Samraj Krishan Chaudhary , Kanpur V. Income Tax Officer-2(4) , Kanpur

ITA 530/LKW/2013

• Counselvise Citation: 53023714 RSA 2013
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-12-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 11-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Keywords: Reassessment proceedings
• Section: 143(3); 148

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.530/LKW/2013 A.Y.:2009 - 10 SHRI SAMRAJ KRISHAN CHAUDHARY, 84/1, FAZALGANJ, KANPUR. PAN:AAZPC0838R VS. INCOME TAX OFFICER - 2(4), KANPUR. (APPELLANT) (RESPONDENT) STAY PETITION NO.20/LKW/2013 (IN ITA NO.530/LKW/2013) A.Y.:2009 - 10 SHRI SAMRAJ KRISHAN CHAUDHARY, 84/1, FAZALGANJ, KANPUR. PAN:AAZPC0838R VS. INCOME TAX OFFICER - 2(4), KANPUR. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI RAKESH GARG, ADVOCATE RESPONDENT BY SHRI ALOK MITRA, D.R. DATE OF HEARING 23/12/2013 DATE OF PRONOUNCEMENT 3 0 /01/2014 O R D E R PER A. K. GARODIA, A.M. THE APPEAL IS FILED BY THE ASSESSEE, WHICH IS DIRECTED AGAINST THE ORDER OF LEARNED CIT ( A) - I, KANPUR DATED 13/03/2013 FOR ASSESSMENT YEAR 2009 - 2010. THE ASSESSEE HAS ALSO FILED STAY PETITION, WHICH WAS ALSO HEARD TOGETHER AND, THEREFORE, WE DECIDE THE A PPEAL ITSELF WHICH WILL RESULT INTO STAY 2 PETITION BECOMING INFRUCTUOUS BECAUSE STAY CAN BE GRANTED TILL DISPOSAL OF APPEAL ONLY . 2. GROUND NO. 1 TO 5 OF THE APPEAL ARE RELATED WITH VALIDITY OF REOPENING, WHICH ARE AS UNDER: 1. BECAUSE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE INITIATION OF REASSESSMENT PROCEEDINGS U/S. 147/148 OF THE I.T. ACT 1961 WHICH INITIATION OF PROCEEDINGS, RECORDING OF REASONS AND ISSUE OF NOTICE ARE ALL WITHOUT JURISDICTION, ILLEGAL, BAD IN LAW AND BE QUASHED. 2. BECAUSE THERE BEING NO INFORMATION/MATERIAL, FORMING REASONS TO BELIEF, THA T INCOME TAX ESCAPED ASSESSMENT, THE VERY INITIATION OF REASSESSMENT PROCEEDINGS IS VOID ABINITO AND THE REASSESSMENT BE ANNULLED. 3. BECAUSE ALL THE PARTICULARS OF COMPUTATION OF CAPITAL GAIN WAS DECLARED IN THE RETURN OF INCOME AS PRESCRIBED AND AS HAS BEEN ADMITTED B Y THE AO HIMSELF, THERE IS NO OCCASION TO INFER THAT THERE IS ANY FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY THE MATERIAL FACTS RELEVANT FOR T HE COMPUTATION OF CAPITAL GAINS, THE REASSESSMENT BE QUASHED. 4. BECAUSE THE NOTICE U/S. 148 HAS BEEN ISSUED DURING THE COURSE OF THE REGULAR ASSESSMENT PROCEEDINGS, U/S. 143(3) AS WOULD BE APPARENT FROM THE NOTICE U/S.142(1) FIXING THE HEARING FOR 30.09 .2010, THE ENTIRE REASSESSMENT PROCEEDINGS ARE WITHOUT JURISDICTION AND BE QUASHED. 5. BECAUSE NO NOTICE U/S.143(2) HAVING BEEN ISSUED AND SERVED ON THE APPELLANT, THE REASSESSMENT FRAMED IS BAD IN LAW, FOR THERE CAN BE NO VARIATION TO THE INCOME RETURNED IN ABSENCE OF A NOTICE U/S. 143(2), THE ADDITIONS MADE BE DELETED. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE REASONS RECORDED FOR ISSUING NOTICE U/S 148 ARE AVAILABLE ON PAGE NO. 8 OF THE PAPER BOOK. HE SUBMITTED THAT FROM THE REAS ONS, IT CAN BE SEEN THAT THE ONLY 3 REASON GIVEN BY THE ASSESSING OFFICER FOR INITIATING THE REASSESSMENT PROCEEDINGS IS THAT A PROPERTY IN QUESTION WAS SOLD BY THE ASSESSEE FOR RS.31LAC S BUT VALUE FOR THE SAME FOR STAMP DUTY PURPOSES AS PER CIRCLE RATE IS R S.82.54 LAC AND, THEREFORE, THERE IS ESCAPEMENT OF INCOME OF RS.51.54 LAC S . THEREAFTER, HE DRAWN OUR ATTENTION TO THE COPY OF THE INCOME - TAX RETURN FILED BY THE ASSESSEE, WHICH ARE AVAILABLE ON PAGES 100 TO 126 OF THE PAPER BOOK. IT WAS SUBMITTED THAT IN THE COMPUTATION OF INCOME SUBMITTED BY THE ASSESSEE ALONG WITH THE RETURN OF INCOME, THE ASSESSEE HAS SHOWN THE SALE CONSIDERATION AT RS.82.54 LAC S AND THEREAFTER , THE CAPITAL GAIN WAS COMPUTED AT RS. 1,72,075/ - . HE SUBMITTED THAT WHEN THE ASSESSEE HIMSELF HAD ADOPTED THE SALE VALUE AS PER STAMP DUTY AT RS.82.54 LAC S AS SALE PROCEEDS FOR COMPUTING CAPITAL GAIN, THE ALLEGATION OF THE ASSESSING OFFICER REGARDING ESCAPEMENT OF INCOME IS CONTRARY TO FACTS AND THEREFORE, THE REOPENING IS NOT VALID. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT BEFORE INITIATING THE REASSESSMENT PROCEEDINGS, IT IS ESSENTIAL THAT THE ASSESSING OFFICER MUST SATISFY THAT SOME INCOME HAS ESCAPED ASSESSMENT. THE BASIS OF ASSESSING OFFICERS SATISFACTION IS THAT VALUE OF THE PROPERTY FOR STAMP DUT Y, AS PER CIRCLE RATE IS RS.82.54 LAC S WHEREAS THE SALE VALUE IS RS.31 LAC AND, THEREFORE, THERE IS DIFFERENCE BETWEEN THE TWO FIGURES. NO DOUBT THERE IS DIFFERENCE IN VALUE OF SALE PROCEEDS AS PER SALE DEED AND AS PER CIRCLE RATE BUT THIS IN ITSELF IS NO T SUFFICIENT TO FORM A SATISFACTION THAT THERE IS SOME ESCAPEMENT OF INCOME WHEN THE ASSESSEE HAS CONSIDERED THE HIGHER VALUE OF RS.82.54 LAC S AS SALE VALUE IN THE COMPUTATION OF INCOME FOR COMPUTING THE 4 CAPITAL GAIN. HENCE, IT IS SEEN THAT THERE IS NO BA SIS OF ASSESSING OFFICERS SATISFACTION REGARDING ALLEGED ESCAPEMENT OF INCOME AND, THEREFORE, IN OUR CONSIDERED OPINION, REOPENING IS NOT VALID. THEREFORE, WE QUASH THE RE ASSESSMENT FOR THIS REASON ALONE THAT NO VALID REASONS WERE RECORDED BY THE ASSESSI NG OFFICER REGARDING THE ESCAPEMENT OF INCOME WHICH IS ESSENTIAL FOR INITIATING THE REOPENING PROCEEDINGS. THE ASSESSMENT IS QUASHED. 6. IN VIEW OF OUR DECISION REGARDING VALIDITY OF REASSESSMENT PROCEEDINGS, THE OTHER GROUNDS RAISED BY THE ASSESSEE ON M ERIT DO NOT CALL FOR ANY ADJUDICATION. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED AND THE STAY PETITION IS DISMISSED AS INFRUCTUOUS. (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 /01/2014 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. DR, ITAT, LUCKNOW