Ranjeet Singh Khubber, Ambala V. ITO Ward 3, Ambala

ITA 433/CHANDI/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0416 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 08-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI ROHIT MEHRA
• Assessee Lawyers: ANKUSH GOYAL
• Keywords: Reopening of assessment; Opportunity of being heard; Tangible material
• Section: 143(3); 292BB; 143(2); 147; 148; 28

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH, SMC, CHANDIGARH , BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NO. 433/CHD/2019 / ASSESSMENT YEAR : 2012-13 SHRI RANJEET SINGH KHUBBER, VILLAGE SHAHPUR, DISTT. AMBALA-133004 HARYANA VS. THE ITO, WARD-3, AMBALA ./PAN NO: CAZPK5168A / APPELLANT /RESPONDENT ! /ASSESSEE BY : SHRI ANKUSH GOYAL, CA ' ! / REVENUE BY : SH. SHRI ROHIT MEHRA, SR. DR # $ % /DATE OF HEARING : 12.09.2019 &'() % / DATE OF PRONOUNCEMENT : 09.2019 / ORDER THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 24.12.2018 OF THE COMMISSIONER OF INCOM E TAX (APPEALS)-4, LUDHIANA [HEREINAFTER REFERRED TO AS CIT(A)]. 2. THE ASSESSEE IN THIS APPEAL HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE ASSESSMENT ORDER PASSED BY LD. CIT(A) U/S 250(6) DATED 24.12.2018 IS CONTRARY TO THE LAW AND FACTS O F THE CASE. 2. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN CONCLUDING THAT THE ASSESSEE HAS RECEIVED INTEREST ON ENHANCED COMPENSA TION U/S 34 INSTEAD OF SECTION 28 OF LAND ACQUISITION ACT, 1894 WITHOUT BRINGING ANY EVIDENCE ON RECORD AND NOT GRANTING FU LL EXEMPTION FOR INTEREST RECEIVED U/S 28 OF LAND ACQUISITION AC T, 1894. ITA NO.433-CHD-2019- SH RANJEET SINGH KHUBBER, AMBALA 2 3. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACT IONS OF THE A.O FOR REOPENING OF ASSESSMENT U/S 147 OF THE INCO ME TAX ACT, 1961 ON THE BASIS OF SURMISES, IN THE ABSENCE OF RE ASON TO BELIEVE AS WELL AS TANGIBLE MATERIAL ON RECORD, MAK ING FISHING & ROVING ENQUIRIES AND DISPOSING THE OBJECTIONS IN AN ARBITRARILY MANNER, HENCE THE WHOLE PROCEEDINGS ARE VOID-AB-INI TIO. 4. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT NO NO TICE U/S 148 HAS BEEN SERVED UPON THE APPELLANT. 5. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT NO PR OCEEDINGS WERE INITIATED U/S 143(3) BY THE A.O DESPITE ASSESS EE RAISED OBJECTIONS U/S 292BB AND AT LATER STAGE AFTER FILIN G OF OBJECTIONS BY THE ASSESSEE, ISSUED NOTICE U/S 143(2) OF INCOME TAX ACT, 1961. 6. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 32,83,602/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF BUSINESS LOSS, DESPITE ASSESSEE PRO VING THE GENUINENESS OF THE TRANSACTIONS AND HAVING CONFIRMA TIONS FROM THE THIRD PARTIES. 7. THAT THE LD. ASSESSING OFFICER HAS ERRED IN NOT PRO VIDING AN OPPORTUNITY FOR CROSS EXAMINATION OF THE WITNESSES WHOSE STATEMENTS HAVE BEEN RECORDED AT THE BACK OF THE AS SESSEE AND USED AS EVIDENCE AGAINST THE ASSESSEE. 8. THAT THE ID. ASSESSING OFFICER HAS ERRED IN REJECTI NG THE BOOKS OF ACCOUNTS OF THE ASSESSEE DESPITE DECLARING THEM AS TRUE AND CORRECT, WITHOUT ISSUING ANY SHOW CAUSE NOTICE AND WITHOUT GIVING ANY OPPORTUNITY OF BEING HEARD. 9. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN MENTIONING THAT THE A.O PASSED ORDER U/S 143(3) R.W.S 144 OF INCOME TAX ACT , 1961. 10. THAT THE LD. ASSESSING OFFICER HAS ERRED IN SERVING THE NOTICE OF DEMAND U/S 156 OF THE INCOME TAX ACT, 1961 UPON THE APPELLANT, WHICH DOES NOT BELONG TO THE APPELLANT. 11. THAT THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER , VARY , MODIFY OR OTHERWISE AMEND THE GROUNDS OF APPEAL BEFORE THE AP PEAL IS FINALLY DISPOSED OF. 12. FOR THESE AND OTHER REASONS THAT MAY BE URGED AT TH E TIME OF HEARING THE APPELLANT PRAYS FOR RELIEF. ITA NO.433-CHD-2019- SH RANJEET SINGH KHUBBER, AMBALA 3 3. A PERUSAL OF THE ABOVE GROUNDS OF APPEAL REVEALS THAT ASSESSEE HAS TAKEN THREE EFFECTIVE ISSUES, FIRSTLY, AS AGAINST T HE REOPENING OF THE ASSESSMENT U/S 147 READ WITH SECTION 148 OF THE IN COME TAX ACT, 1961 (IN SHORT 'THE ACT') AND THE SECOND ISSUE IS RELATI NG TO THE INTEREST RECEIVED ON ENHANCED COMPENSATION ON ACCOUNT OF LAN D ACQUISITION BY THE GOVERNMENT AND THE THIRD GROUND IS RELATING TO THE DISALLOWANCE OF BUSINESS LOSS CLAIMED BY THE ASSESSEE. 4. GROUND NOS. 3 TO 10 : THE LD. COUNSEL, SHRI ANKUSH GOYAL, CA, AT THE OUTSET, HAS SUBMITTED THAT AS PER THE INSTRU CTIONS OF HIS CLIENT, GROUNDS RELATING TO THE REOPENING OF THE ASSESSMENT U/S 147 READ WITH SECTION 148 OF THE ACT AND THE ISSUE RELATING TO D ISALLOWANCE OF BUSINESS LOSS RAISED VIDE GROUND NOS. 3 TO 10 ARE NOT PRESSE D. IN VIEW OF THIS, THE GROUND NOS. 3 TO 10 ARE DISMISSED AS NOT PRESSED. 5. GROUND NOS. 1, 11 &12 : THESE GROUNDS ARE GENERAL IN NATURE AND DOES NOT REQUIRE ANY SPECIFIC ADJUDICATION. 6. GROUND NO. 2 : NOW WE ARE LEFT WITH ONLY GROUND NO.2, THE ISSU E RAISED VIDE WHICH IS REGARDING THE TAXATION ON THE ENHANCED COMPENSATION. THE PLEA OF THE ASSESSEE IS THAT THE COMPENSATION RECEIVED WOULD FALL WITHIN THE SCOPE AND PURVIEW OF SECTION 28 OF THE LAND ACQUISITION ACT, 1894, WHEREAS, IT WAS TREATE D AS FALLING IN SECTION 34 OF THE LAND ACQUISITION ACT, 1894. THE LD. COUNSEL IN THIS RESPECT HAS RELIED ON THE DECISION DATED 2.4.2011 OF ADDITIONAL DISTRICT ITA NO.433-CHD-2019- SH RANJEET SINGH KHUBBER, AMBALA 4 JUDGE, AMBALA IN THE CASE OF SMT. SATISH DEV & ORS . VS STATE OF HARYANA WHEREIN, THE ASSESSEE WAS ALSO A PETITION ER AND THE NAME OF THE ASSESSEE HAS BEEN FOUND MENTIONED AT SERIAL NO . 61 WITH PETITION NO. 169 OF 2006. THE LD. COUNSEL HAS INVITED OUR A TTENTION TO THE CONCLUDING LINES OF THE ORDER AND HAS SUBMITTED THA T THE AMOUNT RECEIVED BY THE ASSESSEE WAS HELD TO BE COMPENSATION U/S 28 OF THE LAND ACQUISITION ACT. THAT INITIALLY THE ASSESSEE, OUT O F INADVERTENCE AND MISTAKE HAD TREATED SOME PART OF THE COMPENSATION A S TAXABLE. HOWEVER, IN THE LIGHT OF THE DECISION OF THE HON'BLE SUPREM E COURT IN THE CASE OF CIT VS. CHET RAM (HUF) DATED 12.9.2017 IN CIVIL APPEAL NO. 13053/2017 AND FURTHER THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF UOI VS. HARI SINGH AND OTHERS IN CIVIL AP PEAL NO. 1504 OF 2017 DATED 15.9.2017, WHEREBY, THE PROPOSITION O F LAW LAID DOWN IN THE CASE OF CIT VS. GHANSHYAM (HUF) (2009) HAS BEE N REITERATED, THE COMPENSATION RECEIVED U/S 28 OF THE LAND ACQUISITIO N ACT WAS NOT TAXABLE. THE LD. COUNSEL HAS FURTHER RELIED ON THE DECISION OF THIS TRIBUNAL IN THE CASE OF SHRI SATBIR VS. ITO & OTH ERS IN ITA NOS. 1413 TO 1415/CHD/2016 DECIDED VIDE COMMON ORDER D ATED 9.7.2018, WHEREBY, THIS TRIBUNAL CONSIDERING THE LATEST DECIS IONS OF THE HON'BLE SUPREME COURT HAS DECIDED THE ISSUE IN FAVOUR OF TH E ASSESSEE. THE ASSESSEE EARLIER HAD HIMSELF OFFERED SOME PART OF T HE COMPENSATION FOR TAXATION AND THIS PLEA HAS BEEN TAKEN BY THE ASSESS EE FOR THE FIRST TIME RELYING UPON THE DECISION OF THE ADDITIONAL DISTRI CT JUDGE, AMBALA (SUPRA). ITA NO.433-CHD-2019- SH RANJEET SINGH KHUBBER, AMBALA 5 7. THIS ISSUE, THEREFORE, IS RESTORED TO THE FILE O F THE ASSESSING OFFICER TO CONSIDER THE ABOVE SUBMISSIONS OF THE AS SESSEE, GO THROUGH THE ORDER OF THE ADDITIONAL DISTRICT JUDGE, AMBALA DATED 2.4.2011 TO DETERMINE THE NATURE OF THE COMPENSATION AND THEN T O DECIDE THE ISSUE IN ACCORDANCE WITH THE DECISION OF THE TRIBUNAL IN THE CASE OF SHRI SATBIR VS. ITO & OTHERS (SUPRA) AND THE LATEST DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF UOI VS. HARI SINGH AN D OTHERS (SUPRA) AS REFERRED TO IN THE DECISION OF THE TRIBUNAL IRR ESPECTIVE OF THE FACT THAT EARLIER THE ASSESSEE HIMSELF HAD OFFERED SOM E PART OF COMPENSATION FOR TAX. THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FO R STATISTICAL PURPOSES. ORDER DICTATED AND PRONOUNCED IN THE OPEN C OURT IMMEDIATELY ON COMPLETION OF HEARING. SD/- ( / SANJAY GARG) / JUDICIAL MEMBER DATED : 12. 09.2019 .. '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE ITA NO.433-CHD-2019- SH RANJEET SINGH KHUBBER, AMBALA 6