Randhir Singh, New Delhi V. ITO, Ward-65(5), New Delhi

ITA 4421/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1900 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 08-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: RANDHIR SINGH; MANOJ KUMAR SON OF
• Keywords: Opportunity of being heard; Cost of acquisition
• Section: 54B; 54F; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A .NO.-4421/DEL/2018 (ASSESSMENT YEAR-2008-09) RANDHIR SINGH S/O LATE SHRI BISHU, VILL-JHULJHULI, PO-GHUMANHERA, NEW DELHI. PAN NO. ASAPS4729C (APPELLANT) VS ITO WARD 65(5), NEW DELHI. (RESPONDENT) APPELLANT BY SHRI RANDHIR SINGH, ASSESSEE & SHRI MANOJ KUMAR (SON OF ASSESSEE) RESPONDENT BY SHRI S.L. ANURAGI, SR. DR ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 28.03.2018 OF THE LD. CIT(A), NEW DELHI RELEVANT TO ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS: - 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-21, N EW DELHI (HEREAFTER CIT(A)) ERRED IN LAW AND ON THE FACTS OF THE APPELLANTS CASE IN SUSTAINING THE ADDITION OF RS. 21,58,674/- (BEIN G RS. 20,96,633/- AS LONG TERM CAPITAL GAIN & RS. 65,041/- AS INTEREST I NCOME) AS HE NEITHER CALLED DOCUMENT NOR EXAMINE ANY PAPER (EXCEPT SALE DEED) SUBMITTED WITH REPLY DATED 30.06.2015, 20.08.2015, 25.08.2015 , 19.01.2016, 27.01.2016 AND 29.01.2016 BEFORE LD. ITO WARD 65(5) , NEW DELHI (HEREINAFTER THE ITO). 2. THAT THE LD.ITO FAILED TO APPRECIATE THAT COST OF A CQUISITION OF LAND IS INDETERMINATE AND CANNOT BE ASCERTAINED AS LAND WAS RECEIVED BY ASSESSEE FROM HIS FOREFATHER MAKING ASSESSMENT IN V IOLATION OF RULING IN CASE OF CIT VS. B.C. SHRINIVASA SETTY (1981) 128 IT R 294 (SC). 3. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT THE L D. ITO ERRED IN LAW AND ON FACTS OF THE APPELLANTS CASE ADDING RS. 23,24,8 08/- UNDER THE HEAD LONG TERM CAPITAL GAIN BY CONSIDERING COST OF ACQ UISITION OF LAND AT RS. 1,30,355/- AS ON 01.04.1981 BY MAKING REVERSE CALCU LATION WITHOUT ANY SHOW CAUSE AND GIVING ANY OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. 4. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT LD. I TO ERRED IN LAW AND ON THE FACTS OF THE APPELLANTS CASE BY NOT REFERRING VALUATION OF COST OF ACQUISITION TO CONCERNED VALUATION OFFICER. DATE OF HEARING 19/11/2018 DATE OF PRONOUNCEM ENT 19 / 11 /201 8 ITA NOS. 4421/D/2018 A.Y. 2008-09 RANDHIR SINGH 2 5. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT LD. I TO ERRED IN LAW BY IGNORING AND NOT ALLOWING CORRECT AMOUNT OF DEDUCTI ON U/S 54B IN RESPECT OF PURCHASE OF NEW AGRICULTURAL LAND WHICH IS RS. 37,20,000/- INSTEAD OF RS. 35,00,000/-. 6. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT LD. I TO ERRED IN LAW BY NOT CONSIDERING CLAIM FOR DEDUCTION OF CONSTRUCTION OF OLD ANCESTRAL HOUSE OF ASSESSEE U/S 54F TO THE EXTENT OF RS. 23,00,000/-. 7. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT LD. I TO ERRED IN LAW BY NOT CONSIDERING THE SUBMISSIONS MADE AND EVIDENCES FILE D BY THE ASSESSEE AND PARTICULARLY IN TRUE PERSPECTIVE. 8. THAT THE LD.CIT(A) FAILED TO APPRECIATE THAT LD. IT O ERRED IN LAW BY NOT PROVIDING PROPER OPPORTUNITY OF HEARING TO THE ASSE SSEE AND PASS THE ASSESSMENT ORDER IN VIOLATION OF PRINCIPLE OF NATUR AL JUSTICE. 9. THAT THE OBSERVATION MADE BY THE LD. ITO AS WELL AS LD. CIT(A) ARE AGAINST THE FACTS OF THE CASE, INCORRECT AND CONTRA DICTORY BASED UPON MERELY ON SERMONS AND CONJECTURES WITHOUT ANY CONCR ETE EVIDENCES. 10. THE ORDER PASSED BY THE LD. CIT(A) IS AGAINST THE F ACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW. 11. THE LD. CIT(A) FAILED TO APPRECIATE THAT LD.ITO ISS UED NOTICE U/S 148 OF THE ACT WITHOUT APPLYING THE MIND AS ISSUANC E OF NOTICE WAS FROM NON JURISDICTIONAL AO I.E. 64(3). 12. THEREFORE, APPLICANT WITH UTMOST RESPECTFULLY PRAYE D TO DELETE THE ADDITION MADE BY THE LD. ITO OF RS. 23,24,808/- WHI CH WAS LATER ON SUSTAIN BY THE LD. CIT(A). 13. ASSESSEE CRAVES THE LEAVE TO ADD, AMEND, ALTER OR W ITHDRAW ANY GROUNDS OF APPEAL. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE N OT REPEATED HERE FOR THE SAKE OF BREVITY. 3. DURING THE HEARING, ASSESSEE, HAS STATED THAT AO HAS PASSED THE EXPARTE ORDER U/S. 144/147 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) AND SIMILARLY, THE LD. CIT(A) HAS ALSO UPHELD THE ACTION OF THE AO, WITHOUT GIVING SUFFI CIENT OPPORTUNITY TO THE ASSESSEE AND WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE. . HE REQUESTED THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF THE AO TO DECIDE TH E SAME AFRESH, UNDER THE LAW, AFTER GIVING ADEQUATE OPPORT UNITY OF BEING HEARD. ITA NOS. 4421/D/2018 A.Y. 2008-09 RANDHIR SINGH 3 4. LD. DR DID NOT RAISE ANY OBJECTION TO THE REQUES T OF THE ASSESSEE. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. I HAVE ALSO GONE THROUGH THE ORDER PASSED BY THE REVE NUE AUTHORITIES AS WELL AS THE CONTENTION RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. I FIND FORCE IN THE ARGUMEN TS OF THE ASSESSEE THAT AO HAS COMPLETED THE ASSESSMENT VIDE EXPARTE ORDER DATED 31.3.2016 U/S. 147/144 OF THE INCOME T AX ACT AND SIMILARLY, LD. CIT(A) ALSO UPHELD THE ACTION OF THE AO, WITHOUT CONSIDERING THE MATERIAL ON RECORD. THEREFO RE, IN THE INTEREST OF JUSTICE, THE ISSUES IN DISPUTE ARE SET ASIDE TO THE FILE OF THE AO FOR HEARING ON 19.12.2018 AT 10.000 AM WI TH THE DIRECTIONS TO DECIDE THE SAME AFRESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE ASSE SSING OFFICER ON 19.12.2018 AT 10 AM AND FILE ALL THE NECESSARY DOCUMENTS/EVIDENCES, IF ANY, TO SUBSTANTIATE HIS C ASE AND FULLY COOPERATE WITH THE AO IN THE PROCEEDINGS AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT. SINCE THE ORDER HAS B EEN PRONOUNCED, THERE IS NO NEED TO SEND THE NOTICE TO THE ASSESSEE FOR HEARING. ITA NOS. 4421/D/2018 A.Y. 2008-09 RANDHIR SINGH 4 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 19.11.2018 . SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 19/11/2018 KAVITA/SRBHATNAGAR COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI ITA NOS. 4421/D/2018 A.Y. 2008-09 RANDHIR SINGH 5