Mr Chhote Lal Chauhan, Noida V. ITO, Noida

ITA 6121/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5173 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-07-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 30-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: PAWAN CHAUHAN
• Keywords: Business income; Opportunity of being heard; Cost of acquisition; Fair market value

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 6121/DEL/2016 A.Y. : 2008-09 CHHOTE LAL CHAUHAN C/O M/S P CHAUHAN & COMPANY 1120, 11 TH FLOOR, TOWER-A, THE I-THUM, PLOT NO. A-40, SECTOR- 62, NOIDA-201301 UP (PAN: ABOPL6295R) VS. ITO, WARD 1(2), NOIDA (APPELLANT) (RESPONDENT) AND I.T.A. NO. 6122/DEL/2016 A.Y. : 2008-09 SMT. BHARTO, C/O M/S P CHAUHAN & COMPANY 1120, 11 TH FLOOR, TOWER-A, THE I-THUM, PLOT NO. A-40, SECTOR- 62, NOIDA-201301 UP (PAN: ABOPL6295R) VS. ITO, WARD 1(2), NOIDA (APPELLANT) (RESPONDENT) I.T.A. NO. 6123 /DEL/201 6 A.Y. : 2008-09 UMESH S/O BHULE RAM, C/O M/S P CHAUHAN & COMPANY 1120, 11 TH FLOOR, TOWER-A, THE I-THUM, PLOT NO. A-40, SECTOR- 62, NOIDA-201301 UP (PAN: ABOPL6295R) VS. ITO, WARD 1(2), NOIDA (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GIRISH GUPTA & SH. PAWAN CHAUHAN, CA DEPARTMENT BY : SH. T. VASANTHAN, SR. DR 2 ORDER THESE ARE 03 APPEALS FILED BY DIFFERENT ASSESSES WHICH IS AGAINST THE SEPARATE ORDERS OF THE LD. CIT(A) FOR THE ASST T. YEAR 2008-09. SINCE THE ISSUES INVOLVED IN ALL THE 03 APPEALS ARE IDE NTICAL AND COMMON, HENCE, THESE APPEALS ARE BEING CONSOLIDATED BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE, BY DEALING WITH ITA NO. 6 122/DEL/2016 (AY 2008-09). 2. SINCE THE GROUNDS IN ALL THE 03 APPEALS ARE EXA CTLY SIMILAR, THEREFORE, FOR THE SAKE OF BREVITY, I AM ONLY REPRO DUCING THE GROUNDS RAISED IN THE ASSESSEES APPEAL NO. 6122/DEL/2016 (AY 2008-09) AS UNDER:- 1. THE ACTION OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I, NOIDA IN PASSING THE ORDER UNDER SECTION 250 OF THE INCOME TAX ACT, 1961, AGAINST TH E ASSESSEE IS UNJUST, AND DESERVES TO BE QUASHED. 2. THAT HIS ACTION IN NOT DISTINGUISHING BETWEEN 'L AND' & LEASEHOLD RIGHTS IN LEND, WHICH ACTUALLY WERE RECEI VED BY THE ASSESSEE FROM THE NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY (HEREINAFTER REFERRED AS 'NOI DA AUTHORITY') IS INCORRECT. 3. THAT HIS ACTION IN HOLDING THAT THE TOTAL SALES CONSIDERATION OF THE LEASE RIGHTS ALLOTTED IN THE L AND TO BE DETERMINED ON THE BASIS OF PROVISIONS OF THE SEC TION 3 5OC OF THE LT. ACT, 1961, IS WRONG AND NOT AS PER T HE PROVISIONS OF THE INCOME TAX ACT, 1961 AND THUS THE ADDITIONS NEED TO BE DELETED. 4. THAT HIS ACTION, IN NOT CONSIDERING THE MAIN SUBMISSIONS ACTUALLY MADE BY THE ASSESSEE REGARDING ISSUE OF COST OF ACQUISITION (COA) OF RESIDENTIAL P LOTS AND RATHER SHOWING REPLIES FILED BY ASSESSEE IN RESPONS E TO THE QUERIES RAISED BY HIM DURING THE COURSE OF APPE LLATE PROCEEDINGS AS MAIN SUBMISSIONS FILED BY THE ASSESS EE, IS COMPLETELY WRONG AND BASELESS AND WHICH NEEDS TO BE QUASHED. 5. THAT HIS ACTIONS IN NOT CONSIDERING THE DECISION S OF THE VARIOUS COURTS IN FAVOUR OF THE ASSESSEE WHILE DECIDING ON THE APPEAL FILED BY THE ASSESSEE AND NO T GIVING REASONS FOR NOT DOING THE SAME IS INCORRECT AND DOES NOT STAND THE SCRUTINY OF THE LAW. 6. THAT HIS ACTION IN COMING TO THE CONCLUSION THAT INCOME TAX ACT, 1961 HAS NO PROVISIONS TO DEAL WITH THE CASE OF THE ASSESSEE IS COMPLETELY WRONG AND BASELE SS. 7. THAT HIS ACTION IN HOLDING THAT THE COST OF ACQU ISITION OF THE LEASEHOLD RIGHTS IN THE PLOTS SOLD BY THE AS SESSEE BE CALCULATING ON THE BASIS OF PRICE, FOR THE YEAR 2002, OF THE AGRICULTURE LAND, AGAINST WHICH THE ASSET IN 4 QUESTION (I.E. LEASEHOLD RIGHTS) WAS ALLOTTED AND N OT THE FAIR MARKET VALUE ON THE DATE OF ALLOTMENT OF LEASE HOLD RIGHTS IN THE FINANCIAL YEAR 2006-07 IS WRONG AND T HUS CONSIDERING THE FACTS OF THE CASE, THE ADDITIONS NE ED TO BE DELETED. 8. THAT HIS ACTION IN TAKING THE COA OF THE RESIDEN TIAL PLOTS AS 25% OF THE RATES OF THE AGRICULTURAL LAND, FIXED BY THE STATE GOVERNMENT, ON AN ESTIMATED BASIS AND AS PER HIS WHIMS AND FANCIES IS TOTALLY BASELESS AND D OES NOT STAND THE SCRUTINY OF LAW. 9. THAT HIS ACTION IN NOT ADJUDICATING ON THE ISSUE OF THE SHARE OF THE ASSESSEE IN THE RESIDENTIAL PLOTS SOLD BY THE ASSESSEE IS WRONG AND NOT AS PER THE PROVISIONS OF THE LAW. 10. APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR MODIFY AND/OR WITHDRAW GROUNDS OF APPEAL UP TO THE DATE OF HEARING OF THE APPEAL. 3. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 4. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSE SSEE HAS STATED THAT THE GROUNDS RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A ) HAS NOT BEEN FULLY 5 ADJUDICATED. HE FURTHER STATED THAT ASSESSEE HAS FILED THE WRITTEN SUBMISSIONS BEFORE THE LD. CIT(A), WHICH HAS NOT BE EN CONSIDERED BY THE LD. CIT(A) AND HE DECIDED THE ISSUE AGAINST THE ASS ESSEE WITHOUT CONSIDERING THE SAME. IN THIS REGARD, HE DRAW M Y ATTENTION TOWARDS THE SMALL PAPER BOOK CONTAINING PAGES 1 TO 101 IN WHICH HE ATTACHED THE COPY OF WRITTEN SUBMISSIONS BEFORE THE ITAT, COPY O F DOCUMENTS FILED WITH CIT(A) I.E. WRITTEN SUBMISSIONS (INCLUDING SUPPORTI NG DOCUMENTS/ ANNEXURES); COPY OF ASSESSMENT ORDER IN CASE OF SH. RISHIPAL; DOCUMENTS IN RELATION TO SHARE HOLDING (COPY OF SHAREHOLDING PATTERN, JOINT AND INDIVIDUAL BANK STATEMENT); COPY OF ORDER OF ITAT, MUMBAI IN THE CASE OF ATUL G. PURANIK VS. ITO; COPY OF ORDER OF HONBLE S UPREME COURT IN THE CASE OF CIT VS. BC SRINIVASA SETTY; COPY OF ORDER O F HONBLE SUPREME COURT IN THE CASE OF CIT VS. DP SANDHU BROS. CHAMBE RS P LTD; COPY OF ORDER OF HONBLE SUPREME COURT IN THE CASE OF CIT V S. AMARCHAND N. SHROFF; COPY OF ORDER OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. GREENFIELD HOTELS AND ESTATES P LTD; COPY OF ORDER OF MUMBAI TRIBUNAL IN THE CASE OF ITO VS. PRADEEP STEEL RE-ROLLING MILLS P LTD; COPY OF ORDER OF PUNE BENCH IN THE CASE OF KANCAST PRIVATE LIMITED V S. ITO; COPY OF ALLAHABAD TRIBUNAL IN THE CASE OF DEVINDRABEN I. B AROT VS. ITO AND COPY OF KOLKATA TRIBUNAL IN THE CASE OF TEJINDER SINGH. HE DRAW MY ATTENTION TOWARDS THE COPY OF DOCUMENTS FILED WITH LD. CIT(A) INCLUDING THE WRITTEN SUBMISSIONS AT PAGE NOS. 1331 AND 32-26 AND STATED THAT THESE DOCUMENTARY EVIDENCES ALOGNWITH WRITTEN SUBMISSION HAS NOT BEEN CONSIDERED BY THE LD. CIT(A). HE ALSO DRAW MY ATTE NTION TOWARDS THE 6 IMPUGNED ORDER AND STATED THAT LD. CIT(A) HAS NOT C OMMENTED UPON THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE, ESPECIAL LY ONE DECISION OF THE ITAT, MUMBAI IN THE CASE OF ATUL G. PURANIK VS. ITO ATTACHED IN THE PAPER BOOK AT PAGE NO. 44-63. HE FURTHER STATED THAT ALSO NO SUFFICIENT OPPORTUNITY HAS BEEN GIVEN BY THE AO AND AO HAS PAS SED THE ORDER U/S. 144/147 OF THE I.T. ACT, 1961. IN VIEW OF THE ABOVE , HE REQUESTED THAT ISSUE IN DISPUTE MAY BE SET ASIDE TO THE FILE OF TH E AO TO DECIDE THE SAME AFRESH, UNDER THE LAW. 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND OPPOSED THE REQUEST OF THE LD. COUNSEL OF THE ASSESSEE. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. I FIND THAT IN THIS CASE THE AO HAS COMPLETED THE ASSESSMENT U/ S. 144/147 OF THE ACT. I FURTHER FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE THAT LD. CIT(A) HAS NOT FULLY ADJUDICATED THE GROUNDS OF APPEAL AND ALSO NOT CONSIDERED THE WRITTEN SUBMISSIONS FI LED BEFORE HIM AND DECIDED THE ISSUE AGAINST THE ASSESSEE WITHOUT CON SIDERING THE SAME. I FURTHER FIND THAT ASSESSEE HAS FILED THE SMALL PAPE R BOOK CONTAINING PAGES 1 TO 101 IN WHICH HE FILED THE COPY OF WRITTEN SUBM ISSIONS BEFORE THE ITAT, COPY OF DOCUMENTS FILED WITH CIT(A) I.E. WRIT TEN SUBMISSIONS (INCLUDING SUPPORTING DOCUMENTS/ ANNEXURES); COPY O F ASSESSMENT ORDER IN CASE OF SH. RISHIPAL; DOCUMENTS IN RELATION TO S HARE HOLDING (COPY OF SHAREHOLDING PATTERN, JOINT AND INDIVIDUAL BANK STA TEMENT); COPY OF ORDER OF ITAT, MUMBAI IN THE CASE OF ATUL G. PURANIK VS. ITO; COPY OF ORDER OF 7 HONBLE SUPREME COURT IN THE CASE OF CIT VS. BC SR INIVASA SETTY; COPY OF ORDER OF HONBLE SUPREME COURT IN THE CASE OF CIT V S. DP SANDHU BROS. CHAMBERS P LTD; COPY OF ORDER OF HONBLE SUPREME CO URT IN THE CASE OF CIT VS. AMARCHAND N. SHROFF; COPY OF ORDER OF HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. GREENFIELD HOTELS AND ESTATES P LTD; COPY OF ORDER OF MUMBAI TRIBUNAL IN THE CASE OF ITO VS. PRA DEEP STEEL RE-ROLLING MILLS P LTD; COPY OF ORDER OF PUNE BENCH IN THE CA SE OF KANCAST PRIVATE LIMITED VS. ITO; COPY OF ALLAHABAD TRIBUNAL IN THE CASE OF DEVINDRABEN I. BAROT VS. ITO AND COPY OF KOLKATA TRIBUNAL IN THE C ASE OF TEJINDER SINGH. I FURTHER FIND THAT LD. CIT(A) WHILE CONSIDERING THE APPEAL OF THE ASSESSEE HAS NOT CONSIDERED THE DOCUMENTARY EVIDENCES FILE D BY THE ASSESSEE BEFORE HIM AND ALSO NOT COMMENTED UPON THE WRITTEN SUBMISSIONS IN HIS IMPUGNED ORDER. IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED OPINION, THAT THE AFORESAID DOCUMENTS NEEDS TO BE EXAMINED AT THE LEVEL OF THE AO, THEREFORE, IN THE INTEREST OF JUSTICE, I SET AS IDE THE ISSUE IN DISPUTE TO THE FILE OF THE AO TO CONSIDER THE SAME, AFRESH UN DER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND AFTER APPRECIATING THE DOCUMENTS FILED IN THE SHAPE OF PA PER BOOK, AS AFORESAID. ASSESSEE IS ALSO DIRECTED TO FULLY COOPERATE WITH T HE AO AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT. 7. FOLLOWING THE CONSISTENT VIEW, AS AFORESAID, THE ISSUES INVOLVED IN ITA NO. 6121 & 6123/DEL/2016 (AY 2008-09) ARE ALSO SET ASIDE TO THE FILE OF AO WITH THE SIMILAR DIRECTIONS AS MENTIONED ABOV E. 8 8. IN THE RESULT, ALL THE 03 APPEALS OF THE ASSESS ES STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02/08/2017. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 02/8/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES