Dilpreet Singh, Mohali V. ITO, Mohali

ITA 301/CHANDI/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9942 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTA SR DR
• Keywords: Capital asset; Depreciation; Application of stay; Cost of acquisition; Fair market value; Corroborative evidences; Valuation report; Set aside
• Section: 54F; 2(14); 195; 250; 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JUDICIAL MEMBER ./ ITA NO. 301/CHD/2017 / ASSESSMENT YEAR : 2009-10 SHRI DILPREET SINGH, HOUSE NO. 482, PHASE-1, MOHALI. VS THE ITO, WARD 6(2), MOHALI. ./ PAN NO. : BTXPS3701B / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : NONE # ! ' / REVENUE BY : SMT. CHANDERKANTA, SR.DR $ % ! & / DATE OF HEARING : 22.01.2019 '()* ! & / DATE OF PRONOUNCEMENT : 01.04.2019 $%/ ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASS AILING THE CORRECTNESS OF THE ORDER DATED 05.12.2016 OF CIT(A)-2, CH ANDIGARH PERTAINING TO 2009-10 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS : 1. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TA X (APPEALS) - 2, CHANDIGARH IS DEFECTIVE BOTH IN LAW AND FACTS OF TH E CASE. 2. THAT THE LD. CIT (A) - 2, CHANDIGARH IS UNJUSTIFIED IN UPHOLDING THE RE-ASSESSMENT FRAMED U/S 147 R.W.S. 148 OF THE I.T. ACT, 1961 BY THE LD. ASSESSING OFFICER WHICH IS BAD IN LAW AS THE RE ASONS RECORDED WERE ON THE BASIS OF INCOMPLETE VERSION OF NOTIFICA TION WITHOUT ANY PROOF AND PROPER SATISFACTION. 3. THAT THE LD. CIT (A) - 2, CHANDIGARH IS UNJUSTIFIED IN UPHOLDING THE ORDER OF THE LD. ASSESSING OFFICER REGARDING ADDITION OF RS.24,64,857/- UNDER THE HEAD LONG TERM CAPITAL GAI NS AS THE AGRICULTURAL LAND SOLD BY THE APPELLANT IS NOT A CA PITAL ASSET U/S 2(14) OF THE I.T. ACT, 1961 BEING BEYOND THE NOTIFIED LIM ITS. THIS ADDITION IS UNCALLED FOR AND DESERVES TO BE DELETED. 4. THAT THE LD. CIT (A) - 2, CHANDIGARH IS UNJUSTIFIED IN UPHOLDING THE ORDER OF THE LD. ASSESSING OFFICER REGARDING ADDITION OF RS.24,64,857/- UNDER THE HEAD LONG TERM CAPITAL GAI NS AS THE LD. ASSESSING OFFICER HAS APPLIED HIS OWN FAIR MARKET V ALUE OF THE LAND AS ON 01-04-1981 INSTEAD OF THE VALUE TAKEN BY THE APP ELLANT ON THE BASIS OF VALUATION REPORT CERTIFIED BY A GOVERNMENT APPRO VED QUALIFIED VALUER. THIS ADDITION IS UNCALLED FOR AND DESERVES TO BE DELETED. 5. THAT ANY OTHER GROUND MAY KINDLY BE ALLOWED TO BE T AKEN AT THE TIME OF APPEAL WITH DUE PERMISSION. ITA 301/CHD/2017 A.Y. 2009-10 PAGE 2 OF 9 2. AT THE TIME OF HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. THE APPEAL WAS PASSED OVER. IN THE SECOND ROUND ALSO, NO ONE WAS PRESENT. ACCORDINGLY, CONSIDERING THE PECULIAR FACTS A ND CIRCUMSTANCES ON RECORD AFTER HEARING THE LD. SR.DR IT WAS DEEMED APPROPRIATE TO PROCEED WITH THE PRESENT APPEAL EX-PART E QUA THE ASSESSEE APPELLANT ON MERITS. 3. THE RECORD SHOWS THAT THE APPEAL OF THE ASSESSEE W AS DISMISSED EARLIER IN LIMINE ON 28.03.2017 BY ORDER DATED 05.04.2017. THE ASSESSEE, THEREAFTER FILED M.A./78/CHD/2017 WHEREIN THE ASSESSEE PLEADED LD. ARS MEDICAL REASONS AS AN INABILITY TO BE PRESENT ON THE SPECIFIC DATE. CONSIDERING THE FACTS, THE ORDER WAS RECALLED BY AN ORDER DATED 25.10.2017. THEREAFTER, THOUGH THE APPEAL COME UP FOR HEA RING ON VARIOUS DATES, HOWEVER ON THE REQUESTS FOR TIME MOVED BY THE ASSESSEE, IT WAS ADJOURNED. IN THE CIRCUMSTANCES IT WAS DEEMED APP ROPRIATE TO PROCEED WITH THE PRESENT APPEAL EX-PARTE QUA THE ASSE SSEE ON MERITS AS GRANT OF ANY FURTHER TIME CONSIDERING THE FACTS OF THE CAS E MAY NOT SERVE ANY PURPOSE. ACCORDINGLY, IN THE INTERESTS OF SUBSTANTIAL JUSTICE, IT IS DEEMED APPROPRIATE TO ADDRESS THE ISSUES RAISED IN THE PRESENT APPEAL AFTER HEARING THE LD. SR.DR. 4. GROUND NO. 1 RAISED BY THE ASSESSEE IN THE PRESENT APPEAL IS GENERAL IN NATURE IN AS MUCH AS THE ISSUES RAISED THEREIN ARE ELABORATED VIDE GROUND NOS. 2 TO 4 AND THUS, THE FIRST GROUND REQUIR ES NO SPECIFIC ADJUDICATION. 5. ADDRESSING THE ISSUES RAISED IN THE SECOND GROUND, IT IS SEEN THAT THE ASSESSEE CHALLENGED THE RE-OPENING OF THE ASSESSMEN T BEFORE THE CIT(A). THE CHALLENGE WAS REJECTED ON THE FOLLOWING REASONS : 5.1 AS THE OMISSION OF THIS GROUND FROM THE FOR M OF APPEAL WAS NOT WILLFUL, THIS GROUND OF APPEAL IS ADMITTED FOR ADJUDICATION AS PE R THE PROVISIONS OF SECTION 250(5) OF THE ACT. THE ASSESSING OFFICER FORMED HIS REASONS TO BELIEVE THAT SOME INCOME HAD ESCAPED ASSESSMENT AND SO ISSUED NOTICE U/S 148 OF THE ACT. IT HAS BEEN HELD BY HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. RAJESH JHAVERI STOCK BROKER S PVT. LTD. (291 ITR 500) THAT AT THE STAGE OF ISSUE OF NOTICE U/S 148, THE ONLY QUESTION TO BE SEEN IS WHETHER THERE WAS RELEVANT MATERIAL, ON THE BASIS OF WHICH A REASONAB LE PERSON COULD HAVE FORMED THE REQUISITE BELIEF. WHET HER MATERIAL WOULD CONCLUSIVELY PROVE ESCAPEMENT OF INCOME IS NOT THE CONCERN AT TH E STAGE OF ISSUE OF NOTICE U/S 148. IT IS SO BECAUSE THE FORMATION OF BELIEF IS WI THIN THE REALM OF THE SUBJECTIVE SATISFACTION OF THE ASSESSING OFFICER . IN VIEW OF THE JUDGMENT OF HON'BLE SUPREME COURT (SUPRA) AND BY RESPECTFULLY OWING THE SAME, THE ACTION OF THE ASSESSING OFFICER OF RE-OPENING THE ASSESSMENT IS HELD. THIS ADDITIONAL GROUND OF A PPEAL TAKEN BY THE APPELLANT IS DISMISSED. ITA 301/CHD/2017 A.Y. 2009-10 PAGE 3 OF 9 6. AGGRIEVED THE ASSESSEE IS IN APPEAL. HOWEVER, IN THE ABSENCE OF ANY MATERIAL ON RECORD BY WAY OF SUBMISSIONS ETC. OR FOR THAT MATTER ANY REPRESENTATION ON BEHALF OF THE ASSESSEE DESPITE OPPORTU NITY THE CHALLENGE FAILS. AS NOTICED, CONSIDERING THE SUBMISSIONS OF THE REVENU E, AND ON A CONSIDERATION OF THE MATERIAL AVAILABLE ON RECORD, I FIND NO GOOD REASON AVAILABLE ON RECORD WHICH WOULD JUSTIFY AN INTERFERENCE IN T HE CONCLUSION ARRIVED AT. BEING SATISFIED WITH THE SAME ON THE FACTS AS THEY STAND GROUND NO. 2 RAISED BY THE ASSESSEE IS DISMISSED. 7. ON A PERUSAL OF THE FACTS RELATABLE TO THE ISSUES RAISE D IN GROUND NO. 3 AND 4 BY THE ASSESSEE, IT IS SEEN THAT THE ASSESS EE IS FOUND TO HAVE SOLD LAND AT VILLAGE BALLOMAJRA, MOHALI DURING THE RELEVANT ASS ESSMENT YEAR ALONGWITH OTHERS. BASED ON THE INFORMATION MADE AVA ILABLE TO THE ASSESSING OFFICER (AO) THAT CAPITAL GAINS ON THE SA LE OF THESE LANDS HAS ESCAPED ASSESSMENT, THE A.O INITIATED RE-ASSESSMENT PROCEE DINGS BY ISSUE OF NOTICE U/S 148 OF THE ACT. CONSIDERING THE COMPUTA TION OF INCOME FILED ON BEHALF OF THE ASSESSEE DURING THE ASSESSME NT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE HAS DECLARED CAPITAL G AINS AT NIL AFTER CLAIMING DEDUCTION U/S 54F. THE A.O. REQUIRED THE ASSESSEE TO JUSTIFY ITS CLAIM BY REQUIRING THE ASSESSEE TO PROVIDE THE DETAI LS OF COMPUTATION OF CAPITAL GAINS. 7.1 THE DETAILS FILED WERE CONSIDERED TO BE NOT ACCE PTABLE. THE A.O OBSERVED THAT THE LAND SOLD WAS SITUATED WITHIN ONE KILOMETER OF MOHALI KHARAR ROAD AND IT WAS A CAPITAL ASSET WITHIN THE M EANING OF SECTION 2(14) OF THE ACT FOR THE PURPOSE OF SECTION 45. FURTHER CO NSIDERING THE VALUATION REPORT RELIED UPON BY THE ASSESSEE, HE NOTED THAT THE ASSESSEE HAD COMPUTED CAPITAL GAINS BY ADOPTING THE INDEXED COST OF LAND. THE AO OBSERVED THAT THE VALUER HAD TAKEN THE FAIR MARK ET VALUE OF THE LAND AS ON 01.04.1981 WITH THE REMARKS THAT 'PURSUANT TO THE REQUEST FROM MR. GULZAR SINGH AND SH. DILPREET SINGH, RESIDENT OF VILL. BALLOMAJRA TEHSIL AND DISTT. MOHALI INSPECT THE SITE ON 26.03.2010. B ASED ON THE PHYSICAL INSPECTION AND THE PARTICULAR PROVIDED BY, DETAILED VALUATION REPORT TO ASSESS THE VALUE ON 01.04.1981, THE REPORT IS FURNISHED BELOW. ' ASSESSING OFFICER REJECTED THE VALUATION REPORT OF THE VALUER AS THE SAME WAS HELD TO BE NOT RELIABLE BECAUSE IT WAS FOUND TO HAVE BEEN B ASED MERELY ON THE OPINION OF THE VALUER AND NOT SUBSTANTIATED WITH ANY DOCUMENTARY/ EVIDENCE. IT WAS FURTHER OBSERVED BY THE A.O. THAT THE ASSESSEE HAS NOT ITA 301/CHD/2017 A.Y. 2009-10 PAGE 4 OF 9 FILED EVEN A SINGLE CASE OF SALE EFFECTED THROUGH REGIS TRY TO SUPPORT HIS CLAIM. THE AO, ACCORDINGLY, OBTAINED COPIES OF SALE DE EDS OF FIVE CASES FROM THE OFFICE OF REGISTRAR, ROPAR AND TAKING THE AVERAGE @ RS. 279.43 PER MARLA COMPUTED THE LONG TERM CAPITAL GAIN AND AFTER ALLOWING BENEFIT U/S 54F TO THE ASSESSEE WHICH RESULTED IN THE ADDITION OF RS. 24,64,857/- AS LONG TERM CAPITAL GAINS. 8. IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, THE ASS ESSEE ASSAILED THE ACTION STATING THAT THE ANCESTRAL LAND HAD BEEN ACQ UIRED BEFORE 1981 AND THE COST OF ACQUISITION HAD BEEN COMPUTED ON THE BA SIS OF FAIR MARKET VALUE AS ON 01.04.1981 AS ASSESSED BY THE GOVER NMENT APPROVED VALUER. THE ACTION OF THE AO IN RELYING UPON THE SALE IN STANCES WERE ASSAILED ON THE REASONING THAT THE VALUE OF EVERY PROPER TY VARIES AND IS DEPENDENT ON VARIOUS FACTORS. RELIANCE WAS PLACED UPON R EPORT OF THE VALUER WHICH SO AS TO ARGUE THAT THE ASSESSEE'S LAND WAS NOT SIT UATED ON A PRIME LOCATION ON THE NATIONAL HIGHWAY. THE AOS ARBITRARY ESTIMATION WAS ASSAILED ON VARIOUS OTHER GROUNDS INCLUDING THE GROUN D THAT THE AO WAS NOT A TECHNICAL PERSON. 8.1 THESE SUBMISSIONS DID NOT FIND FAVOUR WITH THE CIT(A) WHO HELD THAT; THE CASES RELIED UPON BY THE APPELLANT ARE DISTING UISHABLE FROM THE FACTS IN THE CASE OF THE ASSESSEE AS IN THIS CASE ASSESSI NG OFFICER HAS NOT SUBSTITUTED THE VALUATION REPORT BY HIS OWN SUBJECTIVE ESTIMATI ON BUT BASED ON FACTUAL INFORMATION OBTAINED FROM REVENUE AUTHORITY. THEREF ORE, FAIR MARKET VALUE ADOPTED BY THE ASSESSING OFFICER IS UPHELD. GROUND OF APPEAL NO. 2 IS DISMISSED. 8.2. THE ASSESSEE'S SUBMISSION THAT THE LAND BEING SITUAT ED IN A RURAL AREA BEYOND THE MUNICIPAL LIMITS WAS NOT A CAPITAL AREA, ALSO DID NOT FIND FAVOUR WITH THE CIT(A). THE ASSESSEE SUPPORTED ITS CAS E BY RELYING UPON REPORT OF A PATWARI. THE EVIDENCE FILED WAS CONSIDERED TO BE VAGUE AND INFACT DISCARDED RELYING UPON THE VALUERS REPORT FILED BY THE ASSESSEE AT THE ASSESSMENT STAGE. THE AO HAD REJECTED THE VERY S AME REPORT AS BEING BASED ON PERSONAL OPINIONS INSTEAD OF EVIDENCES. 9. THE LD. SR.DR RELIED ON THE CONSISTENT ORDERS OF THE TA X AUTHORITY. HOWEVER, SHE WAS UNABLE TO ADDRESS ON QUERY WHY THE M ATTER WAS NOT REFERRED TO THE DVO IF THE REGISTERED VALUERS REPORT WA S TO BE DISCARDED ITA 301/CHD/2017 A.Y. 2009-10 PAGE 5 OF 9 BY THE AO AND RELIED UPON BY THE CIT(A) TO DISCARD THE FU RTHER SUPPORTING EVIDENCES OF THE ASSESSEE NAMELY REPORT OF A PATWARI. 10. I HAVE HEARD THE SUBMISSIONS. ON A CONSIDERATION OF THE FACTS ON RECORD AND THE SUBMISSIONS ON BEHALF OF THE REVENUE I FIN D THAT THE DECISION MAKING PROCESS FOLLOWED BY THE LD. CIT(A) IS PATENTLY INCORRECT. THE LD. CIT(A) HOLDING THAT THE REPORT OF THE PATWARI RE LIED UPON WAS VAGUE SHOULD HAVE THEN CALLED FORTH FOR A SPECIFIC REPORT FR OM THE LAND REVENUE AUTHORITIES CONFRONTED THE SAME TO THE ASSESSE E AND DECIDED THE ISSUE. THE DECISION TO REJECT THE PATWARIS REPORT RELY ING ON THE VALUERS REPORT WHICH ANY WAY STOOD DISCARDED BY THE AO ON THE GROUNDS THAT IT WAS BASED ON MERE OPINIONS INSTEAD OF EVIDENCES MAKES TH E DECISION MAKING PROCEDURE QUESTIONABLE AND UNFAIR. THE APPROACH O F HEADS YOU LOOSE AND TAILS YOU LOOSE CANNOT BE GIVEN A LEGAL SANCTIO N. IF THE EVIDENCE RELIED UPON BY AN ASSESSEE WAS VAGUE, NOT RELEVANT, SUFFIC IENT OR COMPLETE, THE LD. CIT(A) OUGHT TO HAVE EXERCISED HIS POWERS UNDER SUB- SECTION (4) OF SECTION 250 OF THE INCOME TAX ACT, 1961 TO CALL FOR NECESSARY EVIDENCES EXERCISING THE POWERS VESTED IN HIS AUTHORITY VIDE SUB-RULE (4) OF RULE 46A OF THE INCOME TAX RULES, 1962 IN ORDER TO ENA BLE HIMSELF TO ADJUDICATE UPON THE ISSUE. THE FIRST APPELLATE AU THORITY UNDER THE ACT AND THE RULES HAD AMPLE POWERS TO CALL FOR THE REPORT FROM THE LAND REVENUE AUTHORITIES AND ALSO DIRECT THE AO TO PLACE A REMAND REPORT ON RECORD AFTER OBTAINING THE DVOS REPORT. IT IS WELL SETTLED THAT IF THE VERSION OF THE ASSESSEE RELYING ON THE APPROVED V ALUERS REPORT WAS TO BE DISCARDED, THEN THE TAX AUTHORITIES NECESSARILY N EED TO REFER THE MATTER TO THE DVO. SIMILARLY EVEN ON THE ISSUE OF LOCATION OF THE SPECIFIC PROPERTY, THE LAW IS WELL SETTLED THAT IT IS THE WORD OF THE LAND REVENUE AUTHORITIES WHICH IS THE LAST WORD. AS NOTED IN ORDER DAT ED 19.03.2019 IN ITA NO. 340/CHD/2017 SHRI IQBAL SINGHIT, THE STATE EXPECTS THE TAX ADMINISTRATORS TO ACT FAIRLY AND COMPETENTLY IN THE PERFORMANCE OF THEIR FUNDAMENTAL AND ONEROUS DUTY TO COLLECT TAXES ON ITS BE HALF. HOWEVER, IT IS WELL SETTLED AND NON NEGOTIABLE THAT THE TAXES SO TO BE COLLECTED NEED TO SATISFY THE TOUCHSTONES OF JUST AND DUE TAXES. THE WORD JUST PRESUPPOSES FAIRNESS IN THE ACTIONS OF THE TAX AD MINISTRATORS WHO ARE ACTING FOR AND ON BEHALF OF THE GOVERNMENT OF INDIA. THE MIND SET NEEDS TO BE RE-ORIENTED TO CONSCIOUSLY ACKNOWLEDGE THAT TH E DUTY AND POWER TO COLLECT TAXES IS NOT BEING EXERCISED ON BE HALF OF AN ALIEN ITA 301/CHD/2017 A.Y. 2009-10 PAGE 6 OF 9 FOREIGN POWER IN A COLONIAL STATE WHO MAY HAVE NEED ED TO FILL ITS COFFERS BY SUBJECTING ITS COLONIES TO THE ARBITRARY ACTIONS. THE POWER IS EXERCISED ON BEHALF OF THE STATE AND PRE-SU PPOSES THAT IT IS EXERCISED RESPONSIBLY AND FAIRLY. SIMILARLY IT HAS ALSO BEEN OBSERVED IN THE AFORESAID DECISION THAT; IN TODAYS DIGITAL WORLD, TAX COMPLIANCES NECESSARILY HAVE INCREASED, WITH BANKS, LAND REVENUE AUTHORITIES BEING INTEGRATED WITH TAX AUTHORITIES. HOWEVER, THE BENEFIT OF ACTUAL AND COMPLETE KNOWLEDGE OF FINANCIAL NUANCES AND TAXING STA TUTES COUPLED WITH COMPUTER LITERACY HAS REMAINED RESTRICTED TO A LARG E EXTENT ONLY TO A FEW EXPERTS. THE TAX AUTHORITIES CONSTITUTE SOME OF THESE FEW ELITES WHO HAVE BEEN EQUIPPED BY THE STATE BY PROVIDING TRAINING AN D COURSES IN ORDER TO HONE THE SKILL AND COMPETENCE WITH THE USE OF CUTTING EDGE TECHNOLOGY. I AM OF THE VIEW THAT THE RASH ATTITUDE OF ADOPTING T HE DANGEROUS POLICY AND PHILOSOPHY OF US AGAINST THEM IN A FR EE NATION IS TO BE STRONGLY REPELLED AND CRUSHED. THE IGNORANCE AND H ELPLESSNESS OF THE MASSES WHO ARE REQUIRED TO ADDRESS THE VALUES O F THEIR INHERITED PROPERTY, SALES ETC. OF AGRICULTURAL LAND S ETC. BEFORE THE TAX AUTHORITIES GLARINGLY STAND OUT AS EVERY DAY EX AMPLES OF SOME FAILURE AND MALAISE. THE TAX ADMINISTRATION IS NOT EXPECTED TO COLLECT TAXES BASED ON THE IGNORANCES OF THE ASSESS EE BUT IS EXPECTED TO ENSURE THAT IN THE DISCHARGE OF THEIR D UTIES AND RESPONSIBILITIES, THE CITIZENS ON BEHALF OF WHOM TH E TAX ADMINISTRATION FUNCTIONS ARE ADVISED, COUNSELED AND GUIDED TOWARDS TAX COMPLIANCES. 10.1 AT THIS STAGE, IT WOULD NOT BE OUT OF CONTEXT TO REF ER TO THE CBDT CIRCULAR NO. 14 (XL-35) DATED 11.04.1955 WHICH SET OUT THE ROAD MAP ADDRESSING THE ROLE OF THE OFFICERS OF THE DEPARTMENT. THE FOLLOWING EXTRACT IS REPRODUCED FROM THE SAID CIRCULAR HEREUNDER FO R THE SAKE OF COMPLETENESS : CBDT CIRCULAR NO. 14 (XL-35) DATED 11/04/1955-DEPA RTMENT MUST NOT TAKE ADVANTAGE OF IGNORANCE OF ASSESSEE TO COLLECT MORE TAX THAN W HAT IS LEGITIMATELY DUE 1 X X X X 2 X X X X 3. OFFICERS OF THE DEPARTMENT MUST NOT TAKE ADVANTAGE OF IGNORANCE OF AN ASSESSEE AS TO HIS RIGHTS. IT IS ONE OF THEIR DUTIES TO ASSIST A TAXPAYER IN EVERY REASONABLE WAY, PARTICULARLY IN THE MATTER OF CLAIMING AND SECURING RELIEFS AND IN THIS REGARD THE OFFICERS SHOULD TAKE THE INITIATIVE IN GUIDING A TAXPAYER WH ERE PROCEEDINGS OR OTHER PARTICULARS BEFORE THEM INDICATE THAT SOME REFUND OR RELIEF IS DUE TO HIM. THIS ATTITUDE WOULD, IN THE LONG RUN, BENEFIT THE DEPARTMENT FOR IT WOULD INSPI RE CONFIDENCE IN HIM THAT HE MAY BE SURE OF GETTING A SQUARE DEAL FROM THE DEPARTMENT. ALTHO UGH, THEREFORE, THE RESPONSIBILITY FOR ITA 301/CHD/2017 A.Y. 2009-10 PAGE 7 OF 9 CLAIMING REFUNDS AND RELIEFS RESTS WITH ASSESSEES O N WHOM IT IS IMPOSED BY LAW, OFFICERS SHOULD : (A) DRAW THEIR ATTENTION TO ANY REFUNDS OR RELIEFS TO WHICH THEY APPEAR TO BE CLEARLY ENTITLED BUT WHICH THEY HAVE OMITTED TO CLAIM FOR SOME REASO N OR OTHER; (B) FREELY ADVISE THEM WHEN APPROACHED BY THEM AS T O THEIR RIGHTS AND LIABILITIES AND AS TO THE PROCEDURE TO BE ADOPTED FOR CLAIMING REFU NDS AND RELIEFS. 10.2 ON A READING OF THE ABOVE, THE EXECUTIVE INTENT EV IDENT BY THE BOARDS CIRCULAR, UNAMBIGUOUSLY MAKES IT CLEAR THAT THE TAX AUTHORITIES ARE NOT EXPECTED TO ENCASH FOR THE STATE EXCHEQUER T HE IGNORANCE OF THE ASSESSEE. THE CIRCULARS ARE BINDING ON THE TAX AUTHORITIE S IS WELL SETTLED. THIS ASPECT HAS VERY RECENTLY BEEN NOTICED BY THE HON 'BLE MADRAS HIGH COURT IN W.P.NO. 3849 OF 2019 AND W.M.P. NO. 4278 OF 2019 MRS . KANNAMMAL VS ITO DATED 13.02.2019. THE COURT NOTICING T HAT THE ASSESSEE WHILE MOVING A STAY APPLICATION RELYING ON THE SA ID CIRCULARS AS NOTICED BY THE HON'BLE APEX COURT IN THE CASE OF CIT VS MAHINDRA MILLS 243 ITR 56 (S.C) OBSERVES THAT IN THE STAY APPLICATION THE ASSESSEE MAY NOT HAVE SPECIFICALLY INVOKED THE THREE PARAMETERS F OR THE GRANT OF STAY, IT IS INCUMBENT UPON THE ASSESSING OFFICER TO EXAMINE THE EXISTENCE OF A PRIMA FACIE CASE AS WELL AS CALL UPON THE ASSESSEE TO D EMONSTRATE FINANCIAL STRINGENCY, IF ANY AND ARRIVE AT THE BALANCE OF CONV ENIENCE IN THE MATTER. THE RELEVANT EXTRACT FROM THE DECISION IS EXTRACTED HERE UNDER FOR THE SAKE OF COMPLETENESS : OF COURSE THE PETITION SEEKING STAY FILED BY THE P ETITIONER IS ITSELF CRYPTIC. HOWEVER, AS NOTED / BY THE SUPREME COURT IN THE CASE OF COM MISSIONER OF INCOME TAX VS MAHINDRA MILLS, ((2008) 296 ITR 85 (MAD)) IN THE CONTEXT OF GRANT O F DEPRECIATION, THE CIRCULAR OF THE CENTRAL BOARD OF REVENUE (NO. 14 (S L- 35) OF 1955 DATED APRIL 11, 1955) REQUIRES THE OFFICERS OF THE DEPARTMENT 'TO A SSIST A TAXPAYER IN EVERY REASONABLE WAY, PARTICULARLY IN THE MATTER OF CLAIMING AND SECURING RELIEFS . ALTHOUGH, THEREFORE, THE RESPONSIBILITY FOR CLAIMING REFUNDS AND RELIEFS RESTS WITH THE ASSESSEES ON WHOM IT IS IMPOSED BY LAW, OFFICERS SHOULD DRAW THE IR ATTENTION TO ANY REFUNDS OR RELIEFS TO WHICH THEY APPEAR TO BE CLEARLY ENTITLED BUT WHI CH THEY HAVE OMITTED TO CLAIM FOR SOME REASON OR OTHER ' THUS, NOTWITHSTANDING THAT THE ASSESSEE MAY NOT HAVE SPECIFICALLY INVOKED THE THREE PARAMETERS FOR THE G RANT OF STAY, IT IS INCUMBENT UPON THE ASSESSING OFFICER TO EXAMINE THE EXISTENCE OF A PRI MA FACIE CASE AS WELL AS CALL UPON THE ASSESSEE TO DEMONSTRATE FINANCIAL STRINGENCY, IF ANY AND ARR IVE AT THE B ALANCE OF CONVENIENCE IN THE MATTER. 10.3 THE COURT FURTHER GOES ON TO HOLD IN THE BATCH OF APPEAL NOS. W.P.NOS. 30094, 30098, 30104 & 30110 OF 2018 AND WMP NOS. 35104, 35110, 35114, 35120, 35121, 35126 AND 35128 OF 2018 IN JA YANTHI SEEMAN VS (I) PR. CIT, CHENNAI (II) THE ITO NON CORP. WARD 1(2), CHENNAI OBSERVED CONSIDERING THE MANDATE OF CIRCULAR OF THE CENT RAL BOARD OF REVENUE (NO. 14 (SL-35) OF 1955 DATED APRIL 11, 1955 THAT IT IS EXPECTED THAT THE OFFICERS OF THE DEPARTMENT TO ASSIST A TAXPAYER IN EVERY REASONABLE WAY, PARTICULARLY IN THE MATTER OF CLAIMING AND SECURING RELIEFS. ITA 301/CHD/2017 A.Y. 2009-10 PAGE 8 OF 9 . ALTHOUGH, THEREFORE, THE RESPONSIBILITY FOR CLAIMING REFUNDS AND RELIEFS RESTS WITH THE ASSESSEES ON WHOM IT IS IMPOSED. 10.4 CONSIDERING THE DECISIONS AND THE CIRCULAR AS RECENTL Y CONSIDERED BY THE HON'BLE MADRAS HIGH COURT THERE CAN BE IN NO DO UBT THAT THE ASSESSEE CANNOT BE MADE TO PAY MORE TAX THAN IS LEGITIM ATELY DUE FROM HIM. THE HON'BLE APEX COURT IN CIT VS MAHENDRA MILLS HAD TAKEN NOTE OF THE RELEVANT PROVISIONS THEN APPLICABLE TO THE CLAIM OF DEP RECIATION AND HELD THAT THE OFFICER IS REQUIRED TO DO NO MORE THEN TO ADVISE THE ASSESSEE. THE RELEVANT EXTRACT IS REPRODUCED HEREUNDER FOR THE S AKE OF COMPLETENESS: INCOME-TAX OFFICER IN SUCH A CASE IS REQUIRED TO C OMPUTE THE INCOME WITHOUT ALLOWING DEPRECIATION ALLOWANCE. CIRCULAR OF THE BO ARD DATED APRIL 11, 1955 IS OF NO HELP TO THE REVENUE. IT IMPOSES MERELY A DUTY ON TH E OFFICERS OF THE DEPARTMENT TO ASSIST THE TAX-PAYERS IN EVERY REASONABLE WAY, PART ICULARLY, IN THE MATTER OF CLAIMING AND SECURING RELIEF. THE OFFICER IS REQUIRED TO DO NO MORE THAN TO ADVISE THE ASSESSEE. IT DOES NOT PLACE ANY MANDATORY DUTY ON THE OFFICER TO ALLOW DEPRECIATION IF THE ASSESSEE DOES NOT WANT TO CLAIM THAT. PROVISION FOR CLAIM OF DEPRECIATION IS CERTAINLY FOR THE BENEFIT OF THE ASSESSEE. IF IT DOES NOT WIS H TO AVAIL THAT BENEFIT FOR SOME REASON, BENEFIT CANNOT BE FORCED UPON HIM. IT IS FOR THE AS SESSEE TO SEE IF THE CLAIM OF DEPRECIATION IS TO HIS ADVANTAGE. RATHER INCOME-TAX OFFICER SHOULD ADVISE HIM NOT TO CLAIM DEPRECIATION IF THAT COURSE IS BENEFICIAL TO THE ASSESSEE. THAT WOULD BE IN OUR VIEW THE SPIRIT OF THE CIRCULAR DATED APRIL 11, 195 5. 10.5. THOUGH CERTAIN EXTRACTS FROM ORDER DATED 15.03.2019 IN ITA 340/CHD/2017 IN THE CASE OF SHRI IQBAL SINGH VS ITO, MOHA LI HAVE ALREADY BEEN QUOTED, HOWEVER IT WOULD BE APPROPRIATE TO ALSO EXTRACT THE FOLLOWING PARAS FROM THE ORDER: 8.1 IT WOULD ALSO BE APPROPRIATE TO REFER TO SOME RELEVANT FACTS NOTICED IN THE EXERCISE OF DECISION MAKING POWERS EXERCISED BY THE LD. CIT(A). IT IS SEEN THAT ADMITTEDLY FRESH EVIDENCE BY WAY OF A VALUATION REP ORT WAS FILED BEFORE THE CIT(A) WITHOUT A PROPER APPLICATION. I DO NOT FIND ANY RE ASON ON RECORD AS TO WHY THE SAID AUTHORITY FAILED TO RESPONSIBLY ADVISE THE TAX PAYE R TO COME BY WAY OF A PROPER APPLICATION. ALL ASSESSEES DO NOT NECESSARILY HAVE THE BENEFIT OF EXPERT LEGAL ADVICE BUT ALL TAX ADMINISTRATORS, IT IS PRESUMED, HAVE B EEN SUFFICIENTLY EQUIPPED BY THE STATE TO ENSURE THAT THE POWERS EXERCISED ON ITS BE HALF ARE RESPONSIBLY EXERCISED. THE STATE EXPECTS THE TAX ADMINISTRATORS TO ACT FAIRLY AND COMPETENTLY IN THE PERFORMANCE OF THEIR FUNDAMENTAL AND ONEROUS DUTY TO COLLECT TA XES ON ITS BEHALF. HOWEVER, IT IS WELL SETTLED AND NON NEGOTIABLE THAT THE TAXES SO T O BE COLLECTED NEED TO SATISFY THE TOUCHSTONES OF JUST AND DUE TAXES. THE WORD J UST PRESUPPOSES FAIRNESS IN THE ACTIONS OF THE TAX ADMINISTRATORS WHO ARE ACTIN G FOR AND ON BEHALF OF THE GOVERNMENT OF INDIA. THE MIND SET NEEDS TO BE RE-O RIENTED TO CONSCIOUSLY ACKNOWLEDGE THAT THE DUTY AND POWER TO COLLECT TAXE S IS NOT BEING EXERCISED ON BEHALF OF AN ALIEN FOREIGN POWER IN A COLONIAL STATE WHO MAY HAVE NEEDED TO FILL ITS COFFERS BY SUBJECTING ITS COLONIES TO THE ARBITRARY ACTIONS . THE POWER IS EXERCISED ON BEHALF OF THE STATE AND PRE-SUPPOSES THAT IT IS EXERCISED RESPONSIBLY AND FAIRLY. 8.2 IN TODAYS DIGITAL WORLD, TAX COMPLIANCES NECES SARILY HAVE INCREASED, WITH BANKS, LAND REVENUE AUTHORITIES BEING INTEGRATED WI TH TAX AUTHORITIES. HOWEVER, THE BENEFIT OF ACTUAL AND COMPLETE KNOWLEDGE OF FINANCI AL NUANCES AND TAXING STATUTES COUPLED WITH COMPUTER LITERACY HAS REMAINED RESTRIC TED TO A LARGE EXTENT ONLY TO A FEW EXPERTS. THE TAX AUTHORITIES CONSTITUTE SOME OF TH ESE FEW ELITES WHO HAVE BEEN EQUIPPED BY THE STATE BY PROVIDING TRAINING AND COU RSES IN ORDER TO HONE THE SKILL AND COMPETENCE WITH THE USE OF CUTTING EDGE TECHNOLOGY. I AM OF THE VIEW THAT THE RASH ITA 301/CHD/2017 A.Y. 2009-10 PAGE 9 OF 9 ATTITUDE OF ADOPTING THE DANGEROUS POLICY AND PHIL OSOPHY OF US AGAINST THEM IN A FREE NATION IS TO BE STRONGLY REPELLED AND CRUSHED. THE IGNORANCE AND HELPLESSNESS OF THE MASSES WHO ARE REQUIRED TO ADDRESS THE VALUES O F THEIR INHERITED PROPERTY, SALES ETC. OF AGRICULTURAL LANDS ETC. BEFORE THE TAX AUTH ORITIES GLARINGLY STAND OUT AS EVERY DAY EXAMPLES OF SOME FAILURE AND MALAISE. THE TAX A DMINISTRATION IS NOT EXPECTED TO COLLECT TAXES BASED ON THE IGNORANCES OF THE ASSESS EE BUT IS EXPECTED TO ENSURE THAT IN THE DISCHARGE OF THEIR DUTIES AND RESPONSIBILITIES, THE CITIZENS ON BEHALF OF WHOM THE TAX ADMINISTRATION FUNCTIONS ARE ADVISED, COUNSELED AND GUIDED TOWARDS TAX COMPLIANCES. 8.3 IN THE FACTS OF THE PRESENT CASE, THE EVIDENCE OF EXACT LOCATION OF THE LAND AND THE VALUE THEREOF BASED ON A VALUATION REPORT A DMITTEDLY WAS RELEVANT AND CRUCIAL FOR DECIDING THE ISSUE AND KNOWING ITS RELE VANCE, THE ASSESSEE IDEALLY SHOULD HAVE BEEN ADVISED TO COME BY WAY OF A PROPER APPLIC ATION. THE FACT THAT THE ASSESSEE WAS A FARMER AGRICULTURIST AND THUS, MAY NOT HAVE H AD THE BENEFIT OF A PROPER LEGAL ADVICE AT THE ASSESSMENT STAGE CANNOT BE RULED OUT. IN A FAIR EXERCISE OF POWER, THE SAID OPPORTUNITY SHOULD HAVE BEEN GIVEN BY THE LD. CIT(A). IN THE EVENTUALITY THE VALUE BASED ON THE VALUATION REPORT WAS TO BE UPSET , THE MATTER SHOULD HAVE BEEN REFERRED TO THE DVO AND NOT ARBITRARILY DECIDED. 8.4 ACCORDINGLY, IN VIEW OF THE DETAILED REASONS GI VEN HEREINABOVE, THE EVIDENCE IS DIRECTED TO BE ADMITTED AND IN CASE IT IS FOUND TO BE INSUFFICIENT OR INCOMPLETE, THE LD. CIT(A), IT IS DIRECTED SHALL CALL FOR FURTHER E VIDENCES IF SO DEEMED NECESSARY AND CONFRONT THESE TO THE ASSESSEE BEFORE PASSING AN OR DER IN ACCORDANCE WITH LAW.. 11. ACCORDINGLY, CONSIDERING THE CIRCUMSTANCES AND NOT CO MMENTING EITHER ON THE CORRECTNESS OR THE COMPLETENESS OF THE E VIDENCES RELIED UPON ON BEHALF OF THE ASSESSEE BEFORE THE CIT(A), IT IS DIRECTED THAT IN CASE THE EVIDENCE FILED IS NOT RELIABLE, SUFFICIENT OR COMPLETE, THE AO SHALL CALL FOR THE DVOS REPORT AND NECESSARY EVIDENCES FROM THE LAN D REVENUE AUTHORITIES, CONFRONT THE REPORT TO THE ASSESSEE AND PA SS AN ORDER AFTER HEARING THE ASSESSEE IN ACCORDANCE WITH LAW. IN VIEW THE REOF, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE AO WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. THE ASSE SSEE IN ITS OWN INTERESTS IS DIRECTED TO PARTICIPATE FULLY AND FAIRLY BEFORE THE AO. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01.04. 2019. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER