ITO, Haryana V. Sh. Vaibhav Choudhary, Fatehabad

ITA 4569/DEL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77812 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 18-12-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 27-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA SENIOR
• Keywords: Earning of tax free income; Additional evidence; Question of law; Revised return
• Section: 148; 28; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.4569/DEL./2012 (ASSESSMENT YEAR : 2007-08) ITO, WARD 2, VS. SHRI VAIBHAV CHOUDHARY, FATEHABAD. S/O SHRI VIJAY CHOUDHARY, NEAR RATIA TRI-CROSSING, G.T. ROAD, FATEHABAD. (PAN : AEKPC8527N) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GAUTAM JAIN, FCA REVENUE BY : SHRI SAMEER SHARMA, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT (APPEALS), ROHTAK DATED 28.06.2012 FOR THE ASSESSMENT YEAR 200 7-08. 2. THE ASSESSEES LAND WAS ACQUIRED BY HUDA, HISAR IN 2001 AND WAS PAID THE FOLLOWING SUMS :- (I) ENHANCED COMPENSATION RECEIVED BY ASSESSEE RS .30,44,905/- (II) INTEREST ON ENHANCED COMPENSATION RS.16,44,9 05/- TOTAL : RS.46,89,810/- ITA NO.4569/DEL./2012 2 ON THE BASIS OF INFORMATION FROM LAND ACQUISITION C OLLECTOR, HUDA, THE ASSESSING OFFICER HELD THAT ASSESSEE AND HIS BROTHE R SHRI NISHANT CHAUDHARY RECEIVED ENHANCED COMPENSATION OF RS.58,82,410/- PL US RS.2,07,410/-. IN OTHER WORDS, TOTAL SUM RECEIVED WAS RS.60,89,820/- AND HALF OF WHICH, I.E. RS.30,44,905/- WAS ASSESSED TO TAX AS INCOME OF THE ASSESSEE. APART FROM THE ABOVE, ASSESSEE AND HIS BROTHER, SHRI NISHANT CHAUD HARY WERE PAID RS.1,63,270/- ON 25.06.2006 AND RS.31,26,541/- ON 1 1.10.2006 TOTALING TO RS.32,89,811/- ON ACCOUNT OF INTEREST ON ENHANCED C OMPENSATION. THE ASSESSING OFFICER BROUGHT TO TAX HALF SHARE OF THE ASSESSEE AS INCOME, I.E. RS.16,44,905/-. THE CIT (A) HAS DELETED THE ADDITI ON IN A CONSOLIDATED ORDER DATED 28.06.2012, IN RESPECT OF THE ASSESSEE AND HI S BROTHER, SHRI NISHANT CHAUDHARY, FOLLOWING THE JUDGMENT OF HON'BLE SUPREM E COURT IN THE CASE OF CIT VS. GHANSHYAM (HUF) 315 ITR 1 (SC) AND HELD T HAT ENHANCED COMPENSATION RECEIVED IS EXEMPTED U/S 10 (37) OF TH E INCOME-TAX ACT, 1961. AGAINST WHICH THE REVENUE IS IN APPEAL BY TAKING TH E FOLLOWING GROUNDS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITIONS OF ` 30,44,905/- & ` 16,44,905/-MADE BY THE ASSESSING OFFICER ON ACCOUN T OF ENHANCED COMPENSATION AND INTEREST RECEIVED ON ENHA NCED COMPENSATION IGNORING THE FACT THAT THE ASSESSEE DI D NOT CLAIM EXEMPTION IN RESPECT OF THE SAID INCOME BY WAY OF F ILING RETURN IN REGULAR COURSE. EVEN THE RETURN OF INCOME FILED ON 14.11.2011 IN RESPONSE TO NOTICE U/S 148 DATED 18.0 3.2011, THE CLAIM FOR EXEMPTION IN RESPECT OF SAID INCOME IS NO T MADE. NO DETAILS OF THIS INCOME IS PROVIDED IN SCHEDULE E1 W HICH IS MEANT FOR GIVING PARTICULAR OF EXEMPT INCOME (INCOM E NOT TO BE INCLUDED IN TOTAL INCOME) (ATTACHED ANNEXURE). ITA NO.4569/DEL./2012 3 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN ALLOWING CLAIM OF THE ASSESSEE U/S 10(37) IGNORING THE JUDGEMENT OF THE HON'BLE SUPREME COURT DELIVERED IN THE CASE OF GOETZE (INDIA) LTD VS CIT (2006) 284 ITR 0323 WHERE IT HAS BEEN HELD THAT NO FRESH CLAIM CAN BE MADE DURING THE ASSESSMENT PROCEEDINGS OTHERWISE BY WAY OF A REVISED RETURN OF INCOME. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN ENTERTAINING THE ADDITIONAL EVI DENCE UNDER RULE 46A OF THE LT. RULES,1962 WITHOUT PASSING A SP EAKING ORDER IGNORING THE FACT THAT THE AO ALLOWED SUFFICI ENT OPPORTUNITIES TO THE ASSESSEE TO FILE THE SAME DURI NG ASSESSMENT PROCEEDINGS. 4. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED O FF. 3. AT THE OUTSET OF THE HEARING, THE LD. AR SUBMITT ED THAT THERE WAS A COMMON ORDER OF CIT (A), ROHTAK IN THE NAME OF ASSE SSEE AND HIS BROTHER, SHRI NISHANT CHAUDHARY. THE MATTER HAS TRAVELED TO THE ITAT IN THE CASE OF HIS BROTHER AND THE REVENUES APPEAL IN THE CASE OF HIS BROTHER IS DISMISSED. A COPY OF THE ORDER IS PLACED AT PAGES 32 TO 44 OF TH E PAPER BOOK. THE LD. AR ALSO SUBMITTED THAT THE GROUNDS OF APPEAL RAISED WE RE SAME IN THAT APPEAL ALSO. IT WAS FURTHER SUBMITTED THAT ADDITIONAL EVIDENCES ADMITTED BY THE CIT (A) IN THE SHAPE OF ORIGINAL KHASRA GIRDAWARI FROM 03.10.1 994 TO 16.10.2003 AS A PROOF OF CULTIVATION OF LAND AND LETTER OF LAND ACQ UISITION OFFICER, HUDA FURNISHING THE COMPLETE DETAILS OF ENHANCED COMPENS ATION GIVEN TO THE ITA NO.4569/DEL./2012 4 ASSESSEE AND THE ORDER OF DISTRICT COURT. THESE AD DITIONAL EVIDENCES WERE DULY ADMITTED BY THE CIT (A) BY OBSERVING AS UNDER :- 'HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF TH E CASE AND IN VIEW OF THE ADDITIONAL EVIDENCE BEING NECESSARY FOR JUST DECISION OF THE MATTER, THE ADDITIONAL EVIDENCE HAS BEEN ADMITTED IN TERMS OF RULE 46A OF IT RULES. THE ADDI TIONAL EVIDENCE ALONG WITH THE WRITTEN SUBMISSIONS OF THE ASSESSEE HAVE BEEN FORWARDED TO THE AO FOR ENQUIRY AND REPOR T. THE REMAND REPORT OF THE AO DATED 4.5.2012 HAS BEEN TAK EN ON RECORD.' HE SUBMITTED THAT FIRSTLY, HE RELIED ON THE DECISIO N OF ITAT IN HIS BROTHERS CASE, SHRI NISHANT CHAUDHARY WHERE IDENTICAL GROUND S WAS HELD NOT MAINTAINABLE. APART FROM THIS, HE ALSO RELIED ON T HE FOLLOWING PRONOUNCEMENTS :- I) 332 ITR 396 (DEL) CIT VS. VIRGIN SECURITIES & C REDITS (P) LTD. 'IT WAS ONLY AFTER CONSIDERING THE REMAND REPORT TH E COMMISSIONER (APPEALS) HAD ADMITTED THE ADDITIONAL EVIDENCE. IT COULD NOT BE DISPUTED THAT THIS ADDITI ONAL EVIDENCE WAS CRUCIAL TO THE DISPOSAL OF THE APPEAL AND HAD A DIRECT BEARING ON THE QUANTUM OF CLAIM MADE B Y THE ASSESSEE. THE PLEA OF THE ASSESSEE WHICH WAS TA KEN BEFORE THE ASSESSING OFFICER REMAINED THE SAME. THE ASSESSING OFFICER HAD TAKEN ADVERSE NOTE BECAUSE OF NON-PRODUCTION OF CERTAIN DOCUMENTS TO SUPPORT THE PLEA AND IT WAS IN THESE CIRCUMSTANCES, THE ADDITIONAL EVIDENCE WAS SUBMITTED BEFORE THE COMMISSIONER (APPEALS). IT COULD NOT BE SAID NOR WAS IT THE CASE OF THE REVENUE THAT ADDITIONAL EVIDENCE WAS NOT PERMISSIBL E AT ALL BEFORE THE FIRST APPELLATE AUTHORITY. ON THE CO NTRARY, RULE 46A OF THE INCOME TAX RULES PERMITS THE COMMISSIONER (APPEALS) TO ADMIT ADDITIONAL EVIDENCE IF ITA NO.4569/DEL./2012 5 HE FINDS THAT THE SAME IS CRUCIAL FOR DISPOSAL OF T HE APPEAL. IN THE FACTS OF THE INSTANT CASE, THEREFORE , NO SUBSTANTIAL QUESTION OF LAW AROSE. [EMPHASIS SUPPLI ED] II) 197 TAXATION 250 (DEL) CIT VS. DLF UNIVERSAL L TD. '9. LEARNED COUNSEL FOR THE REVENUE SUBMITS THAT TH E ASSESSING OFFICER WOULD HAVE LIKED TO CROSS EXAMINE THE CONCERNED PARTIES BUT WAS NOT GIVEN ANY OPPORTUNITY OF DOING SO. WE FIND THAT IN THE GROUNDS OF APPEALS TH AT HAVE BEEN URGED, NO SUCH GRIEVANCE HAS BEEN MADE. I N FACT, ON A READING OF THE GROUNDS OF APPEAL, NO GRI EVANCE APPEARS TO HAVE BEEN MADE ABOUT A LACK OF ANY OPPORTUNITY BEING GRANTED TO THE REVENUE BY THE CIT (A), EVEN BEFORE US, IT HAS NOT. BEEN DEMONSTRATED AS TO HOW THE REVENUE HAS BEEN PREJUDICED, PARTICULARLY WHEN THE AO WAS PROVIDED WITH THE ADDITIONAL EVIDENCE AND HI S COMMENTS CALLED FOR.' III) 212 TAXATION 46 (MP) DALJEET KAUR VS. ITO 'IN OUR CONSIDERED OPINION THE DOCUMENTS WHICH ARE SOUGHT TO BE INTRODUCED GOES TO THE VERY ROOT OF TH E MATTER AND THE TRIBUNAL WOULD HAVE BEEN WELL ADVISE D TO ADOPT A REASONABLE APPROACH AND NOT THE HYPER TECHN ICAL. IN VIEW OF THE AFORESAID, THE MATTER IS REMANDED TO THE TRIBUNAL WITH A DIRECTION THAT IT SHALL CONSIDER TH E DOCUMENTS AND ADDRESS TO THE MERITS OF THE CASE AND SHALL NOT THROW THE DOCUMENTS OVERBOARD ON THE GROUND THA T THEY WERE NOT PRODUCED BEFORE THE ASSESSING OFFICER .' IV) 293 ITR 53 (BORN) SURETECH HOSPITAL AND RESEAR CH CENTRE LTD '8. THE FIRST CONTENTION OF THE REVENUE IS THAT THE TRIBUNAL WAS NOT JUSTIFIED IN INVOKING RULE 46A(4) OF THE INCOME-TAX RULES AND ALLOWING ADDITIONAL EVIDENCE T O BE PRODUCED BEFORE CIT(A) FOR THE FIRST TIME. IT IS CONTENDED THAT THE MERE FACT THAT THE EVIDENCE SOUG HT TO BE PRODUCED IS VITAL AND IMPORTANT, DOES NOT PROVID E SUBSTANTIAL CAUSE TO ALLOW ITS ADMISSION AT THE APP ELLATE STAGE WHEN THE EVIDENCE WAS AVAILABLE TO THE ASSESS EE AT ITA NO.4569/DEL./2012 6 THE INITIAL STAGE AND WAS NOT PRODUCED BY HIM. IN O UR OPINION, THERE IS NO MERIT IN THIS CONTENTION BECAU SE RULE 46A(4) PROVIDES THAT NOTWITHSTANDING RULE 46A(1), T HE APPELLATE AUTHORITY CAN PERMIT PRODUCTION OF DOCUME NTS WHICH ENABLE HIM TO DISPOSE OF THE APPEAL. IN THE F ACTS OF THE CASE, THE FINDING GIVEN BY THE TRIBUNAL IS THAT THE DOCUMENTS PRODUCED WERE NECESSARY FOR DISPOSAL OF T HE APPEAL ON MERITS AND NO QUESTION OF LAW ARISES FROM SUCH FINDING OF FACT RECORDED BY THE TRIBUNAL.' V) 26 ITD 236 (DEL) ELECTRA JAIPUR (P) LTD. VS. IAC 'IT IS INCORRECT TO SHUT OUT AN ASSESSEE IN THE PRO CESS OF ADMINISTRATION OF JUSTICE FROM LOADING EVIDENCE TO PROVE ITS CASE.' VI) 231 ITR 1 (BOM) SMT. PRABHAVATI S. SHAH VS. CI T VII) 63 ITD I(PAT) TM IN THE CASE OF DWARIKA PRASAD VS. ITO 'IF THE APPELLANT AUTHORITY COMES ACROSS A CRUCIAL DOCUMENT TO ESTABLISH THE TRUTH OF THE FACTS, IT WO ULD NOT BE IN THE INTERESTS OF JUSTICE TO DENY ADMISSION OF SUCH CRUCIAL EVIDENCE INTO THE RECORDS BY SIMPLY STATING THAT IT WAS NOT PRODUCED BEFORE THE AO BUT IT WAS PRODUCED AT A LATER STAGE.' HE FURTHER SUBMITTED THAT IT WAS NOT DENIED BY THE REVENUE THAT THE INTEREST RECEIVED BY THE APPELLANT WAS U/S 28 OF THE LAND AC QUISITION ACT, 1894 AND IN VIEW OF THE DECISION OF HON'BLE APEX COURT IN THE C ASE OF CIT VS. GHANSHYAM (HUF), SUCH INTEREST IS PART OF THE ENHANCED COMPEN SATION. HE FURTHER SUBMITTED HAT ENHANCED COMPENSATION RECEIVED IS EXE MPTED U/S 10(37) OF THE ACT AND HE PLEADED TO DISMISS THE REVENUES APPEAL. ITA NO.4569/DEL./2012 7 4. WE HAVE HEARD BOTH THE SIDES. IT IS A FACT THAT THE CIT (A)S ORDER WAS COMMON IN THE CASE OF ASSESSEE AND HIS BROTHER, SHR I NISHANT CHAUDHARY AND IN NISHANT CHAUDHARYS CASE, THE MATTER WAS TRAVELE D UP TO ITAT WHEREIN THE REVENUES APPEAL HAS BEEN DISMISSED. THEREFORE, RE SPECTFULLY FOLLOWING THE DECISION OF ITAT, WE DISMISS THIS APPEAL OF THE REV ENUE ALSO. 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 25 TH DAY OF JULY, 2014. SD/- SD/- (U.B.S. BEDI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 25 TH DAY OF JULY, 2014. TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), ROHTAK. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.