Mohinder Pal Suthar, Sirsa V. ITO, W-3, Sirsa

ITA 827/CHANDI/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2317 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-06-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 27-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA CIT
• Keywords: Additional evidence; Valuation report; Condonation of delay; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JM ./ ITA NO. 827/CHD/2019 / ASSESSMENT YEAR : 2012-13 SHRI MOHINDER PAL SUTHAR, HOUSE NO. 365, WARD NO. 16, G.T. ROAD, MANDI DABWALI, DISTT. SIRSA. VS THE ITO, WARD 3, SIRSA. ./ PAN NO: AFUPS4774E / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI NIKHIL GOYAL, C.A. & SHRI ASHOK GOYAL # ! ' / REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT $ % ! &/ DATE OF HEARING : 17.06.2021 '()* ! &/ D ATE OF PRONOUNCEMENT : 25.06.2021 HEARING CONDUCTED VIA WEBEX $%/ ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 07.08.2018 OF CIT(A) ROHTAK PERTAINING TO 2012-13 ASSESSMENT YEAR IS ASSAILED O N VARIOUS GROUNDS. 2. HOWEVER, BEFORE PROCEEDING TO ADDRESS THE GROUND S RAISED BY THE ASSESSEE, IT IS RELEVANT TO FIRST ADDRESS TH E DELAY OF 210 ITA 827/CHD/2019 A.Y. 2012-13 PAGE 2 OF 9 DAYS POINTED OUT BY THE REGISTRY IN THE FILING OF T HE PRESENT APPEAL. 2.1 THE LD. AR INVITING ATTENTION TO THE CONDONATIO N OF DELAY APPLICATION SUBMITTED THAT THE DELAY HAS OCCURRED O N ACCOUNT OF IGNORANCE OF THE ASSESSEE WHO INSTEAD OF AVAILIN G OF THE STATUTORY REMEDY OF FILING AN APPEAL BEFORE THE ITA T APPROACHED THE HON'BLE HIGH COURT IN A CIVIL WRIT P ETITION. THE SAID WRIT PETITION WAS DISPOSED ON 25.03.2019, COPY OF WHICH IS AVAILABLE AT PAPER BOOK PAGE 53. RELYING UPON THE AFFIDAVIT OF THE ASSESSEE AFFIRMING THESE FACTS, PRAYER WAS MADE THAT THE DELAY MAY BE CONDONED AS THE ASSESSEE HAS BEEN LIVE AND ALERT ABOUT HIS RESPONSIBILITIES, HOWEVER, BY MISTAKEN UN DERSTANDING OF LAW AS OFFERED BY HIS COUNSEL, HE WENT TO THE WR ONG FORUM. ACCORDINGLY, IT WAS HIS SUBMISSION THAT DELAY HAS O CCURRED ON ACCOUNT OF THESE REASONS AND HENCE, IT MAY BE CONDO NED. 3. THE LD. SR.DR CONSIDERING THE RECORD HAD NO OBJE CTION TO THE DELAY BEING CONDONED. 4. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL ON RECORD. IN THE FACTS OF THE PRESENT CASE, IT IS SE EN THAT THE ASSESSEE AGGRIEVED BY THE IMPUGNED ORDER FILED A CI VIL WRIT PETITION NO. 7839 OF 2019 BEFORE THE HON'BLE PUNJAB & HARYANA HIGH COURT. (COPY OF THE SAME IS AVAILABLE AT PAGE S 49 TO 52). IT IS SEEN THAT THE ASSESSEE'S CWP WAS DISPOSED OF BY THE ITA 827/CHD/2019 A.Y. 2012-13 PAGE 3 OF 9 HON'BLE HIGH COURT VIDE ORDER DATED 25.03.2019 HOLD ING AS UNDER : 2. AFTER ARGUING FOR SOMETIME, THE PETITIONER, WHO APPEARS IN-PERSON STATES THAT HE MAY BE ALLOWED TO WITHDRAW THE PRESE NT WRIT PETITION WITH LIBERTY TO TAKE RECOURSE TO THE ALTERNATIVE REMEDIE S AS ARE AVAILABLE TO HIM, IN ACCORDANCE WITH LAW. IT WAS NOT DISPUTED THAT THE ORDER DATED 07 TH AUGUST, 2018 (ANNEXURE P-23), PASSED BY THE COMMIS SIONER OF INCOME TAX (APPEALS) [IN SHORT 'THE CIT(A)'] IS APP EALABLE BEFORE THE INCOME TAX APPELLATE TRIBUNAL (ITAT) UNDER THE PROV ISIONS OF INCOME TAX ACT, 1961 (IN SHORT THE ACT). 3. DISMISSED AS WITHDRAWN. IT SHALL, HOWEVER, BE OPEN TO THE PETITIONER TO TAKE RECOURSE TO THE REMEDIES AS MAY BE AVAILABLE TO HIM, IN ACCORDANCE WITH LAW. (EMPHASIS SUPPLIED) 4.1 IT IS ALSO SEEN THAT THESE FACTS STATED IN THE CONDONATION OF DELAY APPLICATION HAVE BEEN AFFIRMED BY THE ASSE SSEE ALSO ON AN AFFIDAVIT DATED 03.03.2020. THE CONTENTS OF THI S AFFIDAVIT READ AS UNDER : 1. THAT EARLIER A CIVIL WRIT PETITION HAS BEEN FILED ON 18.03.2019 ON THE ADVICE OF AN I. TAX PRACTITIONER AS NOTHING HAS BEEN MENTIONED IN THE ORDER DATED 07.08.2018 REGARDING FURTHER APPEAL AND IT HAS BEEN SUGGESTED BY AN INCOME TAX PRACTITIONER THAT A WRIT IS MAINTAINABLE AGAINST THE SAID ORDER. THEREFORE, A CWP NO.7839 OF 2019 HAS BEEN FILED BEFORE THE HON'BLE HIGH COURT, CHANDIGARH, WHICH HA S BEEN DISPOSED OFF ON 25.03.2.019 WITH A LIBERTY TO FILE THE APPEA L BEFORE ITAT. HENCE, THE DELAY OF 210 DAYS UPTO DATE HAS OCCURRED IN FIL ING THE ACCOMPANIED APPEAL. 2. THAT SAID DELAY OF 210 DAYS IN FILING THE PRESEN T APPEAL HAS OCCURRED DUE TO ABOVESAID BONAFIDE REASONS AND NOT DUE TO ANY DELIBERATE NEGLIGENCE ON THE PART OF APPELLANT. 3. THAT THE APPELLANT HAS A PRIMA FACIE CASE IN HIS FAVOUR AND IN CASE THE ABOVE SAID DELAY IN FILING THE APPELLANT WILL S UFFER AN IRREPARABLE LOSS 4. THAT DEPONENT HAS FILED AN APPEAL NO.8 27/CHANDI/2019, WHICH IS PENDING BEFORE SMC, INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH FOR 12.03.2020. IN THE SAID APPEAL, APPELLANT/DEPONENT HAS BEEN DIRECTED TO FILE HIS AFFIDAVIT ON THE STAMP PAPER IN SUPPORT OF HIS EARL IER UNSTAMPED ITA 827/CHD/2019 A.Y. 2012-13 PAGE 4 OF 9 AFFIDAVIT FOR CONDONATION OF DELAY DATED 24.05.2019. HENCE, THE PRESENT AFFIDAVIT. THEREFORE , IT IS REQUESTED TO ALLOW THE ACCOMPANIED APPLICATION BY CONDONING A DELAY OF 210 DAYS UPTO DATE IN FILING THE APPEAL IN THE INTEREST OF JUSTICE. (EMPHASIS SUPPLIED) 4.2. ACCORDINGLY, IN THE AFOREMENTIONED PECULIAR FA CTS AND CIRCUMSTANCES, IT IS SEEN THAT THE ASSESSEE HAS PRO CEEDED ON AN INCORRECT ADVICE OF A PROFESSIONAL AND APPROACHE D THE HON'BLE PUNJAB & HARYANA HIGH COURT FOR A REMEDY WH ICH WAS STATUTORILY AVAILABLE UNDER THE INCOME TAX ACT. TH ESE SUBMISSIONS ON AN AFFIDAVIT FULLY SUPPORTS THE ARGU MENT THAT THE ASSESSEES ACTION HAS BEEN BONAFIDE AS THE MIST AKE OF ACTING ON THE INCORRECT ADVICE IS THE REASON FOR TH E DELAY IN THE FILING OF THE APPEAL. IN THE PECULIAR FACTS AND CIR CUMSTANCES AS THEY STAND, I FIND THAT IT IS NOT A CASE WHERE THE ASSESSEE CAN BE SAID TO HAVE CARELESSLY SLEPT OVER HIS RIGHTS AN D RESPONSIBILITIES. IT IS FURTHER SEEN THAT NO UNDUE ADVANTAGE HAS BEEN DERIVED BY THE ASSESSEE BY FILING OF THE P RESENT APPEAL LATE, NOR ANY VESTED RIGHT OF THE REVENUE IS UNSETT LED BY DELAYED FILING OF THE APPEAL BY THE ASSESSEE. ACCO RDINGLY, ACCEPTING THE EXPLANATION OF THE ASSESSEE AS BONAFI DE AND TRUE, THE DELAY IS CONDONED. SAID ORDER WAS PRONOUNCED A T THE TIME OF VIRTUAL HEARING ITSELF IN THE PRESENCE OF THE PA RTIES VIA WEBEX ITA 827/CHD/2019 A.Y. 2012-13 PAGE 5 OF 9 AND THE PARTIES WERE DIRECTED TO ARGUE THE APPEAL O N MERITS IN CASE THEY WERE READY TO DO SO. 5. THE LD. AR INVITING ATTENTION TO THE COPY OF THE REVISED GROUNDS FILED BEFORE THE ITAT SUBMITTED THAT THE AS SESSEE SEEKS SUBSTITUTION OF THE GROUNDS RAISED ORIGINALLY . THE REVISED GROUNDS READ AS UNDER : 1. THAT ORDER PASSED U/S 250(6) OF THE INCOME TAX ACT, 1961 BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ROHTAK IS AGAI NST LAW AND FACTS ON THE FILE IN AM HE GRAVELY ERRED IN HOLDING THE A CTION OF THE LD. ASSESSING OFFICER IN INITIATING ASSESSMENT PROCEEDI NGS UNDER SECTION 143(3)/144 OF THE INCOME TAX ACT, 1961. 2. THAT FURTHER LEARNED CIT(A) HAS GRAVELY ERRED IN UPHOLDING THE ADDITION OF RS.6,68,021/- AS LONG TERM CAPITAL GAIN AND CALCULATION OF SALE CONSIDERATION BY APPLYING DLC RATE APPLICABLE TO THE 2 S.T.R., MUNICIPAL AREA, NEW MANDI GHARSANA. INSTEAD OF UNDE VELOPED RURAL AREA OF VILLAGE 2 STR WITHIN THE JURISDICTION OF GR AM PANCHAYAT 17 M.D., TEHSIL GHARSANA, DISTRICT SRI GANGANAGAR, RAJ ASTHAN AND WITHOUT CALLING THE VALUATION REPORT OR MARKET RATE REPORTS AS ON THE DATE OF TRANSACTION. 3. THAT FURTHER LEARNED CIT(A) HAS GRAVELY ERRED IR DE CLINING THE VALUATION REPORT DATED 29.12.2017 PREPARED AS ON 27 .12.2011 SUBMITTED AS ADDITIONAL EVIDENCE UNDER RULE 46A OF THE I. TAX RULES, 1962 AND ACCEPTING THE REPORT OF ASSISTANT VALUATION OFFICER , INCOME TAX DEPARTMENT, JODHPUR (RAJ.) WHICH HAS BEEN PREPARED BY INCLUDING THE VALUATION OF BUILDING RAISED BY THE BUYER AFTER THE YEAR 2011. 6. THE LD. SR.DR WAS REQUIRED TO ADDRESS WHETHER TH E DEPARTMENT HAS ANY OBJECTION TO THE SUBSTITUTION OF THE GROUNDS RAISED ORIGINALLY. THE LD. SR.DR ON GOING THROUGH THE RECORDS SUBMITTED THAT HE HAD NO OBJECTION AS NOTHI NG NEW HAS BEEN AGITATED IN THE PRESENT GROUNDS WHEN COMPARED WITH THE ORIGINAL GROUNDS RAISED. ITA 827/CHD/2019 A.Y. 2012-13 PAGE 6 OF 9 7. I HAVE SEEN THE ORIGINAL GROUNDS AVAILABLE ON RE CORD. IT IS FURTHER SEEN THAT THE ORIGINAL GROUNDS RAISED BEFOR E THE ITAT WERE FOUND TO BE ARGUMENTATIVE AND WERE DIRECTED TO BE REVISED BY THE CO-ORDINATE BENCH ON 27.02.2020. CON SIDERING THE REVISED GROUNDS NOW AVAILABLE, NOTING THAT THE DEPARTMENT HAS NO OBJECTION THERETO, THESE ARE PERMITTED TO BE SUBSTITUTED. 8. THE LD. AR ADDRESSING THE REVISED GROUNDS DREW S PECIFIC ATTENTION TO GROUND NO. 2. REFERRING TO THE SAID G ROUND, IT WAS SUBMITTED THAT IN THE FACTS OF THE PRESENT CASE, SO ME ESSENTIAL FACTS WILL NEED TO BE VERIFIED. IN ORDER TO DETERM INE THE ISSUE, IT WAS SUBMITTED THE EXACT LOCATION OF THE PROPERTY SOLD NEEDS TO BE ASCERTAINED AS THIS WILL DETERMINE THE SPECIF IC RATE APPLICABLE QUA THE STAMP DUTY PAID AND LEVIED. IT WAS SUBMITTED THAT ON THIS ISSUE AMONGST THE ASSESSEE A ND THE DEPARTMENT, THERE IS A CONFUSION AND DISPUTE. IT IS ONLY ONCE THE LOCATION IS SETTLED THAT THE APPLICATION OF RAT ES WILL BE RELEVANT. ON ACCOUNT OF THIS FACT THE GRIEVANCE OF THE ASSESSEE PERSISTS. IT WAS HIS SUBMISSION THAT FOR THE DLC RA TE APPLICABLE TO 2 STR MUNICIPAL AREA, GHARSANA, THERE WERE TWO R ATES APPLICABLE, ONE WAS FOR THE AREA ON WHICH URBAN RAT ES WERE APPLICABLE AND ONE WAS AN AREA WHICH WAS UNDEVELOPE D RURAL AREA WITHIN THE JURISDICTION OF GRAM PANCHAYAT, 17 MD, TEHSIL GHARSANA WHERE RURAL RATES WERE APPLICABLE. THE AS SESSEE ITA 827/CHD/2019 A.Y. 2012-13 PAGE 7 OF 9 BEING A SELLER WAS UNAFFECTED BY THE STAMP DUTY INC URRED FOR THE PURCHASE OF THE PROPERTY AS THE STAMP DUTY COST S WERE BORNE AND ARE TO BE BORNE BY THE BUYER. THE PROPER TY SOLD WAS IN UNDEVELOPED RURAL AREA. IT WAS AGREED THAT IT I S A FACT THAT THE BUYER HAS RAISED NO DISPUTE ON THE DLC RATES. HOWEVER, AS FAR AS THE ASSESSEE IS CONCERNED, HE IS IMPACTED BY THE RATES ON ACCOUNT OF THE FACT THAT THE CALCULATION FOR HIS LONG TERM CAPITAL GAIN ETC. TAKES THIS ASPECT INTO CONSIDERAT ION. THUS, THE ISSUE HAS BEEN RAISED BY HIM RIGHT FROM THE BEG INNING AS HE IS IMPACTED BY THE INCORRECT FACTS REMAINING ON RECORD HENCE, HIS PRAYER THAT CORRECT FACTS BE VERIFIED. IT WAS CLARIFIED THAT SINCE A PERSON WHO HAS TO BEAR THE STAMP DUTY COST HAS NOT AGITATED THE ISSUE UNDER THE LAW, THERE IS NO F ORA AVAILABLE TO THE ASSESSEE TO AGITATE HIS GRIEVANCE. IT WAS P LEADED THAT FOR DETERMINING THE ISSUE, IT IS NECESSARY TO ARRIVE AT A CORRECT VALUATION ON ACCOUNT OF WHICH THE SPECIFIC RATE APP LICABLE TO THE UNDEVELOPED RURAL AREA WHEREIN THE ASSESSEE HAD SOLD THE PROPERTY NEEDS TO BE LOOKED INTO. FOR THIS PURPOSES , THE REQUEST IS MADE THAT A PHYSICAL VERIFICATION OF THE EXACT LOCATION WHERE THE PROPERTY SOLD IS SITUATED MAY BE EXAMINED AND THE RATE APPLICABLE THERETO AT THE RELEVANT POI NT OF TIME MAY BE TAKEN INTO CONSIDERATION FOR THE PURPOSE OF DETERMINING THE ISSUE RAISED IN GROUND NO. 2. THE ASSESSEE, IT WAS SUBMITTED, HAS AGITATED THIS ISSUE ALL ALONG, HOWEV ER, THE ITA 827/CHD/2019 A.Y. 2012-13 PAGE 8 OF 9 DEPARTMENT HAS FAILED TO ADDRESS IT ON THE BASIS O F FACTS AND REPEATEDLY HAVE SCUTTLED IT REFERRING TO NON ISSUE S. THE ASSESSEE IN THE FACTS OF THE PRESENT CASE, IT WAS H IS SUBMISSION HAS SOUGHT TO PLACE REPORT OF SOME VALUATION OF TH E SPECIFIC PROPERTY WHICH HAS BEEN REJECTED ARBITRARILY WITHOU T CARING TO ADDRESS THE CORRECT FACTS. IN THE PECULIAR FACTS I T WAS HIS LIMITED PRAYER THAT THE CORRECT FACTS MAY BE SEEN A ND THE RATE APPLICABLE TO THE SPECIFIC PROPERTY AT THE RELEVANT POINT OF TIME BE CONSIDERED FOR WHICH PURPOSES, REMAND WAS REQUES TED. 10. MR. ASHOK KHANNA, SR. DR APPEARING ON BEHALF OF THE REVENUE ON CONSIDERATION OF THE RECORD HAD NO OBJEC TION TO THE REQUEST OF REMAND BACK TO THE AO. 11. IT IS SEEN THAT THE ASSESSEE HAS ALSO RAISED GR OUND NO. 3 ASSAILING THE REJECTION OF THE FRESH EVIDENCE SOUGH T TO BE RAISED BEFORE THE CIT(A), HOWEVER, IT IS NOTICED THAT HE H AS CHOSEN NOT TO ARGUE THIS AND ON QUERY HAS CONFINED HIS ARGUMEN TS ONLY TO THE ISSUE BEING REMANDED BACK TO THE AO FOR DETERMI NING WHETHER THE SPECIFIC PROPERTY SOLD WAS TO BE GOVERN ED BY THE DLC RATES APPLICABLE TO RURAL UNDEVELOPED AREA OR T HE DLC RATES APPLICABLE TO AN URBAN AREA. IT IS SEEN THAT NO OBJECTION HAS BEEN POSED BY THE REVENUE FOR ENQUIRY AND VERIF ICATION ON FACTS, ACCORDINGLY, IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH AND ON CONSIDERING THE FACTS, THE REQUEST FOR ITA 827/CHD/2019 A.Y. 2012-13 PAGE 9 OF 9 VERIFICATION OF FACTS APPEARS TO BE REASONABLE AND THUS, IN THE INTERESTS OF SUBSTANTIAL JUSTICE, THE IMPUGNED ORDE R IS SET ASIDE AND THE ISSUE IS RESTORED BACK TO THE FILE OF THE A O WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WI TH LAW AFTER CARRYING OUT THE NECESSARY VERIFICATION ON FACTS. THE ASSESSEE IN ITS OWN INTERESTS IS DIRECTED TO ENSURE FULL AND PROPER VERIFICATION BEFORE THE AUTHORITIES. SAID ORDER WAS PRONOUNCED AT THE TIME OF VIRTUAL HEARING ITSELF IN THE PRESEN CE OF THE PARTIES VIA WEBEX. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D TO THE ABOVE EXTENT. ORDER PRONOUNCED ON 25 TH JUNE,2021. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER ' ( / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. , , / DR, ITAT, CHANDIGARH 6. / GUARD FILE / BY ORDER, / ASSISTANT REGISTRAR