX DEMAND F OR THE REMAINING ASSESSMENT YEARS. 3. THE SOLE ISSUE INVOLVED IN THESE APPEALS IS REGA RDING THE DETERMINING THE ANNUAL LETTING VALUE (ALV) OF ONE O F THE PROPERTY OF THE ASSESSEE WHICH REMAINED VACANT DURING THE PERIO D RELATING TO THE PREVIOUS YEARS RELEVANT TO THE ASSESSMENT YEARS UN DER CONSIDERATION. 4. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE WAS POSSESSED OF TWO PROPERTIES, ONE PROPERTY NO.13 AT LAJPAT NAGAR, NEW DELHI AND THE OTHER PROPERTY NO. 73 SITUATED AT RING ROAD, LAJPAT NAGAR-III, NEW DELHI, AS PER THE DETAILS GIVEN BELOW. STATUS OF PROPERTY PARTICULARS PROPERTY NO . 73 PROPERTY NO. 13 OWNERSHIP KIPL KIPL VACANT POSSESSION STAY ORDER OF THE GRANTED BY HON'BLE HIGH COURT, DELHI ON 28.09.2006 IN CS (OS) NO. 1863/2006 DIRECTING THAT TILL THE ABOVE ORDER WAS VACATED OR MODIFIED, DEFENDANT NO. 2 SHALL BE RESTRAINED FROM TRANSFERRING, ALIENATING OR ENCUMBERING KIPL, HAD VACANT POSSESSION SA-13 TO 16-CHD-2020 & ITA NOS. 194 TO 197/CHD/202 0 M/S KHANDHARI INFRASTRUCTURE PVT LIMITED . PROPERTY BEARING NO. 73, RING ROAD, LAJPAT NAGAR-III, NEW DELHI REMAINED IN FORCE. WHETHER THE PROPERTY COULD BE LET OUT NO. YES 5. THE ASSESSING OFFICER ISSUED NOTICE TO THE ASSES SEE AS TO WHY THE ALV OF ONE OF THE PROPERTY I.E PROPERTY NO. 13 BE N OT DETERMINED AS PER THE PROVISIONS OF SECTIONS 22 & 23 OF THE INCOME TA X ACT, 1961 (IN SHORT 'THE ACT'). IN REPLY, THE ASSESSEE COULD NOT FURNISH THE SUFFICIENT REASONS FOR NOT DETERMINING THE ALV OF PROPERTY NO. 13 AS PER THE PROVISIONS OF THE INCOME TAX ACT. THE ASSESSING OFF ICER, THEREFORE, DETERMINED THE ALV OF PROPERTY NO. 13 AS PER MARKET RATE AND ACCORDINGLY MADE THE IMPUGNED ADDITIONS AFTER GIVIN G THE BENEFIT TO THE ASSESSEE OF STATUTORY DEDUCTIONS. 6. BEING AGGRIEVED BY THE ABOVE ORDER OF THE ASSESS ING OFFICER, THE ASSESSEE PREFERRED APPEALS BEFORE THE CIT(A). BEFO RE THE LD. CIT(A), THE ASSESSEE TOOK THE STAND THAT PROPERTY NO.13 WAS SELF-OCCUPIED PROPERTY, HENCE, AS PER THE PROVISIONS OF THE INCOM E TAX ACT, NO ALV COULD HAVE BEEN DETERMINED. SO FAR AS PROPERTY NO. 73 IS CONCERNED, THE ASSESSEE SUBMITTED THAT THERE WAS A RESTRAIN ORDER PASSED BY THE HON'BLE HIGH COURT (IN CS (OS) APPEAL NO. 1863/2006) NOT ONLY IN RESPECT OF PETITION FILED BY M/S ISHVAKOO GRAND PLAZA I.E. TEN ANT IN THE PROPERTY AGAINST THE THEN LANDLORD OF THE PROPERTY FROM WHO M THE ASSESSEE HAS SA-13 TO 16-CHD-2020 & ITA NOS. 194 TO 197/CHD/202 0 M/S KHANDHARI INFRASTRUCTURE PVT LIMITED . PURCHASED THE PROPERTY IN THE YEAR 2005, WHEREIN, T HE SAID TENANT M/S ISHVAKOO GRAND PLAZA HAD TAKEN THE PLEA THAT HE HA D PREEMPTION RIGHT AND THAT HE SHOULD BE GIVEN FIRST OFFER TO PURCHASE THE PROPERTY AT THE RATE AT WHICH THE SAME WAS SOLD TO THE ASSESSEE. SECONDLY, THE ASSESSEE ALSO PREFERRED A CIVIL SUIT AGAINST THE SAID M/S IS HVAKOO GRAND PLAZA FOR VACATION OF THE PROPERTY FOR NON-PAYMENT OF REN T IN SUIT NO.CS(OS) NO. 101/2007. 7. THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER DATED 6.8.2007 OF THE HON'BLE DELHI HIGH COUR T PASSED IN INTERIM APPLICATION I.E. IA NO.647/2007 AND IA 649/2007 (U /O 39 RULE 1 AND 2 OF CPC) IN CS (OS) NO. 101/2007. THE CONTENTS OF TH E ORDER FOR THE SAKE OF THE READY REFERENCE ARE REPRODUCED AS UNDER :- 06.08.2007 PRESENT : MR ABHINAV VASHIST, ADVOCATE FOR THE PLAN TIFF MR. R.S. ENDLAWA, ADVOCATE FOR THE DEFENDANT + IA NO.647/200 (U/O 39 R 10 OF CPC) AND IA NO.649/ 2007 (U/O 39 RS 1 & 2 OF CPC) IN CS (OS) NO. 101/2007 * ON HEARING LEARNED COUNSEL FOR THE PARTIES, IT IS AGREED AS UNDER WITHOUT PREJUDICE TO THE RIGHTS AND CONTENTIONS OF THE PARTIES IN THE SUIT: 1. INTERIM ORDERS DATED 19.01.2007 TO CONTINUE TILL THE DISPOSAL OF THE SUIT. 2. THE DEFENDANT AGREED TO SURRENDER POSSESSION OF THE SUIT PREMISES TO THE PLAINTIFF. 3. THE PLAINTIFF WILL TAKE NECESSARY STEPS WITH THE MCD FOR GETTING THE PREMISES DE-SEALED. SA-13 TO 16-CHD-2020 & ITA NOS. 194 TO 197/CHD/202 0 M/S KHANDHARI INFRASTRUCTURE PVT LIMITED . 4. ON SUCH DE-SEALING TAKING PLACE, AN INVENTORY WI LL BE MADE IN RESPECT OF THE GOODS AND IMPROVEMENTS IN THE PREMISES BE CA RRIED OUT BY THE DEFENDANT. FOR THIS PURPOSE, MR. HORA GURKAMAL AROR A, ADVOCATE, CHAMBER NO.640, LAWYERS' CHAMBERS, WESTERN WING, TI S HAZARI, DELHI; MOB. [phone] IS APPOINTED AS THE LOCAL COMMISSIONER TO VISIT THE PREMISES AND MAKE THE INV ENTORY. THE LOCAL COMMISSIONER CAN ENGAGE A PHOTOGRAPHER FOR THE SAID PURPOSE. THE FEE OF THE LOCAL COMMISSIONER SHALL BE RS. 15,000/- APA RT FROM OUT OF POCKET EXPENSES TO BE EQUALLY SHARED BY THE PARTIES. 5. IT WILL BE OPEN TO THE PLAINTIFF TO LET OUT THE PREMISES BUT AFTER MOVING AN APPROPRIATE APPLICATION BEFORE: THIS COURT SEEKI NG LEAVE AND LIBERTY FOR THE SAID PURPOSE . IT IS CLARIFIED THAT SUCH LE AVE WILL BE GRANTED ONLY UNDER DIRECTIONS OF THE COURT WITH NOTICE TO THE LE SSEE THAT IN CASE THE PLAINTIFF FAILS IN THE SUIT, NO SPECIAL EQUITIES SH ALL BE CLAIMED BY THE TENANT. IN CASE THE PLAINTIFF WANTS TO USE THE PREM ISES OR PART THEREOF ITSELF AFTER DE-SEALING THEN NO FURTHER PERMISSION IN THAT BEHALF IS REQUIRED. THE APPLICATIONS STAND DISPOSED OF. AUGUST 06, 2007 SD/- SANJAY KISHAN KAUL, J. 8. A PERUSAL OF THE ABOVE ORDER OF THE HON'BLE DELH I HIGH COURT REVEALS THAT FIRSTLY THE PROPERTY WAS SEALED BY THE MCD. SECONDLY, THAT THERE WAS A RESTRICTION PUT BY THE HON'BLE DELHI HI GH COURT FOR FURTHER LETTING OUT OF PROPERTY WITHOUT CONSENT OF M/S ISH VAKOO GRAND PLAZA. HOWEVER, THERE WAS NO RESTRICTION FOR THE SELF-OCC UPATION OF THE PROPERTY AFTER GETTING IT DE-SEALED FROM THE MCD. THE LD. COUNSEL, THEREFORE, HAS RELIED UPON THE PAPER BOOK PAGES 10 TO 13 TO SUBMIT THAT THE PROPERTY, IN FACT, WAS DESEALED IN THE YEAR 201 0 BY THE MCD. THAT PRIOR TO THAT, THE PROPERTY WAS SEALED BY THE MCD, HENCE, THE ASSESSEE WAS NOT ABLE TO RENT OUT THE PROPERTY. THE ASSESSE E COULD NOT USE IF FOR SA-13 TO 16-CHD-2020 & ITA NOS. 194 TO 197/CHD/202 0 M/S KHANDHARI INFRASTRUCTURE PVT LIMITED . SELF-OCCUPATION ALSO. IT HAS BEEN SUBMITTED THAT T HE PROPERTY NO.13 WAS, IN FACT, SELF-OCCUPIED BY THE ASSESSEE. HOWEVER, THE LD. CIT(A) HAS NOT GIVEN ANY FINDINGS ON ANY OF THE PLEA TAKEN BY THE ASSESSEE BEFORE HIM. THE ORDER OF THE CIT(A) IS SILENT RELATING TO ALL THESE ASPECTS. THE PLEA TAKEN BY TH E ASSESSEE IS BASED ON DOCUMENTARY EVIDENCE WHICH SHOULD HAVE BEEN REQUIRE D TO BE LOOKED INTO BY THE CIT(A) AS THE POWERS OF THE CIT(A) ARE CO-TERMINUS WITH THAT OF THE ASSESSING OFFICER. IT HAS BEEN HELD TIM E AND AGAIN BY THE HON'BLE APEX COURT AND HON'BLE HIGH COURT OF THE CO UNTY THAT EVEN IF A PLEA HAS NOT BEEN MADE BEFORE THE AO, IT CAN BE MAD E BEFORE THE APPELLATE AUTHORITIES. THE JURISDICTION OF THE APPE LLATE AUTHORITIES TO ENTERTAIN SUCH A CLAIM IS NOT BARRED. THIS ISSUE HAS BEEN DECIDED BY THE COORDINATE BENC H OF THE TRIBUNAL VIDE ORDER DATED 31.8.2017 IN M/S JSW HOL DINGS LTD.,VS. DCIT ITA NO. 714/MUM/2015 FOR ASSESSMENT YEAR 201 1-12, WHEREIN IT HAS BEEN HELD AS UNDER:- 10. WE HAVE CONSIDERED THE RIVAL CONTENTIONS. THE QUESTION AS TO WHETHER THE ASSESSEE CAN TAKE AN ADD ITIONAL GROUND AT APPELLATE STAGE EVEN WHEN THE SAME HAS NO T BEEN RAISED BEFORE THE LOWER AUTHORITIES HAS BEEN THOROU GHLY DISCUSSED BY CO-ORDINATE MUMBAI BENCH OF THE TRIBUN AL IN THE CASE OF PANDOO P. NAIG IN ITA NO.7089/MUM/201 1 DECIDED ON 24.06.2016 [2016 (9) TMI 1062]. THE TRIBUNAL, WHILE RELYING UPON THE DECISION OF THE HO NBLE SA-13 TO 16-CHD-2020 & ITA NOS. 194 TO 197/CHD/202 0 M/S KHANDHARI INFRASTRUCTURE PVT LIMITED . SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWE R COMPANY LTD. VS. CIT 229 ITR 383, FULL BENCH OF TH E HONBLE HIGH COURT IN THE CASE OF AHMEDABAD ELECTR ICITY CO. LTD. VS. CIT (1993) 199 ITR 351, ANOTHER DECIS ION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V S. CIT VS. PRUTHVI BROKERS AND SHAREHOLDERS PVT. LTD. (2012) 349 ITR 336 (BOM.) HAS HELD THAT THE APPELLA TE AUTHORITIES HAVE JURISDICTION TO DEAL NOT MERELY WI TH ADDITIONAL GROUND WHICH BECAME AVAILABLE ON ACCOUNT OF CHANGE OF CIRCUMSTANCES OR LAW, BUT WITH ADDITIONAL GROUNDS WHICH WERE AVAILABLE WHEN THE RETURN WAS FI LED. THE RELEVANT PART OF THE ORDER OF THE TRIBUNAL IN T HE CASE OF PANDOO P. NAIG FOR THE PURPOSE OF REFERENCE IS REPRODUCED AS UNDER: 19. NOW COMING TO THE POINT, WHETHER, THE CLAIM PU T BY THE ASSESSEE SHRI PANDOO P. NAIG BY WAY OF ADDITIONAL G ROUND BEFORE THE LD. CIT(A) REGARDING THE DELETION OF ADDITION O F RS.4 CRORE OFFERED DURING THE SURVEY ACTION AND THEREBY OFFERE D IN THE RETURN OF INCOME CAN BE ALLOWED AT THIS STAGE? THE LD. COUNSEL FOR THE ASSESSEE IN THIS RESPECT HA S PLACED RELIANCE ON THE DECISION OF THE HONBLE SUPREME COU RT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT 229 I TR 383. THE FACTS BEFORE THE HONBLE SUPREME COURT WERE THA T THE ASSESSEE IN THAT CASE OFFERED THE INTEREST AMOUNT F OR TAXATION AND THE ASSESSMENT WAS COMPLETED ON THAT BASIS. BEFORE THE LD. CIT(A), THE ASSESSEE THOUGH HAD TAKEN A NUMBER OF G ROUNDS OF APPEAL, HOWEVER, THE INCLUSION OF THE SAID AMOUNT O F INTEREST WAS NOT CHALLENGED. THE INCLUSION OF THE SAID AMOUNT O F INTEREST WAS NOT OBJECTED TO EVEN IN THE GROUNDS OF APPEAL AS OR IGINALLY FILED BEFORE THE TRIBUNAL. HOWEVER, THE ASSESSEE BY WAY OF SUBSEQUENT LETTER RAISED THE ADDITIONAL GROUND IN RELATION TO THE SAID INCLUSION OF INTEREST INTO THE INCOME OF THE ASSESSEE. IN TH E ABOVE CIRCUMSTANCES, THE QUESTION BEFORE THE HONBLE SUPR EME COURT WAS WHERE ON THE FACTS FOUND BY THE AUTHORITIES BE LOW A QUESTION OF LAW ARISES (THOUGH NOT RAISED BEFORE THE AUTHORI TIES) WHICH BEARS ON THE TAX LIABILITY OF THE ASSESSEE, WHETHER THE TRIBUNAL HAS SA-13 TO 16-CHD-2020 & ITA NOS. 194 TO 197/CHD/202 0 M/S KHANDHARI INFRASTRUCTURE PVT LIMITED . JURISDICTION TO EXAMINE THE SAME? THE HONBLE SUP REME COURT WHILE ANSWERING THE SAID QUESTION OBSERVED THAT UND ER SECTION 254 OF THE INCOME TAX ACT, THE POWER OF THE TRIBUNAL IN DEALING WITH THE APPEALS IS EXPRESSED IN THE WIDEST POSSIBLE TER MS; THE POWER OF THE TRIBUNAL UNDER SECTION 254 IS NOT RESTRICTED ON LY TO DECIDE THE GROUNDS WHICH ARISE FROM THE ORDER OF THE COMMISSIO NER OF INCOME TAX (APPEALS); THAT BOTH THE ASSESSEE AS WEL L AS THE DEPARTMENT HAVE A RIGHT TO FILE AN APPEAL/CROSS OBJ ECTION BEFORE THE TRIBUNAL AND THE TRIBUNAL IS NOT PREVENTED FROM CONSIDERING QUESTIONS OF LAW ARISING IN ASSESSMENT PROCEEDINGS ALTHOUGH NOT RAISED EARLIER. WHILE ANSWERING THE QUESTION IN AF FIRMATIVE, THE HONBLE SUPREME COURT CONCLUDED THAT THE TRIBUNAL H AS JURISDICTION TO EXAMINE A QUESTION OF LAW WHICH ARI SES FROM THE FACTS AS FOUND BY THE AUTHORITIES BELOW AND HAVING A BEARING ON THE TAX LIABILITY OF THE ASSESSEE. 20. THE FACTS OF THE CASE IN HAND ARE ON BETTER FOO TING. IN THE CASE IN HAND, THOUGH UNDER CONSISTENT PRESSURE, THE ASSESSEE OFFERED THE ADDITIONAL INCOME FOR TAXATION IN THE A SSESSMENT PROCEEDINGS BUT WHEN HE WAS BURDENED WITH MANY MORE ADDITIONS, HE AT THE FIRST INSTANCE DURING THE APPEAL BEFORE T HE LD. CIT(A), CHALLENGED THE OFFER OF ADDITIONAL INCOME ON THE BA SIS OF STATEMENT RECORDED UNDER SECTION 133A. EVEN THE SAID GROUND WAS ALSO ADMITTED BY THE LD. CIT(A) FOR ADJUDICATION THOUGH FINALLY DECIDED AGAINST THE ASSESSEE. THE FULL BENCH OF THE HONBL E BOMBAY HIGH COURT IN THE CASES OF AHMEDABAD ELECTRICITY COMPAN Y LTD. VS. CIT AND GODAVARI SUGAR MILLS LTD. VS. CIT BY WAY OF A COMMON ORDER DATED 30.04.1992 (1993) 199 ITR 351 HA S OBSERVED THAT THE BASIC PURPOSE OF AN APPEAL PROCEDURE IN AN INCOME TAX MATTER IS TO ASCERTAIN THE CORRECT TAX LIABILITY OF THE ASSESSEE IN ACCORDANCE WITH LAW. THEREFORE, AT BOTH THE STAGES , EITHER BY THE APPELLATE ASSISTANT COMMISSIONER OR BEFORE THE APPE LLATE TRIBUNAL, THE APPELLATE AUTHORITY CAN CONSIDER THE PROCEEDINGS BEFORE IT AND THE MATERIAL ON RECORD BEFORE IT FOR THE PURPOSE OF DETERMINING THE CORRECT TAX LIABILITY OF THE ASSESS EE. THE APPELLATE AUTHORITIES, OF COURSE, CANNOT TRAVEL BEYOND THE PR OCEEDINGS AND EXAMINE NEW SOURCE OF INCOME, FOR THAT PURPOSE OTHE R SEPARATE REMEDIES ARE PROVIDED TO THE DEPARTMENT UNDER THE I NCOME TAX SA-13 TO 