SHRI KRISHAN KUMAR GUPTA, Udaipur V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE, JHUNJHUNU

MA 2/JPR/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 9445 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 01-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHRAWAN KR GUPTA
• Keywords: Additional evidence; Set aside
• Section: 54F; 254(2)

Judgement Text

avk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES “A”, JAIPUR Jh lanhi x®lkÃa] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM M.A. No. 02/JP/2021 (Arising out of vk;dj vihy la-@ITA No. 453/JP/2019) Assessment Year: 2013-14 Shri Krishan Kumar Gupta, Swaroop Vihar, Sector-11, Udaipur. cuke Vs. A.C.I.T., Circle, Jhunjhunu. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ACIPG 4123 C vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Shrawan Kr Gupta (Adv) jktLo dh vksj ls@ Revenue by :Shri A.S. Nehra (Addl.CIT) lquokbZ dh rkjh[k@ Date of Hearing : 04/08/2021 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 02/09/2021 vkns'k@ ORDER PER: SANDEEP GOSAIN, J.M. This Misc. Application has been filed by the assessee against the order passed by the Coordinate Bench of the ITAT Jaipur dated 13/08/2020 in ITA No. 453/JP/2019 for A.Y. 2013-14 whereby the Coordinate Bench of the ITAT had set aside the matter to the record to the ld. CIT(A) to give the finding on all the issue and grounds and to consider the additional evidences filed before us. 2. The hearing of this M.A. was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic. 3. In the Misc. Application, the assessee has submitted as under MA 02/JP/2021_ Krishan Kr Gupta Vs ACIT 2 1. That the above appeal for the assessment year 2013-14 was decided by this Hon’ble Bench along vide a order dated 10.08.2020 in ITA No. 453/JP/2019 in the appeal filed by the assessee for assessment year 2013-14. A copy of the order dated 10/08/2020 is enclosed here with for a ready reference. 2. That in the above appeal there is only one issue of disallowance of Rs.35,68,959/- u/s54F . In the above appeal the ld. AO has disallowed the claim of the assessee u/s 54F on the four grounds vide page 5 of this Honble ITAT. Before the ld. CIT(A) we have filed our detailed WS vide PB30-36. And the ld. CIT(A) has also reproduced the same at page 4-9 of his order. Thus ld. CIT(A) has considered all four grounds vide para 7.2 page 10 and on three grounds of issue he has accepted our contentions and has denied our claim only one ground of issue vide para 7.3 and 7.4 page 10-11 of his order. And page 6-7 of the Honble Bench order. And on this grounds of issue on which the ld. CIT(A) has denied our claim we have also filed some additional evidences and Alternatively prayed to direct to the ld. AO to verify the same if any doubt. And the ld. DR has also stated that these documents have not filed before the Assessing Officer vide last two line at page 4 of the Honble ITAT order. 3. That against the order of the ld. CIT(A) we have filed the appeal not by the Revenue. 4. That the Honble bench has decided the matter by holding that “ Since, the Since, the ld. CIT(A) has not discussed the other grounds which the AO has recorded in the assessment order along with this one which is considered by the ld. CIT(A) and further the assessee has now produced the additional evidence in support of the claim that he has not acquired the flat in question as such there is no violation of condition prescribed U/s 54F of the Act MA 02/JP/2021_ Krishan Kr Gupta Vs ACIT 3 therefore, in the facts and circumstances of the case we set aside the matter to the record of the ld. CIT(A) to considered the additional evidence filed by the assessee and thereafter give a finding on all the issues and grounds which were raised by the AO while denying the deduction U/s 54F of the Act. Needless to say the assessee was granted one more opportunity of hearing before passing fresh order.” 5. That, on perusal of the above said order of Hon’ble ITAT dated 13/08/2020, it is very clear the Honble Bench has restored all the four Grounds of issue to the ld. CIT(A) , while before the Honble Bench there was only one Grounds of issue which is to be decided i.e whether the appellant assessee had two house property or not, and against three grounds of issue the revenue has not filed appeal or not challenged before the honble ITAT. When there was no issue on the rest three grounds of issue has been raised by the ld. DR and no appeal against those issues, then how the Honble Bench setaside the matter to the ld. CIT(A), on these three issue which have not been decided against the assessee. As we clearly brought this point before the Honble Bench also vide page 2 of our WS before your honor. 6. That on the additional evidences the matter has also been set- aside to the ld. CIT(A), whereas the same was to be set-aside or restored to the back to the ld. Assessing Officer not to the ld. CIT(A) as per the general practice and arguments of both the ld. A/R and ld. D/R. 7. Thus considering the above, it is submitted that by mistake the grounds of issue which were not before the Honble Bench were considered and set-aside wrongly and also the matter has been set-aside to the ld. CIT(A) by mistake in place of ld. Assessing Officer. MA 02/JP/2021_ Krishan Kr Gupta Vs ACIT 4 8. That the above mistakes are apparent from record and rectifiable as per law under section 254(2) of the Income Tax Act. In this respect, we have to submit that consideration of a Ground of issue which have not been raised by appositive parties, constitute a mistake, rectifiable u/s 254(2) of the Act. 9. Under the above facts and circumstances of this case, we request the Hon’ble bench to kindly rectify the mistake by making suitable rectification or by recalling this part of the subjected ITAT order and oblige. 4. On the other hand, the ld. DR has relied on the order of the Tribunal. 5. We have heard the rival contentions of both the parties and perused the material available on record. From the record, we noticed that during the course of hearing and on record it is found that the ld A/R of the assessee in his WS dated 20.07.2020 at page-2 in para 2.1 and at page 3 para 2.3 submitted as under: “2.1 Before the ld. CIT(A) we have filed detailed WS, facts, circumstances and legal potion on all four issues vide our WS (PB30-36) also 4 to 9 of CIT(A) order. On perusal of the order of the ld.CIT(A) it is clear that the ld. CIT(A) had considered and satisfied on the issue ii) to iv) and not given any against findings or has not commented any things adverse on our above WS and legal position, it means he was satisfied. The ld. CIT(A) has confirmed the disallowance only on one issue (which is also partly accepted) as he has only stated that “ in the balance sheet entry “Flat” purchase at Ahmedabad Rs.12,57,600/- is evident. The appellant had 2 house property at material time. The appellant has not furnished any positive evidence to show that it was only booking amount.” Thus now there is only one issue is remained before the honble Bench to decide that whether the amount given against the Flat is only booking amount or it is to be proved by the assessee that he was having flat at Ahmedabad or not or only booking amount. MA 02/JP/2021_ Krishan Kr Gupta Vs ACIT 5 2.3 Now we are producing herewith the booking form, ledger account and affidavit of the assessee. These are an additional evidence and for that we are filling a separate application u/r 29A. Because the ld. AO as well as the ld. CIT(A) has never asked to prove the same. Hence if the Honble bench still having any doubt the ld. AO may kindly be directed to verify the same whether still any flat is possessed by the assessee at Ahmedabad or not and direct to delete the addition. “ 6. From perusal of the order of the ld. CIT(A) at page 10 para 7.2 to 7.4, we are of the view that the contents of the assessee is correct that the before us the only issue for consideration was that whether the amount given against the Flat is only booking amount or that the assessee was having flat at Ahmedabad or not. In this regard, the assessee had filed additional evidence u/r 29A of the ITAT Rules, 1963. Thus, after careful perusal of the record, contents of the Misc. Application, submissions of assessee and the order of the ld. CIT(A), we are of the view that during the appellate proceedings before us assessee had produced additional evidences u/r 29 of the ITAT Rules in support of the claim that he had not acquired the flat in question as such there is no violation of condition prescribed U/s 54F of the Act. According to the assessee, it was truly agreed that in view of the fact that additional evidences were filed by the assessee, therefore, the matter was to be restored to the A.O. on this particular issue but inadvertently, the Bench had restored the matter to the file of ld. CIT(A) for deciding all the issues afresh. Therefore, considering the facts and circumstances of the case, MA 02/JP/2021_ Krishan Kr Gupta Vs ACIT 6 we modify the earlier order of the Coordinate Bench and direct for restoration of the matter to the record of the A.O. to consider the additional evidences filed by the assessee and decide the matter afresh only on the issue regarding the flat at Ahmedabad while deciding the deduction U/s 54F of the Act needless to say the assessee shall be granted opportunity of hearing before passing fresh order. 7. In the result, this Misc Application of the assessee is disposed off with the above direction. Order pronounced in the open court on 02 nd September, 2021. Sd/- Sd/- ¼foØe flag ;kno½ ¼lanhi x®lkÃa½ (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 02/09/2021 *Ranjan vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. vihykFkhZ@The Appellant- Shri Krishan Kumar Gupta, Udaipur. 2. izR;FkhZ@ The Respondent- The A.C.I.T., Circle, Jhunjhunu. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr¼vihy½@The CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (MA No. 02/JP/2021) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar