MADAN CHAUHAN, NOIDA V. DCIT, CIRCLE- 2, NOIDA

ITA 6125/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3442 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 29-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B R MISHRA
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. R.K.PANDA, ACCOUNTANT MEMBER ITA NO. 6125/DEL/2017 ASSESSMENT YEAR: 2009 - 10 SHRI MADAN CHAUHAN S/O SHRI KARAM SINGH B - 125, SECTOR - 26, NOIDA PAN: ACVPC6291L VS D CIT, C IRCLE 2 NOIDA (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY S H. B. R. MISHRA, SR. DR DATE OF HEARING: 12 /0 2 /2018 DATE OF PRONOUNCEMENT: 21 / 02 /2018 ORDER PER R. K. P ANDA , AM THIS APPEAL FILED BY THE ASSESSEE IS D IRECTED AGAINST THE ORDER DATED 30.06.2017 OF THE CIT (A) - 2, NOIDA RELATING TO A.Y. 2009 - 10. THE GROUNDS RAISED BY THE ASSESS ARE AS UNDER : - 1 . THAT THE LEARNED DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 2, NOIDA WAS ERRED IN LAW AND FACT, IN DIRECTING T HE LEARNED AO TO TAKE ACTION U/S 150 WHICH HE WAS NOT LEGALLY COMPETENT. 2 . IN ANY VIEW OF MATTER AND IN ANY CASE, DIRECTION GIVEN BY LD AO ADVERSE TO THE ASSESSEE IS BAD IN LAW AND AGAINST FACTS AND CIRCUMSTANCE 3 . THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND , ALTER, MODIFY OR DELETE ANY OR ITA NO. 6125 /DE L/20 1 7 2 ALL OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. F ACTS OF THE CASE , IN BRIEF , ARE THAT I N THIS CASE ACTION U/S. 147 WAS INITIATED BY THE THEN ASSESSING OFFICER I.E. ITO, WARD 2 (2) NOIDA DUE TO THE REASON S THAT THE ASSESSEE HAS SOLD IMMOVABLE PROPERTY AMOUNTING TO RS. 1,83,61,000/ - DURING THE FINANCIAL YEAR 2008 - 09 RELEVANT TO THE AY 2009 - 10 AND NO EXPLANATION REGARDING DISCLOSURE OF CAPITAL GAINS ON SUCH SALE HAS BEEN FURNISHED DESPITE SPECIFIC ENQUIRY IN THIS REGARD VIDE LETTER DATED 04/09/2015. THUS IT WAS TAKEN THAT CAPITAL GAINS ON SUCH SALES HAS ESCAPED FROM ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE I T ACT, 1961. THE ASSESSING OFFICER ISSUED NOTICE U/S 148 OF THE IT ACT ON 28.03.2016 REQUI RING THE ASSESSEE TO FILE HIS RETURN O F INCOME WITHIN 30 DAYS OF THE RECEIPT OF TH IS NOTICE . IT WAS SUBMITTED BY THE ASSESSEE THAT THE RETURN ORIGINAL LY FILED ON 15.03.2011 MAY BE TREATED AS RETURN FILED IN RESPONSE TO NOTICE U/S 148. 3. THE ASSESSING O FFICER ISSUED NOTICE U/S. 142 (1) ASKING THE ASSESSEE TO EXPLAIN AS TO HOW THE CAPITAL GAIN U/S 50C OF THE ACT ON SALE OF IMMOVABLE PROPERTY HAS BEEN INCLUDED IN THE RETURN FILED. IT WAS EXPLAIN ED BY THE ASSESSEE THAT HE HAD NOT SOLD ANY PROPERTY WORTH RS . 1 , 83 , 61 , 000/ - IN THE A. Y 2009 - 10. HOWEVER, THE ASSESSEE HAD ITA NO. 6125 /DE L/20 1 7 3 MADE A SALE OF RS. 48,00,000/ - DURING THE YEAR . A FTER CONSIDERING THE REPLY FILED BY THE ASSESSEE AND THE VARIOUS DOCUMENTS SUBMITTED BEFORE HIM , T HE ASSESSING OFFICER NOTED THAT THE S TAMP V ALUATION OF THE PROPERTY SOLD WAS AT RS. 66,50,000/ - AS AGAINST THE ACTUAL SALE CONSIDERATION OF RS. 48,00,000/ - . THE ASSESSING OFFICER ACCORDINGLY DETERMINED THE INCOME OF THE ASSESSEE AT RS. 40,39,640/ - BY MAKING ADDITION OF RS. 18,50 ,000/ - TO THE TOTAL INCOME OF THE ASSESSEE BY INVO KING THE PROVISIONS OF SECTION 50C OF THE IT ACT. 4. S INCE THE ORDER WAS FRAMED WITHOUT FRAMING JURISDICTION U/S 1 4 3 (2) OF THE IT ACT , THE CIT (A) HELD THAT THE ASSESSMENT ORDER IS BAD IN LAW. HE HOWEVER, DIRECTED THE ASSE SSING OFFICER TO REFRAME THE ASSESSMENT ORDE R AFTER FOLLOWING THE CORRECT PRESCRIBED PROCEDURE. 5. AGGRIEVED WITH THE ORDER OF THE CIT (A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTI CE FIXING THE DATE OF HEARING FOR 01.01.2018 . I THEREFORE, PROCEED TO DECIDE THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DR. AS MENTIONED EARLIER THE LD. CIT (A) HAS QUASHED THE ASSESSMENT ORDER PASSED BY THE ASSESSI NG OFFICER ON ACCOUNT OF ITA NO. 6125 /DE L/20 1 7 4 A SSUMPTION OF JURISDICTION WITHOUT ISSUE OF NOTICE U/S. 143 (2) . T HEREFORE , THE ASSESSEE SHOULD NOT HAVE ANY GRIEVANCE . S INCE THE LD. CIT (A) H AS DIRECTED THE ASSESSING OFFICER TO REFRAME THE ASSESSMENT ORDER AFTER ADHERING TO THE CORRECT PRESCRIBED PROCEDURE IN TERMS OF PROVISIONS U/S 150 OF THE IT ACT, THEREFORE, I FIND NO IN FIRMITY IN THE SAME. THE ORDER OF THE LD. CIT (A) IS ACCORDINGLY UPHELD AND THE GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 7 . IN THE RESULT THE APPEAL FI LED BY THE ASSESSEE IS DISMISSED. 9 . PRONOUNCED IN THE OPEN COURT ON 21 /02/2018 . SD/ - ( R. K. PANDA ) ACCOUNTANT MEMBER *NEHA * DATE: - 21 . 02 .201 8 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTAN T REGISTRAR ITAT NEW DELHI ITA NO. 6125 /DE L/20 1 7 5 DATE 1. DRAFT DICTATED ON 12 .02.2018 PS 2. DRAFT PLACED BEFORE AUTHOR 1 3 .02.2018 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON .02.2018 PS 7. FILE SENT TO THE BENCH CLERK .02.2018 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.