Raj Kamal Gandhi, New Shimla V. Pr. CIT, Shimla

ITA 655/CHANDI/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0383 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 07-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GULSHAN RAJ CIT DR
• Assessee Lawyers: T N SINGLACA
• Keywords: Unexplained cash credit; Revision of order; Depreciation
• Section: 143(3); 147; 68; 148; 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, B, CHANDIGARH , ! . .., # $, %& BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ./ ITA NO. 655/CHD/2018 / ASSESSMENT YEAR : 2008-09 SH. RAJ KAMAL GANDHI, DUPLEX HOUSE NO.1, PHASE-3,PART-2 SECTOR-6 NEW SHIMPA HP-171009 THE PR. CIT, SHIMLA ./PAN NO: ADIPG7856M / APPELLANT /RESPONDENT APPEAL AGAINST THE ORDER OF PR. CIT , SHIMLA DATED 03.2018 & ./ ITA NO. 654/CHD/2018 / ASSESSMENT YEAR : 2008-09 SH. RAJ KAMAL GANDHI, DUPLEAX HOUSE NO.1, HASE-3,PART-2 SECTOR-6 NEW SHIMPLA HP-171009 THE ITO, WARD-1, SHIMLA ./PAN NO: ADIPG7856M / APPELLANT /RESPONDENT APPEAL AGAINST THE ORDER OF PR. CIT, PALAMPUR DATE D 22.02.208 ! ' /ASSESSEE BY : SH. T.N. SINGLA,CA # ! ' / REVENUE BY : SH. GULSHAN RAJ, CIT DR $ % ! & /DATE OF HEARING : 26.11. 2018 '()* ! & / DATE OF PRONOUNCEMENT : 26.11. 2018 %' / ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE CAPTIONED APPEALS HAVE BEEN PREFERRED BY THE AS SESSEE AGAINST THE SEPARATE ORDERS OF PR. THE COMMISSIONER OF INC OME TAX, SHIMLA ITA NOS.654 & 655CHD/2018 SH. RAJ KAMAL GANDHI, SHIMLA 2 [HEREINAFTER REFERRED TO AS PCIT] AND COMMISSIONE R OF INCOME TAX [HEREINAFTER REFERRED TO AS CIT(A) ] RESPECTIVEL Y. 2. FIRST, WE SHALL TAKE UP THE APPEAL OF THE ASSESS EE IN ITA NO.655/CHD/2018. ITA NO.655/CHD/2018 3. IN THIS APPEAL, THE ASSESSEE HAS AGITATED THE ACTION OF THE PRINCIPAL COMMISSIONER OF INCOME TAX, SHIMLA AGAINST THE EXER CISE OF HIS REVISIONARY POWERS U/S 263 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') AND THEREBY PASSING THE IMPUGNED ORDER. 4. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE SOLE ISSUE INVOLVED IN THE PRESENT CASE IS RELATING TO COMPUTATION OF LONG TERM CAPITAL GAIN ON THE SALE OF INDUSTRIAL PLOT W HICH WAS PURCHASED BY THE ASSESSEE IN THE YEAR 1976 AND SOLD DURING THE ASSES SMENT YEAR UNDER CONSIDERATION. THE LD. COUNSEL FOR THE ASSESSEE HA S INVITED OUR ATTENTION TO THE ORIGINAL ASSESSMENT ORDER DATED 24.12.2010 T O SHOW THAT THE RETURN WAS SELECTED FOR SCRUTINY ONLY FOR INVESTIGATION O N THE ABOVE ISSUE OF COMPUTATION OF LONG TERM CAPITAL GAIN, WHEREIN, DUR ING THE ASSESSMENT PROCEEDINGS THE ASSESSEE HAS SUBMITTED THE ENTIRE R ECORD TO SHOW THAT THE ASSESSEE HAD CLAIMED COST OF INDEXATION IN RESPECT OF LAND ONLY AND NOT IN RESPECT OF THE BUILDING WHICH, ACCORDING TO ASSESSE E, WAS ALREADY DEMOLISHED / DAMAGED / HAVING NO VALUE, AT THE TIM E OF THE AFORESAID SALE OF THE PLOT. THE ISSUE WAS THOROUGHLY EXAMINED BY T HE ASSESSING OFFICER AND THE CAPITAL GAIN RETURNED BY THE ASSESSEE WAS A CCEPTED AS SUCH. THEREAFTER, NOTICE U/S 148 OF THE ACT WAS ISSUED TO THE ASSESSEE FOR ITA NOS.654 & 655CHD/2018 SH. RAJ KAMAL GANDHI, SHIMLA 3 INITIATION OF RE-ASSESSMENT PROCEEDINGS ON THE SAME ISSUE. HOWEVER, AFTER VERIFYING THE RECORD, THE ASSESSMENT U/S 147 READ W ITH SECTION 143(3) OF THE ACT WAS COMPLETED AS SUCH WITHOUT ANY CHANGE OR ADD ITION. THEREAFTER, DOUBTING THE ASSESSMENT ON THE SAME ISSUE, THE LD. PCIT HAS EXERCISED HIS REVISION JURISDICTION U/S 263 OF THE ACT. THE ASS ESSEE HAD SUBMITTED THE DETAILS BEFORE THE PCIT, HOWEVER, THE LD. PCIT W AS OF THE VIEW THAT THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS HA D NOT PROPERLY EXAMINED THE ISSUE AS TO THE WRITTEN DOWN VALUE (WD V) CLAIMED BY THE ASSESSEE IN RESPECT OF THE BUILDING. HE, THEREFORE, DIRECTED THE ASSESSING OFFICER TO MAKE A FRESH ASSESSMENT ON THIS ISSUE. 5. AGGRIEVED BY THE ABOVE DIRECTION OF THE LD. CIT( A), THE ASSESSEE HAS COME IN APPEAL BEFORE US. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS. ADMITT EDLY, THE ASSESSEE HAS NOT CLAIMED THE COST OF INDEXATION ON THE BUILD ING. THE ASSESSEE HAS CLAIMED THE COST OF INDEXATION IN RESPECT OF LAND O NLY. AS PER THE PROVISIONS OF THE INCOME-TAX ACT, NO DEPRECIATION I S ALLOWABLE IN RESPECT OF LAND, HENCE, THERE WAS NO QUESTION OF CLAIMING T HE SAME IN EARLIER YEARS. UNDER THE CIRCUMSTANCES, IN OUR VIEW, WHEN THE ISSU E HAS ALREADY BEEN EXAMINED NOT ONLY DURING THE ASSESSMENT PROCEEDINGS CARRIED OUT U/S 143(3) OF THE ACT AND SUBSEQUENTLY RE-ASSESSMENT CA RRIED OUT U/S 147 READ WITH SECTION 143(3) OF THE ACT, NO USEFUL PURPOSE W ILL BE SERVED IN REEXAMINING THE SAME ISSUE AGAIN, RATHER, IT WILL O NLY RESULT INTO MULTIPLICITY OF THE LITIGATION AND UNNECESSARY HARA SSMENT TO THE ASSESSEE. WE DO NOT FIND ANY JUSTIFICATION ON THE PART OF THE LD. PCIT FOR EXERCISING ITA NOS.654 & 655CHD/2018 SH. RAJ KAMAL GANDHI, SHIMLA 4 THE REVISION JURISDICTION U/S 263 OF THE ACT IN THI S CASE. THE ORDER PASSED U/S 263 OF THE ACT IN THIS IS, THEREFORE, QUASHED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HEREBY ALLOWED. ITA NO. 654/CHD/2018 7. IN THIS APPEAL, THE ASSESSEE HAS AGITATED THE ACTION OF THE CIT(A) IN CONFIRMING THE ADDITION OF RS. 1.50 LACS MADE U/S 68 OF THE INCOME TAX ACT ON ACCOUNT OF UNEXPLAINED CASH CREDIT FOUND IN THE BANK ACCOUNT OF THE ASSESSEE. 8. WE HAVE HEARD THE RIVAL CONTENTIONS. THE ASSESSE E BEFORE THE ASSESSING OFFICER CLAIMED THAT THE SAID AMOUNT WAS OUT OF SALE PROCEEDS OF SCRAP. HOWEVER, THE ASSESSEE COULD NOT FURNISH ANY RELIABLE EVIDENCE IN THIS RESPECT. THE ASSESSING OFFICER, THEREFORE, TREATED THE AFORESAID DEPOSITS AS UNEXPLAINED INCOME OF THE ASSESSEE AND MADE THE IMP UGNED ADDITION U/S 68 OF THE ACT. 9. BEFORE THE LD. CIT(A), THE ASSESSEE CHANGED HIS STAND AND CLAIMED THAT THE AFORESAID DEPOSIT WAS OUT OF ADVANCE MON EY RECEIVED ON ACCOUNT OF SALE OF INDUSTRIAL PLOT. THIS WAS A TOTALLY A D IFFERENT PLEA TAKEN BY THE ASSESSEE WHICH SEEMED TO BE AN AFTER-THOUGHT VERSIO N. THEREFORE, THE LD. CIT(A) REJECTED THE AFORESAID CONTENTION OF THE AS SESSEE. 10. BEFORE US, THE ASSESSEE COULD NOT PRODUCE ANY R ELIABLE EVIDENCE TO SHOW THAT THE SAID DEPOSIT WAS OUT OF THE ADVANCE M ONEY RECEIVED FROM THE SALE OF THE PLOT. WE, THEREFORE, DO NOT FIND ANY I NFIRMITY IN THE ORDER OF THE CIT(A) IN MAKING THE IMPUGNED ADDITION. THIS APPEAL OF THE ASSESSEE IS HEREBY DISMISSED. ITA NOS.654 & 655CHD/2018 SH. RAJ KAMAL GANDHI, SHIMLA 5 IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO. 65 5/CHD/2018 IS ALLOWED, WHEREAS, THE APPEAL IN ITA NO. 654//CHD/20 18 STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26.11.2018. SD/- SD/- DATED : 26.11.2018 .. (, ! -. /. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. $ 0 / CIT 4. $ 0 ( )/ THE CIT(A) 5. .12 3 , & 3 , 45627 / DR, ITAT, CHANDIGARH 6. 26 8% / GUARD FILE (, $ / BY ORDER, 9 # / ASSISTANT REGISTRAR ( . . , # $ / B.R.R. KUMAR) %& / ACCOUNTANT MEMBER ( / SANJAY GARG ) / JUDICIAL MEMBER