Late Shri Ram Swaroop thr L/H Sukhbir, Faridabad V. ITO, Ward-1(5), Faridabad

ITA 4375/DEL/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7291 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 03-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKASH DUBEY
• Assessee Lawyers: AVDHESH BHATNAGAR
• Keywords: Capital asset; Principle of natural justice; Additional evidence; Capital Gains
• Section: 201; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI G BEN CH, NEW DELHI [THROUGH VIDEO CONFERENCE] BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 4375/DEL/2017 [ASSESSMENT YEAR: 2008-09] LATE SHRI RAM SWAROOP VS. INCOME TAX OFFICER THROUGH LEGAL HEIR SHRI SUKHBIRI WARD 1(5), VILLAGE SIHI, SECTOR-8, FARIDABAD FARIDABAD, HAR YANA [APPELLANT] [RESPONDENT] DATE OF HEARING : 31.03.2021 DATE OF PRONOUNCEMENT : 31.03.2021 APPELLANT BY : SH. AVDHESH BHATNAGAR, ADVOCATE REVENUE BY : SHRI PRAKASH DUBEY, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] FARIDABAD DA TED 17.02.2017 PERTAINING TO ASSESSMENT YEAR 2008-09. 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE APPELLANT IS A SMALL FARMER OWNING SMA LL AGRICULTURAL LAND WHO DOES NOT KNOW INCOME TAX LAW AND BLINDLY T RUSTED ON CHARTERED ACCOUNTANT MR. SHY AM SUNDER MANGLA, M/S SHY AM SUNDER MANGLA & CO, HAVING OFFICE AT SCO - 201 SHOPPING CE NTER SECTOR - 8 FARIDABAD (INDIA) -121006. THE APPELLANT HAS GIVEN ALL THE NECESSARY DOCUMENTS & INFORMATION TO CA MR. MANGLA WHO HAS NO T SUBMITTED RETURN OF INCOME, ALL THE INFORMATION & DOCUMENTS D URING THE ASSESSMENT & APPEAL PROCEEDINGS AS PER THE INCOME T AX LAW AND DID NOT PERFORMED HIS PROFESSIONAL DUTIES AND DID NOT G IVE PROPER ADVICE TO APPELLANT. IN VIEW OF THESE FACTS, KINDLY ALLOW AN OPPORTUNITY TO THE APPELLANT TO EXPLAIN THE CASE AND TO SUBMIT ALL THE NECESSARY INFORMATION & DOCUMENTS TO THE LD. ASSESSING OFFICE R. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) IS NOT RIGHT IN CONFORMING THE IMPUGNED ORDER FRAMED BY THE ASSE SSING OFFICER IN TREATING THE WHOLE SALES CONSIDERATION OF AGRICULTU RE LAND AND OLD HOUSE ON AGRICULTURAL LAND AMOUNTED TO RS.2,85,65,6 30/- ON ESTIMATED BASIS AS TAXABLE INCOME FROM CAPITAL GAIN WHERE AS THE APPELLANT HAS REINVESTED THE SALES PROCEEDS IN AGRICULTURE LAND & CONSTRUCTION OF RESIDENTIAL PROPERTY AND NO EXEMPTION IS ALLOWED TO THE APPELLANT. 3 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) IS NOT RIGHT IN CONFIRMING THE IMPUGNED ORDER FRAMED BY ASSESSIN G OFFICER IN TREATING THE INDEXED COST RS.5,00,000/- ON ESTIMATE D BASIS BY STATING 'SUBJECT TO CHANGE' AND NOT CONSIDERED MARKET VALUE AS ON 01-04-1981 OF AGRICULTURAL LAND & OLD HOUSE. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) AND THE LD. ASSESSING OFFICER HAVE ERRED IN CALCULATING CORRECT TAXABLE INCOME AND CORRECT INDEXED COST OF AGRICULTURAL LAND AND O LD HOUSE INHERITED FROM PARENTS. 5. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) IS NOT RIGHT IN CONFORMING THE IMPUGNED ORDER FRAMED BY THE ASSE SSING OFFICER WHO HAS NOT CONSIDERED THE DEDUCTIONS/ EXEMPTIONS A LLOWABLE UNDER THE HEAD CAPITAL GAIN. 6. THAT HAVING REGARDS TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEA LS) IS NOT RIGHT IN CONFIRMING THE IMPUGNED ORDER FRAMED BY THE ASSESSI NG OFFICER UNDER SECTION .144 WITHOUT SERVING MANDATORY NOTICE . 7. THAT HAVING REGARDS TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS NOT RIGHT IN CONFIRMING THE IMPUGNED ORDER FRAMED BY THE ASSESSI NG OFFICER UNDER SECTION 144 IN SERVING THE NOTICE U/S.142(1) DATED 16/03/2009. 4 8. THAT HAVING REGARDS TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS NOT RIGHT IN CONFIRMING THE IMPUGNED ORDER FRAMED BY THE ASSESSI NG OFFICER WITHOUT FOLLOWING THE PROVISIONS U/ S.147 AND 148. THE APPELLANT HAS NOT RECEIVED ANY NOTICE U/S.148 OF INCOME TAX ACT. 9. THAT HAVING REGARDS TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S NOT COMPLIED THE PROVISION OF SECTION 250(6) TO PASS A SPEAKING ORDER. 10. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS NOT AFFORDED PROPER OPPORTUNITY TO THE APPELLANT TO EXP LAIN THE MATTER AND WHOLE ORDER IS ARBITRARY AND AGAINST THE PRINCI PLES OF NATURAL JUSTICE AND PASSED THE ORDER IN A HURRY. 11. THAT THE ORDER PASSED BY LEARNED CIT(A) IS BAD IN LAW AND AGAINST THE FACTS & CIRCUMSTANCES OF THE CASE. 12. THAT THE APPELLANT CRAVES LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 5 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT AS PER THE INFORMATION RECEIVED FROM SUB REGISTRAR, BALLABGARH , FARIDABAD THE AO CAME TO KNOW THAT THERE WAS TRANSFER OF LAND TO M/S . BPTP LTD. AND ITS GROUP CONCERNS. IT CAME TO THE NOTICE OF THE AO TH AT THE ASSESSEE AND OTHERS ON 07.06.2007 RECEIVED TOTAL RS. 15,26,50,00 0/- AS SALE CONSIDERATION OF THEIR LAND FROM M/S. GREEN VALLEY HOUSING DEVELOPMENT PRIVATE LIMITED. ACCORDING TO THE AO O UT OF THIS SALE CONSIDERATION THE ASSESSEE SHARES COMES TO RS. 2,90 ,65,625/-. THE AO WAS OF THE OPINION THAT SINCE THE LAND IN QUESTION WAS SITUATED WITHIN MUNICIPAL LIMITS OF FARIDABAD. THEREFORE, IT IS A CAPITAL ASSET CHARGEABLE TO TAX U/S. 45 (5) OF THE ACT. 4. ACCORDINGLY, NOTICES WERE ISSUED AND SERVED UPON THE ASSESSEE BUT NO ONE ATTENDED THE ASSESSMENT PROCEEDINGS INSP ITE OF SEVERAL NOTICES. THE AO WAS LEFT WITH NO OTHER CHOICE BUT T O PROCEED EXPARTE. THE AO FINALLY COMPUTED THE INCOME OF THE ASSESSEE AS UNDER : LONG TERM CAPITAL GAINS : RS. 2,90,65,625/- LESS INDEXED COST PRICE OF LAND AS ON : RS. 5,00,000/- 07.06.2007 TOTAL TAXABLE INCOME RS. 2,85,65,625/- RO RS. 2,85,65,630/- 6 5. AGGRIEVED BY THIS THE ASSESSEE CARRIED THE MATTE R BEFORE THE CIT(A). 6. ON MERITS OF THE ADDITION, THE CIT(A) OBSERVE D AS UNDER :- 14. GROUND NOS. 5 & 6 DEAL WITH THE FACT THAT THE AO MADE ADDITION OF RS.2,85,65,625/- ON ACCOUNT OF CAPITAL GAIN. THE LD. AR HAS NOT MADE ANY WRITTEN SUBMISSIONS ON THE MERITS OF THE ADDITIONS MADE. THE WRITTEN SUBMISSIONS WERE FILED IN DAK ON 10.08.2016 WHEREIN THE LD. AR HAD SUBMITTED THAT TH E SUBMISSIONS OF THIS GROUND WILL BE SUBMITTED NEXT WEEK. SUBSEQU ENTLY THE LD. AR HAS FILED AN AFFIDAVIT ON 26.08.2016 IN DAK HOWE VER NO WRITTEN SUBMISSIONS WERE * LED ON THESE GROUNDS. AS STATED IN THE EARLIER PART OF THIS ORDER THE LD. AR HAS SOUGHT ADJOURNMEN T ON 21.11.2016 AND NO WRITTEN SUBMISSIONS WERE FILED ON THIS DATE ON THESE GROUNDS. SUBSEQUENTLY ALSO VARIOUS NOTICES HAVE BEE N ISSUED BUT NO SUBMISSIONS MADE ON THESE GROUNDS. THUS AFTER CONSI DERING THE ASSESSMENT ORDER ESPECIALLY FOR PARA 4 TO 7, I FIND THAT THE APPELLANT HAS INDEED RECEIVED THE TOTAL CONSIDERATI ON OF RS.2,90,65,625/- ON 17.10.20005 AND 07.06.2007 AND FINAL DEED .VAS EXECUTED ON 07.06.2007. THE APPELLANT HAS NOT FILED HIS RETURN OF INCOME FOR - 2008-09 AND ALSO NOT PAID THE CAP ITAL GAIN TAX ON THE SAME. HENCE IN VIEW OF THESE FACTS, THESE GROUNDS OF THE APPELLANT ARE DISMISSED . 7 7. AGGRIEVED BY THIS THE ASSESSEE BEFORE US. THE C OUNSEL FOR THE ASSESSEE VEHEMENTLY STATED THAT THE COUNSEL APPEARING BEFORE THE CIT(A) DID NOT SUBMIT ALL THE NECESSARY DOCUMENTS AND THE ASSESSEE BEING AN ILLITERATE FARMER WHO TRUSTED THE COUNSEL WAS BETRAYED BY THE COUNSEL. THE COUNSEL PRAYED THAT CONSIDERING THE FACTS OF THE CASE THE A SSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY TO DEFEND HIS CASE. THE LD. C OUNSEL FOR THE ASSESSEE ALSO FURNISHED ADDITIONAL EVIDENCES WITH AN APPLICA TION FOR THE ADMISSION OF THE SAME. 8. THE DR SUPPORTING THE ORDERS OF THE AUTHORITIES BELOW, STATED THAT THE DOCUMENTS FURNISHED BY THE ASSESSEE NEEDS VERIFICAT ION. 9. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. THE FACT IS THAT THE ASSESSMENT ORDER WAS FRAMED EXPARTE. THE DOCUMENTS FILED BEFORE US SHOW THAT TH E ASSESSEE HAS ENTRUSTED HIS COUNSEL TO FURNISH EVIDENCE BEFORE TH E FIRST APPELLATE AUTHORITY BUT A PERUSAL OF THE ORDER OF THE FIRST APPELLATE A UTHORITY SHOW THAT THE APPELLATE PROCEEDINGS WERE NOT PROPERLY ATTENDED. 10. WE HAVE ALSO GIVEN THROUGH THE APPLICATION FOR THE ADMISSION OF ADDITIONAL EVIDENCES. WE ARE OF THE CONSIDERED VIE W THAT THESE DOCUMENTS GO TO THE ROOT OF THE MATTER. THEREFORE, IN THE IN TEREST OF JUSTICE AND FAIR PLAY WE DEEM IT FIT TO RESTORE THE ENTIRE QUARREL T O THE FILES OF THE AO. THE 8 ASSESSEE IS DIRECTED TO FURNISH ALL THOSE DOCUMENTS BEFORE THE AO AND THE AO IS DIRECTED TO DECIDE THE ISSUE FRESH AFTER CONSIDE RING THE DOCUMENTS AND AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESS EE IN ITA NO. 4375/DEL/2017 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 31.03. 2021 IN THE PRESENCE OF BOTH THE RIVAL REPRESENTATIVES . SD/- SD/- (BHAVNESH SAINI) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31 ST MARCH, 2021. VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT ASST. REGISTRAR 4. CIT(A) ITAT, NEW DELHI 5. DR 9 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER