ITO, Ward 2, Panchkula V. Ms. Malika Mundrey Saini, Panchkula

ITA 967/CHANDI/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6626 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 12-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGHSR
• Keywords: Reason to believe
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 967/CHD/2017 ASSESSMENT YEAR: 2008-09 THE ITO, VS M/S MALIKA MUNDREY SAINI, WARD 2, H.NO. 133, SECTOR 6, PANCHKULA. PANCHKULA. PAN NO. AAXPM2333F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANJIT SINGH,SR.DR RESPONDENT BY : SHRI ASHOK GOYAL, CA DATE OF HEARING : 01.11.2017 DATE OF PRONOUNCEMENT : 17.11.2017 ORDER PER DIVA SINGH,JM THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE ASSAILING THE CORRECTNESS OF THE ORDER DATED 27.01.2017 OF LD. CIT(APPE ALS) CHANDIGARH PERTAINING TO 2008-09 ASSESSMENT YEAR ON TH E FOLLOWING GROUNDS : 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD CIT(A) HAS ERRED BY DELETING THE ADDITION OF RS. 1, 83,90524/- AS ASSESSEE'S SHARE ON ACCOUNT OF PROFIT GENERATED FRO M SALE OF PROPERTY AT INDUSTRIAL PLOT NO.8, PHASE-1, INDUSTRIAL AREA, CHA NDIGARH HAVING L/6 TH SHARE IN THE PROPERTY. 2. THE LD. AR SHRI ASHOK GOYAL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE POINT AT ISSUE IS FULLY COVERED IN ASSE SSEE'S FAVOUR BY VIRTUE OF THE FACT THAT THE SAID ISSUE HAD BEEN CONSIDERE D BY THE ITAT VIDE ORDER DATED 21.12.2016 IN ITA 765/CHD/2015 IN THE CASE OF A CO- OWNER NAMELY RAJINDER KAUR V ACIT PERTAINING TO THE VE RY SAME ASSESSMENT YEAR WHEREIN ON SIMILAR REASONING, RE-OPENING HAD BEEN RESORTED TO BY THE AO. THE SAID ORDER, IT WAS SUBMITTED , HAS BEEN FOLLOWED BY THE CIT(A) AND THE ITAT HAD QUASHED THE RE -OPENING. COPY OF THE SAID ORDER WAS FILED IN THE COURT. ITA 967/CHD/2017 A.Y. 2008-09 PAGE 2 OF 3 3. THE LD. DR SUBMITTED THAT THOUGH THE CIT(A) HAS FOLLOWED THE ORDER OF THE ITAT FOR THIS SPECIFIC PIECE OF LAND IN THE CASE OF A CO-OWNER, HOWEVER, RELIANCE IS PLACED UPON THE ASSESSMENT ORDER. 4. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATERIA L AVAILABLE ON RECORD. THE ASSESSEE IN THE FACTS OF THE PR ESENT CASE, ALONGWITH OTHER CO-OWNERS HAD SOLD A PROPERTY AT INDUS TRIAL PLOT NO. 8, PHASE-I INDUSTRIAL AREA, CHANDIGARH FOR AN AMOUNT OF RS. 22,00,00,000/- IN WHICH SHE HAD 1/6 TH SHARE. THE AO IN THE COURSE OF ASSESSMENT PROCEEDINGS ALSO IN THE PRESENT CASE REFERRE D THE MATTER TO THE DVO TO ASCERTAIN THE VALUE OF THE ASSET AS ON 01.0 4.1981. BASED UPON THE SAME, RATE OF LAND WAS TAKEN AT RS. 511.38 PER SQ. YARD AND THE COST OF CONSTRUCTION WAS TAKEN AT RS. 250/- FOR CALC ULATING CAPITAL GAINS AFTER OVER-RULING THE OBJECTIONS OF THE ASSESSEE. 4.1 IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE ALSO CHALLENGED THE RE-OPENING AND THE ADDITIONS ON MERIT BEFORE THE CIT(A) WH O PROCEEDED TO CONSIDER THE ISSUE IN THE FOLLOWING MANNER : 5.4 THE MATTER WAS HEARD, BY THE HON'BLE ITAT, CHA NDIGARH AND THE APPEAL IN ONE OF THE CO-OWNER IN THE CASE OF SMT. R AJINDER KAUR WAS ALLOWED BY HON'BLE ITAT WITH THE FOLLOWING OBSERVATIONS: '13. CONSIDERING THE ABOVE DISCUSSION, IT IS CLEAR THAT THERE WAS NO BASIS OR MATERIAL ON RECORD TO CALCULATE THE VALUE OF LAN D @RS, 1000/- PER SQ.YD AND OF THE COST OF CONSTRUCTION OF RS. 100/- PER SQ.FT. AS IS NOTED IN THE REASONS. THERE IS NO MATERIAL, WHAT TO SAY OF TANGIBLE MATER IAL AVAILABLE ON RECORD TO JUSTIFY RE-OPENING OF THE ASSESSMENT. THE ASSESSING OFFICER MERELY ON ASSUMPTION, PRESUMPTION, RECORDING VAGUE AND NON-EX ISTING REASONS, RECORDED THE REASONS FOR RE-OPENING OF THE ASSESSME NT WHICH ARE NOT SUFFICIENT TO VALIDATE THE RE-OPENING OF THE ASSESSMENT IN THE MATTER. THUS, THERE IS NO REASON TO BELIEVE WITH THE ASSESS ING OFFICER TO ASSUME THE JURISDICTION UNDER SECTION 148 OF THE INCOME TAX AC T. 13(I) CONSIDERING THE ABOVE DISCUSSION, WE ARE OF T HE VIEW THAT REASONS RECORDED UNDER SECTION 148 OF THE ACT REFLECT AS ARBITRARY U SE OF POWER CONFERRED, UNDER SECTION 147 OF THE ACT. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND QUASH THE RE-OPENING OF THE A SSESSMENT UNDER SECTION 147/148 OF THE INCOME TAX ACT, THEREFORE, THERE IS NO NEED TO CONSIDER OTHER GROUNDS OF APPEAL ON MERIT BECAUSE THEY ARE LEFT FO R ACADEMIC DISCUSSION ONLY. RESULTANTLY ALL ADDITIONS WOULD BE DELETED.' RESPECTFULLY FOLLOWING THE DECISION OF HON'BLE ITAT , CHANDIGARH IN THE APPEAL OF CO-OWNER CASE, IT IS EVIDENT THAT REOPENING IN SUCH A SITUATION, THE NOTICE U/S 148 AND ORDER OF REASSESSMENT U/S 147 IS LIABLE TO BE QUASHED. HENCE, THE ADDITIONAL GROUND OF APPEAL TAKEN BY THE APPELLANT IS ALLOWED. AS THE REASSESSMENT ORDER HAS BEEN QUASHED, THE OTHER GROU NDS OF APPEAL TAKEN BY THE APPELLANT BECOME INFRUCTUOUS. 4.2 IN THE AFOREMENTIONED PECULIAR FACTS AND CIRCUMSTANC ES IN THE ABSENCE OF ANY CHANGE IN THE MATERIAL FACTS, WE FIND NO GOO D REASON TO INTERFERE WITH THE CONCLUSION ARRIVED AT. BEING SATISFIED WITH THE ITA 967/CHD/2017 A.Y. 2008-09 PAGE 3 OF 3 REASONS AND CONCLUSION, THE DEPARTMENTAL GROUND IS REJE CTED AND APPEAL OF THE DEPARTMENT IS DISMISSED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH NOVEMBER,2017. SD/- SD/- (ANNAPURNA GUPTA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.