Hardev Singh, New Delhi V. ITO, New Delhi

ITA 2881/DEL/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87070 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 11-03-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 09-06-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN

Judgement Text

ITA 2881 & 2882/D/2010 ASSTT.YEAR: 2002-03 AND 2001-02 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `C NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO.2881/DEL/2010 & 2882/DEL/2010 ASSTT.YEAR: 2002-03 AND 2001-02 SHRI HARDEV SINGH, VS INCOME TAX OFFICER, B-3, GUJRANWALA TOWN, WARD 20(4), ROOM NO.303, PART-I, NEW DELHI. F BLOCK, VIKAS BHAWAN, (PAN: ANZPS9184M) NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI KAPIL GOE L, ADV. RESPONDENT BY : SHRI T. VASANTHAN, SR. DR DATE OF HEARING: 11.3.2015 DATE OF PRONOUNCEMENT: O R D E R PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THE ABOVE CAPTIONED APPEALS HAVE BEEN FILED AGAINST THE ORDER OF CIT(A)- XXII, NEW DELHI DATED 31.03.2010 PASSED IN APPEAL NO. 196/08-09 AND 197/08-09 FOR AY 2001-02 AND 2002-03 RESPECTIVELY. AT THE VERY OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN BOTH THE APPEALS, THE ASSESSEE DOES NOT WANT TO PRESS GROUND NO. 1, 2, 3 AND 4, THEREFO RE, THESE GROUNDS IN BOTH THE APPEALS ARE DISMISSED AS NOT PRESSED. THE REMAININ G GROUND NO. 5 IN ITA NO. 2882/DEL/2010 READS AS UNDER:- ITA 2881 & 2882/D/2010 ASSTT.YEAR: 2002-03 AND 2001-02 2 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT(A) ERRED IN NOT DELETI NG THE ADDITION OF RS.38,20,072 AS MADE BY LD. AO ON ACCOU NT OF ALLEGED CAPITAL GAINS, WHERE REVENUE HAS ACCEPTED C IT(A) (AMRITSAR)S FAVOURABLE ORDER IN CASES OF OTHER CO- OWNERS AND BUYERS. 2. THE REMAINING GROUND NO. 5 IN ITA NO. 2881/DEL/2 010 READS AS UNDER:- 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT(A) ERRED IN NOT DELETI NG THE ADDITION OF RS.3,66,666 AS MADE BY LD.AO ON ACCOUNT OF ALLEGED CAPITAL GAINS, WHERE REVENUE HAS ACCEPTED C IT(A)- (AMRITSAR)S FAVOURABLE ORDER IN CASES OF OTHER CO- OWNERS AND BUYERS. 3. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE CIT(A) ERRED IN NOT DELETING THE ADDITION OF RS .38,20,072 AND RS. 3,66,666 AS MADE BY LD. AO IN AY 2001-02 AND 2002-03 RESPECT IVELY ON ACCOUNT OF ALLEGED CAPITAL GAINS, SPECIALLY WHEN THE REVENUE H AS ACCEPTED THE ORDER OF THE CIT(A) (AMRITSAR) FAVOURABLE TO THE OTHER CO-OWNERS AND BUYERS, WHEREIN SIMILAR ADDITIONS HAVE BEEN FOUND TO BE UNSUSTAINAB LE AS THE ADDITIONS MADE BY THE AO IN THE CASE OF AMRITSAR RICE MILLS PVT. LTD. ON THE SIMILAR SET OF FACTS AND ALLEGATION HAS BEEN UPHELD. LD. COUNSEL HAS AL SO DRAWN OUR ATTENTION TOWARDS PAPER BOOK PAGE NO. 79 TO 99 AND SUBMITTED THAT WHEN THE SUBSTANTIAL ADDITIONS HAVE BEEN MADE IN THE CASE OF RESPECTIVE COMPANY VIZ. AMRITSAR RICE MILLS LTD., THEN ADDITION ON SIMILAR GROUND WAS HEL D TO BE NOT SUSTAINABLE IN THE CASE OF OTHER CO-OWNERS AND BUYERS AND THE ASSESSE E IS ALSO ONE OF THE CO- OWNERS, THEREFORE, THE ADDITIONS MADE IN THE HANDS OF ASSESSEE ARE ALSO NOT ITA 2881 & 2882/D/2010 ASSTT.YEAR: 2002-03 AND 2001-02 3 SUSTAINABLE IN THE LIGHT OF DECISION OF CIT (A) AMR ITSAR IN THE CASE OF OTHER CO- OWNERS AND BUYERS. 4. REPLYING TO THE ABOVE, LD. DR SUBMITTED THAT DES PITE SEVERAL EFFORTS, HE IS UNABLE TO GET FINAL REPORT FROM CIT(A) AMRITSAR ABO UT THE CASES OF OTHER CO- OWNERS AND BUYERS AND THE DEPARTMENT HAS NO SERIOUS OBJECTION IF THE SOLE ISSUE INVOLVED IN BOTH THE APPEALS IS RESTORED TO THE FIL E OF AO FOR VERIFICATION AND EXAMINATION IN ACCORDANCE WITH THE ORDERS OF CIT(A) , AMRITSAR IN THE CASE OF OTHER CO-OWNERS AND BUYERS. 5. LD. COUNSEL OF THE ASSESSEE PLACING REJOINDER ON ABOVE SUBMISSION OF THE REVENUE SUBMITTED THAT THE AO CANNOT BE ALLOWED TO TAKE A SECOND ROUND OF PROCEEDINGS MERELY BECAUSE THE DEPARTMENT IS UNABLE TO FIND OUT FINAL POSITION OF THE CASES OF THE OTHER CO-OWNERS AND BUYERS WHO ARE BEING ASSESSED AT AMRITSAR. HOWEVER, SUBSEQUENTLY, LD. COUNSEL OF TH E ASSESSEE SUBMITTED THAT IF IT IS FOUND JUST AND PROPER, THEN THE SOLE ISSUE IN VOLVED IN BOTH THE APPEALS MAY BE RESTORED TO THE FILE OF AO FOR LIMITED PURPOSE O NLY. 6. ON CONSIDERATION OF ABOVE SUBMISSIONS OF BOTH TH E SIDES AND ON VIGILANT PERUSAL OF MATERIAL PLACED ON RECORD BEFORE US, WE ARE OF THE CONSIDERED VIEW THAT WHILE THE CIT(A), AMRITSAR HAS DELETED THE ADD ITION IN THE CASES OF OTHER CO-OWNERS AND BUYERS ON THE SIMILAR SET OF FACT AND CIRCUMSTANCES THEN OBVIOUSLY IN A PECULIAR SITUATION WHEN IT IS UNDISP UTED THAT THE ASSESSEE IS ALSO ONE OF THE CO-OWNERS, THEN SIMILAR ADDITIONS, DELET ED BY THE CIT(A), AMRITSAR ITA 2881 & 2882/D/2010 ASSTT.YEAR: 2002-03 AND 2001-02 4 IN THE CASE OF OTHER CO-OWNERS AND BUYERS, CANNOT B E SUSTAINED IN THE CASE OF PRESENT APPELLANT ASSESSEE. 7. WE MAY FURTHER POINT OUT THAT DESPITE SEVERAL OPPORTUNITIES, WHICH HAVE BEEN AFFORDED TO THE REVENUE, LD. DR IS UNABLE TO G ET A FINAL REPORT AND STATUS OF THE CASE OF OTHER CO-OWNERS AND BUYERS. UNDER THE SE FACTS AND CIRCUMSTANCES, WHEN BOTH THE PARTIES ARE AGREED THAT THE ISSUE MAY BE RESTORED TO THE FILE OF AO FOR VERIFICATION AND EXAMINATION IN THE LIGHT OF DE CISION OF CIT(A)-AMRITSAR IN THE CASES OF OTHER CO-OWNERS AND BUYERS, THEN WE FI ND IT JUST AND PROPER TO RESTORE THE ISSUE TO THE FILE OF AO. HENCE, SOLE I SSUE IN BOTH THE APPEALS IS RESTORED TO THE FILE OF AO FOR VERIFICATION AND EXA MINATION IN THE MANNER AS INDICATED ABOVE AFFORDING DUE OPPORTUNITY OF HEARIN G FOR THE ASSESSEE FOR THIS LIMITED PURPOSE ONLY. ACCORDINGLY, GROUND NO.5 IN BOTH THE APPEALS IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, BOTH THE APPEALS ARE DEEMED T O BE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16.3.2015. SD/- SD/- (S. V. MEHROTRA) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 16TH MARCH 2015 GS ITA 2881 & 2882/D/2010 ASSTT.YEAR: 2002-03 AND 2001-02 5 COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER ASSTT.REGISTRAR