SMT. BHARTI GAJARIA, Jaipur V. ITO, Jaipur

MA 91/JPR/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5241 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 15-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEENA JEPH JCIT DHK
• Keywords: Capital asset; Opportunity of being heard; Additional evidence; Cost of acquisition; Revised return
• Section: 54

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 DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ MA NO.91/JP/16 (ARISING OUT F ITA NO. 708/JP/2012) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 THE ITO, WARD 6(3), JAIPUR CUKE VS. SMT. BHARTI GAJARIA, O-8, ASHOK MARG, C-SCHEME, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AHOPG 7018 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. NEENA JEPH (J CIT ) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 02.12.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 16/01/2017. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE AGAINST THE ORDER PASSED BY THE CO-ORDINATE BENCH IN ITA NO . 708/JP/12 DATED 11.08.2015 WHERE THE APPEAL OF REVENUE WAS PARTLY A LLOWED AND THE ISSUE WAS SET ASIDE TO THE FILE OF AO TO BE CONSIDERED DENOVO . 2. THE LD AR FIRSTLY DRAWN OUR REFERENCE TO THE FIN DINGS OF THE CO-ORDINATE BENCH, WHICH IS THE SUBJECT MATTER OF PRESENT APPLI CATION, WHICH IS AS UNDER: 2.6 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. WE FIND FROM THE RECORDS THAT THE ASSESSEE HAS NOT PRODUCED THE ORIGINAL SALE AGREEMENTS ENTERED BETWE EN THE PARTIES BEFORE THE AO. THE ASSESSEE HAS ALSO NOT DISCLOSE D CAPITAL GAINS IN THE RETURN AS WELL AS IN REVISED RETURN. THE AO GOT IN FORMATION FROM AIR THAT MA NO. 91/JP/16 ARISING OUT OF ITA NO. 708/JP/2012 ITO, WARD 6(3), JAIPUR VS. SMT. BHARTI GAJARIA, JAI PUR 2 IT WAS AN IMMOVABLE PROPERTY SOLD BY THE ASSESSEE A ND ON THAT BASIS, THE AO ASKED THE ASSESSEE TO GIVE PARTICULARS OF PROPER TY SOLD AND CAPITAL GAINS EARNED ON IT. THE ASSESSEE SUBMITTED PARTIA L EVIDENCES BEFORE THE AO AND CLAIMED THE CAPITAL GAINS IN CASE OF THESE IMMOVABLE PROPERTY TRANSACTIONS SHOWING INCOME AT NIL. HOWEVER, THE AO WAS NOT SUPPOSED TO ENTERTAIN THE ASSESSEES CLAIM BY RELYI NG ON DECISION OF HONBLE APEX COURT IN CASE OF GOETZE INDIA LTD. VS. CIT(SUPRA). THE CIT(A) HAS COTERMINOUS POWER AND WHATEVER ADDITIONAL EVID ENCES SUBMITTED BY THE ASSESSEE BEFORE HIM HAD NOT BEEN ADJUDICATED PROPER PERSPECTIVE AND IN LEGAL FRAMEWORK AS NO APPLICATION FOR FILING OF ADDITIONAL EVIDENCE HAD BEEN REFERRED BY HIM AND NO FINDING HAD BEEN GI VEN BY THE LD. CIT(A) THAT THESE EVIDENCES ARE REQUIRED TO DECIDE THE BA SIC CAUSE OF THE ASSESSEE. THEREFORE IN THE INTEREST OF JUSTICE, W E SET ASIDE THE ISSUE TO THE FILE OF THE AO TO DECIDE IT DE NOVO BY PROVIDI NG REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. THE LD AR SUBMITTED THAT CERTAIN OBSERVATIONS OF THIS HONBLE BENCH IN THE ABOVEMENTIONED ORDER ARE CONTRARY TO THE ACTUAL FACTS AND CIRCUMSTANCES OF THE CASE AND ARE BASED UPON WRONG APPRECIATION O F FACTS AND THUS, REFLECT A MISTAKE APPARENT ON THE FACE OF THE RECORD. THEREF ORE, THIS MISCELLANEOUS APPLICATION IS PRESENTED BEFORE THIS HONBLE BENCH SEEKING RECTIFICATION OF THE ABOVE MENTIONED ORDER DATED 11.08.2015 ON THE FOLLO WING GROUNDS: (I) BECAUSE THE ABOVE OBSERVATIONS ARE BASED ON WRO NG APPRECIATION OF FACTS OF THE CASE. (II) BECAUSE THE CAPITAL GAIN WAS DULY DISCLOSED BY THE ASSESSEE IN THE RETURN OF INCOME AS NIL WHICH IS APPARENT FROM A PERUSAL O F COMPUTATION OF INCOME FILED BY THE ASSESSEE. HOWEVER, IT HAS BEE N OBSERVED BY THE HONBLE BENCH THAT THE ASSESSEE HAS NOT DISCLOSED THE CAPITAL GAIN IN THE RETURN AS WELL AS REVISED RETURN, WHICH IS COM PLETELY CONTRARY TO THE ACTUAL FACTS OF THE CASE. (III) BECAUSE NO ADDITIONAL EVIDENCE WHATSOEVER HAD BEEN SUBMITTED BY THE ASSESSEE BEFORE HE LD. CIT(A) U/R 46A OF IT RULES 1 961, WHEREAS, THE HONBLE BENCH HAS OBSERVED THAT WHATEVER ADDITION AL EVIDENCES SUBMITTED BY THE ASSESSEE BEFORE HIM HAD NOT BEEN ADJUDICATED PROPER MA NO. 91/JP/16 ARISING OUT OF ITA NO. 708/JP/2012 ITO, WARD 6(3), JAIPUR VS. SMT. BHARTI GAJARIA, JAI PUR 3 PERSPECTIVE AND IN LEGAL FRAMEWORK AS NO APPLICATI ON FOR FILING OF ADDITIONAL EVIDENCE HAD BEEN REFERRED BY HIM AND N O FINDING HAD BEEN GIVEN BY THE LD. CIT(A) THAT THESE EVIDENCES ARE R EQUIRED TO DECIDE THE BASIC CAUSE OF THE ASSESSEE. SINCE NO ADDITIONAL EVIDENCE WAS SUBMITTED BEFORE THE LD. CIT(A), THE SAID OBSERVATI ONS OF THE HONBLE BENCH BECOME INFRUCTUOUS AND CONSTITUTE A MISTAKE A PPARENT FROM RECORD. (IV) BECAUSE APART FROM THE OBSERVATIONS REPRODUCED ABOVE, NO OTHER REASON HAS BEEN ASSIGNED FOR PARTLY ALLOWING THE APPEAL OF DEPARTMENT AND SETTING ASIDE THE ISSUE TO THE FILE OF LD. AO. THEREFORE, IN LIGHT OF THE MISTAKES APPARENT FROM RECORD IN THE ORDER OF THIS HONBLE BENCH DATED 11.08.2015 AS POINTED OUT ABOVE , IT IS HUMBLY PRAYED THAT THE SAID ORDER MAY PLEASE BE RECTIFIED AND REH EARD AFTER RECTIFYING THE MISTAKES AS POINTED OUT IN THIS APPLICATION. 4. THE LD DR IS HEARD WHO HAS SUBMITTED THAT THE OR DER PASSED BY THE COORDINATE BENCH HAS BEEN PASSED AFTER TAKING INTO CONSIDERATIONS ALL THE RELEVANT FACTS AND THE SUBJECT PETITION IS THEREFOR E NOT MAINTAINABLE. 5. IN ORDER TO APPRECIATE THE RIVAL CONTENTIONS, IT WOULD BE RELEVANT TO GO THROUGH THE ORDER OF THE COORDINATE BENCH. BEFORE THE COORDINATE BENCH, THE REVENUE HAS CHALLENGED THE ACTION OF THE LD. CIT(A) IN ALLOWING THE INDEXED COST OF ACQUISITION AT RS. 31,19,050/- IGNORING THE FOLL OWING VITAL FACTS: (A) THE PHOTO COPY OF THE SALE AGREEMENT FILED BY T HE ASSESSEE WAS UNDATED, UNREGISTERED AND UN-WITNESSED ONE, WHICH WAS NOT LEGALLY ENFORCEABLE AND THE ASSESSEE DID NO T PRODUCE THE ORIGINAL SALE AGREEMENT DESPITE SPECIFIC REQUIREMEN T AND OPPORTUNITY GIVEN. (B) THE REGISTERED SALE DEED DATED 2-11-1997 SPECIF IES THAT THE ACTUAL PHYSICAL POSSESSION WAS HANDED OVER ONLY ON 28-1- MA NO. 91/JP/16 ARISING OUT OF ITA NO. 708/JP/2012 ITO, WARD 6(3), JAIPUR VS. SMT. BHARTI GAJARIA, JAI PUR 4 1997 AFTER RECEIPT OF THE FULL CONSIDERATION, MEANI NG THEREBY THAT THE EFFECTIVE AND ACTUAL PHYSICAL POSSESSION WAS HA NDED OVER BY THE SELLER TO THE PURCHASER ONLY ON 28-1-1997. THE REGISTERED SALE DEED DATED 28-11-1997 CLEARLY SPECIFIES THAT THE AMOUNT OF RS. 40,000/- PAID BY T HE BUYER IN MAY, 1980 WAS A LOAN AND THE SAME HAS BEEN ADJUSTED ON 2 8-11-1997 TOWARDS THE SALE CONSIDERATION AND THE ASSESSEE HAS MADE THE PAYMENT OF RS. 4,55,000/- THROUGH CHEQUE NO. 384890 DATED 27- 11-1997 AND RS. 4,95,500/- THROUGH CHEQUE NO. 38488 9 DATED 27- 11-1997. (D) FOR ANY IMMOVABLE PROPERTY TO BE TRANSFERRED UN DER THE TRANSFER OF PROPERTY ACT, THERE SHOULD BE ACTUA L DELIVERY OF POSSESSION OF THE PROPERTY AND THE AGREEMENT FOR TR ANSFER OF TITLE OF THE PROPERTY SHOULD BE REGISTERED AND ONLY ON RE GISTRATION OF THE AGREEMENT TO SELL DOES THE OWNERSHIP OF THE PROPERT Y GETS TRANSFERRED IN THE EYES OF LAW IN VIEW OF THE PROVI SIONS OF SECTION 54 OF THE TRANSFER OF PROPERTY ACT, SECTION 17 AND 23 OF THE INDIAN REGISTRATION ACT. IN ASSESSEE'S CASE, THE REGISTERE D SALE DEED DATED 28 TH AND 29 TH NOV.1997 IS THE CLEAR EVIDENCE TO SHOW THAT THE ENTIRE SALE CONSIDERATION WAS PAID ON 28 TH / 29 TH NOV. 1997 AND ACTUAL AND EFFECTIVE POSSESSION OF THE PROPERTY WAS HANDED OVER THE BUYER BY THE SELLER ONLY AFTER RECEIPT OF THE E NTIRE SALE CONSIDERATION AS CLEARLY SPELT OUT IN THE REGISTERE D SALE DEED. (II) REJECTING THE AOS PLEA THAT IN VIEW OF DECISI ON OF HON'BLE SUPREME COURT IN THE CASE OF GOETZE INDIA LTD. VS. CIT, 284 ITR 323, THE ASSESSEE COULD NOT CLAIM DEDUCTION U/S 48 WITHOUT FILING A REVISED RETURN ON THE GROUND THAT THIS PRO POSITION DOES NOT IMPINGE UPON THE POWER OF APPELLATE AUTHORITIES. 5.1 THE COORDINATE BENCH THEREAFTER CONSIDERED THE FACTUAL ASPECT OF THE MATTER AND IN PARA 2.1 OF ITS ORDER HAS STATED THAT AS TO INDEXED COST OF ACQUISITION AND INDEXED COST OF IMPROVEMENT, THE AS SESSEE HAD FILED A RETURN ON 22.07.2009 WHERE THE ASSESSEE HAD NOT MADE ANY SUCH CLAIM. THE PLEA OF THE ASSESSEE WAS NOT ACCEPTED BY THE AO AS THE ASS ESSEE HAS NOT SHOWN ANY MA NO. 91/JP/16 ARISING OUT OF ITA NO. 708/JP/2012 ITO, WARD 6(3), JAIPUR VS. SMT. BHARTI GAJARIA, JAI PUR 5 CAPITAL GAIN IN THE RETURN. THEREFORE, THE ASSESSE ES CLAIM WAS AN AFTER THOUGHT WHEN TRANSACTIONS DETECTED ON THE BASIS OF AIR. THU S IN VIEW OF HONBLE SUPREME COURTS JUDGEMENT IN THE CASE OF GOETZE I NDIA LTD. VS. CIT 284 ITR 323, THERE WAS NO REVISED RETURN FILED BY THE ASSES SEE HENCE THE AO CALCULATED THE LONG TERM CAPITAL GAINS ON THE BASIS OF ABOVE DISALLOWANCE OF RS. 37,86,495/. 5.2 THEREAFTER, AT PARA 2.3 OF ITS ORDER, THE COORD INATE BENCH HAS RECORDED THE ARGUMENTS OF THE LD. DR WHICH ARE REPRODUCED AS UNDER: (2.3) NOW THE REVENUE IS BEFORE WHEREIN THE LD. DR ARGUED THAT THE LD. CIT(A) HAS ACCEPTED THE ASSESSEE'S EVIDENCES WITHOUT ALLOW ING ANY OPPORTUNITY TO THE AO AND DECIDED THE CASE IN FAVOUR OF THE ASS ESSEE. THE LD. DR SUBMITTED THAT IT IS A FACT ON RECORD THAT THE ASSE SSEE HAD NOT PRODUCED ORIGINAL SALE AGREEMENT BEFORE THE AO. IT IS ALSO A FACT THAT THE ASSESSEE HAD NOT DISCLOSED THIS TRANSACTION IN THE RETURN. T HE AO ON THE BASIS OF AIR INFORMATION HAS ISSUED THE SHOW CAUSE NOTICE TO THE ASSESSEE. THEREAFTER HE CLAIMED THAT THERE IS NO TAXABLE CAPI TAL GAIN IN CASE OF THE ASSESSEE. IN THIS CASE, WHATEVER EVIDENCES WERE FIL ED BY THE ASSESSEE BEFORE THE LD. CIT(A) THE SAME WERE NOT CONSIDERED LEGALLY AS THE ASSESSEE HAS NOT GIVEN ANY APPLICATION OF ADDITIONA L EVIDENCE BEFORE THE LD. CIT(A) UNDER RULE 46A OF THE INCOME TAX RULES A ND THE LD. CIT(A) HAS ALSO NOT PASSED ANY ORDER FOR ADMITTING THE ADDITIO NAL EVIDENCE FOR DISPOSAL OF THIS APPEAL WHICH GOES TO THE ROOT CAUS E OF THE CASE. THUS THE LD. DR PRAYED THAT THE MATTER MAY BE SET ASIDE TO T HE FILE OF THE AO. 5.3 THEREAFTER, IN PARA 2.4 OF ITS ORDER, THE COOR DINATE BENCH TOOK INTO CONSIDERATION THE WRITTEN SUBMISSIONS FILED BY THE LD. AR WHICH ARE AS UNDER:- 1. THE FACT OF PAYMENT OF ADVANCE AMOUNT OF RS. 7 5,000/- IN SEPT. 1980 HAS NOT BEEN DOUBTED BY THE AO AND NO EV IDENCE/ MATERIAL HAVE BEEN BROUGHT ON RECORD BY THE AO TO D ISPUTE THESE PAYMENTS. MA NO. 91/JP/16 ARISING OUT OF ITA NO. 708/JP/2012 ITO, WARD 6(3), JAIPUR VS. SMT. BHARTI GAJARIA, JAI PUR 6 2. THE FACT OF THE ADVANCE PAYMENTS HAVING BEEN MAD E TO SELLER IS EVIDENT FROM THE REGISTERED SALE DEED ITS ELF AND THE AGREEMENT TO SALE ENTERED INTO BEFORE EXECUTING THE REGISTERED SALE DEED. 3. THE BUYER HAS BEEN IN POSSESSION OF THE SAID LAN D SINCE 1980 WHICH IN FACT IS EVIDENT AND NOTED IN THE SALE DEED ITSELF AS WELL AS THE REGISTRATION TO SALE. 4. ACCORDING TO THE PROVISIONS OF SECTION 2(47) OF THE I.T. ACT, 1961, A CAPITAL ASSET IS CONSIDERED TO BE WHERE THE POSSESSION THEREOF HAS BEEN TRANSFERRED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSF ER OF PROPERTY ACT, 1882. THEREFORE, THE DATE OF ACQUISITION HAS T O BE CONSIDERED AS THE DATE OF TAKING POSSESSION OF THE PROPERTY I. E. MAY, 1980. . 5. THE AO HAS DOUBTED ONLY THE ENFORCEABILITY OF AG REEMENT TO SALE ON THE GROUND THAT THE AGREEMENT WAS NOT WITNE SSED AND WAS NOT REGISTERED. HOWEVER, THE AO FAILED TO APPRECIAT E THE CORROBORATING EVIDENCE IN THE SHAPE OF REGISTERED S ALE DEED WHICH ALSO RECORDS THE SAME FACTS AS ARE RECORDED IN THE AGREEMENT TO SALE AND THUS, THE SALE DEED CORROBORATES THE FACTS NARRATED IN THE AGREEMENT TO SALE. THEREFORE, WHEN THERE IS A SUPPO RTING EVIDENCE/ REGISTERED SALE DEED, WHICH HAS NOT BEEN DOUBTED, THE AGREEMENT TO SALE COULD NOT HAVE BEEN DISCARDED MER ELY ON TECHNICAL CONSIDERATION. FURTHER, EVEN IF THE AGREE MENT TO SALE STANDS DOUBTED BY THE AO, THE SALE DEEDS BEARS EVID ENCE TO THE FACT THAT THE ASSESSEE HAS BEEN IN POSSESSION OF T HE LAND SINCE 1980 AND HAD PAID ADVANCE AMOUNT IN THAT RESPECT. T HEREFORE, THE ALLEGATION OF AO FAIL ON THIS ISSUE. 6. THAT THE PAYMENT OF SETTLEMENT AMOUNT OF RS. 19, 02,000/- AT THE TIME OF EXECUTION OF SALE DEED HAS NOWHERE B EEN DOUBTED BY THE AO. MA NO. 91/JP/16 ARISING OUT OF ITA NO. 708/JP/2012 ITO, WARD 6(3), JAIPUR VS. SMT. BHARTI GAJARIA, JAI PUR 7 7. THE ASSESSEE HAS INCURRED AN EXPENDITURE ON IMPR OVEMENT OF THE PROPERTY TO THE TUNE OF RS. 6,08,953/- (COST OF IMPROVEMENT) WHICH FACT TOO HAS NOT BEEN DOUBTED BY THE AO. 8. THE AO HAS WRONGLY PRESUMED THAT ALL OTHER FLOOR S OF CONSTRUCTED BUILDING EXCEPT IIND FLOOR ARE IN OWNER SHIP OF ASSESSEE AND HER CO-OWNER. RATHER THE ACTUAL FACT AS IS EVID ENT FORM THE SALE DEED IS THAT, THE ENTIRE CONSTRUCTED COMPLEX S HALL BE DIVIDED BETWEEN ASSESSEE INCLUDING HER CO-OWNER AND THE DEV ELOPER COMPANY IN THE RATIO OF 53:47% AND THUS BASEMENT, G ROUND FLOOR AND 1ST FLOOR WERE SHARED BY THE PARTIES I THE SAID RATIO WHEREAS, SECOND FLOOR WAS KEPT BY DEVELOPER AND IIIRD FLOOR WAS KEPT BY ASSESSEE AND HER CO-OWNER. HOWEVER, IN THIS ARRANGE MENT, THE RATIO OF DISTRIBUTION ESSENTIALLY REMAINED STATIC A T 53:47% IT IS SUBMITTED THAT ALL THESE FACTS WERE BRUSHED A SIDE BY THE AO AND HE WENT ON TO DISALLOW THE DEDUCTION OF COST OF ACQUISITION AS CLAIMED BY ASSESSEE. NEVERTHELESS, DURING THE C OURSE OF APPELLATE PROCEEDINGS BEFORE LD. CIT(A), ALL THESE FACTS ALONGWITH RELEVANT EVIDENCES (ALREADY SUBMITTED BEFORE AO) WE RE SUBMITTED BEFORE LD. CIT(A) AND ALL THE ALLEGATIONS OF AO WER E ESTABLISHED AS BASELESS BEFORE THE LD. CIT(A) WHO AFTER PERUSING T HEM CAREFULLY PASSED A VERY REASONED ORDER, ACKNOWLEDGING THEM AL L THE ABOVE MENTIONED FACTS IN LIGHT OF SETTLED LAW REGARDING S ECTION 2(47) R.W.S. 45/58 OF THE I.T. ACT AND THEREBY DELETED TH E ADDITION MADE BY THE AO. 5.4 AND THEREAFTER, AT PARA 2.6 OF ITS ORDER, THE C OORDINATE BENCH HAS GIVEN ITS FINDINGS AS UNDER: (2.6) WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND FROM THE RECORDS THAT THE ASSESSEE HAS NOT PRODUCED THE ORIGINAL SALE AGREEMENTS ENTERED BETWE EN THE PARTIES BEFORE THE AO. THE ASSESSEE HAS ALSO NOT DISCLOSED THE CAPITAL GAINS IN MA NO. 91/JP/16 ARISING OUT OF ITA NO. 708/JP/2012 ITO, WARD 6(3), JAIPUR VS. SMT. BHARTI GAJARIA, JAI PUR 8 THE RETURN AS WELL AS IN REVISED RETURN. THE AO GOT INFORMATION THROUGH AIR THAT IT WAS AN IMMOVABLE PROPERTY SOLD BY THE A SSESSEE AND ON THAT BASIS, THE AO ASKED THE ASSESSEE TO GIVE PARTICULAR S OF PROPERTY SOLD AND CAPITAL GAINS EARNED ON IT. THE ASSESSEE SUBMITTED PARTIAL EVIDENCES BEFORE THE AO AND CLAIMED THE CAPITAL GAINS IN CASE OF THESE IMMOVABLE PROPERTY TRANSACTIONS SHOWING INCOME AT NIL. HOWEVE R, THE AO WAS NOT SUPPOSED TO ENTERTAIN THE ASSESSEE'S CLAIM BY RELYI NG ON DECISION OF HON'BLE APEX COURT IN THE CASE OF GOETZE INDIA LTD. VS. CIT (SUPRA). THE LD. CIT(A) HAS COTERMINOUS POWER AND WHATEVER ADDITIONA L EVIDENCES SUBMITTED BY THE ASSESSEE BEFORE HIM HAD NOT BEEN A DJUDICATED PROPER PERSPECTIVE AND IN LEGAL FRAMEWORK AS NO APPLICATI ON FOR FILING OF ADDITIONAL EVIDENCE HAD BEEN REFERRED BY HIM AND N O FINDING HAD BEEN GIVEN BY THE LD. CIT(A) THAT THESE EVIDENCES ARE RE QUIRED TO DECIDE THE BASIC CAUSE OF THE ASSESSEE. THEREFORE, IN THE INTE REST OF JUSTICE, WE SET ASIDE THE ISSUE TO THE FILE OF THE AO TO DECIDE IT DE NOVO BY PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 5.5 ON CAREFUL PERUSAL OF THE FACTUAL MATRIX AND TH E FINDINGS GIVEN BY COORDINATE BENCH, IT IS CLEAR THAT THE AO HAS NOT A LLOWED THE ASSESSEES CLAIM FOR INDEXED COST OF ACQUISITION FOR THE REASON THAT THE SAME WAS NEITHER CLAIMED IN THE ORIGINAL RETURN OF INCOME NOR ALLOWA BLE WITHOUT FILING A REVISED RETURN OF INCOME IN VIEW OF THE SUPREME COURTS DEC ISION IN CASE OF GOETZE INDIA LTD. GIVEN THAT THE AO DID NOT CONSIDER TH E CLAIM OF THE ASSESSEE TOWARDS THE INDEXED COST OF ACQUISITION, THE LD. CI T(A) EXERCISING HIS CO-TERMINUS POWERS ALLOWED THE CLAIM OF THE ASSESSE E TOWARDS THE INDEXED COST OF ACQUISITION. REGARDING THE ADDITIONAL EVID ENCES, WHETHER FILED BEFORE THE LD. CIT(A) OR NOT, THE CO-ORDINATE BENCH SEEMS TO HAVE BEEN GUIDED BY THE ARGUMENTS OF THE LD. DR THAT THE LD. CIT(A) HAS ACC EPTED THE ASSESSEES MA NO. 91/JP/16 ARISING OUT OF ITA NO. 708/JP/2012 ITO, WARD 6(3), JAIPUR VS. SMT. BHARTI GAJARIA, JAI PUR 9 EVIDENCES WITHOUT ALLOWING ANY OPPORTUNITY TO THE A O. AND WITHOUT FILING ANY APPLICATION OF ADDITIONAL EVIDENCES UNDER RULE 46A OF THE ACT. PER CONTRA, AS WE HAVE NOTED ABOVE, THE LD. AR HAS SUBMITTED BEF ORE THE COORDINATE BENCH THAT DURING THE COURSE OF APPELLATE PROCEEDINGS BEF ORE THE LD. CIT(A) ALL THESE FACTS ALONGWITH RELEVANT EVIDENCES (ALREADY SUBMITT ED BEFORE THE AO) WERE SUBMITTED BEFORE THE LD. CIT(A). FURTHER, IN THE P APER BOOK FILED BEFORE THE CO-ORDINATE BENCH, THE LD. AR HAS SUBMITTED AS UNDE R: COMPILATION OF PAPERS IN THE CASE OF : SMT. BHATI GAJAIA ASSESSMENT YEAR : 2009-10 ITA NO : 708/JP/ 12 (DEPARTMENTAL APPEAL) DATE OF HEARING : 15.07.2015 S.NO. PARTICULARS PAGE NO. 1. COPY OF SUBMISSION FILED BEFORE LD. CIT(A) DATE D 02.05.2015 1 7 2. COPY OF SALE DEED DATED 28.11.1997 8 15 3. COPY OF DEVELOPMENT AGREEMENT 16-34 4. COPY OF MEMORANDUM OF UNDERTAKING 35-37 5. COPY OF SALE DEED DATED 26.04.2008 38-47 6. COPY OF SUBMISSION FILED BEFORE LD. AO DATED 22. 11.2011 48-49 7. COPY OF COMPUTATION OF INCOME FILED BY ASSESSEE 50-51 THIS IS CERTIFIED THAT PAGES 1 TO 7 OF THIS COMPILA TION IS THE TRUE COPY OF SUBMISSION MADE BEFORE LD. CIT(A) AND REMAINING PAG ES ARE THE TRUE COPIES OF PAPERS WHICH WERE EITHER AVAILABLE IN ASSESSMENT RE CORDS OR SUBMITTED BEFORE THE LD. AO. 5.6 IN LIGHT OF ABOVE, IT SEEMS TO US THAT THE COOR DINATE BENCH HAS BEEN GUIDED BY AND SWAYED BY THE ARGUMENTS OF THE LD. DR WHEREBY THE FACTS OF THE CASE IN TERMS OF THE VARIOUS AGREEMENTS WERE NOT PR OPERLY PRESENTED AND THUS NOT APPRECIATED BY THE COORDINATE BENCH. IT IS A SI TUATION WHERE NECESSARY MA NO. 91/JP/16 ARISING OUT OF ITA NO. 708/JP/2012 ITO, WARD 6(3), JAIPUR VS. SMT. BHARTI GAJARIA, JAI PUR 10 EVIDENCE WERE PLACED BEFORE THE AO, HOWEVER, IN VIE W OF THE FACT THAT THE ASSESSEE HAS NOT MADE NECESSARY CLAIMS IN THE RETUR N OF INCOME OR BY FILING THE REVISED RETURN OF INCOME, THE AO DID NOT ENTERTAIN THE CLAIM OF THE ASSESSEE. HOWEVER, LD. CIT(A) EXERCISING HIS CO-TERMINUS POWE RS HAS TAKEN INTO CONSIDERATION THESE EVIDENCES ALREADY FILED BEFORE THE AO. IN OUR VIEW, THIS CLEARLY A MISTAKE WHICH HAS CREPT IN THE ORDER PASS ED BY THE COORDINATE BENCH WHERE THIS FACTUAL ASPECT OF EVIDENCES HAS BEEN MIS UNDERSTOOD BY THE COORDINATE BENCH AND THUS NOT BEEN APPRECIATED IN R IGHT RESPECTIVE BUT HAS FORMED THE BASIS OF THE DECISION OF THE COORDINATE BENCH WHERE IT HELD AS UNDER: THE LD. CIT(A) HAS COTERMINOUS POWER AND WHATEVER ADDITIONAL EVIDENCES SUBMITTED BY THE ASSESSEE BEFORE HIM HAD NOT BEEN A DJUDICATED PROPER PERSPECTIVE AND IN LEGAL FRAMEWORK AS NO APPLICATI ON FOR FILING OF ADDITIONAL EVIDENCE HAD BEEN REFERRED BY HIM AND NO FINDING H AD BEEN GIVEN BY THE LD. CIT(A) THAT THESE EVIDENCES ARE REQUIRED TO DECIDE THE BASIC CAUSE OF THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ISSUE TO THE FILE OF THE AO TO DECIDE IT DE NOVO BY PROVIDING REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5.7 HERE WE REFER TO THE DECISION OF HONBLE RAJAST HAN HIGH COURT IN THE CASE OF CHAMPA LAL CHOPRA [2003] 131 TAXMAN 417 (RA J.) HELD THAT IN A GIVEN CASE WHERE THE FACTUAL MISTAKE IS SO APPARENT THAT IT BECOMES NECESSARY TO CORRECT THE SAME, THE TRIBUNAL WOULD BE JUSTIFIE D IN NOT ONLY CORRECTING THE SAID MISTAKE BY WAY OF RECTIFICATION BUT IF THE JUD GMENT HAS PROCEEDED ON THE BASIS OF THAT FACT, IT WOULD BE JUSTIFIED IN RECALL ING SUCH ORDER AND POSTING FOR HEARING. 5.8 IN LIGHT OF ABOVE DISCUSSIONS AND TAKING INTO C ONSIDERATION THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE, GIVEN THAT THE NECESSARY EVIDENCES WERE ALREADY ON RECORD DURING THE COURSE OF ASSESSMENT P ROCEEDINGS, IN OUR VIEW, IT WOULD BE JUSTIFIED THAT INSTEAD OF RECTIFYING THE S AID FACTUAL ASPECT WHICH HAS FORMED THE SOLE BASIS FOR SET-ASIDE DIRECTIONS BY T HE COORDINATE BENCH, THE DECISION OF THE COORDINATE BENCH IS RECALLED AND TH E MATTER SHOULD BE HEARD AFRESH AFTER GIVING AN OPPORTUNITY TO THE REVENUE A ND TO THE ASSESSEE. THE REGISTRY IS ACCORDINGLY DIRECTED TO FIX THE REVENUE APPEAL FOR FRESH HEARING IN DUE COURSE. MA NO. 91/JP/16 ARISING OUT OF ITA NO. 708/JP/2012 ITO, WARD 6(3), JAIPUR VS. SMT. BHARTI GAJARIA, JAI PUR 11 THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED WITH ABOVE DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 16/01/ 2017. SD/- SD/- (KUL BHARAT ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 16/01/2017 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD 6(3), JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- SMT. BHARTI GAJARIA, JAIPUR 3. VK;DJ VK;QDR@ CIT II, JAIPUR) 4. VK;DJ VK;QDRVIHY@ THE CIT(A)-II, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (MA NO. 91/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR.