Bishan Singh, Meerut V. ITO, Ward-1(2), Meerut

ITA 6243/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3364 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 09-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R MISHRA
• Keywords: Opportunity of being heard; Additional evidence; Cost of acquisition; Valuation report
• Section: 148; 54; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. R.K.PANDA, ACCOUNTANT MEMBER ITA NO. 62 43 /DEL/2017 ASSESSMENT YEAR: 2009 - 10 SHRI BISHAN SINGH S/O SH. BUDH PRAKASH VILL - RITHANI, DELHI ROAD, MEERUT VS . INCO ME TAX OFFICER WARD - 1 (2) , MEERUT PAN: CHUPS7538G (APPELLANT) (RESPONDENT) A SSESSEE BY : NONE DEPARTMENT BY : SH. B. R. MISHRA, SR.DR DATE OF HEARING: : 12/02/2018 DATE OF PRONOUNCEMENT: : 15 /02/2018 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 29.08.2017 OF THE CIT (A), MEERUT RELATING TO A.Y. 2009 - 10. 2 . F ACTS OF THE CASE , IN BRIEF , ARE THAT O N THE BASIS OF AIR INFORMATION REGARDING SALE OF IMMOVABLE PROPERTY BY THE ASSESSEE DURING THE F. Y 2008 - 09 WITHOUT QU OTIN G HIS PAN , THE CASE OF THE ASSESSEE WAS REOPENED BY ISSUE OF NOTICE U/S 148 OF THE IT ACT. SINCE THERE WAS NO COM PLIANCE IN RESPONSE TO NOTICE U/S 148 AND NO RESPONSE TO NOTICE U/S. 142 (1) OF THE IT ACT , T HE ASSESSING OFFICER COMPLETED THE ASSESSMENT AT A TOTAL INCOME OF RS. 547060/ - ON ACCOUNT OF LONG TERM CAPITAL GAIN BY INVOKING THE PROVISIONS OF SECTION 144 OF T HE IT ACT. ITA NO. 62 43 /DE L/20 1 7 2 3. BEFORE CIT (A) THE ASSESSEE TOOK A STAND THAT THE NOTICE WAS NOT SERVED ON THE ASSESSEE AND THEREFORE THE EX - PARTE ORDER PASSED BY THE ASSESSING OFFICER I S ILLEGAL. CERTAIN ADDITIONAL EVIDENCE S WERE ALSO FILED BEFORE THE CIT (A) . H OWEVE R T HE LD. CIT (A) REJECTED THE ABOVE CONTENTION OF THE ASSESSEE THAT NO NOTICE WAS SERVED ON HIM ON THE GROUND THAT SUCH ARGUMENT IS NOT BOR NE OUT OF THE FACTS ON RECORD. ACCORDING TO HIM SINCE THE NOTICE WAS ISSUED THROUGH SPEED POST ED AND W AS NOT RETURNED BACK UNSERVED AS IS A NORMAL PRACTICE , T HEREFORE, IT IS PRESUMED THAT SUCH NOTICE HAS BEEN DULY SERVED ON THE ASSESSEE. 4. HE FURTHER HELD THAT THE ASSESSEE HAS NOT CONCLUSIVELY PROVED REGARDING THE CONSTRUCTION OF THE HOUSE FOR CLAIMING DEDUCTION UNDER SECTION 54 F OF THE IT ACT. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT (A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS : - 1 . THAT T HE ASSESSMENT MADE BY A.O IS BAD IN LAW, BECAUSE A.O. HAS NOT CONSIDER THAT THE ASSESSEE'S SH ARE IN THE SOLD PROPERTY IS 1/2 ONLY AND CIT(A) ALSO IN ERROR IN CONFIRMING THE SAME. 2 . THAT THE COST OF ACQUISITION AS ON 01 - 04 - 1981 TAKEN BY THE A.O. RS. 70/ - PER SQ. YD., HOWEVER, IN THAT AREA THE COST OF THE LAND WAS APPROXIMATELY RS. 150/ - PER SQ. YD. AND CIT(A) ALSO IN ERROR IN CONFIRMING THE SAME. 3. THAT THE ASSESSEE HAS RIGHT TO ADD, MODIFY OR DELETE ANY GROUND DURING THE APPEAL PROCEEDING. 6 . AN ADJOURNMENT APPLICATION WAS FILED BY THE LD. COUNSEL FOR THE ASSESSEE SEEKING ADJOURNMENT OF THE CASE. HOWEVER, AFTER PURSUING THE MATERIAL AVAILABLE ON RECORD , THE APPLICATION SEEKING ADJOURNMENT OF THE CASE IS REJECTED. 7 . AFTER HEARING THE LD. DR AND ON PERUSAL OF THE ORDERS OF THE AUTHORITIES BELOW ITA NO. 62 43 /DE L/20 1 7 3 I FIND THE ASSESSING OFFICER COMPLETED THE ASSE SS M E N T U/S 144 OF THE IT ACT DETERMINING THE TOTAL LONG TERM CAPITAL GAIN OF THE ASSESSEE AT RS. 5 , 47 , 060/ - . THE EXPLANATION OF THE ASSESSEE BEFORE THE CIT (A) REGARDING CLAIM OF DEDUCTION U/S 54 F WAS REJECTED BY HIM IN ABSENCE OF ANY EVIDENCE WITH REGARD TO PURCHASE OF PROPERTY OR CONSTRUCTION DETAILS. ACCORDING TO THE LD. CIT (A) THE EVIDENCE PRODUCED BY THE ASSESSEE DOES NOT HELP HIM SINCE BILLS AND VOUCHERS OF THE ALLEGED CONSTRUCTION WERE NOT PRESENTED AND SIMPLY FILLING A VALUATION REPORT DOES NOT PROVE ANYTHING. 8 . CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GRANT ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS C LAIM WITH EVIDENCE TO THE SATISFACTION OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL DECID E THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I HOLD AND DIRECT ACCORDINGLY . THE GROUND S RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED ON 15.02.2018. SD/ - ( R. K. PANDA ) ACCOUNTANT MEMBER *NEHA* DATE: - 15 .02.2018 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APP EALS) ITA NO. 62 43 /DE L/20 1 7 4 5 . DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 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. D RAFT 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.