16-CHD-2020 & ITA NOS. 194 TO 197/CHD/202 0 M/S KHANDHARI INFRASTRUCTURE PVT LIMITED . ACT. THE HONBLE FULL BENCH OF THE BOMBAY HIGH COU RT OBSERVED THAT APART FROM THE ABOVE, THERE WAS NOTHING IN SEC TION 254 OR SECTION 251 WHICH WOULD INDICATE THAT THE APPELLATE AUTHORITIES ARE CONFINED TO CONSIDERING ONLY THE OBJECTIONS RAI SED BEFORE THEM OR ALLOWED TO BE RAISED BEFORE THEM EITHER BY THE A SSESSEE OR BY THE DEPARTMENT, AS THE CASE MAY BE. THEY CAN CONSI DER THE ENTIRE PROCEEDINGS TO DETERMINE THE TAX LIABILITY OF THE A SSESSEE. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V S. PRUTHVI BROKERS AND SHAREHOLDERS PVT. LTD. (2012) 349 ITR 336 (BOM.) HAS OBSERVED THAT THE ASSESSEE IS ENTITLED TO RAISE NOT MERELY ADDITIONAL LEGAL SUBMISSIONS BEFORE THE APPELLATE A UTHORITIES, BUT IS ALSO ENTITLED TO RAISE ADDITIONAL CLAMS BEFORE T HEM. THE APPELLATE AUTHORITIES HAVE JURISDICTION TO DEAL NOT MERELY WITH ADDITIONAL GROUNDS, WHICH BECAME AVAILABLE ON ACCOU NT OF CHANGE OF CIRCUMSTANCES OR LAW, BUT WITH ADDITIONAL GROUND S WHICH WERE AVAILABLE WHEN THE RETURN WAS FILED. THE WORDS CO ULD NOT HAVE BEEN RAISED MUST BE CONSTRUED LIBERALLY AND NOT ST RICTLY. THERE MAY BE SEVERAL FACTORS JUSTIFYING THE RAISING OF A NEW PLEA IN AN APPEAL AND EACH CASE MUST BE CONSIDERED ON ITS OWN FACTS. THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF S HRI CHANDRASHEKHAR BAHIRWANI ITA NO.7810/M/2010 AND 6599/M/2011 VIDE ORDER DATED 17.06.2015 WHILE DECID ING THE QUESTION AS TO WHETHER THE INCOME CANNOT BE ASSESSE D LESS THAN THE RETURNED INCOME HAS OBSERVED AS UNDER: 5. NOW COMING TO THE FINDING OF THE LD. CIT(A), TH AT INCOME CANNOT BE ASSESSED LESS THAN THE RETURNED IN COME, THE LD. A.R. OF THE ASSESSEE HAS SUBMITTED BEFORE U S THAT THE ACTION OF THE LD. CIT(A) IN REJECTING THE CLAIM OF THE ASSESSEE ON THIS GROUND WAS NOT JUSTIFIED. HE HAS FURTHER RELIED UPON THE DECISION OF THE HONBLE GUJARAT HIG H COURT IN THE CASE OF GUJARAT GAS LTD. VS. JCIT (2000) 2 45 ITR 84. IN THE SAID CASE, THE WORDS OF THE CIRCULAR NO .549, PARA 5.12, DT. 31 ST OCTOBER, 1989, PROVIDING THAT THE ASSESSED INCOME UNDER SECTION 143(3) SHALL NOT BE L ESS THAN THE RETURNED INCOME WAS CONSIDERED BY THE HONBLE H IGH COURT AND IT WAS HELD THAT AS PER PROVISO TO SECTIO N 119 OF SA-13 TO 16-CHD-2020 & ITA NOS. 194 TO 197/CHD/202 0 M/S KHANDHARI INFRASTRUCTURE PVT LIMITED . THE ACT, THE BOARD CANNOT ISSUE INSTRUCTIONS TO THE INCOME TAX AUTHORITY TO MAKE A PARTICULAR ASSESSMENT OR TO DISPOSE OF A PARTICULAR CASE IN A PARTICULAR MANNER AS WELL AS NOT TO INTERFERE WITH THE DISCRETION OF THE COMM ISSIONER IN EXERCISE OF HIS APPELLATE FUNCTIONS. IT WAS FUR THER HELD THAT THE AO, WHILE EXERCISING HIS QUASI JUDICIAL PO WERS, WAS NOT BOUND BY THE SAID CIRCULAR AND SHOULD HAVE EXER CISED HIS POWERS INDEPENDENTLY. THE HONBLE HIGH COURT, THEREFORE, DIRECTED THE AO TO MAKE THE ASSESSMENT W ITHOUT KEEPING IN MIND THE SAID CIRCULAR. IT MAY BE FURTH ER OBSERVED THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF PRUTHVI BROKERS & SHAREHOLDERS PVT. LTD. ITA N O.3908 OF 2010 DECIDED ON 21.06.12, WHILE RELYING UPON THE VARIOUS DECISIONS OF THE HONBLE SUPREME COURT AND OTHER HONBLE HIGH COURTS HAS HELD THAT EVEN IF A CLAIM I S NOT MADE BEFORE THE AO, IT CAN BE MADE BEFORE THE APPEL LATE AUTHORITIES. THE JURISDICTION OF THE APPELLATE AUTH ORITIES TO ENTERTAIN SUCH A CLAIM IS NOT BARRED. THE HONBLE H IGH COURT HAS FURTHER OBSERVED THAT THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LIMITE D V. CIT (2006) 157 TAXMAN 1, RELATING TO THE RESTRICTI ON OF MAKING THE CLAIM THROUGH A REVISED RETURN WAS LIMIT ED TO THE POWERS OF THE ASSESSING AUTHORITY AND THE SAID JUDGMENT DOES NOT IMPINGE ON THE POWER OR NEGATE TH E POWERS OF THE APPELLATE AUTHORITIES TO ENTERTAIN SU CH CLAIM BY WAY OF ADDITIONAL GROUND. EVEN OTHERWISE, THE LD . CIT(A) OUGHT TO HAVE CONSIDERED THE CLAIM OF THE AS SESSEE IN EXERCISE OF HIS APPELLATE JURISDICTION UNDER SEC TION 250 OF THE ACT. MOREOVER, IF THE ASSESSEE IS, OTHERWIS E, ENTITLED TO A CLAIM OF DEDUCTION BUT DUE TO HIS IGNORANCE OR FOR SOME OTHER REASON COULD NOT CLAIM THE SAME IN THE R ETURN OF INCOME, BUT HAS RAISED HIS CLAIM BEFORE THE APPELLA TE AUTHORITY, THE APPELLATE AUTHORITY SHOULD HAVE LOOK ED INTO THE SAME. THE ASSESSEE CANNOT BE BURDENED WITH THE TAXES WHICH HE OTHERWISE IS NOT LIABLE TO PAY UNDER THE L AW. EVEN A DUTY HAS ALSO BEEN CAST UPON THE INCOME TAX AUTHO RITIES TO CHARGE THE LEGITIMATE TAX FROM THE TAX PAYERS. T HEY ARE NOT THERE TO PUNISH THE TAX PAYERS FOR THEIR BONAFI DE SA-13 TO 16-CHD-2020 & ITA NOS. 194 TO 197/CHD/202 0 M/S KHANDHARI INFRASTRUCTURE PVT LIMITED . MISTAKES. IN VIEW OF OUR ABOVE OBSERVATIONS, IT IS HELD THAT THE ASSESSEE IS NOT LIABLE TO PAY CAPITAL GAINS TAX , THOUGH ORIGINALLY HE HAD SUBJECTED HIMSELF TO THE SAID TAX AS PER HIS RETURN OF INCOME. THE AO IS DIRECTED TO PROCESS THE CLAIM OF REFUND IN THIS RESPECT AS PER PROVISIONS O F THE LAW. 21. IN VIEW OF THE ABOVE OBSERVATION, WE HOLD THAT THE LD. CIT(A) THOUGH, RIGHTLY ADMITTED THE QUESTION OF LAW AS TO WHETHER THE INCOME OFFERED BY THE ASSESSEE IN THE RETURN OF INCOME CONSEQUENT TO OFFER MADE IN HIS STATEMENT RECORDED DURING THE SURVEY ACTION CAN BE CHALLENGED BEFORE THE APPELLAT E AUTHORITY, BUT WRONGLY DECIDED THE SAME IN FAVOUR OF REVENUE. IN VIEW OF OUR FINDINGS GIVEN ABOVE AND IN VIEW OF THE VARIOUS CAS E LAWS AS DISCUSSED ABOVE, WE HAVE NO HESITATION TO HOLD THAT THE ADDITIONAL INCOME WAS RETURNED BY THE ASSESSEE PERHAPS UNDER F ORCE, PRESSURE, THREAT OR COERCION AND UNDER THE MISTAKEN BELIEF. THE ASSESSEE, IN OUR VIEW, WAS NOT LIABLE TO PAY TAX ON THE SAID ADDITIONAL INCOME RETURNED. WE ACCORDINGLY DIRECT THE DEPARTMENT TO REFUND THE TAXES, IF ANY, PAID BY THE ASSESSEE IN RESPECT OF ADDITIONAL INCOME OFFERED DURING THE SUR VEY ACTION. EVEN AS PER THE PROVISIONS OF SUB SECTION (4) AND S UB SECTION (5) OF SECTION 250 OF THE ACT, IT WAS REQUIRED OF THE CIT( A) TO LOOK INTO GROUNDS TAKEN BY THE ASSESSEE WHICH WERE BASED ON DOCUMENTARY EVIDENCE IN THE SHAPE OF COURT ORDERS AND ADJUDICAT E UPON THEM SO AS TO DETERMINE THE CORRECT TAX LIABILITY OF THE ASSESSEE . IN VIEW OF THIS, THE IMPUGNED ORDERS OF THE CIT(A) WHICH HAVE BEEN PASSED WITHOUT CONSIDERING THE PLEAS TAKEN BY THE ASSESSEE ARE NOT SUSTAINABLE IN THE EYE OF LAW. HOWEVER, THE ISSUE IS REQUIRED TO BE SA-13 TO 16-CHD-2020 & ITA NOS. 194 TO 197/CHD/202 0 M/S KHANDHARI INFRASTRUCTURE PVT LIMITED . RESTORED TO THE FILE OF THE CIT(A) FOR DECISION AFR ESH. WE ORDER ACCORDINGLY. 9. SINCE THE APPEALS HAVE BEEN DISPOSED OFF, HENCE, THE STAY APPLICATIONS HAVE BECOME INFRUCTUOUS AT THIS STAGE. ALL THE APPEALS OF THE ASSESSEE ARE TREATED AS ALL OWED FOR STATISTICAL PURPOSES. IN THE RESULT, THE APPEALS ARE OF THE ASSESSEE ARE TREATED AS ALLOWED, WHEREAS, THE STAY APPLICATIONS FILED BY THE ASSESSE E HAVE BECOME INFRUCTUOUS AND ARE ACCORDINGLY DISMISSED. . ORDER PRONOUNCED IN THE OPEN COURT ON 06.05.2020. SD/- SD/- ( # $ % &' / ANNAPURNA GUPTA) '( / ACCOUNTANT MEMBER ( / SANJAY GARG) / JUDICIAL MEMBER DATED : 06.05.2020 '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR SA-13 TO 16-CHD-2020 & ITA NOS. 194 TO 197/CHD/202 0 M/S KHANDHARI INFRASTRUCTURE PVT LIMITED .