BABU LAL AGARWAL, Jaipur V. ITO, Jaipur

ITA 383/JPR/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5967 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 17-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHIWANGI SAMDHANI
• Keywords: Sale consideration of property below Jantri Value
• Section: 139(4); 147; 148; 54; 2; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC H B JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA- @ ITA NO. 383/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2008-09 SHRI BABU LAL AGARWAL, 56, GOVIND NAGAR, AMER ROAD, JAIPUR CUKE VS. ITO WARD-5(5), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABWPA6723D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI RAJEEV SOGANI & MS. SHIWANGI SAMDHANI (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUNI PAL (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 01/10/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 03/10/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-2, JAIPUR DATED 30.03.2017 WHEREIN THE ASSESSEE HAS TA KEN THE FOLLOWING GROUNDS OF APPEAL:- 1. (A) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. AO HAS ERRED IN REOPENING THE CASE OF THE ASSES SEE, UNDER SECTION 147 OF THE INCOME TAX ACT 1961. THE ACTION OF THE L D. AO IS LEGAL, UNJUSTIFIED AND ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING SUCH RE-ASSESSMENT PR OCEEDINGS. (B) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. AO HAS ERRED IN RE-OPENING THE CASE OF THE ASSESSEE BY ISSUING NOTICE ITA NO. 383/JP/2017 SHRI BABU LAL AGARWAL, JAIPUR VS. ITO WARD- 5(5), JAIPUR 2 UNDER SECTION 148 OF THE INCOME TAX ACT 1961, BEING NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 151 OF INCOME TAX AC T 1961. THE ACTION OF THE LD. AO IS ILLEGAL, UNJUSTIFIED AND ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING SUCH RE-ASSESSMENT PROCEEDINGS. 2. (A) IN THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF LD. AO IN CON SIDERING THE ENHANCED VALUE OF THE PROPERTY, TAKEN BY STAMP VALU ATION AUTHORITIES, WHEN UNDER SECTION 50C, ONLY 'ASSESSED VALUE' AND N OT 'RE-ASSESSED VALUE' CAN BE TAKEN FOR THE PURPOSE OF COMPUTING CA PITAL GAINS UNDER SECTION 48. THE ACTION OF THE LD. CIT(A) IS ILLEGAL , UNJUSTIFIED AND ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY CONSIDERING THE VALUE OF THE PROPERTY, T AKEN BY STAMP VALUATION AUTHORITIES, AT THE TIME OF TRANSFER OF S UCH PROPERTY. (C) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. AO IN COMPUTING THE LONG TETRA CAPITAL GAIN AT RS. 63,62,652 AGAINST THE DEC LARED LONG TERM CAPITAL GAIN OF RS. NIL . THE ACTION OF THE LD. CIT (A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY CONSIDERING THE LONG TERM CAPI TAL GAIN AT RS. NIL AS DECLARED BY THE ASSESSEE. (D) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. A O IN NOT ALLOWING EXEMPTION UNDER SECTION 54 OF THE INCOME TAX ACT, 1 961 AMOUNTING TO RS. 35,20,000/. THE ACTION OF THE LD. CIT(A) IS ILL EGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY ALLOWING EXEMPTION OF RS. 35,20,000/-. ITA NO. 383/JP/2017 SHRI BABU LAL AGARWAL, JAIPUR VS. ITO WARD- 5(5), JAIPUR 3 2. AT THE OUTSET, THE LD AR SUBMITTED THAT THE ASSE SSEE HAS MOVED AN APPLICATION FOR SEEKING PERMISSION TO FILE ADDITION AL GROUNDS OF APPEAL UNDER RULE 11 AND THE ADDITIONAL GROUNDS SO SOUGHT TO BE MOVED ARE AS UNDER:- 1. (A) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. AO HAS ERRED IN REOPENING THE CASE OF THE ASSESSEE, UNDER SECTION 147 OF THE INCOME TAX ACT 1961. THE ACTION OF THE L D. AO IS ILLEGAL, UNJUSTIFIED AND ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING SUCH RE-ASSESSMENT PR OCEEDINGS. (B) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. AO HAS ERRED IN RE-OPENING THE CASE OF THE ASSESSEE BY ISSUING NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT 1961, BEING NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 151 OF IN COME TAX ACT 1961. THE ACTION OF THE LD. AO IS ILLEGAL, UNJUSTIF IED AND ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING SUCH RE-ASSESSMENT PROCEEDINGS.' (C) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. AO HAS ERRED IN RE-OPENING THE CASE OF THE ASSESSEE UN DER SECTION 147 OF INCOME TAX ACT 1961 WHEREAS THE CORRECT JURISDICTIO N LIES UNDER SECTION 155(15) OF THE INCOME TAX ACT 1961. THE ACTION OF THE LD. AO IS ILLEGAL, UNJUSTIFIED AND ARBITRARY AND AGAINST T HE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING SUCH RE-AS SESSMENT PROCEEDINGS BEING WITHOUT JURISDICTION. 3. IT WAS SUBMITTED BY THE LD AR THAT THE ABOVE GRO UNDS ARE LEGAL GROUNDS AND ALL RELEVANT FACTS ARE AVAILABLE ON THE RECORD. NO NEW FACTS ARE REQUIRED TO BE EVALUATED NOR IS ANY FURTHER ENQUIRY NEEDED. THE ASSESSEE WHILE FILING ORIGINAL FORM 36 INCLUDED GROUND NO. 1(A) AND 1(B). HOWEVER, AS A MATTER OF PRECAUTION, THE PRAYER FOR ADMISSION OF SAME IS BEI NG MOVED. THE GROUND NO. 1(C) IS TAKEN FOR THE FIRST TIME, HOWEVER OMISSIONS OF THE SAME WAS INADVERTENT. ITA NO. 383/JP/2017 SHRI BABU LAL AGARWAL, JAIPUR VS. ITO WARD- 5(5), JAIPUR 4 THE ASSESSEE FURTHER SUBMITTED THAT GROUND NO. 1(A) WAS TAKEN BEFORE THE LD. CIT(A), HOWEVER, THE SAME WAS NOT PRESSED BEFORE HI M AND HENCE, THE SAME WAS DISMISSED. IT WAS SUBMITTED THAT THE ASSESSEE WISHES TO TAKE UP THE SAID GROUND BEFORE THE TRIBUNAL AND IN SUPPORT, THE RELI ANCE WAS PLACED ON THE HONBLE PUNJAB AND HARYANA HIGH COURT IN CASE OF VI JAY KUMAR JAIN VS. CIT [1975] 99 ITR 349 WHEREIN IT WAS HELD THAT THE ASSE SSEE IS NOT PRECLUDED FROM URGING A GROUND OF APPEAL BEFORE THE TRIBUNAL WHICH WAS TAKEN BEFORE THE LD. CIT(A) BUT WAS NOT PRESSED. THE RELEVANT FINDINGS O F THE HONBLE HIGH COURT READS AS UNDER:- 'THERE WAS NO MATERIAL ON THE RECORD TO SHOW THAT A NY DECISION WAS MADE BY THE ITO TO ISSUE A NOTICE UNDER SECTION 148 ON THE BASIS THAT THE ASSESSEE HAD FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT YEAR. THE NOTICE WAS ISSUED ON T HE BASIS THAT THERE WAS OMISSION OR FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 FOR ANY ASSESSMENT YEAR. IT WAS M AINTAINED THAT IN VIEW OF THE CLEAR PROVISION OF SECTION 139(4) THERE WAS A VALID RETURN BEFORE THE ITO. THAT RETURN COULD NOT BE TREATED AS INVALID AND NO GROUND WAS MADE OUT FOR TAKING ACTION UNDER SECTION 148, R EAD WITH SECTION 147. ONCE IT WAS HELD THAT THE RETURN DATED 28-3-1969, W AS A VALID RETURN, THE MERE FACT THAT THE ASSESSEE GAVE UP GROUNDS NOS. 2 TO 5 BEFORE THE AAC WOULD BE OF NO CONSEQUENCE. IT IS AXIMOMATIC THAT WHAT IS VOID IS NON EST. IN T HIS SITUATION, THE ASSESSEE WAS NOT PRECLUDED FROM URGING THE GROUNDS NOS. 2 TO 5 BY GIVING THEM UP THE ASSESSEE COULD NOT CONFER JURISD ICTION ON THE ITO WHERE HE HAD NONE. THEREFORE, THE TRIBUNAL WAS BOUN D TO HEAR THE ASSESSEE AND COULD NOT REJECT THE APPEAL ON THE GRO UND THAT GROUNDS NOS. 2 TO 5 WERE NOT AGITATED BEFORE THE AAC AND TH US COULD NOT BE PERMITTED TO BE AGITATED BEFORE IT. THEREFORE, THE TRIBUNAL WAS NOT ITA NO. 383/JP/2017 SHRI BABU LAL AGARWAL, JAIPUR VS. ITO WARD- 5(5), JAIPUR 5 JUSTIFIED IN REFUSING TO CONSIDER THE VALIDITY OF N OTICE UNDER SECTION 148 EVEN THOUGH THE GROUND CHALLENGING THE SAME HAD NOT BEEN PRESSED BEFORE THE AAC.' 4. FURTHER, THE RELIANCE WAS PLACED ON THE HONBLE SUPREME COURT DECISION IN CASE OF NTPC [1998] 229 ITR (SC) IN SUPPORT OF T AKING UP LEGAL GROUNDS BEFORE THE TRIBUNAL. 5. THE LD. DR IS HEARD WHO HAS SUBMITTED THAT THE GROUND NO. 1 WAS TAKEN BY THE ASSESSEE BEFORE THE LD. CIT(A). HOWEVER, THE SAME WAS NOT PRESSED BY THE APPELLANT. HENCE, THE SAME WAS DISMISSED AND TH EREFORE, THE ASSESSEE CANNOT BE GRANTED ANOTHER OPPORTUNITY TO RAISE THE SAID GROUND AGAIN WHEN THE MATTER HAS BEEN DECIDED AGAINST THE ASSESSEE ON MER ITS. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. IT IS NOTED THAT THE ASSESSEE HAS CHALLE NGED THE ISSUANCE OF NOTICE U/S 148 AND THE CONSEQUENT ASSESSMENT PROCEEDINGS B EFORE THE LD. CIT(A). HOWEVER, THE SAME WERE NOT PRESSED BY THE APPELLANT DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD CIT(A), HENCE, THE SAME WAS DISMISSED. HOWEVER, THE ASSESSEE WISHES TO RAISE THE SAID GROU ND OF APPEAL AGAIN BEFORE US. IN THIS REGARD, WE REFER TO THE DECISION OF TH E HONBLE PUNJAB AND HARYANA HIGH COURT IN CASE OF VIJAY KUMAR JAIN VS. CIT (SUP RA) WHEREIN THE HONBLE HIGH COURT HAS HELD THAT THE ASSESSEE COULD NOT BE PRECLUDED FROM URGING THE GROUNDS AS GIVING THEM UP, THE ASSESSEE COULD NOT C ONFER JURISDICTION ON THE ITO WHERE HE HAD NONE AT FIRST PLACE. GIVEN THAT TH E GROUND SO RAISED TO BE RAISED GOES TO THE ROOT OF THE MATTER CHALLENGING T HE JURISDICTIONAL OF THE ASSESSING OFFICER AND THUS BEING A LEGAL GROUND, TH E SAME IS ADMITTED FOR ADJUDICATION. GROUND NO. 1(B) AGAIN GOES TO THE ROO T OF THE MATTER IN THE SENSE THAT THE ASSESSEE HAS CHALLENGED THE ISSUANCE OF NO TICE U/S 148 NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 151. SIMI LARLY, IN GROUND NO. 1(C), ITA NO. 383/JP/2017 SHRI BABU LAL AGARWAL, JAIPUR VS. ITO WARD- 5(5), JAIPUR 6 THE ASSESSEE HAS CHALLENGED THE ASSUMPTION OF JURIS DICTION U/S 147 STATING THAT THE CORRECT JURISDICTION LIES U/S 155 (15) OF THE A CT. WE ARE THEREFORE OF THE VIEW ALL THESE 3 GROUNDS OF APPEAL RELATES TO CHALL ENGING THE JURISDICTION OF THE ASSESSING OFFICER, GOES TO THE ROOT OF THE MATTER A ND BEING LEGAL IN NATURE, THERE ARE ADMITTED FOR ADJUDICATION. WE ALSO NOTE T HAT SINCE FIRST GROUND WAS NOT PRESSED BEFORE THE LD CIT(A), THERE IS NO FINDI NG OF THE LD CIT(A) AND SIMILARLY, OTHER TWO GROUNDS HAVE BEEN TAKEN UP FOR THE FIRST TIME BEFORE US, THE MATTER IS SET-ASIDE TO THE FILE OF THE LD. CIT( A) TO EXAMINE THESE GROUNDS OF APPEAL AFTER PROVIDING REASONABLE OPPORTUNITY TO TH E ASSESSEE. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03/10/2019. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 03/10/2019 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI BABU LAL AGARWAL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-5(5), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 383/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR