Asstt. Commissioner Of Income Tax-III, Kanpur V. Shri Kamal Raheja, Kanpur

ITA 555/LKW/2013

• Counselvise Citation: 55523714 RSA 2013
• Duration Of Justice: 1 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-04-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 17-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SWATI RATNA
• Keywords: Opportunity of being heard
• Section: 142(1); 148; 144

Judgement Text

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.555/LKW/2013 ASSESSMENT YEAR: ACIT-III KANPUR V. SHRI. KAMAL RAHEJA L/H OF LATE SRI CHAND 7.87, TILAK NAGAR, KANPUR TAN/PAN:ABJPR2102G (APPELLANT) (RESPONDENT) APPELLANT BY: SMT. SWATI RATNA, D.R. RESPONDENT BY: SHRI. RAKESH GARG, ADVOCATE DATE OF HEARING: 15 04 2015 DATE OF PRONOUNCEMENT: 23 04 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) ON A SOLITARY GROUND THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.53,17,840/- WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER. 2. THE FACTS IN BRIEF BORNE OUT FROM THE RECORD ARE THAT ON RECEIPT OF INFORMATION THAT PROPERTY NO.74/38, DHANKUTTI, KANPUR HAVE BEEN SOLD IN TWO PARTS IN FINANCIAL YEAR 2002-03 AND THERE WAS A DIFFERENCE OF RS.53,17,844/- BETWEEN THE VALUE ADOPTED FOR THE STAMP DUTY PURPOSE AND THE SALE CONSIDERATION FOR BOTH THE TRANSACTIONS, THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT FOR ASSESSMENT YEAR 2003-04 AND ISSUED NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') TO THE ASSESSEE. THE ASSESSEE HAS NOT MADE ANY COMPLIANCE TO THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. THE ASSESSING OFFICER, :- 2 -: THEREAFTER, ISSUED NOTICE UNDER SECTION 142(1) OF THE ACT, BUT THE SAME WAS ALSO NOT COMPLIED WITH. THEREAFTER OTHER NOTICES UNDER SECTION 142(1) OF THE ACT WERE ALSO ISSUED BUT THEY WERE ALSO NOT RESPONDED. FINALLY, THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT UNDER SECTION 144 OF THE ACT AND MADE ADDITION OF RS.53,17,844/- ON ACCOUNT OF DIFFERENCE BETWEEN THE VALUE ADOPTED FOR THE STAMP DUTY PURPOSE AND THE SALE CONSIDERATION DECLARED BY THE ASSESSEE. 3. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WITH THE SUBMISSION THAT THE IMPUGNED PROPERTY I.E. PROPERTY NO.74/38, DHANKUTTI, KANPUR WAS NOT OWNED BY THE ASSESSEE AND WAS ACTUALLY RENTED TO THE ASSESSEE. THE LD. CIT(A) CALLED FOR A REMAND REPORT ON THE SUBMISSIONS FILED BY THE ASSESSEE. THE ASSESSING OFFICER SOUGHT TIME TO SUBMIT THE REMAND REPORT. INITIALLY TIME WAS GRANTED BY THE LD. CIT(A) TO SUBMIT THE REMAND REPORT, BUT LATER ON THE LD. CIT(A) REJECTED THE REQUEST FOR EXTENSION OF TIME AND DECIDED THE APPEAL DELETING THE ADDITION MADE BY THE ASSESSING OFFICER, HAVING ACCEPTED THE CONTENTIONS OF THE ASSESSEE. BEFORE THE LD. CIT(A), IT WAS SUBMITTED BY THE ASSESSEE THAT THE PROPERTY BELONGS TO SHRI. RAM CHANDRA JI, LAXMAN JI, JANKI JI, SHIV JI SERVKAR, SHIV NARAIN KHANNA SMT. KASHMIRI BIVI SAMALDAS AND SMT. DEV KALI BIVI W/O SHRI. SHIV NARAIN AS PER PANCHSHALA DATED 31.8.2012 SUBMITTED BEFORE THE LD. CIT(A). 4. AGGRIEVED, THE REVENUE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT ON THE BASIS OF THE AIR INFORMATION AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS, DESPITE OPPORTUNITIES NONE APPEARED ON BEHALF OF THE ASSESSEE. DURING THE COURSE OF REMAND PROCEEDINGS, THE ASSESSING OFFICER HAS SOUGHT INFORMATION IN ORDER TO SUBMIT REPORT, BUT THE SAID INFORMATION WAS NOT SUBMITTED TO THE ASSESSING OFFICER. THEREFORE, THE ASSESSING OFFICER COULD NOT EXAMINE THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE RELEVANT EVIDENCE. THE LD. D.R. HAS FURTHER CONTENDED THAT IN THE :- 3 -: INTEREST OF JUSTICE, THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE REMANDED TO THE ASSESSING OFFICER WITH A DIRECTION TO RE- ADJUDICATE THE ISSUE IN THE LIGHT OF EVIDENCE FILED BY THE ASSESSEE BEFORE THE LD. CIT(A). 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS SUBMITTED THAT THE LD. CIT(A) HAS AFFORDED SUFFICIENT TIME TO THE ASSESSING OFFICER TO SUBMIT HIS COMMENTS ON THE CONTENTIONS RAISED BY THE ASSESSEE, BUT THE ASSESSING OFFICER DID NOT SUBMIT THE REPORT AND THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION. 6. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT ON THE BASIS OF THE AIR INFORMATION AND ISSUED NOTICE UNDER SECTION 148 OF THE ACT TO THE ASSESSEE, BUT THE ASSESSEE DID NOT RESPOND THE SAME. THEREAFTER NOTICES UNDER SECTION 142(1) OF THE ACT WERE ALSO ISSUED, BUT THE SAME WERE NOT COMPLIED BY THE ASSESSEE AND THE ASSESSING OFFICER HAD NO OTHER OPTION BUT TO MAKE THE ADDITION ON THE BASIS OF INFORMATION RECEIVED. BEFORE THE LD. CIT(A), THOUGH THE ASSESSEE HAS TOOK A PLEA THAT THE IMPUGNED PROPERTY I.E. PROPERTY NO.74/38, DHANKUTTI, KANPUR WAS NOT OWNED BY THE ASSESSEE AND THE SAME WAS ACTUALLY RENTED TO THE ASSESSEE; BUT NO EVIDENCE IN THIS REGARD HAS BEEN FILED BEFORE THE LD. CIT(A). IT IS ALSO OBVIOUS FROM THE RECORD THAT THOUGH THE LD. CIT(A) HAS AFFORDED VARIOUS OPPORTUNITIES TO THE ASSESSING OFFICER TO SUBMIT THE REPORT, BUT THE REPORT WAS NOT SUBMITTED AND AS PER THE REVENUE, THE REPORT COULD NOT BE SUBMITTED ON ACCOUNT OF INVOLVEMENT OF THE ASSESSING OFFICER IN TIME-BARRING CASES AND THESE FACTS WERE WELL KNOWN TO THE LD. CIT(A) AND THE LD. CIT(A) SHOULD HAVE GRANTED SOME MORE TIME TO THE ASSESSING OFFICER TO SUBMIT HIS REPORT. 7. WE HAVE ALSO CAREFULLY EXAMINED THE LETTER WRITTEN BY THE DCIT DATED 1.9.2011 SEEKING CERTAIN DOCUMENTS FROM THE ASSESSEE AND IN RESPONSE :- 4 -: THERETO, IT WAS CONTENDED BY THE ASSESSEE THAT THE PROPERTY WAS OWNED BY SHRI. NAVEEN KHANNA BUT BEFORE THE LD. CIT(A) IT WAS STATED THAT THE PROPERTY BELONGS TO SHRI. RAM CHANDRA JI, LAXMAN JI, JANKI JI, SHIV JI SERVKAR, SHIV NARAIN KHANNA SMT. KASHMIRI BIVI SAMALDAS AND SMT. DEV KALI BIVI W/O SHRI. SHIV NARAIN. THE LD. CIT(A) HAS NOT EXAMINED THE ACTUAL OWNERSHIP OF THE PROPERTY DURING THE COURSE OF APPELLATE PROCEEDINGS THOUGH HE IS ARMED WITH CO-TERMINUS POWER OF THAT OF THE ASSESSING OFFICER. THE LD. CIT(A) HAS NOT MENTIONED ANYWHERE IN HIS ORDER AS TO ON WHAT BASIS THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT. IT IS ALSO NOT CLEAR FROM THE ORDERS OF THE LOWER AUTHORITIES WHETHER THERE WAS ANY DEPOSIT IN THE ACCOUNTS OF THE ASSESSEE OR FROM WHERE THE ASSESSING OFFICER HAS GOT THE INFORMATION THAT THE INCOME HAS ESCAPED ASSESSMENT IN THE HANDS OF THE ASSESSEE. ALL THESE QUESTIONS ARE REMAINED UNANSWERED IN THIS MATTER. WE ARE, THEREFORE, OF THE VIEW THAT SINCE THE ISSUE WAS NOT PROPERLY ADJUDICATED BY THE LD. CIT(A) AND THE ASSESSING OFFICER, THE MATTER MAY BE RE-EXAMINED BY THE ASSESSING OFFICER IN THE INTEREST OF JUSTICE. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO RE-ADJUDICATE THE ISSUE AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23 RD APRIL, 2015 JJ:1604 :- 5 -: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR