Naveen Jain, Dehradun V. ITO, Dehradun

ITA 740/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8215 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 03-02-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 02-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : F: NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA, VICE PRESIDENT AND SHRI I.P. BANSAL, JUDICIAL MEMBER ITA NO.740/DEL/2009 ASSESSMENT YEAR : 2002-03 NAVEEN JAIN, 23, DARSHANI GATE, DEHRADUN. PAN : ACFPJ7383L VS. ITO, WARD 1 (2), DEHRADUN. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K. SAMPATH, ADVOCATE REVENUE BY : SHRI H.K. LAL, SR. DR ORDER PER : I.P. BANSAL, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER OF THE CIT (A) DATED 17 TH DECEMBER, 2008 FOR ASSESSMENT YEAR 2002-03. GROUND S OF APPEAL READ AS UNDER:- 1. THAT THE ASSESSMENT MADE BY THE LD. ASSESSING O FFICER IS ERRONEOUS IN LAW AND AGAINST THE FACTS AND CIRCUMST ANCES OF THE CASE. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN LAW IN CONFIRMING THE ADDITION OF RS.4,17, 983/- ON ACCOUNT OF DIFFERENCE IN THE COST OF CONSTRUCTION. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN LAW IN NOT DECIDING ON THE ISSUE OF INITIA TION FOR THE IMPOSITION OF PENALTY U/S 271(1)(C). 4. THAT THE AFORESAID GROUNDS OF APPEAL ARE ALTERN ATIVE IN NATURE AND SUPPLEMENT TO EACH OTHER. THE APPELLANT MAY KINDLY BE ALLOWED TO ADD WITHDRAW OR AMEND ANY OF T HE ABOVE ITA NO.740/DEL/2009 2 GROUNDS OF APPEAL, BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 5. THAT THE ORDER OF THE CIT (A) BEING REPUGNANT T O FACTS AND CONTRARY TO LAW AND BEING PERVERSE MUST BE QUASHED. 2. THE SHORT QUESTION INVOLVED IN THE PRESENT APPEA L IS REGARDING ADDITION MADE ON ACCOUNT OF COST OF CONSTRUCTION INCURRED BY THE ASSESSEE IN RESPECT OF HOTEL BUILDING. THE AO VALUED THE BUILDING CONSTRU CTED BY THE ASSESSEE BY GIVING EFFECT TO PWD RATES AT RS.13,12,312/- AS AGAINST RS .8,94,329/- SHOWN BY THE ASSESSEE. BEFORE THE AO IT WAS THE CONTENTION OF T HE ASSESSEE THAT THOUGH THE RATE PROVIDED BY PWD WERE TO BE APPLIED, CERTAIN AD JUSTMENTS WERE REQUIRED TO BE MADE. REFERRING TO THOSE CORRESPONDENCES IT WAS SUBMITTED BEFORE THE CIT (A) THAT THE AO DID NOT GIVE PROPER OPPORTUNITY TO EXPLAIN THE DIFFERENCE. REFERRING TO THE GRIEVANCE OF THE ASSESSEE THAT NO PROPER OPPORTUNITY WAS PROVIDED BY THE AO AND THIS GROUND HAVING BEEN TAKE N BY THE CIT (A), THE CIT (A) ALSO DID NOT APPRECIATE SUCH GRIEVANCE OF THE A SSESSEE AND LOOKING INTO THESE FACTS IT WAS SUBMITTED BY LD. AR THAT THE ISSUE MAY BE RESTORED BACK TO THE FILE OF AO FOR DENOVO CONSIDERATION BY GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. LD. AR SUBMITTED THAT LD. CIT (A) HAS WRO NGLY HELD THAT THE AO HAD NO OPTION, BUT TO COMPLETE THE ASSESSMENT AS IT IS GOI NG TO BE TIME BARRED ON THE GROUND THAT THE ASSESSMENT ORDER IN THE PRESENT CAS E WAS PASSED ON 22 ND FEBRUARY, 2005 AND, THUS, THERE WAS A CONSIDERABLY TIME LEFT WITH THE O AS THE ASSESSMENT COULD BE PASSED BY 31 ST MARCH, 2005. THE ASSESSEE HAD ALSO SUBMITTED VALUATION FROM HIS REGISTERED COUNSEL AND SOUGHT FROM THE AO THAT 10% DEDUCTION SHOULD BE GIVEN OUT OF PWD RATES AS W ORK DONE BY THE ASSESSEE WAS UNDER HIS SUPERVISION. IT WAS CONTENDED BY LD. AR THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF AO. 3. ON THE OTHER HAND, REFERRING TO THE ORDER OF AO AND CIT (A), IT WAS SUBMITTED BY LD. DR THAT SUFFICIENT OPPORTUNITY WAS GIVEN TO THE ASSESSEE AND IN THE ABSENCE OF ANY EXPLANATION FROM THE ASSESSEE TH E RIGHT COURSE WAS ADOPTED BY THE AO AND CIT (A). ITA NO.740/DEL/2009 3 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. IT HAS BEEN RECORDED IN THE ORDER OF CIT (A) IN THE SHAPE OF WRITTEN SUBMISSIONS SUBMITTED BY THE ASSES SEE BEFORE LD. CIT (A) DATED 23 RD NOVEMBER, 2005 THAT THE AO HAS IGNORED DETAILED SU BMISSIONS MADE BY THE ASSESSEE ON 15 TH DECEMBER, 2004. IT HAS ALSO BEEN THE CONTENTION O F THE ASSESSEE BEFORE THE CIT (A) THAT THE AO HAD STATED THAT ON 10 TH FEBRUARY, 2005 NO ONE ATTENDED NOR ANY EXPLANATION WAS RECEIVED BY HIM FROM THE ASSESSEE AND THE AO AFTER TAKING INTO ACCOUNT APPROACHING STATUT ORY LIMITATION COMPLETED THE ASSESSMENT. THUS, IT IS CLEAR THAT THE ASSESSEE DI D NOT GET SUFFICIENT OPPORTUNITY BEFORE THE AO AND THE CORRESPONDENCE PLACED BY THE ASSESSEE ON THE RECORD OF AO DATED 15 TH DECEMBER, 2004 WAS ALSO NOT TAKEN INTO CONSIDERATI ON. IN VIEW OF THESE FACTS AND CONSIDERING THE REQUEST OF AR, WE R ESTORE THIS ISSUE TO THE FILE OF AO FOR DENOVO CONSIDERATION AFTER GIVING THE ASSESS EE A REASONABLE OPPORTUNITY OF HEARING. AFTER GIVING SUCH OPPORTUNITY, THE AO WILL RE-ADJUDICATE THE ISSUE AS PER THE PROVISIONS OF LAW. WE DIRECT ACCORDINGLY. 5. IN THE RESULT, FOR STATISTICAL PURPOSES THE APPE AL IS TREATED AS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 05.02.201 0. SD/- SD/- [G.E. VEERABHADRAPPA] [I.P. BANSAL] VICE PRESIDENT JUDICIAL MEMBER DATED, 05.02. 2010. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES