SMT. MANJU GARG, AJMER V. INCOME TAX OFFICER, AJMER

ITA 824/JPR/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5162 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 07-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K MAHLA JCIT DHK
• Assessee Lawyers: HEMANG GARGIEYA; MAHENDRA GARGIEYA ADVS
• Keywords: Sale consideration of property below Jantri Value; Additional evidence; Reason to believe; Capital Gains
• Section: 50C; 250; 251

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA , ACCOUNTANT MEMBER VK;DJ VIHY LA -@ ITA NO. 824/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2010-11 SMT. MANJU GARG, 105/57, AROGYA BHAWAN, CIVIL LINES, AJMER. CUKE VS. I.T.O., WARD 2(1), AJMER. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: ABMPG 5680 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI HEMANG GARGIEYA & SHRI MAHENDRA GARGIEYA (ADVS.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A.K. MAHLA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23/08/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 30/10/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD.CIT(A), AJMER DATED 08/08/2017 FOR THE A.Y. 2010-11 IN THE MATTER OF ORDER PASSED U/S 147/144 OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). 2. IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE VALIDITY OF REOPENING AS WELL AS MERIT OF THE ADDITION OF RS. 7,26,076/- MADE ON ACCOUNT OF SHORT TERM CAPITAL GAINS. ITA 824/JP/2017 MANJU GARG VS ITO 2 3. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND FOUND FROM THE RECORD THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SOLD A RESIDENTIAL FLAT JOINTLY HELD WITH HER SON AT A SALE CONSIDERATION OF RS. 37.00 LACS, FOR WHICH THE SUB-REGISTRAR HAS TAKEN VALUE FOR STAMP DUTY PURPOSES AT RS. 44,97,152/-. SINCE THE ASSESSEE HAS NOT FILED RETURN OF INCOME AFTER RECORDING THE REASONS, THE A.O. HAS REOPENED THE ASSESSMENT. I FOUND THAT NON-DISCLOSURE OF SALE TRANSACTION IS A SUFFICIENT REASON TO BELIEVE THAT THE INCOME TO THAT EXTENT HAS ESCAPED ASSESSMENT, ACCORDINGLY, THERE IS NO INFIRMITY IN THE REOPENING OF THE ASSESSMENT. 4. WITH REGARD TO MERIT OF THE ADDITION, I FOUND THAT THE A.O. HAS COMPUTED CAPITAL GAIN WITHOUT ALLOWING DEDUCTION OF EXPENSES TOTALING TO RS. 1,97,857/-. BEFORE THE LD. CIT(A), THE ASSESSEE FILED WRITTEN SUBMISSIONS DATED 01/8/2016 AND CLAIMED DEDUCTION OF SUCH EXPENSES BY FILING PRAYER FOR ADDITIONAL EVIDENCE UNDER RULE 46A DATED 05/9/2016 AND ALSO CONTENDED THAT THE SUBJECTED PROPERTY WAS UNDER CONSTRUCTION AT THE TIME OF ITS SALE AND HENCE SECTION 50C IS NOT APPLICABLE. I FOUND THAT THE ASSESSEE HAS FILED PRAYER FOR ADDITIONAL EVIDENCES BEING MEDICAL RECORDS OF THE ASSESSEE TO PROVE THAT THE REASON FOR NON-COMPLIANCE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ALONGWITH PRAYER FOR ADMISSION OF ITA 824/JP/2017 MANJU GARG VS ITO 3 ADDITIONAL EVIDENCES UNDER RULE 46A R.W.S. 250 AND 251 DATED 05/09/2016. HOWEVER, THE LD. CIT (A) REJECTED THE SAME, AS REPRODUCED: '3.1 I HAVE GONE THROUGH THE APPLICATION FILED BY THE APPELLANT CAREFULLY. IT IS SEEN THAT THE APPELLANT HAS CONTENDED THAT THE EVIDENCES FURNISHED DURING THE COURSE OF APPELLATE PROCEEDINGS COULD NOT BE FURNISHED BEFORE THE AO AS THE APPELLANT WAS CRITICALLY ILL. I HAVE GONE THROUGH THE ENCLOSURES FILED BY THE APPELLANT ALONG WITH THE APPLICATION IN SUPPORT OF HER CLAIM THAT SHE WAS CRITICALLY ILL DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE COPY OF TWO REGISTRATION SLIPS OF SEVEN HILLS HOSPITAL, MUMBAI ARE DATED 27.05.2014 AND 30.05.2014. DATE OF TEST REPORT ISSUED BY THYROCARE TECHNOLOGIES LIMITED, MUMBAI IS DATED 23.03.2013. THE PRESCRIPTION OF DR. ANIL PATIL IS DATED 19.06.2016 AND 26.10.2010. THERE IS NO DOCUMENTARY EVIDENCE TO SHOW THAT ON THE DATE ON WHICH THE HEARING WAS FIXED BY THE AO, THE APPELLANT WAS ADMITTED IN HOSPITAL. THEREFORE, I AM OF THE CONSIDERED VIEW THAT THE CASE OF THE APPELLANT IS NOT COVERED BY ANY OF THE CLAUSE OF RULE 46A(1). HENCE, THE ADDITIONAL EVIDENCES FURNISHED BY THE APPELLANT DURING THE COURSE OF APPELLATE PROCEEDINGS ARE NOT ADMITTED UNDER RULE 46A.' 5. AFTER GOING THROUGH THE RECORD, I FOUND THAT THE ADDITIONAL EVIDENCE GOES TO THE ROOT OF THE ISSUE, THEREFORE, IN THE SUBSTANTIAL INTEREST OF JUSTICE, I RESTORE THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE ISSUE AFRESH AFTER ACCEPTING ADDITIONAL EVIDENCE SO FILED BY THE ASSESSEE. ITA 824/JP/2017 MANJU GARG VS ITO 4 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH OCTOBER, 2019 SD/- JES'K LH 'KEKZ ( RAMESH C SHARMA ) YS[KK LNL; @ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 TH OCTOBER, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SMT. MANJU GARG, AJMER. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD 2(1), AJMER. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 824/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR