Manju Tyagi, Ghaziabad V. ITO, Ward- 1(4), Ghaziabad

ITA 7402/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3953 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 22-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARUL SINGH
• Assessee Lawyers: VINAY VERMA
• Keywords: Opportunity of being heard; Set aside; Capital Gains

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 7402/DEL/2018 [ASSESSMENT YEAR: 2009-10] MANJU TYAGI, VS. ITO, WARD 1(4), VILLAGE & PO-MAKANPUR, GHAZIABAD INDRAPURAM, GHAZIABAD UTTAR PRADESH-201014 (PAN: BCRPT4976L) [APPELLANT] [RESPONDENT] ASSESSEE BY: SH. SAHIL SHARMA, ADVOCATE & SH. VINAY VERMA, ADVOCATE REVENUE BY : MS. PARUL SINGH, SR. DR. ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX [APPEALS], ALIGARH DATED 18.09.2018 PERTAINING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOW ING GROUNDS:- 1. THAT ON PECULIAR FACTS AND CIRCUMSTANCES OF THE PRE SENT CASE THE ADDITION OF RS. 1800000/- TO THE INCOME O F ASSESSEE ON ACCOUNT OF ALLEGED SALE OF IMMOVABLE PR OPERTY IS UNJUSTIFIED. 2. THAT THE ALLEGED SALE DEED OF THE PROPERTY WHICH FO RMS THE BASIS FOR THE SAID ADDITION HAS BEEN DECLARED INVAL ID AND SET ASIDE BY A COMPETENT CIVIL COURT, WHICH DEGREE HAS BECOME FINAL AS THEREFORE, CANNOT BE CONSIDERED IN LAW FOR MAKING SAID ADDITION. 3. THAT ON THE FACTS AND EVIDENCE ON RECORD, IT IS NOT ESTABLISHED THAT ANY MONEY WAS RECEIVED BY ASSESSEE IN CASH OR BY CHEQUE FROM BUYERS ON ACCOUNT OF THE SAL E OF PROPERTY. 2 4. THAT ONCE THE ALLEGED SALE DEED HAS BEEN SET ASIDE BY A COMPETENT COURT NO EFFECT OR CONSEQUENCE EMANATING FROM THE SAME, CAN BE CONSIDERED WHILE DETERMINING THE QUESTION OF CAPITAL GAINS/ TRANSFER. 5. THAT THE APPELLANT CRAVES LEAVE TO MODIFY/AMDN OR A DD ANY ONE OR MORE GROUNDS. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE STATED THAT AO HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSE E AND PASSED THE ASSESSMENT ORDER DATED 23.12.2016 U/S. 144/147 OF T HE INCOME TAX ACT, 1961. HE FURTHER STATED THAT ASSESSEE IS HAVING ALL THE NECESSARY EVIDENCES FOR SUBSTANTIATING THE CLAIM BEFORE THE R EVENUE AUTHORITIES, IF THIS BENCH GRANTS AN OPPORTUNITY TO THE ASSESSEE TO DO THE SAME. HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET AS IDE TO THE ASSESSING OFFICER TO DECIDE THE SAME, AFRESH, AS PER LAW, AF TER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE AS WELL AS FOR PRODUCTION O F ALL THE NECESSARY EVIDENCES FOR SUBSTANTIATING THE CLAIM OF THE ASSES SEE BEFORE THE ASSESSING OFFICER. HE FURTHER STATED THAT THE ALL EGED SALE DEED OF THE PROPERTY WHICH FORMS THE BASIS FOR THE SAID ADDITI ON HAS BEEN DECLARED INVALID AND SET ASIDE BY A COMPETENT CIVIL COURT, W HICH DECREE HAS BECOME FINAL AS THEREFORE CANNOT BE CONSIDERED IN L AW FOR MAKING THE SAID ADDITION. HE FURTHER STATED THAT IT IS NOT ESTABL ISHED THAT ANY MONEY WAS RECEIVED BY THE ASSESSEE IN CASH OR BY CHEQUE FROM BUYERS ON ACCOUNT OF THE SALE OF PROPERTY. 4. LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS PASSED BY THE REVENUE AUTHORITIES ALONGWITH THE ASSESSEES PA PER BOOK CONTAINING PAGES 1-56 IN WHICH HE HAS ATTACHED THE COPY OF RE ASONS RECORDED ON 21.1.2016 FOR REOPENING THE ASSESSMENT; COPY OF WRI TTEN SUBMISSION DATED 5.6.2018 FILED BEFORE LD. CIT(A); COPY OF REM AND REPORT DATED 3 11.7.2018; COPY OF REJOINDER DATED 1.9.2018 ALONGWI TH AFFIDAVIT FILED BEFORE LD. CIT(A); COPY OF SALE DEED DATED 18.12.2 008 AND COPY OR COURT ORDER DATED 31.3.2018 PASSED BY ACJ (SD) COUR T NO.3, GHAZIABAD, WHICH ARE VERY VITAL AND ESSENTIAL, HAVE NOT BEEN PROPERLY CONSIDERED BY THE LOWER AUTHORITIES. I ALSO FIND THAT AO HAS A LSO PASSED THE ASSESSMENT ORDER U/S. 144/147 OF THE I.T. ACT, 1961 WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESEE FOR SUBSTANTI ATING THE CLAIM. THEREFORE, IN THE INTEREST OF JUSTICE, I AM SETTING ASIDE THE ISSUES IN DISPUTE TO THE ASSESSING OFFICER WITH THE DIRECTIO NS TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND CONSIDER ALL THE DOCUMENTS / EVIDENCES FILED IN THE SHAPE OF PAPER BOOK, AS DISCUSSED ABOVE TO SUBSTANTIATE THE CLAIM OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON 02.03.2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED:02-03-2020 SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI