Rajendra Kumar Dhawan, Bhubaneswar V. ITO, Bhubaneswar

ITA 416/CTK/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6323 (ITAT-CUTTACK)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 11-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: S K MOHANTY
• Section: 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK . . , . . , BEFORE SHRI P.K.BANSAL , AM & SHRI D.T.GARASIA , JM ./ ITA NO. 416 / C TK /20 1 3 ( / ASSESSMENT YEAR : 200 5 - 06 ) RAJENDRA KUMAR DHAWAN, PLOT NO. 794, SAHID NAGAR, BHUBANESWAR - 751007 VS. ITO WARD - 2(2), BHUBANESWAR ./ ./ PAN/GIR NO. : A A MPD 6104 G ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI S.K.MOHANTY /REVENUE BY : SHRI S.C . MOHANTY / DATE OF HEARING : 2 4 TH APRIL , 201 4 / DATE OF PRONOUNCEMENT : 01/05 /2014 / O R D E R PER BENCH : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) DATED 30 - 3 - 2013 BY TAKING THE FOLLOWING EFFECTIVE GROUND S : - 1. FOR THAT THE ORDER PASSED BY THE FORUM BELOW IS EX - FACIE ILLEGAL, EXCESSIVE AND BAD IN LAW, INASMUCH AS THE SAME IS LIABLE TO BE SET ASIDE. 2. FOR THAT THE LD. CIT(A) , HAS PROCEEDED ON A WRONGFUL PRESUMPTION THAT A DEED OF APPORTIONMENT CANNOT FORM THE BASIS OF THE DIVISION OF RENT AMONG THE FAMILY MEMBERS . 3. FOR THAT THE LD.CIT(A) ERRED IN HOLDING THAT THE APPELLANT IS THE OWNER FOR THE PURPOSES OF SECTION 22 OF THE IT ACT, DESPITE THE FACT THAT IT IS ACTUALLY THE SHAREHOLDERS IN THE PROPERTY WHO ARE ACTUALLY THE OWNERS AND ARE THE REAL BENEFICIARIES ENJOYING THE RENTAL INCOME FROM THE SAID PROPERTY . 2 ITA NO. 4 16 /201 3 4. FOR THAT CONFIRMATION ORDER PASSED BY THE LD. CIT(A) BY RELYING UPON THE REMAND REPORT SUBMITTED BY THE LD.AO IS UNJUSTIFIED, MISCONCEIVED, WEIGHT OF EVIDENCE AND AS SUCH THE SAME IS LIABLE TO BE DELETED. 5. FOR THAT THE LD. AO COULD NOT HAVE COMPETE D THE ASSESSMENT U/S.144 WHEN THE APPELLANT HAD GIVEN COMPETE CORPORATION AND INFORMATION DURING THE ASSESSMENT PROCEEDINGS. 2 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED THE INCOME TAX RETURN FOR THE IMPUGNED ASSESSMENT YEAR SHOWING AN INCOME OF RS. 3,27,140/ - ON 30 - 7 - 2005 , WHICH WAS PROCE SSED U/S. 143(1) . THE ASSESSEE WAS GIVEN OPPORTUNITY TO PRODUCE THE EVIDENCE IN SUPPORT OF THE RETURN BY ISSUING NOTICE . THE AO ASKED FOR CERTAIN INFORMATION WHICH REMAINED UNCOMPLIED WITH DUE TO WHICH SHOW CAUSE NOTICE WAS ISSUE D TO THE ASSESSEE AND AFTER MAKING THE ENQUIRY THROUGH INSPECTOR AND GIVING THE OPPORTUNITY TO THE ASSESSEE, THE ASSESSEE SUBMITTED CERTAIN PARTICULARS AS PER THE ORDERSHEET BUT DID NOT APPEAR PERSONALLY AS WAS DESIRED BY THE AO, THEREFORE, THE AO COMPLETE D THE ASSESSMENT EX - PA RTE U /S. 144 . WHEN T HE MATTER WENT BEFORE THE CIT(A) , WHERE VARIOUS HEARINGS WERE GIVEN BUT THE ASSESSEE COULD NOT PRODUCE THE DESIRED INFORMATION EXCEPT THE ASSESSMENT ORDER OF THE BENEFICIARIES FOR THE SUBSEQUENT YEAR . THE CIT(A) TOO K THE VIEW THAT THIS CAN AT BE S T BE ACCEPTED AS ASSESSMENTS OF PROTECTIVE NATURE IN THE HANDS OF THOSE BENEFICIARIES AND CONFIRMED THE ORDER OF THE AO THAT THE ANNUAL VALUE IS LEGALLY ASSESSABLE IN THE HANDS OF THE ASSESSEE. 3 ITA NO. 4 16 /201 3 3 . LEARNED AR BEFORE US VEHEMENTLY CONTENDED THAT PROPER OPPORTUNITY HAS NOT BEEN GIVEN TO THE ASSESSEE TO ADDUCE THE EVIDENCE INCLUDING THE ASSESSMENT FOR THE IMPUGNED ASSESSMENT IN THE CASE OF THE BENEFICIARIES AND THE DEED OF APPORTIONMENT , THE ASSESSMENT HAS BEEN C OMPLETED BY THE AO EX - PARTE U/S. 144. THE CIT(A) CONFIRMED THE ORDER AS HE DOES NOT HAVE ANY JURISDICTION TO SET ASIDE THE ASSESSMENT . THE ASSESSEE WILL NOT OBJECT IF THE ASSESSMENT IS SET ASIDE AND RESTORE TO THE FILE OF THE AO. THE ASSESSEE IS READY TO COOPERATE THE AO IN ALL RESPECT. 4. LEARNED DR ON THE OTHER HAND, RELIED ON THE ORDER OF THE AO. 5. WE HEARD RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONG WITH THE ORDERS OF THE TAX AUTHORITIES BELOW. WE NOTED THAT APPORTIONMENT OF FAMILY ARRANGEMENT AND OTHER EVID ENCE REGARDING OWNERSHIP AND THE ASCERTAIN MENT OF THE ANNUAL VALUE U/S. 22 ARE REQUIRED TO BE EXAMINED BY THE AO, WHICH WERE NOT SUBMITTED BY THE ASSESSEE BEFORE THE AO DUE TO WHICH THE ASSESSMENT WAS COMPLETED U/S. 144. WE, THEREFORE, IN THE INTEREST OF JUSTIC E AND FAIR - PLAY TO BOTH THE PARTIES, SET ASIDE AND RESTORE THE MATTER TO THE FILE OF THE AO WITH THE DIRECTION THAT AO SHALL MAKE A FRESH ASSESSMENT DE NOVO IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE THE AO AND SUBMIT THE EVIDENCE AND DOCUMENTS, AS MAY BE DESIRED BY THE AO AND 4 ITA NO. 4 16 /201 3 ALSO THE DOCUMENTS AND EVIDENCE ON WHICH HE MAY RELY TO PROVE HIS CASE. 6 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 01/05 / 201 4 . 01/05 /2014 SD/ - SD/ - ( . . ) ( D.T.G ARASIA ) ( . . ) ( P.K.BANSAL ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 01/05 /2014 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, CUTTACK 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) , BHUBANESWAR 4. / CIT , BHUBANESWAR 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//