N.Saraswathi, W/o.S.Natarajan, Tiruchengode V. ITO, Salem

ITA 637/CHNY/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61054 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 23-04-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 04-05-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C V PAVANA KUMAR IRS
• Assessee Lawyers: T VASUDEVAN
• Keywords: Reassessment proceedings
• Section: 143(3); 133A; 147; 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI V.DURGA RAO, JUDICIAL MEMBER ITA NO.637(MDS)/2009 ASSESSMENT YEAR : 2002-03 SMT. N.SARASWATHI, W/O SHRI S.NATARAJAN, SENGUTTAIKADU, MUNJANUR VILLAGE, TIRUCHENGODE TALUK. PAN AIUPS6197A. VS. THE INCOME-TAX OFFICWER, WARD II(1), SALEM. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T.VASUDEVAN, ADVOCATE RESPONDENT BY : SHRI C.V.PAVANA KUMAR, IRS, JCIT DATE OF HEARING : 23 RD APRIL, 2012 DATE OF PRONOUNCEMENT : 23 RD APRIL, 2012 O R D E R PER DR.O.K.NARAYANAN, VICE-PRESIDENT: THIS APPEAL IS FILED BY THE ASSESSEE. THE RELEVA NT ASSESSMENT YEAR IS 2002-03. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) AT SALEM, DATED 19-2-2009 AND ARISES OUT OF THE ASSESSMENT CO MPLETED - - ITA NO.637 OF 2009 2 UNDER SECTION 143(3), READ WITH SECTION 147 OF THE INCOME-TAX ACT, 1961. 2. THE FOLLOWING GROUNDS ARE RAISED BY THE ASSESSE E IN THIS APPEAL:- 1.THE COMMISSIONER OF INCOME-TAX(APPEALS) OUGHT TO HAVE APPRECIATED THAT NOTICE UNDER SEC. 148 AS CONTEMPLATED UNDER THE PROVISIONS OF THE ACT FOR THE PURPOSE OF REOPENING THE ASSESSMENT WAS NOT SERVED ON THE ASSESSEE AND HENCE THE CONSEQUENTIAL PROCEEDINGS AND THE ASSESSMENT ARE VOID IN LAW. 2. THE CIT(A) OUGHT TO HAVE SEEN THAT SERVICE OF NOTICE U/S 148 IS NOT A MERE PROCEDURAL REQUIREMENT BUT SINE QUA NON FOR VALID INITIATION O F REASSESSMENT PROCEEDINGS AND IN THE ABSENCE OF VALID SERVICE OF NOTICE, HE OUGHT TO HAVE HELD THAT THE ORDER PASSED U/S 147 R.W. 143(3) AS VOID IN LAW . - - ITA NO.637 OF 2009 3 3. IN THIS REGARD, THE CIT(A) OUGHT TO HAVE CONSIDERED THE DECISIONS REPORTED IN 35 ITR 388 (SC) AND 326 ITR 77 (MAD.) AND HELD THAT THE ASSESSMENT PROCEEDINGS ARE A NULLITY IN LAW FOR WANT OF SERVICE OF NOTICE U/S 148 ON THE ASSESSEE. 3. THERE WAS A SURVEY UNDER SECTION 133A ON 21-2-2002 IN THE CASE OF THE ASSESSEES HUSBAND AT HIS POULTRY FARM. THE ASSESSEE, ALONGWITH HER HUSBAND, HAD SOL D A PROPERTY AT SALEM AND THE MATTERS RELATING TO THE SALE OF TH AT PROPERTY CAME TO BE CONSIDERED IN THE COURSE OF SURVEY. AS PER THE DOCUMENT, THE PROPERTY WAS SOLD AT ` 72/- PER SFT., WHEREAS THE SALE PRICE WAS PRESUMED AT ` 230/- PER SFT. THE DIFFERENCE IN THE SALE PRICE WAS ACCEPTED BY THE ASSESSEES HUSBAND I N HIS STATEMENT MADE IN THE COURSE OF SURVEY. 4. IN THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER PROPOSED TO WORK OUT THE CAPITAL GAINS AT T HE SALE PRICE OF ` 230/- PER SFT. THE ASSESSING OFFICER HAS ALSO MAD E CERTAIN ENQUIRIES WITH THE BUYERS OF THE PROPERTY AND CAME TO THE - - ITA NO.637 OF 2009 4 CONCLUSION THAT THE SALE PRICE WAS AT THE RATE OF ` 230/- PER SFT. CAPITAL GAIN WAS COMPUTED ACCORDINGLY. THE FIRST A PPEAL HAS BEEN DISMISSED. THEREFORE THE SECOND APPEAL BEFORE US. 5. AS A MATTER OF FACT, THE CASE OF THE ASSESSEES HUSBAND WAS CONSIDERED BY SINGLE BENCH IN ITA NO.636(MDS)/2009 THROUGH ORDER DATED 30-9-2010 AND THE APPEAL WAS DISMISSED. 6. WE HEARD BOTH SIDES IN DETAIL. THE ORDER PASSE D BY THE SINGLE BENCH OF THE TRIBUNAL IN THE CASE OF THE ASSESSEES HUSBAND CANNOT BE IGNORED AND AT THE SAME TIME THE INDEPENDENT GROUNDS ARGUED BY THE ASSESSEE ALSO CAN NOT BE IGNORED. THEREFORE, WE CANNOT MECHANICALLY FOLLOW THE ORDER PASSED BY THE SINGLE BENCH OF THIS TRIBUNAL. MOREO VER, IN THE ORDER PASSED BY THE SINGLE BENCH, IT WAS THE ASSESS EE WHO HAD MADE THE STATEMENT IN THE COURSE OF SURVEY, WHEREAS IN THE PRESENT CASE THE ASSESSEE WAS ONLY A PASSIVE WITNES S. SO ALSO, THE LEGAL QUESTION WHETHER A STATEMENT MADE IN THE COURSE OF SURVEY AMOUNTS TO ACCEPTABLE EVIDENCE OR NOT, IS NO T SEEN - - ITA NO.637 OF 2009 5 DISCUSSED IN THE ORDER OF THE SINGLE BENCH. SUCH A GROUND MIGHT NOT HAVE BEEN SOMETIMES PLACED BEFORE THE BENCH. 7. IN THE PRESENT CASE, THE LEARNED COUNSEL APPEAR ING FOR THE ASSESSEE, HAS VEHEMENTLY ARGUED THAT THERE IS NO PROVISION UNDER SECTION 133A OF THE ACT TO OBTAIN S WORN STATEMENT AND ALSO ANY SUCH STATEMENT, IF TAKEN, DO ES NOT HAVE ANY EVIDENTIARY VALUE. THIS POINT HAS TO BE ANYHOW DISCOUNTED IN FAVOUR OF THE ASSESSEE. AT THE SAME TIME, THE A SSESSING OFFICER HAS ALSO MADE ENQUIRIES WITH THE BUYERS AND THEY HAD STATED THAT THEY BOUGHT THE PROPERTY AT THE RATE OF ` 230/- PER SFT. THEREFORE, THE PRICE OF ` 72/- PER SFT., CLAIMED BY THE ASSESSEE, ALSO CANNOT BE ACCEPTED AS SUCH. 8. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND TAKING INTO CONSIDERATION ALL THE ASPECTS OF THE CA SE, WE MODIFY THE SALE PRICE AT ` 150/- PER SFT. THE ASSESSING OFFICER IS DIRECTED TO RECOMPUTE THE LONG-TERM CAPITAL GAINS. 9. IN RESULT, THIS APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. - - ITA NO.637 OF 2009 6 ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON MONDAY, THE 23 RD OF APRIL, 2012 AT CHENNAI. SD/- SD/- (V.DURGA RAO) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 23 RD APRIL, 2012. V.A.P. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT (4) CIT(A) (5) D.R. (6) G.F.