ITO 2 (2), Indore V. Smt Shiv Kumari maurya, Indore

ITA 290/Ind/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7716 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 06-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VINITA DUBEY
• Assessee Lawyers: N O N E
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Source of fund; Set aside
• Section: 143(3); 54B; 50C

Judgement Text

[ITA NOS.290&291/IND/2018] [SMT. SHIV KUMARI MAURYA & SMT. RITA BAI MAURYA, INDORE] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.290/IND/2018 ASSESSMENT YEAR: 2012-13 ITO - 2(2) INDORE / VS. SMT. SHIV KUMARI MAURYA 33/4, PERDESHIPURA, INDORE ( APPELLANT ) ( REVENUE ) P.A. NO. DMNPS6463K ITA NO.291/IND/2018 ASSESSMENT YEAR: 2012-13 ITO - 2(2) INDORE / VS. SMT. RITA BAI MAURYA 33/4, PERDESHIPURA, INDORE (APPELLANT) (REVENUE ) P.A . NO. CKDPB6076J APPELLANT BY SMT. VINITA DUBEY, SR.D.R. RESPONDENT BY N O N E DATE OF HEARING: 22.07.2019 DATE OF PRONOUNCEMENT: 24.07.2019 [ITA NOS.290&291/IND/2018] [SMT. SHIV KUMARI MAURYA & SMT. RITA BAI MAURYA, INDORE] 2 / O R D E R PER KUL BHARAT, J.M: THESE TWO APPEALS BY THE REVENUE ARE PERTAINING TO THE ASSESSMENT YEAR 2012-13 AGAINST TWO DIFFERENT ASSESSEES. THE REVENUE HAS RAISED IDENTICAL GROUNDS EXCEPT CHANGE INTO FIGURES. BOTH THE APPEALS WERE TAKEN UP TOGETHER FOR THE SAKE OF CONVENIENCE AND ARE BEING DISPOSED OF TOGE THER. FIRST WE TAKE UP THE ITA NO.290/IND/2018. THE REVEN UE HAS RAISED FOLLOWING GROUNDS OF APPEALS: 1. WHETHER IN THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE TOTAL ADDITION OF RS.1,81,83,477/- WHICH WAS MADE BY THE A.O. 2. WHETHER IN THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS .87,15,960/- WITHOUT GIVING ANY FINDING/ENQUIRY THAT LAND IS SIT UATED BEYOND 8 K.M. FROM MUNICIPAL LIMITS AND HOLDING THAT IT IS N OT CAPITAL ASSET. 3. WHETHER IN THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS .61,34,230/-, RS.31,69,000/- & RS.1,38,125/- WITHOUT GIVING ANY F INDING REGARDING ELIGIBILITY OF ASSESSEE FOR DEDUCTION U/S 54B OF THE I.T. ACT, 1961 AND SOURCE OF FUNDS. 4. WHETHER IN THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS .1,81,83,477/- IN LUMP SUM WITHOUT INDIVIDUALLY DISCUSSING VARIOUS GR OUNDS RAISED BY ASSESSEE. [ITA NOS.290&291/IND/2018] [SMT. SHIV KUMARI MAURYA & SMT. RITA BAI MAURYA, INDORE] 3 2. THE FACTS IN BRIEF ARE THAT THE CASE OF THE ASSESSEE WAS REOPENED AND THE ASSESSMENT U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) WAS FRAMED VIDE ORDER DATED 27.12.2016. THE A.O. OBSERVE D THAT THE ASSESSEE HAD SOLD A LAND TO M/S. GOLD CITY DEVELOPERS FOR A SALE CONSIDERATION OF RS.1,02,24,000/ -. FURTHER, THE STAMP VALUE OF THE SAME PROPERTY WAS RS.1,89,39,960/-. THE A.O. THEREFORE INVOKING PROV ISIONS OF SECTION 50C OF THE ACT ADDED THE DIFFERENCE AMOUNT OF RS.87,15,960/-. FURTHER, THE A.O. OBSERVED THAT THE ASSESSEE HAD SOLD DIVERTED URBAN LAND TO DEVELOPMENT FO R DEVELOPING A COLONY AND CLAIMED DEDUCTION U/S 54B OF T HE ACT. THE A.O. REJECTED THE CLAIM OF DEDUCTION AND MAD E ADDITION OF RS.61,34,230/-. FURTHER, THE A.O. OBSER VED THAT THE PAYMENTS WERE MADE THROUGH CASH. HOWEVER, TH E ASSESSEE HAS NOT DISCLOSED THIS CASH COMPONENT, THUS MADE ADDITION OF RS.31,69,000/-. [ITA NOS.290&291/IND/2018] [SMT. SHIV KUMARI MAURYA & SMT. RITA BAI MAURYA, INDORE] 4 3. AGGRIEVED BY THIS ORDER, ASSESSEE PREFERRED AN APP EAL BEFORE THE LD. CIT(A). THE A.O. ALSO MADE ADDITION O F RS.1,38,125/- BY DISALLOWING THE CLAIM OF THE ASSESSEE IN RESPECT OF PURCHASE CONSIDERATION OF THE AGRICULTURAL LAND. AGAINST THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD . CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS ALLOWED THE APPEAL. 4. IT IS NOTICED THAT ON THE LAST DATE OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE THE SERVICE OF NOTICE. AGAIN A NOTICE OF HEARING WAS SENT WHICH IS RECEIVED BACK UNSERVED WITH A REMARK FROM THE POSTAL AUTHORITY DOES NOT RESIDE HERE. HENCE, THE APPEAL W AS TAKEN UP FOR HEARING IN THE ABSENCE OF THE ASSESSEE. A T THE OUTSET, LD. CIT(DR) POINTED OUT THAT THE LD. CIT(A) ALLOWED THE APPEAL WITHOUT GIVING OPPORTUNITY TO THE A.O. LD . D.R. SUBMITTED THAT NO REMAND REPORT WAS CALLED BY THE LD. CIT(A) FROM THE A.O. LD. D.R. AT THE OUTSET SUBMITT ED THAT [ITA NOS.290&291/IND/2018] [SMT. SHIV KUMARI MAURYA & SMT. RITA BAI MAURYA, INDORE] 5 THE IMPUGNED ORDER IS NON-SPEAKING AND CRYPTIC. THE FINDING OF THE A.O. IS NOT ADVERTED IN DETAIL. 4. WE HAVE HEARD THE LD. CIT(DR). WE FIND THAT THE LD . CIT(A) HAS DECIDED THE ISSUE IN HIS ORDER IN PARAS 3.1 .4 & 3.1.5 BY OBSERVING AS UNDER: 3.1.4 AT THE TIME OF ORIGINAL ASSESSMENT THE ASSESS ING OFFICER HAD HELD THAT THE APPELLANT HAD SOLD DIVERTED LAND TO M /S. GOLD CITY DEVELOPERS. A FORENSIC REPORT HAS BEEN SUBMITTED W HICH STATES THAT THE THUMB IMPRESSION AS ON THE DIVERSION DEED DOES NOT TALLY WITH THE THUMB IMPRESSION OF THE APPELLANT. M/S. GOLD C ITY DEVELOPERS HAS FRAUDULENTLY DIVERTED THE SAID AGRICULTURAL LAN D BY FORGING THE SIGNATURE OF THE APPELLANT. THE APPELLANT HAS FILE D A COMPLAINT AGAINST SHRI MAHAVEER JAIN, PARTNER OF M/S. GOLD CI TY DEVELOPERS. THE NEWSPAPER REPORT CUTTINGS HAVE ALSO BEEN PLACED ON RECORD WHICH SHOWS THAT SHRI MAHAVEER JAIN HAS DEFRAUDED T HE PUBLIC. THUS, FROM THE REMAND REPORT OF THE ASSESSING OFFIC ER IT IS CLEAR THAT THE APPELLANT HAS SOLD AGRICULTURAL LAND. THIS VIE W IS ALSO BEEN UPHELD BY THE CIT(A)-III, INDORE WHILE DECIDING THE APPEAL OF THE FOLLOWING FOR A.Y. 2011-12 WHERE THE SUBSTANTIVE AD DITION HAD BEEN MADE. THE CIT(A)-III, INDORE DECIDED THE APPEAL IN FAVOUR OF THE APPELLANT VIDE APPEAL NO.IT-1237/2015-16 DATED 29.9 .2017. 3.1.5 IN VIEW OF THE ABOVE, AS THE APPELLANT HAS SO LD AGRICULTURAL LAND WHICH IS EXEMPT FROM LONG TERM CAPITAL GAIN TA X THE ADDITIONS OF RS.1,81,57,320/- MADE BY THE ASSESSING OFFICER C ANNOT BE UPHELD. THEREFORE, THE ADDITION MADE BY THE A.O. A MOUNTING TO RS.1,81,57,320/- IS DELETED. THEREFORE, THE APPEAL ON THESE GROUNDS IS ALLOWED. 5. WE AGREE WITH THE LD. D.R. THAT ORDER IS NON-SPEAKI NG, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS, THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORE D TO THE FILE OF LD. CIT(A) TO DECIDE IT AFRESH AFTER PASSI NG A [ITA NOS.290&291/IND/2018] [SMT. SHIV KUMARI MAURYA & SMT. RITA BAI MAURYA, INDORE] 6 SPEAKING ORDER ON EVERY FINDING OF THE A.O. HENCE, THE GROUNDS RAISED IN THE APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. 6. NOW WE TAKE UP ITA NO.291/IND/2018. THE REVENUE HAS RAISED IDENTICAL GROUNDS EXCEPT INTO FIGURES. SIN CE THE APPEAL OF THE REVENUE IN ITA NO.290/IND/2018 IS DECID ED IN PARA 4 & 5 ABOVE, THE SAME FINDINGS MAY ALSO BE APPLICABLE FOR THIS APPEAL AND THE GROUNDS RAISED IN THI S APPEAL ARE ALSO ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEALS FILED BY THE REVENUE IN ITA NOS.290 & 291/IND/2018 FOR THE ASSESSMENT YEAR 2012-1 3 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 24 . 07.2019. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 24/07/2019 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER ASSISTANT REGISTRAR, INDORE