Income Tax Officer, Barabanki V. Shri Raj Mohan Awasthi, Lucknow

ITA 313/LKW/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78515 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-04-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 31-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K RAM
• Keywords: Reopening of assessment; Valuation report
• Section: 147; 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.313/LKW/2012 ASSESSMENT YEAR:2004 - 05 INCOME TAX OFFICER, BARABANKI. VS. SHRI RAJ MOHAN AWASTHI, SAFDARGANJ, BARABANKI. PAN:AFPPA3604Q (APPELLANT) (RESPONDENT) APPELLANT BY SHRI R. K. RAM, D.R. RESPONDENT BY NONE DATE OF HEARING 22/04/2014 DATE OF PRONOUNCEMENT 1 3 /05/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - II, LUCKNOW DATED 16/04/2012 FOR ASSESSMENT YEAR 2004 - 2005. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN FAILING TO APPRECIATE THAT THE DVO HAS ESTIMATED THE COST OF CONSTRUCTION OF THE 1 ST , 2 ND & 3 RD FLOORS OF THE BUILDING AT RS.32,12,000/ - . THIS CONSTRUCTION WAS DONE DURING A.Y. 2004 - 05 ALONE. THIS VALUATION WAS DONE BY HIM IN THE PRESENCE OF THE ASSESSEE HIMSELF AND NO OBJECTION WAS RAISED BY HIM DURING THE COURSE OF THE VALUATION. THE DELETION OF THE ADDITION BY THE CIT (A) IS THEREFORE INCORRECT. 2. THE CIA(A) HAS FAILED TO APPRECIATE THAT THE BREAKUP OF INVESTMENT FURNISHED BY THE ASSESSEE SHOWS AN INVESTMENT OF R S.18,76,717/ - BETWEEN A.Y. 2006 - 07 TO A.Y. 2008 - 09 WHICH IS SUBSEQUENT TO THE A.Y. UNDER 2 CONSIDERATION. THE INVESTMENT MADE IN AY'S 1998 - 99 TO A.Y. 1999 - 2000 WAS RS.6,94,720/ - ONLY FOR THE GROUND FLOOR. THE INVESTMENT MADE BY HIM DURING A.Y. 2004 - 05 WAS RS .32,12,000/ - FOR THE 1 ST TO THE 3 RD FLOORS. THEREFORE, THE ADDITION MADE BY THE AO ON THE BASIS OF THE REPORT OF THE D.V.O. WAS IN ORDER AND SHOULD HAVE BEEN CONFIRMED. 3. THE VARIOUS COURT DECISIONS CITED BY THE CIA(A) ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. THEY MAY BE APPLICABLE WHERE AN ASSESSEE HAS FILED A VALUATION REPORT ALONG WITH HIS RETURN OF INCOME AND HAS ALSO SHOWN THE SOURCES OF INVESTMENT IN HIS BOOKS OF ACCOUNTS/ RETURN. IN THE PRESENT CASE SINCE NEITHER ANY VALUATION REPORT WA S FILED ALONG WITH THE RETURN OF INCOME NOR ANY INVESTMENT WAS REFLECTED IN THE BOOKS OF ACCOUNTS/ RETURN, THE A.O. HAD NO OPTION BUT TO TAKE ACTION U/S 148. THE DECISION OF THE CIT (A) ON THIS ISSUE IS NOT SUSTAINABLE IN LAW AND MAY BE REVERSED. 4. APPEL LANT CRAVE LEAVES TO ADD OR AMEND ANY ONE OR MORE OF THE GROUNDS OF APPEALS, AS STATED ABOVE, AS AND WHEN NEED TO DOING SO ARISES WITH THE PRIOR PERMISSION OF THE COURT. 3. NONE APPEARED ON BEHALF OF ASSESSEE INSPITE OF SERVICE OF NOTICE AND HENCE, WE PROCEED TO DECIDE THIS APPEAL OF THE REVENUE EX - PARTE QUA THE ASSESSEE. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER. 5. AT THIS JUNCTURE , IT WAS POINTED OUT BY THE BENCH THAT AS PER PARA 6.4 OF HIS ORDER, IT IS HELD BY LEARNED CIT(A) TH AT THE ASSESSING OFFICER IS NOT JUSTIFIED IN COMPUTING THE ASSESSMENTS ON THE BASIS OF INSUFFICIENT REASONS RECORDED FOR THE PURPOSE OF REOPENING OF ASSESSMENTS U/S 147 OF THE ACT AND AFTER MAKING THESE OBSERVATIONS, HE ANNULLED THE ASSESSMENT. THE BENCH WANTED TO KNOW AS TO WHETHER ANY GROUND HAS BEEN RAISED BY THE REVENUE AGAINST THE ANNULMENT OF ASSESSMENT BY THE CIT(A) BUT LEARNED D.R. HAD NOTHING TO SAY. 3 6. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED D.R. OF THE REVENUE AND GONE THROUGH THE ORDER OF LEARNED CIT(A). WE FIND THAT AS PER PARA 6.4 OF HIS ORDER, THE CIT(A) HAS ANNULLED THE ASSESSMENT AND AGAINST THE SAME, NO GROUND HAS BEEN RAISED BY THE REVENU E AS PER THE GROUNDS RAISED BY THE REVENUE AS REPRODUCED ABOVE. IN THE ABSENCE OF THAT, THE GROUND S RAISED BY THE REVENUE DO NOT CALL FOR ANY ADJUDICATION BECAUSE WHEN THE ANNULMENT OF ASSESSMENT IS ACCEPTED BY THE REVENUE , N O DECISION IS CALLED FOR REGAR DING MERIT OF ANY ADDITION AS PER SUCH ASSESSMENT ORDER. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODI A ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 3 /05/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR