Sh. Sat Bir Singh, Sonepat V. ITO, Sonepat

ITA 4332/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7369 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 21-06-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 08-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: FARHAT KHAN
• Keywords: Opportunity of being heard; Capital receipt

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-3 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-433 2/DEL/2014 (ASSESSMENT YEAR-20 10-11) SAT BIR SINGH, S/O-SH. KANSHI RAM, VPO FAZILPUR, SONEPAT. PAN-AYVPS5346J (APPELLANT) VS ITO, WARD-2, SONEPAT (RESPONDENT) APPELLANT BY SH. SURESH GUPTA, CA RESPONDENT BY SH. FARHAT KHAN, SR.DR ORDER PER DIVA SINGH, JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 26.05.2014 OF CIT(A), ROHTAK PERTAINING TO 2010-11 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- 1. THE LD.CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS I N CONFIRMING THE ADDITION OF RS.11,23,276/- OF THE CAPITAL RECEIPTS IN THE FO RM OF COMPROMISE MONEY ARISING OUT OF LEGAL SUIT U/S 138 OF THE NEGOTIABLE INSTRUMENTS ACT AGAINST THE PAYER FOR DISHONOR OF CHEQUES. 2. THE APPELLANT CRAVES LEAVE TO ADD, DELETE, MODIFY/A MEND THE ABOVE GROUNDS OF APPEAL WITH THE PERMISSION OF THE HONBLE APPELL ATE AUTHORITY. 2. THE LD. AR INVITING ATTENTION TO THE ORDER DATED 28.10.2015 IN ITA NO.4333/DEL/2014 IN THE CASE OF JAI BHAGWAN VS ITO PERTAINING TO 2010-11 AY SUBMITTED THAT THE POINT AT ISSUE IS COVERED AS THE FACTS ARE IDENTICAL AS HEREIN ALSO THE CHEQUE ISSUED BY THE SAME BUYER I.E. M/S SIDDHARTH CO-OPE RATIVE HOUSING BUILDING SOCIETY LTD. HAD BOUNCED AND THE ASSESSEE HAD FILED A LEGAL SUIT U/S 138 OF THE NEGOTIABLE INSTRUMENT DATE OF HEARING 21 .06.2016 DATE OF PRONOUNCEMENT 19 .0 8 .2016 I.T.A .NO.-4332/DEL/2014 PAGE 2 OF 4 ACT. AS IN THE CASE OF JAI BHAGWAN THE ASSESSEE HE REIN ALSO RECEIVED COMPENSATION IN AN OUT OF COURT SETTLEMENT ON THE FILING OF THE SAID S UIT. REFERRING TO THE ASSESSMENT ORDER, IT WAS SUBMITTED THAT THE REVENUE HAS ACCEPTED THAT IT IS AN AGRICULTURAL INCOME AS NO CAPITAL GAIN HAS BEEN WORKED OUT. HEREIN ALSO THE ASSESSEE ENTERED INTO AN AGREEMENT FOR SALE OF AGRICULTURAL LAND AND THE CHEQUE IN RE CEIPT OF SALE OF THE SAME BOUNCED. AS IN THE OTHER CASE IT WAS SUBMITTED FULL FACTS ARE NOT COMING OUT FROM THE ASSESSMENT ORDER ACCORDINGLY FOLLOWING THE PRECEDENT, THE ISSUE MAY BE RESTORED TO THE AO PERMITTING THE ASSESSEE OPPORTUNITY TO PRODUCE THE SALE DEED ETC. IN RESPECT OF THE SPECIFIC AGRICULTURAL LAND. ACCORDINGLY, IT WAS HIS SUBMISSION THAT SINC E THESE OBVIOUS SHORTCOMINGS ARE EVIDENT IN THE FACTS OF THE PRESENT CASE ALSO THE M ATTER MAY BE RESTORED TO THE AO. 3. LD. SR. DR SUBMITTED THAT SINCE THE AMOUNTS HAVE BEEN RECEIVED IN AN OUT OF COURT SETTLEMENT IT DOES NOT PAR TAKE THE NATURE OF AGRIC ULTURAL INCOME. HOWEVER NO ARGUMENTS WERE ADVANCED WHY THE ORDER IN THE CONNECTED CASE S HOULD NOT FOLLOWED. 4. HAVING HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD, I FIND THAT THE FACTS OF BOTH THE CASES I.E. THE CASE UNDE R CONSIDERATION AND THE FACTS IN THE CASE OF JAI BHAGWAN VS ITO ARE IDENTICAL INASMUCH AS ON ACCOUNT OF BOUNCED CHEQUES FOR PURCHASING AGRICULTURAL LAND M/S SIDDHARTH CO-OPERA TIVE HOUSING BUILDING SOCIETY LTD. MADE PAYMENTS FOR OUT OF COURT SETTLEMENT IN BOTH C ASES AS THE ASSESSEE HAD FILED SUIT U/S 138 OF NEGOTIABLE INSTRUMENTS ACT. IN THE CASE OF JAI BHAGWAN, A REMAND HAS BEEN DIRECTED BY THE ITAT FOR WANT OF FACTS. FINDING TH E FACTS AND CIRCUMSTANCES TO BE IDENTICAL AS IN THE ABSENCE OF ANY CONTRARY SUBMISSION BY THE REVENUE, RESPECTFULLY FOLLOWING THE PRECEDENT THE ISSUE IS RESTORED BACK TO THE FILE TO THE AO WITH AN IDENTICAL DIRECTION. FOR I.T.A .NO.-4332/DEL/2014 PAGE 3 OF 4 READY-REFERENCE, THE SPECIFIC DIRECTION FROM ITA N O.4333/DEL/2013 FROM ORDER DATED 28.10.2015 IS EXTRACTED HEREUNDER:- 5. THE SUBMISSIONS OF THE PARTIES HAVE BEEN HEARD AND THE MATERIAL AVAILABLE ON RECORD HAS BEEN PERUSED. IT IS SEEN T HAT IN THE FACTS OF THE PRESENT CASE THE ASSESSEE WAS REQUIRED TO EXPLAIN VARIOUS E NTRIES IN ITS BANK ACCOUNTS. THE ASSESSEE STATED THAT THESE WERE RESULTING OUT OF THE SALE OF AGRICULTURAL LAND AND IN THE SAID CIRCUMSTANCES THE BELIEF OF THE ASS ESSEE THAT THESE FACTS WERE IN THE KNOWLEDGE OF THE AO MAY NOT BE MISPLACED. HOWE VER, IN THE INTERESTS OF SUBSTANTIAL JUSTICE, IT IS CONSIDERED APPROPRIATE T O RESTORE THE ISSUE BACK TO THE AO SO AS TO ENABLE THE ASSESSEE TO BRING THE NECESS ARY FACTS AND EVIDENCES ON RECORD. THE ASSESSEE IS DIRECTED TO PRODUCE THE SA LE DEED IN RESPECT OF THE SPECIFIC ANCESTRAL AGRICULTURAL LAND STATED TO HAVE BEEN SOLD TO THE M/S SIDDHARTH CO-OPERATIVE HOUSING BUILDING SOCIETY LTD. WHEREIN REFERENCE TO THIS SPECIFIC CHEQUE NO. MAY HAVE BEEN MADE. THE CLAIM IT IS STA TED IS ALSO SUPPORTED BY THE LEGAL SUIT FILED BY THE ASSESSEE U/S 138 OF THE NEGOTIABLE INSTRUMENTS ACT SO AS TO DEMONSTRATE THAT THE SETTLEMENT WAS QUA THE SALE OF ANCESTRAL AGRICULTURAL LAND ON 15.06.2007 WHICH WAS EXEMPT. SUPPORTING E VIDENCES IN SUPPORT OF THE SAID CLAIM TO BE MADE AVAILABLE BY THE ASSESSEE. T HUS SINCE NECESSARY FACTS AND EVIDENCES HAVE NOT BEEN PLACED ON RECORD THE IMPUG NED ORDER IS SET ASIDE AND THE ISSUE IS RESTORED BACK TO THE AO WITH THE DIREC TION TO DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REA SONABLE OPPORTUNITY OF BEING HEARD. LIBERTY IS GIVEN TO THE ASSESSEE TO PLACE N ECESSARY FACTS AND EVIDENCE IN SUPPORT OF ITS CLAIM BEFORE THE AO. 5. NEEDLESS TO SAY THAT IN THE FACTS OF THE PRESENT CASE ALSO THE AO SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD AND THE ASSESSEE SHALL HAVE LIBERTY TO FILE FRESH EVIDENCES IN SUPPORT OF ITS CLAIM BEFORE THE AO. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 19 TH AUGUST 2016. SD/- (DIVA SINGH ) JUDICIAL ME MBER *AMIT KUMAR* COPY FORWARDED TO: I.T.A .NO.-4332/DEL/2014 PAGE 4 OF 4 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR, ITAT NEW DELHI