M/s Mahaveer Audhogik Asthan (Sansthan), New Delhi V. ITO, Haldwani

ITA 5549/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7678 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 17-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 14-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Opportunity of being heard; Question of law; Cost of acquisition; Right to appeal
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. KULDIP SINGH , JM ITA NO S . 5549 TO 5551 /DEL/2013 : ASSTT. YEAR S : 200 8 - 09 TO 2010 - 11 M/S MAHAVEER AUDHOGIK A STHAN (SANSTHAN), C/O - M/S RRA TAX INDIA, D - 28, SOUTH EXTENSION, PART - I, NEW DELHI - 110049 VS INCOME TAX OFFICER, HALDWANI (APPELLANT) (RESPONDENT) PAN NO. AA BAM2111Q ASSESSEE BY : SH. RAKESH GUPTA, ADV. REVE NUE BY : SH. P. DAM KANUNJNA, SR. DR DATE OF HEARING : 17 .0 5 .201 6 DATE OF PRONOUNCE MENT : 19 .05 .201 6 ORDER PER N. K. SAINI, AM : THESE THREE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 23.07.201 3 OF THE LD. CIT(A) - II, DEHRADUN. 2. IN ALL THESE APPEALS THE ASSESSEE HAS MOVED APPLICATION S FOR ADMISSION OF THE ADDITIONAL GROUNDS BY STATING THEREIN THAT THESE ADDITIONAL GROUNDS ARE PURELY LEGAL GROUND S, DID NOT REQUIRE FRESH FACTS TO BE INVESTIGATED AND GO TO THE ROOT OF THE MATTER, THEREFORE, THESE GROUNDS TO BE ADMITTED. THE RELIANCE HAS BEEN PLACED ON THE JUDGMENT OF ITA NO S. 5549 TO 5551 /DE L/2013 MAHAVEER AUDHOGIK ASTHAN 2 THE HON BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER COMPANY LTD. VS CIT (1998) 229 ITR 383. 3. THE ADDITIONAL GROUNDS R AISED BY THE ASSESSEE IN THE DIFFERENT ASSESSMENT YEAR I.E. ASSESSMENT YEAR S 2008 - 09 TO 2010 - 11 ARE REPRODUCED AS UNDER: ASSESSMENT YEAR 2008 - 09 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT QUASHING THE IMPUGNED ASSESSMENT ORDER FRAMED BY LD. AO AND THAT TOO WITHOUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT COMPLYING WITH MANDATORY CONDITIONS AS ENVISAGED U/S 147 TO 151 OF THE INCOME TAX ACT, 1961. 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, I NCOME WHICH HAS BEEN ASSESSED IS WRONG IN AS MUCH AS THE COST OF ACQUISITION OF THE LAND OUGHT TO HAVE BEEN TAKEN AT THE PRICE ADOPTED WHILE CALCULATING CAPITAL GAIN IN THE HANDS OF THE MEMBER OF THE AOP. ASSESSMENT YEAR 200 9 - 10 1 . THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, I NCOME WHICH HAS BEEN ASSESSED IS WRONG IN AS MUCH AS THE COST OF ACQUISITION OF THE LAND OUGHT TO HAVE BEEN TAKEN AT THE PRICE ADOPTED WHILE CALCULATING CAPITAL GAIN IN THE HANDS OF THE MEMBER OF THE AOP. ITA NO S. 5549 TO 5551 /DE L/2013 MAHAVEER AUDHOGIK ASTHAN 3 ASSE SSMENT YEAR 2010 - 11 1 . THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, I NCOME WHICH HAS BEEN ASSESSED IS WRONG IN AS MUCH AS THE COST OF ACQUISITION OF THE LAND OUGHT TO HAVE BEEN TAKEN AT THE PRICE ADOPTED WHILE CALCULATING CAPITAL GAIN IN THE HANDS OF T HE MEMBER OF THE AOP. 4. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE CONTENTS OF THE AFORESAID APPLICATION S MOVED BY THE ASSESSEE FOR ADMISSION OF THE ADDITIONAL GROUNDS. IT WAS FURTHER STATED THAT THESE GROUNDS GO TO THE ROOT OF THE MATTER AND ALL THE RELEVANT MATERIAL IS ALREADY AVAILABLE ON THE RECORD WHICH DO NOT REQUIRE ANY VERIFICATION OR INVESTIGATION AT THE LEVEL OF THE ITAT, THEREFORE, THESE GROUNDS MAY BE ADMITTED. HE ALSO SUBMITTED THAT AS GROUNDS NOW RAISED WER E NOT EARLI ER RAISED BEFORE THE LD. CIT(A), TH EREFORE, THE MATTER MAY BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION OF THESE GROUNDS. THE LD. DR ALTHOUGH SUPPORTED THE IMPUGNED ORDERS PASSED BY THE LD. CIT(A) B UT DID NOT OBJECT IF THE MATTER T O BE RESTORED TO THE LD. CIT(A) FOR ADJUDICATION OF THESE ADDITIONAL GROUNDS. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ADDITIONAL GROUNDS NOW RAISED BY THE ASSESSEE WERE NOT ITA NO S. 5549 TO 5551 /DE L/2013 MAHAVEER AUDHOGIK ASTHAN 4 EARLIER RAISED BEFORE THE LD. CIT(A). HOWEVER, THESE GROUNDS ARE VERY MUCH RELEVANT AND GO TO THE ROOT OF THE MATTER, SO THESE LEGAL GROUNDS DESERVE TO BE ADMITTED AS PER THE RATIO LAID DOWN BY THE HON BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER COMPANY LTD. VS CIT (1998) 229 ITR 383 (SUPRA) WHEREIN IT HAS BEEN HELD AS UNDER: THE POWER OF THE TRIBUNAL IN DEALING WITH APPEALS IS THUS EXPRESSED IN THE WIDEST POSSIBLE TERMS. THE PURPOSE OF TH E ASSESSMENT PROCEEDINGS BEFORE THE TAXING AUTHORITIES IS TO ASSESSEE CORRECTLY THE TAX LIABILITY OF AN ASSESSEE IN ACCORDANCE WITH LAW. IF, FOR EXAMPLE, AS A RESULT OF A JUDICIAL DECISION GIVEN WHILE THE APPEAL IS PENDING BEFORE THE TRIBUNAL, IT IS FOUND THAT A NON - TAXABLE ITEM IS TAXED OR A PERMISSIBLE DEDUCTION IS DENIED, THERE IS NO REASON WHY THE ASSESSEE SHOULD BE PREVENTED FROM RAISING THAT QUESTION BEFORE THE TRIBUNAL FOR THE FIRST TIME, SO LONG AS THE RELEVANT FACTS ARE ON RECORD IN RESPECT OF THE ITEM. THERE IS NO REASON TO RESTRICT THE POWER OF THE TRIBUNAL UNDER SECTION 254 ONLY TO DECIDE THE GROUNDS WHICH ARISE FROM THE ORDER OF THE COMMISSION OF INCOME - TAX (APPEALS). BOTH THE ASSESSEE AS WELL AS THE DEPARTMENT HAVE A RIGHT TO FILE AN APPEAL/CRO SS - OBJECTIONS BEFORE THE TRIBUNAL. THE TRIBUNAL SHOULD NOT BE PREVENTED FROM CONSIDERING QUESTIONS OF LAW ARISING IN ASSESSMENT PROCEEDINGS, ALTHOUGH NOT RAISED EARLIER. THE VIEW THAT THE TRIBUNAL IS CONFINED ONLY TO ISSUES ARISING OUT OF THE APPEAL BEFORE THE COMMISSIONER (APPEALS) IS TOO NARROW A VIEW TO TAKE OF THE POWERS OF THE TRIBUNAL. ITA NO S. 5549 TO 5551 /DE L/2013 MAHAVEER AUDHOGIK ASTHAN 5 IT HAS FURTHER BEEN HELD THAT: UNDOUBTEDLY, THE TRIBUNAL HAS THE DISCRETION TO ALLOW OR NOT TO ALLOW A NEW GROUND TO BE RAISED. BUT WHERE THE TRIBUNAL IS ONLY RE QUIRED TO CONSIDER THE QUESTION OF LAW ARISING FROM FACTS WHICH ARE ON RECORD IN THE ASSESSMENT PROCEEDINGS, THERE IS NO REASON WHY SUCH A QUESTION SHOULD NOT BE ALLOWED TO BE RAISED WHEN IT IS NECESSARY TO CONSIDER THAT QUESTION IN ORDER TO CORRECTLY ASSE SS THE TAX LIABILITY OF AN ASSESSEE. 6. IN VIEW OF THE RATIO LAID DOWN BY THE HON BLE APEX COURT, THE ADDITIONAL GROUNDS MOVED BY THE ASSESSEE ARE ADMITTED AND AS BOTH THE PARTIES AGREED FOR RESTORATION OF THESE GROUNDS TO THE LD. CIT(A) FOR ADJUDICATION . THEREFORE, THESE GROUNDS ARE RESTORED TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . IN THE RESULT, APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATIST ICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 19 /05 / 2016 ) SD/ - SD/ - ( KULDIP SINGH ) ( N. K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DA TED: 19 /05 /2016 *SUBODH* COPY FORWARDED TO: 1. APPELL ANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR