DCIT, New Delhi V. Smt. Raj Kumari Mittal, New Delhi

ITA 6430/DEL/2014

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5484 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 24-11-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ATIQ AHMAD SENIOR
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.6430/DEL./2014 (ASSESSMENT YEAR : 2011-12) DCIT, CENTRAL CIRCLE 28, VS. SMT. RAJ KUMARI MITTAL , NEW DELHI. C 691, NEW FRIENDS COLONY, NEW DELHI. (PAN : ADCPM2456P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ARVIND KUMAR, ADVOCATE REVENUE BY : SHRI ATIQ AHMAD, SENIOR DR DATE OF HEARING : 21.03.2018 DATE OF ORDER : 04.04.2018 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 28, NEW DELHI (HEREINAFTER REFERRED TO AS T HE REVENUE) BY FILING THE PRESENT APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 05.09.2014 PASSED BY LD. CIT(APPEALS)-III, NE W DELHI QUA THE ASSESSMENT YEAR 2011-12 ON THE GROUNDS INTER AL IA THAT :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS72,1 5,686/- MADE BY AO ON ACCOUNT OF UNDER STATED LONG TERM CAPITAL GAIN. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ACCEPTING T HE CASH-FLOW ITA NO.6430/DEL./2014 2 STATEMENT DESPITE THE FACT THAT THE HOUSEHOLD EXPEN SES HAVE BEEN APPARENTLY ADJUSTED TO SUIT THE REQUIREMENTS OF AVA ILABILITY OF FUND IN THE YEAR WHEN IMPROVEMENT IS CLAIMED AND SU CH STATEMENT IS NOT SUPPORTED BY ANY EVIDENCE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADMITTING T HE ADDITIONAL EVIDENCE WITHOUT CONFRONTING WITH THE AO AND SIMPLY RELYING ON ASSERTION OF THE ASSESSEE THAT NECESSARY BILLS/VOUCHERS WITH RESPECT TO EXPENSES INCURRED ON IMPROVEMENT WERE PRODUCED BEFORE THE AO WITHOUT VERIFYING THE C ASE RECORDS WHEREAS IN FACT NO SUCH EVIDENCE WAS PRODUCED BEFOR E THE AO. 4. THE ORDER OF THE CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICA TION OF THE CONTROVERSY AT HAND ARE : ASSESSEE DECLARED LONG TE RM CAPITAL GAIN (LTCG) AT RS.14,53,490/-. ASSESSING OFFICER, DURING ASSESSMENT PROCEEDINGS, NOTICED THAT THE ASSESSEE H AS PURCHASED THE PROPERTY IN QUESTION FOR RS.23,000/- IN THE YEA R 1984 AND ITS INDEXED COST COMES TO RS.1,30,824/-. ON FAILURE OF THE ASSESSEE TO FURNISH ANY PROOF IN RESPECT OF COST OF IMPROVEMENT , THE AO BY TAKING PURCHASED VALUE OF THE PROPERTY AT RS.1,30,8 24/- COMPUTED THE LTCG AS UNDER :- SALE PRICE RS.88,00,000/- LESS : COST PRICE RS. 1,30,824/- LONG TERM CAPITAL GAIN RS.86,69,176/- LESS : LTCG ALREADY DECLARED RS.14,53,490/- ADDITION OF LTCG RS.72,15,686/- SO THEREBY MADE AN ADDITION OF RS.72,15,686/-. 3. ASSESSEE CARRIED THE MATTER BY WAY OF FILING APP EAL BEFORE THE LD. CIT (A) WHO HAS DELETED THE ADDITION BY PAR TLY ALLOWING THE ITA NO.6430/DEL./2014 3 APPEAL. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. LD. DR FOR THE REVENUE CHALLENGING THE IMPUGNED ORDER CONTENDED INTER ALIA THAT THERE IS NOT AN IOTA OF E VIDENCE ON FILE TO PROVE IF THE WITHDRAWAL SHOWN BY LD. CIT (A) AT PAG E 11 OF THE IMPUGNED ORDER WERE USED FOR CONSTRUCTION; THAT THE LD. CIT (A) HAS NOT CALLED ANY REMAND REPORT FROM THE AO QUA DO CUMENT ENTERTAINED DURING THE APPELLATE PROCEEDINGS. HOWE VER, ON THE OTHER HAND, LD. AR FOR THE ASSESSEE TO REPEL THE CO NTENTIONS RAISED BY THE LD. DR FOR THE REVENUE CONTENDED THAT ALL TH E BILLS REGARDING CONSTRUCTION WERE PRODUCED BEFORE THE AO WHO HAS NO T GIVEN ANY COMMENT AND RELIED UPON THE ORDER PASSED BY THE LD. CIT (A). 6. THERE IS NO DISPUTE BETWEEN THE PARTIES AS TO TH E INDEXED COST OF THE PROPERTY IN QUESTION. IT IS ALSO NOT IN DIS PUTE THAT THE CIT (A) HAS NOT CALLED ANY REMAND REPORT QUA THE DOCUME NTS ENTERTAINED DURING APPELLATE PROCEEDINGS. ASSESSEE RELIED UPON THE DOCUMENTS AVAILABLE AT PAGES 33, 60, 85, 105 AND 12 9 OF THE PAPER BOOK PERTAINING TO MITTAL & COMPANY REGARDING WITHD RAWAL OF ITA NO.6430/DEL./2014 4 DIFFERENT AMOUNT ON DIFFERENT DATES. THERE IS ONE LETTER LYING AT PAGE 129 ISSUED BY MITTAL & COMPANY TO SHRI HARISH CHAND MITTAL INTIMATING THAT THEIR CAPITAL ACCOUNT HAS BEEN DEBI TED BY RS.6,35,000/- IN THE FY 1987-88 WHICH INCLUDES RS.1 ,95,000/- DEBITED TOWARDS EXPENDITURE INCURRED BY MITTAL & CO . ON HIS INSTRUCTIONS ON THE LAND SITUATED AT DHOLPUR IN THE NAME OF SMT. RAJ KUMARI MITTAL IN FY 1987-88. LD. AR FOR THE ASSESS EE FAIRLY CONCEDED THAT THESE DOCUMENTS WERE NOT PRODUCED BEF ORE THE AO BUT WERE PERUSED BY THE LD. CIT (A) WHO HAS UNDISPU TEDLY NOT CALLED ANY REMAND REPORT FROM THE AO. 7. LD. CIT (A) THOUGH GIVEN A REFERENCE IN LAST PAR A OF PAGE 10 OF HIS ORDER THAT DURING APPELLATE PROCEEDINGS, THE BILLS FOR IMPROVEMENT WERE AVAILABLE WITH AO BUT HE HAS NOT P REFERRED TO ASCERTAIN THESE FACTS FROM THE RECORD NOR ANY SUCH LETTER PRODUCING SUCH DOCUMENT BEFORE AO IS THERE ON THE RECORD FOR THE PERUSAL OF THE BENCH. THE CIT (A) ALSO MENTIONED THAT AT PAGE 11 OF HIS ORDER THAT ASSESSEE FILED COPY OF DRAWING ACCOUNTS OF SHRI HARISH CHAND MITTAL, HUSBAND OF THE ASSESSEE AS APPEARING IN THE BOOKS OF MITTAL & CO. REFERRING TO THE AMOUNT OF RS.1,80,000 /- AND RS.1,95,000/- BUT AGAIN THE AO HAS NOT BEEN GIVEN A N OPPORTUNITY TO PERUSE ALL THESE DOCUMENTS. MOREOVER, ALL THESE FACTS ARE REQUIRED TO BE VERIFIED BY THE AO IF ALL THE WITHDR AWAL RELIED UPON ITA NO.6430/DEL./2014 5 BY THE ASSESSEE HAVE BEEN USED FOR CONSTRUCTION SO AS TO CLAIM THE LTCG. 8. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT THE CASE IS REQUIRED TO BE SET ASIDE TO THE FILE OF AO WHO SHALL VERIFY THE FACTS IF ALL THE WITHDRA WAL RELIED UPON BY THE ASSESSEE HAVE BEEN USED FOR CONSTRUCTION SO AS TO CLAIM THE LTCG, BY PROVIDING OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. AO IS DIRECTED TO COMPLETE THE ASSESSMENT WITHIN A PERIOD OF SIX MONTHS. CONSEQUENTLY, THE APPEAL FILED BY THE REVE NUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 4 TH DAY OF APRIL, 2018. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 4 TH DAY OF APRIL, 2018 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-III, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.