ACIT, New Delhi V. Smt. Usha Rani Talla, New Delhi

ITA 490/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3145 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 29-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Valuation report
• Section: 133A; 54

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH 'A', NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTA NT MEMBER I.T.A. NOS. 489 & 490/DEL/2016 A.YRS. 2009-10 ACIT, CIRCLE 41(1), VS. MS. USHA RANI TALLA ROOM NO. 1704, E-2, B-5, NEAR DURGA MANDIR, CIVIC CENTRE, MINTO ROAD, MOTI NAGAR, NEW DELHI 110 002 NEW DELHI 15 (PAN: AEBPR3546P) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. ARUN KUMAR YADAV, SR.DR ASSESSEE BY : NONE ORDER PER H.S. SIDHU, JM : THESE APPEALS BY THE REVENUE ARE DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-14, NEW DE LHI BOTH DATED 13.11.2015 PERTAINING TO ASSESSMENT YEAR 2009-10. S INCE THE ISSUES ARE INTER-CONNECTED, HENCE, THE APPEALS WERE HEARD TOGE THER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER, FOR THE SAKE OF B REVITY. 2. THE GROUNDS RAISED IN ITA NO. 489/DEL/2016 READ AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW CIT(A) HAS ERRED IN 2 (I) ALLOWING DEDUCTION U/S. 54 OF THE I.T. ACT OF RS. 74,97,830/-, IGNORING THE FACT THAT THE PROPERTY PURCHASED IS COMMERCIAL PROPERTY AS MENTIONED IN THE REGISTRATION DEED AND SUCH DOES NOT FULFILL REQUIREMENT OF GETTING DEDUCTION UNDER SECTION 54 OF THE I.T. ACT, 1961. (II) THE APPELLANT CRAVES THE RIGHT TO ADD, ALTER OR AMEND ANY GROUND OF APPEAL. 3. THE GROUNDS RAISED IN ITA 490/DEL/2016 READ AS U NDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, CIT(A) HAS ERRED IN 1. DECIDING THE ISSUE IN RESPECT OF CAPITAL GAIN ON TH E SALE OF PROPERTY AFTER TAKING INTO CONSIDERATION THE SAL E CONSIDERATION ON THE BASIS OF THE REGISTERED SALE D EED OF RS. 95,00,000/- AS AGAINST RS. 3,87,00,000/- DETERMINED BY THE AO ON THE BASIS OF VALUATION REP ORT THUS IGNORING THE FACT THAT IN THE PRESENT CASE THE VALUATION REPORT WAS FOUND FROM THE PREMISES OF TH E ASSESSEE DURING SURVEY PROCEEDINGS U/S. 133A OF THE I.T. ACT, WHEREAS IN THE CASE OF RELIED UPON JUDGM ENT OF CIT VS. ANIL ARORA THE AO HAD REQUISITIONED THE VALUATION REPORT FROM THE DVO. 3 2. THE APPELLANT CRAVES THE RIGHT TO ADD, ALTER OR AME ND ANY GROUND OF APPEAL. 4. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE N OT DISPUTED, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREV ITY. 5. LD. DR RELIED UPON THE ORDERS OF THE AO. 6. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR HER AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTE R IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND T HE ISSUE INVOLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THA T NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND A GAIN TO THE ASSESSEE, THEREFORE, WE ARE DECIDING THE PRESENT APP EAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE R ECORDS. 7. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVA NT RECORDS, ESPECIALLY THE GROUNDS OF APPEAL RAISED IN THE PRES ENT APPEALS FILED BY THE DEPARTMENT, BOTH THE IMPUGNED ORDERS PASSED BY THE LD. CIT(A) AS WELL AS THE TRIBUNALS ORDER DATED 30.6.2015 PASSED IN T HE CASE OF ASSESSEE IN ASSESSMENT YEAR 2009-10 IN ITA NO. 5698/DEL/2014 TI TLE ACIT VS. SMT. USHA RANI TALLA AND ITA NO. 5974/DEL/2014 (AY 2009- 10) TITLE SMT. USHA RANI TALLA VS. ITO. WE FIND THAT DEPARTMENT IN THE PRESENT ITA NO. 489/DEL/2016 (AY 2009-10) HAS RAISED THE FOLLOWING EFFECTIVE ISSUE:- 4 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW CIT(A) HAS ERRED IN (I) ALLOWING DEDUCTION U/S. 54 OF THE I.T. ACT OF RS. 74,97,830/-, IGNORING THE FACT THAT THE PROPERTY PURCHASED IS COMMERCIAL PROPERTY AS MENTIONED IN THE REGISTRATION DEED AND SUCH DOES NOT FULFILL REQUIREMENT OF GETTING DEDUCTION UNDER SECTION 54 OF THE I.T. ACT, 1961. 7.1 AFTER PERUSING THE AFORESAID GROUND RAISED BY THE REVENUE, WE FIND THAT TRIBUNALS VIDE ITS ORDER DATED 30.6.2015 PASS ED IN THE CASE OF ASSESSEE IN ASSESSMENT YEAR 2009-10 IN ITA NO. 5698 /DEL/2014 TITLE ACIT VS. SMT. USHA RANI TALLA AND ITA NO. 5974/DEL/2014 (AY 2009-10) TITLE SMT. USHA RANI TALLA VS. ITO. (AY 2009-10) HAS ALRE ADY DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE VIDE PARA NO. 12 AT PAGE NO. 25 TO 26 OF THE ORDER, WHILE DEALING WITH REVENUES APPEAL. THE RELEVANT FINDING OF THE TRIBUNAL IS AS UNDER:- 12. APROPOS GROUND NO. 3 REGARDING DIRECTING THE AO CONSIDER THE CLAIM OF ASSESSEE U/S. 54 OF THE I.T. ACT, 1961 IS CONCERNED, WE FIND THAT DURING THE RELEVANT ASSESSMENT YEAR, THE ASSESSEE HAS SOLD A PROPERTY AT 20C/72, WEST PUNJABI NAGAR, NEW DELHI FOR THE CONSIDERATION OF RS. 95,00,000/- AS PER THE REGISTERED VALUE OF THE PROPERTY (WHEREAS DURING THE COURSE OF 5 SURVEY, THE SAME PROPERTY WAS FOUND TO BE VALUED AT RS. 3,87,00,000/- BY A REGISTERED VALUER). THE ASSESSEE HAS CLAIMED THAT THE SALE PROCEED OF THE AFORESAID PROPERTY AT 20C/72, WEST PUNJABI BAGH, NEW DELHI WAS INVESTED IN THE PURCHASE OF PROPERTY IN THE SAME ASSESSMENT YEAR AT J-1/161, RAJOURI GARDEN, NEW DELHI. WE OBSERVED THAT THE ASSESSEE WAS ENTITLED FOR DEDUCTION U/S. 54 OF THE I.T. ACT IN RESPECT OF CAPITAL GAIN ON THE SALE OF PROPERTY AT 20C/72, WEST PUNJABI BAGH, NEW DELHI. WE FURTHER NOTE THAT THE ASSESSEE HAS ALSO RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT 229 ITR 383. THE AO HAS NOT CONSIDERED THE CLAIM OF EXEMPTION OF THE ASSESSEE U/S. 54 IN RESPECT OF THE CAPITAL GAIN AROSE IN RESPECT OF THE SALE OF PROPERTY AT 20C/72, WEST PUNJABI BAGH, NEW DELHI. IN VIEW OF THE ABOVE, IN OUR CONSIDERED OPINION, THE LD. CIT(A) RIGHTLY DIRECTED THE AO TO CONSIDER THE AFORESAID CLAIM OF THE ASSESSEE OF EXEMPTION U/S 54 OF THE I.T. ACT, WHILE COMPUTING THE INCOME OF THE ASSESSEE. WE ALSO FIND CONSIDERABLE COGENCY IN THE ASSESSEES COUNSEL THAT LD. DR ITSELF WAS SAYING THAT THE ASSESSEE HAS SOLD ONE PROPERTY AND PURCHASED 6 ANOTHER, THEN THERE IS NO QUESTION WHY EXEMPTION U/S. 54 SHOULD NOT BE GIVEN. IN VIEW ABOVE, WE FIND THAT THE CIT(A) HAS GIVEN A WELL REASONED FINDING ON THE ISSUE IN DISPUTE, WHICH DOES NOT NEED ANY INTERFERENCE ON OUR PART, HENCE, WE UPHOLD THE SAME AND DECIDE THE ISSUE NO. 3 AGAINST THE REVENUE. IN THE RESULT, THE REVENUES APPEAL IS DISMISS ED. 7.2 WE FURTHER FIND THAT DEPARTMENT IN ANOTHER IT A NO. 490/DEL/2016 (AY 2009-10) HAS RAISED THE FOLLOWING EFFECTIVE ISS UE:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW CIT(A) HAS ERRED IN (I) DECIDING THE ISSUE IN RESPECT OF CAPITAL GAIN ON THE SALE OF PROPERTY AFTER TAKING INTO CONSIDERATION THE SALE CONSIDERATION ON THE BASIS OF THE REGISTERED SALE DEED OF RS. 95,00,000/- AS AGAINST RS. 3,87,00,000/- DETERMINED BY THE AO ON THE BASIS OF VALUATION REPORT THUS IGNORING THE FACT THAT IN THE PRESENT CASE THE VALUATION REPORT WAS FOUND FROM THE PREMISES OF THE ASSESSEE DURING SURVEY PROCEEDINGS U/S. 133A OF THE I.T. ACT, 7 WHEREAS IN THE CASE OF RELIED UPON JUDGMENT OF CIT VS. ANIL ARORA THE AO HAD REQUISITIONED THE VALUATION REPORT FROM THE DVO. 7.3 AFTER PERUSING THE AFORESAID GROUND RAISED BY THE REVENUE, WE FIND THAT TRIBUNALS VIDE ITS ORDER DATED 30.6.2015 PASS ED IN THE CASE OF ASSESSEE IN ASSESSMENT YEAR 2009-10 IN ITA NO. 5698 /DEL/2014 TITLE ACIT VS. SMT. USHA RANI TALLA AND ITA NO. 5974/DEL/2014 (AY 2009-10) TITLE SMT. USHA RANI TALLA VS. ITO. (AY 2009-10) HAS ALRE ADY DISMISSED THE GROUNDS VIDE PARA NO. 14 AT PAGE NO. 27 OF THE ORDE R, WHILE DEALING WITH ASSESSEES APPEAL. THE RELEVANT FINDING OF THE TRIB UNAL IS AS UNDER:- 14. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSESSEE SH. NAGESH BEHL, STATED THAT ASSESSEE HAS RAISED 5 GROUNDS OF APPEAL. AS REGARDS GROUND NO. 1 IS CONCERNED, HE STATED THAT THE ASSESSEE HAS RAISED THIS GROUND BEFORE THE LD. CIT(A) WHICH HAS NOT BEEN DECIDED BY THE LD. CIT(A), BUT HE DECIDED THE OTHER ISSUES BY PARTLY ALLOWING THE APPEAL FILED BY THE ASSESSEE. ASSESSEE HAS FILED THE APPEAL ON THE ISSUE INVOLVED IN GROUND NO. 5 MENTIONED IN THE ASSESSEES CROSS APPEAL AND REVENUE HAS FILED THE APPEAL I.E. ITA NO. 5698/DEL/2014 AND CHALLENGED THE ADDITION DELETED BY THE LD. CIT(A). HE STATED THAT THE ISSUE IN GROUND NO. 2 8 TO 4 ARE INTER CONNECTED WITH THE REVENUES APPEAL AND IF THE REVENUES APPEAL IS DISMISSED, THEN HE IS NOT PRESSING THE GROUNDS RAISED IN ASSESSEES APPEAL VIDE GROUND NO. 2 TO 4. SINCE WE HAVE ALREADY DISMISSED THE REVENUES APPEAL, HENCE, AS PER THE STATEMENT OF THE LD. COUNSEL OF THE ASSESSEE THAT HE IS NOT PRESSING THE ISSUE INVOLVED IN GROUND NO. 2 TO 4, IF THE REVENUES APPEAL IS DISMISSED, THE GROUND NO. 2 TO 4 RAISED IN THE ASSESSEES APPEAL STANDS DISMISSED, AS NOT PRESSED. 7.4 KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE ISSUE RAISED BY THE REV ENUE AGAINST THE IMPUGNED ORDER DATED 13.11.2015, HAS ALREADY BEEN DECIDED BY THE TRIBUNAL, AS DISCUSSED ABOVE AND LD. CIT(A) HAS NOT COMPLIED WITH THE DIR ECTIONS OF THE TRIBUNALS ORDER DATED 30.6.2015 PASSED IN ASSESSEES OWN CASE IN AS SESSMENT YEAR 2009-10, HOWEVER WRONGLY DECIDED THE ISSUES AGAIN, WHICH WE RE ALREADY DECIDED BY THE TRIBUNAL VIDE ORDER DATED 30.6.2015. IT IS ALSO NOT ED THAT REVENUE HAS WRONGLY FILED THE APPEAL BEFORE THE TRIBUNAL AGAINST THE OR DER OF THE LD. CIT(A) ON ISSUES ALREADY DECIDED BY THE TRIBUNAL. WE FURTHER NO TE THAT TRIBUNALS VIDE ORDER DATED 30.6.2015 PASSED IN THE CASE OF ASSESSEE IN A SSESSMENT YEAR 2009- 10 IN ITA NO. 5698/DEL/2014 TITLE ACIT VS. SMT. USH A RANI TALLA AND ITA NO. 5974/DEL/2014 (AY 2009-10) TITLE SMT. USHA RANI TALLA VS. ITO. (AY 9 2009-10 WHILE DEALING WITH ASSESSEES APPEAL HAS RE MITTED BACK THE GROUND NO. 1 TO THE LD. CIT(A) TO DECIDE THE SAME A FRESH, UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD, B UT HOWEVER, THE LD. CIT(A) HAS NOT DEALT THE GROUND NO. 1 AND DID NOT C OMPLY WITH THE DIRECTIONS OF THE TRIBUNALS ORDER DATED 30.6.2015, AS AFORESAID. THEREFORE, IN THE INTEREST OF JUSTICE, THE ISSUE R AISED IN GROUND NO. 1 IN THE FIRST ROUND OF APPEAL BEFORE THE TRIBUNAL IN I TA NO. 5874/DEL/2014 (AY 2009-10) IS REQUIRED TO BE ADJUDICATED BY THE L D. CIT(A) AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE AND PASS A SPEAKING ORDER ONLY ON THE SPECIFIC ISSUE. WE HOLD AND DIRECT ACCORDINGLY. 8. IN THE RESULT, BOTH THE APPEALS FILED BY THE RE VENUE STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 12/12/2017. SD/- SD/- (PRASHANT MAHARISHI) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:12/12/2017 'SRBHATNAGAR' COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES