Niti Wadhawan, New Delhi V. DCIT, New Delhi

MA 60/DEL/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6587 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: misc
• Appeal Filed On: 15-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BANITA DEVI NAOREM
• Assessee Lawyers: Y K KAPOOR
• Keywords: Gift; Block assessment; Right to appeal

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH E DELHI ] BEFORE SHRI RAJPAL YADAV, JM & SHRI K. D. RA NJAN, AM MISC. APP. NO. 60 (DEL) OF 2011 [ IN I. T. [SS] APPEAL NO. 08 (DEL) OF 2007 ]. BLOCK ASSESSMENT PERIOD : 1/04/1997 TO 27/05/2003 . SMT. NITI WADHAWAN, DY. COMMISSIONER OF INCO ME-TAX, AG1/105D, VIKAS PURI, VS. C E N T R A L C I R C L E : 10, N E W D E L H I. N E W D E L H I. PAN/GIR NO. AAJPW3903D. ( APPLICANT ) ( RESPONDENT ) ASSESSEE BY : SHRI Y. K. KAPOOR, ADV.; DEPARTMENT BY : MS. BANITA DEVI NAOREM, SR. D.R.; O R D E R. PER K. D. RANJAN, AM : THIS MISC. APPLICATION BY THE ASSESSEE RELATES TO BLOCK ASSESSMENT PERIOD 1/04/1997 TO 27/05/2003 AND ARISES OUT OF THE ORDER OF THE TRIBU NAL DATED 30 TH JANUARY, 2009. 2. THE TRIBUNAL VIDE ORDER DATED 30 TH JANUARY, 2009 DISMISSED THE APPEAL FILED BY THE REVENUE. AT THE TIME OF HEARING OF THE APPEAL FILE D BY THE REVENUE IT WAS NOT BROUGHT TO THE NOTICE OF THE BENCH THAT THE APPEAL FILED BY THE AS SESSEE AGAINST THE ORDER OF THE LD. CIT (APPEALS) WAS STILL PENDING. DURING THE COURSE OF HEARING IT WAS BROUGHT TO THE NOTICE OF THE BENCH THAT AGAINST THE ORDER DATED 23 RD OCTOBER, 2006 PASSED BY THE LD. CIT (APPEALS)-II, NEW DELHI, THE ASSESSEE AS WELL AS THE REVENUE PREFERRE D APPEALS BEFORE THIS TRIBUNAL. IT HAS ALSO BEEN STATED THAT THE APPEAL OF THE ASSESSEE SMT. NITI WADHAWAN, BEING IT [SS] APPEAL NO. 242 (DEL) OF 2006 WAS ASSIGNED TO F- BENCH WHILE THE APPEAL OF THE REVENUE BEING IT [SS] APPEAL NO. 08 (DEL) OF 2008 WAS ASSIGNED TO E- BENCH. H E FURTHER SUBMITTED THAT ON 19 TH MARCH, 2008 THE APPEAL FILED BY THE ASSESSEE WAS DISMISSED ON ACCOUNT OF NON-APPEARANCE OF THE 2 MISC. APP. NO. 60 (DEL) OF 2011 AUTHORIZED REPRESENTATIVE. THE ASSESSEE MOVED MISC . APPLICATION NO. 645 (DEL) OF 2008 FOR RESTORATION OF THE APPEAL ON MERITS. THE LD. AR OF THE ASSESSEE FURTHER SUBMITTED THAT THE APPEAL OF THE ASSESSEE IS FIXED FOR HEARING ON 24 TH MAY, 2011. IT HAS BEEN SUBMITTED THAT IN A CASE W HERE THE ASSESSEE AND THE REVENUE, BOTH HAVE PREFERRED A PPEAL BEFORE THE TRIBUNAL, BOTH THE APPEALS SHOULD BE HEARD TOGETHER. THE LD. AR OF THE ASSESS EE, THEREFORE, SUBMITTED THAT THE ORDER DATED 30 TH JANUARY, 2009 PASSED BY THE TRIBUNAL IN IT [SS] AP PEAL NO. 08 (DEL) OF 2007 SHOULD BE RECALLED AND SHOULD BE HEARD TOGETHER WITH THE APPE AL FILED BY THE ASSESSEE, WHICH IS LISTED FOR HEARING ON 24 TH MAY, 2011. 3. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE FACTS STATED ABOVE, IT IS EVIDENT THAT THE ASSESSEE AS WELL AS THE REVENUE PREFERRED APPEALS AGAINST THE ORDER OF THE LD. CIT (APPEALS) DATED 23 RD OCTOBER, 2007. THE ISSUE INVOLVED RELATES TO LEVY OF CAPITAL GAINS IN RESPECT OF THE PROPERTY HELD JOINTLY WITH HER HUSBAND. THE LD. CIT (APPEALS) HAS DISMISSED THE GROUND RAISED BY TH E ASSESSEE THAT ADDITION ON ACCOUNT OF UNDISCLOSED INCOME MADE ARE NOT BASED ON MATERIAL F OUND AND SEIZED DURING THE COURSE OF THE SEARCH. THE LD. CIT (APPEALS) HAS HELD THAT THE PO RTION OF PROPERTY GIFTED BY THE HUSBAND OF THE ASSESSEE WILL BE TAXABLE IN THE HANDS OF THE ASSESS EE AND BALANCE HAS TO BE TAXED IN THE HANDS OF SHRI Y. C. WADHAWAN, THE HUSBAND OF THE ASSESSEE. T HE ASSESSEE AS WELL AS HER HUSBAND AGGRIEVED BY THE ORDER OF CIT(A) HAVE FILED APPEAL BEFORE THIS TRIBUNAL. THUS THE COMMON ISSUE IN BOTH THE APPEALS RELATES TO LEVY OF CAPITAL GAIN S IN RESPECT OF PROPERTY HELD BY THE ASSESSEE WITH HER HUSBAND. HONBLE SUPREME COURT IN THE CASE OF CST VS. VIJAY INTERNATIONAL UDYOG 152 ITR 111 (SC) HAS HELD THAT ON ACCOUNT OF MISTAKE OF THE TRIBUNAL IN NOT CLUBBING THE TWO APPEALS, THE STATUTORY RIGHT OF APPEAL OF ONE PARTY COULD NOT BE NEGATIVE. THIS WAS SO BECAUSE IT WAS A WELL- SETTLED PROPOSITION OF LAW THAT NO PARTY SHOULD SUF FER ON ACCOUNT OF MISTAKE OF THE COURT OR THE TRIBUNAL. TO MEET OUT THE JUSTICE TO THE PARTY AND OVERCOME THE DIFFICULTY ARISING IN THE CIRCUMSTANCES OF THE CASE, HONBLE SUPREME COURT DI RECTED THE TRIBUNAL TO HEAR BOTH THE APPEALS AFRESH ON THE SAME DATE AND DISPOSE OF THEM BY A CO MMON JUDGMENT. THIS DECISION HAS BEEN SUBSEQUENTLY FOLLOWED BY SEVERAL COURTS INCLUDING T HE DECISION OF HONBLE SUPREME COURT IN THE CASE OF SMT. THAKAMMA MATHEW VS. M. AZAMATHULLA KHA N JT 1993 (1) (SC) 35, 43. HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. BALWANT SINGH ARORA 180 ITR 400 (P & H) HAS HELD THAT WHERE POINT OF CONSIDERATION IN TWO A PPEALS, ONE BY THE ASSESSEE AND THE OTHER BY 3 MISC. APP. NO. 60 (DEL) OF 2011 THE REVENUE IS ONE AND THE SAME, IT WOULD BE JUST A ND PROPER THAT TWO APPEALS ARE HEARD AND DECIDED BY THE TRIBUNAL AT ONE AND THE SAME TIME AN D ARE DISPOSED OF BY A COMMON ORDER. IN THE INSTANT CASE WHEN THE APPEAL OF REVENUE WAS HEARD NEITHER THE ASSESSEE NOR THE REVENUE HAD POINTED OUT THAT THE APPEAL FILED BY THE ASSESSEE W AS PENDING IN WHICH COMMON ISSUE WAS INVOLVED. AS PER THE DIRECTIONS OF THE HONBLE SUP REME COURT, BOTH THE APPEALS WERE TO BE HEARD TOGETHER. SINCE THE APPEAL OF THE ASSESSEE IS PEND ING, THE APPEAL OF THE REVENUE DISMISSED BY THE TRIBUNAL HAS TO BE RECALLED AND TO BE HEARD TOGETHE R WITH THE APPEAL OF THE ASSESSEE. WE, THEREFORE, RECALL THE APPEAL FILED BY THE REVENUE. THE REGISTRY IS DIRECTED TO FIX THE APPEAL OF THE REVENUE ON THE SAME DATE ON WHICH THE APPEAL FILED BY THE ASSESSEE IS FIXED FOR HEARING. THE REGISTRY IS DIRECTED ACCORDINGLY. 4. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON : 10 TH JUNE, 2011. SD/- SD/- [ RAJPAL YADAV ] [ K. D. RAN JAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 10 TH JUNE, 2011 *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPLICANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REG ISTRAR, ITAT.