Smt. Anar Avnidhar Shah, Ahmedabad V. The Assessing Officer, Circle-10, Ahmedabad

ITA 672/AHD/2015

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9576 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 24-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIMESH YADAV SR DR
• Assessee Lawyers: PF JAIN
• Section: 54F

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ././ ./ ITA NO. 672/AHD/2015 / ASSESSMENT YEAR: 2011-2012 ANAR AVNIDHAR SHAH, 172/1, PREMCHAND HOUSE, OLD HIGH COURT, ASHRAM ROAD, AHMEDABAD PAN: AFBPS 1988 K V/S. ITO, CIRCLE-10, AHMEDABAD / // / (APPELLANT) / // / (RESPONDENT) ASSESSEE(S) BY : SHRI P.F. JAIN, AR REVENUE BY : SHRI NIMESH YADAV, SR. DR. !' # $%&/ // / DATE OF HEARING : 26/05/2015 '( # $%& / // / DATE OF PRONOUNCEMENT: 29/05/2015 )* )* )* )*/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IS DIRE CTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEAL S), AHMEDABAD-5, DATED 28.01.2015, PERTAINING TO ASSESSMENT YEAR 201 1-12. 2. GROUND NOS. 1, 2 & 3 OF THE ASSESSEES APPEAL RE AD AS UNDER:- 1. THE LD. CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE DISALLOWANCE OF RS.1,46,11,826/- BEING DENIAL OF EX EMPTION U/S 54F WITHOUT PROPERLY APPRECIATING/CONSIDERING THE FACTS , EVIDENCE AND THE RELEVANT PROVISIONS OF THE ACT. ITA NO. 672/AHD/2015 ANAR AVNIDHAR SHAH VS. ITO FOR AY 2011-12 2 2. HE HAS ERRED IN LAW AND ON FACTS IN NOT PROPERLY AP PRECIATING THE FACT THAT NO SUFFICIENT TIME WAS GRANTED FOR REPLY TO THE SHO W CAUSE NOTICE RESULTING INTO VIOLATION OF PRINCIPLES OF NATURAL J USTICE. 3. HE HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATIN G THE FACTS THAT THE FIELD REPORT OF THE INSPECTOR, PHOTOGRAPH, PANCHNAM A, PROMINENTLY HIGHLIGHTED AND RELIED UPON WERE NOT PROVIDED TO TH E ASSESSEE FOR EXPLANATION/REBUTTAL RENDERING THE DISALLOWANCE AS BAD IN LAW. 3. GROUND NOS. 4 TO 10 ARE ONLY ARGUMENTS IN RESPEC T OF ABOVE GROUND NOS. 1, 2 AND 3. 4. AT THE TIME OF HEARING BEFORE US, IT IS SUBMITTE D BY THE LD. COUNSEL THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSES SEE CLAIMED EXEMPTION U/S 54F AGAINST THE LONG TERM CAPITAL GAIN OF RS.1, 46,11,826/-. THAT THE ASSESSING OFFICER DENIED THE EXEMPTION CLAIMED BY T HE ASSESSEE U/S 54F ON THE GROUND THAT THE ASSESSEE DID NOT MAKE THE INVES TMENT FOR THE ACQUISITION OF NEW RESIDENTIAL HOUSE WITHIN THE PERIOD OF TWO Y EARS AFTER THE DATE OF TRANSFER. IN SUPPORT OF HIS CONTENTION, THE ASSESS ING OFFICER HAS RELIED UPON THE INSPECTION REPORT OF THE INSPECTOR DATED 24.01. 2014 AND ANOTHER REPORT DATED 29.01.2014 WHICH WAS PREPARED IN THE FORM OF PANCHNAMA IN THE PRESENCE OF TWO WITNESSES. THAT THE ASSESSING OFFI CER DID NOT SUPPLY THE COPIES OF INSPECTOR REPORT DATED 24.01.2014 AND PAN CHNAMA DATED 29.01.2014 TO THE ASSESSEE AND DID NOT ALLOW ADEQUA TE OPPORTUNITY TO FURNISH THE EVIDENCE IN REBUTTAL OR OPPORTUNITY TO EXAMINE THE WITNESSES MENTIONED IN PANCHNAMA. HE, THEREFORE SUBMITTED THAT THE MATT ER MAY BE SENT BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTIO N THAT THE MATERIAL COLLECTED BY THE ASSESSING OFFICER THROUGH INSPECTOR SHOULD B E SUPPLIED TO THE ASSESSEE AND THE ASSESSEE SHOULD BE ALLOWED ADEQUAT E OPPORTUNITY TO ITA NO. 672/AHD/2015 ANAR AVNIDHAR SHAH VS. ITO FOR AY 2011-12 3 FURNISH THE EVIDENCE IN REBUTTAL OF THE ABOVE EVIDE NCES COLLECTED BY THE ASSESSING OFFICER BEHIND THE BANK OF THE ASSESSEE. 5. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, RELIED UPON THE ORDER OF THE ASSESSING OFFICER AND HE REFERRED TO PAGE NO.10 & 11 OF THE ASSESSMENT ORDER AND POINTED OUT THAT THE ASSESSING OFFICER GAVE OPPORTUNITY TO THE ASSESSEE IN WHICH IT WAS INFORME D BY THE ASSESSING OFFICER THAT BY SITE VERIFICATION ON 24.01.2014 BY THE INSPECTOR OF INCOME-TAX IT WAS REVEALED THAT THE PLOTS WERE STILL OPEN AND NO CONSTRUCTION ACTIVITIES WERE CARRIED OUT ON THE SAID PLOTS. THEREAFTER, TH E ASSESSEE DID FURNISH THE REPLY ON 31.01.2014 AND THE ASSESSING OFFICER, AFTE R CONSIDERING THE SAID REPLY, HAS COMPLETED THE ASSESSMENT. 6. IN THE REJOINDER, IT IS SUBMITTED BY THE LD. COU NSEL THAT SINCE THE ADEQUATE TIME WAS NOT ALLOWED BY THE ASSESSING OFFI CER, THE ASSESSEE WAS NOT ABLE TO GIVE ANY FACTUAL DETAILS AND ONLY FURNI SHED THE LEGAL ARGUMENTS IN ITS REPLY DATED 31.01.2014. HE STATED THAT ULTI MATELY THE BUILDING HAS BEEN CONSTRUCTED ON THE AFORESAID PLOT AND THEREFORE, TH E CONTENTION OF THE ASSESSING OFFICER THAT NO BUILDING WAS CONSTRUCTED IS FACTUALLY INCORRECT. 7. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. FROM PAGE N O.6, PARAGRAPH NO.5 OF THE ASSESSMENT ORDER, IT IS EVIDENT THAT PHYSICAL I NSPECTION OF THE PLOTS WAS DONE BY THE INSPECTOR OF INCOME-TAX ON 24.01.2014 F OR WHICH HE FURNISHED THE FIELD INQUIRY REPORT WITH THE ASSESSING OFFICER ON THE SAME DAY. AGAIN ON 29.01.2014, THE INSPECTOR OF INCOME-TAX PREPARED A PANCHNAMA IN THE PRESENCE OF TWO WITNESSES. AT PAGE NO.10, IN LAST P ARAGRAPH, THE ASSESSING OFFICER HAS REFERRED TO SOME SHOW-CAUSE NOTICE TO T HE ASSESSEE IN WHICH THE ITA NO. 672/AHD/2015 ANAR AVNIDHAR SHAH VS. ITO FOR AY 2011-12 4 SITE VERIFICATION BY INSPECTOR DATED 24.01.2014 IS MENTIONED. HOWEVER, THERE IS NO MENTION ABOUT THE PANCHNAMA DRAWN BY THE INSP ECTOR OF INCOME-TAX IN THE PRESENCE OF TWO WITNESSES ON 29.01.2014. MO REOVER, IT IS ALSO NOT MENTIONED BY THE ASSESSING OFFICER WHETHER THE COPY OF THE REPORT OF THE INSPECTOR DATED 24.01.2014 WAS ANNEXED ALONGWTIH TH E SHOW-CAUSE NOTICE. THE DATE OF SHOW-CAUSE NOTICE AND THE DATE OF SERVI CE THEREOF ARE NOT MENTIONED IN THE ASSESSMENT ORDER. THE ASSESSMENT W AS COMPLETED ON 31.01.2014. FROM THESE FACTS, IT IS EVIDENT THAT T HE INQUIRIES WERE CONDUCTED THROUGH INSPECTOR OF INCOME-TAX TILL 29.01.2014. TH E OUTCOME OF THESE INQUIRIES HAS BEEN USED BY THE ASSESSING OFFICER AG AINST THE ASSESSEE TO ARRIVE AT THE CONCLUSION THAT NO CONSTRUCTION WAS M ADE BY THE ASSESSEE SO AS TO BE ENTITLED TO EXEMPTION U/S 54F. THE ASSESSMENT WAS COMPLETED ON 31.01.2014 I.E., WITHIN TWO DAYS FROM CONDUCTING TH E ENQUIRIES BY THE INSPECTOR OF INCOME-TAX. WHEN THE INQUIRY WAS CONDU CTED ALMOST IN THE LAST WEEK OF JANUARY 2014, NATURALLY IT CANNOT BE POSSIB LE TO CONFRONT THE OUTCOME OF THE INQUIRY TO THE ASSESSEE AND ALLOW HI M SUFFICIENT TIME TO FURNISH THE REPLY IN REBUTTAL. THEREFORE, IN OUR OP INION, IT WOULD MEET THE ENDS OF JUSTICE IF THE ORDERS OF THE AUTHORITIES BE LOW ARE SET ASIDE AND THE MATTER IS RESTORED BACK TO THE FILE OF THE ASSESSIN G OFFICER. WE ORDER ACCORDINGLY AND DIRECT THE ASSESSING OFFICER TO SUP PLY THE COPY OF THE INSPECTOR REPORT, PANCHNAMA AND ANY OTHER MATERIAL IF COLLECTED BEHIND THE BACK OF THE ASSESSEE WHICH THE DEPARTMENT PROPOSES TO UTILIZE AGAINST THE ASSESSEE. THE ASSESSING OFFICER IS ALSO DIRECTED TO ALLOW ADEQUATE OPPORTUNITY TO THE ASSESSEE FOR SUBMISSION OF HIS R EPLY AS WELL AS ANY EVIDENCE IN SUPPORT OF HIS CLAIM THAT CONSTRUCTION OF RESIDENTIAL HOUSE WAS DONE WITHIN STIPULATED TIME AS PER SECTION 54F. THE REAFTER, HE WILL RE- ADJUDICATE THE ISSUE IN ACCORDANCE WITH LAW. ITA NO. 672/AHD/2015 ANAR AVNIDHAR SHAH VS. ITO FOR AY 2011-12 5 8. THE ONLY OTHER GROUND RAISED IN THIS APPEAL BY T HE ASSESSEE IS GROUND NO. 11 WHICH IS WITH REGARD TO CHARGING OF INTEREST U/S 234B. BOTH THE PARTIES AGREED THAT THE CHARGING OF INTEREST U/S 23 4B IS CONSEQUENTIAL. WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO RE-COMPU TE THE INTEREST IN ACCORDANCE WITH LAW, AFTER THE RE-DETERMINATION OF INCOME. 9. IN THE RESULT, THE ASSESSEES APPEAL IS DEEMED T O BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 29 TH MAY, 2015 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 29/05/2015 BIJU T., PS )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. $ !- / CONCERNED CIT 4. !- ( ) / THE CIT(A) 5. +01 $ , , / DR, ITAT, AHMEDABAD 6. 13 4' / GUARD FILE . )*! )*! )*! )*! / BY ORDER, TRUE COPY 5 55 5/ // / 6 6 6 6 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD