Sri Nihar Ranjan Behera, Bhubaneswar V. ITO, Ward-2(2), Bhubaneswar

ITA 351/CTK/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5625 (ITAT-CUTTACK)
• Duration Of Justice: 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-05-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 18-09-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: S K JENA
• Keywords: Sale consideration of property below Jantri Value; Principle of natural justice; Tangible material

Judgement Text

1 ITA NO.351/CTK/2017 ASSESSMENT YEAR : 2009 - 2010 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 351 /CTK/201 7 ASSESSMENT YEAR : 20 09 - 2010 SRI NIHAR RANJAN BEHERA, AT:PLOT NO.4136, BADAGADA VILLAGE, BADAGADA BRIT COLONY, BADAGARH, BHUBANESWAR. VS. ITO, WARD 2(2), BHUBANESWAR. PAN/GIR NO. AKYPB 4395 F (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI S.K.JENA, AR REVENUE BY : SHRI D.K.PRADHAN , DR DATE OF HEARING : 1 7 / 0 5 / 201 8 DATE OF PRONOUNCEMENT : 17 / 0 5 / 201 8 O R D E R PER N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 1, BHUBANESWAR DATED 27.6.2017 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. GROUND NO.1 OF APPEAL READS AS UNDER FOR THAT THE IMPUGNED ORDER OF ASSESSMENT PASSED BY THE LD. A.O U/S.147 OF THE ACT, TO REOPEN THE ASSESSMENT, IS LEGALLY IMPERMISSIBLE PARTICULARLY THERE WERE NO TANGIBLE MATERIALS AVAILABLE ON RECORD IN ORDER TO REOPEN THE ASSESSMENT, AS SUCH THE APPELLANT H AD NO TAXABLE INCOME FOR THE YEAR UNDER APPEAL. HOWEVER THE LD. A.O WAS TAKEN UP THE REASSESSMENT PROCEEDING BY BASING ON THE REASONS OF THE ERSTWHILE ASSESSING OFFICER, WHICH IS NON APPLICATION OF MIND ON HIS PART. THUS THE REOPENING AS WELL AS THE IMPUGN ED ASSESSMENT ORDER HAS BEEN INCORRECTLY MADE BY 2 ITA NO.351/CTK/2017 ASSESSMENT YEAR : 2009 - 2010 THE LD. A.O, THEREFORE UNSUSTAINABLE AND IMPERMISSIBLE UNDER LAW. 3. NO SUBMISSIONS WERE ADVANCED BY LD A.R. OF THE ASSESSEE, THEREFORE, THIS GROUND IS DISMISSED FOR WANT OF PROSECUTION. 4. GROUND NOS.2 & 3 READ AS UNDER: 2. FOR THAT DESPITE PROPER COMPLIANCE WITH SUPPORTING DOCUMENTS WERE PRODUCED BY THE APPELLANT BEFORE THE LD. CIT (A) DURING THE COURSE OF HEARING OF THE FIRST APPEAL, THE LD. CIT (A) WITHOUT VERIFYING THE SAME SIMPLY UP HOLD THE IMPUGNED ASSESSMENT ORDER. THE LD. CIT (A) HAS GIVEN AN ERRONEOUS CONCLUSION THAT THE LAND SOLD BY THE APPELLANT AND THE ENTIRE CONSIDERATION AMOUNT IS SUBJECTED TO SHORT TERM CAPITAL GAIN, DESPITE THE FACT THAT THE LAND IN QUESTION IS AN ANCESTRAL AGRICULTURAL LAN D INHERITED BY THE APPELLANT FROM HIS DECEASED FATHER. FURTHER THE DOCUMENTS ARE AVAILABLE WITH THE APPELLANT WHICH ESTABLISHED THAT FRAUD HAS BEEN PRACTICED BY THE PURCHASER IN INCREASING THE VALUE OF THE LAND IN QUESTION AT THE TIME OF TRANSFER. THEREFOR E, THE LD. CIT (A) IS ERRED IN NOT EXAMINE THOSE DOCUMENTS PRESENTED BY THE APPELLANT DURING THE COURSE OF HEARING OF THE FIRST APPEAL. UNDER SUCH CIRCUMSTANCES THE ORDERS IN THE FORUM BELOW IS LIABLE TO BE SET ASIDE FOR READJUDICATION. 3. FOR THAT IN THE PRESENT CASE BOTH THE LD. A.O AS WELL AS LD. CIT(A) HAVE NOT EXAMINE THE DOCUMENTARY EVIDENCES PRESENTED BY THE APPELLANT AND WITHOUT PROVIDING PROPER OPPORTUNITY THE IMPUGNED ORDERS HAVE BEEN PASSED BY THE AUTHORITIES BELOW, THEREFOR E THE ORDERS SUFFER FROM NON APPLICATION OF MIND AND VIOLATES RULES OF NATURAL JUSTICE, HENCE IMPERMISSIBLE UNDER LAW. 5. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER OBSERVED THAT AS PER SALE DEED DATED 28.2.2009, THE ASSESSEE HAS RECEIVE D RS.53,72,400/ - FROM MR CHELAPA VISWANATHAN AS SALE CONSIDERATION OF LAND BEARING KHATA NO.1494/1762, PLOT NO.1673, AREA AC.0.242 DEC. MOUZA - BHUBANESWAR SAHARA, UNIT NO.35, BADAGADA, THANA NO.76 DURING THE FINANCIAL YEAR 2008 - 09. ACCORDINGLY, HE SHOW CAU SED THE ASSESSEE . 3 ITA NO.351/CTK/2017 ASSESSMENT YEAR : 2009 - 2010 SINCE THERE WAS NO RESPONSE FROM THE ASSESSEE BY PROVIDING CORROBORATIVE EVIDENCE TO SUBSTANTIATE HIS CLAIM, THE ASSESSING OFFICER INFERRED THAT THE ASSESSEE HAD NOTHING TO SAY AND ADDED THE ENTIRE AMOUNT OF RS.53,72,400/ - AS INCOME OF T HE ASSESSEE UNDER THE HEAD LONG TERM CAPITAL GAINS. 6. BEFORE THE CIT(A), THE ASSESSEE MADE WRITTEN SUBMISSIONS, WHICH ARE QUOTED IN PARA 4 OF THE ORDER OF THE CIT(A). 7. THE CONTENTION OF LD A.R. BY WAY OF THIS APPEAL IS THAT THE DOCUMENTS AND EVIDENCE S WHICH WERE PRODUCED BEFORE THE CIT(A) AND THE ARGUMENTS OF THE ASSESSEE WERE NOT CONSIDERED BY THE CIT(A) BEFORE DISPOSING THE APPEAL OF THE ASSESSEE AND, THEREFORE, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE CIT(A) FOR GIVING HIS FINDINGS ON THE EVIDENCES AND SUBMISSIONS OF THE ASSESSEE. 8. LD D.R. HAD NO OBJECTION TO THE ABOVE CONTENTION OF LD A.R. OF THE ASSESSEE. 9. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSING THE ORDERS OF LOWER AUTHORITIES, WE FIND FROM THE ORDER OF THE CIT(A) THA T THE ASSESSEE HAS GIVEN BENCH MARK GOVERNMENT VALUATION RATE FOR KISSAM SARADA II FOR STAMP DUTY PURPOSE. THE ASSESSEE CONTENDED THAT THE BENCH MARK VALUE OF THE PROPERTY IN QUESTION WAS RS.5,32,400/ - AND THE ASSESSEE HAS SOLD THE SAME FOR RS.6,05,000/ - . AS THE CONSIDERATION SHOWN WAS MORE THAN THE BENCH MARK VALUE AS PER THE PROVISIONS OF SECTION 50C(1), NO ADDITION WAS CALLED FOR. THE CIT(A) HAS NOT GIVEN HIS FINDINGS ON THE ABOVE SUBMISSIONS AND EVIDENCES FILED BY THE ASSESSEE. WE, THEREFORE, SET 4 ITA NO.351/CTK/2017 ASSESSMENT YEAR : 2009 - 2010 AS IDE THE ORDERS OF LOWER AUTHORITIES AND REMAND THE ISSUE BACK TO THE FILE OF THE CIT(A) FOR ADJUDICATING THE SAME AFRESH AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTI CAL PURPOSES. 10. GROUND NOS.4 AND 5 OF APPEAL ARE GENERAL IN NATURE AND HENCE, REQUIRES NO SEPARATE ADJUDICATION. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON 17 / 0 5 /201 8 . S D/ - SD/ - (PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 17 / 0 5 /201 8 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : SRI NIHAR RANJAN BEHERA, AT:PLOT NO.4136, BADAGADA VILLAGE, BADAGADA BRIT COLONY, BADAGARH, BHUBANESWAR 2. THE RESPONDENT. ITO, WARD 2(2), BHUBANESWAR 3. THE CIT(A) - 1, BHUBANESWAR 4. PR.CIT - 1, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//