Shri Narayan Balmukund Dubey, Ujjain V. The Commissioner of Income tax, Ujjain

ITA 501/IND/2013

• Counselvise Citation: 50122714 RSA 2013
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 28-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJIV VARSHNEY
• Assessee Lawyers: MANOJ PHADNIS
• Keywords: Capital asset
• Section: 2(14); 263

Judgement Text

NARAYAN BALMUKUND DUBEY ITA NO. 501/IND/2013 1 IN THE INCOME TAX APPELLATE TRIBUNA L INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER ITA NO. 501/IND/2013 A.Y.2008-09 SHRI NARAYAN BALMUKUND DUBEY UJJAIN PAN AGBPD 6963C ::: APPELLANT VS COMMISSIONER OF INCOME TAX UJJAIN ::: RESPONDENT APPELLANT BY SHRI MANOJ PHADNIS RESPONDENT BY SHRI RAJIV VARSHNEY DATE OF HEARING 18.8.2015 DATE OF PRONOUNCEMENT 2 9 . 9 .2015 O R D E R PER SHRI B.C. MEENA, AM THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LEARNED CIT, UJJAIN, DATED 28.3.2013. THERE IS A DELAY OF 39 DAYS IN FILING THE PRESENT APPEAL AND AS NARAYAN BALMUKUND DUBEY ITA NO. 501/IND/2013 2 SUCH IT IS BARRED BY LIMITATION. BEFORE US, THE ASSESS EE HAS FILED AN AFFIDAVIT STATING THAT THE ASSESSEE IS A DOCTOR PRACTICING AT VILLAGE CHANDRAVATIGANJ, TEHSIL SANWER, DISTRICT INDORE, AND DUE TO THE NEED OF THE PROFESSI ON, HE USUALLY RESIDES AT CHANDRAVATIGANJ, WHILE HIS TAX PRACTITIONER IS AT UJJAIN AND DUE TO THIS FACT AND LACK OF KNOWLEDGE ABOUT FILING OF APPEAL, HE COULD NOT CONTACT HIS TAX PRACTITIONER. THE ASSESSEE HAS, THEREFORE, PRAYED FOR CONDONATION OF DELAY. ON THE OTHER HAND, THE LEARNED DR OPPOSED THE PRAYER OF THE ASSESSEE. 2. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSE E, WE FIND IT APPROPRIATED TO CONDONE THE DELAY AS IT WAS ATTRIBUTABLE TO IGNORANCE OF KNOWLEDGE ABOUT FILING OF APPEAL AND DIFFICULTY IN CONTACTING THE TAX PRACTITIONE R WHO RESIDES AT A DIFFERENT PLACE THAN THAT OF THE ASSESSEE. T HE DELAY IS, THEREFORE, CONDONED AND THE MATTER IS HEARD. NARAYAN BALMUKUND DUBEY ITA NO. 501/IND/2013 3 3. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE AS UNDER :- 1. THAT THE ORDER OF COMMISSIONER IS CONTRARY TO THE LAW AND THE FACTS OF THE APPELLANTS CASE. 2. THAT THE COMMISSIONER OF INCOME TAX ERRED IN IGNORING THE FACTS THAT I. THE ASSESSING OFFICER HAD TAKEN ON RECORD THE WRITTEN SUBMISSIONS REGARDING THE DETAILS OF THE SALE OF THE AGRICULTURAL LAND AND HAS PASSED A SPEAKING ORDER. II. THAT THE ORDER OF THE ASSESSING OFFICER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. 3. THAT THE COMMISSIONER OF INCOME TAX ERRED IN IGNORING THE LEGAL POSITION THAT THE ORDER CAN SAID TO BE ERRONEOUS WHEN IT DOES NOT DECIDE A NARAYAN BALMUKUND DUBEY ITA NO. 501/IND/2013 4 POINT AND RECORD A FINDING ON A ISSUE WHICH OUGHT TO HAVE BEEN DONE OR DECIDED IT WRONGLY. 4. THE ASSESSEE IS AN INDIVIDUAL. THE RETURN OF INCOM E DECLARING INCOME OF RS. 25,253/- AND AGRICULTURAL INCOM E OF RS.1,50,000/- WAS FILED ON 27.7.2008. THE CASE WAS SELECTED FOR SCRUTINY WITH THE APPROVAL OF THE CCIT, INDORE. THERE WAS INFORMATION WITH THE ASSESSING OFFICER THAT THE ASSESSEE HAS DEPOSITED CASH OF RS. 19,45,000/- IN HIS BANK ACCOUNT WITH UCO BANK, CHANDRAWATIGANJ BRANCH, INDORE. 5. BEFORE THE ASSESSING OFFICER THE ASSESSEE SUBMITT ED THAT HE IS A REGISTERED MEDICAL PRACTITIONER (AYURVEDA DOCTOR) PRACTICING AT VILLAGE CHANDRAVATIGANJ. IT WAS ALSO SUBMITTED THAT THE ASSESSEE HAS SOLD AGRICULTURAL LAND AT VILLAGE PATLOD TEHSIL SANWER, DISTT. INDORE ON 19.11.2 007. THE REGISTRY COST OF LAND IS ONLY RS. 20,20,000/- WH ILE THE ASSESSEE HAS RECEIVED A SUM OF RS. 1.18 CRORE TOWARDS SALE OF THE LAND AND THE ASSESSEE GAVE DETAILS OF BANK DEPOSIT S NARAYAN BALMUKUND DUBEY ITA NO. 501/IND/2013 5 IN HIS NAME AND IN THE NAMES OF FAMILY MEMBERS. IT WAS CLAIMED BEFORE THE ASSESSING OFFICER THAT THE ENTIRE AMOUNT CAME FROM THE SALE OF THE LAND. THE ASSESSING OFFICER ALSO RECORDED THIS FACT IN HIS ORDER WHICH IS REPRODUCED AS UNDER :- THE ASSESSEE IS A REGISTERED MEDICAL PRACTITIONER (AYURVEDIC DOCTOR) PRACTICING AT VILLAGE CHANDRAVATIGANJ. THE ASSESSEE HAS SOLD AGRICULTURAL LAND AT VILLAGE PATLOD, THE. SAWER, DISTT. INDORE ON 19.11.07. THE REGISTRY COST OF L AND IS ONLY RS. 20,20,000/-. HOWEVER, THE ASSESSEE CLAIMS TO HAVE RECEIVED A SUM OF RS.1.18 CRORES ON SALE OF THIS LAND. THE ASSESSEE HAS GIVEN DETAILS O F BANK DEPOSITS IN THE NAME OF SELF AND FAMILY MEMBERS AND CLAIMS THAT THE SAME IS ENTIRELY OUT OF THE MONEY RECEIVED ON SALE OF THE PROPERTY. THE NARAYAN BALMUKUND DUBEY ITA NO. 501/IND/2013 6 DETAILS ARE AVAILABLE ON RECORDS IN THE WRITTEN SUBMISSIONS FILED ON 22.03.10. IT IS ALSO CLAIMED B Y THE ASSESSEE THAT THE AGRICULTURAL LAND SOLD BY THE ASSESSEE IS NOT A CAPITAL ASSET WITHIN THE MEANING OF PROVISIONS OF SECTION 2(14) OF THE IT ACT. IT IS ALSO CLEAR FROM THE ORDER OF THE ASSESSING OFFI CER THAT HE HAD ASKED FOR CERTAIN INFORMATION/DETAILS ON VARIOUS ISSUES WHICH THE ASSESSEE SUBMITTED BEFORE HIM AND AFT ER CONSIDERING ALL THESE ASPECTS, THE ASSESSMENT WAS MADE ON THE RETURNED INCOME. THE CIT INITIATED PROCEEDINGS U /S 263 OF THE ACT AND SET ASIDE THE ORDER OF THE ASSESSING O FFICER AND DIRECTED THE ASSESSING OFFICER TO MAKE NECESSARY INQUIRY AND INVESTIGATION AND AFTER ASCERTAINING ALL THE FACTS AND PROVIDING REASONABLE OPPORTUNITY TO THE ASSESS EE, TAKE A DECISION AS PER LAW. NARAYAN BALMUKUND DUBEY ITA NO. 501/IND/2013 7 6. WE HAVE HEARD BOTH THE SIDES. FROM RECORD IT IS C LEAR THAT THE ASSESSING OFFICER MADE THE INVESTIGATION WITH REGARD TO SALE OF THE LAND AND THE CASH DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE AND FAMILY MEMBERS. AFTER MAKING NECESSARY INQUIRIES, THE ASSESSING OFFICER ACCEP TED THE RETURNED INCOME. HE HAS ALSO RECORDED THAT THE LAND SOLD WAS NOT A CAPITAL ASSET WITHIN THE MEANING OF SE CTION 2(14) OF THE ACT. THE ASSESSEE SUBMITTED AN AGREEMENT BEFORE THE ASSESSING OFFICER WHICH HE HAS DULY TAKEN INTO COGNIZANCE AND ACCEPTED THE CONTENTS OF THE SAME AS GENUINE. AS PER THIS AGREEMENT, THE ASSESSEE HAS SOLD 5.35 HECTARES OF LAND WHICH HE AGREED TO SELL AT RS. 4,51,00 0/- PER BIGHA. HE HAS RECEIVED CASH OF RS.1,50,000/- AS ADVANCE ON 6.10.2007 AND CASH OF RS.55,50,000/- ON 15.10.2007. THE BALANCE AMOUNT WAS TO BE RECEIVED BY 15.1.2008 AND THEN ASSESSEE WAS BOUND TO DO REGISTRATIO N NARAYAN BALMUKUND DUBEY ITA NO. 501/IND/2013 8 IN PURCHASERS NAME OR IN ANY PERSONS NAME WHOM THE PURCHASER WANTED TO GET IT REGISTERED. THE ASSESSEE SUBMITTED THIS AGREEMENT BEFORE THE ASSESSING OFFICE R WHICH HE HAS DULY APPRISED AND ACCEPTED THE CONTENTS AS TRUE TO EXPLAIN THE TRANSACTION IN THE ASSESSEES BANK ACCOUNT AS HE HAS NOT MADE ANY ADDITION TO THAT EFFECT. IN SUCH A SITUATION, ANY CONTRARY VIEW TAKEN BY THE CIT WIT H REGARD TO THE CONTENTS OF THE AGREEMENT FOR SALE OF TH E LAND SHALL AMOUNT TO CHANGE IN THE VIEW ON THE SAME ISSUE. FURTHER, THE CIT HIMSELF WAS NOT SURE ABOUT THESE TRANSACTIONS AND HE DIRECTED THE ASSESSING OFFICER TO EXAMINE THE ISSUE AND MAKE NECESSARY INQUIRY AND INVESTIGATION AND AFTER ASCERTAINING ALL THE FACTS TAKE DECISION AS PER LAW. THIS ITSELF SHOWS THAT THE CIT H IMSELF WAS NOT SURE REGARDING THE ERRONEOUSNESS OF THE ORDER OF THE ASSESSING OFFICER. NARAYAN BALMUKUND DUBEY ITA NO. 501/IND/2013 9 7. IN VIEW OF OUR ABOVE DISCUSSION ON THE ISSUE, WE HOLD THAT THE ASSESSING OFFICER HAS ADOPTED A PLAUSIBLE VIEW AND THE CIT WAS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT. WE, THEREFORE, SET ASIDE THE ORDER OF THE LEARNED CIT AND RESTORE THAT OF THE ASSESSING OFFI CER. 8. IN THE RESULT, THE APPEAL STANDS ALLOWED. PRONOUNCED IN OPEN COURT ON 29 TH AUGUST, 2015 SD SD (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER 29 TH AUGUST, 2015 DN/-