Asstt. Commissioner of Income Tax -1, Kanpur V. Smt . Kamla Janveja, Kanpur

ITA 504/LKW/2012

• Counselvise Citation: 50423714 RSA 2012
• Duration Of Justice: 2 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 23-07-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 18-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K RAM
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition
• Section: 148; 50C; 54F

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.504/LKW/2012 ASSESSMENT YEAR:2003 2004 ACIT 1, KANPUR VS SMT. KAMALA JANVEJA, L/H OF LATE SATYAPAL JANVEJA, H. NO. 200E, DEFENCE COLONY, KANPUR PAN:AGGPJ2627L (APPELLANT) (RESPONDENT) ASSESSEE BY NONE RESPONDENT BY SHRI R. K. RAM, SR. DR DATE OF HEARING 23/07/2015 DATE OF PRONOUNCEMENT 3 0 /07/2015 O R D E R PER A. K. GARODIA, A.M. THIS APPEAL IS FILED BY THE REVENUE DIRECTED AGAINST THE ORDER OF LEARNED CIT (A) II KANPUR DATED 19.06.2012 FOR A.Y. 2003 2004. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: - 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.33,11,000/ - UNDER SECTION 50C OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF CAPITAL GAINS, WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER DURING THE CO URSE OF ASSESSMENT PROCEEDINGS. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT ISSUANCE OF NOTICE UNDER SECTION 148 WAS APPROVED BY THE AUTHORITY (I.E. THE JCIT) WITHOUT APPLICATION OF MIND, IGNORI NG THE FACT THAT THE APPROVAL HAD BEEN GIVEN AFTER 2 THE JCIT AS WELL AS THE CIT HAD BEEN SATISFIED THAT INCOME IN THIS CASE HAD ESCAPED ASSESSMENT. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE NOTICE UNDER SECTION 148 SHOULD HAVE BEEN ISSUED TO THE WIFE AS WELL AS THE DAUGHTERS OF LATE SH. SATYAPAL JANVEJA, WHEREAS THE NOTICE WAS RIGHTLY ISSUED BY THE AO IN THE NAME OF SMT. KAMLA JANVEJA, WIFE AND L/H OF LATE SHRI SATYAPAL JANVEJA. 4. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ABOVE ADDITION BY HOLDING THAT DEDUCTION UNDER SECTION 54F WAS IN ANY CASE AVAILABLE TO THE ASSESSEE BY REASON OF THE RS.38,44,952/ - INVESTED IN RESIDENTIAL HOUSE AT DEFENCE COLONY, JAJMAU, KANPUR, EVEN THOUGH, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE COULD NOT FURNISH PROOF OF INVESTMENT IN THE SAID PROPERTY, OR THE SOURCE OF THIS INVESTMENT. 5. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN IGNORING THE FACT THAT DESPITE SPECIFIC QUERY RAISED BY AO IN THIS REGARD, THE ASSESSEE HAD FAILED TO FURNISH PROOF OF THE COST OF ACQUISITION OF THE PROPERTY, ON THE SALE OF WHICH CAPITAL GAINS HAD ARISEN, AND IN DECIDING THE CASE WITH OUT GIVING A FINDING AS TO WHAT COST OF ACQUISITION SHOULD HAVE BEEN ADOPTED BY THE AO. 6. THAT THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR DT. 19.06.2012 NEEDS TO BE QUASHED AND ORDER DATED 14.12.2010 PASSED BY THE ASSESSING OFFICER TO BE RESTORED. 3. SEVERAL NOTICES WERE ISSUED BY THE TRIBUNAL AT THE ADDRESS OF THE ASSESSEE PROVIDED BY THE REVENUE IN FORM NO. 36 BUT ALL HAVE COME BACK UNSERVED. THEREAFTER, NOTICES WERE ISSUED THROUGH THE DEPARTMENT ON SEVERAL OCCASIONS WITH THE REM ARKS LAST CHANCE BUT PROOF OF SERVICE OF NOTICE ON THE ASSESSEE HAS NOT BEEN PRODUCED BEFORE US AND HENCE WE PRESUME THAT THE DEPARTMENT IS NOT IN A POSITION TO LOCATE THE ASSESSEE AND 3 SERVE NOTICE. IF THE DEPARTMENT CANNOT PROVIDE CORRECT ADDRESS OF THE ASSESSEE AND CANNOT SERVE THE NOTICE ON THE ASSESSEE, THE APPEAL FILED BY THE REVENUE IS LIABLE TO BE DISMISSED BECAUSE AN APPEAL FILED AGAINST A PERSON OF WHOM, THE APPELLANT IS NOT PROVIDING THE WHEREABOUTS CANNOT BE PROCEEDED WITH. MOREOVER, EVEN IF TH E APPEAL IS DECIDED IN FAVOUR OF THE REVENUE, IT IS OF NO USE BECAUSE THE DEPARTMENT CANNOT COLLECT THE TAX FROM A PERSON, WHO IS NOT TRACEABLE BY THE DEPARTMENT. HENCE, WE DISMISS THE APPEAL OF THE REVENUE WITH THE LIBERTY THAT IF ON A FUTURE DATE, THE RE VENUE LOCATES THE ASSESSEE AND IS IN A POSITION TO SERVE NOTICE ON THE ASSESSEE, THE REVENUE CAN MOVE A M.A. AS PER LAW FOR RECALL OF THIS TRIBUNAL ORDER. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED . (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 3 0 /07/2015 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR