SHRI GAJANAND MAHESHWARI, Bhopal V. THE ITO 1(2), Bhopal

ITA 30/IND/2015

• Counselvise Citation: 3022714 RSA 2015
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 09-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: JATIN SEHGAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Principle of natural justice; Reason to believe
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO. 30/IND/2015 A.Y. : 2006-07 SHRI GAJANAND MAHESHWARI, ITO, BHOPAL VS 1(2). BHOPAL APPELLANT RESPONDENT PAN NO. AAZPM9844M APPELLANT BY : SHRI JATIN SEHGAL, ADV. RESPONDENT BY : SHRI R.A.VERMA, SR. DR DATE OF HEARING : 22 . 0 9 .201 5 DATE OF PRONOUNCEMENT : 22 . 0 9 .201 5 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-I, BHOPAL, DATED 14.10.2014 FOR THE ASSE SSMENT YEAR 2006-07. -: 2: - 2 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE PROCEEDINGS FOR REASSESSMENT U/S 147/148 ARE ILLEGAL, VOID AND WITHOUT JURISDICTION. THERE IS NO JUSTIFICATION IN AS MUCH AS THERE IS NO REASON TO BELIEVE FORMED BY THE AT) HIMSELF VIS-A-VIS SCRUTINY OF RETURN FILED BY THE ASSESSEE TO ARRIVE AT A CONCLUSION THAT INCOME HAS ESCAPED ASSESSMENT. THE LEARNED CIT(A) ALSO ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE SAID REASSESSMENT. 2. THAT THE A.O. HAD REOPENED THE ASSESSMENT ON THE BASIS OF AIR INFORMATION ALONE WITHOUT ANY EXAMINATION OF THE REGULAR RETURN FILED BY THE ASSESSEE AND HENCE THE REASSESSMENT IS INVALID AND WITHOUT JURISDICTION. 3. THAT THERE IS NO JUSTIFICATION EITHER IN LAW OR ON FACTS FOR TREATING AGRICULTURAL LAND SITUATED AT GRAM SIRWARD, TEHSIL BABAIHAS AS A CAPITAL ASSET U/S 2(14). -: 3: - 3 4. THAT THE AO ERRED BOTH IN LAW AND ON FACTS IN APPLYING SECTION 50C TO THE SALE OF THE AGRICULTURAL LAND. 5. THAT THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONCLUDING THAT THE APPELLANT IS NOT SERIOUS OR INTERESTED IN PURSUING THE APPEAL. 6. THAT THE APPELLANT HAD OFFERED TAX ON THE SALE OF AGRICULTURAL LAND BY WAY OF ABUNDANT CAUTION AND AS SUCH CANNOT BE AN STOPPED FROM PLEADING THAT THE LAND IN QUESTION WAS AN AGRICULTURAL LAND. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ASSESSMENT ORDER MERELY ON THIS ACCOUNT. THERE IS NO ESTOPPEL IN LAW MERELY BY THE TREATMENT MADE BY THE ASSESSEE IN ITS RETURN OF INCOME. 7. THAT' EVEN WHILE DECIDING THE APPEAL EX- PARTE ON THE BASIS OF MATERIAL ON RECORD, THE LEARNED CIT(A) WAS NOT JUSTIFIED IN NOT CONSIDERING THE FACTUAL MATRIX GIVEN BY THE APPELLANT IN' THE MEMO OF APPEAL INFORM NO, -: 4: - 4 35 AND AS SUCH THE ORDER OF CIT(A) DESERVES TO BE SET ASIDE. 3. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT NO PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE AND TH E LD. CIT(A) DISMISSED THE APPEAL SIMPLY AFTER APPLYING T HE PROVISIONS OF MULTIPLAN INDIA LIMITED. IT IS PRAYED THAT THE APPEAL MAY BE RESTORED BACK TO THE FILE OF THE LD. CIT(A). 4. THE LD. SENIOR D.R. OBJECTED TO RESTORATION AND REL IED UPON THE ORDERS OF THE LOWER AUTHORITIES. 5. I HAVE PERUSED THE ORDERS OF LOWER AUTHORITIES. I H AVE HEARD THE LD. SENIOR D.R. I FIND THAT THE LD. CIT(A ) HAS SIMPLY DISMISSED THE APPEAL BY APPLYING MULTIPLAN INDIA LI MITED, 38 ITD 320. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN OPPORTUNITY T O DEFEND HIMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGHT TO P RESENT CASE AND EVIDENCE, RIGHT TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION, DISCLOS URE OF -: 5: - 5 EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. WE FIND THAT THE RIGHT OF HEARING IS DECIDED BY THE HON'BLE SUPR EME COURT IN THE CASE OF MANEKA GANDHI VS. UNION OF INDIA, WH EREIN HON'BLE SUPREME COURT HAS HELD THAT RULE OF FAIR HE ARING IS NECESSARY BEFORE PASSING ANY ORDER. I FIND THAT IT IS PRE- DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. I FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS N OT GIVEN PROPER HEARING. THEREFORE, I AM OF THE VIEW T HAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNITY OF HEAR ING AND TO REPRESENT HIS CASE. THEREFORE, I ALLOW THIS APPE AL. THE ASSESSEE IS DIRECTED TO REMAIN PRESENT BEFORE THE L D. CIT(A) WITHIN 2 MONTHS AFTER THE RECEIPT OF THIS ORDER. TH E LD. CIT(A) SHOULD DECIDE THE APPEAL AFTER GIVING DUE OPPORTUNI TY OF -: 6: - 6 HEARING TO THE ASSESSEE AS PER LAW. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 22 ND SEPTEMBER, 2015. SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 22 ND SEPTEMBER, 2015. CPU* 229