SHRI GOPI RAM CHOUDHARY, Jaipur V. ITO, Jaipur

ITA 720/JPR/2012

• Counselvise Citation: 72023114 RSA 2012
• Duration Of Justice: 1 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 06-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRAD R
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Cost of acquisition; Valuation report
• Section: 54B; 54F; 148

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JAIPUR BENCH JAIPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 720/JP/2012 (A.Y. 2007-08) GOPI RAM CHOUODHARY, VS. ITO, WARD-7 (2) S/O SHRI PITHA RAM, JAIPUR. VILLAGE NARSINGHPURA, POST MAHAPURA, TEHSIL SANGANER, DISTRICT JAIPUR (RAJASTHAN). PAN NO. BAFPR 8250 R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.L. JAIN. DEPARTMENT BY : SHRI SUBHASH CHANDRA-D.R. DATE OF HEARING : 23/01/2014. DATE OF PRONOUNCEMENT : 27/01/2014. O R D E R PER N.K.SAINI, A.M THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 22/05/2012 OF CIT(A)-III, JAIPUR. THE FOLLOWING GR OUNDS HAVE BEEN RAISED IN THIS APPEAL: 2 1. THE LD. ASSESSING OFFICER HAS ERRED IN FACT AND IN LAW IN MAKING ADDITION OF LONG TERM CAPITAL GAIN OF RS. 3,04,24,409/- AND NOT ALLOWING DEDUCTION U/S 54F. 2. THE LD. ASSESSING OFFICER HAS ERRED IN FACT AND IN LAW IN MAKING ADDITION OF RS. 46,99,000/- TREATING IT AS U NDISCLOSED SOURCES. 3. THE LD. ASSESSING OFFICER HAS ERRED IN FACT AND IN LAW IN MAKING ADDITION AS A LONG TERM CAPITAL GAIN WHILE T HE DISTANCE OF AGRICULTURAL LAND SOLD IS BEYOND OF 8 K M FROM MUNICIPAL LIMIT. 4. THAT THE APPELLANT PRAYS FOR LEAVE TO ADD, ALTER AND AMEND THE AFORESAID GROUNDS OF APPEAL. 2 FACTS OF THE CASE IN BRIEF ARE THAT A NOTICE UNDER SECTION 148 OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS ACT, IN SHORT) WAS ISSUED TO THE ASSESSEE AFTER RECORDING THE REAS ONS ON 15/01/2010. THE ASSESSEE DID NOT FILE THE RETURN O F INCOME AND ALSO STATED THAT HE WAS NOT ASSESSABLE TO TAX. HOW EVER, THE AO NOTICED THAT THE ASSESSEE SOLD 2.548 HECTARE UNDIVI DED LAND SITUATED AT VILLAGE NARSINGHPURA, PATWAR MAHAPURA, TEHSIL ANGANER, JAIPUR JOINTLY WITH SHRI CHETARAM AND SHRI ROSHAN KUMAR AND RECEIVED RS. 3,62,32,310/- FOR HIS SHARE. THE A O CONSIDERED THE INDEXED COST OF ACQUISITION AT RS. 31,701/- AND ALLOWED THE DEDUCTION UNDER SECTION 54B OF THE ACT ON ACCOUNT O F INVESTMENT MADE IN THE PROPERTIES FOR A SUM OF RS. 57,76,200/- AND WORKED OUT THE LONG TERM CAPITAL GAIN OF RS. 3,04,24,409/- WHICH WAS 3 ADDED TO THE INCOME OF THE ASSESSEE. THE AO ALSO N OTICED THAT THE ASSESSEE DEPOSITED A SUM OF RS. 46,99,000/- IN HIS BANK ACCOUNTS, THE SAME WAS CONSIDERED AS INCOME FROM OT HER SOURCES AND ALSO ADDED TO THE INCOME OF THE ASSESSEE. THE AO ALSO FOUND THAT THE ASSESSEE EARNED INTEREST OF RS. 1,05,930/- WHICH WAS ALSO ADDED TO THE INCOME OF THE ASSESSEE. ACCORDINGLY, ASSESSMENT WAS MADE AT AN INCOME OF RS. 3,52,29,339/-. 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER T O THE LD. CIT(A) AND FURNISHED CERTAIN ADDITIONAL EVIDENCES U NDER RULE 46A OF THE INCOME TAX RULES IN THE FORM OF SALE DEEDS OF THE LAND, VALUATION REPORT AND BANK STATEMENTS ETC. IN RESPEC T OF CLAIM MADE UNDER SECTION 54F OF THE ACT AND UNEXPLAINED C ASH FOUND IN THE BANK ACCOUNTS. THE LD. CIT(A) ADMITTED THOSE D OCUMENTS, HOWEVER SUSTAINED THE ADDITIONS MADE BY THE AO. NO W THE ASSESSEE IS IN APPEAL. 4. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT NE ITHER AO NOR LD. CIT(A) HAS GIVEN PROPER OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE TO EXPLAIN AND DEFEND THE VARIOUS ADDITION S MADE BY THE AO, THEREFORE, THE ADDITIONS ARE SUSTAINED IN ARBIT RARY MANNER. IT 4 WAS PRAYED THAT THE CASE MAY BE SENT BACK TO THE AO , SO THAT THE ASSESSEE CAN EXPLAIN ITS CASE. 5. IN HIS RIVAL SUBMISSIONS, LD. D.R. STATED THAT THE ASSESSEE DID NOT PROVIDE ANY EXPLANATION OR EVIDENCE EITHER BEFO RE THE AO OR BEFORE LD. CIT(A), THEREFORE, THE ADDITIONS WERE RI GHTLY SUSTAINED. 6 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON TH E RECORD. IN THE PRESENT CASE, IT APPEARS THAT THE AO HAD NOT PROVID ED DUE AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE THATS WHY LD. CIT(A) ADMITTED THE ADDITIONAL EVIDENCES. IT I S ALSO NOTICED THAT THE LD. CIT(A) WHILE CONFIRMING THE ADDITIONS HAS NOT DISCUSSED WHATWERE THE SUBMISSIONS OF THE ASSESSEE. IT THEREFORE, APPEARS THAT AN APPROPRIATE OPPORTUNITY OF BEING HE ARD WAS NOT GIVEN TO THE ASSESSEE, WHICH IS AGAINST THE PRINCIP LES OF NATURAL JUSTICE AS EMBODIED IN THE DICTUM AUDI ALTERAM PARTEM . WE, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THIS CA SE TO THE FILE OF THE AO TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 5 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 27 TH JANUARY, 2014). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 27 TH JANUARY, 2014. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R BY ORDER ASSISTANT REGISTRAR, ITAT, JAIPUR.