Shri Akhilesh Joshi, Dewas V. Income Tax Officer-2, Dewas, Dewas

ITA 579/Ind/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9023 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 18-08-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K MITRA
• Assessee Lawyers: S S DESH
• Section: 54B; 54F

Judgement Text

KAMLA BAI & AKHILESH JOSHI ITA NO.578 TO 579/IND/2017 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.578/IND/2017 ASSESSMENT YEAR 2010-11 ITA NO.579/IND/2017 ASSESSMENT YEAR 2010-2011 REVENUE BY S HRI P.K. MITRA, SR.DR ASSESSEE BY SHRI S.S. DESHPANDE, ,CA DATE OF HEARING 15.10. 2018 DATE OF PRONOUNCEMENT 17 .10 .2018 O R D E R PER MANISH BORAD, AM. THESE TWO APPEALS FILED AT THE INSTANCE OF TWO ASSE SSEES NAMELY LATE SMT. KAMLA BAI ITA NO.578/IND/2017 PERTAININ G TO A.Y. LATE SMT. KAMLA BAI, L/H SHRI AKHILESH JOSHI, 8, RAJAB ALI MARG, DEWAS (M.P) VS. ITO - 2 DEWAS ( APPELLANT ) (RESPONDENT ) PAN NO. A LSPJ4932B SHRI AKHILESH JOSHI, 8, RAJAB ALI MARG, DEWAS (M.P) VS. ITO - 2 DEWAS ( APPELLANT ) (RESPONDENT ) PAN NO. ALSPJ4932B KAMLA BAI & AKHILESH JOSHI ITA NO.578 TO 579/IND/2017 2 2010-11 IN THE CASE OF SHRI AKHILESH JOSHI ITA NO. 579/IND/2017 PERTAINING TO ASSESSMENT YEAR 2010-11 ARE DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS) (I N SHORT CIT(A)), UJJAIN 29.05.2017 AND 16.05.2017 WHICH ARE ARISING OUT OF THE ORDER U/S 143(3)/148 OF THE INCOME TAX ACT 1961(IN SHORT THE ACT) DATED 16.12.2016 AND 17.12.2016 RESPECTIVELY FRAMED BY ITO-2, DEWAS. 2. AS THE ISSUES RAISED IN ALL THESE APPEALS ARE M OSTLY COMMON THEY WERE HEARD TOGETHER AND HAVE BEEN DISPOSED OFF BY THIS COMMON ORDER FOR SAKE OF CONVENIENCE AND BREVITY. 3. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE COMMO NLY STATED FOR BOTH THE APPEALS THAT, LD.CIT(A) HAS NOT ADJUDICATE D THE FACTS PROPERLY. VARIOUS DOCUMENTS WERE FILED BEFORE THE LOWER AUTHORITIES INCLUDING THOSE PERTAINING TO DEDUCTION CLAIMED U/S 54B & 54F OF THE ACT, WHICH HAVE NOT BEEN CONSIDERED. IN LIGHT OF THESE FACTS LD.COUNSEL FOR THE ASSESSEE REQUESTED FOR SETTING A SIDE ALL THE ISSUES RAISED IN BOTH THESE APPEALS TO THE FILE OF LD. ASSESSING OFFICER (IN SHORT LD.A.O) FOR DENOVO ADJUDICATION. KAMLA BAI & AKHILESH JOSHI ITA NO.578 TO 579/IND/2017 3 4. LD. DEPARTMENTAL REPRESENTATIVE THOUGH SUPPORTED THE ORDERS OF LOWER AUTHORITIES BUT DID NOT OPPOSE TO THE REQU EST OF LD.COUNSEL FOR THE ASSESSEE FOR SETTING ASIDE ALL THE ISSUES R AISED IN THESE TWO APPEALS TO THE FILE OF LD.A.O FOR DENOVO ADJUDICATION. 5. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. IN BOTH THESE APPEALS RELATING W ITH SMT. KAMLA BAI AND SHRI AKHILESH JOSHI MULTIPLE GROUNDS HAVE BEEN RAISED APART FROM CHALLENGING THE REOPENING OF THE ASSESSM ENT. GROUNDS HAVE BEEN RAISED AGAINST THE ADDITION FOR LONG TERM CAPITAL GAIN AT RS.59,48,470/-. IN THE HANDS OF BOTH THE ASSESSEES MADE ON ACCOUNT OF INVOKING OF THE PROVISIONS OF SECTION 50 C(3) OF THE ACT, ADOPTING THE VALUE ASSESSED BY THE STAMP VALUATION AUTHORITY WHICH IS HIGHER THAN THE SALE CONSIDERATION RECEIVE D BY THE ASSESSEES. GROUNDS HAVE ALSO BEEN RAISED FOR NOT ALLOWING DEDUCTION U/S 54B AND 54F OF THE ACT. REVENUE HAS NOT CONTROVERTED THE FACT THAT LD.CIT(A) HAS NOT DEALT WITH THE ISSUE FOR GIVING DEDUCTION U/S 54B AND 54F OF THE ACT EVEN WH EN THE ASSESSEE HAS FILED NECESSARY DOCUMENTS. VARIOUS SUB MISSIONS OF THE ASSESSEE HAVE ALSO NOT BEEN CONSIDERED WHICH R ELATES TO THE KAMLA BAI & AKHILESH JOSHI ITA NO.578 TO 579/IND/2017 4 OWNERSHIP OF THE PROPERTY WHICH IS CONTENDED TO BE THAT OF HINDU UNDIVIDED FAMILY (HUF) PROPERTY BEING ANCESTRAL IN NATURE AND ADDITIONS WRONGLY MADE FOR 1/3 OF THE LONG TERM CA PITAL GAIN EVEN WHEN THE PROPERTY WAS INHERITED BY 6 PERSONS. ISSU E HAS ALSO BEEN RAISED FOR THE BENEFIT U/S 54B AND 54F OF THE ACT W HICH WERE NOT ENTERTAINED EVEN WHEN THE ASSESSEE WAS CARRYING ON AGRICULTURE OPERATION ON THE ALLEGED LAND SOLD DURING THE YEAR. ASSESSEES CHALLENGE FOR REVIEWING THE PROVISION OF SECTION 50 C HAVE NOT BEEN CONSIDERED EVEN WHEN THE IMPUGNED LAND WAS SITUATED BELOW THE HIGH TENSION LINE SITUATED AT A HILLY AREA WITH A NALLA GOING NEARBY. THE ASSESSEES REQUEST FOR REFERRING THE VA LUATION TO THE STAMP VALUATION OFFICER WAS ALSO NOT CONSIDERED BY THE LD.A.O. 6. IN VIEW OF THE ABOVE AND IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE WE ARE OF THE CONSIDERED VIEW THAT ALL THE ISSUES RAISED IN BOTH THESE APPEALS NEEDS TO BE SET ASIDE TO THE FILE OF LD.A.O FOR AFRESH ADJUDICATION. WE ACCORDINGLY ORDER SO. WE A LSO DIRECT THE ASSESSEE TO REMAIN COMPLIANT TO THE NOTICE FOR HEAR ING ISSUED BY THE LD.A.O AND SUBMIT NECESSARY DOCUMENTS AND RECORDS I N SUPPORT OF HIS CONTENTIONS SO THAT PROPER ADJUDICATION COULD B E DONE BY THE KAMLA BAI & AKHILESH JOSHI ITA NO.578 TO 579/IND/2017 5 LD.A.O. NEEDLESS TO MENTION THAT PROPER OPPORTUNIT Y OF BEING HEARD SHOULD BE PROVIDED TO THE ASSESSEE. 7. IN THE RESULT BOTH THE APPEALS OF THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 17.10.20 18. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 17 OCTOBER, 2018 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER PRIVATE SECRETARY/DDO, INDORE