Smt. Kamla Devi, Jammu V. The Income-tax Officer, Jammu

ITA 477/ASR/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63527 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 12-11-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R L CHHANALIA
• Assessee Lawyers: S K BANSAL
• Keywords: Principle of natural justice

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. 477(ASR)/2009 ASSESSMENT YEAR:2004-05 PAN :AEGPP2866R SMT. KAMLA DEVI VS. INCOME TAX OFFICER, W/O SH. SARWAN DASS, WARD 1(2), JAMMU. JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.S.K. BANSAL, ADV. RESPONDENT BY:SH. R.L. CHHANALIA, DR DATE OF HEARING:30/10/2012 DATE OF PRONOUNCEMENT:30/10/2012 ORDER PER BENCH ; THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER OF CIT(A), BATHINDA, DATED 19.08.2009 FOR THE ASSES SMENT YEAR 2004-05, ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ORDERS OF ASSESSMENT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN NOT ACCEPTING THE REPORT OF THE VALUATION OFFICER. 2 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN NOT ACCEPTING THE LEA OF THE ASSESSEE THAT NO OPPORTUNITY WAS ALLOWED TO CROSS EXAMINE THE VALUER. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN NOT ACCEPTING THE PLEA OF THE ASSESSEE THA T RELIANCE ON VALUATION DETERMINED BY REVENUE AUTHORITIES WITHOUT BRINGING ANY MATERIAL ON RECORD IS NOT JUSTIFIED. 5. THAT THE DETERMINATION OF CAPITAL GAINS AT RS.22 ,74,176/- IS ILLEGAL, UNJUSTIFIED AND NOT BASED ON MATERIAL ON R ECORD AND MARKET VALUE AS ON 01.04.81. 6. IT IS PRAYED THAT THE CAPITAL GAINS DETERMINED A T RS.22,74,176/- BE SET ASIDE AND NIL INCOME ACCEPTED. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITY ARE NOT DISPUTED BY BOTH THE PARTIES. THEREFORE, THERE IS NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE, SH. S.K.BANSAL, STATED THAT THE AO AS WELL AS THE LD. F IRST APPELLATE AUTHORITY HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE TO SUBSTA NTIATE THE CLAIM OF THE ASSESSEE AND DECIDED THE ISSUE IN DISPUTE AGAINST T HE ASSESSEE, WHICH IS CONTRARY TO THE PRINCIPLE OF NATURAL JUSTICE. HE FU RTHER STATED THAT THE AO HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE TO EXAMIN E THE VALUER AND TO RECORD HIS STATEMENT IN THE ABSENCE OF ASSESSEE, WHICH IS NOT PERMISSIBLE UNDER THE LAW. HE FURTHER ARGUED THAT THE AO HAS CO LLECTED THE MATERIAL FROM THE DISTRICT AUTHORITIES I.E. TEHSILDAR AND USED TH E SAME AGAINST THE ASSESSEE 3 FOR DETERMINATION OF THE COSTS OF THE LAND AND BUIL DING IN DISPUTE, WHICH HAS NOT BEEN SUPPLIED TO THE ASSESSEE, WHICH IS CONTRA RY TO THE PRINCIPLE OF NATURAL JUSTICE AND THE A.O. COMPLETED THE ASSESSM ENT BY USING THIS MATERIAL AGAINST THE ASSESSEE HE REQUESTED THAT THE ISSUE I N DISPUTE MAY BE SET ASIDE TO THE A.O. TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW AFTER GIVING OPPORTUNITY TO THE ASSESSEE. 4. THE LD. DR, ON THE CONTRARY, RELIED UPON THE ORD ERS PASSED BY THE AUTHORITIES BELOW, ESPECIALLY THE ORDER OF THE LD. CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US AND WE ARE OF THE CONSIDERED OPIN ION THAT THERE IS FORCE IN THE ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE A SSESSEE, WHICH OUGHT TO BE ACCEPTED BECAUSE AFTER PERUSING THE ORDERS PASSE D BY THE REVENUE AUTHORITIES, WE ARE OF THE VIEW THAT THE MATERIAL COLLECTED BY THE AO HAS NOT BEEN SUPPLIED TO THE ASSESSEE AND THE SAME HAS BEEN USED AGAINST THE ASSESSEE FOR DETERMINATION OF THE CAPITAL GAINS IN DISPUTE. SECONDLY, THE OPPORTUNITY TO CROSS EXAMINE THE VALUER HAS ALSO NO T BEEN GIVEN TO THE ASSESSEE, WHICH IS ALSO CONTRARY TO THE PRINCIPLE O F NATURAL JUSTICE. THEREFORE, IN THE INTEREST OF JUSTICE AND AS REQUESTED BY THE LD. COUNSEL FOR THE ASSESSEE, 4 WE ARE SETTING ASIDE THE ISSUE IN DISPUTE TO THE F ILE OF THE AO WITH THE DIRECTION TO DECIDE THE SAME DENOVO UNDER THE LAW A FTER GIVING OPPORTUNITY TO THE ASSESSEE AS WELL AS THE DOCUMENTARY EVIDENC E TO BE PRODUCED AS REQUESTED BY THE LD. COUNSEL FOR THE ASSESSEE. ACCO RDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30TH OCTOBER, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30TH OCTOBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SMT. KAMLA DEVI, JAMMU. 2. THE ITO WARD 1(2), JAMMU. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.