Smt. Usha Sharma, Haridwar V. ITO, Haridwar

ITA 3122/DEL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58964 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 28-02-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 23-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RENU JAUHRI
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Unexplained investment; Fair market value
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.3122/DEL./2010 (ASSESSMENT YEAR : 2005-06) USHA SHARMA, VS. ITO, WARD 2, PROP. M/S PANDIT VARAITI STORE, HARIDWAR. MOTI BAZAR, HARIDWAR. (PAN/GIR NO.BBZPS0481E) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAKESH GUPTA, ADV. REVENUE BY : SMT. RENU JAUHRI, SR.DR ORDER PER U.B.S. BEDI, J.M. THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER PASSED BY THE CIT(A)-I, DEHRADUN DATED 16.04.2010, WHEREBY ASSESSEE HAS RAI SED FIVE GROUNDS IN ALL. GROUND NOS.1 & 2 PERTAIN TO INITIATION OF RE-ASSESSMENT PR OCEEDINGS AND THESE GROUNDS WERE NOT PRESSED AT THE TIME OF HEARING AND LD.COUNSEL FOR T HE ASSESSEE BY MAKING ENDORSEMENT TO THIS EFFECT ON THE GROUNDS OF APPEAL AGAINST GROUND NOS.1 & 2 HAS PLEADED TO DISMISS THESE GROUNDS AS NOT PRESSED AND GROUND NO.5 IS GEN ERAL WHICH NEEDS NO ADJUDICATION. REMAINING GROUND NOS.3 & 4 ARE AS UNDER: 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT DELETING THE ADDIT ION MADE BY ASSESSING OFFICER ON ACCOUNT OF LONG TERM CAPITAL GAIN THAT T OO ON PRESUMPTION BASIS AND FURTHER ERRED IN NOT ACCEPTING THE VALUATION DO NE BY GOVERNMENT APPROVED VALUER AS DECLARED BY THE ASSESSEE IN HER RETURN OF INCOME AND HAS FURTHER ERRED IN DIRECTING THE ASSESSING OFFICER TO ADOPT T HE CPWD RATES OF CONSTRUCTION WITHOUT GIVING ANY DIRECTIONS FOR REVA LUATION OF THE COMMERCIAL I.T.A. NO.3122/DEL./2010 (A.Y. : 2005-06) 2 LAND AND HAS FURTHER ERRED IN CONFIRMING THE ADDITI ON OF RS.39,43,814/- ON ACCOUNT OF LONG TERM CAPITAL GAIN. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKING ADDITION OF RS.8,12,010/- U/S 69 ON ACCOUNT OF UNEXPLAINED INVESTMENT THAT TOO WITHOUT APPRECIATING THE FACTS OF THE CASE AND THE POSITION OF LAW. 2. AT THE VERY OUTSET, LD.COUNSEL FOR THE ASSESSEE, IN RELATION TO GROUND NO.3, HAS SUBMITTED THAT CIT(A) WHILE CONSIDERING THE ADDITIO N MADE BY THE ASSESSING OFFICER ON ACCOUNT OF LONG TERM CAPITAL GAIN HAS ERRED IN NOT ACCEPTING THE VALUATION DONE BY THE GOVERNMENT VALUER AS DECLARED BY THE ASSESSEE AND H AS FURTHER ERRED IN DIRECTING THE ASSESSING OFFICER TO ADOPT THE CPWD RATE OF CONSTRU CTION WITHOUT GIVING ANY DIRECTION FOR RE-VALUATION OF COMMERCIAL LAND TO CONFIRM THE ADDITION OF RS.39,43,814/- ON ACCOUNT OF LTCG AND SINCE COMMERCIAL LAND SHOULD HAVE ALSO BEEN DIRECTED TO BE VALUED IN ORDER TO COMPUTE THE CORRECT POSITION OF LTCG. THEREFORE , ORDER OF CIT(A) SHOULD BE SET ASIDE ON THIS POINT AND THE MATTER SHOULD BE RESTORED BAC K TO THE FILE OF THE ASSESSING OFFICER FOR WORKING OUT FAIR MARKET VALUE AS ON 01.04.1981 ON THE COMMERCIAL LAND AND ALSO TO ADOPT CPWD RATE OF CONSTRUCTION TO WORK OUT CAPITAL GAIN AND LD.DR, THOUGH, WHILE RELYING UPON ORDER OF CIT(A) HAS YET SUBMITTED THAT EVEN IF COMMERCIAL LAND HAS NOT BEEN DIRECTED TO BE VALUED AS ON 1.4.81, IT WILL NOT EFF ECT THE COMPUTATION OF CAPITAL GAIN. THEREFORE, ORDER OF CIT(A) MAY BE CONFIRMED. 3. WE HAVE HEARD BOTH THE SIDES AND CONSIDERED THE MATERIAL ON RECORD AND FIND THAT WHILE CONSIDERING THE ADDITION MADE BY THE ASSESSIN G OFFICER ON ACCOUNT OF LTCG, CIT(A) HAS DIRECTED TO ADOPT CPWD RATE OF CONSTRUCT ION TO MAKE THE IMPUGNED ADDITION, BUT THERE IS NO DIRECTION ABOUT VALUATION OF COMMER CIAL LAND AS ON 1.4.81. THEREFORE, IN VIEW OF FACTS, CIRCUMSTANCES AND MATERIAL ON RECORD , WE SET ASIDE THE ISSUE IN RELATION TO I.T.A. NO.3122/DEL./2010 (A.Y. : 2005-06) 3 THIS GROUND AND RESTORE THE MATTER BACK ON THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO RE-DECIDE THE ISSUE AFRESH BY APPROPRI ATELY CONSIDERING CPWD RATE OF CONSTRUCTION AND REVALUATION OF THE COMMERCIAL LAND AS ON 1.4.81 TO COMPUTE THE ADDITION ON ACCOUNT OF LTCG AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 4. AS REGARDS GROUND NO.4, THE CHALLENGE IS WITH RE GARD TO CONFIRMATION OF ASSESSING OFFICER IN MAKING ADDITION OF RS.8,12,010/- U/S 69 OF THE I.T. ACT, 1961, ON ACCOUNT OF UNEXPLAINED INVESTMENT. 5. AFTER HEARING BOTH THE SIDES CONSIDERING THE MAT ERIAL ON RECORD ON THIS ISSUE, WE FIND THAT CIT(A) HAS CONSIDERED AND CONCLUDED ON TH IS ISSUE AS PER PARA.6.5 OF HIS ORDER WHILE REJECTING THE PLEA OF THE ASSESSEE AND IT IS THE MAIN CONTENTION OF THE ASSESSEE BEFORE US THAT NEITHER THE CONCERNED PERSONS WERE S UMMONED NOR THEIR STATEMENTS WERE RECORDED WHEN ADDRESSES OF THE PURCHASER TO WHOM AD VANCE WERE GIVEN WERE ALSO FURNISHED. CAPACITY OF SUCH PERSONS WAS SHOWN, COP IES OF SALE DEED WERE FURNISHED, IN WHICH IT HAS CLEARLY BEEN WRITTEN THAT SALE CONSIDE RATION HAS ALREADY BEEN RECEIVED, DETAILS OF PAN WERE ALSO GIVEN TO THE PURCHASER AND ASSESSE E HAS PROVED HER ONUS AND IF ASSESSING OFFICER WAS HAVING ANY CONFUSION, HE SHOU LD HAVE ISSUED NOTICES U/S 131 OF THE ACT, BUT HE HAS NOT ISSUED SUCH TYPE OF NOTICES SO AND JUST ADDED THE AMOUNTS SO REQUIRES TO BE DELETED, WHEREAS LD.DR HAS RELIED UPON THE OR DERS OF AUTHORITIES BELOW TO PLEAD THAT NO MATERIAL HAS BEEN PRODUCED BY THE ASSESSEE BEFOR E THE ASSESSING OFFICER OR BEFORE CIT(A) OR BEFORE THIS BENCH TO JUSTIFY THE SOURCE O F AMOUNTS INVESTED. THEREFORE, ADDITION IS CALLED FOR WHICH HAS ALREADY BEEN MADE AND CONFIRMED BY THE AUTHORITIES BELOW WHOSE ACTION SHOULD BE FURTHER CONFIRMED. I.T.A. NO.3122/DEL./2010 (A.Y. : 2005-06) 4 6. AFTER CONSIDERING THE RELEVANT MATERIAL ON RECOR D, SUBMISSIONS OF BOTH THE SIDES, DETAILS AND FINDING RECORDED BY THE AUTHORITIES BEL OW, WE ARE OF THE OPINION THAT IT WOULD MEET THE ENDS OF JUSTICE, IF WE SET ASIDE THIS ISSU E AND RESTORE THE MATTER BACK ON THE FILE OF THE ASSESSING OFFICER FOR RE-CONSIDERATION OF TH E ISSUE AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. WE HOLD AND DIRECT AC CORDINGLY. 7. AS A RESULT, THE APPEAL OF THE ASSESSEE GETS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 23/03/2012. SD/- SD/- (B.C. MEENA) ACCOUNTANT MEMBER (U.B.S. BEDI ) JUDICIAL MEMBER DATED : MARCH , 2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-I, DEHRADUN. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT