Late Hussain Khan S/o Late Mehmud Khan ( Firoz Khan ) Son And Legal Heir of , Late Husain Khan, Indore V. ITO4(4) Indore, Indore

ITA 639/Ind/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4937 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-08-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 11-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PUNEET KUMAR
• Assessee Lawyers: S S SOLANKI
• Keywords: Capital asset; Opportunity of being heard; Set aside
• Section: 2(14); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.639/IND/2018 ASSESSMENT YEAR: 2012-13 M/S FIROZ KHAN S/O AND L/H LATE HUSSAIN KHAN H NO.11 GANESH MARG, INDORE / VS. ITO - 4(4) INDORE (APPELLANT) (REVENUE) P .A. NO. BXDPC 2140L APPELLANT BY SHRI S.S. SOLANKI, CA RE VENUE BY SHRI PUNEET KUMAR , SR. DR DATE OF HEARING: 26.08.2020 DATE OF PRONOUNCEMENT: 30.09.2020 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE COMMISSIONER OF INCOME TAX APPEALS [CIT(A)]-I I, INDORE DATED 05.04.2018 PERTAINING TO THE ASSESSMENT Y EAR 2012-13. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THIS IS NOT A CAPITAL ASSETS AS PER SECTION 2(1 4)(III), WHICH IS NOT A URBAN AGRICULTURE LAND AND FULLY RUR AL AGRICULTURE LAND SITUATES OUTSIDE, ARE OF DEPALPUR MUNICIPALITY. 2. IF SOMEHOW IT WAS A CAPITAL ASSETS THEN, CAPITAL GAIN FIROZ KHAN /ITANO.639/2018 2 INCOME SHOULD HAVE NOT FULLY TAXABLE IN THE HAND OF SAID LATE HUSSAIN KHAN, BECAUSE THESE AGRICULTURE LAND W AS A ANCESTORS PROPERTY AND AMOUNT RECEIVED FROM SALE PR OCEED HAD BEEN DISTRIBUTED AMONGST VARIOUS PARTY, AND THA T ISSUE ALSO SHOULD BE CONSIDER BEFORE TAX LEVIED TO ASSESSEE. 3. THAT, AGE OF ASSESSEE WAS 10.07.1945 AND HE WAS THE SENIOR CITIZEN (66YEARS) FOR THAT ASSESSMENT YEAR 2 012- 13, AND MAXIMUM EXEMPTION LIMIT FOR TAX CALCULATION OF RS.25,0000/- IS NOT CONSIDERED FOR TAX CALCULATION AND HE WAS THE ENTITLED OF RS.250000/- AS A TAX LIMIT AMOU NT. THE COPY OF AGE PROOF IS MENTIONED IN A PASSPORT AND SA ME IS ENCLOSED HEREWITH FOR YOUR DUE VERIFICATION. THE ASSESSEE HAS ALSO RAISED FOLLOWING ADDITIONAL GROUND S OF APPEAL. 1.THAT THE LD. AO ERRED IN ISSUING NOTICE U/S 148 O N A DEAD PERSON. THE NOTICE SO ISSUED ON A DEAD PERSON IS ILLEGAL. THE ORDER SO PASSED THEREFORE, MAY VERY KI NDLY BE QUASHED. 2. THAT THE LD. AO ERRED IN PASSING ORDER U/S 144/1 47 ON A DEAD PERSON. THE ORDER SO PASSED BEING ILLEGAL, THE SAME MAY VERY KINDLY BE QUASHED. 3. THAT THE ASSET IN QUESTION WAS A RURAL AGRICULTU RAL LAND NOT SUBJECTED TO TAX U/S 2(14) OF THE ACT. THE ADDI TION SO MADE BEING ILLEGAL AND WRONG, THE SAME MAY VERY KIN DLY BE DROPPED. 4. THAT THE LD. AO ERRED IN TAKING TOTAL AMOUNT OF CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. THE AGRICULTURAL LAND IN QUESTION WAS OWNED JOINTLY WITH HIS FAMILY WHEREIN THE ASSESSEE WAS HAVING 50% SHARE. THE EXCESS 50% ADDED MAY VERY KINDLY BE DELETED. 2. THE FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE ASSESSEE HAD SOLD AGRICULTURE LAND SITUATED AT VILLAGE- FIROZ KHAN /ITANO.639/2018 3 DEPALPUR TEHSIL- DEPALPUR, INDORE FOR RS.16,79,000/- VIDE SALE DEED DATED 13.12.2011. THE PROPERTY IN QUESTION BELONGED TO TWO BROTHERS I) MEHMUD KHAN & (II) JULFI KAR KHAN. LATE HUSSAIN KHAN IN WHOSE LAND CAPITAL GAIN WAS ASSESSED BY AO WAS THE ONLY SON OF MEHMUD KHAN SO HE GOT 50% SHARE OF THE PROPERTY. BALANCE 50% SHARE WAS BELONGING TO THREE SONS OF JULFIKAR KHAN. THE CASE WAS REOPENED BY WAY OF ISSUE OF NOTICE U/S 148 OF THE I NCOME TAX ACT DATED 26.03.2015. THE NOTICES COULD NOT BE S ERVED ON TO THE ASSESSEE. THE AO PROCEEDED TO PASS ORDER U/ S 144/147 BY MAKING ENTIRE AMOUNT OF CAPITAL GAIN IN THE HANDS OF DECEASED WHEREAS THIS WAS ANCESTRAL PROPERTY OWNED BY FAMILY MEMBERS. 3. AGGRIEVED AGAINST THIS THE ASSESSEE PREFERRED AN APP EAL BEFORE LD. CIT(A), WHO ALSO DISMISSED THE APPEAL. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSMENT FIROZ KHAN /ITANO.639/2018 4 WAS FRAMED AGAINST THE DEAD PERSON, THEREFORE, THE ASSESSMENT IS ILLEGAL. 5. ON THE OTHER HAND, LD. SR. DR OPPOSED THE SUBMISS ION AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT NO GROUND WAS RAISED BEFORE LD. CIT(A) AND THROUGH ADDITIONAL GROUNDS, THE ASSESSEE HAS RAISED THI S ISSUE FIRST TIME, THEREFORE, LD. CIT(A) SHOULD BE G IVEN A CHANCE TO DECIDE THIS LEGAL GROUND. 6. I HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORDS. I FIND THAT NO GROUND WAS RAISED BEFORE LD. CIT(A) AND THROUGH ADDITIONAL GROUNDS , THE ASSESSEE HAS RAISED THIS ISSUE FIRST TIME. SINCE, THE ISSUE IS LEGAL IN NATURE, I, THEREFORE, FOLLOWING THE RATIO LAID DOWN IN CASE OF NTPC REPORTED AT 229 ITR 383 (SC) ADMIT THESE ADDITIONAL GROUNDS RAISED FIRST TIME BEFORE THI S TRIBUNAL. HOWEVER, IN THE INTEREST OF JUSTICE AND FAIR PLAY, I SET ASIDE THE ORDER OF THE LD. CIT(A) AND ACCORDINGLY , THE FIROZ KHAN /ITANO.639/2018 5 MATTER IS RESTORED BACK TO THE FILE OF THE LD. CIT(A) FOR DECIDING THESE LEGAL ADDITIONAL GROUNDS AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS AT LIBERTY TO FILE THE RELEVANT PAPERS IN SUPPORT OF THE CLAIM. 7. IN RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 30.09.202 0. SD/- (KUL BHARAT) JUDICIAL MEMBER DATED : 30.09.2020 PATEL/PS COPY TO: APPELLANT/RESPONDENT/PR.CIT(A)/PR.CIT/DR, INDORE BY ORDER ASSISTANT REGISTRAR, INDORE