Smt. Safia Farooq, Kanpur V. Inocme Tax Officer-3(4), Kanpur

ITA 353/LKW/2015

• Counselvise Citation: 35323714 RSA 2015
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 28-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard
• Section: 50C

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.353 & 354/LKW/2015 ASSESSMENT YEAR: 200910 SMT. SAFIA FAROOQ, 88/384, NALA ROAD, KANPUR- 208001 PAN AACPF 0730 A VS. ITO-3(4), KANPUR-208 001 (APPELLANT) (RESPONDENT) APPELLANT BY SHRI RAKESH GARG, ADVOCATE RESPONDENT BY SHRI AMIT NIGAM, SR. DR DATE OF HEARING 08 /0 9 /201 5 DATE OF PRONOUNCEMENT 0 6 / 1 0/201 5 O R D E R PER A. K. GARODIA, A.M. BOTH THESE APPEALS ARE FILED BY THE ASSESSEE, WHI CH ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF LEARNED CIT (A) II, LUCKNOW BOTH DATED 31.01.2014 FOR A.Y. 200910. ONE APPEAL IS IN QUANTUM PROCEEDINGS AND THE SECOND APPEAL IS IN COURSE OF PENALTY PROCEEDING U/S 271(1) (C) OF THE ACT. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CO MMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN THE QUANTUM APPEAL I.E. ITA NO. 354/LKW/2015, THE GRIEVANCE OF THE ASSESSEE IS THAT LAST NOTICE WAS ISSUED BY THE CIT( A) ON DATED 06.01.2014 AND IT WAS NOT SERVED ON THE ASSESSEE AND THEREFORE, EX-PA RTE ORDER WAS PASSED BY THE LD. CIT(A) SHOULD BE SET ASIDE AND THE MATTER BE RE STORED TO HIM FOR FRESH 2 DECISION. THE SECOND GRIEVANCE IS REGARDING ADDITIO N CONFIRMED BY THE LD. CIT(A) OF RS.21,22,600/- ON ACCOUNT OF SHORT TERM CAPITAL GAIN. 3. IT WAS SUBMITTED BY THE LD. AR OF THE ASSESSEE T HAT SINCE LAST NOTICE ISSUED BY THE CIT (A) ON 06.01.2014 WAS NOT SERVED ON THE ASSESSEE, THE ORDER OF THE LD. CIT (A) SHOULD BE SET ASIDE AND THE MATTER SHOU LD BE RESTORED BACK TO HIS FILE FOR FRESH DECISION AFTER ALLOWING REASONABLE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. LD. DR OF THE REVENUE SUBMITTED THAT SUFF ICIENT OPPORTUNITIES WERE PROVIDED AND THEREFORE, THERE IS NO JUSTIFICATION O F PROVIDING ANY MORE OPPORTUNITY. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT IT IS NOTED BY THE LD. CIT (A) THAT ON 23.12.2013, THE ASSESSEE ASKED FOR ADJOURNMENT, WHICH WAS GRANTED TO 27.12.2013 AND ON THIS DATE AGAIN, THE A SSESSEE ASKED FOR ADJOURNMENT AND ADJOURNMENT WAS GRANTED AND DATE WA S FIXED FOR HEARING ON 06.01.2014. THEREAFTER, LD. CIT (A) SAYS THAT ON TH IS DATE ALSO, COMPLIANCE HAS NOT BEEN MADE. HE HAS NOTED THAT LAST NOTICE WAS IS SUED ON 06.01.2014 FOR COMPLIANCE ON 13.01.2014 BUT NO COMPLIANCE WAS MADE . HENCE, IT IS SEEN THAT ON EARLIER SEVERAL OCCASIONS, THE ASSESSEE APPEARED AN D REQUESTED FOR ADJOURNMENT, BUT ON THE LAST DATE OF HEARING I.E. ON 13.01.2014 IN COMPLIANCE TO THE NOTICE DATED 06.01.2014, NO ONE APPEARED AND THIS IS THE C ONTENTION OF THE ASSESSEE THAT THIS NOTICE WAS NOT SERVED ON THE ASSESSEE. IN THIS VIEW OF THE MATTER, WE FEEL THAT IN THE INTEREST OF JUSTICE, ONE MORE OPPO RTUNITY SHOULD BE PROVIDED TO THE ASSESSEE AND THEREFORE, WE SET ASIDE THE ORDER OF T HE LD. CIT (A) AND RESTORE THE ENTIRE MATTER BACK TO HIS FILE FOR FRESH DECISION A FTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IN VIEW O F OUR DECISION, NO ADJUDICATION IS CALLED FOR ON THE MERIT OF THE ADDITION MADE BY THE AO AND UPHELD BY THE LD. CIT (A). 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS QUANTUM PROCEEDING STANDS ALLOWED FOR STATISTICAL PURPOSES. 3 6. REGARDING PENALTY APPEAL IN ITA NO. 353/LKW/2015 , IT WAS SUBMITTED BY THE LD. AR OF THE ASSESSEE THAT ALTHOUGH THIS ORDER OF THE LD. CIT (A) IS ALSO EX- PARTE AND THE MATTER IN QUANTUM APPEAL MAY GO BACK TO THE CIT (A) BUT STILL, PENALTY IS NOT JUSTIFIED IN RESPECT OF ADDITION MAD E BY THE AO UNDER DEEMING PROVISIONS OF SECTION 50C OF THE ACT. IN SUPPORT OF THIS CONTENTION, HE PLACED RELIANCE IN FOLLOWING TRIBUNALS ORDERS: A) HARISH VOOVAYA SHETTY VS. ITO IN ITA NO. 6383/MUM/2 012 DATED 03.07.2014, PAGES 59 TO 65. B) ITO VS. SARWAN KUMAR IN ITA NO. 4379/DEL/2009 DATED 28.01.2014, PAGES 72 TO 77 OF THE PAPER BOOK. 7. LD. DR OF THE REVENUE SUPPORTED THE ORDER OF TH E LD. CIT (A). 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D FORCE IN THE SUBMISSION OF LD. AR OF THE ASSESSEE THAT EVEN BY ASSUMING THA T QUANTUM ADDITION MAY BE UPHELD, PENALTY IS NOT JUSTIFIED IN VIEW OF VARIOUS TRIBUNALS DECISION CITED BY LD. AR OF THE ASSESSEE. IN THE CASE OF HARISH VOOVAYA S HETTY VS. ITO (SUPRA), THE TRIBUNAL HAS NOTED A JUDGMENT OF THE HONBLE CALCUT TA HIGH COURT IN THE CASE OF CIT VS. MADAN THEATRES LTD. REPORTED IN 260 CTR (CA L) 75 WHERE HONBLE CALCUTTA HIGH COURT HAS APPROVED THE TRIBUNALS ORDER IN THA T CASE AS PER WHICH TRIBUNAL DELETED THE PENALTY IMPOSED BY THE AO FOR ADDITION MADE BY HIM ON ACCOUNT OF DEEMING PROVISIONS OF SECTION 50C OF THE ACT. THE B ASIS OF DECISION OF THE HONBLE CALCUTTA HIGH COURT IS THIS THAT THE REVENUE HAS FA ILED TO PRODUCE ANY IOTA OF EVIDENCE THAT THE ASSESSEE ACTUALLY RECEIVED ONE PA ISE MORE THAN THE AMOUNT SHOWN TO HAVE BEEN RECEIVED BY HIM. BY RESPECTFULLY FOLLOWING THE TRIBUNALS DECISION RENDERED IN THE CASE OF ITO VS. HARISH VOO VAYA SHETTY VS. ITO (SUPRA) AND IN TURN FOLLOWING THE JUDGMENT OF THE HONBLE C ALCUTTA HIGH COURT RENDERED IN THE CASE OF CIT VS. MADAN THEATRES LTD. (SUPRA), WE HOLD THAT FOR SUCH ADDITION ON ACCOUNT OF DEEMING PROVISION OF SECTION 50C OF T HE ACT, PENALTY IS NOT JUSTIFIED IN THE ABSENCE OF ANY EVIDENCE THAT THE ASSESSEE AC TUALLY RECEIVED ANY AMOUNT 4 MORE THAN THE AMOUNT SHOWN TO HAVE BEEN RECEIVED BY THE ASSESSEE. ACCORDINGLY, THE PENALTY IS DELETED. 9. IN THE COMBINED RESULT, QUANTUM APPEAL OF THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES WHEREAS PENALTY APPEAL IS ALLO WED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- SD/- (SUNIL KUMAR YADAV) ( A. K. GA RODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 06/10/2015 AKS 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. REGIST RAR