Late Sh. Rajinder Kumar Manchanda, Legal Heir Smt. Rajni Manchanda, New Delhi V. ITO, New Delhi

ITA 855/DEL/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1684 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 14-02-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Keywords: Capital asset
• Section: 13; 144

Judgement Text

ITA NO.- 855/DEL/2017. LATE SHRI RAJINDER KUMAR MANCHANDA PAGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: F: NEW DELHI) BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 855/DEL/2017 ( ASSESSMENT YEAR: 2011-12) LATE SHRI RAJINDER KUMAR MANCHANDA, LEGAL HEIR SMT. RAJNI MANCHANDA, NEW DELHI. VS. INCOME TAX OFFICER, WARD-35(1), NEW DELHI. PAN NO: AAFPM1662D APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI SURENDER PAL, SR. DR ORDER PER ANADEE NATH MISSHRA, AM [A] THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED APPELLATE ORDER DATED 14.09.2016 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-19, NEW DELHI, [IN SHORT, LD.CIT(A)] PERTAINING TO ASSESS MENT YEAR 2011-12. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN NOT CONCLUDING THAT THE FINDING OF LD. ITO WERE ERR ONEOUS IN LAW, CONTRARY TO FACTS AND WERE BASED ON MERE SURMISES AND CONJECTURES. ITA NO.- 855/DEL/2017. LATE SHRI RAJINDER KUMAR MANCHANDA PAGE | 2 2. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. ITO HAVE ERRED IN MAKING ADDITION OF INR 10,11,150 TO THE INCOME O F THE ASSESSEE FOR DISALLOWANCE OF INDEXATION COST OF IMPROVEMENT IN T HE ASSESSMENT YEAR 2011-12 WHEREIN INFACT THE SALE TRANSACTION HAS TAKEN PLACE DURING THE ASSESSMENT YEAR 2009-10 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN NOT CONCLUDING THAT THE TRANSFER UNDER SECTION 2(47 ) OF THE AFORESAID PROPERTY IN RELATION TO THE ADDITION OF INR 10,11,150 TO THE IN COME OF THE ASSESSEE FOR DISALLOWANCE OF INDEXATION COST OF IMPROVEMENT TOOK PLACE IN THE ASSESSMENT YEAR 2009-10 4. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE HAS TRANSFERR ED THE PROPERTY ON 3/12/2008 BY AN COLLABORATION AGREEMENT, EXISTING STRUCTURE WAS DEMOLISHED AND A FOUR STOREY HOUSE WAS CONSTRUCTED THEREIN BY THE BUILDER. THE P OSSESSION WAS DULY TRANSFERRED ON 03/12/2008 BY THE ASSESSEE TO THE BUILDER BY WAY OF COLLABORATION AGREEMENT. THAT CONSIDERATION HAS PASSED ON 3/12/2008 AS A RIG HT TO HAVE ONE FLOOR AND 25 % SHARE IN THE PLOT WHICH IS UNDIVIDED SHARE. ACCORDI NGLY TRANSFER UNDER SECTION 2(47) OF THE AFORESAID PROPERTY TOOK PLACE IN THE ASSESSM ENT YEAR 2009-10. 5. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN NOT CONCLUDING THAT NO TAX LIABILITY ARISES IN THE PRESENT RELEVANT ASST. YEAR 2011-12 AS THE TRANSFER UNDER SECTION 2(47) OF THE AFORESAI D PROPERTY TOOK PLACE IN THE ASSESSMENT YEAR 2009-10. 6. THE APPELLANT PRAYS THAT THE ADDITION/ DISALLOWA NCE OF RS. 10,11,150 MADE TO THE INCOME OF THE ASSESSEE FOR DISALLOWANCE OF INDE XATION COST OF IMPROVEMENT TOOK PLACE IN THE ASSESSMENT YEAR 2009-10 BY THE LD ITO BE DELETED THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTH ER ITA NO.- 855/DEL/2017. LATE SHRI RAJINDER KUMAR MANCHANDA PAGE | 3 THE APPELLANT CRAVES LEAVE TO ALTER, AMEND, OR WITH DRAW ALL OR ANY OF GROUNDS OF OBJECTIONS CONTAINED HEREIN OR ADD ANY FURTHER GROU NDS AS MAY BE CONSIDERED NECESSARY EITHER BEFORE OR DURING THE HEARING OF OB JECTIONS [B] VIDE ASSESSMENT ORDER DATED 04.03.2014 PASSED UNDE R SECTION 144 OF THE INCOME TAX ACT, 1961 (IN SHORT THE I.T. ACT). THE RELEVANT PORTION OF THE ASSESSMENT ORDER DATED 04.03.2014 IS REPRODUCED AS UNDER:- ITA NO.- 855/DEL/2017. LATE SHRI RAJINDER KUMAR MANCHANDA PAGE | 4 ITA NO.- 855/DEL/2017. LATE SHRI RAJINDER KUMAR MANCHANDA PAGE | 5 ITA NO.- 855/DEL/2017. LATE SHRI RAJINDER KUMAR MANCHANDA PAGE | 6 [C] THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). V IDE IMPUGNED APPELLATE ORDER DATED 14.09.2016, THE LD. CIT(A) PARTLY ALLOWED THE ASSESSEES APPEAL. THE RELEVANT PORTION OF THE ORDER DATED 14.09.2016 OF THE LD. CI T(A) IS REPRODUCED AS UNDER: ITA NO.- 855/DEL/2017. LATE SHRI RAJINDER KUMAR MANCHANDA PAGE | 7 ITA NO.- 855/DEL/2017. LATE SHRI RAJINDER KUMAR MANCHANDA PAGE | 8 ITA NO.- 855/DEL/2017. LATE SHRI RAJINDER KUMAR MANCHANDA PAGE | 9 ITA NO.- 855/DEL/2017. LATE SHRI RAJINDER KUMAR MANCHANDA PAGE | 10 ITA NO.- 855/DEL/2017. LATE SHRI RAJINDER KUMAR MANCHANDA PAGE | 11 [D] THIS PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE AFORESAID IMPUGNED APPELLATE ORDER DATED 14.09.2016 OF THE LD . CIT(A). AT THE TIME OF HEARING, REVENUE WAS REPRESENTED BY SHRI SURENDER PAL, THE L EARNED SENIOR DEPARTMENTAL REPRESENTATIVE (LD. SR. DR, FOR SHORT). HOWEVER, NONE WAS PRESENT FROM THE ASSESSEES SIDE. IN THE ABSENCE OF ANY REPRESENTA TION FROM ASSESSEES SIDE, AT THE TIME ITA NO.- 855/DEL/2017. LATE SHRI RAJINDER KUMAR MANCHANDA PAGE | 12 OF HEARING BEFORE US, WE HEARD THE LD. SR. DR; WHO RELIED UPON THE ORDER DATED 04.03.2014 OF THE ASSESSING OFFICER AND THE AFORESA ID IMPUGNED ORDER DATED 14.09.2016 OF THE LD. CIT(A). AFTER PERUSAL OF THE MATERIALS ON RECORD, INCLUDING THE ORDER OF THE AO AND THE AFORESAID IMPUGNED ORDER DA TED 14.09.2016 OF THE LD. CIT(A), WE FIND THAT THE LD. CIT(A) HAS PASSED SPEAKING ORD ER ON MERITS. RELEVANT PORTION OF THE IMPUGNED ORDER OF THE LD. CIT(A) HAS ALREADY BE EN REPRODUCED IN FOREGOING PARAGRAPH [C] OF THIS ORDER. WE FIND THAT THE LD. CIT(A) HAS GIV EN DETAILED REASONS FOR HIS DECISION ON MERITS IN THE AFORESAID IMPUGNED AP PELLATE ORDER DATED 14.09.2016 OF LD. CIT(A). DURING APPELLATE PROCEEDINGS IN INCOME TAX APPELLATE TRIBUNAL (ITAT, FOR SHORT) NO MATERIAL HAS BEEN BROUGHT FOR OUR CONSIDE RATION TO PERSUADE US TO TAKE A VIEW DIFFERENT FROM THE VIEW TAKEN BY THE LD. CIT(A) IN THE IMPUGNED ORDER ON MERIT. AFTER HEARING THE LD. SR. DR AND AFTER PERUSAL OF MATERIA LS ON RECORD, AND FURTHER, IN VIEW OF THE FOREGOING DISCUSSION, WE DECLINE TO INTERFERE W ITH THE AFORESAID IMPUGNED APPELLATE ORDER DATED 14.09.2016 OF LD. CIT(A), AND ACCORDING LY, THIS APPEAL IS DISMISSED. [E] BEFORE WE PART; WE EXPLICITLY CLARIFY THAT THE ASSESSEE WILL BE AT LIBERTY TO APPROACH ITAT FOR RESTORATION OF THE APPEAL IN ACCO RDANCE WITH PROVISO TO RULE 24 OF INCOME TAX (APPELLATE TRIBUNAL), RULES, 1963. IF THE ASSESSEE DOES APPROACH ITAT FOR RESTORATION OF THE APPEALS I N ITAT, THE MATTER WILL BE CONSIDERED IN ACCORDANCE WITH LAW HAVING REGARD TO THE FACTS AND CIRCUMSTANCES. ITA NO.- 855/DEL/2017. LATE SHRI RAJINDER KUMAR MANCHANDA PAGE | 13 [F] IN THE RESULT, APPEAL FILED BY ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 12/ 12/2019. SD/- SD/- (AMIT SHUKLA) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUN TANT MEMBER DATED: 12/12/2019 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.- 855/DEL/2017. LATE SHRI RAJINDER KUMAR MANCHANDA PAGE | 14 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER