SHRI VIKAS SONGARA, AJMER V. DEPUTY COMMISSIONER OF INCOME TAX, AJMER

ITA 85/JPR/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6111 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 24-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Cost of acquisition
• Section: 143(3); 50C; 54F; 54; 154

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 85/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2013-14 SH. VIKAS SONGARA NEAR AJMER HOSPITAL POLICE LINE, AJMER CUKE VS. DCIT, CIRCLE-1, AJMER LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AMIPS0584K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P. C. PARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. POONAM RAI (DCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 05/06/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 08/06/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A), AJMER DATED 28.11.2017 FOR ASSESSMENT Y EAR 2013-14 WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUND OF APPEAL:- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DECIDING THE APPEAL EX-PARTE WITHOUT PROVIDING ADEQUATE OPPORTUN ITY OF HEARING TO THE ASSESSEE. 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN NOT DECIDING THE GROUND RAISED BEFORE HIM ON MERIT BY SIMPLY STATING THAT ASSESSEE HAS ITA NO. 85/JP/2018 SH. VIKAS SONGARA, AJMER VS. DCIT, CIRCLE-1, AJMER 2 NOT FURNISHED ANY WRITTEN SUBMISSION IGNORING THAT THE COMPLETE FACTS HAS BEEN MENTIONED IN THE APPLICATION FILED BEFORE AO U/S 154. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED HIS RETURN OF INCOME ON 29.09.2013 DECLARING TOTAL INCO ME OF RS.20,96,210/- WHICH INCLUDED CAPITAL GAIN OF RS.20 ,36,567/-. THE CAPITAL GAIN WAS DECLARED ON ACCOUNT OF SALE OF FAC TORY LAND, BUILDING, ETC. WHICH WAS CALCULATED AS UNDER:- PARTICULARS AMOUNT DEEMED SALES CONSIDERATION U/S 50C RS.55,77,175/ - (ACTUAL CONSIDERATION RS.54,35,000/-) LESS:- TRANSFER EXPENSES RS.17,000/- RS.55,60,175/- LESS:-INDEXED COST OF ACQUISITION RS.35,23,608/- GAIN RS.20,36,567/- LESS:- DEDUCTION U/S 54 ON PURCHASE OF RS.11,00, 000/- HOUSE PROPERTY AT RS.11 LACS CAPITAL GAIN RS.9,36,567/- 3. THEREAFTER, THE AO PASSED THE ASSESSMENT ORDER U /S 143(3) WHEREIN HE COMPUTED THE LONG TERM CAPITAL GAINS AS UNDER:- PARTICULARS AMOUNT DEEMED SALES CONSIDERATION U/S 50C RS.55,77,175/ - LESS:- TRANSFER EXPENSES RS.17,000/- RS.55,60,175/- LESS:-INDEXED COST OF ACQUISITION RS.35,23,608/- GAIN RS.20,36,567/- LESS:- DEDUCTION U/S 54F ON PURCHASE OF RS.4,28, 870/- ITA NO. 85/JP/2018 SH. VIKAS SONGARA, AJMER VS. DCIT, CIRCLE-1, AJMER 3 HOUSE PROPERTY AT RS.11,70,890/- (20,36,567*11,70,890/55,60,175) CAPITAL GAIN RS.16,07,697/- 4. THEREAFTER, THE ASSESSEE MOVED AN APPLICATION U/ S 154 DT. 26.09.2016 CLAIMING THAT IT HAS WRONGLY INCLUDED TH E SALE AMOUNT OF AGRICULTURAL LAND OF RS.5,35,000/- (DLC VALUE RS.5, 50,648/-) WHICH IS NOT LIABLE FOR CAPITAL GAIN BEING THE AGRICULTURAL LAND SITUATED BEYOND 8 KMS OF THE MUNICIPAL LIMIT AND THAT THE INVESTMENT IN T HE HOUSE PROPERTY IS OF RS.15,74,060/- AS AGAINST RS.11 LACS CLAIMED IN THE RETURN. ACCORDINGLY, THE REVISED CAPITAL GAIN WAS WORKED OU T AS UNDER:- PARTICULARS AMOUNT DEEMED SALES CONSIDERATION U/S 50C RS.50,26,527/ - LESS:-TRANSFER EXPENSES RS.17,000/- RS.50,09,527/- LESS:-INDEXED COST OF ACQUISITION RS.33,23,418/- GAIN RS.16,86,109/- LESS:- DEDUCTION U/S 54F ON INVESTMENT IN RS.5,2 9,798/- HOUSE PROPERTY AT RS.15,74,060/- CAPITAL GAIN RS.11,56,31 5. THE AO HOWEVER REJECTED THE APPLICATION FILED BY THE ASSESSEE U/S 154 STATING THAT THE ABOVE SAID CONTENTIONS OF THE ASSESSEE HAVE BEEN DULY CONSIDERED BUT NOT FOUND ACCEPTABLE. THE ASSE SSEE HAS CLAIMED A DEDUCTION WHICH WAS NOT AVAILABLE TO HIM. HENCE, T HE APPLICATION U/S 154 WAS REJECTED. ITA NO. 85/JP/2018 SH. VIKAS SONGARA, AJMER VS. DCIT, CIRCLE-1, AJMER 4 6. THE LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE BY STATING THAT THE ASSESSEE HAS NOT FURNISHED ANY WRI TTEN SUBMISSION IN SUPPORT OF GROUND OF APPEAL RAISED BY HIM AND THERE IS NO INFIRMITY IN THE ORDER PASSED BY AO. BEING AGGRIEVED, THE ASSESS EE IS IN APPEAL BEFORE US. 7. IT WAS SUBMITTED BY THE LD AR THAT IN THE APPLIC ATION FILED U/S 154, THE ASSESSEE HAS SPECIFICALLY POINTED OUT THAT IT H AS WRONGLY INCLUDED THE SALE OF AGRICULTURAL LAND OF RS.5,35,000/- WHIC H IS NOT A CAPITAL ASSET IN COMPUTING THE CAPITAL GAIN. FURTHER, IT IS ALSO STATED THAT INVESTMENT IN HOUSE PROPERTY U/S 54F IS RS.15,74,060/- AS AGAI NST RS.11,70,890/- CONSIDERED BY THE AO. BOTH THESE FACTS ARE NOT DENI ED BY THE LOWER AUTHORITIES. THUS, WHEN THE ENTIRE FACTS ARE NARRAT ED IN THE APPLICATION U/S 154, THE LD. CIT(A) WAS NOT JUSTIFIED IN DISMIS SING THE APPEAL OF THE ASSESSEE ONLY FOR THE REASON THAT ASSESSEE HAS NOT FURNISHED THE WRITTEN SUBMISSION IN SUPPORT OF THE GROUNDS OF APPEAL WHER EAS THE APPLICATION FILED U/S 154 ITSELF CONTAINS ALL THE SUBMISSION OF ASSESSEE. IN VIEW OF ABOVE, AO BE DIRECTED TO COMPUTE THE CAPITAL GAIN A S PER LAW AFTER TAKING INTO CONSIDERATION THE FACTS NARRATED IN THE APPLICATION U/S 154. 8. THE LD DR IS HEARD WHO HAS RELIED ON THE ORDER O F THE LOWER AUTHORITIES. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSED THE MATERIAL AVAILABLE ON RECORD. THE SCOPE OF SECTION 154 IS LI MITED TO THE EXTENT OF RECTIFYING ANY MISTAKE WHICH IS APPARENT FROM THE R ECORD. IN THE INSTANT CASE, BY WAY OF A RECTIFICATION APPLICATION, THE AS SESSEE HAS CONTENDED THAT THE SALE AMOUNT OF AGRICULTURAL LAND OF RS.5,3 5,000/- (DLC VALUE ITA NO. 85/JP/2018 SH. VIKAS SONGARA, AJMER VS. DCIT, CIRCLE-1, AJMER 5 RS.5,50,648/-) IS NOT LIABLE FOR CAPITAL GAIN BEING THE AGRICULTURAL LAND SITUATED BEYOND 8 KMS OF THE MUNICIPAL LIMIT AND SE CONDLY, THE INVESTMENT IN THE HOUSE PROPERTY IS OF RS.15,74,060 /- AS AGAINST RS.11 LACS CLAIMED IN THE RETURN. WE FIND THAT THERE IS N OTHING ON RECORD WHICH SUGGEST THAT THESE FACTS WERE BROUGHT TO THE NOTICE OF THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS OR HAS SKIPPED THE ATTENTION OF THE AO. THESE ARE CLEARLY FRESH FACTS WHICH ARE SO UGHT TO BE BROUGHT ON RECORD WHICH IS NOT PERMISSIBLE WITHIN THE PROVI SIONS OF SECTION 154 OF THE ACT. FURTHER, WHETHER THE AGRICULTURE LAND IS AN AGRICULTURAL LAND SITUATED BEYOND 8 KMS OF THE MUNICIPAL LIMITS IS A MATTER OF INVESTIGATION AND FRESH EXAMINATION WHICH IS BEYOND THE SCOPE OF SECTION 154 OF THE ACT. DURING THE COURSE OF HEARI NG, THE LD AR HAS CONTENDED THAT THERE IS NO SPECIFIC FINDING OF THE LOWER AUTHORITIES AS TO WHY THE ASSESSEES APPLICATION WAS REJECTED AND THE REFORE, IN INTEREST OF JUSTICE, THE MATTER MAY BE SET-ASIDE TO THE FILE OF THE AO TO EXAMINE AND PASS A SPEAKING ORDER. WE ARE HOWEVER UNABLE T O ACCEDE TO THE REQUEST OF THE LD AR. AS WE HAVE NOTED ABOVE, IT IS CLEARLY NOT A MATTER CALLING FOR RECTIFICATION UNDER SECTION 154 AND WE THEREFORE, DONOT DEEM IT APPROPRIATE TO REMAND IT TO THE AO AS NO USEFUL PURPOSE WOULD BE SERVED BY SETTING ASIDE THE MATTER. IN THE RESULT, GROUND TAKEN BY THE ASSESSEE IS DISMISSED. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08/06/2018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER ITA NO. 85/JP/2018 SH. VIKAS SONGARA, AJMER VS. DCIT, CIRCLE-1, AJMER 6 TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08/06/2018 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. VIKAS SONGARA, AJMER 2. IZR;FKHZ@ THE RESPONDENT- DCIT, CIRCLE-1, AJMER 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 85/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR