Shri Ram Narain Jindal, New Delhi V. ACIT, New Delhi

MA 268/DEL/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6621 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2004-2005
• Appeal Filed On: 19-11-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKASH DUBEY
• Keywords: Sale consideration of property below Jantri Value; Set aside
• Section: 50C

Judgement Text

1 M.A NO. 268/DEL/2020 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER M.A NO. 268/DEL/2020 IN ( I.T.A. NO. 321 TO 325/DEL/2014 A.Y 2008-09) RAM NARAIN JINDAL, 3083, MOHALL DASSAN, HAUZ QAZI, NEW DELHI AFVPJ7597R (APPLICANT) VS ADDL. COMMISSIONER OF INCOME-TAX, CIRCLE-16, NEW DELHI (RESPONDENT) APPLICANT BY SH. RAJIV SAXENA, ADV, MS. SUNANDANA SAXENA, ADV & SH. SHYAM SUNDAR, ADV RESPONDENT BY SH. PRAKASH DUBEY, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE IN RESPECT OF ORDER DATED 20/04/2017 PASSED BY THE TRIBUNAL. 2. THE LD. AR FILED A SUBMISSIONS WHICH READS AS UNDER:- THAT THE AFORESAID APPEALS WERE DISPOSED OFF ON 20-04-2017 BY ALLOWING ASSESSEES APPEAL IN ALL THESE YEARS AS MENTIONED IN PARA 21 OF THE ORDER OF THE HONBLE TRIBUNAL, WHICH FOR THE SAKE OF CONVENIENCE IS REPRODUCED HEREUNDER: 21. IN THE RESULT, ALL THE CAPTIONED APPEALS OF THE ASSESSEE ARE ALLOWED. DATE OF HEARING 26.03.2021 DATE OF PRONOUNCEMENT 15.04.2021 2 M.A NO. 268/DEL/2020 COPY OF THE ORDER OF THE HONBLE TRIBUNAL IS BEING SUBMITTED HEREWITH AS ANNEXURE-1 TO THIS APPLICATION. 2. IT IS SUBMITTED THAT THE HONBLE ITAT HAS DISPOSED OFF ALL THE APPEALS TOGETHER BY A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AS MENTIONED AT PARA 2 OF THE ORDER, BUT THE APPEAL FOR AY 2004-05 BEING THE FIRST ASSESSMENT YEAR IN ITA NO. 321/DEL/2014 WAS CONSIDERED FIRST. THE HONBLE ITAT IN PARA 11 DISCUSSED THE MERITS OF THE CASE AND AFTER NOTICING THE FACTS, THEY SET ASIDE THE ORDER OF CIT(A) FOR AY 2004-05. THE RELEVANT PARA OF THE ORDER OF THE HONBLE TRIBUNAL IS REPRODUCED HEREUNDER: 11. NOW, ON MERITS OF THE CASE, ADMITTEDLY THE SALE DEED HAD NOT BEEN REGISTERED AND NO STAMP DUTY WAS PAID IN RESPECT OF PLOT OF LANDS AGGREGATING TO 1585 SQ. YARDS SOLD DURING THE YEAR. THE ASSESSEE HAD ENTERED INTO AN IQRARNAMA WITH SHRI PURAN SINGH AND HAD AUTHORIZED HIM TO SELL THE LAND AT THE RATE OF RS. 300PER SQ. MTRS. THIS IQRARNAMA DATED 16/4/2003 WAS FOR ONE YEAR BUT WAS EXTENDED UPTO MARCH 2008 AS PER ENDORSEMENT CONTAINED AT PAGE 6 OF PAPER BOOK. THE ASSESSEE HAD MADE SUBMISSIONS BEFORE LD. CIT(A) IN PENALTY PROCEEDINGS WHEREIN, IT WAS EXPLAINED THAT THE ASSESSEE COULD NOT LEGALLY EXECUTE REGISTERED DOCUMENT FOR SALE AS REGISTRATION WAS PROHIBITED. FROM THE SAID SUBMISSIONS, IT IS EVIDENT THAT NO REGISTRATION OF THE SALE DEED WAS MADE AND, THEREFORE THERE WAS NO QUESTION OF VALUATION BEING MADE UNDER THE STAMP ACT. UNDER SUCH CIRCUMSTANCES SECTION 50C COULD NOT BE ATTRACTED. THE ASSESSING OFFICER, AFTER MAKING BACK CALCULATION DETERMINED THE CIRCLE RATE. THIS ACTION CANNOT BE COUNTENANCED IN LAW BECAUSE SECTION 50C CAN BE APPLIED ONLY WITH REFERENCE TO THE PROPERTY WHICH HAS BEEN REGISTERED AND STAMP DUTY HAS BEEN PAID. UNDER SUCH CIRCUMSTANCES THE ADDITION MADE BY THE ASSESSING OFFICER BY SUBSTITUTION OF THE VALUATION AS PER DERIVED CIRCLE RATES WAS NOT JUSTIFIED. ADMITTEDLY, THERE WAS NO INCRIMINATING MATERIAL FOUND FROM ASSESSEE WHICH COULD JUSTIFY SUBSTITUTION OF SALE 3 M.A NO. 268/DEL/2020 CONSIDERATION AS DECLARED BY ASSESSEE. W E. THEREFORE, SET ASIDE THE ORDER OF CIT(A) FOR ASSESSMENT YEAR 2004-05. 3. IT IS SUBMITTED THAT SINCE THE APPEAL BEFORE THE HONBLE TRIBUNAL WAS DISPOSED OFF, AS SUCH, THE ASSESSEE APPROACHED THE LOWER AUTHORITIES FOR SEEKING APPEAL EFFECT WHICH HAS NOT YET BEEN GRANTED FOR THE REASON THAT LOWER AUTHORITIES ARE CONFUSED WITH THE TERM SET ASIDE THE ORDER OF CIT(A). IT IS SUBMITTED THAT ON ACCOUNT OF THE AFORESAID TERM USED IN THE ORDER, LOWER AUTHORITIES ARE NOT GRANTING APPEAL EFFECT TO THE ORDER OF THE HONBLE TRIBUNAL AND ACCORDINGLY, THE ASSETS ATTACHED AGAINST THE DEMAND RAISED IN PURSUANCE TO THE ORDER OF ASSESSMENT IS NOT BEING RELEASED TO THE ASSESSEE. 4. IT IS SUBMITTED THAT I AM A SENIOR CITIZEN AGED NEARING 80 YEARS AND UNABLE TO RUN AROUND TO EXPLAIN THE WORDS SET ASIDE MEANS QUASHING THE ASSESSMENT AS THERE IS NO DIRECTION OF THE HONBLE ITAT FOR FRESH ASSESSMENT AND CLEARLY APPEALS WERE ALLOWED. INFACT, THE AUTHORITIES BELOW ARE UNABLE TO READ THE COMPLETE PARA WHILE DECIDING THE APPEAL. IN THE SAME PARA, THE HONBLE TRIBUNAL HAS CLEARLY OBSERVED THAT FROM THE SAID SUBMISSIONS, IT IS EVIDENT THAT NO REGISTRATION OF THE SALE DEED WAS MADE AND, THEREFORE THERE WAS NO QUESTION OF VALUATION BEING MADE UNDER THE STAMP ACT. UNDER SUCH CIRCUMSTANCES SECTION 50C COULD NOT BE ATTRACTED. THE ASSESSING OFFICER, AFTER MAKING BACK CALCULATION DETERMINED THE CIRCLE RATE. THIS ACTION CANNOT BE COUNTENANCED IN LAW BECAUSE SECTION 50C CAN BE APPLIED ONLY WITH REFERENCE TO THE PROPERTY WHICH HAS BEEN REGISTERED AND STAMP DUTY HAS BEEN PAID. UNDER SUCH CIRCUMSTANCES THE ADDITION MADE BY THE ASSESSING OFFICER BY SUBSTITUTION OF THE VALUATION AS PER DERIVED CIRCLE RATES WAS NOT JUSTIFIED. ADMITTEDLY, THERE WAS NO INCRIMINATING MATERIAL FOUND FROM ASSESSEE WHICH COULD JUSTIFY SUBSTITUTION OF SALE CONSIDERATION AS DECLARED BY ASSESSEE. THE AFORESAID FINDING IS SUCCEEDED BY THE CONCLUDING STATEMENT THAT WE. THEREFORE, SET ASIDE THE ORDER OF CIT(A) FOR ASSESSMENT YEAR 2004-05. WHICH CLEARLY INDICATE THAT THE ORDER OF LEARNED CIT(A) HAS BEEN OVERTURNED. IT IS 4 M.A NO. 268/DEL/2020 SUBMITTED THAT HONBLE TRIBUNAL HAS NOT REMANDED BACK THE ORDER OR HAS SET ASIDE FOR STATISTICAL PURPOSES, BUT HAS ALLOWED THE APPEAL, AND THERE IS NO AMBIGUITY IN THE ORDER. IN-FACT, THE TERM SET ASIDE HAS BEEN DEFINED TO MEAN: I. AS PER THE ESSENTIAL LAW DICTIONARY, 2008 EDITION, SET ASIDE MEANS: TO VACATE, ANNUL, OR REVERSE A JUDGMENT, ORDER, OR PROCEEDINGS. II. AS PER OXFORD DICTIONARY OF LAW SETTING ASIDE MEANS: AN ORDER OF A COURT CANCELLING OR MAKING VOID SOME OTHER ORDER OR JUDGMENT OR SOME STEP TAKEN BY A PARTY IN THE ACTION. III. AS PER A DICTIONARY OF MODERN LEGAL USAGE , SECOND EDITION, SET ASIDE MEANS: SET ASIDE AND VACATE ARE SYNONYMOUSLY USED TO DENOTE AN APPELLATE COURTS WIPING CLEAN THE JUDGMENT SLATE. THE EFFECT IS TO NULLIFY THE PREVIOUS DECISION, USUALLY OF A LOWER COURT, BUT NOT NECESSARILY TO DICTATE A CONTRARY RESULT IN FURTHER PROCEEDINGS. 5. HOWEVER, REVENUE AUTHORITIES, ARE ERRONEOUSLY CONFUSED WITH THE TERM SET ASIDE THE ORDER OF CIT(A) AND HENCE ARE NOT GIVING EFFECT TO THE ORDER OF THE HONBLE TRIBUNAL. 6. FROM THE PERUSAL OF THE DECISION, THERE IS NO DOUBT LEFT THAT APPEAL OF THE ASSESSEE IS ALLOWED AND ORDER OF THE CIT(A) IS QUASHED AND SO ADDITION IS NOT CALLED FOR AS CONFIRMED BY THE BECAUSE THE SAME WAS SET ASIDE BUT THE LOWER AUTHORITIES WERE UNABLE TO UNDERSTAND AND ASSESSEE HAS TO SEEK INDULGENCE OF HIGHER ADMINISTRATIVE AUTHORITIES BY FILING COMPLAINT IN CPGRAM WHO 5 M.A NO. 268/DEL/2020 DIRECTED TO SEEK CLARIFICATION OF THE ORDER FROM HONBLE ITAT. RELEVANT REMARKS ARE REPRODUCED AS UNDER: IN THIS CONNECTION IT IS SUBMITTED THAT, VIDE LETTER NO. ACIT/CC- 20/2019/20/264 DATED 28-4-2019 ASSESSEE WAS REQUESTED TO CONTACT OFFICE OF CIT(A)-27, NEW DELHI. AS SEEN FROM THE ORDER OF ITAT THERE IS NO PENDENCY ON PART OF AO AS ORDER OF CIT(A) WAS SET ASIDE. CONSIDERING THE ASSESSEE IS FACING CONFUSION REGARDING THIS, OFFICE HAS WRITTEN TO HONBLE ITAT VIDE LETTER NO. F.NO. ACIT/CC-20/2020-21/24 DATED 24-06-2020 TO SEEK FURTHER CLARIFY ON THE NATURE OF JUDGMENT. SUBSEQUENT TO THE REPLY OF ITAT FURTHER ACTION WILL BE TAKEN. HOWEVER, ASSESSEE IS REQUESTED TO CONTACT CONCERNED BENCH FOR FURTHER CLARIFICATION. IN VIEW OF THE ABOVE THE CPGRAM MAY BE TREATED AS DISPOSED OFF. 7 . IN SUCH FACTUAL BACKGROUND, IT IS SUBMITTED THAT THE TERM SET ASIDE IN THE INSTANT MATTER BE CLARIFIED AS QUASHED. THE LOWER AUTHORITIES HAVE IGNORED THAT THE HONBLE ITAT AT THE END OF THEIR ORDER AT PARA 21 OF THE ITAT ORDER, HAVE OBSERVED AS UNDER: 21. IN THE RESULT, ALL THE CAPTIONED APPEALS OF THE ASSESSEE ARE ALLOWED. 8. IT IS HUMBLY REQUESTED THAT AT THE FAG END OF MY LIFE THE PROCESS OF CLARIFICATION MAY BE TAKEN ON OUT OF TURN BASIS AS MY ASSETS ARE STILL LYING WITH THE DEPARTMENT AGAINST THE OUTSTANDING DEMAND WHICH IS FRIVOLOUS AS HONBLE ITAT HAS ALREADY QUASHED THE DEMAND BY SETTING ASIDE THE ORDER OF THE CIT(A). 9. IT IS, THEREFORE, HUMBLY PRAYED THAT SUITABLE DIRECTIONS BE GIVEN THAT THERE IS NO DEMAND LEFT IN AY 2004-05 AS ON MERITS THE APPEAL OF THE ASSESSEE IS ALLOWED BECAUSE ORDER OF THE CIT(A) IS SET ASIDE MEANING THEREBY THE SAME WAS QUASHED. 6 M.A NO. 268/DEL/2020 10. IT IS OUT OF CONTEXT BUT RELEVANT THAT IN ALL THESE YEARS NO INCRIMINATING MATERIAL FOUND AND SO ALL OTHER ASSESSMENTS WERE QUASHED AND REVENUES APPEAL BEFORE HONBLE DELHI HIGH COURT WERE ALSO DISMISSED. HOWEVER, DUE TO NON ALLOTMENT OF PAN, RETURN FOR THE YEAR IN CONCERN WAS NOT FILED HENCE, APPEAL WAS ALLOWED ON MERITS IT IS MOST HUMBLY PRAYED THAT THIS ISSUE OF CLARIFICATION MAY KINDLY BE TAKEN UP ON URGENT BASIS AS ALSO REQUESTED BY THE CPGRAM AS MENTIONED ABOVE. THE LD. AR ACCORDINGLY SUBMITTED THAT NECESSARY ORDER MAY KINDLY BE PASSED. 3. THE LD. DR ON THE OTHER HAND RELIED UPON THE ORDER OF THE TRIBUNAL AND OPPOSED THE MISC. APPLICATION. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT THERE IS AN APPARENT MISTAKE WHILE GIVING THE FINDINGS IN RESPECT OF ITA NO. 321/DEL/2014 FOR ASSESSMENT YEAR 2004-05. THEREFORE, WE ARE MODIFYING THE SAID PARAGRAPH NO. 11 OF THE ORDER DATED 20/04/2017 AND THE SAME IS DIRECTED TO BE READ AS UNDER:- 11. NOW, ON MERITS OF THE CASE, ADMITTEDLY THE SALE DEED HAD NOT BEEN REGISTERED AND NO STAMP DUTY WAS PAID IN RESPECT OF PLOT OF LANDS AGGREGATING TO 1585 SQ. YDS., SOLD DURING THE YEAR. THE ASSESSEE HAD ENTERED INTO AN IKRAMAMA WITH SHRI PURAN SINGH AND HAD AUTHORIZED HIM TO SELL THE LAND AT THE RATE OF RS.300/- PER SQ.MTR. THIS IKRAMAMA DATED 16.04.2003, WAS FOR ONE YEAR BUT WAS EXTENDED UP TO MARCH, 2008 AS PER ENDORSEMENTS CONTAINED AT PAGE 6 OF PAPER BOOK. THE ASSESSEE HAD MADE SUBMISSIONS BEFORE LD. CIT(A) IN PENALTY PROCEEDINGS, WHEREIN, IT WAS EXPLAINED THAT THE ASSESSEE COULD NOT LEGALLY EXECUTE REGISTERED DOCUMENT FOR SALE AS REGISTRATION WAS PROHIBITED. FROM THE SAID SUBMISSIONS, IT IS EVIDENT THAT NO REGISTRATION OF THE SALE DEED WAS MADE AND, THEREFORE, THERE WAS NO QUESTION OF VALUATION BEING 7 M.A NO. 268/DEL/2020 MADE UNDER THE STAMP ACT. UNDER SUCH CIRCUMSTANCES, SECTION 50C COULD NOT BE ATTRACTED. THE ASSESSING OFFICER, AFTER MAKING BACK CALCULATION, DETERMINED THE CIRCLE RATE. THIS-ACTION CANNOT BE COUNTENANCED IN LAW BECAUSE SECTION 50C CAN BE APPLIED ONLY WITH REFERENCE TO THE PROPERTY WHICH HAS BEEN REGISTERED AND STAMP DUTY HAS BEEN PAID. UNDER SUCH CIRCUMSTANCES, THE ADDITION MADE BY THE ASSESSING OFFICER BY SUBSTITUTION OF THE VALUATION AS PER DERIVED CIRCLE RATE WAS NOT JUSTIFIED. ADMITTEDLY, THERE WAS NO OTHER MATERIAL FOUND FROM ASSESSEE WHICH COULD JUSTIFY SUBSTITUTION OF SALE CONSIDERATION AS DECLARED BY ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION FOR ASSESSMENT YEAR 2004- 05. THE APPEAL BEING ITA NO. 321/DEL/2014 OF THE ASSESSEE IS ALLOWED ACCORDINGLY. 5. IN RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT IN PRESENCE OF BOTH THE PARTIES ON 15 TH DAY OF APRIL, 2021 . SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 15/04/2021 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 8 M.A NO. 268/DEL/2020 DATE OF DICTATION 26.03.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 26.03.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 15.04.2021 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 15.04.2021 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 15.04.2021 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 15.04.2021 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 15.04.2021 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 15.04.2021 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK