Mr. Dharam Pal Singh, Noida V. ITO, Noida

ITA 4545/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6450 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 02-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 26-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Keywords: Sale consideration of property below Jantri Value; Business income; Opportunity of being heard; Cost of acquisition
• Section: 50C

Judgement Text

I.T.A .NO.-4545/DEL/2016 DHARAM PAL SINGH VS ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-4545/DEL/2016 (ASSESSMENT YEAR-2008-09) DHARAM PAL SINGH, C/O-M/S P. CHAUHAN & COMPANY, 1120, 11 TH FLOOR, TOWER-A, THE I-THUM, PLOT NO.A-40, SECTOR-62, NOIDA-201301. PAN-AVAPS7885A ( APPELLANT) VS ITO, WARD-1(3), NOIDA. (RESPONDENT) ASSESSEE BY SH.GIRISH GUPTA, CA REVENUE BY SH.F.R.MEENA, SR.DR DATE OF HEARING 03 . 11 .2016 DATE OF PRONOUNCEMENT 29 .1 2 .2016 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 15.06.2016 OF CIT(A)-1, NOIDA PERTAININ G TO 2008-08 AY ON THE FOLLOWING GROUNDS:- 1. THE ACTION OF THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS)-I, NOIDA IN PASSING THE ORDER UNDER SECTION 250 OF THE INCOME T AX ACT, 1961, AGAINST THE ASSESSEE IS UNJUST, AND DESERVES TO BE QUASHED. 2. THAT HIS ACTION IN HOLDING THAT THE SHARE OF THE ASSESSEE IN TOTAL SALES CONSIDERATIONS OF THE LEASE RIGHTS ALLOTTED IN THE LAND TO BE DETERMINED ON THE BASIS OF PROVISIONS OF THE SECTION 50C OF THE IT. A CT, 1961, IS WRONG AND NOT AS PER THE PROVISIONS OF THE INCOME TAX ACT, 1961 AND THUS THE ADDITIONS NEED TO BE DELETED. 3. THAT HIS ACTION IN NOT ADJUDICATING, ON THE ISSUE OF COST OF ACQUISITION OF THE LAND SOLD BY THE ASSESSEE, IN THE APPEALS FILED BY THE ASSESSEE IS WRONG AND THUS CONSIDERING THE FACTS OF THE CASE, IT NEEDS TO BE D ECIDED AND RELIEF GRANTED TO THE ASSESSEE. 4. APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR MODIFY AND/OR WITHDRAW GROUNDS OF APPEAL UP TO THE DATE OF HEARING OF THE APPEAL. 2. THE APPEAL HAD CAME UP FOR HEARING ON 02.11.2016 ON WHICH DATE, TIME WAS SOUGHT BY THE PARTIES ACCORDINGLY THE APPEAL CAME UP FOR HEAR ING ON 03.11.2016. BOTH THE PARTIES HAVE BEEN HEARD. THE RELEVANT FACTS OF THE CASE ARE THA T THE ASSESSEE ALONGWITH CO-OWNERS WAS FOUND TO HAVE SOLD AS PER AIR INFORMATION, THE FOLL OWING SPECIFIC PROPERTIES I.E. M-16; M-40; M-41 AND M-95 IN SEC.-66, NOIDA. THE ASSESSEE WAS R EQUIRED TO FURNISH COMPUTATION OF PAGE 2 OF 3 I.T.A .NO.-4545/DEL/2016 DHARAM PAL SINGH VS ITO CAPITAL GAIN ON THE AFORESAID PROPERTIES. THE EXPL ANATION OFFERED IN REGARD TO THE COST OF ACQUISITION WAS NOT ACCEPTED AND ADDITION OF RS.12, 77,416/- AS SHORT-TERM CAPITAL GAIN WAS MADE IN THE HANDS OF THE ASSESSEE. THE ISSUE WAS C HALLENGED IN APPEAL BEFORE THE CIT(A) WHERE THE ASSESSEE PARTIALLY SUCCEEDED AS THE CIT(A ) HELD THAT THE SHARE OF THE ASSESSEE IS 1/40 OF THE GROSS AMOUNT. HOWEVER, THE PROVISIONS OF SECTION 50C WERE HELD TO BE APPLICABLE AND ON THE COST OF ACQUISITION CHALLENGED BY WAY OF GROUND NO.5 BEFORE THE COMMISSIONER(APPEALS) THE ISSUE REMAINED UNDECIDED. IN THE LIGHT OF THE AFORE-MENTIONED FACTS, CONSIDERING THE SUBMISSIONS OF THE LD.AR AND THE LD.SR.DR, IT IS DEEMED APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER WITH THE DIRECTION TO THE CIT(A) TO ADJUDICATE THE ISSUE OF COST OF ACQUISITION RAISED BY THE ASSESSEE BEFORE THE SAID AUTHORITY ON THE BASIS OF FACTS AND EVIDENCE FOR WHICH IF NEED BE THE ASSESSEE BE PERM ITTED TO FILE FRESH EVIDENCES. THE VIEW TAKEN IN REGARD TO THE SAME PROPERTY IN THE CASE OF THE CO-OWNERS WAS ALSO NOT KNOWN TO THE PARTIES THUS THE PARTIES REQUESTED THAT EVEN THOUGH THE ISSUE RAISED QUESTIONING THE APPLICABILITY OF SECTION 50C HAS BEEN DECIDED BY TH E CIT(A) IN A CURSORY MANNER HOWEVER FACTS IN REFERENCE THERETO QUA THE CO-OWNERS HAVE N OT BEEN REFERRED TO OR DISCUSSED. THIS ISSUE TOO IT WAS REQUESTED MAY ALSO BE SET ASIDE B ACK TO THE CIT(A) WITH THE DIRECTION TO DECIDE THE SAME BY WAY OF A SPEAKING ORDER. CONSID ERING THE FINDING, IT IS SEEN THAT THE SUBMISSIONS OF THE PARTIES ARE FOUND TO BE CORRECT. ACCORDINGLY, THE ISSUE ARE SET ASIDE BACK TO THE FILE OF THE CIT(A) TO DECIDE THEN A FRESH IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 29 TH OF DECEMBER, 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* PAGE 3 OF 3 I.T.A .NO.-4545/DEL/2016 DHARAM PAL SINGH VS ITO COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI