TAHIR KHAN, JHANSI V. ITO, JHANSI

ITA 360/AGR/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0419 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 11-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Deemed to accrue or arise in india; Valuation report
• Section: 68

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI LALIET KUMAR, JUDICIAL MEMBER AND DR. MITHA LAL MEENA, ACCOUNTANT MEMBER ITA NO. 360/AGR./2018 ASSESSMENT YEAR: 2014-15 SHRI TAHIR KHAN, 38/2, MT TEXTILES, JAWAHAR CHOWK, JHANSI. PAN: AJXPK8333L (APPELLANT) VS. INCOME - TAX OFFICER, 2(3)(3), JHANSI. (RESPONDENT) APPELLANT BY SH. ANURAG SINHA, ADVOCATE RESPONDENT BY SH. WASEEM ARSHAD, SR. DR ORDER PER LALIET KUMAR, J.M.: THIS APPEAL IS FILED BY THE ASSESSEE FEELING AGGR IEVED FROM THE ORDER OF LD. CIT(A)- DATED 30.11.2017 ON THE FOLLOWING GROUNDS : 1. BECAUSE, UPON DUE CONSIDERATION OF FACTS AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN DISPOSING OFF THE APPEAL EX-PA RTE EVEN WITHOUT CONSIDERATION OF OBJECTIONS RAISED AT THE STAGE OF ASSESSMENT BEFORE THE AO WHICH FORMS PART OF RECORDS. 2. BECAUSE, THE LD CIT(A) WAS HIGHLY UNJUSTIF IED IN ENHANCING THE ADDITION BY RS.26,00,000/- MADE UNDER SECTION 68 OF THE ACT WITHOUT CONSIDERATION OF THE MATERIAL BROUGHT ON RECORDS OF THE AO, FACTS OF THE CASE AND LAW. 3. BECAUSE THE AUTHORITIES BELOW WERE UNJUST IFIED IN MAKING AND CONFIRMING THE IMPUGNED ADDITION OF RS.97,31,000/- AS DEEMED INCOME OF THE APPELLANT (TAKING THE VALUE U/S 56(2)(VII) AT G OVT. PRICE (FOR STAMP DATE OF HEARING 03.09.2019 DATE OF PRONOUNCEMENT 11 .09.2019 ITA NO. 360/AGR/2018 2 PURPOSES) OF RS.1,12,31,000/-AND REDUCING THE ACTUA L PURCHASE CONSIDERATION OF RS.15,00,000/- WHICH ACTION IS GRO SSLY ARBITRARY, HIGHLY UNJUST, ILLEGAL WITHOUT ANY EVIDENCE BROUGHT ON REC ORDS TO JUSTIFY SUCH HUGE ADDITION AND IS AGAINST THE PECULIAR FACTS OF THE C ASE. 3.1 BECAUSE, WHILE MAKING THE ADDITION THE AU THORITIES BELOW HAVE OMITTED TO TAKE INTO CONSIDERATION THAT THE GOVERNM ENT VALUE FIXED FOR STAMP PURPOSES IS HIGHLY ABNORMAL & EXCESSIVE BEING WORKED OUT ON RENTAL METHOD CONSIDERING THE REAL ACTUAL VALUE OF THE PRO PERTY. 3.2 BECAUSE WHILE MAKING THE ADDITION THE AUTH ORITIES BELOW HAVE NOT TAKEN INTO CONSIDERATION THAT THE PROPERTY BEING LO CATED IN BASEMENT HAVING NO PROPER THOROUGH ROAD, ITS SITUATION, LOCA TION, ETC. AND OTHERWISE THE ACTUAL VALUE OF THE PROPERTY IS NOT MORE THAN T HE PURCHASE PRICE THUS THE ADDITION MADE IS WRONG AND ILLEGAL. 3.3. BECAUSE IN ANY VIEW, THE LD CIT(A) WHILE S USTAINING THE ADDITION OUGHT TO HAVE CONSIDERED THE VALUATION REPORT DATED 05.08.2016 OF REGD. VALUER, ER. R.K. AGARWAL AND ASSOCIATES EVALUATING ACTUAL VALUATION COST AT RS. 14.96 LACS, THUS THE ADDITION MADE WITHOUT PROV ING THE REPORT OF TECHNICAL EXPERT IS BAD IN LAW. 3.4 BECAUSE IN ANY VIEW, THE EFFECT OF THE INS PECTOR VISITING THE PREMISES HAS ALSO NOT BEEN CONSIDERED, AND HIS REPORT OF ANY INCONVENIENCE OF THE VALUATION REPORT. 3.5 BECAUSE IN ANY VIEW, THE ACTION OF THE AU THORITIES BELOW IN ADOPTING GOVERNMENT FIXED VALUE FOR STAMP PURPOSES INSTEAD O F ACTUAL PURCHASE PRICE AND THE IMPUGNED HIGH PITCH ADDITION MADE WITHOUT A NY BASIS IS GROSSLY UNJUST AS THE APPELLANT IS READY TO FORGONE/LEAVE/T RANSFER THE PROPERTY TO INCOME TAX DEPARTMENT/OTHERWISE EVEN AT 25% OF THE G OVERNMENT FIXED VALUE FOR STAMP PURPOSES. 3.6 BECAUSE IN ANY VIEW, THE IMPUGNED ADDITION MADE BY DISALLOWANCE OF EXPENSES OF RS.39,779/- ON ACCOUNT OF SHARE TRAD ING EXPENSES TWICE IS GROSSLY ARBITRARY, HIGHLY UNJUST, WRONG AND ILLEGAL AND AGAINST THE PECULIAR FACTS AND LAW OF THE CASE. 3.7 BECAUSE IN ANY VIEW, THE IMPUGNED ADDITION MADE BY ADHOC DISALLOWANCE OF RS.50,000/- OUT OF SALARY RS.3,70,0 00/-, SHOP EXPENSES ITA NO. 360/AGR/2018 3 RS.44,173/-, TRAVELLING EXPENSES RS.48,657/-, MOBILE EXPENSES RS.5,845/-, GENERATOR EXPENSES RS.6,790/- AND ACCOUNTING CHARGE S RS.18,000/- THAT TOO IN CASUAL AND ROUTINE MANNER WITHOUT PIN POINTING A NY SPECIFIC ITEM IS GROSSLY ARBITRARY, HIGHLY UNJUST, WRONG AND ILLEGAL . 3.8 BECAUSE, WHILE MAKING THE ASSESSMENT THE A UTHORITIES BELOW MADE VARIOUS OBSERVATIONS/CONCLUSIONS WHICH ARE CONTRARY TO FACTS AVAILABLE ON RECORDS. WHILE MAKING THE ADDITION SUBMISSION MADE AND EVIDENCES FILED HAVE BEEN REJECTED ARBITRARILY. 4. BECAUSE, THE 'APPELLANT' DENIES LEVY OF INTEREST UNDER SECTION 234B. 5. BECAUSE, IN RELATION TO THE ''GROUNDS OF APPEA L' AS HAVE BEEN TAKEN HEREINBEFORE, THE 'APPELLANT' REFER AND RELY UPON T HE AVERMENTS MADE IN THE STATEMENT OF FACT ACCOMPANYING THE MEMO OF APPEAL. 6. BECAUSE, THE ORDER APPEALED AGAINST IS CO NTRARY TO THE FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE ASS ESSEE IS AN AGRICULTURIST AND WAS NOT REGULAR AND PUNCTUAL IN APPEARING BEFORE THE LO WER AUTHORITIES, I.E., ASSESSING OFFICER AND CIT(A) AND AS SUCH, THE ASSESSMENT BY T HE ASSESSING OFFICER AND THE APPEAL BY THE LD. CIT(A) WERE DECIDED EXPARTE. HE H AS TAKEN US TO PARAGRAPH NO. 5.3 OF THE CIT(A) ORDER AND SUBMITTED THAT ONE MORE OPPORT UNITY BE GRANTED TO THE ASSESSEE AND THE ASSESSEE MAY BE BURDENED WITH SOME REASONAB LE COST. 3. PER CONTRA, THE LD. DR HAS SUBMITTED THAT THE AS SESSEE WAS NOT VIGILANTLY PURSUING THE ASSESSMENT PROCEEDINGS AND THE APPEAL PROCEEDINGS AND HENCE, THE CIT(A) HAS DECIDED THE MATTER ON MERITS ON THE BASI S OF MATERIAL AVAILABLE ON RECORD. ITA NO. 360/AGR/2018 4 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE PARTI ES AND PERUSED THE RECORD. IN PARAGRAPH NO. 5.3, THE DELAY AND LATCHES ON THE PAR T OF THE ASSESSEE ARE CONSPICUOUS AND WE REPRIMAND THE SAME. HOWEVER, CONSIDERING THE OBJECT OF THE TAX ADJUDICATION, I.E., THE TAX IS REQUIRED TO BE COLLECTED FROM THE PERSON WHO IS LIABLE TO PAY IT, AND KEEPING THAT LOUD PRINCIPLE IN MIND, WE DEEM IT APP ROPRIATE TO REMAND THE MATTER BACK TO THE FILE OF CIT(A) SUBJECT TO PAYMENT OF RS .10,000/- AS COST AS AGREED BY THE LD. AR WITH THE OFFICE OF ITAT TAX BAR ASSOCIATION, AGR A. IT IS MADE CLEAR THAT SIMILAR AMOUNT OF RS.10,000/- SHALL BE CONTRIBUTED BY THE I TAT TAX BAR ASSOCIATION FROM ITS CORPUS AND WOULD BE SPENT ON THE MAINTENANCE OF THE CONFERENCE HALL/WAITING HALL OF THE LAWYERS/CAS. HENCE, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH SEPTEMBER, 2019 SD/- SD/- (DR. MITHA LAL MEENA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11 TH SEPT., 2019 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA