Surinder Singh Kalra, Ghaziabad V. ITO, Ward- 2(3), Ghaziabad

ITA 49/DEL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4912 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2015-2016
• Appeal Filed On: 03-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKASH DUBEY
• Assessee Lawyers: YASHPAL SAINI
• Keywords: Principle of natural justice; Additional evidence
• Section: 54; 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SH. SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA NO. 49/DEL/2019 : ASSTT. YEAR : 2015-16 SURINDER SINGH KALRA, A-45, SURYA NAGAR, GHAZIABAD, UTTAR PRADESH-201011 VS INCOME TAX OFFICER, WARD-2(3), GHAZIABAD-201002 (APPELLANT) (RESPONDENT) PAN NO. AAUPK8908M ASSESSEE BY : SH. SANDEEP MANAKTALA, CA & SH. YASHPAL SAINI, CA REVENUE BY : SH. PRAKASH DUBEY, SR. DR DATE OF HEARING: 28.01.2021 DATE OF PRONOUNCEMENT : 09.02.2021 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), GHAZIABAD DATED 31.10.2018 . 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESS EE: THAT THE FINDINGS OF THE ASSESSING OFFICER IN THE CASE OF REBATE CLAIMED U/S 54 OF THE INCOME TAX ACT, 1961 I S WITHOUT ANY RATIONALE AND BASIS. THE ASSESSEE (APPELLANT) FURNISHED ALL THE DESIRED DETAILS TO TH E A.O ASKED TIME TO TIME WHICH WAS NOT CONSIDERED FURTHER THE ORDER IS NOT REASONED AS THE GROUND OF REJECTION OF THE CONTENTIONS OF THE ASSESSEE (APPELLANT) HAVE NOT BE EN MENTIONED. THE LD ASSESSING OFFICER MISINTERPRETED/MISREAD THE VARIOUS CLAUSES COLLABOR ATION AGREEMENT, WHICH WOULD HAVE ENTITLED THE APPELLANT (ASSESSEE) OF REBATE U/S 54 AND 54F OF THE INCOME T AX ACT, 1961. THE LD. ASSESSING OFFICER CHOSE TO PASS THE ITA NO.49/DEL/2019 SURINDER SIN GH KALRA 2 ASSESSMENT ORDER AGAINST THE PRINCIPAL OF NATURAL JUSTICE. THE ASSESSING OFFICER ON ITS OWN DISALLOWED DEDUCTI ONS U/S 54 OF THE INCOME TAX ACT, 1961, WHICH IS NOT AS PER THE LETTER AND SPIRIT OF THE ACT. THE ASSESSING OFF ICER WAS BENT UPON TO MAKE DISALLOWANCE AGAINST THE FACT UAL POSITION OF LAW AND FACTS OF THE CASE. THE ASSESSIN G OFFICER ERRED IN NOT PURSUING ALL THE AVAILABLE OPT IONS AVAILABLE UNDER THE INCOME TAX ACT, 1961 TO VERIFY THE FACTS OF THE CASE. THE FINDINGS OF THE ASSESSING OF FICER ARE CONTRARY TO THE FACTS AND LAW AND THEREFORE, TH ESE ADDITIONS/FINDINGS ARE LIABLE TO BE QUASHED. THE ASSESSING OFFICER FIRST ALLOWED ONLY 1/3 OF COS T OF IMPROVEMENT /CONSTRUCTION DONE BY SHRI VINOD KUMAR SETIA I.E. RS46,16,667/- BUT NO DEDUCTION WAS ALLOW ED U/S 54 OF THE INCOME TAX ACT,1961. THE LD. CIT APPEAL FURTHER ALLOWED ONLY DEDUCTION U /S 54 FOR ONLY ONE FLAT ONLY I.E. RS 46,16,667/- INSTEAD OF TWO FLATS AS THE APPEAL WAS PART ALLOWED. THE LD CIT AP PEAL DID NOT PASS SPEAKING ORDER WHY THE DEDUCTION U/S 5 4 IS NOT ALLOWED FOR BOTH FLATS AS THE CASE OF THE APPEL LANT FALLS UNDER PRE-AMENDED U/S 54 OF THE INCOME TAX AC T, 1961 AS THE COLLABORATION AGREEMENT WAS ENTERED ON 16- 03-2013 I.E. BEFORE AMENDMENT IN SECTION 54 OF INCO ME TAX ACT, 1961. THE LD. CIT APPEAL FAILED TO APPRECIATE THAT THERE IS NO RESTRICTION TO ACQUIRE MORE THAN ONE RESIDENTIAL UN IT PROVIDED SUCH RESIDENTIAL UNIT(S) IS/ARE PART OF TH E SAME HOUSE. THE LD CIT (APPEAL) FAILED TO CONSIDER THAT THE APPELLANT IS AN OCTOGENARIAN AND SENIOR MOST CITIZE N, FURTHER A LAW ABIDING AND REGULAR IN FILING INCOME TAX RETURNS WITH PROPER AND COMPLETE DISCLOSURES OF INC OME. 2. THAT THE LD. CIT APPEAL DID NOT SEEK REMAND REPORT NOR AFFORDED REASONABLE OPPORTUNITY TO THE APPELLANT, THE LD CIT APPEAL HAVE DRAWN HER OWN INFERENCES AND DECIDED THE APPEAL WITHOUT HEARING APPELLANT AND RESPONDENT. 3. NON CONSIDERATION OF ADDITIONAL EVIDENCE:- THE LD. CIT APPEAL DID NOT AFFORDED SUFFICIENT OPPORTUNITY TO THE APPELLANT TO EXPLAIN ITS POSITIO N AND CIRCUMSTANCES FOR NOT ABLE TO FILE ADDITIONAL EVIDE NCES WHICH WERE VERY CRUCIAL FOR PROPER ADJUDICATING OF ITA NO.49/DEL/2019 SURINDER SIN GH KALRA 3 MATTER. THE LD. CIT APPEAL SUO MOTO DECIDED THE MATTER. 3. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERU SED THE MATERIAL AVAILABLE ON RECORD. 4. THE LD. CIT (A) DID NOT ADMIT THE ADDITIONAL EVI DENCES SUBMITTED BY THE ASSESSEE DURING THE PROCEEDINGS. T HE ADDITIONAL EVIDENCES PERTAIN TO THE COST ESTIMATES WHICH ARE RELEVANT FOR DETERMINATION OF TAX AFTER AFFORDING I NDEXATION AS AVAILABLE UNDER THE PROVISIONS OF THE INCOME TAX AC T. 5. THE PROVISIONS OF RULE 46A ARE AS UNDER: 46A. (1) THE APPELLANT SHALL NOT BE ENTITLED TO PR ODUCE BEFORE THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS)], ANY EVIDENCE, WHETHER ORAL OR DOCUMENTARY, OTHER THAN T HE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS BEFORE THE 96[ASSESSING OFFICER], EXCEP T IN THE FOLLOWING CIRCUMSTANCES, NAMELY: (A) WHERE THE [ASSESSING OFFICER] HAS REFUSED TO ADMIT EVIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED ; OR (B) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALL ED UPON TO PRODUCE BY THE [ASSESSING OFFICER] ; OR (C) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING BEFORE THE [ASSESSING OFFICER] ANY EVIDENCE WHICH IS RELEVANT TO ANY GROUND OF APP EAL ; OR (D) WHERE THE [ASSESSING OFFICER] HAS MADE THE ORDE R APPEALED AGAINST WITHOUT GIVING SUFFICIENT OPPORTUN ITY TO THE APPELLANT TO ADDUCE EVIDENCE RELEVANT TO ANY GROUND OF APPEAL. (2) NO EVIDENCE SHALL BE ADMITTED UNDER SUB-RULE (1 ) UNLESS THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS ITA NO.49/DEL/2019 SURINDER SIN GH KALRA 4 THE CASE MAY BE, THE COMMISSIONER (APPEALS)] RECORD S IN WRITING THE REASONS FOR ITS ADMISSION. 6. ON GOING THROUGH THE RULE 46A(B) AND SEE, WE FIN D THAT IF THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING ANY EVIDENCE, THE SAME CAN BE ADMITTED BY EXAMINING THE REASONS FOR NOT PRODUCING SUCH EVIDENCES OR RECORDS . 7. THE LD. CIT (A) REJECTED THE ADDITIONAL EVIDENCE HOLDING THAT THE NORMAL EXPECTATION IS THAT ALL THE EVIDENC E SHOULD BE AVAILABLE EVEN AT FIRST STAGE WHICH IS CONTRARY TO THE SPIRIT OF THE RULE 46A WHICH GIVEN A REASON, ENTITLES PRODUCT ION OF EVIDENCE WHICH THE ASSESSEE COULD NOT DO DURING THE ASSESSMENT PROCEEDINGS. 8. HENCE, AFTER GOING THROUGH THE RECORD, WE REMIT THE MATTER BACK TO THE LD. CIT (A) FOR ADJUDICATION DE NOVO AFTER GOING THROUGH THE ADDITIONAL EVIDENCES FILED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 09/02/2021. SD/- SD/- (SUDHANSHU SRIVASTAVA) (DR. B. R. R. KUMAR) JUDICIAL MEMBER ACC OUNTANT MEMBER DATED: 09/02/2021 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR