Mithlesh, Hapur V. ITO, Ward-2(3)(4), Hapur

ITA 908/DEL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6617 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 06-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: NARESH KR AGGARWAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 50C; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO.908/DEL/2018 ASSESSMENT YEAR : 2012-13 MITHLESH, W/O SHRIPAL SINGH, VILLAGE- SAMANA SUKHDEVPUR, TEHSIL HAPUR, HAPUR, UTTAR PRADESH. VS. ITO, WARD- 2(3)(4), HAPUR, UTTAR PRADESH. PAN : CYNPM6602H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NARESH KR. AGGARWAL, ADV. DEPARTMENT BY : SHRI S. L. ANURAGI, SR. DR DATE OF HEARING : 17-07-2018 DATE OF PRONOUNCEMENT : 24-07-2018 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 25.10.2017 OF CIT(A), GHAZIABAD RELATING TO ASSESSM ENT YEAR 2012-13. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL. ON THE BASIS OF AIR INFORMATION RECEIVED THAT THE ASSESSEE HAS SOLD IMMOVABLE PROPERTY FOR RS.2,00,000/- WHEREAS THE STAMP VALUAT ION AUTHORITY HAS VALUED THE PROPERTY AT RS.26,56,500/- AND, THEREFORE, THER E WAS A DIFFERENCE OF RS.24,56,500/- AS PER THE PROVISIONS OF SECTION 50C OF THE I.T. ACT, 1961, THE ASSESSING OFFICER REOPENED THE ASSESSMENT U/S 147 B Y ISSUING NOTICE U/S 148 OF THE I.T. ACT. ALTHOUGH THE NOTICE WAS DULY SERVED ON THE ASSESSEE, HOWEVER, THERE WAS NO EFFECTIVE COMPLIANCE FROM THE SIDE OF THE ASSESSEE FOR WHICH THE 2 ITA NO.908/DEL/2018 ASSESSING OFFICER COMPLETED THE ASSESSMENT DETERMIN ING THE TOTAL INCOME OF RS.26,56,500/-. 3. IN APPEAL, THE LD. CIT(A) UPHELD THE ACTION OF T HE ASSESSING OFFICER BY OBSERVING AS UNDER :- 5.2 GROUND NOS.3 TO 13: THE APPELLANT HAS CHALLENG ED THE ADDITION OF RS.26,56,500/- MADE BY THE AO BEING THE DIFFERENCE IN ACTUAL SALE CONSIDERATION RECEIVED AND THE VALUE ASSESSED BY STAMP DUTY VALUA TION AUTHORITY. DURING THE COURSE OF APPELLATE PROCEEDINGS IT HAS BEEN STATED THAT THAT APPELLANT HAS NOT BEEN PROVIDED AIR INFORMATION AND APPELLANT IS NOT ABLE TO GET THE COPY OF THE DOCUMENTS FROM REGISTRATION AUTHORITY. HOWEVER, DURING THE CO URSE OF APPELLATE PROCEEDINGS THE APPELLANT CHANGED HER STAND THAT APPELLANT DOES NOT HAVE ANY KNOWLEDGE ABOUT THE SAID TRANSACTION MADE (AS PER SUBMISSION DT. 21.06. 2017 BEFORE UNDERSIGNED) TO ACCEPTING THAT APPELLANT HAD SOLD RIGHTS RELATED TO THE PROPERTY KHASRA NO. 448, RAKBA-14, BIGA-2, BISWA ON 23.03.2012. NO EVIDENCE IN SUPPORT OF COST OF THESE RIGHTS HAS BEEN GIVEN BY THE APPELLANT DURING APPELLATE PR OCEEDINGS OR ASSESSMENT PROCEEDINGS. 5.2.1 IT IS OBSERVED THAT APPELLANT HAD BEEN DELIBE RATELY HIDING DETAILS REGARDING THE SAID TRANSACTION AS INITIALLY AIR INFORMATION WAS C HALLENGED ALLEGEDLY CALLING IT FALSE INFORMATION. THUS CIRCUMSTANTIALLY IT IS HELD THAT THERE IS NO EVIDENCE TO CONTRADICT THE COMPUTATION OF APPELLANT'S INCOME BASED ON THE PROV ISIONS OF SECTION 50C. THUS THESE GROUNDS OF APPEAL ARE DISMISSED AND ADDITION MADE I S UPHELD. 4. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUND S :- 1. THAT THE APPELLANT HUMBLY REITERATES FOR YOUR B ENIGN AND WORTHY CONSIDERATION ALL THE FACTS AND GROUNDS OF APPEAL MADE BEFORE THE LD. FIRST APPELLATE AUTHORITY. 2. THAT THE CIT (A) HAS COMMITTED A MISTAKE BY NOT CONSIDERING GROUND RELATING TO THE VALIDITY OF THE ASSESSMENT ORDER. THAT THE N OTICE ISSUED UNDER SEE 148 DOES NOT PASS TEST FOR A VALID NOTICE. 3. THAT THE ASSESSMENT ORDER PASSED IS NOT JUST AN D FAIR UNDER THE CIRCUMSTANCES. THAT THERE EXISTS NO ADEQUATE AND VALID JUSTIFICATI ON FOR ADDITION ON ACCOUNT OF AIR INFORMATION IN THE APPELLANT'S INCOME. THAT FACTS A S APPARENT FROM DOCUMENTS SUBMITTED AND SUBMISSION HAVE NOT BEEN ACCORDED DUE WEIGHT AS WARRANTED UNDER THE LAW. THAT CIT (A) HAS NOT GIVEN DUE WEIGHT TO THE A SSESSEE'S REQUESTS TO MAKE INQUIRIES BEFORE RELYING UPON AO FINDING IN ASSESSM ENT ORDER. 4. THAT THE CIT (A) HAS NOT PASSED A SPEAKING ORDE R IN RESPECT OF APPLICATION MADE TO HOLD INQUIRY UNDER SEC 250(4) FOR AGRICULTU RAL LAND AND ITS CULTIVATION RIGHTS ETC (NON-CAPITAL ASSET) SOLD BY THE APPELLANT. 3 ITA NO.908/DEL/2018 5. THAT THE CIT (A) HAS MADE AN ERROR IN DISMISSING THE APPEAL WHEREBY MAKING A FINDING OF FACT THAT THE APPELLANT HAS SOLD THE A GRICULTURAL LANDS (NON -CAPITAL ASSET) LEASED CULTIVATION RIGHTS. 6. THAT THE SECTION SOC HAS NO APPLICATION TO THE LEASED CULTIVATION RIGHTS OF AGRICULTURAL LAND (NON-CAPITAL ASSET). 7. THAT JUSTICE SHOULD NOT ONLY BE DONE BUT APPEAR S TO HAVE BEEN DONE MANIFESTLY AND UNDOUBTEDLY. THE HONBLE S C SAYS THAT THE TAXI NG AUTHORITIES SHOULD NOT ACT IN A MANNER INDICATE THAT THE SCALE OF JUSTICE ARE WEIGH TED AGAINST THE ASSESSEE. THE APPELLANT CRAVES FOR PERMISSION TO ADD, DELETE OR AMEN THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF APPEAL. 5. LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMI TTED THAT THE ASSESSEE BEING AN ILLITERATE PERSON WAS NOT ABLE TO SUBSTANT IATE HIS CASE EFFECTIVELY EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE LD. CIT( A). HE SUBMITTED THAT IN THE INTEREST OF JUSTICE THE MATTER SHOULD BE RESTORED T O THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS CASE. 6. LD. DR ON THE OTHER HAND OBJECTED TO SUCH ARGUME NTS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE. 7. AFTER HEARING THE RIVAL CONTENTIONS MADE BY BOTH THE SIDES AND CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A D IRECTION TO GIVEN ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS CAS E. THE ASSESSEE IS ALSO HEREBY DIRECTED TO COOPERATE WITH THE ASSESSING OFFICER IN COMPLETION OF THE ASSESSMENT AT THE EARLIEST. NEEDLESS TO SAY, THE A SSESSING OFFICER SHALL DECIDE THE ISSUE AS PER FACT AND LAW AFTER GIVING DUE OPPO RTUNITY OF BEING HEARD TO THE 4 ITA NO.908/DEL/2018 ASSESSEE. I HOLD AND DIRECT ACCORDINGLY. THE GROU NDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24 TH JULY, 2018. SD/- (R. K. PANDA) ACCOUNTANT MEMBER DATED: 24-07-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI