Ms. Usha Goel, Saharanpur V. ITO, New Delhi

ITA 3759/DEL/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4148 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 10-10-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 24-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Salary income; Opportunity of being heard
• Section: 50C; 147; 148

Judgement Text

I.T.A .NO.-3759/DEL/2016 USHA GOEL VS ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-3 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-3759/DEL/2016 (ASSESSMENT YEAR-2008-09) USHA GOEL, D/O-LATE.GULZARI LAL, GOEL NIWAS, COURT ROAD, SAHARANPUR. PAN-AKDPG6389H ( APPELLANT) VS ITO, WARD-64(4), NEW DELHI. (RESPONDENT) ASSESSEE BY SH.K.SAMPATH, ADV. & SH.V.RAJA KUMAR, ADV. REVENUE BY SH.RAJESH KUMAR, SR.DR DATE OF HEARING 10 . 1 0.2016 DATE OF PRONOUNCEMENT 07 .1 2 .2016 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 16.05.2016 OF CIT(A)-21, NEW DELHI PERT AINING TO 200809 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A ERRED IN CONFIRMING THE FOLLOWING ACTIONS OF THE ASSESSING O FFICER:- 1. INITIATING PROCEEDINGS U/S 147/148 OF THE INCOME TAX ACT, 1961 (THE ACT); 2. CONSTRUING THE AGRICULTURE LAND AS CAPITAL ASSET U/S 2(14)(III) OF THE ACT AND SUBJECTING THE SALE THEREOF TO CAPITAL GAIN TAX; 3. CONSTRUING THE SALE CONSIDERATION OF THE AGRICUL TURE LAND ON THE BASIS OF CIRCLE RATE BY INVOKING SECTION 50C OF THE ACT WITHOUT CON FRONTING THE APPELLANT. ALL THE ABOVE ACTIONS BEING ARBITRARY, ERRONEOUS, M ISCONCEIVED AND UNJUST MUST BE QUASHED WITH DIRECTIONS FOR RELIEF. 2. HOWEVER, THE LD.AR AT THE TIME OF HEARING SUBMIT TED THAT THE JURISDICTIONAL ISSUE HAS NOT BEEN DECIDED BY THE CIT(A). FOR THE SAID PURPO SES, ATTENTION WAS INVITED TO PAGE 7 PARA 8 OF THE IMPUGNED ORDER WHICH IS REPRODUCED HEREUNDER :- GROUND NO.1: VIDE THIS GROUND OF APPEAL THE APPELL ANT HAS CHALLENGED THE VALIDITY OF INITIATING PROCEEDING U/S 147. IN THIS REGARD T HE AO HAS GIVEN HIS FINDINGS IN THE REMAND REPORT TO ESTABLISH THE FACT THAT THE PROCEE DINGS U/S 147 WAS INITIATED AFTER DUE RECORDING THE REASONS OF INCOME ESCAPING ASSESS MENT. MOREOVER, DURING THE ASSESSMENT PROCEEDING THE ASSESSEE NEVER OBJECTED T O AO INITIATING PROCEEDINGS U/S 147. IN THE LIGHT OF THE ABOVE, I DO NOT FIND ANY MERIT IN APPELLANTS ABOVE CONTENTION AND HENCE SAME IS REJECTED. 2.1. REFERRING TO THE ABOVE, IT WAS HIS SUBMISSION THAT JURISDICTIONAL ISSUE MAY BE FIRST DECIDED. THE SAID PRAYER WAS NOT OBJECTED TO BY TH E LD.SR.DR. PAGE 2 OF 3 I.T.A .NO.-3759/DEL/2016 USHA GOEL VS ITO 3. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE IN RESPONSE TO NOTICE U/S 148 STATED THAT THE RETURN ALREADY FILED ON 25.07.2008 THAT ITO, WARD-4 MAY BE TREATED TO HAVE BEEN FILED IN RESPONSE TO NOTICE U/S 148. CONSIDER ING THE FACTS THAT THE ASSESSEE HAD SHOWN SALE CONSIDERATION BELOW THE CIRCLE RATE AND RELYIN G UPON SECTION 50C, ADDITION OF RS.12,08,000/- WAS MADE IN THE HANDS OF THE ASSESSE E. AGGRIEVED THE ASSESSEE CHALLENGED THE SAID ORDER ON MERIT AS WELL AS ON THE JURISDICT IONAL ISSUE BEFORE THE CIT(A). A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT TAX EVASION PETITION (TEP) WAS RECEIVED BY THE DEPARTMENT ON THE BASIS OF WHICH THE ASSESSMENT WAS RE-OPENED. T HE ASSESSEE IS SHOWN TO BE AN INDIVIDUAL DECLARING INCOME FROM SALARY. A SPECIFI C PIECE OF LAND WAS STATED TO HAVE DEVOLVED UPON THE ASSESSEE ON THE BASIS OF WILL OF HER FATH ER AND THE SAME WAS SOLD TO 8 PERSONS THROUGH SEPARATE SALE DEEDS. THE LAND WAS STATED T O BE AGRICULTURAL LAND ON WHICH THERE WAS A MANGO GROVE. AS PER THE ASSESSMENT ORDER PARA 2 IT WAS BEING USED FOR CULTIVATING CROPS LIKE CHERRY, WHEAT AND PRESENTLY SUGARCANE WAS GROW N THEREON. CONSIDERING THE SALE DEEDS, THE AO CONCLUDED IN THE ORDER U/S 143(3)/148 THAT I T WAS A COMMERCIAL LAND. THE LD. AR HAS ARGUED THAT WHEN THE REASONS RECORDED FOR RE-OPENIN G THE ASSESSMENT ARE CONSIDERED IT WOULD SHOW THAT NO REASONABLE PERSON COULD HAVE COM E TO THE CONCLUSION THAT INCOME HAS ESCAPED ASSESSMENT. IT WAS HIS LIMITED PRAYER THAT THE JURISDICTIONAL ISSUE BE DECIDED FIRST AND EVEN THOUGH ON MERITS ALSO THE ASSESSEE HAS A G OOD CASE THE SETTLED LEGAL POSITION OF FIRST DECIDING THE LACK OF JURISDICTION BE ADDRESSE D. CONSIDERING THAT THE SAID PRAYER WAS NOT OBJECTED TO BY THE LD.SR.DR, THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUES ARE RESTORED BACK TO THE CIT(A). THE CIT(A) IS DIRECTED TO FIRST DEC IDE THE JURISDICTIONAL ISSUE AND THEREAFTER TO PROCEED ON MERIT IF SO WARRANTED. WHILE SO DIRECTI NG, IT IS MADE CLEAR THAT THE MERE FACT THAT THE ASSESSEE DID NOT CHALLENGE THE JURISDICTIONAL ISSUE BEFORE THE AO THE LD.CIT(A) CANNOT ABDICATE HIS RESPONSIBILITY TO CONSIDER THE GROUND AND THIS FACT CANNOT BE THE BASIS FOR NON- ADJUDICATION OF THE JURISDICTIONAL ISSUE. IT GOES WITHOUT SAYING THAT A REASONABLE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE BEFORE THE PASSING OF AN ORDER. PAGE 3 OF 3 I.T.A .NO.-3759/DEL/2016 USHA GOEL VS ITO 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 07 TH OF DECEMBER, 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI