Ashok Kumar Singhal, Bulandshahr V. ACIT, Circle, Bulandshahr

ITA 4086/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9403 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 20-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VED PRAKASH MISHRA
• Keywords: Capital asset; Opportunity of being heard; TDS; Set aside
• Section: 143(3); 251; 154

Judgement Text

ASHOK KUMAR SINGHAL, BULANDSHAHR VS. ACIT / I.T.A.N O.4086/DEL/2017/A.Y.2006-07 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER . . /. I.T.A NO.4086/DEL/2017 / ASSESSMENT YEAR:2006-07 ASHOK KUMAR SINGHAL 244, A RAJE BABU ROAD, BULANDSHAHR, UTTAR PRADESH. VS. A CIT CIRCLE, BULANDSHAHR. PAN NO. ADBPS9897H APPELLANT / RESPONDENT /ASSESSEE BY SHRI K. SAMPATH, ADV. SHRI V. RAJA KUMAR, ADV. /REVENUE BY SHRI VED PRAKASH MISHRA, SR. DR / DATE OF HEARING: 09 .0 1.20 20 /PRONOUNCEMENT ON 0 9 .0 1.20 20 /O R D E R PER BHAVNESH SAINI, J.M. 1. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST T HE ORDER OF LD. CIT(APPEALS), GHAZIABAD DATED 31.03.2017 FOR ASSESS MENT YEAR 2006-07 ON THE FOLLOWING GROUNDS : - 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(APPEALS) HAS ERRED IN SUSTAINING THE ORDER U/S 154 AND THEREBY DISALLOWING THE CLAIM OF INDEXATION OF THE ASSESSEE WHICH STEPS IN AUTOMATICALLY ONCE THE CAPITAL GAIN IS LEVIED ON COMPENSATION. OBSERVATIONS MADE, INFERENCES DRAWN AND FINDINGS RECORDED IN THIS REGARD ARE ARBITRARY AND ILLEGAL. 2) THE LD. CIT(APPEALS) HAS MISREAD THE FACTS OF THE C ASE AND THEREBY GONE ON TO WRONGLY SUSTAIN THE ADDITION OF ACCRUED ASHOK KUMAR SINGHAL, BULANDSHAHR VS. ACIT / I.T.A.N O.4086/DEL/2017/A.Y.2006-07 PAGE 2 OF 4 INTEREST OF RS. 13,53,597/- ALTHOUGH THERE WAS NO I NTEREST INCOME ACCRUING THIS YEAR. THE SAME MAY KINDLY BE DELETED. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSMENT I N THIS CASE WAS COMPLETED U/S 143(3) OF THE INCOME TAX ACT, 1961 ON 30.07.2008 AT TOTAL INCOME AT RS. 37,59,650/- AS AGAINST RETURNED INCOM E OF RS. 12,35,596/-. THE ASSESSEE FILED APPEAL BEFORE LD. CIT(A), MEERUT WHICH WAS DECIDED VIDE ORDER DATED 31.01.2011. THE AO COMPUTED THE I NCOME OF ASSESSEE AS PER DIRECTIONS OF THE CIT(A), THEREAFTER, ASSESSEE FILED APPLICATION U/S 154 OF THE ACT REQUESTING FOR RECTIFICATION OF ERRORS I N THE ORDER U/S 251/143(3) OF THE ACT AS NOTED IN THE IMPUGNED ORDER. THE AO IN THE IMPUGNED ORDER U/S 154 REJECTED THE APPLICATION U/S 154 AND ALSO N OTED THAT APPEAL OF THE DEPARTMENT IS PENDING BEFORE ITAT AGAINST THE ORDER OF THE CIT(A). THE ASSESSEE CHALLENGED THE ORDER U/S 154 DATED 18.08.2 011 BEFORE LD. CIT(A). DETAILED WRITTEN SUBMISSION OF ASSESSEE IS INCORPOR ATED IN THE APPELLATE ORDER. THE LD. CIT(A), HOWEVER, DISMISSED THE APPE AL OF THE ASSESSEE. HIS FINDINGS IN PARA 5 TO 6 ARE REPRODUCED AS UNDER: 5. APPELLATE FINDINGS : 5.1 I HAVE CONSIDERED SUBMISSION OF THE APPELLANT, ASSE SSMENT ORDER AND ALL CASE LAWS REFERRED TO THEREIN. NO ST ATEMENT OF FACTS HAS BEEN GIVEN ALONG WITH FORM 35. THUS, ALL THE FACTS GIVEN IN THE ORDER DT. 18.08.2011 ARE TREATED AS TRUE AND CORRECT FACT. 5 .2 GROUND NOS. 1 TO 4 : THE APPELLANT CHALLENGED THE ORDER PASSED U/S 154 TO COMPUTE THE TOTAL INCOME OF THE A PPELLANT AT RS. 15,65,830/-. THE APPELLANT BOUGHT RIGHT TO RECEIVE LAND COMPENSATION FROM THE OWNER OF LAND ACQUIRED B Y GOVERNMENT. ACCORDING TO THE APPELLANT THE TREATMENT OF ENTIRE TRANSACTION OF PURCHASE AND SALE OF RIGHTS TO RECEIVE COMPENSATION HAS BEEN TREATED AS A BUSINESS TRANSA CTION. ASHOK KUMAR SINGHAL, BULANDSHAHR VS. ACIT / I.T.A.N O.4086/DEL/2017/A.Y.2006-07 PAGE 3 OF 4 ACCORDING TO THE APPELLANT THE BENEFIT OF INDEXATIO N ON COST OF PURCHASE OF RIGHT TO RECEIVE COMPENSAT ION SHOULD HAVE BEEN GIVEN TO THE APPELLANT WHILE GIVING APPEAL EFF ECT. EXAMINATION OF FACTS REVEALS THAT INDEXATION OF COS T OF ACQUISITION WAS NEVER CLAIMED BY THE APPELLANT IN T HE ORIGINAL APPEAL PREFERRED AGAINST ORDER U/S 143(3) DT. 30.07.2008 OF DCIT-CIRCLE- BULANDHSHAHR, THUS, HAS NEVER BEEN ADJUDICATED BY CIT(A) IN HIS ORDER DT. 31.01.2011 . THIS FACT HAS BEEN ADMITTED BY APPELLANT VIDE ORDER SHEET ENTRY DT. 28.05.2017 AND IT HAS ALSO BEEN ADMITTED THAT APPELLANT NEVER CLAIMED THE BENEFIT OF INDEXAT ION TREATING IT AS A CAPITAL ASSET. 5.2.1 SIMILARLY, APPELLANT HAS CHALLENGED THE TAXATION OF RS. 13,53,597/- BY THE AO WHILE GIVING THE APPEAL EFFECT, BEING THE INTEREST ACCRUED AS PART OF COMPENSATION RECEIV ED BY THE APPELLANT. THE FACTS OF THE CASE A RE AS PER RETURNED INCOME APPELLANT HIMSELF DECLARED INTEREST OF RS. 13,53,597/- . THE AO DID NOT MAKE ANY ADDITION BUT ACCEPTED APPELLANT S CONTENTION IN ACCORDANCE WITH THE TDS CERTIFICATE O NLY. THUS, NO ADDITION ON ACCOUNT OF ACCRUED INTEREST WA S MADE DURING ASSESSMENT U/S 143(3) . IN VIEW OF THESE FACTS, THE APPELLANTS CLAIM U/S 154 TO 251/143(3) IS NOT MAINTAINABLE AND THUS DISMISSED. IN VIEW OF THESE FACTS THE CONTENTION OF THE APPELLANT THAT THERE IS ANY PRIMA FACIE MIST AKE IN GIVING APPEAL EFFECT U/S 251 IS NOT MAINTAINABLE AND THUS DISMISSED. 6. IN THE RESULT, THE APPEAL IS DISMISSED. 3. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PAR TIES AND PERUSED THE MATERIAL ON RECORD. LD. COUNSEL FOR ASSESSEE S UBMITTED THAT DEPARTMENTAL APPEAL FOR ASSESSMENT YEAR UNDER APPEA L HAS BEEN DISMISSED BY ITAT, DELHI A BENCH IN ITA NO. 1836/2011 VIDE ORDER DATED 29.01.2016, COPY OF WHICH IS FILED AT PAGE 19 OF TH E PAPER BOOK. HE HAS SUBMITTED THAT THE APPEAL EFFECT SHOULD HAVE BEEN G IVEN AS PER DIRECTIONS OF THE ITAT ORDER DATED 29.01.2016. BOTH THE PARTI ES, THEREFORE, SUGGESTED THAT THE MATTER MAY BE REMANDED TO THE AO TO PASS THE ORDER ASHOK KUMAR SINGHAL, BULANDSHAHR VS. ACIT / I.T.A.N O.4086/DEL/2017/A.Y.2006-07 PAGE 4 OF 4 U/S 154/251/254 OF THE ACT AS PER DIRECTIONS OF THE TRIBUNAL DATED 29.01.2016. 4. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER IN ISSUE TO THE FILE O F AO WITH DIRECTION TO PASS THE ORDER U/S 154 AFRESH AS PER LAW IN THE LIG HT OF DIRECTIONS OF THE TRIBUNAL DATED 29.01.2016 IN ITA NO. 1836/2011 FOR ASSESSMENT YEAR UNDER APPEAL I.E. 2006-07. THE AO SHALL GIVE REASONABLE S UFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE PASSING THE ORDE R. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (N.K. BILLAIYA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 9 TH JANUARY, 2020 * KAVITA ARORA, SR. P.S. COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A) / ITAT (DR)/GUARD FILE OF ITAT. BY ORDER ASSISTANT REGISTRAR, ITAT: DELHI BENCHES-DELHI