SHRI CHAND KHAN PHADAN, JAIPUR V. INCOME TAX OFFICER, WARD -3(5), JAIPUR

ITA 380/JPR/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5994 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 22-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RUNI PAL JCIT DHK
• Assessee Lawyers: G M MEHTA
• Keywords: Reassessment proceedings; Set aside
• Section: 143(3); 147; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH SMC, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; DS LE{K BEFORE: SHRI SHRI VIJAY PAL RAO, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 380/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. SHRI CHAND KHAN PHADAN C/O G.MEHTA & CO., PARAS 127, HARI MARG, CIVIL LINES, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 3(5), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AHGPP 8238 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI G.M. MEHTA (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. RUNI PAL (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 20.09.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 24/09/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 29.01.2018 OF LD. CIT (APPEALS)-I, JAIPUR FOR THE ASSESSMENT YEAR 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- (1) THAT THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NEITHER APPRECIATING NOR CONSIDERING BUT SUSTAINING THE LEG ALITY OF ACTION UNDER SECTION 147 OF IT ACT BY A NON-JURISDICTIONAL ASSESSING OFFICER (ITO WARD 2(1), JAIPUR) THOUGH THE JURISDIC TION OF THE ASSESSEES CASE WAS WITH ITO WARD 3(1), JAIPUR AND THEREAFTER ON TRANSFER OF CASE BY LD. CIT, WITH ITO WARD 3(5), JAIPUR (171 ITR 381)(RAJ.). (2) WITHOUT PREJUDICE TO GROUND NO. (1), LD. CIT (A) WA S NOT JUSTIFIED IN SUSTAINING THE FOLLOWING ADDITIONS : 2 ITA NO. 380/JP/2018 SHRI CHAND KHAN PHADAN, JAIPUR. (I) RS. 16,27,340/- WHICH WAS MADE BY LD. AO ON MERE GU ESS WORK WHO ADOPTED HIGHER SALE OF PLOT NO. 367 OF LAND (ST OCK IN TRADE), BUT DID NOT CONFIRM THE PURCHASE VALUE FROM THE LOC AL BUYER, WHOSE ADDRESS WAS READILY AVAILABLE WITH HIM ON COP Y OF SALE DEED SUBMITTED BY THE APPELLANT DURING THE COURSE O F HEARING. (II) RS. 6,21,722/- ON ACCOUNT OF COMMON CONSTRUCTION OF ROADS, BOUNDARY WALL ON TOTAL LAND REQUIRED FOR SAFETY, SE CURITY AND APPRECIATION IN VALUE OF PLOTS OF LAND OR ALTERNATI VELY ALLOWING DEDUCTION OF IN PROPORTION TO PLOTS OF LAND SOLD DU RING THE YEAR. GROUND NO. 1 IS REGARDING VALIDITY OF REASSESSMENT FOR WANT OF JURISDICTION OF ITO WARD 2(1), JAIPUR WHO HAS ISSUE D NOTICE UNDER SECTION 148 OF THE IT ACT. 2. THE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE REAL ESTATE BUSINESS OF PURCHASE AND SALE OF LAND. THE ASSESSEE HAS FILED H IS RETURN OF INCOME ON 30 TH MARCH, 2010 DECLARING TOTAL INCOME OF RS. 1,60,660/ -. SUBSEQUENTLY, AS PER THE INFORMATION RECEIVED FROM SUB REGISTRAR SHOWING THE SALE OF PROPERTY BY THE ASSESSEE ON 15.12.2008 HAVING STAMP DUTY VALUATION OF RS. 21,17,340/-, THE ITO WARD 3(1), JAIPUR REOPENED THE ASSESSMENT BY ISSUIN G NOTICE UNDER SECTION 148 ON 23 RD MARCH, 2016. SINCE THE ORIGINAL RETURN OF INCOME W AS FILED BY THE ASSESSEE WITH THE ITO WARD 3(5), JAIPUR, THE CASE WAS SUBSEQUENTL Y TRANSFERRED VIDE ORDER OF THE PRINCIPAL CIT-1, JAIPUR UNDER SECTION 127 DATED 7 TH JUNE, 2016 TO ITO WARD 3(5), JAIPUR. THE ASSESSEE THEN FILED HIS RETURN OF INCO ME IN RESPONSE TO THE NOTICE UNDER SECTION 148 ON 20 TH JULY, 2016 DECLARING TOTAL INCOME OF RS. 1,49,400/ -. THE REASSESSMENT WAS COMPLETED ON 01.12.2016 WHEREBY TH E AO MADE ADDITION OF THE DIFFERENTIAL AMOUNT OF SALE CONSIDERATION SHOWN BY THE ASSESSEE OF RS. 4,90,000/- AS AGAINST THE STAMP DUTY VALUATION OF RS. 21,17,340/- WHICH WAS ALSO SHOWN BY THE 3 ITA NO. 380/JP/2018 SHRI CHAND KHAN PHADAN, JAIPUR. ASSESSEE IN RESPECT OF THE OTHER ADJOINING PLOT OF LAND SOLD IN THE SAME MONTH OF NOVEMBER, 2008. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (APPEALS) AGAINST THE ADDITION MADE ON ACCOUNT OF S UPPRESSION OF SALE CONSIDERATION IN RESPECT OF PLOT NO. 367 IN COMPARISON TO THE SAL E CONSIDERATION IN RESPECT OF PLOT NO. 366, LOHA MANDI, MACHERA, AMER, JAIPUR. SINCE THE ASSESSEE HAS NOT RAISED THIS LEGAL ISSUE BEFORE THE LD. CIT (A), THEREFORE, THER E IS NO FINDING OF THE LD. CIT (A) ON THIS ISSUE. 3. BEFORE THE TRIBUNAL, THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT UNDISPUTEDLY THE ASSESSEE FILED HIS RETURN OF INCOM E WITH THE ITO WARD 3(5), JAIPUR WHEREAS THE ITO WARD 2(1), JAIPUR ISSUED THE NOTICE UNDER SECTION 148 WITHOUT HAVING ANY JURISDICTION AND HENCE THE REASONS RECOR DED BY THE ITO WARD 2(1) FOR REOPENING OF THE ASSESSMENT ARE WITHOUT JURISDICTIO N AND CONSEQUENTLY THE ORDER PASSED BY THE AO WARD 2(1) IS NOT VALID FOR WANT OF INVALID INITIATION OF PROCEEDINGS UNDER SECTION 147/148 OF THE ACT. IN SUPPORT OF HI S CONTENTION, HE HAS RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN CASE OF DUSHYANT KUMAR JAIN VS. DCIT, 288 CTR 124 (DEL.) AS WELL AS THE DECISION OF HONB LE GUJARAT HIGH COURT IN CASE OF SHIRISHBHAI HARGOVANDAS SANJANWALA VS. ACIT, 396 IT R 167 (GUJ.). THE LD. A/R HAS THUS PLEADED THAT THE IMPUGNED REASSESSMENT ORDER I S VOID AB INITIO AND LIABLE TO BE QUASHED. 4. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THE ITO WARD 2(1) HAS INITIATED THE PROCEEDINGS UNDER SECTION 147/148 ON THE BASIS OF THE INFORMATION RECEIVED FROM THE SUB REGISTRAR REGARDING SALE OF P ROPERTY BY THE ASSESSEE WHEREIN THE ASSESSEE HAS NOT DISCLOSED HIS PAN BUT FILED FO RM NO. 60. IN THE SYSTEM OF THE 4 ITA NO. 380/JP/2018 SHRI CHAND KHAN PHADAN, JAIPUR. DEPARTMENT, IT WAS FOUND THAT THE ASSESSEE WAS HAVI NG ANOTHER PAN BEING CQVPK 7792 J AND, THEREFORE, THE ITO WARD 2(1), JAIPUR IS SUED THE NOTICE UNDER SECTION 148 ON 29 TH MARCH, 2016, ONLY WHEN THE ASSESSEE EXPLAINED THE FACT THAT THE ASSESSEE HAS ALREADY FILED THE RETURN OF INCOME UND ER A DIFFERENT PAN BEING AHGPP 8238 E. THEREFORE, THE LD. PRINCIPAL CIT HAS PASSE D AN ORDER UNDER SECTION 127 TRANSFERRING THE CASE FROM ITO WARD 2(1), JAIPUR TO ITO WARD 3(5), JAIPUR. THUS THE LD. D/R HAS CONTENDED THAT IT IS A CASE OF HOLDING TWO PANS BY THE ASSESSEE AND, THEREFORE, THE ITO WARD 2(1) WAS HAVING JURISDICTIO N OVER ONE PAN OF THE ASSESSEE AND INITIATED THE PROCEEDINGS UNDER SECTION 147/148 OF THE ACT. SINCE THE ASSESSEE FILED THE RETURN OF INCOME UNDER A DIFFERENT PAN, T HEREFORE, TO AVOID THE PARALLEL PROCEEDINGS THE CASE WAS TRANSFERRED TO THE ITO WAR D 3(5) JAIPUR. HENCE THE LD. D/R HAS SUBMITTED THAT THE ITO WARD 2(1) JAIPUR WAS HAVING A VALID JURISDICTION OVER THE ASSESSEE IN RESPECT OF PAN CQVPK 7792 J. THE L D. D/R HAS FURTHER CONTENDED THAT THE ASSESSEE HAS NOT RAISED THIS ISSUE BEFORE THE AUTHORITIES BELOW AND, THEREFORE, THE SAME CANNOT BE RAISED AT THIS STAGE WITHOUT SEEKING THE LEAVE OF THE COURT. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE ASSESSEE HAS N OT RAISED THIS ISSUE OF JURISDICTION EITHER BEFORE THE AO OR BEFORE THE LD. CIT (A). HO WEVER, THE FACTS REMAIN THAT THE ITO WARD 2(1) JAIPUR HIMSELF ACCEPTED THE FACT AND AN ORDER UNDER SECTION 127 WAS PASSED BY THE LD. PRINCIPAL CIT TRANSFERRING THE CA SE FROM ITO WARD 2(1) JAIPUR TO ITO WARD 3(5) JAIPUR. THIS DEVELOPMENT OF TRANSFER RING THE CASE FROM ONE ITO TO ANOTHER ITO WAS DUE TO THE REASON THAT THE PROCEEDI NGS UNDER SECTION 147/148 5 ITA NO. 380/JP/2018 SHRI CHAND KHAN PHADAN, JAIPUR. WERE INITIATED ON THE BASIS OF THE PAN : CQVPK 7792 J WHEREAS THE ASSESSEE FILED HIS ORIGINAL RETURN OF INCOME UNDER PAN : AHGPP 8238 E. THUS, IN CASE THE ASSESSEE IS HOLDING TWO PANS THOUGH THE ASSESSEE HAS DENIED HAV ING TWO PANS, THEN THE ASSESSEE CANNOT BE ALLOWED TO RAISE THIS OBJECTION OF JURISDICTION OF ITO WARD 2(1) JAIPUR, BUT IN CASE THE PAN : CQVPK 7792 J DOES NOT BELONG TO THE ASSESSEE THEN THE ITO WARD 2(1) JAIPUR HAS NO JURISDICTION TO INI TIATE PROCEEDINGS UNDER SECTION 147/148 OF THE ACT. SINCE THE ASSESSEE HAS NOT R AISED THIS ISSUE BEFORE THE AUTHORITIES BELOW AND FIRST TIME RAISED THIS PLEA W HICH IS LEGAL IN NATURE AND ALSO GOES TO THE ROOT OF THE MATTER, THEREFORE, THIS ASPECT R EQUIRES A PROPER VERIFICATION. IN CASE IT IS FOUND THAT THE ASSESSEE IS HOLDING TWO P ANS, THEN THIS GROUND RAISED BY THE ASSESSEE WILL NOT SURVIVE. HOWEVER, IF IT IS F OUND THAT THE ASSESSEE HAS FILED THE RETURN OF INCOME UNDER THE CORRECT PAN AND THE ITO WARD 2(1) HAS INITIATED THE PROCEEDINGS UNDER SECTION 147/148 UNDER WRONG PAN, THEN THE SAID ITO WARD 2(1) HAVING NO JURISDICTION OVER THE ASSESSEE WAS NOT AU THORIZED TO INITIATE THE REASSESSMENT PROCEEDINGS AND CONSEQUENTLY THE REASS ESSMENT ORDER PASSED UNDER SECTION 147 READ WITH SECTION 143(3) WOULD BE BAD I N LAW AND LIABLE TO BE QUASHED. IT IS ALSO PERTINENT TO NOTE THAT THE ASSESSEE HAS FILED THE RETURN OF INCOME IN RESPONSE TO NOTICE UNDER SECTION 148 ONLY BEFORE TH E ITO WARD 3(5) JAIPUR AND NOT BEFORE THE ITO WARD 2(1), JAIPUR, THEREFORE, IT IS NOT EVEN CASE OF SURRENDERING OR SUBMITTING TO THE JURISDICTION OF THE ITO WARD 2(1) JAIPUR. SINCE THE FACT OF HAVING TWO PANS OR ONLY ONE PAN BY THE ASSESSEE WOULD DETE RMINE THE VALIDITY OF REOPENING OF THE ASSESSMENT, THEREFORE, THE MATTER IS SET ASIDE TO THE RECORD OF THE LD. CIT (A) TO VERIFY THE FACT FROM THE DEPARTMENTA L RECORD/SYSTEM ABOUT THE CORRECT 6 ITA NO. 380/JP/2018 SHRI CHAND KHAN PHADAN, JAIPUR. STATE OF PAN OF THE ASSESSEE AND THEN DECIDE THIS I SSUE AS PER LAW AND THE PRECEDENTS RELIED UPON BY THE ASSESSEE. 6. THE OTHER ISSUES RAISED ON MERIT OF THE ADDITION ARE KEPT OPEN. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER IS PRONOUNCED IN THE OPEN COURT ON 24/09/20 19. SD/- ( FOT; IKY JKWO (VIJAY PAL RAO) U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 24/09/2019. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI CHAND KHAN PHADAN, JAIPUR. 2. THE RESPONDENT THE ITO WARD 3(5), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO.380/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 7 ITA NO. 380/JP/2018 SHRI CHAND KHAN PHADAN, JAIPUR.