ASHA SHARAM, Jaipur V. CIT, Kota

ITA 745/JPR/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2128 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-04-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 21-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA CIT DHK
• Assessee Lawyers: SHRAVAN KR GUPTA
• Keywords: Cost of acquisition; Valuation report
• Section: 143(3); 263

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA- @ ITA NO. 745/JP/2015 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2012-13 ASHA SHARMA, NEAR DAK BANGLA GIRLS SR. SEC. SCHOOL, BHIMGANJ MANDI, KOTA JUNCTION, KOTA. CUKE VS. PR.C.I.T., KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AIDPS 3855 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SHRAVAN KR. GUPTA (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SHRI VARINDER MEHTA (CIT) LQUOKBZ DH RKJH[K @ DATE OF HEARING : 20/04/2017 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 21/04/2017 VKNS'K@ ORDER PER: KUL BHARAT, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE ARISES AGAI NST THE ORDER DATED 09/09/2015 PASSED BY THE LD. PR. CIT, KOTA PERTAININ G TO THE A.Y. 2012-13, WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT THE IMPUGNED ORDER U/S 263 DATED 09.09.20 15 IS BAD IN LAW AND ON FACTS OF THE CASE FOR WANT OF JURISDICTION AND FOR VARIOUS OTHER REASONS AND HENC E THE SAME MAY KINDLY BE QUASHED. 2.1 THAT THE LD. PR. CIT KOTA IS ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN INVOKING S. 263 OF THE ACT . THE ITA 745/JP/2015_ ASHA SHARMA VS PR.CIT 2 SAME IS BEING PURELY CONTRARY TO THE PROVISIONS OF LAW, THEREFORE, THE IMPUGNED ORDER U/S 263 OF THE ACT KI NDLY BE QUASHED. 2.2 THAT THE LD. CIT KOTA IS ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN TAKING THE ACTION U/S 263 OF T HE ACT ON THE ALLEGATION THAT: DEDUCTION OF RS. 16,25,000/- FOR SHRAMA ICE FACTO RY AND RS. 4,80,000/- IN THE CASE BUILDING AT S-33, MB S NAGAR IS NOT ALLOWABLE AND THE AO HAS ERRONEOUSLY ASSESSED THE CAPITAL GAIN AT LOSS OF RS. 347/- AND RS. 5,805/-, RESPECTIVELY INSTEAD OF CAPITAL GAIN OF RS . 16,24,653/- AND RS. 4,74,195/- THEREBY LEADING TO T HE UNDER ASSESSMENT OF INCOME OF RS. 20,98,848/- . WHI CH IS CONTRARY TO THE FACTS AND SUCH A FINDING BEING PERVERSE, THE IMPUGNED ACTION IS BAD IN LAW WITHOUT JURISDICTION AND BEING VOID AB INITIO, THE IMPUGNED ORDER U/S 263 OF THE ACT KINDLY BE QUASHED. 3. THAT THE LD. PR. CIT KOTA IS ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN SETTING ASIDE THE ASSESSME NT TO BE MADE AFRESH WITH THE DIRECTION TO RE-EXAMINE THE ISSUE IN THE LIGHT OF HIS OBSERVATION. THE SAME IS B EING PURELY CONTRARY TO THE PROVISIONS OF LAW, THEREFORE, THE IMPUGNED ORDER U/S 263 OF THE ACT KINDLY BE QUASHED . 2. ALL THE GROUNDS OF THE APPEAL IN INTERLINKED AND ARE AGAINST THE ORDER PASSED BY THE LD. PR. CIT U/S 263 OF THE INCOME TAX A CT, 1961 (HEREINAFTER REFERRED AS THE ACT). IN THIS REGARD, THE BRIEF FAC TS OF THE CASE ARE THAT THE ASSESSMENT U/S 143(3) WAS COMPLETED VIDE ORDER DATED 31/3/2014. SUBSEQUENTLY, THE LD. PR.CIT ISSUED A NOTICE U/S 263 OF THE ACT CALLING UPON THE ASSESSEE AS TO WHY THE ASSESSMENT ORDER DATED 31 /3/2014 BE NOT ITA 745/JP/2015_ ASHA SHARMA VS PR.CIT 3 REVISED AS THE ORDER OF THE ASSESSING OFFICER BEING ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE ON TH E ISSUE OF INCOME UNDER THE HEAD INCOME FROM CAPITAL GAIN. IN RESPONSE TH ERETO, THE ASSESSEE MADE A WRITTEN REPLY. HOWEVER, THE SAME WAS NOT ACCEPT ED BY THE LD. PR. CIT. HE PROCEEDED TO REVISE THE ORDER BY SETTING ASI DE THE ORDER OF THE ASSESSING OFFICER AND RESTORING THE ASSESSMENT FOR FRAMING DE NOVO ASSESSMENT TO THE ASSESSING OFFICER. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. PR.CIT, T HE ASSESSEE IS IN APPEAL BEFORE US. 4. LD. COUNSEL FOR THE ASSESSEE HAS VEHEMENTLY ARGU ED THAT THE ACTION OF THE LD. PR.CIT IS NOT JUSTIFIED. HE REITERATED TH E SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS AND FURTHER SUBMITTED THAT T HE ASSESSING OFFICER HAD, IN FACT, MADE ENQUIRY BY MAKING QUERY ON THIS ISSUE. 5. PER CONTRA, THE LD. CIT DR HAS SUPPORTED THE ORDE R OF THE PR. CIT. HE SUBMITTED THAT A BARE PERUSAL OF THE ASSESSMENT ORD ER WOULD GO TO DEMONSTRATE THAT THE ASSESSING OFFICER HAS NOT CARR IED OUT ANY ENQUIRY IN RESPECT OF THE ISSUE IN QUESTION AND HAS NOT APPLIE D HIS MIND. THEREFORE, THE LD. PR.CIT WAS JUSTIFIED IN REVISING THE ORDER. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND HAVE ALSO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS NOTICED BY THE LD. PR.C IT THAT DURING THE YEAR ITA 745/JP/2015_ ASHA SHARMA VS PR.CIT 4 UNDER APPEAL, THE ASSESSEE HAD SOLD TWO IMMOVABLE PR OPERTIES. IT IS ALSO NOTICED BY THE LD. PR.CIT THAT AS PER BALANCE SHEET FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2011-12, THE VALUE OF THE TWO PR OPERTIES WERE AS UNDER:- SHARMA ICE FACTORY RS. 3,67,495/- BUILDING S-33, MBS NAGAR RS. 17,10,000/- (8,10,000 + 9,00,000) IT IS THE CASE OF THE ASSESSEE THAT A VALUATION REP ORT WAS SUBMITTED SHOWING YEAR WISE CONSTRUCTION AND THAT THE SALE DEED ALSO MENTIONS THE CONSTRUCTION OF PROPERTY. HOWEVER, THE LD. PR.CIT HAS GIVEN A FINDING, NO SUCH EVIDENCE, BOOKS OF ACCOUNT OR BALANCE SHEET FO R THE YEAR IN WHICH THE CONSTRUCTION HAS BEEN MADE, FILED TO PROVE ACTUAL C ONSTRUCTION AND ITS RECORDING IN THE BOOKS OF ACCOUNT. THE ASSESSEE WAS R EQUIRED TO FILE EVIDENCES IN SUPPORT OF THE CONSTRUCTION FOR MAKING A CLAIM IN RESPECT OF COST OF ACQUISITION OF THE PROPERTY BY FURNISHING T HE EVIDENCE OF EXPENDITURE INCURRED. HOWEVER, THE ASSESSEE HAS FILE D A VALUATION REPORT BY A REGISTERED VALUER ENCLOSED AT PAGES NO. 11 AND 12 OF THE PAPER BOOK. THE VALUER HAS REPORTED THAT COST OF CONSTRUCTION IS CALCULATED AS PER THE STANDING ORDER OF THE DEPARTMENT OF PUBLIC WORKS, GOVERNMENT OF RAJASTHAN. UNDER THESE FACTS, WE DEEM IT APPROPRIATE TO MODIFY THE IMPUGNED ORDER AND DIRECT THE ASSESSING OFFICER ITA 745/JP/2015_ ASHA SHARMA VS PR.CIT 5 WHILE DECIDING THE ISSUE OF COST OF PROPERTY WOULD CA LL FOR A VALUATION REPORT FROM THE DEPARTMENTAL VALUER AND ALSO MAKE ENQUIRY WITH REGARD TO THE COST OF CONSTRUCTION OF THE PROPERTY. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 21/04/2017. SD/- SD/- FOE FLAG ;KNO DQY HKKJR (VIKRAM SINGH YADAV) (KUL BHARAT) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21 ST APRIL, 2017 * RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. ASHA SHARMA, KOTA. 2. IZR;FKHZ@ THE RESPONDENT- THE PR.C.I.T., KOTA. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 745/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR