INCOME TAX OFFICER, WARD-4-3, JAIPUR V. SHRI GYAN CHAND SAINI, JAIPUR

MA 52/JPR/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7633 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-07-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 16-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C GUPTA
• Section: 254(2); 131

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM M.A NO. 52/JP/2020 (ARISING OUT OF ITA NO. 87/JP/2019) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 THE ITO, CIRCLE-3(1), JAIPUR. CUKE VS. SHRI GYAN CHAND SAINI DABI HARIYALI, NAGAL JAISA BOHRA, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AGBPS 2409 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI K.C. GUPTA (J.CIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (C.A.) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 03/07/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 07/07/2020 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. BY WAY OF THIS MISCELLANEOUS APPLICATION THE REVEN UE IS SEEKING RECALLING OF THE IMPUGNED ORDER DATED 25.11.2019 OF THIS TRIBUNAL. DUE TO PREVAILING COVID-19 PANDEMIC CONDITION THE HEARI NG OF THE APPEAL IS CONCLUDED THROUGH VIDEO CONFERENCE. M.A. NO. 52/JP/2020 ITO VS. SHRI GYAN CHAND SAINI 2 2. THE LD. DR HAS SUBMITTED THAT THE TRIBUNAL IN P ARA 5 OF THE IMPUGNED ORDER AS DELETED THE ADDITION MADE BY THE AO AND OBSERVED THAT WHEREAS THE ASSESSEE HAS DISCHARGED HIS PRIMAR ILY ONUS BY RELYING ON THE DOCUMENTS AND THE AO WAS NOT SATISFIED WITH THESE EVIDENCES THEN IT WAS INCUMBENT UPON THE AO TO CONDUCT FURTHE R ENQUIRY BY EXAMINING THE ORIGINAL OWNERS OF THE LAND WHO HAVE GIVEN THE POWER OF ATTORNEY IN FAVOUR OF THE ASSESSEE. HE HAS POINTED OUT THAT SINCE THE LAND IN QUESTION WERE SOLD BY THE ASSESSEE IN THE C APACITY OF POWER OF ATTORNEY HOLDER, THEREFORE, THE AO HAS ASSESSED THE INCOME IN THE HAND OF THE ASSESSEE WHO SOLD THE LAND. HE HAS FURTHER P OINTED OUT THAT THE OBSERVATION AND FINDING OF THE TRIBUNAL IS CONTRARY TO THE FACT OF THE CASE AS THE AO ISSUED SUMMONS TO THE OWNERS OF THE LAND WHO GAVE POWER OF ATTORNEY TO THE ASSESSEE BUT NONE HAS APPE ARED BEFORE THE AO. HE HAS REFERRED TO THE SUMMONS ISSUED BY THE AO U/S 131 OF THE ACT. THUS, THE LD. DR HAS SUBMITTED THAT NOT CONSID ERING OF THIS FACT AMOUNTS TO MISTAKE IN THE IMPUGNED ORDER BY THE TRI BUNAL ARE REQUIRES RECTIFICATION ACCORDINGLY, THE IMPUGNED ORDER MAY B E RECALLED FOR DECIDING THE SAME FRESH AFTER CONSIDERING THESE FAC TS. 3. ON THE OTHER HAND, LD. AR HAS SUBMITTED THAT THE AO HAS NOT MENTIONED ANYTHING IN THE ASSESSMENT ORDER ABOUT TH E ALLEGED M.A. NO. 52/JP/2020 ITO VS. SHRI GYAN CHAND SAINI 3 SUMMONS ISSUED TO THE OWNERS OF THE LAND. EVEN OTHE RWISE ONCE THE SUMMONS WERE SERVED UPON THE OWNERS OF THE LAND THE N IT SUPPORT THE CASE OF THE ASSESSEE AS THE AO HAS NOT BROUGHT ANYT HING CONTRARY BY CONDUCTING SUCH ENQUIRY. THE ORDER PASSED BY THE TR IBUNAL ON MERITS CANNOT BE REVIEWED OR REVERSED. THUS, THE LD. AR HA S SUBMITTED THAT THE MISC. APPLICATION FILED BY THE REVENUE IS MISUS E PROCESS OF LAW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER HAS HELD IN PARA 5 AS UNDER:- 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE TH AT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS SOLD THE LAND IN QUESTION VIDE SALE DEED DATED 14.08.2007 AS A POWER OF ATTORNEY HOLDER OF HANUMAN SAHAI, CHAUTHMAL, GYARSI LAL, PAC HURAM, SHANKAR LAL AND NANCHI LAL. AS PER THE DOCUMENTARY EVIDENCE IT IS CLEAR THAT THE ASSESSEE HAS EXECUTED THE SALE DE ED IN THE CAPACITY OF POWER OF ATTORNEY HOLDER AND NOT IN THE CAPACITY OF OWNER OF THE LAND. FURTHER, THE SALE DEED ALSO MENT IONS THAT THE SALE CONSIDERATION WAS RECEIVED BY THE OWNERS OF TH E LAND PRIOR TO THE DATE OF SALE, HENCE SO FAR AS THE POWER OF ATTO RNEY DATED 16.08.2005 AND SALE DEED DATED 14.08.2007 NOTHING C AN BE INFERRED THAT THE ASSESSEE HAS ACQUIRED THE LAND IN QUESTION AND SUBSEQUENTLY SOLD VIDE SALE DEED DATED 14.08.2007. HOWEVER, THE POWER OF ATTORNEY AND SALE DEED ARE NOT CONCLUS IVE PROOF OF M.A. NO. 52/JP/2020 ITO VS. SHRI GYAN CHAND SAINI 4 THE FACT THAT THE ASSESSEE HAS NOT PURCHASED THE LA ND IN QUESTION. ONCE THE ASSESSEE HAS DISCHARGED HIS PRIMARY ONUS B Y RELYING ON THESE DOCUMENTS AND THE AO WAS NOT SATISFIED WITH T HESE EVIDENCES, THEN IT WAS INCUMBENT UPON THE AO TO CON DUCT FURTHER ENQUIRY BY EXAMINING THE ORIGINAL OWNERS OF THE LAN D WHO HAVE GIVEN THE POWER OF ATTORNEY IN FAVOUR OF THE ASSESS EE. THE AO INSTEAD OF DISCHARGING HIS DUTY OF CONDUCTING THE E NQUIRY HAS ASKED THE ASSESSEE TO PRODUCE THESE PERSONS. FURTH ER, WHEN THIS IS A CASE OF SALE OF LAND BY EXECUTION OF SALE DEED IN THE CAPACITY OF POWER OF ATTORNEY HOLDER, THEN THE PROCEEDINGS S HOULD HAVE ALSO BEEN INITIATED IN CASE OF THESE ORIGINAL OWNER S OF THE LAND. THE AO FAILED TO CONDUCT THE REQUISITE ENQUIRY AND TO ASCERTAIN THE CORRECT FACTS FROM SUCH ENQUIRY BUT HAS SHIFTED THE BURDEN ON THE ASSESSEE TO PRODUCE THESE PERSONS. ACCORDINGLY ON THE PLAIN READING OF THESE DOCUMENTS WHEN IT CANNOT BE SAID T O BE A SALE BY THE ASSESSEE AS AN OWNER OF THE LAND, THEN IN TH E ABSENCE OF ANY FURTHER INVESTIGATION AND ENQUIRY CONDUCTED BY THE AO AND TO BRING ANY MATERIAL OR FACT TO ESTABLISH THAT THE AS SESSEE HAS INITIALLY ACQUIRED THE PROPERTY IN QUESTION AT THE TIME OF POWER OF ATTORNEY DATED 16.08.2005 AND SUBSEQUENTLY SOLD THE SAME VIDE SALE DEED DATED 14.08.2007 IN THE CAPACITY AND IN H IS RIGHT AS AN OWNER OF THE LAND. HENCE IN THE FACTS AND CIRCUMSTA NCES OF THE CASE, WHEN THE AO HAS FAILED TO CONTRADICT THE DOCU MENTARY EVIDENCE, THE ADDITION MADE BY THE AO IN THE HANDS OF THE ASSESSEE IS NOT WARRANTED. THE SAME IS DELETED. M.A. NO. 52/JP/2020 ITO VS. SHRI GYAN CHAND SAINI 5 IT IS CLEAR FROM THE FINDING OF THE FACT GIVEN BY T HE TRIBUNAL THAT THE ASSESSEE PRODUCED THE RELEVANT DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIM THAT HE HAS EXECUTED THE SALE DEEDS IN THE CA PACITY OF POWER OF ATTORNEY HOLDER OF THE LAND OWNERS NAMELY, HANUMAN SAHAI, CHAUTHMAL, GYARSI LAL, PACHURAM, SHANKAR LAL AND NA NCHI LAL. THE TRIBUNAL HAS GIVEN A FINDING OF FACT ON MERITS AFTE R ANALYZING THE DOCUMENTARY EVIDENCE. ON THE OTHER HAND, THE AO THO UGH DID NOT ACCEPT THE DOCUMENTARY EVIDENCE BUT ALSO NOT CONDUC TED ANY ENQUIRY AND PARTICULARLY BY EXAMINATION OF THE ORIGINAL LAN D OWNERS WHO HAVE GIVEN A POWER OF ATTORNEY IN FAVOUR OF THE ASSESSEE . THE ASSESSMENT ORDER IS SILENT ABOUT ENQUIRY CONDUCTED BY THE AO. NOW AFTER PASSING THE SAID ORDER OF THE TRIBUNAL THE AO IS COMING UP WITH A NEW STAND THAT THE ISSUED SUMMONS U/S 131 OF THE IT ACT TO TH E LAND OWNERS THAT BEING THE CASE AND NOTHING HAS COME OUT FROM THE AL LEGED ENQUIRY OR ATTEMPT MADE BY THE AO IT WOULD SUPPORT THE CASE OF THE ASSESSEE. THE SUMMONS ISSUED BY THE AO IF SERVED UPON THE LAND OW NERS THEN NON APPEARANCE OF THE LAND OWNERS WOULD NOT DISCHARGE T HE AO FROM CONDUCTING FURTHER ENQUIRY. EVEN OTHERWISE THE ASSE SSEE CANNOT BE BLAMED FOR NON APPEARANCE OF THE LAND OWNERS IN RES PONSE TO THE SUMMONS IF ANY ISSUED BY THE AO. THE AO IS NOT ALLO WED TO SETUP A NEW M.A. NO. 52/JP/2020 ITO VS. SHRI GYAN CHAND SAINI 6 CASE AFTER THE MATTER WAS DECIDED BY THE TRIBUNAL. THE ASSESSMENT ORDER IS COMPLETELY SILENT ABOUT THE ALLEGED SUMMON S ISSUED BY THE AO HENCE, THE TRIBUNAL DECIDED THE CASE BASED ON THE M ATERIAL AVAILABLE ON RECORD WHICH CANNOT BE RECALLED WITHOUT ANY SUBSTAN TIAL FACT OR MATERIAL RELEVANT FOR THE DISPOSAL OF THE CASE BROUGHT ON RE CORD. ACCORDINGLY, THE MATTER DECIDED ON MERITS AND BASED ON THE ANALYSIS OF FACT AND RECORD CANNOT BE REVERSED OR REVIEWED. EVEN OTHERWISE THE SCOPE OF SECTION 254(2) OF THE ACT IS VERY LIMITED AND CIRCUMSCRIBED AND DOES NOT GIVEN THE JURISDICTION TO THE TRIBUNAL TO RE-EVALUATE THE MATERIAL/EVIDENCE HENCE, THE MISC. APPLICATION FILED BY THE REVENUE D ESERVES DISMISSED. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DI SMISSED. IN ORDER PRONOUNCED IN THE OPEN COURT ON 07/07/2020 SD/- SD/- FOE FLAG ;KNO FOT; IKWY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 07/07/2020. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ITO, WARD-3(1), JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- SHRI GYAN CHAND SAINI, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) M.A. NO. 52/JP/2020 ITO VS. SHRI GYAN CHAND SAINI 7 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A. NO. 52/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR