SHRI LAL CHAND TIWARI, JAIPUR V. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-6, JAIPUR

ITA 460/JPR/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8174 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 03-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA
• Keywords: Principle of natural justice; Additional evidence; Fair market value; Set aside

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S A, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 460/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2015-16. SHRI LAL CHAND TIWARI, 101, NAND COLONY, OPP. CHOUDHARY PETROL PUMP, SANGANER, JAIPUR. CUKE VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-6 JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADIPT 8385 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHIVANGI SAMDHANI (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI ASHOK KHANNA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 15.07.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 17/07/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 19.11.2018 OF LD. CIT (A), AJMER FOR THE ASSESSMENT YEAR 2015-16. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) HAS ERRED IN PASSING THE APPELLATE ORDER EX-PAR TE. THE ACTION OF THE LD. CIT (A) IS ILLEGAL, UNJUSTIFIED, ARBITRA RY AND AGAINST THE FACTS OF THE CASE. APPROPRIATE RELIEF MAY PLEASE B E GRANTED. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. A O, IN MAKING AN ADDITION OF RS. 61,98,985/- U/S 56(2)(VII) OF TH E INCOME TAX ACT, 1961. THE ACTION OF THE LD. CIT (A) IS ILLEGAL , UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY DELETING THE ADDITION OF RS. 61,98,985/- . 2 ITA NO. 460/JP/2019 SHRI LAL CHAND TIWARI, JAIPUR. 2 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT (A) HAS ERRED NOT REFERRING THE MATTE TO DVO HIMSEL F BEFORE CONFIRMING THE ADDITION MADE BY LD. AO AND ALSO ERR ED IN CONFIRMING THE ACTION OF THE LD. AO OF MAKING ADDIT ION U/S 56(2)(VII) OF THE IT ACT, 1961, WITHOUT REFERRING T HE MATTER TO THE DVO. THE ACTION OF THE LD. CIT (A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY REFERRING THE MATTER TO DVO FOR COMPUTAT ION OF FAIR MARKET VALUE. 4. THE ASSESSEE CRAVES HIS RIGHTS TO ADD, AMEND OR ALTER ANY OF THE GROUNDS ON OR BEFORE THE HEARING. 2. THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETU RN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 08.08.2015 DECLARING TOTAL INCOME OF RS. 1,78,53,630/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTED THAT THE ASSESSEE HAS PURCHASED SOME LANDS DURING THE YEAR UNDER CONSIDERATION AND CONSIDERATION SHOWN BY THE ASSESSES AND AS VALUED BY THE STAMP VALUATION AUTHO RITY WAS DIFFERENT. ACCORDINGLY, THE AO MADE THE ADDITION UNDER SECTION 56(2)(VII) O F THE IT ACT TOWARDS THE DIFFERENCE OF THE CONSIDERATION DECLARED BY THE ASS ESSEE AND THE CONSIDERATION VALUED BY THE STAMP VALUATION AUTHORITY. THE ASSES SEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (A). HOWEVER, SINCE NOBODY H AS APPEARED BEFORE THE LD. CIT (A), THEREFORE, THE APPEAL OF THE ASSESSEE WAS DISM ISSED EX PARTE WHILE PASSING A SUMMARY IMPUGNED ORDER. 3. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT THE ASSESSEE OBJECTED THE ADOPTION OF STAMP DUTY VALUATION BEFOR E THE AO AND ALSO REQUESTED FOR REFERRING THE MATTER TO THE DVO FOR DETERMINATION O F FAIR MARKET VALUE OF THE IMMOVABLE PROPERTY IN QUESTION. HOWEVER, NEITHER T HE AO NOR THE LD. CIT (A) HAS REFERRED THE MATTER TO THE DVO. THE LD. A/R HAS FU RTHER SUBMITTED THAT THE LD. CIT (A) ALSO NOT GIVEN A PROPER EFFECTIVE OPPORTUNITY O F HEARING TO THE ASSESSEE. THUS 3 ITA NO. 460/JP/2019 SHRI LAL CHAND TIWARI, JAIPUR. 3 THE LD. A/R HAS SUBMITTED THAT THE ASSESSEE HAS NOW FILED ADDITIONAL EVIDENCE IN SUPPORT OF THE CLAIM THAT THE FAIR MARKET VALUE OF THE LAND IN QUESTION IS LESS THAN THE STAMP VALUATION AS PER THE DLC RATES. SINCE TH E IMPUGNED ORDER WAS PASSED EX PARTE, THEREFORE, THE ASSESSEE COULD NOT PRODUCE TH ESE EVIDENCES BEFORE THE LD. CIT (A), HENCE THE LD. A/R HAS PLEADED THAT THE ADDITIO NAL EVIDENCE PRODUCED BY THE ASSESSEE MAY BE CONSIDERED FOR THE PURPOSES OF DETE RMINATION OF FAIR MARKET VALUE OF THE LAND IN QUESTION. IT IS, THEREFORE, PRAYED THAT THE MATTER MAY BE SET ASIDE TO THE RECORD OF THE AO/DVO FOR DETERMINATION OF FAIR MARKET VALUE. 4. ON THE OTHER HAND, THE LD. D/R HAS OBJECTED TO T HE CONTENTION OF THE ASSESSEE AND SUBMITTED THAT THE LD. CIT (A) HAS STATED IN TH E IMPUGNED ORDER THAT DESPITE THE APPEAL WAS FIXED FOR HEARING ON 17.10.2018 AND 19.1 1.2018, NO ONE HAS ATTENDED ON BEHALF OF THE ASSESSEE, THEREFORE, THE APPEAL WAS D ECIDED EX PARTE. 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD, AT THE OUTSET WE NOTE THAT THE ASSESSEE FIL ED THE APPEAL BEFORE THE LD. CIT (A)-2, JAIPUR WHICH WAS SUBSEQUENTLY TRANSFERRED TO LD. CIT (A), AJMER. THOUGH THE LD. CIT (A) HAS STATED IN PARA 3 OF THE IMPUGNED OR DER THAT THE APPEAL WAS FIXED FOR HEARING ON 17.10.2018 AND 19.11.2018, HOWEVER, THER E IS NO MENTION ABOUT THE SERVICE OF NOTICE, IF ANY, ISSUED BY THE LD. CIT (A ) FOR THE ABOVE SAID DATES OF HEARING OF THE APPEAL. THUS THE EX PARTE ORDER PASSED BY T HE LD. CIT (A) WITHOUT DISCUSSING THE ISSUE ON MERITS AND WITHOUT HEARING THE ASSESSE E IS CLEARLY IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. FURTHER, WE NOTE TH AT THE ASSESSEE RAISED THE ISSUE OF FAIR MARKET VALUE OF THE LAND IN QUESTION AND ALSO SOUGHT THE MATTER TO BE REFERRED TO THE DVO FOR DETERMINATION OF FAIR MARKET VALUE. IN SUPPORT OF THE CLAIM, THE ASSESSEE HAS NOW FILED THE ADDITIONAL EVIDENCE RAIS ING THE GRIEVANCE BEFORE THE 4 ITA NO. 460/JP/2019 SHRI LAL CHAND TIWARI, JAIPUR. 4 GOVERNMENT UNDER JANSUNWAI SAMPARK SAMADHAN. THE A SSESSEE HAS SPECIFICALLY POINTED OUT THAT THE LAND IN QUESTION ARE UNCULTIVA TED AND HAVING NO APPROACH. SINCE THE ASSESSEE HAS RAISED THE OBJECTION AGAINST THE ADOPTION OF DLC/STAMP DUTY VALUATION FOR THE PURPOSE OF SECTION 56(2)(VII) OF THE ACT, THEREFORE, THE ISSUE OF DETERMINATION OF FAIR MARKET VALUE IS REQUIRED TO B E REFERRED TO THE DVO. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THE MATTER TO THE RECORD OF THE AO FOR REFERRING THE MATTER TO TH E DVO FOR DETERMINATION OF THE FAIR MARKET VALUE AFTER CONSIDERING THE OBJECTIONS RAISE D BY THE ASSESSEE AS WELL AS THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 17/07/20 19. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 17/07/2019. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI LAL CHAND TIWARI, JAIPUR. 2. THE RESPONDENT THE DCIT CIRCLE 6, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 460/JP/2019) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 5 ITA NO. 460/JP/2019 SHRI LAL CHAND TIWARI, JAIPUR. 5