Bhadresh Maganbhai Patel, Surat V. ITO, Ward -1(3)(6), Surat

ITA 93/SRT/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9250 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 12-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B P K
• Assessee Lawyers: MEHUL R SHAH
• Keywords: Opportunity of being heard; Principle of natural justice; Cost of acquisition; Fair market value; Set aside
• Section: 143(3); 54B; 54F; 142(1); 201; 143(2); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH , SURAT BEFORE SHRI AMARJIT SINGH , JM & SHRI O.P.MEENA, AM ITA NO. 93 / SRT / 201 8 ( ASSESSMENT YEAR 20 12 - 13 ) BHADRESH MAGANBHAI PATEL 1, REVANAGAR SOCIETY, ADAJAN, SURAT . ITO - WARD 1(3)(6) AAYAKAR BHAVAN, MAJUR A GATE, SURAT. PAN/GIR NO. AORPP6662C APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI MEHUL R. SHAH REVENUE BY SHRI B. P. K. PANDA ( SR. D R) DATE OF HEARING 26 / 0 9 / 201 9 DATE OF PRONOUNCEMENT 30 / 09 / 201 9 O R D E R PER AMARJIT SINGH (J .M) : THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 05 . 10 .201 7 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 2 MAJURA GATE , SURAT [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y.20 12 - 13 . 2 . THE ASSESSEE HAS RAISED TH E FOLLOWING GROUNDS: - 1 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN PASSING EX - PARTE ORDER WITHOUT GIVING SUFFICIENT OPPORTUNITY OF BEING HEARD AND WITHOUT CONSID ERING THE FACTS AND EXPLANATION GIVEN BY THE ASSESSEE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT ADJUDICATING GROUNDS OF APPEAL. HE OUGHT TO HAVE PASSED THE S PEAKING ORDER AFTER GIVING THE REASON FOR HIS DECISION. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS ERRED IN RE - OPENING THE ASSESSMENT U/S. 147 BY ISSUING NOTICE U/S. 148 OF THE I.T. ACT, 1961 . 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS ERRED IN TAXING THE CAPITAL GAIN IN THE HANDS OF THE ASSESSEE WHEN THE PROPERTY BELONGS TO HIS FATHER. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS ERRED IN MAKING ADDITION 3,71,53,607/ - ON ACCOUNT OF LONG TERM CAPITAL GAIN ITA NO.93 / SRT /201 8 A.Y.2012 - 13 2 BY ADOPTING THE DVO'S REPORT FOR CALCULATION OF COST OF ACQUISITION AS ON 01.04.1981. 6. ON THE FACTS AND CIRCUMSTANCE S OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS ERRED IN NOT ALLOWING DEDUCTION AMOUNTING TO RS. 1,69,00,500/ U/S 54B OF THE I.T. ACT, 1961. 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNE D ASSESSING OFFICER HAS ERRED IN ALLOWING DEDUCTION AMOUNTING TO RS. 4,64,321/ - INSTEAD OF RS. 10,25,400/ - AS CLAIMED BY THE ASSESSEE U/S. 54F OF THE I.T. ACT, 1961. 8. IT IS THEREFORE PRAYED THAT ASSESSMENT FRAMED U/S 143(3) R.W.S. 147 OF THE ACT MAY KINDLY BE QUASHED AND/OR ADDITION/DISALLOWANCE MADE BY ASSESSING OFFICER MAY PLEASE BE DELETED. 9. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE APPEAL. 3 . THE BRIEF FACTS OF T HE CASE ARE THAT AN AIR INFORMATION WAS RECEIVED TO THE FACT THAT THE ASSESSEE HAS ENTERED INTO HIGH VALUE FINANCIAL TRANSACTION I.E. SALE OF IMMOVABLE PROPERTY VALUE OF RS.7 ,72,87,000/ - DATED 18.10.2011 D URING THE YEAR UNDER CONSIDERATION. T HEREFORE, NOTICE U/S 148 OF THE ACT D ATED 18.03.2015 WAS ISSUED AND SERVED UPON THE ASSESSEE. IN PURSUANCE OF THE NOTICE , THE ASSESSEE FILED HIS RETURN OF INCOME ON 31.03.2014 SHOWING TOTAL INCOME AT RS.1,73,590/ - . ASSESSEE REQUESTED TO PROVI DE THE COPY OF REASONS RECORDED FOR THE REOPENING O F THE ASSESSMENT. THE COPY OF REASON RECORD ED WAS GIVEN TO THE ASSESSEE ON 31.07.2015. THEREAFTER, THE NOTICES U/S 143(2) & 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. ON VERIFICATION, IT WAS F OUND THAT THE ASSESSEE HAS SOLD THE IMMOVABLE P ROPERTY IN SUM OF RS.7,72,87,000/ - SITUATED AT MOJE GAM ADAJAN REVENUE SURVEY BLOCK NO.65/3, TPS 31 (ADAJAN) FP 125, AGRICULTURE LAND TALUKA CITY, SURAT. TH E INCOME HAS BEEN SHOWN IN THE RETURN OF INCOME. THE VALUATION OFFICER WAS APPOINTED WHO ASCERTAINED THE FAIR MARKET VALUE @ RS.35.89 PER SQ. MTR. X 7183 SQ. MTR. = RS.2,57,800/ - . ACCORDINGLY, THE NOTICE FOR RAISING THE ADDITION IN SUM OF RS.3,66,19,770/ - WAS GIVEN AND AFTER THE REPLY OF THE ASSESSEE, THE LONG TERM CAPITAL GAIN WAS ASSESSED TO THE TUNE OF RS. 3,71,53,607/ - . TOTAL INCOME OF THE ASSESSEE W AS ASSESSED TO THE TUNE OF RS.3,73,27,200/ - . FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE ITA NO.93 / SRT /201 8 A.Y.2012 - 13 3 CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE , THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL B EFORE US. 4. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. AT THE VERY OUTSET, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE AND WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW , THEREFORE, IN THE SAID CIRCUMSTANCES, THE ORDER OF THE CIT(A) IN QUESTION IS WRONG AND AGAINST LAW AND FACTS AND IS LIABLE TO BE SET ASIDE. HOWEVER, ON THE OT HER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. ON APPRAISAL OF THE ORDER OF THE CIT(A) DATED 05 . 10 .201 7 , WE NOTICED THAT THE CIT(A) DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE WITHOUT GIVING AN OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE. IT IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. A PROPER AND REASONABLE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE BEFORE THE DECIDING THE MATTER OF CONTROVERSY IN ACCORDANCE WITH LAW. THEREFORE, IN THE SAID CIR CUMSTANCES, WE ARE OF THE VIEW THAT THE ORDER OF THE CIT(A) IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A ) ON ALL THE ISSUES AND RESTORE THE MATTER BEFORE THE CIT(A) TO DECIDE THE MATTER AFRESH BY GIVI NG AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONO UN CE D IN THE OPEN COURT ON THIS 30 /09 /2019 SD/ - SD/ - ( O. P. MEENA ) (AMARJIT SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER / SURAT, DATED : 30 /09/ 2019/VIJAY PAL SINGH , SR.PS COPY OF ORDER SENT TO - ASSESSEE/ AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT