Bir Singh, Faridabad V. ITO, Ward-1(5), Faridabad

ITA 4377/DEL/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9631 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 03-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAGDISH SINGH DAHIYA
• 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 A BEN CH, NEW DELH I BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.4377/DEL/2017 [A.Y 2008-09] (THROUGH VIDEO CONFERENCING) MR. BIR SINGH VS. INCOME TAX OFFICER VILLAGE SIHI, SECTOR-8 WARD 1(5), FARIDABAD FARIDABAD, HARYANA [APPELLANT] [RESPONDENT] APPELLANT BY : SH. AVDHESH BHATNAGAR, ADVOCATE RESPONDENT BY : SH. JAGDISH SINGH DAHIYA, SR. DR. DATE OF HEARING : 06.07.2020 DATE OF PRONOUNCEMENT : 08. 07.2020 ORDER PER N. K. BILLAIYA , AM : THIS APPEAL BY THE ASSESSEE IS PREFERRED THE ORDER OF THE CIT(APPEALS), FARIDABAD DATED 19.04.2017 PERTAINING TO A.Y.2008-0 9. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THAT THE APPELLANT IS A SMALL FARMER OWNING SMAL L 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 SHOP PING CENTER SECTOR - 8 FARIDABAD (INDIA) -121006. THE APPELLANT HAS GIVEN ALL THE NECESSARY DOCUMENTS & INFORMATION TO CA MR. MANGLA WHO HAS NOT SUBMITTED RETURN OF INCOME, ALL THE INFORMATION & D OCUMENTS DURING THE ASSESSMENT & APPEAL PROCEEDINGS AS PER THE INCO ME TAX LAW AND DID NOT PERFORMED HIS PROFESSIONAL DUTIES AND D ID NOT GIVE 2 PROPER ADVICE TO APPELLANT. IN VIEW OF THESE FACTS, KINDLY ALLOW AN OPPORTUNITY TO THE APPELLANT TO EXPLAIN THE CASE AN D TO SUBMIT ALL THE NECESSARY INFORMATION & DOCUMENTS TO THE LD. ASSESS ING OFFICER. 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.2,13,17,7 10/- ON ESTIMATED BASIS AS TAXABLE INCOME FROM CAPITAL GAIN WHERE AS THE APPELLANT HAS REINVESTED THE SALES PROCEEDS IN AGRI CULTURE LAND & CONSTRUCTION OF RESIDENTIAL PROPERTY AND NO EXEMPTI ON IS ALLOWED TO THE APPELLANT. 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 MARK ET 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 COR RECT TAXABLE INCOME AND CORRECT INDEXED COST OF AGRICULTURAL LAN D AND OLD 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 ASSE SSING 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. 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 3 WITHOUT FOLLOWING THE PROVISIONS U/ S.147 AND 148. THE APPELLANT HAS NOT RECEIVED ANY NOTICE U/S.148 OF INCOME TAX A CT. 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. 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. A ND ITS GROUP CONCERNS. IT CAME TO THE NOTICE OF THE AO THAT THE ASSESSEE AND OTHERS ON 07.06.2007 RECEIVED TOTAL RS. 15,26,50,000/- AS SALE CONSIDERA TION OF THEIR LAND FROM M/S. GREEN VALLEY HOUSING DEVELOPMENT PRIVATE LIMIT ED. ACCORDING TO THE AO OUT OF THIS SALE CONSIDERATION THE ASSESSEE SHAR ES COMES TO RS. 2,18,17,708/-. THE AO WAS OF THE OPINION THAT SINC E 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 4. ACCORDINGLY, NOTICES WERE ISSUED AND SERVED UPON BUT NO ONE ATTENDED THE ASSESSMENT PROCEEDINGS INSPITE OF SEVERAL NOTIC ES. THE AO WAS LEFT WITH NO OTHER CHOICE BUT TO PROCEED EXPARTE. THE AO FIN ALLY CONCLUDED AS UNDER : 7. IT IS ALSO UNDISPUTED THAT THE ASSESSEE WAS OWNE R & IN POSSESSION OF LAND SITUATED IN VILLAGE SIHI DURING THE YEAR 2003-04 AND SOLD THIS LAND TO M/S GREEN VALLEY HOUSING & LA ND DEVELOPMENT PVT. LTD, M-LL, MIDDLE CIRCLE, CANNAUGH T CIRCLE, NEW DELHI AND RECEIVED TOTAL SALE PRICE AT RS. 2,18,17, 708/-. THE ASSESSEE DID NOT COPERATED IN THE FINALISING OF THE INCOME TAX ASSESSMENT PROCEEDINGS. IN THE INTEREST OF EQUITY, INDEXED COST OF LAND AT RS. 5,00,000/- HAS BEEN TAKEN IRRESPECTIVE OF HOLDING OF LAND BY THE ASSESSEE SUBJECT TO CHANGE, IN CASE ASSESSEE FURNISHES COMPLETE DOCUMENTS FOR PURCHASE/ACQUISITION PRICE O F LAND. THEREFORE SUM OF RS. 5,00,000/- HAS BEEN TAKEN, AS THE INDEXED COST PRICE OF LAND AS ON 07.06.2007 I.E. THE DATE OF SAL E OF LAND. 8. IN THE LIGHT OF ABOVE OBSERVATIONS; THE INCOME O F THE ASSESSEE IS COMPUTED AS UNDER: LONG TERM CAPITAL GAINS : RS. 2,18,17,708/- LESS INDEXED COST PRICE OF LAND AS ON : RS. 5,00 ,000/- 07.06.2007 TOTAL TAXABLE INCOME RS.2,13,17,708/- RO RS.2,13,17710/- 5. AGGRIEVED BY THIS THE ASSESSEE CARRIED THE MATTE R BEFORE THE CIT(APPEALS). 6. BEFORE THE CIT(APPEALS) THE ASSESSEE TRUSTED H IS COUNSEL TO FURNISH NECESSARY DOCUMENTARY EVIDENCES BEFORE THE CIT(APPE ALS). 5 7. SOME DOCUMENTS WERE SUBMITTED AS ADDITIONAL EVID ENCES. THE CIT(APPEALS) CALLED FOR A REMAND REPORT. ON MERITS OF THE ADDITION THE CIT(APPEALS) OBSERVED AS UNDER :- 14. GROUND NOS. 5 & 6 DEAL WITH THE FACT THAT THE A O MADE ADDITION OF RS.2,13,17,710/- 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 ON 26.0 7.2016 WHEREIN THE LD. AR HAD SUBMITTED THAT THE SUBMISSIONS OF TH IS GROUND WILL BE SUBMITTED NEXT WEEK. SUBSEQUENTLY THE LD. AR HAS FILED AN AFFIDAVIT ON 01.08.2016 IN DAK HOWEVER NO WRITTEN S UBMISSIONS WERE FILED ON THESE GROUNDS. THUS AFTER CONSIDERING THE ASSESSMENT ORDER ESPECIALLY FOR PARA 4 TO 7, I FIND THAT THE A PPELLANT HAS INDEED RECEIVED THE TOTAL CONSIDERATION OF RS.2,18,17,708/ - ON 17.10.20005 AND 07.06.2007 AND FINAL DEED WAS EXECUTED ON 07.06 .2007. THE APPELLANT HAS NOT FILED HIS RETURN OF INCOME FOR A. Y. 2008-09 AND ALSO NOT PAID THE CAPITAL GAIN TAX ON THE SAME. HEN CE IN VIEW OF THESE FACTS, THESE GROUNDS OF THE APPELLANT ARE DIS MISSED. 8. 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 COUNS EL ALSO FURNISHED ADDITIONAL EVIDENCES WITH AN APPLICATION FOR THE AD MISSION OF THE SAME. 9. THE DR SUPPORTING THE ORDERS OF THE AUTHORITIES BELOW, STATED THAT THE DOCUMENTS FURNISHED BY THE ASSESSEE NEEDS VERIFICAT ION. 6 10. 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. 11. 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 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. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 08.07.2020. SD/- SD/- [KULDIP SINGH] [ N.K. BILLAIYA] JUDICIAL MEMBER A CCOUNTANT MEMBER DATED: 08.07.2020 *NEHA* 7 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR ITAT, NEW DELHI DATE OF DICTATION 06.07.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 06.07.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 08.07.2020 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS 08.07.2020 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 08.07.2020 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 08.07.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 08.07.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRA R FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER