Madhumalti Sharma, Noida V. ITO, Noida

ITA 5796/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3252 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 25-04-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 11-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEDOBANI CHAUDHURI
• Assessee Lawyers: PREM ARORA
• Keywords: Sale consideration of property below Jantri Value; Unexplained expenditure; Reason to believe
• Section: 50C; 147; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO.5796/DEL/2016 ASSESSMENT YEAR 2007-08 MADHUMALTI SHARMA, CIT(A)-427, SECTOR-22, NOIDA. PAN: ASMPS 9099K VS. ITO, WARD-2(2), NOIDA. (APPELLANT) (RESPONDENT) REVENUE BY : MS. BEDOBANI CHAUDHURI, SR.D.R. ASSESSEE(S) BY : SHRI PREM ARORA, C.A. / DATE OF HEARING : 25/04/2017 / DATE OF PRONOUNCEMENT: 28/04/2017 ORDER THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF LEARNED CIT(A)-I, NOIDA, VIDE ORDER DATED 31.08.2016 FOR THE ASSESSME NT YEAR 2007-08. THE ASSESSEE HAS RAISED THE AMENDED GROUNDS OF APPEAL A S UNDER: 1.GROUND OF APPEAL NO.-1: THE A.C. HAS INITIATED P ROCEEDINGS U/S 1 4 7 ON THE BASIS OF FAULTY AND NONEXISTENT REASONS AN D GRO UN D S . THE A.O. HAS OPENED THE ' CASE U/S 147 ON THE BASIS OF REASONS WHICH NEVER EXIS T ED AND MADE ADDITIONS EVEN AFTER THE OBJECTION OF THE ASSESSEE THAT THE REASONS FOR OPEN ING OF THE CASE DO NOT EXIST . HENCE THE A.O. CEASED POWER TO ASSESS THE INCOME U/ S 147 AND HIS ORDER NEEDS TO BE QUASHED. 2.G R OUND OF A P PE AL NO.-2: ADDITION OF RS. 2,50,000/- ON ACCOUN T OF UN E X P LAIN E D UNSECURED LOAN FROM THE BROTHER OF THE ASSESSEE SHRI ASHISH BHARDWAJ THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN LAW AND FACTS BY CONFIRMING THE ADDITION OF RS. 2 , 50 , 000/- ON ACCOUNT OF UNEXPLAINED UNSECURED LOAN. 3.G R O UND O F APPEA L NO.-3: ADDITION OF RS. 98,500/- ON ACCOUNT O F UN E X P L A INED EXPENDITURE: CASH SPENT BY THE ASSESSEE TO BU Y ST AMP PAP ERS THAT THE LD . COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN L AW AND FACTS BY CONFIRMING THE ADDITION OF RS . 98 , 500/- ON ACCOUNT OF UNEXPLAINED EXPENDITURE. ITA NO.5796/DEL/2016 2 GROUN D O F AP PE AL NO.-4: ADDITION OF RS. 1 , 15,000/- ON A CCOUNT OF UN E X P LAINED UNSECURED LOAN FROM SISTER IN LAW OF T H E ASSESSE E SMT GITANJALI BHARDWAJ THAT THE LD . COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN L AW AND FACTS BY CONFIRMING THE ADDIT I ON OF RS. 1 , 15 , 000/- ON ACCOUNT OF UNEXPLAINED UNSECURED LOAN. 2. LEARNED COUNSEL FOR THE ASSESSEE ARGUED THE LEGA L GROUND AT THE FIRST INSTANCE AND POINTED OUT THE REASON RECORDED BY THE ASSESSING OFFICER AT PAPER BOOK 21 WHICH IS REPRODUCED HEREINBELOW: REASONS FOR PROCEEDING S U/S. 1 4 7 OF THE IT ACT, 1 96 1 D ATED : 30 . 03 / 2014 AS PER I NFORMAT I ON UNDER SECTION 50C OF THE IT ACT , 1961 RECEI V ED FROM THE OFFICE TH E CO MMISSIONER OF INCOME TAX , NOIDA IT HAS BEEN FOUND THAT THE ASSESSEE HAS SOLD PROPERTY RS . 11, 27,500 1 - ON 02 / 08 / 2006 W H E R E AS THE S A LE CO NSIDERATION AS PER SEC 50C OF THE PROPERTY AT RS. 1 6 , 04,00 0 / - . IN COMPLIANCE TO NOTICE U/S. 133 ( 6 ) OF THE I . T . ACT 1961 DATED 22 / 02 / 2013 , AS SE SSEE COULD N OT FU R NISH ANY REPLY WHICH PROVES THAT THE ASSE S SEE NOT ADOPTED THE SALE VALUE TH E PROPERT Y AS PE R SECTION 50C OF TH E I . T. ACT, 1961 . THUS IN V IEW OF THE ABOVE , THE ASSESSEE CO NCE ALED T H E INCOME OF R S . 4,7 6 , 500/ - (16 , 04 , 000- 11 , 27 , 500/- ). IN ABSENCE OF PA INF O RMATION REGARDING FILLING OF THE RETURN FOR THE A.Y. 2007-08 AND THE FACT THAT THE ASSE S S E E D E C LARED CAPITAL GAI N I N HIS R ETUR N CANNOT BE ASCERTAINED . THEREFORE , IN VIEW OF THE ABOVE , I HAVE REASON TO BELIEVE THAT CAPITAL GAIN INCOME OF 4,7 6 , 500/ - HAS ESCAPED ASSESSMENT FOR THE ASSES S MENT YEAR 2007 - 08 . TO A SSESS THE SAME, P RO CEE DINGS U/S.147 OF THE I . T . ACT 1961 ARE BEING INITIATE D . 3. THE ASSESSEE HAS RAISED THE OBJECTION TO THE REASONS SO RECORDED WHICH ARE AVAILABLE AT PAGE 23 OF THE PAPER BOOK. HOWEVER , THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSES SEE AND REJECTED THE SUBMISSION OF THE ASSESSEE, THEREFORE, THE LEARNED CIT(A) REJECTED THE LEGAL GROUND OF THE ASSESSEE. 4. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE FACTS OF THE CASE. IT IS NOT DISPUTED THAT AS PER REASONS RECORDED THE AS SESSING OFFICER WAS OF THE VIEW THAT ASSESSEE HAS SOLD THE PROPERTY AND ACCORD INGLY THE ASSESSEE HAS NOT ADOPTED THE SALE VALUE OF THE PROPERTY U/S.50C OF T HE ACT WHICH IS COMPLETE NON APPLICATION OF MIND SINCE THE ASSESSEE SUBMITTE D THE REPLY AT PAGE 2 ITA NO.5796/DEL/2016 3 DATED 8.03.2013 THAT PROPERTY WAS PURCHASED AND NOT SOLD. ALSO AS PER THE OBJECTION TO THE REASONS PLACED AT PAGE 23 OF THE P APER BOOK, THE ASSESSEE HAS RAISED THE OBJECTION ON THE SAME POINT. THIS IS A C OMPLETE NON APPLICATION OF MIND BY THE ASSESSING OFFICER WHILE RECORDING THE R EASONS WHICH IN FACT HAS BEEN ACCEPTED BY THE ASSESSING OFFICER DURING THE A SSESSMENT PROCEEDINGS. IN SUCH CIRCUMSTANCES AND FACTS OF THE CASE, THE RE ASONS SO RECORDED ARE WITHOUT ANY COGENT MATERIAL AND THERE CANNOT BE ANY REASON TO BELIEVE IN THE ABSENCE OF MATERIAL ON RECORD. THE ASSESSING OFFICE R DOES NOT ACQUIRE ANY JURISDICTION TO ASSESS/RE-ASSESS U/S.147 OF THE ACT AND ASSESSEE/RE-ASSESS SO MADE U/S.147 OF THE ACT IS DIRECTED TO BE QUASHED. THUS, THE LEGAL GROUND OF THE ASSESSEE IS ALLOWED. 5. SINCE THE ASSESSEE SUCCEEDS ON LEGAL GROUND, THE REFORE, THE GROUNDS ON MERIT BECOME ACADEMIC IN NATURE AND DO NOT REQUIRE ANY ADJUDICATION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY 28 TH APRIL, 2017 SD/- (B.P. JAIN) ACCOUNTANT MEMBER DATED: 28/04/2017 PRABHAT KUMAR KESARWANI, SR.P.S. COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(APPEALS) 5.DR: ITAT ASSTT. REGISTRAR, ITAT, NEW DELHI