SHRI PREM SINGH, AJMER V. INCOME TAX OFFICER, WARD-2-1, AJMER

ITA 577/JPR/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 5376 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 01-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI JCIT DHK
• Assessee Lawyers: S S SHEKHAWAT
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Period of limitation; Additional evidence; Corroborative evidences; Time period of passing order
• Section: 54B; 50C; 147; 54; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 577/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2011-12 PREM SINGH, S/O- SHRI INDRA SINGH, 85, RAWAT MOHALLA, LOHAGAL, AJMER-305001 CUKE VS. INCOME TAX OFFICER, WARD-2(1), AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: FVQPS 8725 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.S. SHEKHAWAT (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI J.C. KULHARI (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03/10/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 08/10/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 13/10/2016 OF LD. CIT(A), AJMER FOR THE A.Y. 2011-1 2. 2. SINCE THE APPEAL WAS FILED ON 01/5/2018, THEREFOR E, IT APPEARS THAT THERE WAS A DELAY OF MORE THAN ONE YEAR IN FILING TH E PRESENT APPEAL. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE RECEIVED THE IMPUGNED ORDER ONLY ON 26/3/2018 WHEN THE CERTIFIED COPY OF THE SAID ORDER WAS OBTAINED BY THE ASSESSEE FROM THE OFFICE OF THE LD. CIT(A). THUS, HE HAS ITA 577/JP/2018_ PREM SINGH VS ITO 2 CONTENDED THAT THE APPEAL FILED BY THE ASSESSEE IS WITHIN THE PERIOD OF LIMITATION FROM THE DATE OF RECEIPT OF THE IMPUGNED ORDER. 3. ON THE DIRECTION OF THE BENCH, THE LD. DR HAS FI LED THE RECORD OF SERVICE OF THE IMPUGNED ORDER FROM THE OFFICE OF LD . CIT(A). THE LD DR HAS ALSO FILED A COPY OF THE RETURNED ENVELOP WITH THE P OSTAL REMARK AS REFUSED TO RECEIVE. THE LD DR HAS THUS OBJECTED TO THE MAIN TAINABILITY OF THE PRESENT APPEAL AND SUBMITTED THAT THE ASSESSEE DID NOT RECEIVE ORDER SENT BY THE OFFICE OF THE LD. CIT(A) ON 09/11/2016, WHICH WAS RECEIVED BACK UNSERVED, THEREFORE, THE SUBSEQUENT CERTIFIED COPY OF THE IMPUGNED ORDER OBTAINED BY THE ASSESSEE WILL NOT CHANGE THE RECKONI NG OF LIMITATION PERIOD. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL A S RELEVANT MATERIAL ON RECORD WE NOTE THAT THE IMPUGNED ORDER SENT BY TH E LD. CIT(A) THROUGH REGISTERED POST ON 09/11/2016 WAS RECEIVED BACK UNSE RVED AS PER THE POSTAL REMARKS DATED 07/11/2016. SINCE THE FACT OF NON-DELIVERY OF THE ORDER IS NOT IN DISPUTE, HOWEVER, THE REASONS FOR NO N-DELIVERY CAN BE A DEBATABLE FACT AS IN ABSENCE OF ANY FURTHER MATERIA L OR FACT TO SHOW THAT THE REMARK OF THE POSTAL AUTHORITY CAN BE TAKEN THA T THE ASSESSEE REFUSED THE RECEIPT OF THE ORDER OR SOMEBODY ELSE HAS REFUS ED. FURTHER IT IS ALSO NOT IN DISPUTE THAT THE CERTIFIED COPY OF THE IMPUGNED ORDER WAS RECEIVED BY THE ASSESSEE ON 26/3/2018, THEREFORE, HAVING REGARD TO THE FACTS AND ITA 577/JP/2018_ PREM SINGH VS ITO 3 CIRCUMSTANCES OF THE CASE AND THE BACKGROUND OF THE ASSESSEE, WHO IS A FARMER AND NOT A REGULAR ASSESSEE TO TAX, WE ACCEPT THE CONTENTION OF THE LD AR AND ADMIT THE APPEAL OF THE ASSESSEE FOR DISP OSAL ON MERITS. 5. IN THE PRESENT APPEAL, THE ASSESSEE HAS RAISED F OLLOWING GROUNDS OF APPEAL: 1. THE A.O., WARD 2(1), AJMER MADE ADDITION AND LD . CIT(A) CONFIRMED THAT THE ADDITION OF RS. 5,30,591/- AND CREATED DEM AND OF RS. 1,09,302 WITHOUT CONSIDERING DEDUCTION U/S 54 OF TH E IT ACT FOR WHICH ASSESSEE WAS WELL ELIGIBLE FOR THAT STATUTORY DEDUC TION HAVING INVESTED ON PURCHASING PROPERTY WITHIN SIX MONTHS FROM THE D ATE OF SOLD PROPERTY UNDER CONSIDERATION, HENCE ORDER PASSED IS AGAINST THE LAW AND FACTS. 2. THE A.O. AS WELL AS THE LD. CIT(A) AJMER NOT PRO VIDED OPPORTUNITY OF BEING HEARD AND TO SUBMIT THE PAPERS IN HIS SUPPORT BEFORE PASSING ORDER. 3. THE ASSESSEE CRAVES TO MAKE CORRECTION, ALTERATI ON, ADDITION, MODIFICATION IN GROUNDS OF APPEAL ON OR BEFORE THE FINAL DATE OF HEARING. 6. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS REGARDI NG THE DISALLOWANCE OF DEDUCTION CLAIMED U/S 54 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE ASSESSING OFFICER HAS INITIATED THE PROCEEDINGS U/S 147 OF THE ACT ON THE ISSUE OF THE CAPITAL GAIN ARISING FROM SALE OF THE IMMOVABLE PROPERTY JOINTLY BY THE ASSESSEE ALONGWITH OTHER FAMILY MEMBE RS VIDE SALE DEED DATED 05/5/2010 FOR A CONSIDERATION OF RS. 3,50,000 /-. THE ASSESSMENT WAS COMPLETED EX PARTE U/S 147 READ WITH SECTION 144 OF THE ACT AS NOBODY HAD APPEARED ON BEHALF OF THE ASSESSEE. THE ASSESSIN G OFFICER HAS ADOPTED ITA 577/JP/2018_ PREM SINGH VS ITO 4 THE FULL VALUE CONSIDERATION AS PER SECTION 50C OF THE ACT AND THEREBY ASSESSED LONG TERM CAPITAL GAIN AT RS. 5,30,591/-. 7. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSI NG OFFICER BEFORE THE LD. CIT(A) ALSO CLAIMED DEDUCTION U/S 54B OF THE ACT AGAINST THE PURCHASE OF AGRICULTURAL LAND. HOWEVER, THE LD. CIT(A ) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER IN ABSENCE OF ANY E VIDENCE IN SUPPORT OF THE CLAIM OF DEDUCTION U/S 54B OF THE ACT. 8. BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITT ED THAT SINCE THE PURCHASE DEED BY WHICH THE ASSESSEE PURCHASED THE A GRICULTURAL LAND WAS MISPLACED AND THEREFORE, THE ASSESSEE COULD NOT PRO DUCE THE SAME BEFORE THE LD. CIT(A). HE HAS FILED CERTIFIED COPY OF THE S ALE DEED DATED 07/6/2010 AND SUBMITTED THAT WHEN THE ASSESSEE HAS INVESTED TH E ENTIRE SALE CONSIDERATION IN PURCHASE OF AGRICULTURAL LAND THEN THE DEDUCTION U/S 54B OF THE ACT IS AVAILABLE TO THE ASSESSEE. HE HAS, THUS, CONTENDED THAT DUE TO THE RURAL BACKGROUND AND ILLITERACY OF THE ASSESSEE , THE ASSESSEE COULD NOT TAKE APPROPRIATE STEPS FOR PRODUCTION OF THE SALE D EED IN SUPPORT OF THE CLAIM U/S 54B OF THE ACT. HENCE, HE HAS SUBMITTED A DDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE MAY BE CONSIDERED FOR THE PURPOSE OF DEDUCTION U/S 54B OF THE ACT. ITA 577/JP/2018_ PREM SINGH VS ITO 5 9. ON THE OTHER HAND, THE LD DR HAS OBJECTED TO THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE AT THIS STAGE AND SUBMITTE D THAT DESPITE SUFFICIENT OPPORTUNITIES GIVEN BY THE ASSESSING OFF ICER AS WELL AS THE LD. CIT(A). THE ASSESSEE DID NOT PRODUCE ANY EVIDENCE AND THEREFORE, THE SAME CANNOT BE ADMITTED AT THIS STAGE. 10. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. AT THE OUTSET, WE NOTE THAT THE ASSESSEE IS NOT ASSESSED TO TAX PRIOR TO THE YEAR UNDER CONSIDERATION AS THE ASSESS EE IS ONLY AGRICULTURIST AND HAVING NO SOURCE OF INCOME LIABLE TO TAX EXCEPT THE SALE OF THE IMMOVABLE PROPERTY DURING THE YEAR UNDER CONSIDERAT ION. HENCE, WE FIND THAT THE SALE DEED DATED 07/6/2010 IS AN EVIDENCE WH ICH CAN BE VERIFIED INDEPENDENTLY FROM THE RECORD OF THE SUB-REGISTRAR, THE ADMISSION OF THE SAME CANNOT BE DENIED IN SUPPORT OF THE CLAIM OF DE DUCTION U/S 54 OF THE ACT. IT IS ALSO NOT IN DISPUTE THAT THE CLAIM OF TH E ASSESSEE WAS DENIED BY THE LD. CIT(A) FOR WANT OF THE SUPPORTING EVIDENCE. A CCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN THE SALE DEED DAT ED 07/6/2010 WAS A REGISTERED DOCUMENT AND EXISTED AT THE TIME OF ASSE SSMENT, WHICH CANNOT BE MANIPULATED SUBSEQUENTLY IS REQUIRED TO BE CONSI DERED FOR THE PURPOSE OF ELIGIBILITY OF CLAIM U/S 54/54B OF THE ACT. HENC E, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE MATTER BACK TO THE RECORD OF THE AS SESSING OFFICER FOR CONSIDERING THE CLAIM OF THE ASSESSEE U/S 54/54B OF THE ACT AFTER ITA 577/JP/2018_ PREM SINGH VS ITO 6 VERIFICATION OF THE INVESTMENT AS CLAIMED VIDE SALE DEED DATED 07/6/2010. THE COPY OF WHICH HAS BEEN FILED BY THE ASSESSEE BEFO RE US. NEEDLESS TO SAY THAT THE ASSESSEE BE GIVEN ADEQUATE OPPORTUNITY OF HEARING. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 08/10/2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08 TH OCTOBER, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI PREM SINGH, AJMER. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD-2(1), AJMER. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 577/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR