Dy.Commissioner of Income -tax 1(1), RAIPUR (CG) V. Shri Sandeep Bahal L/H of Late Shri Prem Sagar Behl, RAIPUR (CG)

ITA 56/BIL/2012

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3937 (ITAT-RAIPUR)
• Duration Of Justice: 7 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 14-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R B DOSHI
• Keywords: Depreciation; Principle of natural justice; Additional evidence; Fair market value; Valuation report; Set aside; Capital Gains
• Section: 201; 251

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI PARTHA SARATHI CHAUDHU RY , JM . / I TA NO. 52 / BLPR /20 12 / ASSESSMENT YEAR : 2009 - 10 SANDEEP BEHL, L/H OF LATE PREM SAGAR BEHL, A - 13, VIP ESTATE, SHANKAR NAGAR, RAIPUR (C.G) PAN : AHAPB6319G ....... / APPELLANT / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX - 1(1) RAIPUR (C.G) / RESPONDENT . / ITA NO. 56/RPR/2012 / ASSESSMENT YEAR : 2009 - 10 THE DEPUTY COMMISSIONER OF INCOME TAX - 1(1) RAIPUR (C.G) ....... / APPELLANT / V/S. SANDEEP BEHL, L/H OF LATE PREM SAGAR BEHL, A - 13, VIP ESTATE, SHANKAR NAGAR, RAIPUR (C.G) PAN : AHAPB6319G / RESPONDENT 2 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 A SSESSEE BY : SHRI R.B. DOSHI REVENUE BY : SHRI SANJAY KUMAR / DATE OF HEARING : 0 7 . 11 .2019 / DATE OF PRONOUNCEMENT : 0 7 .11 .2019 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM : THESE CROSS APPEAL S PREFERRED BY THE ASSESSEE AND REVENUE EMANATES FROM THE ORDER OF THE LD. CIT(A PPEALS ) , RAIPUR DATED 15.03.2012 FOR THE ASSESSMENT YEAR 2009 - 10 AS PER THE GROUNDS OF APPEAL ON RECORD. 2. THESE CASES WERE HEARD TOGETHER. SINCE FACTS COMMON AND ISSUES ARE SIMILAR, THESE CASES ARE BEING DISPOSED OF VIDE THIS CONSOLIDATED ORDER. FOR THE SAKE OF CONVENIENCE, WE WOULD FIRST ADJUDICATE THE REVENUES APPEAL IN ITA NO.56/BLPR/2012 FOR THE ASSESSMENT YEAR 2009 - 10. ITA NO.56/BLPR/2012 ( BY REVENUE) A.Y 2009 - 10 3. IN ITA NO.56/BLPR/2012, GROUNDS RAISED BY THE REVENUE ARE AS FOLLOWS: 1. WHETHER IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CALCULATING THE FAI R MARKET VALUE FOR THE LAND SOLD BY THE ASSESSEE U/S.55(2) (B) AT RS.20/ - SQ.FT. INSTEAD OF RS.0.06 / - SQ. FT. TAKEN BY 3 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 THE AO DISREGARDING THE GOVERNMENT RATE GUIDELINES SUPPLIED BY THE REGISTRAR AT THE COLLECTORATE. 2. WHETHER IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING DEDUCTION OF RS.65,776/ - U/S.50 OF THE I.T. ACT, 1961 WHEN THERE WAS NO CONSTRUCTION ON THE SAID LAND. 3. WHETHER IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.10,00,000/ - MADE BY THE AO ON ACCOUNT OF BROKERAGE/COMMISSION PAID FOR SALE OF LAND. 4. WHETHER IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING DEDUCTION OF RS.32,47,100/ - NOT CLAIM ED BY THE ASSESSEE IN ITS RETURN OF INCOME U/S.54B OF THE I.T ACT, 1961. 5. THE ORDER OF THE LD. CIT(A) IS ERRONEOUS BOTH IN LAW AND ON FACTS 6. ANY OTHER GROUND THAT MAY BE ADDUCED AT THE TIME OF HEARING 3.1 IN ITA NO.52/BLPR/2012 , THE ASSESSEE HAS RAISED THE SIMILAR GROUND AS RAISED BY THE REVENUE IN FIRST GROUND OF ITA NO.56/BLPR/2012 AND THE SAME IS AS UNDER: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(APPEALS) ERRED IN DIRECTING THE AO TO ADOPT THE FAIR MARKET VALUE AS ON 01. 04.1981 OF THE LAND SOLD BY THE APPELLANT AT RS.20/ - PER SQ.FT. IN PLACE OF RS.50/ - PER SQ.FT. CLAIMED BY THE APPELLANT ON THE BASIS OF REPORT OF APPROVED VALUER. THE ORDER OF THE LD. CIT(APPEALS) IS CONTRARY TO FACTS. IT IS EVIDENT FROM THE GROUND OF THE ASSESSEES APPEAL THAT THE ASSESSEE HAS CHALLENGED THE VALUE ADOPTED BY THE LD. CIT(A) @ RS. 20 / - PER SQ.FT. AS FAIR MARKET VALUE AS AGAINST RS.50/ - PER SQ.FT CLAIMED BY THE ASSESSEE ON THE BASIS OF REPORT OF APPROVED VALUER. 4 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 4. THAT REFERRING TO THE FIRST GROUND IN THE REVENUES APPEAL , IT IS WITH REGARD TO THE CALCULATION OF THE FAIR MARKET VALUE FOR THE LAND SOLD BY THE ASSESSEE U/S.55(2) (B) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) . 5. THE BRIEF FA CTS ON THE ISSUE ARE THAT THE ASSESSING OFFICER HAS STATED IN HIS ORDER THAT AS PER INFORMATION/DOCUMENTS RECEIVED FROM THE REGISTRAR, RAIPUR IT IS CLEAR THAT THE ASSESSEE HAD PURCHASED LAND AT LABHANDIH BEARING KHASRA NO.382/1 OF 0.426 HECTARE, KHASRA NO. 382/3 OF 0.162 HECTARE AND KHASRA NO.382/4 OF 0.214 HECTARE FROM SHRI DINESH RATHORE, FAFADIH, RAIPUR ON 15.03.1977 FOR RS.18,000/ - I.E. RS.0.20/ - SQ.FT THAT THE PURCHASE PRICE OF LAND AT LABHANDI BEARING KHASRA NO.381/1 OF 0.275 HECTARE FROM SHRI SHIVRAM PANKA, S/O. SHRI UMRAO PANKA, LABHANDI ON 21.08.1979 AT RS.12,000/ - THAT IN THE ABSENCE OF THE GOVERNMENT GUIDELINES, THE PRICE OF THE LAND PER SQUARE FEET AT VILLAGE LABHANDI AS ON 21.08.1979 WILL BE SUITABLY TAKEN AT RS.0.41 I.E. THE PURCHASE PRICE OF T HE LAND BY THE ASSESSEE THAT SINCE THE PLOT WAS AGRICULTURAL LAND AND BY CONSIDERING THE PRICE OF LAND TO INCREASE @20% PER YEAR, THE MARKET PRICE OF THE PLOT AS ON 01.04.1981 WILL BE RS.0.60 / - SQ.FT. THUS, THE FAIR MARKET VALUE OF THE LAND AS ON 01.04.19 81 IS CONSIDERED AT RS.0.60 PER SQUARE FEET INSTEAD OF RS.50/ - PER SQUARE FEET AS ADOPTED BY THE ASSESSEE. 5 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 6. THEREFORE, THE FACTS DEMONSTRATE THAT THE ASSESSING OFFICER MADE CALCULATION OF THE LAND FROM THE TIME, IT WAS PURCHASED IN THE YEAR 197 7 AND INC REASE IN THE PRICE OF LAND ESTIMATED AT 20% PER YEAR, THE ASSESSING OFFICER CALCULATED MARKET PRICE AT RS.0.60 PER SQUARE FEET. THE ASSESSING OFFICER HAS HIMSELF ESTIMATED THE FAIR MARKET VALUE OF THE LAND INSTEAD OF REFERRING THE MATTER TO THE DEPARTMENTA L VALUER (DVO). THE ASSESSEE ON THE OTHER HAND HAD TAKEN FAIR MARKET VALUE OF THE LAND AT RS.50/ - PER SQ.FT. DETERMINED BY THE REGISTERED VALUER. 7. THE LD. CIT(A) AS PER REASONS APPEARING IN HIS ORDER ESTIMATED THE FAIR MARKET VALUE OF THE LAND WITH AVE RAGE ANNUAL GROWTH R ATE OF 25% AT THAT PARTICULAR POINT OF TIME AND THUS, DETERMINED THE VALUE @RS.20/ - PER SQ. FT. HERE ALSO, THE LD. CIT(A) DID NOT MAKE ANY REFERENCE TO THE DVO. 8. THE LD. DR VEHEMENTLY SUPPORTED THE FINDINGS OF THE ASSESSING OFFICER DETERMINING THE FAIR MARKET VALUE @ RS. 0.60/ - PER SQ.FT.. HOWEVER, THE LD. DR COULD NOT CONTROVERT THE FACT THAT NEITHER THE ASSESSING OFFICER NOR THE LD. CIT(A) HAD REFERRED THE MATTER FOR DETERMINATION OF THE FAIR MARKET VALUE BEFORE THE DVO. THE LD. DR COULD NOT EXPLAIN THE BASIS OF ESTIMATION OF THE FAIR MARKET VALUE ADOPTED BY THE ASSESSING OFFICER NEITHER HE COULD EXPLAIN THE RATIONAL OF THE DECISION TAKEN BY THE LD. CIT(A) 6 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 THOUGH THE AUTHORITIES ARE NOT TECHNICALLY COMPETENT TO DETERMINE THE FAIR MARKET VALUE OF THE LAND AND FOR WHICH PURPOSE , SPECIFICALLY DEPARTMENTAL VALUER IS THERE. 9. THE LD. AR OPPOSED THE ESTIMATION ADOPTED BY THE ASSESSING OFFICER I.E. RS.0.60/ - PER SQ.FT A ND ALSO OPPOSED THE ESTIMATION DETERMINED BY THE LD. CIT(A) @ RS. 20/ - PER SQ.FT. THE LD. AR VEHEMENTLY SUBMITTED PLACING RELIANCE ON THE DECISION IN THE CASE OF SMT. PRAMILA M. DESAI, HUF VS. DCIT, CIRCLE 1(2) , BARODA IN ITA NO.04/AHD/2012 FOR ASSESSMENT Y EAR 2008 - 09, WHEREIN T HE AHMEDABAD BENCH OF THE TRIBUNAL OBSERVED THAT BEFORE US IT WAS SUBMITTED THAT WHEN THE ASSESSEE HAS SUBMITTED A REPORT OF REGISTERED VALUER, THE SAME CANNOT BE IGNORED OR VARIED OR SUBSTITUTED WITHOUT OBTAI NING VALUATION REPORT FR OM DVO. WE FIND NO REPORT OF THE DVO WAS OBTAINED AND MOREOVER, WHEN THE ASSESSEE SUBMITTED A REPORT OF THE REGISTERED VALUER, SAME CANNOT BE IGNORED OR SUBSTITUTED WITHOUT OBTAINING REPORT OF TECHNICAL PERSON I.E. DVO AND OR SOME OTHER TECHNICAL EXPERT . 10. REVERTING TO THE FACTS OF THE PRESENT CASE, IT IS UNDISPUTED AND ADMITTED FACT THAT NEITHER THE ASSESSING OFFICER NOR THE LD. CIT(A) HAD MADE REFERENCE TO THE DVO FOR ESTIMA TION OF THE FAIR MARKET VALUE OF THE SAID LAND IN QUESTION . BOTH THE AUTHORITIES EVOLVED THEIR OWN IDEAS CALCULATING THE ESTIMATION OF THE FAIR MARKET VALUE WITHOUT REFERRING THE 7 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 MATTER TO THE DVO. THIS CANNOT BE ACCEPTED WITHIN THE AMBIT OF THE INCOME TAX ACT. 11. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS. WE HAVE ALSO ANALYZED THE JUDICIAL PRONOUNCEMENTS PLACED BEFORE US. THE ASSESSEE HAS ADOPTED FAIR MARKET VALUE AS ON 01.04.1981 AT RS.50/ - PER SQ. FT. THE ASSESSING OFFICER HAS CONSIDERED TH E SAME TO BE AT RS.0.60/ - PER SQ. FT. AS PER OWN CALCULATION AND ESTIMATION WITHOUT REFERRING THE MATTER TO THE DVO. THE LD. CIT(A) AS PER REASONS APPEARING IN HIS ORDER CONSIDERED THE FAIR MARKET VALUE ON ESTIMATION BASIS @ RS. 20 / - PER SQ. FT. THAT TOO ALS O IS WITHOUT ANY REFERENCE MADE TO THE DVO. WE FIND IN THE CASE OF THULASIMANI AMMAL VS. CIT (2000) 158 CTR 5 ( MAD.) , THE HONBLE MADRAS HIGH COURT HAS HELD THAT THE MARKET VALUE SHOWN BY THE ASSESSEE WHICH WAS BASED ON VALUERS REPORT AND THERE WAS NO J USTIFIABLE REASON TO DISCARD THE SAME. SIMILARLY IN THE CASE OF SMT. PRAMILA M. DESAI VS. DCIT (SUPRA.) , THE AHMEDABAD BENCH OF THE TRIBUNAL HAS HELD THAT THE REGISTERED VALUERS REPORT CANNOT BE IGNORED OR SUBSTITUTED WITHOUT OBTAINING THE REPORT OF A TECHNICAL PERSON I.E. DVO OR SOME OTHER TECHNICAL EXPERT. 12. IN THE INSTANT CASE BEFORE US, IT IS ADMITTED AND UNDISPUTED FACT THAT THERE WAS NO REFERENCE MADE EITHER BY THE ASSESSING OFFICER OR BY THE LD. 8 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 CIT(A) TO DVO FOR DETERMINATION OF THE FAIR MAR KET VALUE OF THE LAND. IN ABSENCE OF THE DVOS REPORT, THE REJECTION BY THE REVENUE AUTHORITIES OF THE REGISTERED VALUERS REPORT SUBMITTED BY THE ASSESSEE IS NOT JUSTIFIABLE, RATHER, ARBITRARY, UN - JUDICIOUS, SUCH ACTION IS REQUIRED TO BE DISCARDED. 13. I N VIEW OF THE EXAMINATION OF FACTS AND LEGAL PARAMETERS, ENSHRINED IN THE JUDGMENTS REFERRED HEREINABOVE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO TAKE FAIR MARKET VALUE @ RS. 50/ - PER SQUARE FEET AS PROVIDE D IN THE REGIST ERED VALUERS REPORT SUBMITTED BY THE ASSESSEE. THUS, GROUND NO.1 RAISED IN APPEAL BY THE REVENUE IS DISMISSED. 14. WE HAVE DISMISSED GROU ND NO.1 OF THE REVENUES APPEAL AND GROUND NO.1 RAISED BY THE ASSESSEE IN HIS APPEAL IN ITA NO.52/BLPR/2012 IS ALLOWED. 15. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO.52/BLPR/2012 IS ALLOWED. 16. NOW, WE ADJUDICATE THE GROUND NO.2 OF THE REVENUES APPEAL WHICH PERTAINS TO ALLOWING DEDUCTION OF RS.65,776/ - U/S.50 OF THE ACT WHEN THERE WAS NO CONSTRUCTION ON THE SAID LAND. 9 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 17. THE LD. CIT(A) ON THIS ISSUE HAS HELD AND OBSERVED AS FOLLOWS: 5.3 I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER AND SUBMISSIONS OF THE APPELLANT. IT IS AN UNDISPUTED FACT THAT THE APPELLANT WAS ENGAGED I N THE BUSINESS OF POUNTRY FARMING SINCE 1997. IT IS ALSO AN UNDISPUTED FACT THAT THE SURVEY OPERATION U/S.133A WAS CONDUCTED IN THE PREMISES OF THE APPELLANT ON 07.12.1999. IN THE SAID SURVEY OPERATIONS, THE SURVEY TEAM HAD VISITED THE POULTRY FARM OF THE APPELLANT AT LALBANDIH, RAIPUR. I FIND THAT THE APPELLANT DID GIVE STATEMENT BEFORE THE SURVEY TEAM THAT HE OWNS THE POULTRY FARM LAND ON WHICH POULTRY FARM BUILDING WAS GOT CONSTRUCTED BETWEEN 1977 TO 1986 AND THAT NO INVESTMENT WAS MADE THEREAFTER, THE R ELEVANT PAGE OF THE STATEMENT IS CONTAINED IN PAGE NO.131 OF THE PAPER BOOK SUBMITTED BY THE APPELLANT. THE PHOTOGRAPHS SUBMITTED BY THE APPELLANT ARE ALSO PROVIDING STRENGTH TO THE CLAIM OF THE APPELLANT. THE BOOKS OF ACCOUNTS OF THE APPELLANT FOR THE ASS ESSMENT YEARS 2008 - 09, 2007 - 08, 2006 - 07 AND 2005 - 06 WERE AUDITED U/S.44AB AND IN THE FINANCIAL STATEMENTS ALSO, THE AUDITOR MENTIONED THE NATURE OF BUSINESS OF THE APPELLANT TO BE THAT OF POULTRY FARMING. I FIND THAT THE APPELLANT DID CLAIM DEPRECIATION IN RESPECT OF BUILDING AND CAGES, GRINDERS ETC. I AM OF THE CONSIDERED OPINION THAT MERELY BECAUSE THE FACT OF EXISTENCE OF POULTRY FARM BUILDING IS NOT EMERGING FROM THE SALE DEED, THE VITAL EVIDENCES SUBMITTED BY THE APPELLANT IN SUPPORT OF EXISTENCE OF P OULTRY FARM BUILDING CANNOT BE DISREGARDED. 5.4 IT IS ALSO SEEN THAT THE APPELLANT HAD AVAILED BANK LOAN FROM CENTRAL BANK OF INDIA FOR CONSTRUCTION OF THE POULTRY FARM BUILDING AND IN SUPPORT THEREOF THE APPELLANT HAS PLACED BEFORE ME THE COPY OF CERTIFICATES ISSUED BY THE CENTRAL BANK OF INDIA, CIVIL LINES BRANCH, RAIPUR, CONTAINED IN PAGE NO.51 AND 52 OF THE PAPER BOOK SUBMITTED BY THE APPELLANT. IN VIEW OF THE ABOVE, IT CANNOT BE DENIED THAT AT THE MOST THERE IS AN OMISSION IN THE DRAFTING OF SALE DEED OR KIST BANDI KHATONI. IT WAS THEIR INCUMBENT U PON THE AO TO MAKE THE NECESSARY ENQUIRY FROM CENTRAL BANK OF INDIA THAT HAD LEND MONEY TO THE APPELLANT. IT CANNOT BE DENIED THAT THE INFORMATION COLLECTED BY THE AO FROM M/S. R.K. HOTLIERS & DEVELOPERS (P). LIMITED IS UNRELIABLE AS THE SAME IS BIASED AND HAS BEEN GIVEN OUT OF VESTED INTEREST OF SAVING STAMP DUTY. THEREFORE, I AM CONVINCED THAT THE APPELLANT HAD CONSTRUCTED A POULTRY FARM BUILDING ON THE LAND OWNED BY HIM AT VILLAGE : LALBANDIH. AND HENCE, THE APPELLANT IS ENTITLED FOR DEDUCTION ON ACCOUN T OF COST OF CONSTRUCTION OF POULTRY FARM BUILDING ETC. HOWEVER, AS THE APPELLANT HAD CLAIMED DEPRECIATION, THE APPELLANT IS ENTITLED FOR DEDUCTION OF WRITTEN DOWN VALUE OF BUILDING ETC. AS ON 31.03.2008 IN VIEW OF THE PROVISIONS OF SECTION 50 OF THE ACT W HICH 10 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 CONTAINS SPECIAL PROVISION FOR COMPUTATION OF CAPITAL GAINS IN CASE OF DEPRECIABLE ASSETS. THUS, THE APPELLANT IS ENTITLED FOR DEDUCTION OF RS.65,776/ - (RS.60889 +RS.4887/ - ) BEING WRITTEN DOWN VALUE OF POULTRY FARMING BUILDING AND CAGES ETC. THUS, THE DEDUCTION CLAIMED BY THE APPELLANT ON ACCOUNT OF INDEXED COST OF CONSTRUCTION BY TAKING FAIR MARKET VALUE OF COST OF CONSTRUCTION AT RS.80/ - PER SQ. FT. CANNOT BE ACCEPTED. THEREFORE, THIS GROUND OF APPEAL IS DISMISSED. THE AO IS DIRECTED TO ALLOW DEDUCTI ON OF RS.65,776/ - IN VIEW OF THE PROVISIONS OF SECTION 50. 18. WE HAVE PERUSED THE CASE RECORDS AND ANALYZED THE FACTS AND CIRCUMSTANCES OF THE CASE. WE HAVE ALSO GIVEN CONSIDERABLE THOUGHT TO THE FINDINGS OF THE LD. CIT(A) ON THIS ISSUE. THE FACTS OF TH E CASE DEMONSRATES THAT THE ASSESSEE I S ENGAGED IN THE BUSINESS OF POUL TRY FARMING SINCE 1997. THE SURVEY OPERATION U/S.133A WAS CONDUCTED IN THE PREMISES OF THE APPELLANT ON 07.12.1999. IN THE SAID SURVEY OPERATIONS, THE SURVEY TEAM HAD VISITED THE POULTR Y FARM OF THE ASSESSEE AT LALBANDIH, RAIPUR. THE ASSESSEE HAD GIVEN STATEMENT BEFORE THE SURVEY TEAM THAT HE OWNS THE POULTRY FARM LAND ON WHICH POULTRY FARM BUILDING WAS GOT CONSTRUCTED BETWEEN 1977 TO 1986 . THE BOOKS OF ACCOUNTS OF THE ASSESSEE FOR THE A SSESSMENT YEARS 2008 - 09, 2007 - 08, 2006 - 07 AND 2005 - 06 WERE AUDITED U/S.44AB AND IN THE FINANCIAL STATEMENTS ALSO, THE AUDITOR MENTIONED THE NATURE OF BUSINESS OF THE ASSESSEE TO BE THAT OF POULTRY FARMING. THE MAIN BASIS OF ADDITION ON THIS GROUND WAS THAT EXISTENCE OF POULTRY FARM BUILDING WAS NOT EMERGING FROM THE SALE DEED, HOWEVER, THE OTHER VITAL EVIDENCES SUBMITTED BY THE ASSESSEE IN SUPPORT OF EXISTENCE OF POULTRY FA RM BUILDING WERE NOT CONSIDERED BY THE ASSESSING OFFICER. BUT THOSE WERE 11 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 TAKEN INTO C ONSIDERATION BY THE LD. CIT(A). THAT FURTHER IN THE RECORD, IT IS STATED THAT THE ASSESSEE HAD AVAILED BANK LOAN FROM CENTRAL BANK OF INDIA FOR CONSTRUCTION OF THE POULTRY FARM BUILDING AND IN SUPPORT THEREOF THE ASSESSEE HAS PLACED BEFORE THE LD. CIT(A), THE COP IES OF CERTIFICATES ISSUED BY THE CENTRAL BANK OF INDIA, CIVIL LINES BRANCH, RAIPUR . THE LD. CIT(A) HAD ADJUDICATED THE ISSUE REGARDING EXISTENCE OF BUILDING CONSTRUCTED RIGHT FROM THE TIME WHEN SURVEY TOOK PLACE, A DECLARATION BY THE ASSESSEE WAS M ADE BEFORE THE SURVEY TEAM REGARDING THE CONSTRUCTION OF THE POULTRY FARM BUILDING AND THE BANK LOAN WAS TAKEN BY THE ASSESSEE FOR CONSTRUCTION OF THE SAID POULTRY FARM BUILDING. ALL THESE WERE ANALYZED BY THE LD. CIT(A) AND THEREFORE, EXISTENCE OF POULTRY FARM BUILDING CANNOT BE DOUBTED. THUS, RELIEF PROVIDE D TO THE ASSESSEE AT RS.65,776/ - IN VIEW OF PROVISIONS OF SECTION 50 OF THE ACT IS THEREBY SUSTAINED AND THERE IS NO NEED FOR ANY INTERFERENCE TO THE FINDINGS OF THE LD. CIT(A). THUS, GROUND NO.2 RAISED IN APPEAL BY THE REVENUE IS DISMISSED . 19. GROUND NO.3 OF THE REVENUES APPEAL PERTAINS TO THE DELETION OF ADDITION OF RS.10,00,000/ - ON ACCOUNT OF BROKERAGE/COMMISSION PAID FOR SALE OF LAND . 20 . ON THIS ISSUE, IT WAS NOTICED BY THE ASSESSING OFFICER T HAT THE ASSESSEE HAD PAID BROKERAGE OF RS.10,00,000/ - AND THE ASSESSEE COULD 12 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 ONLY PRODUCE THE LEDGER COPY OF SALE OF ASSETS ACCOUNT THAT THE DETAILS WITH COMPLETE NAME AND ADDRESS OF THE PERSONS TO WHOM THE BROKERAGE WAS GIVEN WAS NOT SUBMITTED BY THE ASS ESSEE. THAT HOWEVER, BEFORE THE LD. CIT(A), THE ASSESSEE HAD PROVIDED COMPLETE NAMES, ADDRESS AND PAN OF THE BROKERS TO WHOM BROKERAGE/COMMISSION WAS PAID BY THE ASSESSEE. IT IS THE GRIEVANCE OF THE REVENUE THAT THE LD. CIT(A) ALLOWED THIS AMOUNT AND DELET ED THE DISALLOWANCE BY ACCEPTING THE EVIDENCES FURNISHED BEFORE HIM REGARDING GENUINENESS OF THE TRANSACTIONS AND THE BROKERAGE PAID BUT THESE EVIDENCES WERE NOT PLACED BEFORE THE ASSESSING OFFICER FOR HIS COMMENTS. 21 . WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS ON THIS ISSUE. WE FIND THAT REGARDING PAYMENT OF BROKERAGE, NO DETAILS WERE FURNISHED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. THAT HOWEVER, BEFORE THE LD. CIT(A) AS THE FACTS ON RECORD DEMONSTRATES ALL THE NECESSARY AND RELEVANT DETAILS REGARDING PAYMENT OF BROKERAGE WERE FURNISHED BEFORE THE FIRST APPELLATE AUTHORITY. THE ONLY GRIEVANCE OF THE REVENUE IS THAT THE LD. CIT(A) HAS GRANTED RELIEF TO THE ASSESSEE RELYING O N ALL THESE EVIDENC ES BUT THESE EVIDENCES WERE NOT CONFRONTED BEFORE THE ASSESSING OFFICER FOR HIS COMMENTS . WE FIND THAT THE PREMISE OF THE REVENUES CONTENTION ARISES FROM RULE 46A OF THE INCOME TAX RULES, 1962, CLAUSE (3) WHEREIN IT STATES THE COMMISSIONER (APPEALS) SHAL L NOT TAKE INTO ACCOUNT ANY EVIDENCE 13 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 PRODUCED UNDER SUB RULE (1) UNLESS THE ASSESSING OFFICER HAS BEEN ALLOWED A REASONABLE OPPORTUNITY (A) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROSS EXAMINE THE WITNESS PRODUCED BY THE APPELLANT OR; (B) TO PRODUCE AN Y EVIDENCE OR DOCUMENT OR ANY WITNESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. HOWEVER, RULE 46A(4) CATEGORICALLY STATES AS FOLLOWS: (4) NOTHING CONTAINED IN THIS RULE SHALL AFFECT THE POWER OF THE [DEPUTY COMMISSIONER (APPEALS) OR AS THE CASE MAY BE, THE COMMISSIONER (APPEALS) TO DIRECT THE PRODUCTION OF ANY DOCUMENT OR THE EXAMINATION OF ANY WITNESS, TO ENABLE HIM TO DISPOSE OF THE APPEAL OR FOR ANY OTHER SUBSTANTIAL CAUSE INCLUDING THE ENHANCEMENT OF THE ASSESSMENT OR PENALTY (WHETHER ON HIS OWN MOTION OR ON THE REQUEST OF THE [ASSESSING OFFICER] UNDER CLAUSE (A) OF SUB SECTION (1) OF SECTION 251 OR THE IMPOSITION OF PENALTY UNDER SECTION 271. THAT FROM THIS, IT IS ABSOLUTELY CLEAR THAT NOTWITHSTANDING ANY THING CO NTAINED IN THIS PARTICULAR RULE, THE COMMISSIONER (APPEALS) SHALL HAVE POWER TO DIRECT THE PRODUCTION OF ANY DOCUMENT OR EXAMINATION OF ANY WITNESS TO ENABLE HIM TO DISPOSE OF THE APPEAL. 22 . THEREFORE, IT WAS WELL WITHIN THE JURISDICTION OF THE LD. CIT(A ) TO ADMIT THOSE EVIDENCES PRODUCED BEFORE HIM AND PROVIDE RELIEF TO THE ASSESSEE. THAT MOSTLY, RULE 46(A)(3) PERTAINS TO A WHEN ANY DOUBT ARISES IN THE MIND OF THE LD. CIT(A) REGARDING ADDITIONAL EVIDENCES FURNISHED BEFORE HIM THEN HE CAN CALL FOR A REMAN D REPORT FROM THE ASSESSING OFFIC ER. 14 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 HOWEVER, IT IS NOT IN ALL CASES AND NOT FOR ALL ADDITIONAL EVIDENCES, THE LD. CIT(A) HAS TO CALL FOR REMAND REPORT FROM THE ASSESSING OFFICER. THIS IS ABSOLUTELY CLEAR FROM RULE 46(A) (4) OF THE INCOME TAX RULE, 1962. 23 . IN VIEW OF THE EXAMINATION OF THE AFORESAID MATTER, THE RELIEF PROVIDED TO THE ASSESSE E BY THE LD. CIT(A) IS SUSTAINED. THUS, GROUND NO.3 RAISED IN APPEAL BY THE REVENUE IS DISMISSED. 24 . GROUND NO.4 OF THE REVENUES APPEAL PERTAINS TO ALLOWING DEDUCTION OF RS.32,47,100/ - NOT CLAIMED BY THE ASSESSEE IN ITS RETURN OF INCOME U/S.54B OF THE ACT. 25 . THE BRIEF FACTS ON THE ISSUE ARE THAT THE ASSESSEE HAD NOT CLAIMED ANY EXEMPTION U/S.54B OF THE ACT IN RESPECT OF INVESTMENT MADE BY THE ASSESSEE IN P URCHASING AGRICULTURAL LANDS OUT OF THE SALE PROCEEDS OF AGRICULTURAL LANDS IN THE RETURN OF INCOME FILED BY THE ASSESSEE. THE ASSESSEE DID NOT CLAIM ANY SUCH EXEMPTION EVEN BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THIS CLA IM WAS FOR THE FIRST TIME CLAIMED BEFORE THE LD. CIT(A). THE LD. CIT(A) AFTER OBTAINING COMMENTS OF THE ASSESSING OFFICER AND IN VIEW OF NATURAL JUSTICE, THIS ISSUE WAS ADMITTED AND DECIDED ON MERITS BY THE LD. CIT(A). 15 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 26 . THE LD. CIT(A) AS PER REASONS AP PEARING IN HIS ORDER WHICH IS ON RECORD ALLOWED EXEMPTION U/S.54B OF THE ACT TO THE ASSESSEE IN RESPECT OF SUM OF RS.32,47,100/ - REINVESTED IN PURCHASE OF AGRICULTURAL LANDS OUT OF THE SALE PROCEEDS OF THE AGRICULTURAL LAND. 27 . AT THE TIME OF HEARING, TH E LD. DR SUBMITTED THAT THIS CLAIM OF DEDUCTION WAS NEITHER FILED IN THE RETURN OF INCOME BY THE ASSESSEE NOR WAS CLAIMED AT ANY POINT OF TIME DURING THE ASSESSMENT PROCEEDINGS. THE LD. CIT(A) THEREFORE COULD NOT HAVE GRANTED EXEMPTION U/S.54B OF THE ACT T O THE ASSESSEE EVEN IF THE ASSESSEE IS CLAIMING SUCH EXEMPTION. 28 . THE LD. AR OF THE ASSESSEE AT THE TIME OF HEARING BROUGHT TO OUR NOTICE THE DECISION OF THE RAIPUR BENCH OF THE TRIBUNAL IN ITA NO.30/RPR/2014 IN THE CASE OF PANKAJ KUMAR AGARWAL VS. INC OME TAX OFFICER , BILASPUR WHEREIN IT WAS OBSERVED BY THE BENCH AS FOLLOWS: FURTHER, WE AGREE WITH THE SUBMISSIONS OF THE LD. AR THAT IT IS DUTY OF THE ASSESSING OFFICER TO GUIDE THE ASSESSEE AND ALLOW THE DEDUCTION WHEREVER AND WHENEVER IT IS APPLICABLE DEPENDING ON FACTS AND CIRCUMSTANCES OF EACH CASE. THE INCOME TAX LAWS ARE WELFARE IN NATURE AND THE VERY PURPOSE OF WELFARE LEGISLATION IS THAT THERE SHOULD NOT BE ANY COHESIVE ACTION BY THE QU ASI - JUDICIAL AUTHORITY. EVEN IF , THE ASSESSEE HAS NOT CLAIMED, THE ASSESSING OFFICER IS DUTY BOUND TO GUIDE THE ASSESSEE AND ALLOW THE DEDUCTION. THUS, DUTY OF THE REVENUE AUTHORITY IS TO COMMUNICATE WITH THE ASSESSEE AND PROVIDE THEM REQUIRED RELIEF OR DEDUCTION FOR WHICH HE IS LEGALLY ELIGIBLE. IN THAT WAY, THERE W ILL BE CONTINUITY OF JUSTICE AND FAIR - PLAY AND THE PRINCIPLES OF NATURAL JUSTICE SHALL BE UPHELD FOR ITS TRUE PURPOSE AND APPLICABILITY. 16 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 29 . WE ALSO FIND THAT THE REVENUE AUTHORITIES HAVE NOT CONTRADICTED THE FACTS AND CIRCUMSTANCES IN THIS CASE REGARDING CLAIM OF EXEMPTION U/S.54B OF THE ACT BY THE ASSESSEE. MEANING THEREBY INGREDIENTS REQUIRED FOR THE EXEMPTION U/S.54B OF THE ACT HAVE BEEN DULY COMPLIED WITH BY THE ASSESSEE . EVEN IN THE PAPER BOOK FILED BEFORE US, EVIDENCES ARE INCLUDED IN THE FORM OF PU RCHASE DEED WHEREIN THE LAND IS RECORDED AS AGRICULTURAL LAND. SIMILARLY, WHEN THE LAND WAS REPURCHASED, IT WAS ALSO RECORDED AS AGRICULTURAL LAND. THERE ARE ALSO COPIES OF LAND REVENUE RECORDS FILED IN THE PAPER BOOK WHERE IT IS SHOWN THAT CROPS WERE GROW N ON THE SAID LAND. THEREFORE, INGREDIENTS AND THE FACTS AND CIRCUMSTANCES FOR GETTING EXEMPTION U/S.54B OF THE ACT WERE DULY COMPLIED WITH BY THE ASSESSEE. THE ONLY OMISSION, THE ASSESSEE MADE WAS THAT HE DID NOT INCLUDE THE SAME IN THE RETURN OF INCOME C LAIMING EXEMPTION U/S.54B OF THE ACT AND AS WE HAVE ALREADY TAKEN A VIEW IN ITA NO.30/RPR/2014 THAT T HE INCOME TAX LAWS ARE WELFARE IN NATURE AND THE VERY PURPOSE OF WELFARE LEGISLATION IS THAT THERE SHOULD NOT BE ANY COHESIVE ACTION BY THE QUASI - JUDICIAL AUTHORITY . IT IS THE DUTY OF THE QUASI - JUDICIAL AUTHORITY, THE ASSESSING OFFICER OR THE LD. CIT(A) TO GUIDE THE ASSESSEE TO ENABLE HIM TO GET BENEFIT WHETHER OR NOT CLAIMED BY HIM FOR WHICH HE IS LEGALLY ELIGIBLE. 17 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 30 . IN VIEW OF THE MATTER, WE DO NOT FIND ANY INFIRMITY WITH THE FINDINGS OF THE LD. CIT(A) AND RELIEF PROVIDED TO THE ASSESSEE IS HEREBY SUSTAINED. THUS, GROUND NO.4 RAISED IN APPEAL BY THE REVENUE IS DISMISSED. 31 . IN THE RESULT, APPEAL OF THE REVENUE IN IT A NO.56/BLPR/2012 IS DISMISSED. 32 . IN THE COMBINED RESULT, APPEAL OF THE ASSESSEE IN ITA NO.52/BLPR/2012 IS ALLOWED AND APPEAL OF THE REVENUE IN ITA NO.56/BLPR/2012 IS DISMISSED. ORDER PRO NOUNCED ON 7 TH DAY OF NOVEMBER , 201 9 . SD/ - SD/ - ANIL CHATURVEDI PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / RAIPUR ; / DATED : 7 TH NOVEMBER , 2019 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS), RAIPUR. 4. THE CIT, RAIPUR. 5. , , , / DR, ITAT, RAIPUR BENCH, RAIPUR . 6. / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, RAIPUR . 18 ITA NOS. 52 & 56 /BLPR/2012 A.Y. 2009 - 10 DATE 1 DRAFT DICTATED ON 0 7 .11 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 07 . 11 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER