Rajendra Kumar Sharma, Meerut V. ITO, Ward- 2(2), Meerut

ITA 6790/DEL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7194 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 10-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Opportunity of being heard; Fair market value
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER ITA NO.-6790/DEL/2017 ( ASSESSMENT YEAR: 2007-08) RAJENDER KUMAR SHARMA, 184/5, THAPAR NAGAR, MEERUT. VS I TO, WARD - 2(2) MEERUT. ASSESSEE BY SHRI ROHIT AGGARWAL , CA REVENUE BY SH. S.L. ANURAGI , SR. DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 31.8.2017 OF CIT(A) MEERUT PERTAINING TO 2007-08 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS :- 1. THAT THE ID. CIT(A) HAS ERRED IN LAW BY NOT DECIDIN G THE GROUNDS NO.2 & 4 AS RAISED BEFORE HIM AS REPRODUCED HEREUNDER :- 'G.NO.2. :THAT WITHOUT PREJUDICE TO ABOVE, THE ORDER U/S 144 /148 DATED 10.12.2015 IS BARRED BY LIMITATION AS THE SAME OUGH T TO HAVE BEEN PASSED ON OR BEFORE 31.03.2015. G.NO4:THAT THE ID. AO. HAS ERRED IN LAW BY NOT ADMI TTING THE AFFIDAVITS OF THE APPELLANT AS WELL AS HIS BROTHER IN WHOSE FAVOUR TH E IMPUGNED SALE DEED OF THE PROPERTY WAS EXECUTED, TO THE EFFECT THAT THE TRAN SFER DEED WAS IN ACTUAL A DEED OF FAMILY PARTITION WITHOUT ANY CONSIDERATION, THOU GH THE CONSIDERATION OF RS.60,000/- WAS DECLARED TO HAVE BEEN PAID AND RECE IVED IN THE SAID TRANSFER DEED.' 2. IN ANY CASE, THE TRANSACTION UNDER REFERENCE OUG HT TO HAVE BEEN TREATED AS A TRANSACTION FAMILY SETTLEMENT IN VIEW OF THE DULY S WORN IN AFFIDAVITS OF THE APPELLANT AND HIS BROTHER, BEING THE PURCHASER OF S HOP UNDER REFERENCE AND THE ID. CIT(A) HAS ERRED IN LAW AS WELL AS ON .THE FACT S OF THE CASE BY IGNORING THE AFFIDAVITS FILED BEFORE THE ID. AO. AS WELL AS BEF ORE HIM. 3. THAT THE ESTIMATION OF FAIR MARKET VALUE AS MADE BY THE LD. A.V.O AS ON THE DATE OF SALE AT RS. 4,34,000/- IS HIGHLY EXCESSIVE AND THE OBJECTION RAISED BEFORE HIM HAVE NOT BEEN CONSIDERED & DISPOSED OFF BY HIM BEFORE MAKING THE FINAL ESTIMATION. 4. THAT THE ESTIMATION OF FAIR MARKET VALUE OF THE SHOP AS ON 01.04.1981 AT RS. 21 ,000/- IS INCORRECT AND UNDER ESTIMATED AND THE OBJECTIONS RAISED HAVE NOT BEEN CONSIDERED BY THE ID. AVO BEFORE MAKING FINAL ESTIMATION. 5. THE APPELLANT RESPECTFULLY CRAVES LEAVE TO ADD, ALTER, OMIT OR SUBSTITUTE ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL, AT ANY TIME BEF ORE OR AT THE TIME OF HEARING OF APPEAL, TO ENABLE YOUR GOOD-SELF TO DECIDE THE A PPEAL IN ACCORDANCE WITH LAW. DATE OF HEARING 02.07 .2018 DATE OF PRONOUNCEMENT 11.07. 2018 ITA 6790/DEL/2017 PAGE 2 OF 3 2. AT THE TIME OF HEARING THE LD. AR ON READING FROM TH E ASSESSMENT ORDER AND THE IMPUGNED ORDER SUBMITTED THAT THE AO FAILE D TO ADDRESS THE FACTS NAMELY THAT THE ISSUE PERTYAINS TO INHERITED PROPERTY WHICH WAS A SHOP SITUATED AT H.NO. 257/1 PRESENT NO. 184/5, TH APAR NAGAR, MEERUT. DUE TO DISPUTES AMONGST THE BROTHER I.E SONS O F SHRI NAROTTAM DAS SHARMA, ULTIMATELY A PARTITION RESULTED AMONGST THE B ROTHERS WHERE THE SHOP STOOD TRANSFERRED TO SHRI ASHOK KUMAR SHARMA. IN THE COURSE OF THE ASSESSMENT PROCEEDINGS THE ASSESSEE HAD FILED TWO AFFIDAVITS ONE OF THE ASSESSEE AND ONE OF HIS BROTHER SHRI ASHOK KUMAR SHARMA. BEING LARGELY ILLITERATE I.E. BARELY 8 TH PASS WHATEVER DOCUMENTS WERE PREPARED BY DEED WRITERS WERE SIGNED IN IGNORANCE .HOWEVER THE FACTS REMAIN THAT THE CORRECT AND TRUE FACTS ARE SET O UT IN THE AFFIDAVITS. IT WAS PUT TO THE LD. AR THAT IF THE TAXPAYER IS SO IGN ORANT, ILLITERATE THAT HE IS SIGNING VARIOUS DOCUMENTS BEFORE THE COURT THEN WH AT IS THE SANCTITY OF RELYING ON AFFIDAVITS ALSO SIGNED BY HIM AS HE ST ILL CONTINUES TO REMAIN EQUALLY IGNORANT/ILLITERATE. MR. ROHIT AGRAWAL CA ST ATED THAT AS A COUNSEL HE IS AWARE THAT CORRECT AND TRUE FACTS A RE SET OUT IN THE AFFIDAVITS FILED BY THE ASSESSEE AND HIS BROTHER SHRI ASH OK KUMAR SHARMA TO WHOM THE FAMILY PROPERTY STOOD TRANSFERRED O N PARTITION. IN THE CIRCUMSTANCES IT WAS HIS LIMITED PRAYER THAT LET THE M ATTER BE DECIDED ON THE BASIS OF CORRECT AND TRUE FACTS. 3. THE LD. SR. DR THOUGH PLACED RELIANCE UPON THE ORDER S, HOWEVER IN THE FACE OF THE REFERENCE MADE BY THE AO TO THE TW O AFFIDAVITS DATED 29.1.2015 FILED BEFORE HIM WHICH HAVE REMAINED IGNORED HE WAS UNABLE TO JUSTIFY WHY THE SAID AFFIDAVITS BE IGNORED. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD IN THE FACTS AS SET OUT HEREINABOVE I FIND THAT IN THE INTEREST OF JUSTICE IT WOULD BE APPROPRIATE TO REMAND THE MATTER BACK FOR CONSIDERATION DENOVO CONSIDERING THE CONSISTENTLY TAKE N SUBMISSIONS BEFORE THE CIT(A) AND THE AO NAMELY THAT THE ASSESSEE WAS A EIGHT PASS VIRTUALLY ILLITERATE AND WAS UNABLE TO PUT ACROSS T HE CORRECT FACTS QUA THE FAMILY SETTLEMENTS. 5. THE PARTIES WERE HEARD WHETHER THE REMAND BE MADE BEFORE THE CIT(A) OR AO. THE LD. SR. DR REQUESTED FOR A REMAND TO T HE AO STATING THAT FACTS MAY NEED TO BE VERIFIED AT HIS END. THE SAID R EQUEST WAS ACCEPTED BY THE LD. AR. ACCORDINGLY, ACCEPTING THE PRAY ER THE IMPUGNED ORDER IS SET ASIDE. THE ISSUES IN THE LIGHT OF THE AFORESAID DIRECTIONS ARE ITA 6790/DEL/2017 PAGE 3 OF 3 REMANDED BACK TO THE AO. THE AO SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONAB LE OPPORTUNITY OF BEING HEARD. SAID ORDER WAS PRONOUNCED IN THE OPEN C OURT AT THE TIME OF HEARING ITSELF. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 11 TH JULY,2018. SD/- (DIVA SINGH) JUDICIAL MEMBER *VEENA/POONAM(CHD) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI