Smt. Kiran Bala, Chandigarh V. ACIT, Chandigarh

ITA 911/CHANDI/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9904 (ITAT-CHANDIGARH)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 29-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K DHIR
• Assessee Lawyers: AMITOZ SINGH KAMBOZ
• Keywords: Opportunity of being heard; Cost of acquisition; Revised return; Set aside
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH , ! BEFORE: SMT. DIVA SINGH, JM ./ ITA NO. 911/CHD/2018 / ASSESSMENT YEAR : 2013-14 SMT. KIRAN BALA, HOUSE NO. 1512, SECTOR 34-D, CHANDIGARH. VS THE ACIT, CIRCLE 2(1), CHANDIGARH. ./ PAN NO. : AESPB5681E / APPELLANT / RESPONDENT / ASSESSEE BY : SHRI AMITOZ SINGH KAMBOZ, CA / REVENUE BY : SHRI A.K. DHIR, SR.DR ! ' # / DATE OF HEARING : 14.05.2019 $%&' # / DATE OF PRONOUNCEMENT : 31.05.2019 '#/ ORDER T HE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AS SAILING THE CORRECTNESS OF THE ORDER DATED 26.04.2018 OF CIT(A) -1 CHANDIGRAH PERTAINING TO 201314 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS : 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, LD. CIT (APPEALS), CHANDIGARH HAS ERRED IN UPHOLDING THE REJECTIONS MA DE BY THE LD. AO AND DISREGARDING THE REVISED RETURN FILED BY THE ASSESSEE. 2. THE LD. (TF(APPEALS) IS WRONG IN UPHOLDING THE REJE CTION OF SHORT TERM LOSS AMOUNTING TO RS. 1 1,14,224/- IN RESPECT OF CALCULA TION ERROR IN THE COMPUTATION CHART OF INCOME DUE TO OVER SIGHT AND CALCULATION OF COST OF LAND AT LOWER RATE THAN THE ACTUAL COST OF LAND WHICH HAD BEEN CORRECTLY MENTIONED IN THE R EVISED RETURN. 3. BOTH THE PARTIES HAVE BEEN HEARD. THE SHORT ISSUE INVOLVED FOR CONSIDERATION IN THE PRESENT PROCEEDIN GS IS THE CALCULATION ERROR WHICH IS BROUGHT TO THE NOTICE OF THE ASSESSING OFF ICER IN THE COURSE OF THE ASSESSMENT PROCEEDINGS QUA THE LONG TERM CAPITAL GA IN ARISING FROM SALE OF COMMERCIAL PLOT NUMBERS 56, 57 AND 58, VIP SHOPPING CENTRE, VIP ROAD, ITA 911/CHD/2018 A.Y. 2013-14 PAGE 2 OF 3 VILLAGE LOHGARH, MC ZIRAKPUR TEHSIL DERA BASSI MEAS URING 300 SQ. YDS IN AGGREGATE. FOR READY REFERENCE, PARA 4.1 FROM THE A SSESSMENT ORDER IS EXTRACTED HEREUNDER : 4.1 DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE FURTHER CLAIMED THAT THE CALCULATION O F SHORT TERM CAPITAL GAIN ON THE SALE OF COMMERCIAL PLOT AT VIP ROAD, ZIRAKPUR IS ERRONEOUS IN HER ITR. THE ASSESSEE IS SHOWING CAPITAL GAIN OF RS. 8,88,23 0/- IN HER ORIGINAL ITR. THE ASSESSEE HAS NOT FILED ANY REVISED ITR. DURING THE COURSE OF ASSESSMENT PR OCEEDINGS, THE ASSESSEE SUBMITTED A FRESH COMPUTATION AND CLAIMED SHORT TERM CAPITAL LOSS OF RS. 11,14,224/- ON THE ABOVE TRANSACTION. THE CLAIM OF THE ASSESSEE IS NOT ACCEP TED. THE ASSESSEE HAD SUFFICIENT TIME TO FILE A REVISED RETURN TO MAKE HER CLAIM. IN THE CASE OF GO ETZE INDIA LIMITED VS. CIT (SUPRA), THE HON'BLE APEX COURT HAS HELD THAT THE ASSESSING AUTHORITY IS NOT ENTITLED TO ENTERTAIN A CLAIM FOR DEDUCTION OTHERWISE THAN BY FILING A REVISED RETURN. 3. THE ASSESSEE CARRIED THE ISSUE IN APPEAL BEFORE THE CIT(A) WHO DISMISSED IT HOLDING AS UNDER : 6.2 I HAVE PERUSED THE ORDER OF THE AO AND THE CON SIDERED THE SUBMISSION OF THE APPELLANT. THE APPELLANT HAD FILED DETAILS OF COMPUTATION BEFO RE THE AO BUT WRONGLY COMPUTED CAPITAL GAINS. THE COST OF ACQUISITION WAS WRONGLY TAKEN AN D DURING ASSESSMENT U/S 143(3) REQUESTED FOR CORRECTION OF THE ERROR. HOWEVER, THE AO HAS DE NIED THE CORRECTION BY RELYING ON JUDGEMENT OF HON'BLE SUPREME COURT IN THE CASE OF G OETZE INDIA LTD (SUPRA). AS PER THE JUDGEMENT OF GOETZE INDIA LTD (SUPRA), T HE HON TALE EX COURT HAS CLEARLY DISMISSED THE PLEA OF THE APPELLANT AND UPHELD THE ORDER OF THE AO IN WHICH THE CLAIM OF THE APPELLANT WAS REJECTED BECAUSE IT HAD NOT BEEN FILE D WITHIN TIME OF REVISED RETURN. ALL OTHER JUDGMENTS QUOTED BY THE APPELLANT DO NOT DISTINGUIS H THE FACTS OF THE CASE AS THEY STAND IN THIS CASE. HENCE, THE CLAIM OF THE APPELLANT IS NOT ACCE PTABLE AND GROUND OF APPEAL NO. 2 IS DISMISSED . 4. IT IS SEEN THAT IN THE FACTS OF THE PRESENT CASE TH E DECISION ARRIVED AT BY THE CIT-A RELYING UPON THE DECISION OF THE APEX COU RT IN THE CASE OF GOETZE INDIA IS ON AN INCORRECT APPRECIATION OF LAW. THE I SSUE BEFORE THE APEX COURT IN THE SAID DECISION WAS CLAIM OF DEDUCTION AFTER THE FILING OF RETURN. IN THE CONTEXT OF THE SAME THE COURT HELD THAT THERE WAS NO POWER IN THE ASSESSING AUTHORITY TO ENTERTAIN THE CLAIM MADE OTHERWISE THAN BY WAY O F A REVISED RETURN. THE SAME CANNOT BE READ TO BE SO UNDERSTOOD THAT GIVING EFFECT TO CALCULATION ERRORS WAS BEYOND THE COMPETENCE OF THE ASSESSING OFFICER. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE CIT(A) W ITH THE DIRECTION TO EXAMINE THE CLAIM WHETHER THERE WAS A CALCULATION ERROR AND THE REAFTER PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT THE ASSESSEE BE AFFORDED A ITA 911/CHD/2018 A.Y. 2013-14 PAGE 3 OF 3 REASONABLE OPPORTUNITY OF BEING HEARD. SAID ORDER W AS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31.05. 2019. SD/- ( ) (DIVA SINGH) ! / JUDICIAL MEMBER % & %( )* +* / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ! , / CIT 4. ! , ( )/ THE CIT(A) 5. *-. / , # / , 012.3 / DR, ITAT, CHANDIGARH 6. .2 4' / GUARD FILE %( ! / BY ORDER, 5 / ASSISTANT REGISTRAR