Santosh Kumar Rawat, Lucknow V. Income Tax Officer, Lucknow

ITA 286/LKW/2015

• Counselvise Citation: 28623714 RSA 2015
• Duration Of Justice: 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-06-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 11-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SWATI RATNA
• Assessee Lawyers: K R RASTOGI
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Principle of natural justice; Fair market value
• Section: 50C; 2(14); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.286/LKW/2015 ASSESSMENT YEAR:2005-06 SANTOSH KUMAR RAWAT L/H LATE SITA RAM AURANGABAD KHALSA, BIJNORE V. INCOME TAX OFFICER RANGE IV(4) LUCKNOW TAN/PAN:BRZPR7874J (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. K. R. RASTOGI, C.A. RESPONDENT BY: SMT. SWATI RATNA, D.R. DATE OF HEARING: 26 06 2015 DATE OF PRONOUNCEMENT: 10 07 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS FILED BY THE LEGAL HEIR (L/R) OF THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS:- 1. THE LD. C.I.T. (A)-II, LKO., ERRED ON FACTS AND IN LAW IN PASSING APPELLATE ORDER IN THE NAME OF SITA RAM, WHO EXPIRED ON 06.12.2013 AND AS PER SUBMISSIONS DATED 23.12.2014 DEATH CERTIFICATE OF LATE SITA RAM WAS SUBMITTED ALONG WITH SUBMISSIONS UNDER THE SIGNATURE OF LEGAL HEIR OF LATE SITA RAM. 2. THE LD. C.I.T. (A) ERRED ON FACTS AND IN LAW IN UPHOLDING THE REASSESSMENT ORDER PASSED BY I.T.O., RANGE-IV(4), LKO, WITHOUT APPRECIATING THAT INITIALLY LD. I.T.O., RANGE-VL(4), HAD ISSUED NOTICE U/S 147 ON 28.03.2012 AFTER RECORDING REASONS FOR ESCAPEMENT INSPITE OF THE FACT HE DID NOT HAD VALID JURISDICTION AT THAT TIME, HENCE ISSUANCE OF NOTICE AND SUBSEQUENT :- 2 -: REASSESSMENT ARE INVALID. 3. THE LD. C.I.T. (A) DID NOT APPRECIATED THAT REASSESSMENT NOTICE ISSUED AFTER 4 YEARS BUT THERE IS NO SATISFACTION OF THE ASSESSING OFFICER THAT INCOME ESCAPING ASSESSMENT WAS LIKELY TO EXCEED RS. 1-00 LAC, ACCORDINGLY, THE ISSUANCE OF NOTICE AND SUBSEQUENT REASSESSMENT IS INVALID. 4. THE LD. C.I.T. (A) ERRED ON FACTS AND IN LAW IN TREATING THE AGRICULTURE LAND AS CAPITAL ASSET U/S 2(14) OF I. T. ACT, INSPITE OF THE FACT, THE LAND IS BEYOND THE LIMIT SPECIFIED U/S 2(14) OF 1. T. ACT, HENCE THE SALE OF AGRICULTURE LAND IS NOT SUBJECT TO INCOME TAX. 5. THE LD. C.I.T. (A) ERRED ON FACTS AND IN LAW IN NOT ALLOWING FOR REFERENCE TO DVO AS THE ACTUAL SALE CONSIDERATION IS LESS THAN THE VALUE UNDER SECTION 50C AND THE ACTUAL SALE CONSIDERATION IS FAIR MARKET VALUE AS ON DATE OF SALE. 6. THAT THE LONG TERM CAPITAL GAIN UPHELD IS HIGHLY EXCESSIVE, CONTRARY TO THE FACTS, LAW AND PRINCIPLE OF NATURAL JUSTICE WITHOUT PROVIDING SUFFICIENT TIME AND OPPORTUNITY TO HAVE ITS SAY ON THE REASONS RELIED UPON. 2. THROUGH GROUND NO.1, THE ORDER OF THE LD. CIT(A) IS ASSAILED ON THE GROUND THAT THE LD. CIT(A) HAS PASSED THE ORDER IN THE NAME OF THE DECEASED PERSON, THEREFORE, THE ORDER IS NOT MAINTAINABLE IN THE EYES OF LAW. IT WAS FURTHER CONTENDED THAT DURING THE COURSE OF PROCEEDINGS PENDING BEFORE THE LD. CIT(A), THE L/H OF THE ASSESSEE HAS DULY INFORMED THE LD. CIT(A) REGARDING THE DEMISE OF THE ASSESSEE WITH A REQUEST TO PASS AN ORDER IN THE NAME OF THE L/R OF THE ASSESSEE, BUT THE LD. CIT(A) HAS DECIDED THE APPEAL IN THE NAME OF THE DECEASED ASSESSEE WITHOUT REALIZING THAT THE ASSESSEE WAS NO MORE ALIVE. 3. THE LD. D.R. DID NOT DISPUTE THESE FACTS. :- 3 -: 4. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE ARE OF THE CONSIDERED VIEW THAT SINCE THE LD. CIT(A) HAS PASSED THE ORDER AGAINST A DECEASED PERSON, THE ORDER IS NOT MAINTAINABLE. WE, THEREFORE, SET ASIDE HIS ORDER AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE APPEAL AFRESH AFTER BRINGING THE L/R ON RECORD. THE L/R OF THE ASSESSEE IS ALSO DIRECTED TO DO THE NEEDFUL IN BRINGING THE L/R ON RECORD. ACCORDINGLY THE ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO HIS FILE WITH A DIRECTION TO PASS THE ORDER IN THE HANDS OF THE L/R OF THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:10 TH JULY, 2015 JJ:2606 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR