Smt. Saraswati Gupta, Bargarh V. ITO, Bargarh

ITA 433/CTK/2012

• Counselvise Citation: 43322114 RSA 2012
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 1998-1999
• Appeal Filed On: 18-07-2012
• Court: TRIBUNAL
• Department Lawyers: N K NEB
• Assessee Lawyers: P R MOHANTYM L JHUNJHUNWALAARS
• Keywords: Opportunity of being heard; Cost of acquisition; Fair market value; Valuation report; Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , H ONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO. 433/CTK/2012 / ASSESSMENT YEAR 1998 - 99 SMT.SARASWATI GUPTA, W/O. BINOD KUMARGUPTA, AT/P.O.SHOHELLA,DIST.BARGARH PAN: AHHPG 0265 H - - - VERSUS - INCOME - TAX OFFICER, BARGARH WARD, BARGARH. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI P.R.MOHANTY/M.L.JHUNJHUNWALA,ARS / FOR THE RESPONDENT: / SHRI N.K.NEB, DR / DATE OF HEARING: 07.11.2012 / DATE OF PRONOUNCEMENT: 09.11.2012 / ORDER PER BENCH . THE APPEAL BY THE ASSESSEE AGAINST THE ORDER DT.31.3.2011 OF THE LEARNED CIT(A) HAS BEEN FILED BELATEDLY BY 436 DAYS ALONG WITH A PETITION SEEKING CONDONATION OF DELAY BE CAUSE OF THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A) REJECTING THE PETITION U/S.154 OF THE I.T.ACT WAS DISMISSED BY THIS TRIBUNAL IN ITA NO.473/CTK/2011 DT.25.6.2012 WHEN THE TRIBUNAL HAS EXPRESSED ITS VIEW THAT IF THE ASSESSEE HAD ANY GRIEVANCE AGAINST THE ORDER DT.31.3.2011 PASSED BY THE LEARNED CIT(A), THE ASSESSEE OUGHT TO HAVE FILED APPEAL BEFORE THE TRIBUNAL. THE LEARNED COUNSEL OF THE ASSESSEE CONTENDED THAT BECAUSE OF WRONG ADVISE OF AR OF THE ASSESSEE THE EARLIER APPEAL WAS FILED BEFORE THE TRIBUNAL. HE, THEREFORE, PRAYED TO CONDONE THE DELAY IN FILING THE PRESENT APPEAL. THE LEARNED DR DID NOT DISPUTE THE ABOVE FACTS. CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. I.T.A.NO. 433/CTK/2012 2 2 . THE UNDISPUTED FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE ASSESSEE HAD DECLARED HAVING IN POSSESSION OF ROUGH DIAMONDS UNDER THE VDIS AND THE SAME WAS ACCEPTED BY THE DEPARTMENT AS THE ASSESSEE PAID NECESSARY TAX UNDER THAT SCHEME. LATER ON THE ASSESSEE SOLD AWAY THOSE DIAMONDS AFTER CUTTING AND POLISHING THEM AND THEREBY MAKING VALUE ADDITION TO THEM SOLD THE SAME IN THE AYS UNDER CONSIDERATION. THE ASSESSING OFFICER IN THE ASSESSMENT U/S.144/147 OF THE I.T.ACT,1961 DETERMINED THE CAPITAL GAIN AT 8,84,805 BY TAKING INTO CONSIDERATION THE SALE PRICE LESS COST OF ACQUISITION AND COST OF IMPROVEMENT. AGGRIEVED, THE ASSESSEE WENT IN APPEAL WHEN THE LEARNED CIT(A) CONFIRMED THE ASSESS MENT VIDE HIS ORDER DT.31.3.2011 ON THE GROUND OF NON - COMPLIANCE OF NOTICES ISSUED BY THE ASSESSING OFFICER U/S.142(1) AND 143(2). AGAINST THIS ORDER, THE ASSESSEE IS NO W IN APPEAL BEFORE THE TRIBUNAL RAISING THE FOLLOWING GROUNDS. 1. THAT THE ASSESSMENT ORDER PASSED BY THE A.O. U/S 144/147 OF THE INCOME TAX ACT,1961 FOR THE ASSESSMENT YEAR 1998 - 99 WITHOUT GIVING SUFFICIENT OPPORTUNITY OF BEING HEARD IS ILLEGAL AND VITIATED IN LAW. 2. THAT THE BASIS OF THE DETERMINATION OF LONG TERM CAPITAL GAIN BY THE A.O. IS NOT IN CONSONANCE WITH THE ITAT ORDER BEARING APPEAL NO. IT A - 555/CTK!2002 DATED 17/11/2006 AND SUBSEQUENT ITAT ORDER ITA NO. 203 TO 223/CTK/2011 DATED 27/05/2011. 3. THAT THE FAIR MARKET VALUE OF ROUGH DIAMONDS AS ON 01/04/81, DULY CERTIFIED BY THE REGISTERED VALUER, FILED BEFORE THE LD. CIT (APPEALS), HAS NOT BEE N CONSIDERED BY THE LD. CIT (APPEALS) FOR CALCULATION OF LONG TERM CAPITAL GAIN AND SO THE ORDER PASSED BY LD. CIT (APPEALS) IS ILLEGAL, ARBITRARY AND UNJUSTIFIED IN LAW IN THE PARTICULAR FACTS AND CIRCUMSTANCES OF THE CASE. 4. THAT THE CIT (APPEALS) IS NO T JUSTIFIED TO UPHOLD THE AMOUNT OF LONG TERM CAPITAL GAIN OF RS. 8,84,805/ - DETERMINED BY THE A.O. IN THE PARTICULAR OF FACTS AND CIRCUMSTANCES OF THE CASE. I.T.A.NO. 433/CTK/2012 3 5. THAT THE APPELLANT CRAVES LEAVE TO AMEND OR ADD ANY OTHER GROUNDS OF APPEAL AND PUT - FORTH EVIDE NCE AND TO URGE OTHER GROUNDS DURING THE COURSE OF HEARING. 6. THE APPELLANT PRAYS THAT DELAY IN FILING APPEAL MAY BE CONDONED AND THE ASSESSMENT ORDER PASSED U/S 144/147 MAY BE QUASHED AND THE LOWER AUTHORITIES BE DIRECTED TO ADOPT, THE VALUE OF RAW AND U NCUT DIAMOND AS ON 01/04/198 1 FOR CALCULATION OF LONG TERM CAPITAL GAIN IN THE INTEREST OF JUSTICE FOR WHICH THE APPELLANT SHALL AS IN DUTY BOUND EVER PRAY. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS. AS OBSERVED ABOVE, THE ASSESSING OFFICER PASSED THE ORDE R U/S.144/147 AND ON APPEAL, THE LEARNED CIT(A) HAS UPHELD THE SAME ON THE GROUND OF NON - COMPLIANCE OF NOTICES U/S.142(1) AND 143(2) ISSUED BY THE ASSESSING OFFICER. THE LEARNED CIT(A) HAS NOT DISCUSSED ANYTHING ABOUT THE MERIT OF THE CASE I.E., ABOUT THE COMPUTATION OF CAPITAL GAINS AS MADE BY THE ASSESSING OFFICER, WHICH WAS THE CORE ISSUE OF DISPUTE RAISED BY THE ASSESSEE BEFORE HIM. THE LEARNED COUNSEL OF THE ASSESSEE CONTENDED BEFORE US THAT THE CAPITAL GAINS AS COMPUTED BY THE ASSESSING OFFICER IS NOT IN CONSONANCE WITH THE DECISION OF ITAT, SPECIAL BENCH , CUTTACK AT KOLKATA IN THE CASE OF SHRI HIRALAL LOKCHANDANI V. ITO IN ITA NO.555/CTK/2002 DT.17.11.2006. IN THE SAID CASE THE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER WIT H A DIRECTION TO RECOMPUTE THE CAPITAL GAIN AFTER CONSIDERING THE VALUATION REPORT OF ROUGH DIAMONDS AS BASIS FOR DETERMINING FAIR MARKET VALUE OF RAW AND UNCUT DIAMOND AS ON 1.4.1981. THE LEARNED COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT IN SIMILAR G ROUP OF CASES IN ITA NOS.203 TO 223/CTK/2011 CONSOLIDATED ORDER 27.5.2011 FOLLOWED IN ITA NOS.273 TO 288/CTK/2011 CONSOLIDATED ORDER DT.30.6.2011, THIS BENCH OF THE TRIBUNAL HAS DIRECTED THE ASSESSING OFFICER TO ADOPT THE VALUE AS PER THE VALUATION REPORT STATING THEREIN THE FAIR MARKET VALUE OF RAW AND UNCUT DIAMOND AS ON I.T.A.NO. 433/CTK/2012 4 1.4.1981 FURNISHED BY THE ASSESSEES PURSUANT TO THE DIRECTION OF THE TRIBUNAL AND RECOMPUTE THE CAPITAL GAIN TO BE TAXED IN THE HANDS OF THE RESPECTIVE ASSESSEES. THERE IS NO DISPUTE TO T HE FACT THAT THE ASSESSEE PRODUCED BEFORE THE LEARNED CIT(A) THE FAIR MARKET VALUE OF ROUGH DIAMONDS AS ON 1.4.81 AS CERTIFIED BY THE REGISTERED VALUER, WHICH IN OUR CONSIDERED OPINION, HE SHOULD HAVE CONSIDERED THE CASE OF THE ASSESSEE IN THE LIGHT OF THE DECISION OF ITAT,SPECIAL BENCH IN THE CASE OF SHRI HIRALAL LOKCHANDANI (SUPRA). THEREFORE, FOR THE INTEREST OF JUSTICE WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND DIRECT THE ASSESSING OFFICER TO ADOPT THE VALUE AS PER THE VALUATION REPORT ST ATING THEREIN THE FAIR MARKET VALUE OF RAW AND UNCUT DIAMOND AS O N 1.4.19981 FURNISHED BY THE ASSESSEE AND RECOMPUTE THE CAPITAL GAIN TO BE TAXED IN THE HANDS OF THE ASSESSEE IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT THE ASSESSING OFFICER WILL EXTEND RE ASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS CONSIDERED ALLOWED FOR STATISTICAL PURPOSES. SD/ - SD/ - ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : SMT.SARASWATI GUPTA, W/O. BINOD KUMARGUPTA, AT/P.O.SHOHELLA,DIST.BARGARH 2 / THE RESPONDENT: INCOME - TAX OFFICER, BARGARH WARD, BARGARH. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTA CK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY. I.T.A.NO. 433/CTK/2012 5 APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRA FT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 09.11.2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ............... . 9. DATE OF DESPATCH OF THE ORDER ..