ITO 2(1), Ujjain V. Shri Santosh Agrawal Prop. M/s. Santosh Enterprises, Ujjain

ITA 989/Ind/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4289 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 16-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Difference of opinion; Change of opinion; Reassessment proceedings; Set aside
• Section: 143(3); 54B; 139(1); 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE HONBLE MANISH BORAD, ACCOUNTANT MEMBER AND BEFORE HONBLE MADHUMITA ROY, JUDICIAL MEMBER ITA NO.989/IND/2019 ASSESSMENT YEAR 2010-11 INCOME TAX OFFICER 2(1), UJJAIN : REVENUE V/S SHRI SANTOSH AGRAWAL, PRO. SANTOSH ENTERPRISES, 46, AZAD NAGAR, 1UJJAIN : ASSESSEE PAN : AESPA1841B REVENUE BY SHRI HARSHIT BARI, SR.DR ASSESSEE BY SHRI GIRISH AGRAWAL& MISS. NISHA LAHOTI, ARS DATE OF HEARING 0 9 .04 .2021 DATE OF PRONOUNCEMENT 20. . 0 5 . 202 1 O R D E R PER MADHUMITA ROY, J.M THE INSTANT APPEAL FILED BY THE REVENUE IS DIRECTE D AGAINST THE ORDER DATED 24.09.2019 PASSED BY LD. CIT(A, UJJAIN ARISING OUT OF THE ORDER DATED 14.12.2017 PASSED BY ITO-2(1), UJJ AIN U/S 143(3) SANTOSH AGRAWAL ITA NO.989/IND/2019 2 OF THE INCOME TAX ACT 1961(HEREINAFTER REFERRED TO AS ACT) FOR ASSESSMENT YEAR 2010-11. 2. AT THE TIME OF HEARING OF APPEAL LD. DR SUBMITTE D BEFORE US THAT THE ISSUE HAS RIGHTLY BEEN REOPENED BY THE LD. A.O U/S 147 OF THE ACT ON THE GROUND OF CALCULATION OF CAPITAL GAI N, WHEREIN THE CONSIDERATION OF THE SALE OF THE PROPERTY IN QUESTI ON WAS TAKEN LESS THAN THE GUIDELINE VALUE. ON THE BASIS OF SUCH INF ORMATION NOTICE U/S 148 OF THE ACT WAS ISSUED AND COMPLETED ASSESSM ENT UPON MAKING ADDITION OF RS11,01,028/- IN THE HANDS OF TH E APPELLANT. HE ULTIMATELY RELIED UPON THE ORDER PASSED BY LD. A .O. 3. ON THE OTHER HAND LD. COUNSEL APPEARING FOR THE ASSESSEE RELIED UPON THE ORDER PASSED BY LD. CIT(A). HE RAIS ED OBJECTION ON THE POINT OF MAINTAINABILITY OF THE REOPENING OF AS SESSMENT BY ISSUANCE OF NOTICE U/S 148 DATED 27.03.2017 WHICH W AS ADMITTEDLY ISSUED AFTER THE EXPIRY OF 4 YEARS FROM THE END OF ASSESSMENT YEAR ALLEGING LESS CALCULATION OF CAPITAL GAIN ARISING O N THE SALE OF PROPERTY. HOWEVER, THERE WAS NO MENTIONING OF ESCA PEMENT OF ASSESSMENT BY REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RY FOR THAT SANTOSH AGRAWAL ITA NO.989/IND/2019 3 ASSESSMENT IN THE NOTICE UNDER SECTION 148 OF THE ACT AS SUBMITTED BY THE LD. AR. SINCE THE SAID PRIMARY CONDITION AS STIPULATED UNDER THE STATUTORY PROVISION HAS NOT BEEN FULFILLED BY THE REVENUE WHILE REOPENING ASSESSMENT, THE ENTIRE PROCEEDING IS VOID AB-INITIO AND LIABLE TO BE SET ASIDE AS ALSO THE ARGUMENT ADVANCE D BY THE LD. AR. IT WAS FURTHER SUBMITTED BY THE LEARNED AR THAT TH E ASSESSMENT PROCEEDING UNDER SECTION 143(3) OF THE A CT WAS COMPLETED BY DISALLOWING THE CLAIM OF RS.7,07,009/- MADE UNDER SECTION 54B OF LONG-TERM CAPITAL GAIN ARISING OUT O F THE SALE OF PROPERTY AT SURVEY NO.119, VILLAGE: GOYALA KHUNDRA. HOWEVER, THE NOTICE UNDER SECTION 148 WAS ISSUED TO CALCULATE TH E CAPITAL GAIN ON THE SALE OF THE SAID PROPERTY AS THE SALE CONSIDERA TION WAS LESS THAN THE GUIDELINE VALUE WHICH TANTAMOUNT TO CHANGE OF O PINION WHEN THE TRANSACTION OF SALE OF PROPERTY AND THE LONG-TE RM CAPITAL GAIN ARISING THEREON HAS ALREADY BEEN EXAMINED AND THE C LAIM OF DEDUCTION UNDER SECTION 54B OF THE ACT HAS BEEN DIS ALLOWED IN THE PROCEEDING UNDER SECTION 143(3) OF THE ACT. IN SUPPORT OF HIS ARGUMENT HE HAS RELIED ON THE JU DICIAL PRONOUNCEMENTS IN THE FOLLOWING MATTER ; SANTOSH AGRAWAL ITA NO.989/IND/2019 4 (I) CIT V/S KELVINATOR INDIA LTD 320 ITR 561 (II) ITO V/S TECHSPAN INDIA (P) LTD (2018) 404 ITR 10(SC) (III) ASTEROIDS TRADING & INVESTMENT PVT. LTD V/S DCIT (2009) (IV) CITV/S USHA INTERNATIONAL LTD 348 ITR 484 (DE LHI) 4. WE HAVE HEARD THE RIVAL SUBMISSIONS MADE BY THE RESPECTIVE PARTIES. WE HAVE ALSO PERUSED THE RELEVANT MATERIA LS PLACED ON RECORD INCLUDING THE ORDER PASSED BY THE LD. A.O UN DER SECTION 148 OF THE ACT, ORIGINAL ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT AND IMPUGNED APPELLATE ORDER BEFORE US. 5. THE BRIEF FACTS RELATING TO THIS CASE IS THAT TH E LD. A.O REOPENED THE CASE OF THE APPELLANT ON THE GROUND TH AT CALCULATION OF THE CAPITAL GAIN IS ARISING OUT OF THE SALE OF PROP ERTY AT SURVEY NO.119, VILLAGE: GOYALA KHUNDRA, TEHSIL UJJAIN FOUN D LESS SINCE THE SALE CONSIDERATION WAS TAKEN LESS THAN THE GUIDELIN E VALUE. CONSEQUENTLY NOTICE U/S 148 OF THE ACT WAS ISSUED. THE REASSESSMENT WAS COMPLETED UPON MAKING ADDITION OF RS.11,01,028/- IN THE HANDS OF THE APPELLANT. IT A PPEARS THAT IN THE ORIGINAL ASSESSMENT ORDER THE LD. A.O HAD VERIFIED AND EXAMINED SANTOSH AGRAWAL ITA NO.989/IND/2019 5 THE FACTS AND DOCUMENTS AND ACCORDINGLY GIVEN ITS O PINION ON THE FACTS. IN FACT THE CLAIM OF EXEMPTION UNDER SECTION 54B OF THE ACT WAS DENIED BY THE LEARNED AO IN THE ORIGINAL ASSESS MENT PROCEEDING ON THE PREMISE THAT THE NEW ASSET BEING THE AGRICULTURE LAND WAS PURCHASED BY THE APPELLANT ON 22.03.2011 I .E. AFTER THE DATE OF FILING OF RETURN UNDER SECTION 139(1) OF TH E ACT. ULTIMATELY THE ISSUE WAS RESOLVED BY THE LEARNED CIT(A) IN FAV OUR OF THE ASSESSEE IN THE APPELLATE PROCEEDING. BUT IT APPEA RS THAT DURING THE REASSESSMENT PROCEEDING, ON THE SIMILAR ISSUE, THE LEARNED AO HAD GIVEN HIS DIFFERENT FINDINGS. THIS CLEARLY DEM ONSTRATES THAT THE MATTER DID CAME FOR DUE CONSIDERATION BEFORE THE LE ARNED AO AND WAS IN FACT CONSIDERED. WHEN DURING THE ORIGINAL A SSESSMENT PROCEEDING UPON CONSIDERING ALL ASPECT OF THE MATT ERS AND UPON PROPER APPLICATION OF MIND THE DETERMINATION OF AMO UNT OF TAXABLE INCOME WAS MADE AND THE TAX PAID THEREON, IN THE AB SENCE OF ANY ERROR AND/OR MISTAKE BEING FOUND MERELY FOR THE SAK E OF GIVING DIFFERENT OPINION THE LEARNED AO IS NOT PERMISSIBLE TO CHANGE THE EARLIER OPINION. NEITHER ANY NEW MATERIAL AND/OR I NFORMATION HAS BEEN BROUGHT BY THE LEARNED AO FOR REOPENING OF ASS ESSMENT. SANTOSH AGRAWAL ITA NO.989/IND/2019 6 6. WE HAVE FURTHER CONSIDERED THE JUDGMENT RELIED U PON BY THE LEARNED AR PARTICULARLY IN THE MATTER OF CIT V/S KE LVINATOR INDIA LTD, REPORTED IN 320 ITR 561. AFTER GOING THROUGH THE RATIO LAID DOWN IN THE SAID JUDGMENT WE ARE OF THE CONSIDERED OPINION THAT WHEN REOPENING HAS BEEN DONE ON THE SAME SET OF FAC TS/ DOCUMENTS AND/OR INFORMATION IS BY THE LD. AO IN THE INSTANT CASE THE SAME CANNOT BE INDULGED WHICH WOULD AMOUNT TO GIVE PREMI UM TO THE AUTHORITY EXERCISING QUASI-JUDICIAL FUNCTION TO TAK E BENEFIT OF ITS OWN WRONG. APART FROM THAT WHILE REOPENING NO ALLE GATION WAS MADE BY THE LEARNED AO OF FAILURE ON THE PART OF TH E ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RY FOR ASSESSMENT WHICH IS THE PRIMARY CONDITION TO BE FULFILLED FOR REOPENING OF ASSESSMENT BEYOND 4 YEARS FROM THE END OF THE RELEV ANT ASSESSMENT YEAR AS STIPULATED BY THE STATUTORY PROVISIONS, THE REOPENING CANNOT BE SAID TO BE JUSTIFIED AT ALL. THE SAME, IN OUR C ONSIDERED OPINION IS MERELY A CHANGE OF OPINION AND THEREFORE BAD IN LAW , VOID AB INITIO AND WITHOUT ANY JURISDICTION AND HENCE LIABLE TO BE QUASHED. THE JUDGMENT RELIED UPON BY LD. AR IN THE CASE O F LUCAS TVS LIMITED (2001) 249 ITR 306 (SUPRA) PASSED BY HON'BLE APEX COURT IS SANTOSH AGRAWAL ITA NO.989/IND/2019 7 SQUARELY APPLIES FOR THE INSTANT CASE WHICH WE FIND HAS BEEN DULY TAKEN CARE OF BY THE LD. CIT(A) WHILE QUASHING THE REASSESSMENT PROCEEDINGS INITIATED BY THE LD. A.O. THUS IN THE ABSENCE OF ANY NEW MATERIAL WHICH CAN LEAD TO REASSESSMENT PROCEED INGS BY THE LD. A.O PARTICULARLY WHEN THE ORIGINAL ASSESSMENT U /S 143(3) OF THE ACT WAS COMPLETED UPON DUE CONSIDERATION OF THE REL EVANT MATERIALS MADE AVAILABLE BY THE ASSESSEE FOR ADJUDICATION OF THE SAME ISSUE INVOLVED THEREIN, WE FIND NO JUSTIFICATION IN SUCH REASSESSMENT INITIATED BY LD. A.O WHICH HAS RIGHTLY BEEN CONSIDE RED IN ITS PROPER PERSPECTIVE BY LD. CIT(A) AND HOLDING THE REOPENING OF THE CASE INVALID IS JUST AND PROPER SO AS TO WARRANT INTERFE RENCE. THUS THE APPEAL OF THE REVENUE IS FOUND TO BE DEVOID OF ANY MERIT. HENCE THE ORDER PASSED IN AFFIRMATIVE I.E. IN FAVOUR OF THE A SSESSEE AND AGAINST THE REVENUE. 7. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED . THE ORDER PRONOUNCED IN THE OPEN COURT ON 20.05.2021 SANTOSH AGRAWAL ITA NO.989/IND/2019 8 SD/- SD/- (MANISH BORAD) (MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER / DATED : 20 TH MAY, 2021 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE