DHARMENDRA PANDEY, Jaipur V. ACIT, Alwar

ITA 471/JPR/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2055 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 23-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA CIT DHK
• Assessee Lawyers: S L PODDAR
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value
• Section: 80C; 50C; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA- @ ITA NO. 471 & 472/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2005-06 & 06-07. SHRI DHARMENDRA PANDEY, PROP. M/S. ART AVENUE, 1996, A-1, KHEJRON KA RASTA, CHANDPOLE BAZAR, JAIPUR. CUKE VS. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ADDPP 3452 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR (ADVOCATE ) JKTLO DH VKSJ LS@ REVENUE BY : SHRI VARINDER MEHTA (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 15.09.2017. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 18/09/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, J.M. THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF LD. CIT (A), ALWAR DATED 01.05.2014 PERTAINING TO ASSES SMENT YEARS 2005-06 & 06-07. WE FIRST TAKE UP ASSESSEES APPEAL FOR THE ASSESSME NT YEAR 2005-06. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER/LEARNED CIT (A) U/S 144/153A IS VOID-AB-INITIO. 2 ITA NOS. 471 & 472/JP/2014. SHRI DHARMENDRA PANDEY, JAIPUR. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN SUSTAINED THE DISALLOWANCE OF RS. 72,635/- ON ACCOUNT OF TRADING EXPENSES. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN SUSTAINED THE DISALLOWANCE OF RS. 92,919/- ON ACCOUNT OF EXPENSES CLAIMED BY THE ASSESSEE IN PROFIT & LOS S ACCOUNTS @ 10% OF TOTAL EXPENSES CLAIMED. 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 12, 25,443/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTY ON THE BASIS OF COMPUTATION OF INCOME. 5. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 1,5 1,221/- OUT OF RS. 2,55,707/- MADE BY THE LEARNED ASSESSING OFFICER ON ACCOUNT OF UNSECURED LOAN AND SUNDRY CREDITORS APPEARING IN BA LANCE SHEET OF THE ASSESSEE U/S 68 OF THE INCOME TAX ACT, 1961. 6. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN NOT ALLOWING REBATE U/S 88 OF RS. 7235/- OF INCOME TAX ACT, 1961 CLAIMED BY THE ASSESSEE. 7. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD, AMEN D OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF H EARING. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT GROUND NO. 1 RAISES AN ISSUE OF LEGALITY OF THE ORDER PASSED BY THE AO UNDER SECTION 153 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT). FURTHER, THE LD. COUNSEL SUBMITTED THAT IN FACT NO SEARCH WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE AND THE ASSESSMENT HAS NOT BEEN FRAMED ON THE BASIS OF THE SEARCH MATERIAL. 2.1. ON THE CONTRARY, THE LD. D/R OPPOSED THE SUBMI SSIONS AND POINTED OUT THAT SIMILAR GROUND WAS RAISED AS GROUND NO. 1 BEFORE LD . CIT (A) AND THE ASSESSEE HAD NOT PRESSED THE GROUND BEFORE LD. CIT (A). THEREFO RE, ASSESSEE CANNOT BE ALLOWED TO RAISE THIS GROUND BEFORE THIS TRIBUNAL. 3 ITA NOS. 471 & 472/JP/2014. SHRI DHARMENDRA PANDEY, JAIPUR. 2.2. IN RE-JOINDER, THE LD. COUNSEL FOR THE ASSESSE E SUBMITTED THAT AT THAT POINT OF TIME THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIG H COURT IN THE CASE OF JAI STEEL INDIA VS. ACIT, 259 CTR 281 (RAJ.) AND JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA, 380 ITR 573 (DELHI) W ERE NOT AVAILABLE. 2.3. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE M ATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE I SSUE RAISED IN THIS GROUND GOES TO THE ROOT OF THE LEGALITY OF THE ORDER. WE, THEREFOR E, DEEM IT PROPER AND IN THE INTEREST OF JUSTICE, RESTORE THIS GROUND TO THE LD. CIT (A) TO DECIDE IT AFRESH IN THE LIGHT OF THE JUDICIAL PRONOUNCEMENTS RELIED BY THE LD. COUNSEL FOR THE ASSESSEE, PREFERABLY WITHIN 3 MONTHS FROM THE DATE OF SERVICE OF THIS ORDER. THUS, THE ORDER OF LD. CIT (A) IS SET ASIDE. 2.4. SINCE WE HAVE RESTORED THE LEGAL GROUND FOR DE CISION AFRESH, WE ARE NOT ADJUDICATING OTHER GROUNDS RAISED IN THIS APPEAL AN D THE SAME ARE ALSO RESTORED TO LD. CIT (A) FOR AFRESH DECISION. 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. NOW WE TAKE UP APPEAL OF THE ASSESSEE PERTAINING TO A.Y. 2006-07. THE GROUNDS IN THIS APPEAL ARE AS UNDER :- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER/LEARNED CIT (A) U/S 144/153A IS VOID-AB-INITIO. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 1,3 6,985/- ON ACCOUNT OF TRADING EXPENSES CLAIMED. 4 ITA NOS. 471 & 472/JP/2014. SHRI DHARMENDRA PANDEY, JAIPUR. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 1,1 1,582/- ON ACCOUNT OF EXPENSES CLAIMED BY THE ASSESSEE IN PROFIT & LOSS A CCOUNTS @ 10% OF TOTAL EXPENSES CLAIMED. 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 6,4 2,000/- OUT OF RS. 4,94,000/- MADE BY THE LEARNED ASSESSING OFFICER ON ACCOUNT OF UNSECURED LOAN AND SUNDRY CREDITORS APPEARING IN BA LANCE SHEET OF THE ASSESSEE U/S 68 OF THE INCOME TAX ACT, 1961. 5. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 14, 02,841/- ON ACCOUNT OF LONG TERM CAPITAL GAIN INCOME WITHOUT ANY MATERI AL AND BY DISALLOWING COST OF IMPROVEMENTS DURING THE PREVIOU S YEARS. 6. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 31, 189/- ON ACCOUNT OF LONG TERM CAPITAL GAIN LOSS CLAIMED BY THE ASSESSEE . 7. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 2,1 3,060/- ON ACCOUNT OF LONG TERM CAPITAL GAIN BY INVOKING THE PROVISIONS O F SECTION 50C OF THE INCOME TAX ACT, 1961. 8. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 56, 347/- ON ACCOUNT OF LONG TERM CAPITAL GAIN LOSS CLAIMED BY THE ASSESSEE . 9. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT (A) HAS ERRED IN SUSTAINING THE DISALLOWING OF RS. 54,825/- ON ACCOUNT OF DEDUCTION U/S 80C CLAIMED BY THE ASSESSEE. 10. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD, AME ND OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF H EARING. 5. GROUND NO. 1 INVOLVED IN THIS APPEAL IS A LEGAL GROUND. WE HAVE RESTORED THE IDENTICAL GROUND RAISED IN ASSESSEES APPEAL FOR TH E ASSESSMENT YEAR 2005-06 TO THE LD. CIT (A) FOR DECISION AFRESH AFTER TAKING INTO C ONSIDERATION THE JUDGMENTS OF HONBLE JURISDICTIONAL HIGH COURT AND HONBLE DELHI HIGH COURT (SUPRA). THEREFORE, FOLLOWING THE DECISION ARRIVED HEREINABOVE PERTAINI NG TO ASSESSMENT YEAR 2005-06, 5 ITA NOS. 471 & 472/JP/2014. SHRI DHARMENDRA PANDEY, JAIPUR. WE RESTORE GROUND NO. 1 ALONG WITH OTHER GROUNDS TO THE LD. CIT (A) FOR DECISION AFRESH IN THE LIGHT OF JUDICIAL PRONOUNCEMENTS MENT IONED ABOVE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN TOTALITY, BOTH THE APPEALS OF THE ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18/09/20 17. SD/- SD/- FOE FLAG ;KNO DQY HKKJR (VIKRAM SINGH YADAV) (KUL BHARAT) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 18/09/2017. DAS/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI DHARMENDRA PANDEY, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- THE ASSISTANT COMMISSIONER OF INCOM E-TAX, CENTRAL CIRCLE, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 471 & 472/JP/2014} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR 6 ITA NOS. 471 & 472/JP/2014. SHRI DHARMENDRA PANDEY, JAIPUR.