LATE SHRI DHAN SINGH BHATI L/H NEHA BHATI, Ajmer V. ITO, Ajmer

MA 178/JPR/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5438 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-03-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 22-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PB D VIHYKFKHZ IZRFKHZ
• Assessee Lawyers: AJAY SOMANICA SMT RO
• Keywords: Gift

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM M.A. NO. 178/JP/2016 ARISING OUT IF ITA NO. 94/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. LATE SHRI DHAN SI N GH BHATI, C/O AJAY SOMANI & CO., CHARTERED ACCOUNTANTS, 28,ASHOK MARG, ANA SAGAR LINK ROAD, AJMER. CUKE VS. THE INCOME TAX OFFICER, WARD 2(2), AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ABYPB 9085 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI AJAY SOMANI(CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT ROSHANTA MEENA(JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17.02.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 08/03/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICA TION SEEKING RECTIFICATION OF THE TRIBUNALS ORDER DATED 23 RD SEPTEMBER, 2016 PASSED IN ITA NO. 94/JP/2014 ON THE GROUND THAT THE ADDITIONAL GROUNDS RAISED BY TH E ASSESSEE HAVE NOT BEEN DECIDED. THE CLAIM OF THE ASSESSEE IS THAT HE FILE D THE FOLLOWING ADDITION GROUNDS BY WAY OF SPEED POST :- 1. THAT THE DIFFERENCE OF RS. 81,91,151/- IN CONSI DERATION RECEIVED (RS. 27,00,000/-)AND VALUE PRESENTLY ASSESSED BY SUB REG ISTRAR (RS. 1,08,91,151/-) IS IN THE NATURE OF DEEMED GIFT FROM THE APPELLANT TO HIS CHACHA (& FAMILY), WHICH NOT TRANSFER AS HELD IN CI T VS SHYAM NARAIN MEHROTRA 122 ITR 313 (CAL) ( AS PER SECTION 47 OF I NCOME TAX ACT, 1961) AND THUS NOT CHARGEABLE UNDER SECTION 45 AS T HE SALE DEED CLEARLY STATES THE INTENTION OF GIFT (ON PAGE 5) 2 MA NO. 178/JP/2016 LATE SHRI DHAN SINGH BHATI. 2. THAT INDEXATION OF (INDEX FACTOR 133) COST OF AC QUISITION DEDUCTED OR COMPUTATION OF CAPITAL GAIN OUGHT TO BE ALLOWED FRO M F.Y. 1985-86(I.E. THE YEAR WHEN THE PROPERTY WA ACQUIRED BY PREVIOUS OWNER-FATHER) INSTEAD OF INDEXATION ALLOWED FROM 1996-97 IN WHICH THE APPELLANTS ACQUIRED THE PROPERTY(ON DEATH OF FATHER) THE INDEXED COST OF ALLOWABLE AS DEDUCTION SHOULD B E RS. 87,63,97/- (=2345290*497/133) INSTEAD OF RS. 38,2,1699/- CIT V/S MANJULA J SHAH (2012)/204 TAXMAN 691 AND ARUN SHUNGLOO TRUST V/S CIT (2012) 18 TAXMAN 261 2. WE FIND THAT THE ABOVE GROUNDS ARE AVAILABLE ON RECORDS. HOWEVER, IT IS NOTICED THAT NONE OF THESE GROUNDS WERE BEFORE THE LD. CIT(A). LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN BRIEF. THE LD. COUNSEL HAS SUBMITTED THAT THE GROUND NO. 2 IS A LEGAL GROU ND WHICH COULD BE RAISED AT ANY STAGE. THE LD. DR OPPOSED THE SUBMISSIONS AND SUBM ITTED THAT, FIRSTLY, THE ASSESSEE DID NOT RAISE THIS GROUND BEFORE LD. CIT(A). HENCE , NOT MAINTAINABLE AND SECONDLY, WHAT THE ASSESSEE IS TRYING TO SEEK REVIEW OF THE O RDER, WHICH IS BEYOND THIS SCOPE OF THE PROVISIONS OF SECTION 254 OF THE ACT. UNDER THESE FACTS, HE PRAYED THAT THE APPLICATION BE DISMISSED WITH COST. HOWEVER, IN RE JOINDER THE LD. COUNSEL SUBMITTED THAT TECHNICALITY SHOULD NOT COME INTO THE WAY OF D ISPOSITION OF JUSTICE. HE SUBMITTED THAT IF A BENEFIT IS AVAILABLE TO THE ASS ESSEE, IF THE JUSTICE DEMANDS, SAME SHOULD BE GIVEN TO THE ASSESSEE. 3. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS SOUGHT TO BE RECTIFIED. WE FIND THAT GROUND NO. 1 IS ON FACTS WHICH WAS NOT RAISED BEFORE THE LD. CIT(A), S AME IS THEREFORE DISMISSED. GROUND NO. 2 IS IN RESPECT OF BENEFIT OF INDEXATION . AFTER CONSIDERING THE CONTENTION OF THE ASSESSEE, WE DEEM IT PROPER TO MODIFY THE OR DER DATED 23 RD SEPTEMBER, 2016. THEREFORE, PARA NO. 3.2 OF THE ORDER DATED 23/9/201 6 MAY BE READ AS UNDER: 3 MA NO. 178/JP/2016 LATE SHRI DHAN SINGH BHATI. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE MATER IAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. ADMITTEDLY, THIS ISSUE DOES NOT ARISE FORM THE IMPU GNED ORDER. IN EARLIER ROUND OF LITIGATION, LD. CIT(A) HAD DIRECTE D THE AO TO REVISE THE VALUE OF THE PROPERTY A AND WHEN REVISED BY THE I.G . STAMPS. THE AO IN PURSUANCE OF THAT ORDER, REVISED THE VALUE OF TH E PROPERTY. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE HAD NOT CHALLENGED THE ORDER DATED 28 TH MARCH, 2011. HENCE THE SUBJECT MATTER OF THE ASSE SSMENT WAS TO THE EXTENT OF VALUATION OF PROPERTY, AND NOT THE OW NERSHIP OF THE PROPERTY. BUT IT IS ALSO A SETTLED POSITION OF LAW THAT IF A PERSON IS NOT LIABLE FOR TAX, MERELY BECAUSE HE HAS NOT CLAIMED O THERWISE, THAT SHOULD NOT GIVE LICENCE TO THE ASSESSING AUTHORITY TO MAKE THE PERSON LIABLE FOR THE ENTIRE VALUE OF THE PROPERTY. THE A SSESSEE HAS NOT FILED COPY OF THE WILL DATED 26.09.1996. THEREFORE, IN TH E INTEREST OF JUSTICE, WE DEEM IT PROPER TO RESTORE THE ISSUE OF OWNERSHIP OF THE PROPERTY AND LIABILITY OF THE ASSESSEE, TO THE FILE OF THE A O FOR FRESH DECISION. IN THE EVENT THE AO FINDS THAT THE OWNERSHIP OF THE EN TIRE PROPERTY I.E. NANKI BHAWAN, AT PRAKASH ROAD, NAGRA, AJMER WAS BEQ UEATHED BY THE FATHER OF THE ASSESSEE IN FAVOUR OF THE ASSESSEE, H E WOULD DECIDE THE ISSUE ACCORDINGLY AS THE OWNER OF THE ENTIRE PROPER TY. HOWEVER, IN CASE HE FINDS OTHER- WISE IN TERMS OF THE WILL RELATED T O THIS PROPERTY, HE WOULD CONSIDER THE SAME AND DECIDED ACCORDINGLY. THE ASSESSING OFFICER IS FURTHER DIRECTED TO CONSID ER THE CLAIM OF INDEXATION OF THE ASSESSEE AS PER LAW. 4. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 08 /03/2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 08 /03/2017. POOJA/ 4 MA NO. 178/JP/2016 LATE SHRI DHAN SINGH BHATI. VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- LATE SHRI DHAN SINGH BHATI, JAIP UR. 2. THE RESPONDENT THE INCOME TAX OFFICER, WARD 2(2 ), AJMER. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (M.A NO. 178/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR