Suresh Dhansingh Koli, Jalgaon V. Income-tax Officer,

ITA 645/PUN/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2550 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-03-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 03-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMAR JAIN
• Keywords: Cost of acquisition
• Section: 148; 144; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , A M . / ITA NO. 645 /PN/201 4 / ASSESSMENT YEAR : 20 05 - 06 SHRI SURESH DHANSINGH KOLI, AT & POST DEVGAON 425107, TAL. CHOPDA, DIST. JALGAON . / APPELLANT PAN: BUBPK5236J VS. THE INCOME TAX OFFICER, WARD 2(4), JALGAON . / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SHRI DHEERAJ KUMAR JAIN / / / DATE OF HEARING : 2 1 . 0 3 .201 6 / DATE OF PRONOUNCEMENT: 23 . 0 3 .201 6 / ORDER PER SUSHMA CHOWLA, J M : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - 2 , NASHIK , DATED 08 . 0 1 .20 1 4 RELATING TO ASSESSMENT YEAR 20 05 - 06 AGAINST ORDER PASSED UNDER SECTION 154 OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - (1) THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS IN UPHOLDING THE REJECTION APPLICATION U/S. 154 BY THE A O . (2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) E RRED IN CONFIRMING THE FINDINGS OF THE A O IN REJECTING THE APPLICATION U/S. 154 OF THE INCOME TAX ACT , 1961, WITHOUT APPRECIATING THAT WHILE COMPUTING THE CAPITAL GAIN, THE A O H AS DENIED THE INDEXATION BENEFIT TO THE APPELLANT ASSESSEE. ITA NO. 645 /PN/20 1 4 SHRI SURESH DHANSINGH KOLI 2 (3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, TH E LEARNED CIT(A) ERRED IN GIVING FINDINGS THAT THE A O HAD WORKED OUT THE CAPITAL GAINS AFTER GIVING INDEXATION IN HIS ORIGINAL ASSESSMENT ORDER. (4) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN GIVING FINDINGS THAT THE APPELLANT IS NOT LIKELY TO WIN THE CASE BY MAKING THE ISSUE COMPLICATED AND A SERIOUS DISPUTE CANNOT BE RECTIFIED U/S. 154 OF THE INCOME TAX ACT , 1961. (5) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSMENT ORDER, NOWHERE MENTIONS/SPECIFIES THAT THE COST OF ACQUISITION ADOPTED AND LTCG HAS BEEN WORKED OUT BY THE A O IS AFTER INDEXATION. ABSENCE OF THIS, IS A CLEAR - CUT MISTAKE APPARENT FROM THE RECORDS, RECTIFIABLE U/S. 154 OF THE INCOME TAX ACT , 1961. (6) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONCLUDING THAT THERE IS NO MISTAKE APPARENT FROM THE RECORDS AND NO O RDER U/S. 154 IS PERMISSIBLE. SUCH FINDINGS BEING ARBITRARY, PERVERSE DEVOID OF MERITS AND PATENTLY ILLEGAL. THE APPELLANT PRAYS THAT THE ORDER OF THE LEARNED CIT(A) MAY KINDLY BE SET ASIDE BY DIRECTING THE AO TO WORK OUT LTCG AFTER INDEXATION OF COST OF ACQUISITION OF RS.9,49,497/ - . (7) THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, DELETE AMEND ANY OF THE GROUNDS WITH PRIOR PERMISSION OF THE HON'BLE ITAT, AS PER THE CIRCUMSTANCES OF THE CASE. (8) THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EV IDENCE TO (8) THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EV IDENCE TO SUBSTANTIATE HIS CASE AS THE OCCASION MAY DEMAND WITH PRIOR PERMISSION OF THE HON'BLE ITAT. 3. DESPITE SERVICE OF NOTICE THROUGH RPAD ON SEVERAL DATES, THE ASSESSEE HAS FAILED TO APPEAR NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT. ACCORDINGLY , WE PROCEED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. 4. THE ISSUE ARISING IN THE PRESENT APPEAL IS AGAINST THE ORDER PASSED UNDER SECTION 154 OF THE ACT. 5. BRIEFLY, IN THE FACTS OF THE CASE, TH E ASSESSEE HUF HAD SOLD AN AGRICULTURAL LAND WITHIN MUNICIPAL LIMITS OF JALGAON, WHEREIN THE VALUE AS PER THE REGISTRATION AUTHORITIES WAS HIGHER THAN THE VALUE DECLARED IN THE SALE DEED. ITA NO. 645 /PN/20 1 4 SHRI SURESH DHANSINGH KOLI 3 SINCE THE ASSESSEE HAD NOT FURNISHED RETURN OF INCOME, NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED. THE ASSESSEE HAS FAILED TO APPEAR BEFORE THE ASSESSING OFFICER NOR ANY RETURN OF INCOME WAS FILED . ACCORDINGLY , THE ASSESSING OFFICER COMPLETED THE ASSESSMENT AFTER COMPUTING LONG TERM CAPITAL GAINS IN THE HANDS OF ASS ESSEE. AS AGAINST THE SALE CONSIDERATION OF RS.47,19,000/ - WHICH WAS THE CONSIDERATION ON WHICH STAMP DUTY WAS PAID BY THE ASSESSEE, THE COST OF ACQUISITION WAS TAKEN OF THE LAND AS ON 1981 AND SUM OF RS.9,49,497/ - WAS DEDUCTED AND BALANCE LONG TERM CAPIT AL GAIN WAS COMPUTED AT RS. 37,69,503/ - . THE ASSESSEE THEREAFTER, MOVED AN APPLICATION FOR RECTIFICATION UNDER SECTION 154 OF THE ACT AND POINTED OUT THAT THE COST OF ACQUISITION HAS BEEN ADOPTED AS ON 1981 AT RS.9,49,497/ - AND NO INDEXATION BENEFIT FOR TH E COST OF INFLATION HAS BEEN ALLOWED TO THE ASSESSEE. THE ASSESSING OFFICER VIDE LETTER DATED 29.01.2013 POINTED OUT THAT SCRUTINY ASSESSMENT ORDER WAS PASSED UNDER SECTION 144 OF THE ACT, UNDER WHICH LONG TERM CAPITAL GAINS WERE COMPUTED AS PER SECTION 4 8 OF THE ACT. IN THE SAID LETTER, IT WAS POINTED OUT THAT THE COST OF ACQUISITION TAKEN AT RS.9,49,497/ - WAS NOTHING BUT THE INDEX ED COST OF ACQUISITION AS CONTEMPLATED IN EXPLANATION (III) TO SECTION 48 OF THE ACT , HENCE, IT WAS HELD BY THE ASSESSING OFF ICER THAT THERE WAS NO MISTAKE APPARENT FROM THE RECORD AND THE APPLICATION MOVED UNDER SECTION 154 OF THE ACT WAS DISPOSED OFF. 6. BEFORE THE CIT(A), THE CLAIM OF THE ASSESSEE WAS THAT NOWHERE IN THE COMPUTATION OF INCOME, THE ASSESSING OFFICER HAD MEN TIONED THAT THE COST OF ACQUISITION WAS AFTER INDEXATION, WHEREAS INDEXATION OF THE SAID COST WAS ALLOWABLE TO THE ASSESSEE. THE CIT(A) NOTED THAT AFTER THE ASSESSING OFFICER HAD DECIDED THE ISSUE AND WORKED OUT THE CAPITAL GAINS AS PER EXPARTE ORDER PASS ED UNDER SECTION 144 OF THE ACT , T HE ASSESSEE HAD FILED AN APPEAL BEFORE ITA NO. 645 /PN/20 1 4 SHRI SURESH DHANSINGH KOLI 4 THE CIT(A) - 2, NASHIK TAKING VARIOUS GROUNDS OF APPEAL. THE CIT(A) VIDE APPELLATE ORDER DATED 20.11.2011 HAD DISMISSED THE APPEAL OF THE ASSESSEE HOLDING THAT THE ASSESSEE HAD NOT CON TROVERTED THE FINDINGS OF ASSESSING OFFICER BY FURNISHING ANY DOCUMENTARY EVIDENCE. THEREAFTER, THE ASSESSEE FILED RECTIFICATION APPLICATION ON 14.01.2013 BEFORE THE ASSESSING OFFICER, WHICH WAS REJECTED BY THE ASSESSING OFFICER. CONSIDERING THE PLEA RAI SED BEFORE HIM, THE CIT(A) NOTED THAT THE MAIN CONTENTION OF ASSESSEE WAS THAT IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAD NOT MENTIONED THE COST ADOPTED BY HIM AS ON 01.04.1981 WAS AFTER INDEXATION. THE CIT(A) DISMISSED THE CLAIM OF ASSESSEE HOLDI NG AS UNDER: - (1) THE APPELLANT HAD THE OPPORTUNITIES TO PRESENT ITS CASE BEFORE THE A.O., THE CIT(A) DURING THE QUANTUM APPEAL PROCEEDINGS, BUT FAILED TO DO SO. (2) IN HIS ORIGINAL ASSESSMENT ORDER, THE A.O. HAD WORKED OUT THE CAPITAL GAINS AFTER GIVI NG INDEXATION, THOUGH THE LANGUAGE USED BY THE A.O. COULD HAVE BEEN MORE ELABORATE OR PRECISE. BUT THE FACTS DO NOT CHANGE. WHEN THE A.O. USED THE WORDS COST OF ACQUISITION IN THE SAID ORDER, HE WAS REFERRING TO THE INDEXED COST. THAT IS HOW THE AMOUN T OF RS.9,49,497/ - WAS PRECISELY WORKED OUT BY THE A.O. WHEN THE APPELLANT RS.9,49,497/ - WAS PRECISELY WORKED OUT BY THE A.O. WHEN THE APPELLANT HAD NOT PROVIDED THE ACTUAL COST OF THE PROPERTY, THE A.O. COULD NOT HAVE ESTIMATED THE ACTUAL COST OF LAND IN THAT MANNER. (3) THE APPELLANTS CLAIM THAT THE INDEXATION COST HAS NOT BEEN GIVEN BY THE A.O. IS MAKING THE ISSUE COMPLICATED AND A SERIOUS DISPUTE THAT CANNOT BE RECTIFIED U/S 154 OF THE I.T. ACT. EVEN AFTER A LONG - DRAWN DISPUTE, THE APPELLANT IS NOT LIKELY TO WIN THE CASE. IN SUBSTANCE, THERE IS NO MISTAKE IN THE ASSE SSMENT ORDER BECAUSE THE APPELLANT HAD NOT PRODUCED ANY DOCUMENTARY EVIDENCES BEFORE THE AUTHORITIES. NO ORDER U/S 154 IS PERMISSIBLE IN THIS CASE. THEREFORE, THERE IS NO MISTAKE APPARENT FROM THE RECORDS. ACCORDINGLY, THE APPEAL IS DISMISSED. 7. IN T HE ENTIRETY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WHERE THE ORIGINAL ASSESSMENT ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER IS SUBJECTED TO AN APPEAL BEFORE THE CIT(A), WHO HAD DISMISSED THE PLEA AGAINST COMPUTATION OF CAPITAL GAINS IN THE HANDS OF ASSESSEE AND UPHELD THE ORDER OF ASSESSING OFFICER, WE FIND NO MERIT IN THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE MUCH AFTER THE ORDER OF CIT(A) WAS PASSED ON THE SAME ISSUE. IN ANY CASE, THE ISSUE RAISED BY THE ASSESSEE IS NOT A MISTAKE APPARE NT FROM THE ITA NO. 645 /PN/20 1 4 SHRI SURESH DHANSINGH KOLI 5 RECORD AND HIGHLY DEBATABLE AND HENCE CANNOT BE SUBJECTED TO RECTIFICATION UNDER SECTION 154 OF THE ACT. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONO UNCED ON THIS 23 RD DAY OF MARCH , 201 6 . SD/ - SD/ - (PRADIP KUMAR KEDIA) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 23 RD MA RCH , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - 2 , NASHIK ; 4. / THE CIT - 2, NASHIK ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE