Lt. Raghvendra Kumar Gupta.Th.L/H Smt.Sarita Gupta(wife),C/o M/s K.V.Enterprises, Varanasi V. DCIT, Varanasi

ITA 308/ALLD/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89796 (ITAT-ALLAHABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-04-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 07-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PGH VS DCIT CIRCLE VARANASI
• Keywords: Opportunity of being heard; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AN D SHRI C. N. PRASAD, JUDICIAL MEMBER ITA NOS. 122 & 308 /ALLD/2013 ASSESSMENT YEARS: 2004-05 & 2005-06 LATE RAGHVENDRA KUMAR GUPTA, THROUGH LEGAL HEIR SARITA GUPTA, C/O M/S. K.V. ENTERPRISES, J. 12/9 BC, RAMKATORA, VARANASI UTTAR PRADESH PAN:-ABYPG6701H VS. DCIT CIRCLE-3 VARANASI (APPELLANT) (RESPO NDENT) ASSESSEE BY : SHRI SUBHASH CHAND REVENUE BY : SHRI UMESH PATHAK DATE OF HEARING : 27.04.2015 DATE OF PRONOUNCEMENT : 27.04.2015 O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE TWO APPEALS UNDER CONSIDERATION FOR THE A.YS. 2004-05 & 2005-06, AND ARE FILED AGAINST THE TWO SEPARATE ORDER OF THE LD. CIT(A) VARANASI, DATED 22.03.2013 & 27.08.2013 RESPECTIVELY. 2. IN THE GROUND, ASSESSEE RAISED THE ISSUE RELATIN G THE VALUATION REPORT FOUND DURING THE SURVEY OF THE OPERATION AND THE SAME REL ATES TO A BUILDING UNDER CONSTRUCTION. THE SAID REPORT WAS USED BY THE ASSES SEE AND MADE ADDITIONS WHICH ARE DISPUTED IN THE PRESENT APPEAL. SIMILAR ADDITIO NS WERE MADE BY THE AO IN THE CASE OF SRI RATNESH KUMAR GUPTA AND MATTER REACHED THE TRIBUNAL IN THAT CASE. FURTHER, HE MENTIONED THAT SIMILAR ISSUE CAME UP FO R ADJUDICATION BEFORE THE TRIBUNAL, IN THE CASE OF RATNESH KUMAR GUPTA, VARAN ASI. BRINGING OUR ATTENTION TO THE SAID ORDER OF THE TRIBUNAL, RATNESH KUMAR GUPTA ITA NO.128/ALLD/2013 DATED 09.09.2014 ASSESSEE SUBMITTED THAT THE MATTERS WERE ALLOWED BY THE TRIBUNAL PERUSAL ALLOWED FOR STATISTICAL PURPOSE IN THAT CAS E. IN THIS REGARD, HE BROUGHT TO OUR ITA NOS. 122 & 308 /ALLD/2013 ASSESSMENT YEARS: 2004-05 & 2005-06 2 ATTENTION PARA 5 OF THE IMPUGNED ORDER OF THE TRIBU NAL (SUPRA) AND DEMONSTRATED THE DECISION OF THE TRIBUNAL IN REMANDING WITH DIRE CTIONS. 3. AFTER HEARING BOTH THE PARTIES, WE PERUSED THE S AID ORDER OF THE TRIBUNAL, IN GENERAL, AND THE CONTENTS OF PARA 5 IN PARTICULAR. IN VIEW OF THE SIGNIFICANCE, WE REPRODUCED THE SAID PARA 5 OF THE TRIBUNAL AS UNDER :- WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. AFTER H EARING BOTH THE SIDES, WE HOLD THAT THE CONTENTS OF VALUATION REPORT FOUND DU RING THE SURVEY OPERATION COULD NOT BE TAKEN AS TRUE AS ASSESSEE HIMSELF HAD NOT RELIED ON THIS VALUATION REPORT IN RESPECT OF PERIOD OF CONSTRUCTI ON AND SOURCE OF INVESTMENT. THIS WAS A VALUATION REORT WHICH HAS BE EN PREPARED BY ASSESSEE FOR HIS OWN PURPOSE. BUT IT HAS NOT RELIED ON FOR E XPLAINING SOURCE OF INCOME. THEREFORE, SUCH DOCUMENTS CANNOT BE TAKEN AS TRUE B Y THE PRESUMPTION AS PROVIDED IN SECTION 292C WITH REGARD TO THE ASSESSE ES BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING. THEREFORE, WE CONFIRM THE ORDER OF CIT (A) TO THE E XTENT THAT THE REFERENCE TO THE VALUATION OFFICER BY THE ASSESSING OFFICER BY I NVOKING THE PROVISIONS OF SECTION 142A WAS JUSTIFIED FOR ESTIMATING THE VALUE OF THE RESIDENTIAL HOUSE. WITH REGARD TO OTHER CLAIMS OF THE ASSESSEE, THE VA LUATION OFFICER HAS NOT CONSIDERED CERTAIN ITEMS/CLAIMS WHICH THE ASSESSEE MADE. THE RECOVERY OF BRICKS FROM THE DEMOLITION OF THE OLD BUILDING OR U SE OF SAL-WOOD IN PLACE OF TEAK-WOOD, PERIOD OF CONSTRUCTION OF THE CUP-BOARD ETC. AND DEDUCTION OF THE SELF SUPERVISION ARE CLAIMS MADE BY ASSESSEE. IN TH E INTEREST OF JUSTICE AND EQUITY, WE HOLD THAT IT SHALL BE PROPER TO REMAND T HE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING DE NOVO AFTER PROVID ING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. CONSIDERING THE ABOVE, WE ARE OF THE OPINION THE GR OUND RAISED BY THE ASSESSEE IN BOTH THE APPEALS FOR THE A.YS. 2004-05 & 2005-06 SH OULD ALSO BE REMANDED TO THE FILE OF THE AO WITH IDENTICAL DIRECTIONS. ACCORDING LY, THE GROUNDS ARE REMANDED AS ABOVE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF APRIL, 2015. SD/- SD/- (C. N. PRASAD) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER ALLAHABAD, DATED: 27.04.2015 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, ALLAHABAD THE CIT(A) CONCERNED, ALLAHABAD THE DR BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, ALLAHABAD.