ITO, WARD- 65(2), NEW DELHI V. PARTAP SINGH SOLANKI, NEW DELHI

ITA 7139/DEL/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 2390 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2013-2014
• Appeal Filed On: 28-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU MUKHURJI SENIOR
• Assessee Lawyers: PARTAP SINGH SOLANKI IN PERSON
• Keywords: Additional evidence; Assessment record; Set aside; Capital Gains
• Section: 54F; 68; 54; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F : NEW DELHI) BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCE) ITA NO.7139/DEL./2017 (ASSESSMENT YEAR : 2013-14) ITO, WARD 65 (2), VS. SHRI PARTAP SINGH SOLANKI, NEW DELHI. 106, SAKSHAM APARTMENTS, PLOT NO.40-B, SECTOR 10, DWARKA, NEW DELHI 110 075. (PAN : AHIPS6478D) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PARTAP SINGH SOLANKI, ASSESSEE IN PERSON REVENUE BY : MS. RANU MUKHURJI, SENIOR DR DATE OF HEARING : 10.02.2021 DATE OF ORDER : 24.02.2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, ITO, WARD 65 (2), NEW DELHI (HEREINAFTER REFERRED TO AS THE REVENUE), BY FILING THE PRESEN T APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 31.08.2017 PASS ED BY LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-32, NEW DELHI QUA THE ASSESSMENT YEAR 2013-14 ON THE GROUNDS INTER ALIA T HAT :- ITA NO.7139/DEL./2017 2 '(I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD.CIT(A) HAS ERRED IN ADMITTING THE ADDITIONAL EVI DENCES FURNISHED BEFORE HIM BY THE ASSESSEE WITHOUT RECORD ING HIS SATISFACTION THAT THE ASSESSEE WAS PREVENTED BY SUF FICIENT CAUSE FROM PRODUCING THE EVIDENCES WHICH HE WAS CALLED UP ON TO PRODUCE BY THE ASSESSING OFFICER IN CONTRAVENTION O F THE PROVISIONS OF RULE 46A OF THE INCOME TAX RULES AND THEREBY GROSSLY ERRED IN DELETING THE ADDITION OF RS.5,25,0 0,000/- MADE BY THE ASSESSING OFFICER. (II) THE LD. CIT(A) HAS ERRED IN ADMITTING THE ADDI TIONAL EVIDENCES SIMPLY ON THE GROUND THAT THE ADDITIONAL EVIDENCES ARE CRUCIAL TO THE DISPOSAL OF APPEAL WITHOUT RECOR DING HIS SATISFACTION THAT THE CASE OF ASSESSEE FALLS IN ANY OF THE SITUATIONS STIPULATED IN RULE 46A OF INCOME TAX RUL ES. (III) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1,07,77,270/- AS HE HAS ACCEPTED THE SUBMISSION OF THE APPELLANT AS PLAUSIBLE WITHOUT GIVING ANY DETAILED FINDING FOR DELETION OF THE ADDITION. (IV) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 1,68,758/- TOWARDS INTEREST OF CAPITAL GAIN ACCOUNT, WHICH IS VERY MUCH TAXABLE IN THE HANDS OF ASSESSEE. (V) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD.CIT(A) HAS GROSSLY ERRED IN ALLOWING THE EXEMPTI ON CLAIMED BY THE ASSESSEE UNDER SECTION 54 OF IT ACT WHEREAS IN NONE OF THE GROUNDS, THE ASSESSEE HAS SOUGHT THIS RELIEF BE FORE THE LD.CIT(A). 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSEE IS A SALARIED CL ASS PERSON WORKING AS EE-II IN DELHI JAL BOARD AT JHANDEWALAN, NEW DELHI AND FILED RETURN OF INCOME FOR THE YEAR UNDER CONSI DERATION DECLARING AN INCOME OF RS.6,82,860/-. DURING THE S CRUTINY PROCEEDINGS, ASSESSING OFFICER (AO) NOTICED SOME IN TEREST INCOME FROM THE BANK AND UNEXPLAINED INCOME AND CALLED UPO N THE ITA NO.7139/DEL./2017 3 ASSESSEE TO EXPLAIN THE SAME. AO MADE FIRST ADDITI ON OF RS.5,25,00,000/- ON ACCOUNT OF SALE CONSIDERATION Q UA THE PLOT NO.26, B-BLOCK SECTOR 23A, DWARKA, NEW DELHI. ON F AILURE OF THE ASSESSEE TO EXPLAIN THIS RECEIPT, AO MADE ADDITION THEREOF UNDER SECTION 68 OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) . AO ALSO MADE ADDITION OF RS.1,07,77,270/- U/S 68 OF TH E ACT ON FAILURE OF THE ASSESSEE TO EXPLAIN ABOUT THE CREDIT ENTRY A PPEARING IN HIS BANK ACCOUNT NO.210300111000011 MAINTAINED WITH COR PORATION BANK, BRANCH AT MAIN MARKET, PANKAJ PLAZA, SECTOR 6 , DWARKA, NEW DELHI AND THEREBY ASSESSED THE TOTAL TAXABLE IN COME AT RS.6,41,27,810/-. 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF FILING THE APPEAL WHO HAS DELETED THE ADDITIONS MAD E BY THE AO BY ACCEPTING THE APPEAL. FEELING AGGRIEVED BY THE ORDE R PASSED BY THE LD. CIT (A), THE REVENUE HAS COME UP BEFORE THE TRI BUNAL 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. UNDISPUTEDLY, THE ASSESSEE IS A SALARIED CLASS E MPLOYEE AND HAS BEEN DULY PAYING HIS TAXES BY FILING REGULAR IN COME-TAX RETURN. ITA NO.7139/DEL./2017 4 IT IS ALSO NOT IN DISPUTE THAT ASSESSEE IS CO-SHARE R TO THE EXTENT OF 1/5 TH SHARE IN THE PROPERTY BEARING PLOT NO.26, B-BLOCK SECTOR 23A, DWARKA, NEW DELHI HAVING BEEN SOLD BY VIRTUE OF THE SALE DEED DATED 08.02.2012 FOR RS.5,25,00,000/- IT IS ALSO N OT IN DISPUTE THAT ASSESSEE HAS BEEN MAINTAINING A BANK ACCOUNT NO.210300111000011 MAINTAINED WITH CORPORATION BANK , BRANCH AT MAIN MARKET, PANKAJ PLAZA, SECTOR 6, DWARKA, NEW DELHI. 6. PERUSAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) DELETING THE ADDITIONS MADE BY THE AO HAVING BEEN P ASSED AFTER CALLING THE REMAND REPORT FROM THE AO GOES TO PROVE THAT THE LD. CIT (A) HAS DELETED THE ADDITIONS BY THRASHING THE FACTS AND EVIDENCE BROUGHT ON RECORD BY THE ASSESSEE BEFORE T HE AO AS WELL AS DURING THE APPELLATE PROCEEDINGS. OPERATIVE PAR T OF THE FINDINGS RETURNED BY THE LD. CIT (A) IS EXTRACTED FOR READY PERUSAL TO AVOID REPETITION OF DISCUSSION AS UNDER :- 5.3 THEREFORE, CONSIDERING ALL THE ABOVE INFORMAT ION, I AM OF THE VIEW THAT THE APPELLANT HAD FILED THE REQUIS ITE DETAILS AT THE ASSESSMENT STAGE ALONG WITH COPIES OF APPROPRIA TE EVIDENCES IN SUPPORT OF HIS CLAIM FOR RELIEF U/S 54 OF THE AC T BUT THESE WERE NOT PROPERLY EXAMINED AND THEREBY ESCAPED APPR OPRIATE CONSIDERATION IN ACCORDANCE WITH THE EXTANT PROVISI ONS OF LAW. EVEN WHEN THE 'ADDITIONAL EVIDENCES' WERE SENT TO T HE AO FOR COMMENTS NO COMMENTS ON MERITS HAVE BEEN RECEIVED. FURTHER, PERUSAL OF THE DETAILS FILED BY THE APPELLANT MAKES IT CLEAR THAT THE APPELLANT IS ELIGIBLE FOR RELIEF U/S 54 ON HIS CAPITAL GAINS. 5.4 AS REGARDS THE ADDITIONS MADE U/S 68 IN THE IM PUGNED ORDER ON THE BANK INTEREST, IT IS OBSERVED THAT THE SE ARE FOUND IN THE APPELLANT'S CAPITAL GAINS ACCOUNT AND THEREF ORE, THE APPELLANT'S EXPLANATION ON THIS IS PLAUSIBLE. ACCOR DINGLY, THE ITA NO.7139/DEL./2017 5 AFOREMENTIONED ADDITIONS MADE IN THE IMPUGNED ORDER AT PARA 2 ABOVE STAND DELETED. THE GROUNDS OF APPEAL AT (A) TO (C) ABOVE ARE ALLOWED. 7. THE CONTENTION OF THE LD. DR FOR THE REVENUE CHA LLENGING THE IMPUGNED ORDER THAT THE LD. CIT (A) HAS ERRED IN AD MITTING THE ADDITIONAL EVIDENCE FURNISHED BEFORE HIM BY THE ASS ESSEE IN CONTRAVENTION OF THE PROVISIONS CONTAINED UNDER RULE 46 OF THE INCOME-TAX RULES, 1962 (FOR SHORT THE RULES) IS N OT SUSTAINABLE IN THE FACE OF THE IMPUGNED ORDER PASSED BY THE LD. CI T(A). BECAUSE IN PARA 4.1 IT IS SPECIFICALLY RECORDED BY THE LD. CIT (A) THAT DETAIL FILED BY THE ASSESSEE WAS DULY SENT TO AO FOR A REM AND REPORT WHO HAS GIVEN REMAND REPORT EXTRACTED IN PARA 4.1 STATI NG THEREIN THAT DESPITE GIVING NUMEROUS OPPORTUNITIES TO FILE EVIDE NCE/DETAILS, ASSESSEE HAS NOT TURNED UP. HOWEVER, ASSESSEE DULY FILED REJOINDER TO THE REMAND REPORT IN THE APPELLATE PROCEEDINGS B EFORE THE LD. CIT (A) STATING THEREIN THAT HE HAS SUBMITTED ALL THE D OCUMENTS AND EVIDENCES NOW RELIED UPON IN THE APPELLATE PROCEEDI NGS WITH THE AO DURING ASSESSMENT PROCEEDINGS BUT HAS NOT BEEN C ONSIDERED BY THE AO AND THAT AO REFUSED TO ADMIT THE REPLY DATED 04.03.2016 IN RESPONSE TO NOTICE DATED 24.02.2016. 8. LD. CIT (A) AFTER EXAMINING THE REMAND REPORT AN D ORIGINAL ASSESSMENT RECORD PERTAINING TO 213 PAGES AND 6 ORD ER SHEET PAGES NOTICED THAT IN REPLY TO THE NOTICE U/S 142 (1) DAT ED 20.04.2015 ITA NO.7139/DEL./2017 6 ISSUED TO THE ASSESSEE, ENTIRE DETAIL OF THE CAPITA L GAINS AND INCOME FROM OTHER SOURCES HAVE BEEN ATTACHED WITH LETTER D ATED 01.05.2015 BEARING PAGES 11 TO 40. AFORESAID INFORMATION ALSO CONTAINS PHOTOCOPIES OF THE ASSESSEES CAPITAL GAINS EARNED WITH CORPORATION BANK, DWARKA, NEW DELHI JOINTLY OPENED IN ASSESSEE AND HIS WIFES NAME ON 06.02.2012 AND HAS ALSO FILED COPY O F REGISTERED SALE DEED OF THE PROPERTY IN QUESTION. 9. WHEN THE ASSESSEE HAS DULY FILED REQUISITE DETAI LS DURING THE ASSESSMENT PROCEEDINGS WITH COPY OF HIS BANK STATEM ENT SHOWING INVESTMENT OF CAPITAL GAIN IN CAPITAL GAIN ACCOUNTS TO THE EXTENT OF SALE PROCEED OF HIS 1/5 TH SHARE TO THE TUNE OF RS.97,70,743/- AND ALSO BROUGHT ON RECORD COPY OF REGISTERED DEED FOR PURCHASE OF NEW RESIDENTIAL PROPERTY ON 11.11.2013 AND ITS COST IS MORE THAN THE CAPITAL GAIN RECEIVED BY THE ASSESSEE AND THEREBY S ATISFIED THE PROVISIONS CONTAINED U/S 54F OF THE ACT, ADDITION M ADE BY THE AO IS APPARENTLY NOT SUSTAINABLE. 10. WHEN ALL THE DOCUMENTS WERE PLACED BEFORE THE A O WHO HAS NOT TAKEN NOTE THEREOF FOR THE REASONS BEST KNOWN T O HIM PARTICULARLY WHEN AO HAS NOT RAISED ANY OBJECTION T O THE DOCUMENTS SENT TO HIM FOR COMMENT, THE LD. CIT (A) WAS WELL WITHIN HIS RIGHT TO DECIDE THE CONTROVERSY BY EXAMI NING ALL THE DOCUMENTS HIMSELF. WHEN THE ASSESSEE HAS BEEN FOUN D TO BE ITA NO.7139/DEL./2017 7 ELIGIBLE U/S 54 QUA HIS CAPITAL GAINS WHICH HAVE BE EN DULY EXPLAINED BY VIRTUE OF THE SALE DEED QUA THE PROPER TY IN QUESTION, BANK STATEMENTS AND SALE DEED OF THE NEW RESIDENTIA L PROPERTY PURCHASED WITH THE CAPITALS GAINS RECEIVED, THE LD. CIT (A) HAS RIGHTLY AND LEGALLY DELETED THE ADDITIONS BY ACCEPT ING THE APPEAL. FINDING NO ILLEGALITY OR PERVERSITY IN THE IMPUGNED ORDER PASSED BY THE LD. CIT (A), PRESENT APPEAL FILED BY THE REVENU E IS HEREBY DISMISSED. 11. HOWEVER, BEFORE PARTING WITH THIS ORDER, IT IS NECESSARY TO BRING ON RECORD, TO BE TAKEN CARE OF BY THE CBDT, T HAT PRESENT APPEAL HAS BEEN FILED JUST TO GENERATE UNNECESSARY LITIGATION WITHOUT EXAMINING WELL-REASONED FINDINGS RETURNED BY THE LD . CIT (A) WHICH CAN BE CURTAILED IF PROPER SCRUTINY/VETTING B Y THE SENIOR OFFICERS, WHO ARE AT THE HELMS OF THE AFFAIRS, IS M ADE BEFORE APPROVING ANY CASE FOR FILING APPEAL BEFORE A HIGHE R FORUM. ORDER PRONOUNCED IN OPEN COURT ON THIS 24 TH DAY OF FEBRUARY , 2021. SD/- SD/- (N.K. BILLAIYA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 24 TH DAY OF FEBRUARY, 2021 TS ITA NO.7139/DEL./2017 8 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-32, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.