ITO, Kota V. BHUVNESH SETHI L/H LATE NTRA PRAKASH SETHI, Kota

ITA 9/JPR/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0418 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 05-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEENA JAIF
• Keywords: Sale consideration of property below Jantri Value; Tax effect; Reassessment proceedings
• Section: 271(1)(c); 50C; 234B

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE -B, JAIPUR JH FOT; IKY 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. 09/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07 INCOME TAX OFFICER, WARD 1(2), KOTA CUKE VS. SH. BHUVNESH SETHI L/H LATE NETRA PRAKASH SETHI, 663, SHASTRI NAGAR, KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ANPPS1146R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT IZR;K{KSI.K @ C.O. NO. 09/JP/2018 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 09/JP/2015) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR 2006-07 SH. BHUVNESH SETHI L/H LATE NETRA PRAKASH SETHI 663, SHASTRI NAGAR, KOTA CUKE VS. INCOME TAX OFFICER, WARD 1(2), KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ANPPS1146R IZR;K{KSID@ OBJECTOR IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI NEENA JAIF (JCIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MUKESH SONI (ADV.) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 26/11/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 27/11/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE APPEAL FILED BY THE REVENUE AND THE CROSS OBJE CTION FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE LD. CIT(A), KOTA DATED ITA 09/JP/2015 & C.O. 09/JP/2015_ ITO, KOTA VS SH. BHUVNESH SETHI, KOTA 2 20/10/2014 FOR THE A.Y. 2006-07. THE GROUNDS TAKEN BY THE REVENUE AND THE ASSESSEE ARE AS UNDER:- GROUNDS OF REVENUES APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN:- (I) CANCELLING THE ASSESSMENT ORDER DATED 10.03.2014 PA SSED BY THE AO U/S 143(3)/147 OF THE INCOME TAX ACT, 1961, THEREBY DELETING ADDITION OF RS. 74,16,703/- MADE BY AO; GROUNDS OF ASSESSEES C.O.: 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(APPEALS), KOTA IS NOT JUSTIFIED IN NOT ADJUDICA TING THE FOLLOWING GROUNDS NO. 1 TO 5 WHICH WERE RAISED BY THE RESPOND ENT IN GROUNDS OF APPEAL IN THE FIRST APPELLATE PROCEEDINGS. GROUND NO. 1 THE IMPUGNED ASSESSMENT ORDER DATED 2 7.02.2014 AND THE REASSESSMENT PROCEEDINGS U/S 147/148 OF THE ACT IS WITHOUT JURISDICTION, ARBITRARY AND BAD IN LAW. GROUND NO. 2 UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. AO HAS LEGALLY ERRED IN INVOKING THE PROVIS ION OF SECTION 50C OF THE INCOME TAX ACT, 1961 AND MAKING AN ADDITION OF RS. 74,16,703/- IN THE HANDS. GROUND NO. 3 WITHOUT PREJUDICE TO THE ABOVE, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. AO HA S ERRED IN DETERMINING THE CAPITAL GAINS IN THE HANDS OF THE ASSESSEE BY C ONSIDERING ITS SHARE AS 50% IN THE PLOT OF LAND INSTEAD OF ONE-THIRD. GROUND NO. 4 UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. AO HAS ERRED IN CHARGING INTEREST U/S 234A, 234B & 234C OF THE ACT. GROUND NO. 5 UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. ASSESSING OFFICER IS NOT JUSTIFIED IN INITI ATING THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. ITA 09/JP/2015 & C.O. 09/JP/2015_ ITO, KOTA VS SH. BHUVNESH SETHI, KOTA 3 2. FIRSTLY WE TAKE C.O. OF THE ASSESSEE. AT THE OUT SET OF HEARING, THE LD AR OF THE ASSESSEE HAS STATED THAT HE DOESNT WI SH TO PRESS THE GROUNDS SO TAKEN IN THE CROSS OBJECTION THEREFORE, THE SAME MAY BE DISMISSED AS NOT PRESSED. ON THE OTHER HAND, THE LD DR HAS NOT RAISED ANY OBJECTION IF THE ASSESSEE DOES NOT WANT TO PRES S THE GROUNDS OF C.O. THEREFORE, THE GROUNDS TAKEN BY THE ASSESSEE I N THE C.O. ARE DISMISSED BEING NOT PRESSED. 3. NOW WE TAKE THE REVENUES APPEAL. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE HAS RAISED AN OBJECTION OF MAINT AINABILITY OF THE APPEAL OF THE REVENUE DUE TO THE TAX EFFECT NOT EXC EEDING RS. 20 LACS AS PER THE CBDT CIRCLE NO. 3 OF 2018 DATED 11 TH JULY, 2018. THE LD. A/R SUBMITTED THAT IN THE FACTS OF THE PRESENT CASE, TA X EFFECT IN REVENUES APPEAL IS STATED TO BE BELOW THE PRESCRIBED LIMIT O F RS. 20 LACS. 4. THE LD. D/R HAS FAIRLY SUBMITTED THAT THE TAX EF FECT INVOLVED IN THE REVENUES APPEAL IS LESS THAN 20 LACS WHICH IS PRES CRIBED THRESHOLD LIMIT IN TERMS OF THE CBDT CIRCULAR NO. 3/2018 DATED 11 TH JULY, 2018 ISSUED IN SUPERSESSION OF ITS EARLIER CIRCULAR NO. 21 OF 2015 DATED 10.12.2015. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS OBSERVED THAT THE DEMAN D/ TAX EFFECT IN THE REVENUES APPEAL IN QUESTION IS BELOW RS. 20.00 LAC S . UNDER THE POWERS ITA 09/JP/2015 & C.O. 09/JP/2015_ ITO, KOTA VS SH. BHUVNESH SETHI, KOTA 4 VESTED BY SECTION. 268A(1) OF THE I T ACT, CBDT HAS RECENTLY ISSUED CIRCULAR NO. 3/2018 DATED 11 TH JULY, 2018 (F NO. 279/MISC. 142/2007-ITJ(PT) INSTRUCTING THE AUTHORITIES BELOW THAT DEPARTMENTAL APPEAL SHOULD NOT BE FILED BEFORE ITAT WHERE THE DEMAND/TAX EFFECT DOES NOT EXCEED RS. 20 LACS. THE CIRCULAR IS SPECIFICALLY MENTIONED TO BE APPLICABLE FOR ALL PENDING APPEALS. 6. SUBJECT TO SOME EXCEPTIONS, IT IS FURTHER DIREC TED BY CBDT THAT ALL THE DEPARTMENTAL APPEALS PENDING BEFORE ITAT WHERE THE DEMAND/TAX EFFECT IS NOT EXCEEDING THAN 20 LACS SHOULD BE EITH ER WITHDRAWN OR NOT PRESSED BY THE DEPARTMENTAL REPRESENTATIVES. 7. THE PRESENT APPEAL IS NOT COVERED BY ANY EXCEPT IONS MENTIONED IN THE SAID CBDT CIRCULAR. SINCE THE TAX DEMAND IN DISPUTE IN THIS DEPARTMENTAL APPEAL IS BELOW THE LIMIT SET OUT BY C BDT FOR THE APPEAL, THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE IN V IEW OF CBDT CIRCULAR NO. 3 OF 2018 DATED 11.07.2018. ACCORDINGLY THE APP EAL OF THE DEPARTMENT IS DISMISSED AS NOT PRESSED/WITHDRAWN. 8. IN THE RESULT, BOTH THE APPEAL OF THE REVENUE AN D THE C.O. OF THE ASSESSEE ARE DISMISSED. ITA 09/JP/2015 & C.O. 09/JP/2015_ ITO, KOTA VS SH. BHUVNESH SETHI, KOTA 5 ORDER PRONOUNCED IN THE OPEN COURT ON 27/11/2018. 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 TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27/11/2018 *GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD 1(2), KOTA 2. IZR;FKHZ@ THE RESPONDENT- SHRI BHUVNESH SETHI, KOTA 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. 09/JP/2015 & CO 09/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR