SHRI BHAGWANDAS BAHETI, Neemuch V. THE ITO, Neemuch

ITA 94/IND/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5644 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 9 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-11-2018
• Assessment Year: 2006-2007
• Appeal Filed On: 28-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH DAF RIA
• Keywords: Sale consideration of property below Jantri Value; Depreciation; Opportunity of being heard; Set aside
• Section: 143(3); 50C

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.94/IND/2016 ASSESSMENT YEAR: 2006-07 BHAGWANDAS BAHETI S/O SHRI LAXMINARYAN BAHETI NEAR DASHAHRA MAIDAN, NEEMUCH / VS. ITO, 4(1), NEEMUCH ( APPELLANT ) ( RE VENUE) PAN: AAOPB9624R APPELLANT BY SHRI RAKESH DAF RIA , CA REVENUE BY SHRI RAJIV JAIN, SR. DR DATE OF HEARING: 26.11.2018 DATE OF PRONOUNCEMENT: 27.11.2018 / O R D E R PER MANISH BORAD, A.M: THIS APPEAL OF ASSESSEE PERTAINING TO A.Y. 2006-07 IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INC OME TAX(APPEALS), UJJAIN, (IN SHORT CIT(A)), DATED 30.10 .2015 WHICH IS ARISING OUT OF THE ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(HEREINAFTER CALLED AS THE ACT) FRAMED ON BHAGWANDAS BAHETI ITANO.94/IND/2016 2 24.12.2009 BY ITO, NEEMUCH. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE LD CIT HAS ERRED IN DISMISSING THE APPEAL W ITHOUT APPRECIATING THE FACTS OF THE CASE THAT ASSESSEE HA S MADE MANY TIMES REQUEST FOR KEEPING THE APPEAL IN ABEYANCE TI LL THE DECISION OF REVENUE BOARD WHICH HAS CRUCIAL IMPACT ON THE CA SE. 2. THE AO HAS ERRED MAKING ADDITIONS OF RS. 48,80,053/- ON A/C OF LONG TERM CAPITAL GAIN AS PER PROVISIONS OF SECTION 50-C AND LD CIT(A) HAS ERRED IN CONFIRMING THE SAME. APPELLANT HAS SOLD THE LAND ON 14.6.2005 AND RECEIVED SUM OF RS. 11.00,000/- AND EVENTS OCCURRED THEREAFTER IS NOT IN HIS KNOWLEDGE AND ORDER OF THE COLLECTOR OF STAMP CAME APPROX 20 MONTHS LATE F ROM THE DATE OF REGISTRATION. 3. THAT BUYER OF THE PROPERTY HAS FILED APPEAL AGAI NST THE JUDGMENT OF THE LD. COMMISSIONER BEFORE THE REVENUE BOARD AND THE JUDGMENT OF THE SAME IS STILL AWAITED. 4. THE BASIS OF VALUATION MADE BY THE STAMP AUTHORI TY IS PURELY BASED UPON PRESUMPTION AND SURMISES AND THE R E IS NO DIFFERENTIATION IN DISTANCE OF LAND FROM THE MAIN R OAD. FURTHER LD. COLLECTOR OF STAMP HAS VALUED THE COST OF GODOW N @ RS. 4,989/- PER SQ METER FOR 20 YEARS OLD GODOWN AND ALLOWED ON LY 10% DEPRECIATION FOR 20 YEARS. 5. THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY IS NOT CORRECT TO THE FACTS AND BEARS VARIOUS ANOMALY LIKE CONSTRUCTION COST OF 1 ST ST FLOOR IS TAKEN AT 4500/- PER SQ METER WHILE GROUND FLOOR COST IS TAKEN AT 4,989/- PER SQ METER. FURTHE R LD COLLECTOR OF STAMP FAILED TO EXPLAIN HOW HE DERIVED AMOUNT OF DE PRECIATION AT RS. 1,59,000/- . 6. THE LD. AO AND LD CIT HAS ERRED IN NOT CONSIDERI NG THE FACTS OF CONVERSION OF THE LAND INTO STOCK IN TRADE WITHOUT ANY BASIS. YOUR APPELLANT HAS CONVERTED THE SAID LAND INTO STOCK IN TRADE AND PLANNED FOR CONSTRUCTION SHOPS AND APPLIED TO RESPE CTIVE AGENCIES FOR NECESSARY PERMISSIONS, THEREFORE PROVISIONS OF SECTION 5O-C IS NOT APPLICABLE TO HIM. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE ORDER OF LD. CIT(A) IS EX-PARTE AND SUFFICIE NT OPPORTUNITY FOR HEARING WAS NOT PROVIDED. BHAGWANDAS BAHETI ITANO.94/IND/2016 3 3. HE ALSO SUBMITTED THAT ON THE VERY SAME ISSUE IN TH E CASE OF ASSESSEES BROTHER, NARAYANDAS BAHETI THE ORDER OF LD. CIT(A) IN THAT CASE WAS ALSO EX-PARTE AND COORDINATE BENCH VIDE ITANO. 24/IND/2016 DATED 12 TH JUNE, 2017 SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORED THE MAT TER TO THE FILE OF ASSESSING OFFICER TO DECIDE AFRESH. 4. LD. COUNSEL FOR THE ASSESSEE, THEREFORE, PRAYED T HAT THE ISSUES IN THE INSTANT CASE MAY ALSO BE SET ASIDE AND THE ORDER OF THE LD. CIT(A) RESTORED TO THE FILE OF ASSE SSING OFFICER FOR FRESH ADJUDICATION. 5. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (DR) RAISE D NO OBJECTION TO THE REQUEST OF SETTING ASIDE ALL THE I SSUES TO THE FILE OF ASSESSING OFFICER. 6. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE R ECORD PLACED BEFORE US. REQUEST MADE BY THE LD. COUNSEL FOR THE ASSESSEE FOR SETTING ASIDE THE ISSUES RAISED IN THIS AP PEAL TO THE FILE OF ASSESSING OFFICER, GOES UNOPPOSED BY THE DEPARTMENTAL REPRESENTATIVES(DR). WE FIND THAT SIMILAR ISSUES AS WELL AS THE FACTS CAME UP BEFORE COORDINATE BENCH IN THE CASE OF NARAYANDAS BAHETI (BROTHER OF ASSESSEE) RELATING TO THE APPLICATION OF PROVISIONS OF SECTION 50C OF THE ACT ON THE SALE OF PROPERTY JOINTLY OWNED BY THE ASSESSEE ALONG WITH MR. NARAYANDAS BAHETI. TRIBUNAL VIDE BHAGWANDAS BAHETI ITANO.94/IND/2016 4 ORDER DATED 12 TH JUNE 2017 IN ITANO.24/IND/2016 RESTORED THE ISSUES TO THE FILE OF ASSESSING OFFICER FOR DE N OVO ADJUDICATION. 7. WE THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, SIMILARITY OF THE ISSUES AND FACTS ARE OF THE CONS IDERED VIEW THAT THE ORDER OF THE LD. CIT(A) NEEDS TO BE SE T ASIDE AND THE ISSUES RAISED IN THIS APPEAL NEEDS TO BE RESTO RED TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION T O DECIDE THE SAME DE NOVO WITHOUT BEING PREJUDICED BY THE APPELLATE ORDER OR THE IMPUGNED ORDER PASSED BY THE ASSESSING OFFICER. NEEDLESS TO MENTION THAT ADEQUATE OPPORTUNITY OF BEING HEARD TO BE PROVIDED TO THE ASSESSEE. WE ALSO DI RECT THE ASSESSEE TO REMAIN COMPLIANT AND VIGILANT TO THE NOT ICE OF HEARING ISSUED BY THE ASSESSING OFFICER AND SHOULD NOT TO TAKE ANY ADJOURNMENT UNLESS OTHERWISE REQUIRED IN ABNORMAL CIRCUMSTANCES. THIS DIRECTION TO THE ASSESSEE IS ON ACCOUNT OF OUR OBSERVATION THAT HE DID NOT COMPLY T O THE NOTICE OF HEARING ISSUED BY LD. CIT(A) ON ELEVEN OCC ASIONS WHICH SHOWS THE CARELESS APPROACH OF THE ASSESSEE. WE ALSO DIRECT THE ASSESSING OFFICER NOT TO GIVE THE ASSE SSEE MORE THAN TWO ADJOURNMENTS AND IN CASE ASSESSEE DOES NOT APPEAR ON THE THIRD OCCASION, LD. ASSESSING OFFICER SH ALL BHAGWANDAS BAHETI ITANO.94/IND/2016 5 DECIDE THE ISSUES AS PER THE MERITS OF THE CASE AND BE ST OF HIS JUDGMENT. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 2 7 .11.2018. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 27/11/2018 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR