Sh. Hardeep Singh, Hoshiarpur V. The Income Tax Officer, Dasuya

ITA 84/ASR/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0631 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-06-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 11-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKER
• Assessee Lawyers: K S BHAGAT
• Keywords: Additional evidence
• Section: 143(3); 142(1); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. (CAMP AT JALANDHAR) BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.84(ASR)/2015 ASSESSMENT YEAR:2010-11 PAN: ASAPG-9862E SH. HARDEEP SINGH VS. THE INCOME TAX OFFICER, S/O SH. JAGDISH SINGH, DASUYA. THROUGH L/H SH. NAVDEEP SINGH, CHAK ALLA BAKSH, TEH. MUKERIAN. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. K.S. BHAGAT, CA RESPONDENT BY: SH. BHAWANI SHANKER, DR DATE OF HEARING: 28/06/2016 DATE OF PRONOUNCEMENT: 12 /07/2016 ORDER PER A.D. JAIN, JM: THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2010-11, AGAINST THE ORDER DATED 26.11.2014, PASSED BY THE LD. CIT(A). THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THAT THE ORDER PASSED BY WORTHY CIT(APPEALS) IS AGAINST LAW & FACTS OF THE CASE. 2. THAT THE WORTHY CIT(A) HAS WRONGLY CONFIRMED THE ADDITION OF RS.160132588/- ON ACCOUNT OF CAPITAL GAIN. 3. THAT THE PROPERTY COMPULSORILY OCCURRED BY NHAI WAS AGRICULTURE PROPERTY BUT CIT(A) HAS WRONGLY CONSID ERED THE ITA NO.84(ASR)/2015 ASSESSMENT YEAR: 2010-11 2 SAME AS COMMERCIAL PROPERTY CONTRARY TO THE FACT ME NTIONED BY SDM, THAT THE TYPE OF LAND IS AGRICULTURE. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E INDIVIDUAL, WHO DERIVED HIS INCOME FROM BANK INTEREST AND LONG TERM CAPITAL GAINS (IN SHORT LTCG,) HAD FILED HIS RETURN OF INCOME FOR T HE YEAR UNDER CONSIDERATION ON 30.08.2010, DECLARING THEREIN, AN INCOME OF RS. 1,01,590/- PLUS AGRICULTURE INCOME OF RS.5,50,000/- , WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE ACT ON THE DE CLARED INCOME. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE RECEIVED COMPENSATION AMOUNTING TO RS. 1,97,80,938/- FROM THE COMPETENT A UTHORITY CUM S.D.M, MUKERIAN ON ACCOUNT OF COMPULSORY ACQUISITIO N OF HIS LAND. ON PERUSAL OF THE INCOME TAX RETURN FILED BY THE ASSES SEE, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD DECLARED COMP ENSATION OF RS. 1,77,00,938/- ONLY, AS AGAINST COMPULSORY ACQUISITI ON OF HIS LAND AS AGAINST TOTAL COMPENSATION RECEIVED BY HIM AT RS. 1 ,97,80,938/-. IT HAD ALSO BEEN NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAD CLAIMED THE ENTIRE COMPENSATION RECEIVED BY HIM AS EXEMPT. IT HAD FURTHER BEEN NOTICED BY THE ASSESSING OFFICER THAT A PART OF THE COMPENSATION RECEIVED BY THE ASSESSEE WAS IN RESPECT OF COMPULSORY ACQUIS ITION OF AGRICULTURAL LAND AND A PART OF THE COMPENSATION WAS IN RESPECT OF COMMERCIAL PROPERTY. AS THE LTCG ON THE COMPULSORY ACQUISITION OF COMMERCIAL PROPERTY/LAND WAS SUBJECT TO CAPITAL GAINS TAX AND AS THE ASSESSEE HAD CLAIMED THE ENTIRE LTCG AS EXEMPT, THE ASSESSING OF FICER REOPENED THE ITA NO.84(ASR)/2015 ASSESSMENT YEAR: 2010-11 3 ASSESSMENT IN THE CASE OF THE ASSESSEE UNDER SECTIO N 147 OF THE ACT, BY ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT, DA TED 20 . 03 . 2013 . HOWEVER, THE ASSESSEE DID NOT MAKE ANY COMPLIANCE T O THE NOTICE UNDER SECTION 148 OF THE ACT. THE ASSESSING OFFICER, THER EFORE, ISSUED NOTICE UNDER SECTION 142(1) OF THE ACT TO THE ASSESSEE FOR COMPLIANCE OF NOTICE UNDER SECTION 148 OF THE ACT. IN RESPONSE THERETO, THE LD. AR OF THE ASSESSEE HAD SUBMITTED, VIDE LETTER DATED 06.06.201 3, THAT THE RETURN FILED BY THE ASSESSEE ON 30.08.2010 SHOULD BE CONS IDERED AS RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT. 2.1 DURING THE ASSESSMENT PROCEEDINGS, THE LD. AR OF THE ASSESSEE HAD VEHEMENTLY ARGUED THAT THE LAND OF THE ASSESSEE, AC QUIRED BY THE GOVERNMENT, WAS AGRICULTURAL LAND AND NOT COMMERCIA L LAND AND AS SUCH, LTCG ON THE COMPULSORY ACQUISITION OF AGRICUL TURAL LAND WAS EXEMPT FROM CAPITAL GAINS TAX, AS PER PROVISIONS OF SECTION 10(37) OF THE ACT. THE PLEA OF THE ASSESSEE WAS REJECTED BY THE A SSESSING OFFICER IN VIEW OF THE REASONS MENTIONED IN THE ASSESSMENT ORD ER. ULTIMATELY, THE ASSESSMENT IN THIS CASE WAS COMPLETED BY THE ASSESS ING OFFICER VIDE ORDER UNDER SECTION 143(3) OF THE ACT, DATED 22 . 01.2014, AT AN ASSESSED INCOME OF RS. 1,61,95,108/- PLUS AGRICULTURE INCOME OF RS.5,50,000/-. WHILE COMPLETING THE ASSESSMENT IN THIS CASE, THE A SSESSING OFFICER HAD MADE THE FOLLOWING ADDITIONS TO THE RETURNED INCOME OF THE ASSESSEE: I) ADDITION ON ACCOUNT OF UNDECLARED LTCG RS. 1,60, 13,258/- II) ADDITION ON ACCOUNT OF UNDECLARED INTEREST INCOME RS. 80,260/- ITA NO.84(ASR)/2015 ASSESSMENT YEAR: 2010-11 4 3. BY VIRTUE OF THE IMPUGNED ORDER, THE LD. CIT(A) CONFIRMED THE ADDITION MADE BY THE AO ON ACCOUNT OF CAPITAL GAIN, BRINGING THE ASSESSEE IN FURTHER APPEAL BEFORE US. THE APPEAL IS DELAYED BY 11 DAYS. IN THE APPLICATION FOR CONDONATION OF DELAY, IT HAS BEEN CONTENDED ON BEHALF OF THE ASSESSEE THAT THE ASSESSEE HAD DEPOSI TED RS.10,000/- ON 28.01.2015 ONLINE, BUT THE CHALLAN COULD NOT BE GEN ERATED DUE TO SOME TECHNICAL ERROR IN THE INTERNET; THAT HOWEVER, THE ASSESSEE GOT THE DETAILS AND SENT THE SAME ALONGWITH THE APPEAL DOCUMENTS; A ND THAT THE ASSESSEE HAD PROCURED THE DUPLICATE COPY OF THE CHA LLAN AND HAD SENT THE APPEAL DOCUMENTS, DUE TO WHICH, THERE OCCURRED DELAY OF 11 DAYS IN FILING THE APPEAL. 4. WE FIND THE ASSESSEE TO HAVE BEEN VISITED WITH SUFFICIENT CAUSE FOR THE DELAY WHICH OCCURRED IN FILING THE APPEAL. THE ASSESSEE CANNOT BE FAULTED WITH SUCH DELAY. EVEN OTHERWISE, THE ASSES SEE CANNOT STAND TO GAIN ANYTHING BY DELAYING FILING THE APPEAL. IN THE ABOVE FACTS AND CIRCUMSTANCES, THE DELAY OF 11 DAYS IN FILING THE APPEAL IS CONDONED. 5. THE ASSESSEE HAS FILED AN APPLICATION FOR ADMISS ION OF ADDITIONAL EVIDENCE. AS PER THIS APPLICATION, THE ASSESSEE REC EIVED A COPY OF LETTER NO.45415, DATED 02.08.2007, WRITTEN BY THE COMPETEN T AUTHORITY CUM SDM MUKERIAN TO THE PROJECT DIRECTOR, NATIONAL HIGH WAY AUTHORITY OF ITA NO.84(ASR)/2015 ASSESSMENT YEAR: 2010-11 5 INDIA, MENTIONING THE BASIS OF COMPENSATION IN RESP ECT OF ACQUISITION OF LAND. THE APPLICATION STATES THAT THIS COPY WAS REC EIVED BY THE ASSESSEE ON 20.01.2016 AND IT WAS DUE TO THIS REASON THAT TH IS EVIDENCE COULD NOT BE FILED BEFORE THE INCOME TAX DEPARTMENT. 6. THE DISPUTE IN THIS MATTER IS WITH REGARD TO THE NATURE OF THE LAND, QUA WHICH, COMPENSATION FOR ACQUISITION WAS RECEIVE D BY THE ASSESSEE. THE AO WAS IN COMMUNICATION WITH SDM IN THIS REGARD . THE DOCUMENT NOW SOUGHT TO BE PLACED ON RECORD IS A LETTER WRITT EN BY THE SDM TO THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF IND IA, JALANDHAR, MENTIONING THE BASIS OF COMPENSATION IN RESPECT OF ACQUISITION OF LAND IN QUESTION. THAT BEING SO, THIS DOCUMENT, IN OUR CONS IDERED OPINION, IS VERY MATERIAL FOR A JUST AND PROPER DECISION OF THE DISPUTE AT HAND. ACCORDINGLY, THE SAME IS ADMITTED AS ADDITIONAL EVI DENCE, IN THE INTEREST OF JUSTICE. 7. HOWEVER, THE AO DID NOT HAVE ANY OCCASION TO GO THROUGH THIS LETTER BEFORE PASSING THE ASSESSMENT ORDER. AS SUCH , WE DEEM IT PROPER TO REMIT THIS ADDITIONAL EVIDENCE TO THE AO TO BE CONS IDERED BY HIM. THE AO IS DIRECTED TO FRAME THE ASSESSMENT DENOVO AFTER C ONSIDERING THIS FRESH EVIDENCE FILED BY THE ASSESSEE. ALL PLEAS AVAILABLE UNDER THE LAW SHALL REMAIN AVAILABLE TO THE ASSESSEE IN THE FRESH PROCE EDINGS BEFORE THE AO. THE AO SHALL AFFORD DUE AND ADEQUATE OPPORTUNITY OF HEARING TO THE ITA NO.84(ASR)/2015 ASSESSMENT YEAR: 2010-11 6 ASSESSEE TO PROVE HIS CASE. THE ASSESSEE, IN HIS TU RN, SHALL EXTEND FULL CO- OPERATION TO THE AO IN THE FRESH ASSESSMENT PROCEED INGS. ORDERED ACCORDINGLY. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12/07/ 2 016. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER /SKR/ DATED: 12/07/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. HARDEEP SINGH THROUGH L/H NAVDEEP SINGH, CHAK ALL BAKSH, TEHSIL MUKERIAN, DISTT. HOSHIARPUR. 2. THE ITO, DASUYA 3. THE CIT(A), JLR 4. THE CIT, JLR 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.