ACIT, Chandigarh V. Chandigarh Housing Board, Chandigarh

ITA 974/CHANDI/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80991 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-11-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 04-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R. SOOD, ACCOUNTANT MEMBER ITA NO. 974/CHD/2013 ASSESSMENT YEARS : 2007-08 A.C.I.T. CIRCLE 1(1) V CHANDIGARH HOUSING BOARD CHANDIGARH 8, JAN MARG, SECTOR 9 CHANDIGARH AAALC 0132H (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI MANJIT SINGH RESPONDENT BY: S/SHRI RAVI SHANKAR & ROHI T KAURA DATE OF HEARING 17.11.2014 DATE OF PRONOUNCEMENT 19.11 .2014 O R D E R PER T.R. SOOD, A.M THIS APPEAL IS DIRECTED AGAINST THE ORDER OF LD CIT (A), CHANDIGARH DATED 17.7.2013. 2. IN THIS APPEAL THE REVENUE HAS RAISED THE FOLLOW ING GROUNDS: 1 THE ORDER OF THE LD. CIT(A) IS ERRONEOUS AND CON TRARY TO FACTS AND LAW. 2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADD ITION OF RS. 1,97,28,435/- WHICH WAS MADE BY THE ASSESSING OFFIC ER ON ACCOUNT OF ACCRUED INTEREST ON THE FUNDS RELATION TO CONVER SION FEE IGNORING THAT. 2.1 THE ASSESSEE HAS FAILED TO ESTABLISH BEYOND DOU BT THAT THERE WAS PRINCIPAL AGENT RELATIONSHIP BETWEEN CHANDIGA RH ADMINISTRATION AND IT. 2.2 CHANDIGARH HOUSING BOARD IS AN INDEPENDENT ENTI TY HAVING THE STATUS OF ARTIFICIAL JUDICIAL PERSON UNDER THE IT ACT. 3 THAT THE LD. CIT(A) HAS COMES ADMITTING ADDITIONA L EVIDENCE AS IT HAD RELIED UPON SOME DOCUMENTS FILED BY THE A BEFORE IT, WHICH WERE NEITHER FILED BEFORE THE ASSESSING OFFIC ER DURING ASSESSMENT PROCEEDINGS NOR THE LD. CIT(A) SENT IT T O THE ASSESSING OFFICER FOR COMMENTS AS PER RULE 46A OF I T RULES BEFORE ADMITTING THE SAME. 3 AFTER HEARING BOTH THE PARTIES WE FIND THAT THIS ISSUE HAS TRAVELED TO THE TRIBUNAL EARLIER ALSO AND THE MATTE R WAS SET 2 ASIDE TO THE FILE OF LD. CIT(A) FOR RECONSIDERATION . DURING FRESH PROCEEDINGS THE ASSESSEE FILED A COPY OF NOTIFICATI ON NO. 28/8/51-UTFI(3-2005)/6658 DATED 19.9.2005. 4 AFTER CONSIDERING THIS NOTIFICATION AND OTHER CON TENTIONS, THE LD. CIT(A) DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE. 5 BEFORE US, THE LD. DR FOR THE REVENUE MAINLY CONT ENDED THAT THE TRIBUNAL HAS GIVEN SPECIFIC DIRECTION THAT OPPORTUNITY SHOULD BE GIVEN TO BOTH THE PARTIES. THE LD. CIT(A ) ADMITTED THE FRESH EVIDENCE IN THE FORM SAID NOTIFICATION AN D NO OPPORTUNITY WAS GIVEN TO THE ASSESSING OFFICER. TH EREFORE THE MATTER REQUIRES REEXAMINATION OR ALTERNATELY RELIEF COULD NOT HAVE BEEN GIVEN WITHOUT AFFORDING OPPORTUNITY TO TH E DEPARTMENT. 6 ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE ADMITTED THAT NO OPPORTUNITY HAS BEEN GIVEN TO THE DEPARTMENT AND THEREFORE HE HAS NO OBJECTION IF THE MATTER IS REMANDED TO THE FILE OF LD. CIT(A). 7 AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND T HAT THE LD. CIT(A) HAS HIMSELF REPRODUCED OPERATING PARA OF ORDER OF THE TRIBUNAL IN ITAS NO. 1075 & 1198/CHD/2010 WHICH READS AS UNDER: WE HAVE HEARD BOTH THE PARTIES AND CONSIDERED THEI R SUBMISSIONS. PERUSAL OF PARA 34 OF THE APPELLATE ORDER PASSED BY THE LD. CIT(A) SHOWS THAT A LETTER DATED 29 TH OCT 2009 WAS FILED BY THE ASSESSEE BEFORE HER IN WHICH DETAILS OF FDRS RELATING TO CON VERSION OF INDUSTRIAL PLOTS INTO COMMERCIAL PLOTS WERE GIVEN AS PER WHICH FDRS FOR A SUM OF RS. 54,68,48,520/- WERE TAKEN BY THE ASSESSEE. THE AFORESAID LETTER WAS PERCEIVED BY THE LD. CIT(A ) AS SUPPORTING THE CLAIM OF THE ASSESSEE THAT IT WAS AN AGENT OF T HE CHANDIGARH ADMINISTRATION IN THIS BEHALF. MERE FURNISHING OF DETAILS OF FDRS OR INTEREST THEREON IS NOT, IN OUR VIEW, SUFFICIENT TO ESTABLISH PRINCIPAL AGENT RELATIONSHIP. THE LD. CIT(A) HAS N OT REFERRED TO ANY DOCUMENT TO SU8PPORT HER FINDING EXCEPT THE LET TER REFERRED TO ABOVE. ACCORDING TO HER, THE ASSESSING OFFICER HAS NOT DEMOLISHED THE CLAIM OF THE ASSESSEE THAT IT WAS ACTING AS AGE NT OF THE CHANDIGARH ADMINISTRATION. IT WAS THE ASSESSEE WHO WAS CLAIMING TO BE AN AGENT OF THE CHANDIGARH ADMINISTRATION AND THEREFORE THE BURDEN LAY ON IT TO PROVE IT. THERE IS NO REFERENC E TO ANY SUCH EVIDENCE IN THE ENTIRE ORDER OF THE LD. CIT(A). PR INCIPAL AGENT 3 RELATIONSHIP CANNOT BE ACCEPTED UNLESS RELEVANT EVI DENCE IS BROUGHT ON RECORD TO ESTABLISH SUCH A RELATIONSHIP. MERE ASSERTION THAT THE ASSESSEE WAS ACTING AS AGENT OF THE CHANDI GARH ADMINISTRATION IS NOT SUFFICIENT. IN THIS VIEW OF THE MATTER, THE ORDER PASSED BY THE LD. CIT(A) IN THIS BEHALF IS SE T ASIDE AND THE MATTER IS RESTORED TO HIM FOR A FRESH DECISION IN THE MATTER IN CONFORMITY WITH LAW AFTER GIVING REASONABLE OPPO RTUNITY OF HEARING TO BOTH THE PARTIES. GROUND NO. 1 IS TREATED AS ALLOWED WITH THE AFORESAID OBSERVATIONS. FROM THE HIGHLIGHTED PORTION, IT BECOMES CLEAR THAT SPECIFIC DIRECTION WAS GIVEN TO DECIDE THE ISSUE AFRESH AFTE R GIVING OPPORTUNITY TO BOTH THE PARTIES. THEREFORE WE SET ASIDE THE ORDER OF LD. CIT(A) AND REMIT THE MATTER BACK TO H IS FILE WITH SPECIFIC DIRECTION THAT THE ASSESSING OFFICER SHOUL D BE GIVEN OPPORTUNITY TO CANVASS THE VIEW OF THE DEPARTMENT A ND ISSUE SHOULD BE DECIDED ONLY AFTER CONSIDERING THE SUBMI SSIONS OF BOTH THE PARTIES. 8. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19.11.2014 SD/- SD/- (BHAVNESH SAINI) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19.11.2014 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR