Income Tax Officer-4(4), Lucknow V. Seema Bajpai @ Sandhya Pandey, Lucknow

ITA 855/LKW/2014

• Counselvise Citation: 85523714 RSA 2014
• Duration Of Justice: 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 24-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Accommodation entries; Assessment record
• Section: 143(3); 147; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO. 855 /LKW/201 4 ASSESSMENT YEAR: 200 8 0 9 ITO 4 ( 4 ), LUCKNOW VS. S EEMA BAJPAI@SANDHYA PANDEY , 1 , SBI BUILDING , MOHANLALGANJ , LUCKNOW . PAN:AJ B P P5438P (APPELLANT) (RESPONDENT) ASSESSEE BY SRI DHARM VIR GULATI, ADVOCATE REVANUE BY SMT. PINKI MAHAWAR, SR. DR DATE OF HEARING 02/07/2015 DATE OF PRONOUNCEMENT 3 1 / 07/2015 O R D E R PER A. K. GARODIA, A.M. T HIS IS REVENUE S APPEAL DIRECTED AGAINST THE ORDER OF LEARNED CIT ( A ) II LUCKNOW DATED 28 .0 8 .201 4 FOR A.Y. 200 8 0 9 . 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS : - 1. THE CIT (A), LUCKNOW HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE NOTICE ISSUED U/S 148 IS VOID AND AGAINST THE PROVISION OF LAW SIMPLY RELYING ON THE SUBMISSION OF THE ASSESSEE. 2. THE CIT (A) , LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION O F RS. 104 , 63 , 702 / - MADE ON ACCOUNT OF CAPITAL GAIN ARISING ON THE SALE OF LAND WHICH COMES UNDER THE DEFINITION OF CAPITAL ASSET. 3 . THE CIT (A), LUCKNOW HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS. 11,98,600/ - MADE U/S 69A OF THE INCOME TAX AC T, 1961 AS UNEXPLAINED CASH DEPOSIT 2 RELYING SIMPLY ON THE SUBMISSION AND ARGUMENTS MADE BY THE ASSESSEE. 4 . THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY ONE OR MORE OF THE GROUNDS OF APPEAL AS STATED ABOVE, AS AND WHEN NEED TO DO SO ARISES WITH THE PRIOR PERMISSION OF THE COURT . 3 . LEARNED D R OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER AND LEARNED AR OF THE ASSESSEE SUPPORTED THE ORDER OF CIT (A) . HE ALSO PLACED RELIANCE ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS: - A ) RANCHHODBHAI BHAIJIBHAI PATEL 81 ITR 446 (GUJARAT) B ) CIT VS. SMT. DEBBIE ALEMAO, 331 ITR 59 (BOMBAY) 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS . WE FIND THAT THE LEARNED CIT (A) HAS DECIDED THE ISSUE ABOUT VALIDITY OF REOPENING AFTER MAKING FOLLOWING OBSERVATION ON PAGES 27 TO 29 OF HIS OR DER: - I HAVE EXAMINED THE WRITTEN SUBMISSIONS, COMMENTS ON REMAND REPORT OF APPELLANT, FINDING GIVEN BY A.O. IN ASSESSMENT ORDER AND REMAND REPORT FILED DURING APPELLATE PROCEEDINGS, I FIND MUCH FORCE IN THE ARGUMENT OF APPELLANT THAT THE INITIATION OF PROCEEDING U/S 147 OF I . T. ACT AND ISSUE OF NOTICE U/S 148 OF I.T. ACT WAS SOLELY ON THE BASIS OF AIR INFORMATION IN RESPECT OF SALE OF IMPUGNED RURAL AGRICULTURE LAND. THE APPELLANT HAS FURNISHED ENTIRE INFORMATION/DETAILS AS ASKED FOR BY A.O . VIDE HIS LETTER DATED 06.09.201 1. THEREAFTER UP TO ISSUE OF NOTICE U/S 148 ON 28 / 03 /2013, NO ANY KIND OF QUERY WAS RAISED OR SOUGHT ANY EXPLANATION/ CLARIFICATION FROM APPELLANT BY A.O. EITHER IN RESPECT OF WRITTEN SUBMISSION ALONG WITH PAPERS/ DOCUMENTS FURN ISHED ON 07 /10/2011 OR LETTER ISSUED BY HIMSELF VIDE DATED 06.09.2011. THE INACTION OF A.O. FROM 06.09.2011 TO 28.03.2013 SHOWS THAT THE A.O. WAS SATISFIED WITH REPLY FILED BY THE APPELLANT IN RESPONSE TO HIS LETTER DATED 06.09.201 1 IN RESPECT OF SAID AIR INFORMATION. FURTHER I FOUND MUCH FORCE IN THE ARGUMENT OF APPELLANT THAT IF THE A.O. WAS NOT SATISFIED WITH HER SAID WRITTEN SUBMISSION THAN ALSO THE A.O. SHOULD HAVE ASKED HER TO FILE CLARIFICATION/EXPLANATION IN RESPECT OF SALE OF IMPUGNED RURAL AGRICU LTURE LAND AND CAPITAL GAIN IF ANY ARISES, BEFORE INITIATION OF PROCEEDING U/S 147 OF I.T. ACT AND ISSUE OF NOTICE U/S 148 3 OF I.T. ACT. FURTHER I OBSERVED THAT THE REASONS RECORDED IN ISSUE NOTICE U/S 148 WAS NOT PROVIDED TO APPELLANT. THE APPELLANT HAS FI LED DETAILS OF AGRICULTURAL INCOME SHOWN FROM THE IMPUGNED RURAL AGRICULTURE LAND FROM A.YRS. 2004 - 05 TO A.Y. 2008 - 09 ( YEAR OF SALE OF LAND IN NOV., 2007). THE APPELLANT HAS SHOWN THE AGRICULTURAL INCOME IN HER ITR IN RELEVANT ASSESSMENT YEARS WHICH ARE A S UNDER: - ASSESSMENT YEAR 2004 - 05 RS. 20,000 / - ASSESSMENT YEAR 2005 - 06 RS. 20,000 / - ASSESSMENT YEAR 2006 - 07 RS. 20,000 / - ASSESSMENT YEAR 2007 - 08 RS. 30,000 / - ASSESSMENT YEAR 2008 - 09 RS.12,000 / - (UNTO DATE OF SALE OF LAND IN NOV., 2007) THE A.O. HAS ACCEPTED THE AGRICULTURAL INCOME DISCLOSED IN HER ITR IN RELEVANT ASSESSMENT YEAR AND NO ADVERSE INFERENCE WAS DRAWN IN RESPECT OF AGRICULTURE INCOME SHOWN BY THE APPELLANT FROM IMPUGNED AGRICULTURE LAND. FURTHER THE SAID AGRICULTURE LAND WAS SITUATED IN RURAL AREA AND THERE IS NO DISPUTE THAT THE LAND IS SITUATED MORE THAN 8 KMS, OUT OF MUNICIPAL LIMIT OF LUCKNOW. THERE IS ALSO NO DISPUTE THAT THE LAND IN QUESTION IS RURAL AGRICULTURAL LAND AS PER REVENUE REPORT AND THE IMPUGNED LAND WAS NOT P UT TO ANY NON AGRICULTURE USE. THE A . O . HAS NOT BROUGHT ANY MATERIAL ON RECORD WHICH COULD PROVE THAT TILL THE DATE OF SALE OF THE SAID LAND WAS USED FOR NON AGRICULTURE PURPOSE. CONTRARY THE A.O. ACCEPTED THE AGRICULTURAL INCOME EARNED BY APPELLANT AND SH OWN IN HER ITR IN RESPECTIVE ASSESSMENT YEAR CONTINUOUSLY TILL THE DATE OF SALE I.E. NOV., 2007. IN NUT CELL THE FACTS OF IMPUGNED SOLD RURAL AGRICULTURAL LAND ARE AS UNDER: - ( I ) THE LAND IS NOT SITUATED IN ANY MUNICIPAL AREA. IT IS SITUATED IN VILLAGE GORA, TEHSIL MOHANLALGANJ AND IS SITUATED ABOUT 13 KMS AWAY FROM THE MUNICIPAL LIMIT OF LUCKNOW WHICH ENDS AT KALI PACCHIM ON RAIBAREILLY ROAD (NEAR SGPGL). ( II ) LAND WAS SHOWN IN THE REVENUE RECORD AS USED FOR AGRICULTURAL PURPOSE. ( III ) THE LAND SOLD WAS NEITHER PUT TO NON - AGRICULTURAL USE NOR WAS PERMISSION EVER OBTAINED FOR NON - AGRICULTURAL USE. PERMISSION 4 FOR NON - AGRICULTURAL USE WAS OBTAINED FOR THE FIRST TIME BY THE PURCHASER (AFTER THE INSTITUTION HAD PURCHASED LAND IN QUESTION) VIDE JUDGMENT DT. 16/01/2010 PASSED BY THE COURT OF ASSISTANT COLLECTOR, MOHANLALGANJ, LUCKNOW IN CASE NO. 16/09 / 10. IN PROOF COPY OF BHULEKH IS ENCLOSED AS ANNEXURE G . ( IV ) THE LAND HAD ALW AYS AND REGULARLY BEEN CULTIVATED TILL IT WAS SOLD. ( V ) ALL NEARBY LAND OF OTHER OWNERS ARE AGRICULTURAL. ( VI ) THE SALE DEED CLEARLY SPECIFIES THE NATURE OF LAND AS AGRICULTURAL ( VII ) THE SALE DEED CLEARLY SPECIFIES THAT THE NATURE OF LAND SOLD IS AGRICULTURAL, IT IS ALSO SPECIFIED IN THE SALE DEED THAT THE SAME IS PRESENTLY UNDER CULTIVATION. THE SALE D EED ALSO SPECIFIES THAT THE LAND IS BEING PURCHASED FOR AGRICULTURAL USE. ( VIII ) THE LAND HAS BEEN SOLD IN BHIGHAS AND NOT IN SQUARE FEE T OR METERS. IT CLEARLY SHOWS THE CHARACTER OF THE LAND AS RURAL AGRICULTURAL LAND . ( IX ) THE LAND SOLD WAS PURCHASED BY THE APPELLANT AS AGRICULTURAL LAND WHICH IS VERIFIABLE FROM THE DETAILS GIVEN IN THE ASSESSMENT ORDER ITSELF. COPIES OF DIFFERENT PURCHASE DEEDS ARE AVAILABLE ON THE ASSESSMENT RECORD. ( X ) FURTHERMORE A CONFIRMATION FROM THE GRAM PRADHAN OF VILLAGE GORA TEHSIL MOHANLALGANJ, LUCKNOW WHICH IS ENCLOSED AS ANNEXURE C. THE CERTIFICATE CERTIFIES TH&T THE LAND IN QUESTION REMAINED UNDER CULTIVATION TILL IT WAS SOLD . ( XI ) THE APPELLANT HAD REGULARLY BEEN SHOWING EVERY YEAR AGRICULTURAL INCOME IN HER RETURN OF INCOME.' CONSIDERING THE WRITTEN SUBMISSION OF APPELLANT AND FACTS & CIRCUMSTANCES OF THE CASE I HOLD THAT THE .A.O. WAS NOT JUSTIFIED IN INITIATION OF PROCEEDINGS U/S 147 OF I.T. ACT AND ISSUE OF NOTICE U/S 148 OF THE ACT, ON THE BASIS OF THE AIR INFORMATION WITHOUT CONDUCTING FURTHER ENQUIRY CAN NOT BE 5 SAID PROPER AND JU STIFIED. THEREFORE, THE PROCEEDING INITIATED U/S 147 OF THE ACT AND NOTICE ISSUED U/S 148 OF THE ACT IS CONSIDERED AGAINST THE PROVISIONS I.T. ACT AND THE ASSESSMENT FRAMED ON THE BASIS OF NOTICE ISSUED U/S 148 OF THE ACT IS CONSIDERED VOID. THUS THE ASSE SSMENT FRAMED U/S 143(3) / 147 OF I.T. ACT IS ANNULLED, DECISIONS . R ELIANCE IS ALSO PLACED ON FOLLOWING JUDICIAL DECISIONS: 1 . JCIT V S GEORG WI LLIA MSON (ASSAM) LTD, (2003) 258ITR 126 (GURJRAT) 'THE A.O. ACTED MERELY ON THE BASIS OF INFORMATION RECEIVED FROM ANOTHER OFFICE BY RESULT OF SURVEY CONDUCTED BY SUCH OFFICER. THE A.O. WITHOUT - FORMING ANY OPINION) BELIEF OF HIS OWN AND WITHOUT GATHERING ANY FURTHER MATERIAL OR ENQUIRY INITIATED PROCEED INGS FOR REOPENING. IT WAS HELD THA T - A.O. HAD NOT MADE AN INDEPENDENT ENQUIRY FOR ARRIVING AT THE PRIMA FACIE CONCLUSION THAT INCOME OF THE ASSESSEE HAD ESCAPED ASSESSMENT AND THEREFORE THE PROCEEDINGS U/S 148 WERE NOT VALID.' 2 . C I T VS. KAMDHENU STEEL & ALLOY LTD. (2012) 248 CTR 33 (DEL H I) ' WHERE WHILE ISSUING NOTICE U/S 148 A.O. HAD MERELY REFERRED FOR CERTAIN INVESTIGATION CARRIED OUT BY DIT ( INV.) IN RESPECT OF BOGUS/ ACCOMMODATION ENTRIES PROVIDED BY CERTAIN INDIVIDUALS & COMPANIES AND HE H AD NOT A PPLIED HIS OWN MIND TO ISSUE, REOPENING OF ASS ESSMENT COULD NOT BE SUSTAINED. ' 5. FROM THE ABOVE PARA OF THE ORDER OF CIT (A), IT COMES OUT THAT ON THE ONE HAND, THE A.O. HAS ACCEPTED THE CLAIM OF AGRICULTURAL INCOME FROM THE SAME LAND TILL THE DATE OF SALE. IT PROVES THAT THE LAND IN QUESTION IS AGRICULTURAL LAND. IT IS ALSO NOTED BY CIT (A) THAT THERE IS NO DISPUTE THAT THE LAND IN QUESTION IS SITUATED MORE THAN 8 KMS. OUT OF MUNICIPAL LIMITS. LEARNED DR OF THE REVENUE COULD NOT CONTROVERT THESE CATEGORICAL FINDINGS OF CIT (A). HENCE, IT CANNOT BE ACCEPTED THAT THE A.O. HAS BROUGHT A NY 6 MATERIAL ON RECORD TO FORM A BELIEF THAT INCOME ON ACCOUNT OF CAPITAL GAIN HAS ESCAPED ASSESSMENT. HENCE, ON THE VALIDITY OF REASSESSMENT, WE FIND NO INFIRMITY IN THE ORDER OF CIT (A). ON MERIT, NO ADJUDICATION IS CALLED FOR AFTER OUR DECISION THAT REOP ENING IS NOT VALID. 5 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED . (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KU MAR YADAV) ( A. K. GARODIA ) JUDI CIAL MEMBER ACCOUNTANT MEMBER DATED: 3 1 /0 7 /201 5 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR