Pramila Singhal, New Delhi V. ITO, New Delhi

ITA 849/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3022 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 14-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Keywords: Capital asset; Opportunity of being heard; Principle of natural justice; Non compliance; Capital Gains
• Section: 69A; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER I.T.A. NO.849/DEL/2017 ASSESSMENT YEAR: 2009-2010 SMT. PRAMILA SINGHAL, 1167, NEW MARKET, KUCH MAHAJANI, CHANDANI CHOWK, DELHI. VS. ITO, WARD-18(4), DELHI. TAN/PAN: AISPS5212N (APPELLANT) (RESPONDENT) APPELLANT BY: SMT. PREMLATA BANSAL, ADV. RESPONDENT BY: SHRI SURENDER PAL, SR.D.R. DATE OF HEARING: 09 12 2019 DATE OF PRONOUNCEMENT: 05 03 2020 O R D E R PER AMIT SHUKLA, JM THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 30.11.2016, PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXXIII, NEW DE LHI DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S.143( 3) FOR THE ASSESSMENT YEAR 2009-10. IN THE GROUNDS OF APPE AL, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS: 1. THE LEARNED ASSESSING OFFICER GROSSLY ERRED IN MAKING ADDITION OF RS.93,12,000/- WITHOUT ANY COGENT REASO N AND LD. CIT (APPEALS) GROSSLY ERRED IN CONFIRMING THE SAME WITHOUT ANY COGENT REASONS. I.T.A. NO.849/DEL/2017 2 2. NO PROPER OPPORTUNITY OF BEING HEARD HAS BEEN PR OVIDED TO THE ASSESSEE BEFORE PASSING THE ORDER. THUS THE ORDER P ASSED IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 3. THE ADDITION HAS BEEN MADE AND CONFIRMED PURELY ON SUSPICION AND WITHOUT ANY COGENT MATERIAL IN HAND. 4. THE ORDER OF THE LEARNED AND CIT (APPEALS) IS BA D IN LAW AND IS AGAINST THE FACTS OF THE CASE. 5. THE ORDER OF THE LEARNED ASSESSING OFFICER AND C IT (APPEALS) IS A NON-SPEAKING ONE AS IT DOES NOT SPELL OUT CLEA RLY THE REASONS OF ADDITION. 6. THE ORDER OF THE LEARNED ASSESSING OFFICE AND CI T (APPEALS) IS HASTY, WITHOUT APPLICATION OF MIND AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2. THE FACTS IN BRIEF ARE THAT ASSESSEE HAS SOLD FO LLOWING PROPERTIES DURING THE YEAR:- A) PLOT NO.1/953, SEC 1, VASUNDHRA, GHAZIABAD, UP FOR R S. 26,88,000 ON 28/8/2008 (OWNED BY TWO PERSONS, ASSES SEES SHARE NOT ASCERTAINABLE). B) 10-D/42, VASUNDHRA, SEC 10, GHAZIABAD, UP FOR RS 17,16,000 ON 3/10/2008. C) PLOT NO.10A/161, VASUNDHRA, GHAZIABAD, UP FOR RS 35,64,000 ON 6/10/2008. D) PLOT NO.1/956, SEC 1, VASUNDHRA, GHAZIABAD, UP FO R RS 13,44,000 ON 28/8/2008. 3. THE ASSESSING OFFICER NOTED THAT ASSESSEE HAS NO T SHOWN THE PROCEEDS OF THE LAND OF RS.93,12,000/- ON ACCOU NT OF I.T.A. NO.849/DEL/2017 3 PROPERTIES SOLD IN THE RETURN OF INCOME. HE FURTHER NOTED THAT THOUGH THE ASSESSEE HAS SUBMITTED THE DETAILS OF PU RCHASE COST OF THE PROPERTIES BUT SAME WAS NOT SUBSTANTIAT ED BY ANY SUPPORTING DOCUMENTARY EVIDENCE, AND THEREFORE, BEN EFIT OF SPECIAL RATE OF TAXATION OF CAPITAL GAIN CANNOT BE GIVEN. HOWEVER, HE TREATED THE SALE OF THE PROPERTIES AS I NCOME FROM OTHER SOURCE AND HE HAS TAXED U/S.68 R.W.S. 69A. 4. LD. CIT (A) IN THE IMPUGNED ORDER NOTED THAT ON VARIOUS DATES ON WHICH NOTICE WAS SENT FOR HEARING EITHER ADJOURNMENT WAS SOUGHT OR NONE ATTENDED IN RESPONSE TO SUCH NOTICES. ACCORDINGLY, HE PROCEEDED TO DECIDE T HE APPEAL ON MERITS, HOLDING THAT ASSESSEE IS NOT INTERESTED IN PROSECUTING THE APPEAL. ACCORDINGLY, HE HAS CONFIRM ED THE ADDITION AFTER OBSERVING AND HOLDING AS UNDER: 7. I HAVE CONSIDERED THE ACTION OF THE ASSESSING O FFICER AND SPECIFICALLY NOTED THE EVASIVE ATTITUDE OF THE APPE LLANT BOTH DURING THE ASSESSMENT PROCEEDINGS AS WELL AS THE AP PELLANT PROCEEDINGS. THE UNDISPUTED FACT IS THAT THE APPELL ANT DID NOT DISCLOSE THE SALE OF PROPERTIES IN ITS RETURN OF IN COME. CLEARLY, THE ACTION OF THE ASSESSING OFFICER CANNOT BE FAULTED W ITH. 5. BEFORE US, LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT IT IS AN UNDISPUTED FACT THAT, THE AMOUNT CREDITED IN THE BANK ACCOUNT WAS ON ACCOUNT OF FOUR PROPERTIES SOLD BY T HE ASSESSEE FOR SUMS AGGREGATING TO RS.93,12,000/-. EV EN IF THE ASSESSEE COULD NOT SUBSTANTIATE THE COST OF ACQUISI TION OR THE COST OF PURCHASE, INCOME COULD NOT HAVE BEEN TAXED U/S.68. HE FURTHER PRAYED THAT MATTER SHOULD BE REMANDED BA CK TO I.T.A. NO.849/DEL/2017 4 THE FILE OF THE ASSESSING OFFICER TO COMPUTE THE IN COME OF THE ASSESSEE IN ACCORDANCE WITH LAW, I.E., LONG TERM CA PITAL GAIN, BECAUSE RECEIPTS FROM SALE OF A CAPITAL ASSET CANNO T BE TAXED UNDER HEAD INCOME FROM OTHER SOURCE OR U/S. 68 OR U/S.69. 6. ON THE OTHER HAND, LD. DR SUBMITTED THAT NEITHER BEFORE THE ASSESSING OFFICER NOR BEFORE THE LD. CIT (A), T HE ASSESSEE COULD FILE ANY EXPLANATION OR EVIDENCE REGARDING BE NEFIT OF SPECIAL RATE OF TAXATION OF CAPITAL GAIN AND BEFORE THE LD. CIT (A) DESPITE SEVERAL OPPORTUNITIES THE ASSESSEE FAIL ED TO EVEN COMPLY WITH THE NOTICE OF HEARING. THUS, ORDER PASS ED BY THE ASSESSING OFFICER AND LD. CIT (A) SHOULD BE CONFIRM ED. 7. AFTER CONSIDERING THE SUBMISSIONS MADE BY THE PA RTIES AND ON PERUSAL OF THE IMPUGNED ORDERS, WE FIND THAT ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, HAS FI LED COPY OF HER BANK STATEMENT AND CERTAIN DETAILS FROM WHER E ASSESSING OFFICER GATHERED THAT ASSESSEE HAS SOLD F OUR PROPERTIES DURING THE YEAR WHICH HAS NOT BEEN DISCL OSED IN THE RETURN OF INCOME. THE DETAILS OF THE PROPERTIES SOLD AND THE ENTIRE RECEIPT THEREOF HAS BEEN INCORPORATED AB OVE. SINCE, ASSESSEE HAS NEITHER DISCLOSED THE SALE TRANSACTION NOR HAS OFFERED FOR TAX IN THE RETURN OF INCOME OR HAS FURN ISHED ANY DETAILS OF ANY CAPITAL GAIN, THE ASSESSING OFFICER HAS TAXED THE ENTIRE SALES REFLECTED IN THE BANK STATEMENT AS INC OME FROM OTHER SOURCES AND HAS INVOKED SECTION 68 AND SECTIO N 69A SIMULTANEOUSLY. ONCE, IT IS AN UNDISPUTED FACT THAT AMOUNT OF RS.93,12,000/- IS ON ACCOUNT OF RECEIPT OF SALE OF CAPITAL I.T.A. NO.849/DEL/2017 5 ASSET, THEN THE CORRECT HEAD OF INCOME TO BE TAXED WILL BE UNDER THE HEAD COMPUTATION OF INCOME FROM CAPITAL GAINS. EVEN THOUGH, ASSESSEE ALL THROUGHOUT HAS BEEN NON COMPLIANT BEFORE THE AUTHORITIES BELOW BUT EVEN WHI LE MAKING THE BEST JUDGMENT THE ASSESSING OFFICER HAS TO COMP UTE AND ASSESSED THE INCOME IN ACCORDANCE WITH LAW. 8. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, W E ARE REMANDING BACK THE MATTER TO THE FILE OF THE ASSESS ING OFFICER TO COMPUTE THE SALE OF PROPERTIES UNDER THE HEAD C APITAL GAIN; AND ASSESSEE IS DIRECTED TO PROVIDE ALL NECE SSARY DOCUMENTS FOR THE PURCHASE OF THE PROPERTY OR ANY C OST OF ACQUISITION AND ALSO THE COPY OF SALE DEEDS, IN ORD ER TO CORRECTLY ASSESSED THE INCOME UNDER THE HEAD LONG TERM CAPITAL GAIN. THE ASSESSING OFFICER WILL PROVIDE D UE AND EFFECTIVE OPPORTUNITY TO THE ASSESSEE AND ASSESSEE IS ALSO DIRECTED TO CO-OPERATE IN THE PROCEEDINGS BEFORE TH E ASSESSING OFFICER. ACCORDINGLY, THE GROUNDS RAISED BEFORE US IS REMITTED TO THE FILE OF THE ASSESSING OFFICER. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH MARCH, 2020. SD/- SD/- [ANADEE NATH MISSHRA] [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 5 TH MARCH, 2020 PKK: