M/s. Kabul Singh AOP, Abohar V. The Asstt. Commissioner of Income-tax, Bathinda

ITA 465/ASR/2013

• Counselvise Citation: 46520914 RSA 2013
• Duration Of Justice: 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 31-03-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 24-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3); 142(1); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 448(ASR)/2013 ASSESSMENT YEAR: 2004-05 PAN: AWJPS5665C THE ASSISTANT COMMISSIONER VS. SH. KABUL SINGH, KOTHI OF INCOME TAX, CIRCLE-II, FAIZ, ABOHAR BATHINDA (APPELLANT) (RESPONDENT) AND I.T.A. NO. 465(ASR)/2013 ASSESSMENT YEAR: 2004-05 PAN: AWJPS5665C M/S. KABUL SINGH AOP, KOTHI VS. THE ASSISTAN T COMMISSIONER FAIZ, ABOHAR OF INCOME TAX, CIRCLE-II, BATHINDA (APPELLANT) (RESPONDENT) ASSESSEE BY: NONE DEPARTMENT BY: SH. TARSEM LAL, DR DATE OF HEARING: 31.03.2014 DATE OF PRONOUNCEMENT: 31.03.2014 ORDER PER BENCH 1) THE REVENUE HAS FILED THE APPEAL I.E. I.T.A. NO. 448(ASR)/2013 AGAINST THE IMPUGNED ORDER DATED 14.03.2013 PASSED BY LEARNED CIT(A), BATHINDA, FOR THE ASSESSMENT YEAR 2004-05, ON THE FOLLOWING GROUNDS: I. THAT CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS IN Q UASHING THE ORDER PASSED U/S 154 BY THE A.O. DATED 12.02.2007, WITHOUT APPRECIATING THE FACT THAT NO MATERIAL CHANGE WAS M ADE TO THE ORDER SOUGHT TO BE RECTIFIED, OTHER THAN A MERE CHANGE I N THE STATUS AND TREATING THE SAME ORDER TO BE ON A PROTECTIVE BASIS , AND THAT THERE WAS NO DEBATABLE ISSUE INVOLVED. 2 I.T.A. NOS. 448 & 465(ASR)/2013 II. THE CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS IN QU ASHING THE ORDER PASSED U/S 143(3)/147 DATED 31.12.2008 WITHOU T APPRECIATING THAT IT WAS NOT A CASE OF SECOND THOUGHT IN VIEW OF THE FACT THAT SH. KABUL SINGH WAS NEVER ASSESSED TO TAX EARLIER IF TH E ORDER U/S 154 REFERRED TO ABOVE WERE ALLOWED TO SURVIVE. III. THE CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS IN AC CEPTING THE ASSESSEES PLEA FOR ADOPTION OF A CIRCLE RATE HIGHE R THAN THE EXTANT MARKET RATES AS WAS EVIDENT FROM THE PURCHASE OF A PIECE OF LAND BY THE ASSESSEE IN THE RELEVANT YEAR AT A RATE WHIC H ESTABLISHED THE FACT THAT THE MARKET RATE WAS RS. 1875/- PER MARLA OR 37,500/- PER KANAL, AS ADOPTED BY THE A.O., AS THERE WAS NO NEED FOR FALLING BACK UPON THE REVENUE RECORD RATES, WHEN MARKET RAT ES WERE CLEARLY AVAILABLE. IV. THE APPELLANT CRAVES LIBERTY TO ADD OR AMEND ANY GR OUND OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED OFF. 2) SIMILARLY, THE ASSESSEE HAS ALSO FILED THE CROSS APPEAL I.E. I.T.A. NO. 465(ASR)/2013 AGAINST THE IMPUGNED ORDER DATED 14.03.2013 PASSED BY LEARNED CIT(A), BATHINDA, ON THE FOLLOWING GROUN DS: 1. A) THAT THE WORTHY COMMISSIONER OF INCOME TAX ( APPEALS), BATHINDA HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN FRAMING THE ASSESSMENT UNDER THE STATUS OF AOP AGAINST THE INDIVIDUAL STATUS CLAIMED BY THE ASSESS EE. (B) THAT THE WORTHY CIT(A) HAS IGNORED THE FACT THAT THE NOTICE U/S 142(1) WAS ISSUED IN THE STATUS OF INDIVIDUAL AND T HE RETURN WAS ALSO FILED IN THE SAME STATUS AND SINCE THERE WAS N O NOTICE U/S 142(1) OR 143(2) IN THE STATUS OF AOP, THEREFORE, T HE FRAMING OF ASSESSMENT UNDER THE STATUS OF AOP AS CONFIRMED BY THE CIT(A) IS VOID AB-INITIO. 2. NOTWITHSTANDING THE ABOVE SAID GROUND OF APPEAL , THE WORTHY CIT(A) HAS ERRED IN ADOPTING THE VALUE OF OPENING S TOCK AT RS. 2200/- PER MARLA I.E. RS. 53,24,000/- AGAINST THE O PENING STOCK @ RS. 8520/- PER MARLA AT RS. 2,06,18,400/- AS ADOP TED BY THE ASSESSEE. 3. THAT THE WORTHY CIT(A) HAS ERRED IN TAKING THE D EVELOPMENT EXPENDITURE AT RS. 60 LACS IN ONE SINGLE YEAR I.E. IN ASSTT. YEAR 2004-05 AGAINST RS. 30 LACS EACH TO BE TAKEN IN ASS TT. YEAR 2003-04 AND 2004-05. 3 I.T.A. NOS. 448 & 465(ASR)/2013 4. THAT NO RELIANCE SHOULD HAVE BEEN PLACED ON THE REPORT OF THE INSPECTOR FOR VALUATION OF THE DEVELOPMENT COST OF THE COLONY SINCE HE IS NOT A TECHNICAL PERSON. 5. NOTWITHSTANDING THE ABOVE SAID GROUND OF APPEAL, THOUGH, THE CIT(A) HAS ACCEPTED THE EXPENDITURE AT RS. 69 LACS AS DEVELOPMENT EXPENDITURE AS TAKEN BY THE ASSESSING O FFICER, HE SHOULD HAVE CONSIDERED THE SAME WHILE ARRIVING AT T HE PROFITABILITY OF THE APPELLANT, WHILE COMPUTING THE TOTAL INCOME. 6. THAT THE CIT(A) HAS FAILED TO CONSIDER THAT SUFF ICIENT FUNDS WERE AVAILABLE WITH THE ASSESSEE OUT OF SALE PROCEE DS AND OTHER RESERVES FOR INVESTMENT IN THE DEVELOPMENT OF THE C OLONY. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOS ED OFF. 3) WE HAVE HEARD LEARNED DR AND PERUSED THE RELEVAN T RECORDS AVAILABLE WITH US, ESPECIALLY THE IMPUGNED ORDER DA TED 14.03.2013 PASSED BY LEARNED CIT(A), BATHINDA, AND WE FOUND THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS PASSED A CONSOLIDATED IMPUG NED ORDER AGAINST THE ORDER UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1 961 DATED 29.12.2006 IN THE STATUS OF AOP (BEARING APPEAL NO. 176-IT/0 6-07), ORDER UNDER SECTION 154 DATED 12.02.2007 (BEARING APPEAL NO. 21 4-IT/06-07); AND ORDER UNDER SECTION 143(3)/147 DATED 31.12.2008 IN THE STATUS OF AOP (BEARING APPEAL NO. 207-IT/2008-09) PASSED BY THE D Y./ ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-II, BATHINDA. HE RE WE FOUND THE ASSESSEE HAS FILED THREE APPEALS AGAINST EACH ORDER S PASSED BY THE ASSESSING OFFICER BEFORE THE LEARNED FIRST APPELLAT E AUTHORITY BUT BEFORE THIS BENCH, THE REVENUE AS WELL AS THE ASSESSEE HAS FILED ONLY ONE APPEAL EACH AGAINST THREE ORDERS PASSED BY THE LEARNED CIT (A). IN OUR 4 I.T.A. NOS. 448 & 465(ASR)/2013 CONSIDERED VIEW, THE REVENUE AS WELL AS THE ASSESSE E SHOULD HAVE FILED THREE APPEALS, IF THEY ARE AGGRIEVED BY THE IMPUGNE D ORDER DATED 14.03.2013. BUT THEY HAVE FILED ONLY ONE APPEAL EAC H, WHICH IS NOT PERMISSIBLE UNDER THE LAW. HENCE, THE PRESENT APPEA LS ARE NOT MAINTAINABLE THEREFORE, BOTH THE AFORESAID APPEALS FILED BY THE REVENUE AS WELL AS THE ASSESSEE ARE DISMISSED IN LIMINE WITH T HE LIBERTY TO THE PARTIES, IF SO ADVISED, THEY MAY FILE THREE APPEALS AGAINST THE IMPUGNED ORDER DATED 14.03.2013 WITHIN TIME AND THE SAME WILL BE D ECIDED UNDER THE LAW. 4) IN THE RESULT, THE APPEALS FILED BY THE REVENUE AS WELL AS THE ASSESSEE ARE DISMISSED IN LIMINE, AS INDICATED ABOV E. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MARCH, 2014 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31 ST MARCH, 2014 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S. KABUL SINGH AOP, KOTHI FAIZ, AB OHAR 2. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-I I, BATHINDA 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.