ITO, Ward-1(3)(3), Haridwar V. Tosh Kumar Jain, Haridwar

ITA 3489/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4861 (ITAT-DEHRADUN)
• Duration Of Justice: 3 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 11-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHEY SHYAM
• Keywords: Revision of order; Capital Gains
• Section: 142(1); 147; 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DEHRADUN BENCH, DEHRADUN BEFORE SH. AMIT SHUKLA, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA NO. 3489/DEL/2018 : ASSTT. YEAR : 2010-11 INCOME TAX OFFICER, WARD-1(3)(3), HARIDWAR VS TOSH KUMAR JAIN, BHAGWANT KUTI, KANKHAL, HARIDWAR (APPELLANT) (RESPONDENT) PAN NO. A CCPJ7964L ITA NO. 14/DDN/2018 : ASSTT. YEAR : 2010-11 TOSH KUMAR JAIN, BHAGWANT KUTI, KANKHAL, HARIDWAR VS INCOME TAX OFFICER, WARD-1(3)(3), HARIDWAR (APPELLANT) (RESPONDENT) PAN NO. A CCPJ7964L ASSESSEE BY : SH. ASHWANI KUMAR, CA REVENUE BY : SH. RADHEY SHYAM, CIT DR DATE OF HEAR ING: 16 . 09 .20 2 1 DATE OF PRONOUNCEMENT: 27 .09 .20 2 1 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE A GAINST THE ORDER OF THE LD. CIT(A), DEHRADUN DATED 08.03.2 018 AND THE APPEAL OF THE ASSESSEE AGAINST THE ORDER OF LD. PCI T, DEHRADUN DATED 27.03.2021. 2. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERU SED THE MATERIAL AVAILABLE ON RECORD. ITA NO. 3489/DDN/2018 ITA NO. 14/DDN/2021 TOSH KUMAR JAIN 2 3. WE HAVE GONE THROUGH THE ORDER OF THE LD. CIT ( A) PASSED AGAINST THE ORDER U/S 148/143(3) OF THE AO IN DETAI L AND FIND THAT THE ID. CIT (A) HAS METICULOUSLY EXAMINED THE ISSUE IN TOTO AND CONCLUDED THAT THE ASSESSEE IS NOT LIABLE TO CA PITAL GAINS WITH REGARD TO THE PROPERTY SOLD. 4. THE PETIT ISSUE INVOLVED IN THE CASE IS THAT SH . TOSH KUMAR JAIN BEING THE HOLDER OF THE POWER OF ATTORNE Y HAS SOLD THE PROPERTY BELONGING TO SH. MAHANT DAYAL DAS AND ALSO PASSED ON THE RECEIPT TO SH. MAHANT DAYAL DAS. THE REVENUE MISGUIDEDLY HELD THE POWER OF ATTORNEY HOLDER IS TH E OWNER OF THE PROPERTY AND ACCORDINGLY FASTENED THE LIABILITY OF THE CAPITAL GAINS COMPUTED INSTEAD OF THE LEGAL HEIR OF THE ASS ESSEE. HENCE, WE HEREBY DECLINE TO INTERFERE WITH THE WELL REASON ED AND APTLY OUTLINED ORDER OF THE LD. CIT(A). 5. FURTHER, THE ID. PCIT PASSED AN ORDER U/S 263 O F THE INCOME TAX ACT, 1961 DATED 27.03.2021 REVISING THE ORDER PASSED U/S 148 DATED 29.12.2017. FROM THE REASONS F OR REOPENING MENTIONED IN THE NOTICE U/S 142(1) OF THE IT ACT DATED 09.11.2017, WE FIND THAT THE CASE HAS BEEN RE OPENED TO EXAMINE THE SALE OF THE PROPERTY BY THE ASSESSEE AS A POWER OF ATTORNEY HOLDER OF SH. MAHANT DAYAL DAS. FOR THE SA KE OF READY REFERENCE, THE RELEVANT PARA OF THE ASSESSING OFFIC ER IS REPRODUCED HEREUNDER: '3. THAT THE THEN AO HAS CLEARLY MENTIONED IN THE O FFICE NOTE IN THE A.Y. 2011-12. 'DURING THE ASSESSMENT PROCEEDINGS, I T IS FOUND THAT ASSESSEE AS A POWER OF ATTORNEY HOLDER OF MAHANT DA YAL DASS R/O MITTIWALA, TEHSIL-MUKTSAR, DISTT. HANUMANGARH, RAJS THAN HAS SOLD ON 08.09.2009 IMMOVABLE PROPERTIES TWO RESIDENTIAL PLO TS OF VALUE ITA NO. 3489/DDN/2018 ITA NO. 14/DDN/2021 TOSH KUMAR JAIN 3 RS.3,83,15,000/- TO HIS WIFE SMT. MONIKA JAIN FOR R S. 20,00,000/-. ONE RESIDENTIAL PLOTS HAVE AREA 29060 SQ. MTS. KHAS RA NO. 427 AND ANOTHER PLOT OF 3137 SQ. MT. KHASRA NO. 48/28 ARE S ITUATED AT VILLAGE-BHUPARWALA KALAN, PARGANA-JWALAPUR TESHIL & DISTT.-HARIDWAR. PROCEEDINGS U/S 147 ARE TO BE INITIATED FOR CHARGIN G LTCG FOR A.Y. 2010-11.' THUS, THE AFTER CONSIDERING THE OFFICE NOTE AND ALS O THE RECORDS OF THIS OFFICE. AO HAS REASON TO BELIEF THAT INCOME TO THE EXTENT OF RS.37,83,15,000/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE I.T. ACT. HENCE, ACTION U/S 147 HAS BEEN INITIATED AFTER GETTING APPROVAL FROM THE HIGHER AUTHORITY AN D STAND CORRECT.' 6. THE ASSESSMENT HAS BEEN COMPLETED U/S 148 VIDE ORDER DATED 29.12.2017 MAKING THE ADDITION OF RS.32.93 CR ORES AS MENTIONED IN THE REASONS OF REOPENING. 7. ON THE SHORT POINT OF THE ISSUE, SINCE THE REAS ONS OF REOPENING HAVE BEEN DULY CONSIDERED AND THE AMOUNT HAS BEEN BROUGHT TO TAX IN THE ASSESSMENT ORDER, IT CANNOT B E SAID THE ORDER PASSED U/S 148 BY THE AO IS ERRONEOUS AND PRE JUDICIAL TO THE INTEREST OF THE REVENUE. 8. HAVING SAID THAT, THE REAL ISSUE IN THE CASE OF ORDER U/S 263 IS THAT THE ASSESSMENT U/S 148 HAS BEEN PASSED WRONGLY IN THE NAME OF THE ASSESSEE 'TOSH KUMAR JAIN' WHEREAS THE ASSESSMENT HAS TO BE RIGHTLY PASSED IN THE HANDS OF SH. MAHANT DAYAL DAS AS DULY HELD BY THE ID. CIT (A) IN HIS ES TIMABLE ORDER, WHICH HAS BEEN AFFIRMED BY THIS TRIBUNAL. HENCE, WE HOLD THAT THE PROCEEDINGS IN THE CASE OF THE U/S 263 AGAINST THE ORDER PASSED U/S 148 WHICH ITSELF HAS BEEN WRONGLY INVOKE D CANNOT ITA NO. 3489/DDN/2018 ITA NO. 14/DDN/2021 TOSH KUMAR JAIN 4 WITHSTAND THE TEST OF LEGALITY EVEN ON THE PRIMARY JURISDICTIONAL ISSUE. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED AND THAT OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/09/2021. SD/- SD/- (AMIT SHUKLA) ( DR. B. R. R. KUMAR) JUDICIAL MEMBER ACC OUNTANT MEMBER DATED: 29/09/2021 *SUBODH KUMAR, SR. PS* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR