Mohd. Nasir Ayub, Kanpur V. Asstt. Commissioner of Income Tax-3, Kanpur

ITA 341/LKW/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0210 (ITAT-LUCKNOW)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 24-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K SINGH
• Keywords: Sale consideration of property below Jantri Value; Application of stay; Valuation report
• Section: 148; 50C

Judgement Text

I.T.A. NO.341/LKW/2018 ASSESSMENT YEAR:2008-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.341/LKW/2018 ASSESSMENT YEAR:2008-09 & S.P.NO.20/LKW/2018 (IN ITA NO.341/LKW/2018) ASSESSMENT YEAR:2008-09 MOHD. AYUB NASIR, 40/121, HOSPITAL ROAD, PARADE, KANPUR. PAN:ACFPA 8024 P VS. A.C.I.T. - 3, KANPUR. (APPELLANT) (RESPONDENT) O R D E R THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT(A)-I, KANPUR DATED 28/08/2017 PERTAININ G TO ASSESSMENT YEAR 2008-2009. 2. AT THE OUTSET, LEARNED A. R. SUBMITTED THAT THIS IS THE SECOND ROUND OF APPEAL BEFORE THE TRIBUNAL AND IN THE FIRST ROUND H ON'BLE TRIBUNAL, VIDE ORDER DATED 08/01/2015 IN I.T.A. NO.197/LKW/2014 HA D REMITTED BACK THE ISSUE TO THE OFFICE OF THE ASSESSING OFFICER FOR RE ADJUDICATION KEEPING IN VIEW THE D.V.O. REPORT. EXPLAINING THE FACTS OF THE CAS E, LEARNED A. R. SUBMITTED THAT THE ASSESSEE HAS EARNED A CAPITAL GAIN ON THE SALE OF A PROPERTY FOR WHICH ASSESSING OFFICER HAD APPLIED THE PROVISIONS OF SECTION 50C AND ON THE APPELLANT BY SHRI ABHINAV MEHROTRA, ADVOCATE RESPONDENT BY SHRI C. K. SINGH, D.R. DATE OF HEARING 06 / 12 /201 8 DATE OF PRONOUNCEMENT 07/12/2018 I.T.A. NO.341/LKW/2018 ASSESSMENT YEAR:2008-09 2 REQUEST OF THE ASSESSEE THE VALUATION OF THE PROPER TY WAS REFERRED TO THE D.V.O. FOR HIS VALUATION REPORT. SINCE THE D.V.O. R EPORT WAS NOT RECEIVED AND THE CASE WAS GOING TO BE TIME BARRED, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT AND THEREFORE, THE ASSESSEE HAD APPROACH ED LEARNED CIT(A) AND ULTIMATELY MATTER TRAVELLED TO HON'BLE TRIBUNAL WHI CH REMITTED BACK THE ISSUE TO THE ASSESSING OFFICER FOR DECIDING THE ISSUE AFR ESH AFTER CONSIDERING THE D.V.O. REPORT. LEARNED A. R. INVITED OUR ATTENTION TO THE ASSESSMENT ORDER DATED 29/02/2016 WHEREBY THE ASSESSING OFFICER HAD NOTED ABOUT THE FACT OF MATTER HAVING BEEN REMITTED BACK FROM HON'BLE TR IBUNAL BUT AGAIN, WITHOUT CONSIDERING THE D.V.O.S REPORT, HAD MADE T HE SAME ADDITION. INVITING OUR ATTENTION TO CIT(A)S ORDER, LEARNED A . R. SUBMITTED THAT HE HAS ALSO UPHELD THE ORDER OF THE ASSESSING OFFICER AFTE R RELYING ON CERTAIN CASE LAWS WHICH WERE NOT RELEVANT AT ALL. LEARNED A. R. SUBMITTED THAT THIS IS A GROSS VIOLATION OF JUDICIAL SYSTEM WHEREBY THE ASSE SSING OFFICER HAD IGNORED THE DIRECTIONS OF HON'BLE TRIBUNAL FOR CONSIDERING THE D.V.O. REPORT AND, THEREFORE, NOW THE ASSESSMENT ORDER PASSED IN VIOLA TION OF THE DIRECTIONS OF HON'BLE TRIBUNAL SHOULD BE CONSIDERED AS NULL AND V OID AND SHOULD BE QUASHED. RELYING ON THE JUDGMENT OF HON'BLE SUPREM E COURT IN THE CASE OF UNION OF INDIA VS. KAMLAKSHI FINANCE CORPORATION LT D. AIR 1992 SC 711. LEARNED A. R. INVITED OUR ATTENTION TO THE FINDINGS OF HON'BLE COURT WITH RESPECT TO THE PRINCIPLES OF JUDICIAL DISCIPLINE WH ICH REQUIRES THAT THE ORDER OF THE HIGHER AUTHORITY SHOULD BE FOLLOWED BY THE SUBO RDINATE AUTHORITIES. 3. LEARNED D. R., ON THE OTHER HAND, PLACED RELIANC E ON THE ORDERS OF AUTHORITIES BELOW. 4. I HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. I FIND THAT THIS ISSUE WAS ADJUD ICATED BY HON'BLE TRIBUNAL VIDE ORDER DATED 08/01/2015 IN I.T.A. NO.197/LKW/20 14. BY THIS ORDER OF I.T.A. NO.341/LKW/2018 ASSESSMENT YEAR:2008-09 3 HON'BLE TRIBUNAL THE APPEAL OF THE ASSESSEE WAS SET ASIDE TO THE ASSESSING OFFICER FOR DECIDING THE MATTER AFRESH AND FOR MAKI NG THE DE NOVO ASSESSMENT AFTER CONSIDERING THE REPORT OF THE D.V. O. THE FINDINGS OF HON'BLE TRIBUNAL ARE UNAMBIGUOUS AND VERY CLEAR. F OR THE SAKE OF COMPLETENESS THE FINDINGS OF HON'BLE TRIBUNAL ARE R EPRODUCED BELOW: 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT IN THE PRESENT CASE, THE ASSESSMENT WAS FRAMED BY THE ASSESSING OFFICER ON 31/12/2010 BECAUSE THE SAME WAS GETTING TIME BARRED AND REPORT OF D.V.O. WAS NOT AVAILABLE TILL THAT TIME. THE REPORT OF D.V.O. IS NOW AVAILABLE AND FROM THE SAME , WE FIND THAT THE FIRST REPORT OF D.V.O. IS AVAILABLE FROM P AGES 10 TO 12 OF THE PAPER BOOK DATED 25/05/2011 AND THE SECOND REPO RT OF THE D.V.O. IS AVAILABLE ON PAGES 14 TO 21 IS DATED 08/0 7/2011. AS PER THE SECOND REPORT OF D.V.O., THE VALUE WAS DETE RMINED BY HIM AT RS.19.27 LACS. SINCE THIS REPORT WAS NOT AV AILABLE BEFORE THE ASSESSING OFFICER AND THE SAME WAS NOT CONSIDER ED BY HIM, WE FEEL IT FIT AND PROPER THAT THE MATTER SHOULD GO TO THE ASSESSING OFFICER FOR DENOVO ASSESSMENT AFTER CONSI DERING THE REPORT OF THE D.V.O. ACCORDINGLY, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF T HE ASSESSING OFFICER FOR DECIDING THE MATTER AFRESH. 4.1 IN THE LIGHT OF THESE DIRECTIONS OF HON'BLE TRI BUNAL THE ASSESSING OFFICER READJUDICATED THE ISSUE VIDE ORDER DATED 29 /02/2016 AND AGAIN MADE THE SAME ADDITION WITHOUT CONSIDERING THE REPORT OF THE D.V.O. DESPITE OF THE FACT THAT THE ASSESSEE HAD SUBMITTED TO THE ASS ESSING OFFICER THAT THE INCOME OF THE ASSESSEE MAY BE COMPUTED IN ACCORDANC E WITH THE VALUATION MADE BY D.V.O. WHEN THE ASSESSEE WENT IN FOR APPEA L BEFORE CIT(A), LEARNED CIT(A) ALSO CONFIRMED THE ORDER OF THE TRIB UNAL. IT IS VERY SURPRISING TO NOTE THAT CIT(A) HAS ALSO NOT APPRECIATED THAT T HE ACTION OF THE ASSESSING OFFICER IN COMPLETING THE ASSESSMENT WITHOUT TAKING INTO ACCOUNT THE OBSERVATIONS OF HON'BLE TRIBUNAL WAS NOT AS PER LEG AL JUDICIAL SYSTEM. HE HAS IGNORED THE FACT THAT AFTER THAT THE D.V.O. REPORT WAS RECEIVED AND THE I.T.A. NO.341/LKW/2018 ASSESSMENT YEAR:2008-09 4 MATTER WAS REMITTED BACK BY THE TRIBUNAL TO THE ASS ESSING OFFICER FOR READJUDICATION KEEPING IN VIEW THE D.V.O.S REPORT, THE ASSESSING OFFICER WAS BOUND TO CONSIDER THE D.V.O.S REPORT. THE REASONI NG OF LEARNED CIT(A) THAT IT WILL AMOUNT TO REOPENING U/S 148 IS ALSO NOT VAL ID AS IT WAS NOT A CASE OF REOPENING OF THE CASE AND IT WAS ONLY ON THE DIRECT IONS OF SUPERIOR AUTHORITY THE LOWER AUTHORITIES CAN ALWAYS LOOK INTO THE MATT ER AGAIN IN ACCORDANCE WITH THE DIRECTIONS OF THE SUPERIOR AUTHORITY WITHO UT VIOLATING THE PROVISIONS OF SECTION 147/148. 4.2 HON'BLE SUPREME COURT IN THE CASE OF UNION OF I NDIA V. KAMLAKSHI FINANCE CORPORATION LTD., AIR 1992 SC 711, HAS HELD THAT, 'THE PRINCIPLES OF JUDICIAL DISCIPLINE REQUIRE THAT THE ORDERS OF THE HIGHER APPELLATE AUTHORITIES SHOULD BE FOLLOWED UNRESERVEDLY BY THE SUBORDINATE AUTHORITIES. THE MERE FACT THAT THE ORDER OF THE APPELLATE AUTHORITY IS N OT 'ACCEPTABLE' TO THE DEPARTMENT IN ITSELF AN OBJECTIONABLE PHRASE AND IS THE SUBJECT MATTER OF AN APPEAL CAN FURNISH NO GROUND FOR NOT FOLLOWING IT U NLESS ITS OPERATION HAS BEEN SUSPENDED BY A COMPETENT COURT. IF THIS HEALTH Y RULE IS NOT FOLLOWED, THE RESULT WILL ONLY BE UNDUE HARASSMENT TO ASSESSE E AND CHAOS IN ADMINISTRATION OF TAX LAWS.' 5. IN VIEW OF THE ABOVE, THE ACTION OF LOWER AUTHOR ITIES IS A GROSS VIOLATION BY NOT FOLLOWING THE JUDICIAL HIERARCHY. THE KEY TO HEALTHY ATMOSPHERE AND DISCIPLINE IN THE SOCIETY IS TO FOL LOW JUDICIAL DISCIPLINE AND IF THE JUDICIAL DISCIPLINE IS NOT FOLLOWED, AS IN THE PRESENT CASE, THE WHOLE SYSTEM OF LEGISLATION AND JUDICIARY WILL COLLAPSE. THEREFORE, THE ASSESSING OFFICER IS STRICTLY DIRECTED TO FOLLOW THE ORDER OF HON'BLE TRIBUNAL IN LETTER AND SPIRIT AND SHOULD DECIDE THE ISSUE AFRESH KEEPING I N VIEW THE D.V.O.S REPORT AND IN ACCORDANCE WITH LAW. I.T.A. NO.341/LKW/2018 ASSESSMENT YEAR:2008-09 5 6. SINCE I HAVE REMANDED THE ISSUE TO THE FILE OF T HE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH, THE STAY PETITION FI LED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES WHEREAS THE STAY APPLICATION IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 07/12 /2018) SD/. ( T. S. KAPOOR ) ACCOUNTANT MEMBER DATED:07/12/2018 *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