Smt .Meetu Dang , Kanpur V. Income Tax Officer-2(2) , Kanpur

ITA 33/LKW/2013

• Counselvise Citation: 3323714 RSA 2013
• Duration Of Justice: 1 year(s) 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-08-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 22-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Opportunity of being heard; Principle of natural justice; Reasonable cause; Fair market value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 33 /LKW/2013 ASSESSMENT YEAR: 2009 - 10 SMT. MEETU DANG 120/358, LAJPAT NAGAR KANPUR V. INCOME TAX OFFICER 2 (2) KANPUR PAN: AHSPD0281F (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. ALOK MITRA, D.R. DATE OF HEARING: 04 0 8 2014 DATE OF PRONOUNCEMENT: 21 0 8 2014 O R D E R PER SUNIL KUMAR YA DAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) , INTER ALIA, ON THE FOLLOWING GROUNDS: - 1 . THAT LEARNED CIT APPEAL - II, KANPUR HAS ERRED IN PASSING THE ORDER EXPARTE, WITHOUT GIVING THE PROPER OPPORTUNITY OF HEARING, AS THE RE WAS REASONABLE CAUSE DUE TO WHICH THE APPELLANT COULD NOT ATTEND THE PROCEEDINGS OF HEARING BEFORE THE CIT APPEALS - II, KANPUR. 2 . THAT LEARNED CIT APPEAL - II, KANPUR HAS ERRED IN UPHOLDING THE ADDITION WHICH WAS MADE ILLEGALLY OF RS.11,02,500 / - ON ACCOUNT O F CALCULATION OF SHORT TERM CAPITAL GAIN MADE BY THE ASSESSING OFFICER UNDER SECTION 50C, WHILE THE STAMP DUTY VALUE IS EXCEEDING THE FAIR MARKET VALUE AND THE FAIR MARKET VALUE HAS PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : BEEN CLAIMED BY THE ASSESSEE BEFORE INCOME TAX OFFICER. 3 . THAT LEARNED CIT A PPEAL - II, KANPUR HAS ERRED IN NOT ACCEPTING THAT THE ASSESSING OFFICER HAS ERRED IN NOT REFERRING THE VALUATION OF CAPITAL ASSET TO THE DEPARTMENTAL VALUATION OFFICER AND SHOULD HAVE ASCERTAINED THE SALES CONSIDERATION ACCORDING TO THE REPORT OF VALUATION OFFICER. 4 . THAT LEARNED CIT APPEAL - II, KANPUR HAS ERRED IN NOT ACCEPTING THAT THE ACTION OF ASSESSING OFFICER IS NOT VALID , WHICH IS NOT TENABLE IN LAW ,IN MAKING THE ILLEGAL ADDITIONS WITHOUT ACCEPTING THE SUBMISSION MADE BEFORE HIM DURING THE COURSE OF ASSESSMENT PROCEEDINGS, SINCE SALE IS MADE IN SHORT SPAN OF TIME UNDER THE DISTRESS AND DESPERATE CIRCUMSTANCES , LOOKING TO THE DIFFERENT PERSONAL CIRCUMSTANCES OF THE APPELLANT AT THE TIME OF SALE OF THE ASSET AND PARTICULARLY THE SITUATION AND MARKET VA LUE OF THE ASSET. 5 . THAT LEARNED CIT APPEAL - II, KANPUR HAS ERRED IN NOT ACCEPTING, WHICH WAS APPEALED BEFORE HIM WITH THE REMARKS, WITHOUT CONCEDING, DULY RESERVING MY RIGHTS, WITHOUT PREJUDICE AND WITH RESERVATION THAT THE LEARNED ASSESSING OFFICER HAS ERRE D IN NOT ACCEPTING THAT THE SALES IS MADE TO NON RELATED PERSON WHO DOES NOT COMES UNDER THE PURVIEW OF SECTION 40A (2) (B) OF INCOME TAX ACT 1961, HENCE THERE CANNOT BE ANY TAX EVASION PLANNING, WHEN THE FACT WAS THAT THE FAIR MARKET VALUE OF THAT PROPERT Y FOR THE SAME AREA AND LOCATION IN LAJPAT NAGAR, KANPUR IS NOT BEYOND 28.46 LAKHS. OUR SALE IS A GENERAL SALE TRANSACTION OF CAPITAL ASSET AND STAMP DUTY VALUE OF 39.49 LAKHS IS NOT A FAIR MARKET VALUE FOR CONSIDERING IT AS SALE CONSIDERATION UNDER SEC. 4 8 FOR CALCULATING CAPITAL GAIN AND BRINGING THE MATTER UNDER PURVIEW OF SECTION 50C OF THE INCOME TAX ACT 1961. 6 . THAT CIT APPEAL - II, KANPUR HAS ERRED IN STATING IN HIS ORDER THAT ASSESSEE HAS NOT CHALLENGED THE MARKET VALUE OF THE PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : PROPERTY ASCERTAINED BY TH E ASSESSING OFFICER, WHEN IT WAS CHALLENGED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE RECORDS ARE THERE IN THE ASSESSMENT FILE. 7 . THAT CIT APPEAL - II, KANPUR HAS ERRED IN NOT ACCEPTING THAT THE LEARNED ASSESSING OFFICER HAS PASSED TH E ORDER HURRIEDLY AND WITHOUT CONSIDERING THE REASONABLENESS OF THE CLAIM MADE BY ME. 8 . THAT CIT APPEAL - II, KANPUR HAS ERRED IN NOT ACCEPTING THAT THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER IS BAD IN LAW, ERRONEOUS, ILLEGAL AND AGAINST THE PRINCIPAL O F NATURAL JUSTICE TO THE ASSESSEE. 9 . THAT IMPUGNED ORDER PASSED BY THE CIT APPEAL - II, KANPUR IS BAD IN LAW, ERRONEOUS, ILLEGAL AND AGAINST THE PRINCIPAL OF NATURAL JUSTICE TO THE ASSESSEE. 2 . DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER MAY BE SENT BACK TO THE LD. CIT(A) FOR ADJUDICATION OF THE ISSUES ON MERIT AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3 . THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 4 . HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREF UL PERUSAL OF THE ORDER OF THE LD. CIT(A) , WE FIND THAT THE LD. CIT(A) HAS FIXED THE APPEAL FOR HEARING ON TWO OCCASIONS AND THEREAFTER THE APPEAL WAS HEARD EX - PARTE AGAINST THE ASSESSEE. THOUGH THE LD. CIT(A) HAS DECIDED THE APPEAL ON MERIT, BUT WE ARE O F THE VIEW THAT IN THE INTEREST OF JUSTICE, THE ISSUES ON MERIT SHOULD HAVE BEEN ADJUDICATED AFTER AFFORDING PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO ADJUDICATE THE APPEAL ON MERIT AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO EXTEND ALL SORT OF CO - OPERATION AND APPEAR BEFORE THE LD. CIT(A) AS AND WHEN DIRECTED BY HIM. 5 . IN THE RESULT, AP PEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21.8.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 ST AUGUST , 2014 JJ: 0406 COPY FORWARDED TO: 1 . APPE LLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )