Dy.Commissioner of Income Tax, Lucknow V. Shri Jageshwar Singh, Lucknow

ITA 745/LKW/2014

• Counselvise Citation: 74523714 RSA 2014
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 25-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S K TIWARI
• Keywords: Opportunity of being heard; Assessment record; Reason to believe
• Section: 54B; 142(1); 148; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.745/LKW/2014 ASSESSMENT YEAR:2009-10 DY. CIT RANGE VI LUCKNOW V. SHRI. JAGESHWAR SINGH VILL. GAURI PARGANA BIJNORE LUCKNOW TAN/PAN:DELPS8987G (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. AMIT NIGAM, D.R. RESPONDENT BY: SHRI. S. K. TIWARI, ADVOCATE DATE OF HEARING: 08 10 2015 DATE OF PRONOUNCEMENT: 06 11 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS:- 1. THE COMMISSIONER OF INCOME TAX (APPEALS), LUCKNOW HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.23,40,315/- WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE DID NOT CLAIM THE EXEMPTION U/S 54B EITHER IN HIS RETURN OF INCOME OR DURING THE COURSE OF ASSESSMENT PROCEEDINGS INSTEAD HE CLAIMED THE EXEMPTION U/S 54B IN HIS APPLICATION FILED U/S 154 OF THE INCOME TAX ACT, 1961. 2. THE COMMISSIONER OF INCOME TAX (APPEALS), LUCKNOW HAS ERRED IN LAW AND ON FACT OF THE CASE IN ACCEPTING OF THE CLAIM OF EXEMPTION U/S 54B MADE BY THE ASSESSEE SUBSEQUENTLY IN HIS APPLICATION U/S 154 AS IT IS CONTRARY TO THE FINDINGS OF THE HON'BLE :- 2 -: SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD., VS. CIT(2006) 284 ITR 323 SC. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY ONE OR MORE OF THE GROUNDS OF APPEALS, AS STATED ABOVE, AS AND WHEN NEED TO DO SO ARISES WITH THE PRIOR PERMISSION OF THE COURT. 2. THE FACTS IN BRIEF, ON THE IMPUGNED ISSUE, BORNE OUT FROM THE RECORD, ARE THAT AS PER AIR INFORMATION, THE ASSESSEE HAS SOLD IMMOVEABLE PROPERTY ON 13.10.2008 FOR RS.36.52 LAKHS AND ON 3.11.2008 FOR RS.32,63,975/-. A QUERY LETTER WAS ISSUED TO THE ASSESSEE AND IN RESPONSE THERETO, THE LD. COUNSEL FOR THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS THAT THE ASSESSEE WAS HAVING AGRICULTURAL INCOME, FOR WHICH NO RETURN WAS REQUIRED TO BE FILED. SINCE THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME, THERE WAS REASON TO BELIEVE THAT THE CAPITAL GAIN ARISING ON SALE OF IMMOVEABLE PROPERTY HAS ESCAPED ASSESSMENT, ACCORDING TO THE ASSESSING OFFICER. ACCORDINGLY NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') WAS ISSUED AND FURTHER NOTICE UNDER SECTION 142(1) OF THE ACT WAS ALSO SERVED UPON THE ASSESSEE. ON THE BASIS OF RECORD, THE ASSESSING OFFICER HAS COMPUTED THE LONG TERM CAPITAL GAIN AT RS.23,40,315/-. 3. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WITH THE SUBMISSION THAT THE ASSESSING OFFICER WHILE COMPUTING THE LONG TERM CAPITAL GAIN HAS NOT CONSIDERED THE INVESTMENT MADE BY THE ASSESSEE IN AGRICULTURAL LAND. WITHOUT ALLOWING THE BENEFIT OF DEDUCTION UNDER SECTION 54B OF THE ACT, THE ASSESSING OFFICER HAS COMPUTED THE LONG TERM CAPITAL GAIN. THE LD. CIT(A) RE-EXAMINED THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE ASSESSMENT RECORD WHEREFROM HE NOTICED THAT DURING THE COURSE OF PROCEEDINGS UNDER SECTION 154 OF THE ACT, THE ASSESSEE HAS FILED THE RELEVANT PAPERS, WHICH ARE REQUIRED TO ESTABLISH THE POSSESSION OF THE LAND. BUT THE ASSESSING OFFICER HAS NOT GIVEN :- 3 -: BENEFIT OF DEDUCTION UNDER SECTION 54B OF THE ACT. THE LD. CIT(A) ACCORDINGLY, HAVING TAKEN INTO ACCOUNT THE POSSESSION OF THE AGRICULTURAL LAND, DIRECTED THE ASSESSING OFFICER TO DELETE THE ADDITION, AS NO TAXABLE CAPITAL GAIN AROSE IN THE HANDS OF THE ASSESSEE DURING THE ASSESSMENT YEAR UNDER CONSIDERATION. 4. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT, THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME CLAIMING BENEFIT OF DEDUCTION UNDER SECTION 54B OF THE ACT. IF THE FINDING OF THE LD. CIT(A) IS ACCEPTED TO BE CORRECT THAT DURING THE COURSE OF PROCEEDINGS UNDER SECTION 154 OF THE ACT, THE CLAIM OF THE ASSESSEE CANNOT BE ENTERTAINED BY THE ASSESSING OFFICER IN THE LIGHT OF THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT (SUPRA). THE LD. D.R. HAS FURTHER CONTENDED THAT EVEN THE LD. CIT(A) DID NOT VERIFY THE FACTS BY MAKING PROPER EXAMINATION OF THE DOCUMENTS IN ORDER TO ASCERTAIN WHETHER THE ASSESSEE IS ENTITLED FOR DEDUCTION UNDER SECTION 54B OF THE ACT OR NOT. AT THE MOST, THE MATTER CAN BE SENT BACK TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION. 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION THAT THE LD. CIT(A) HAS EXAMINED ALL THE RELEVANT EVIDENCE BEFORE ALLOWING DEDUCTION UNDER SECTION 54B OF THE ACT. 6. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT UNDISPUTEDLY THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT. SINCE THE CLAIM OF DEDUCTION UNDER SECTION 54B OF THE ACT WAS NOT RAISED IN THE RETURN OF INCOME, THE SAME CANNOT FURTHER BE RAISED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND RATHER PROCEEDINGS UNDER SECTION 154 OF THE ACT. THEREFORE, THE ASSESSING OFFICER HAS RIGHTLY DID NOT CONSIDER THE CLAIM OF DEDUCTION UNDER SECTION :- 4 -: 54B OF THE ACT. BUT THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT (SUPRA) ONLY RELATES WITH THE PROCEEDINGS BEFORE THE ASSESSING OFFICER. IN SUCH TYPE OF CASES, WHEN THE FACTS ARE BROUGHT TO THE KNOWLEDGE OF THE LD. CIT(A), THE LD. CIT(A) CAN EXAMINE THE DOCUMENTS WHILE ALLOWING DEDUCTION UNDER SECTION 54B OF THE ACT, BUT FROM A PERUSAL OF THE ORDER OF THE LD. CIT(A), WE FIND THAT THE LD. CIT(A) HAS OUT-RIGHTLY DELETED THE ADDITION WITHOUT HAVING EXAMINED THE DOCUMENTS IN ORDER TO ASCERTAIN THE FACTS FOR GRANTING DEDUCTION UNDER SECTION 54B OF THE ACT. WE ARE, THEREFORE, OF THE VIEW THAT SINCE THE LD. CIT(A) HAS NOT PROPERLY ADJUDICATED THE ISSUE IN THE LIGHT OF EVIDENCE AVAILABLE BEFORE HIM, THE MATTER SHOULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER TO RE-ADJUDICATE THE ISSUE AFRESH IN THE LIGHT OF RELEVANT DOCUMENTS WITH REGARD TO DEDUCTION UNDER SECTION 54B OF THE ACT AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE, ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO RE-ADJUDICATE THE ISSUE AFRESH IN THE LIGHT OF RELEVANT DOCUMENTS WITH REGARD TO DEDUCTION UNDER SECTION 54B OF THE ACT. 7. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:6 TH NOVEMBER, 2015 JJ:0810 :- 5 -: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR