SHRI RANJEET SHARMA, , BHILAI V. INCOME TAX OFFICER, WARD 2(2), BHILAI

SA 02/RPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6508 (ITAT-RAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s)
• Appeal Type: TDS Appeal
• Pronouncement Date: 08-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 08-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K JAIN
• Assessee Lawyers: G S AGARWAL
• Keywords: Application of stay
• Section: 54F; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH , RAIPUR BEFORE S HRI N.K. BILLAIYA (AM) AND SHRI RAM LAL NEGI (JM) SA NO. 02/RPR /20 1 8 ARISING OUT OF ITA NO. 13/RPR / 2018 ASSESSMENT YEAR - 2012 - 13 SHRI RANJEET SHARMA, Q. NO. MIG - H 2273, MP HOUSING BOARD, NEAR KALIBARI INDUSTRIAL ESTATE, BHILAI (C.G.) PAN: AJSPS1497C VS. THE INCOME TAX OFFICER, WARD 2(2), AAYKAR BHAVAN, CIVIC CENTRE, BHILAI (C.G.) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.S. AGARWAL (CA ) REVENUE BY : SHRI D.K. JAIN (DR) DATE OF HEARING: 05/03 /201 8 DATE OF PRONOUNCEMENT: 05 / 0 3 /201 8 O R D E R PER RAM LAL NEGI, JM BY WAY OF T HIS APPLICATION THE ASSESSEE HAS SOUGHT STAY OF RECOVERY OF DEMAND AMOUNTING TO RS. 58,89,530/ - RAISED BY THE ITO ON THE BASIS OF THE APPELLATE ORDER DATED 06.12.2017 PASSED BY THE LD. CIT(A) IN THE ASSESSEES APPEAL PERTAINING TO THE ASSESSMENT YEAR 2012 - 13, VIDE WHICH THE LD. CIT(A) HAS CONFIRMED THE ADDITION MADE BY THE AO. 2 BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT APPEAL AGAINST THE I MPUGNED ORDER ITA NO 13/RPR/2018 IS PENDING DISPOSAL IN THIS TRIBUNAL . THE DEPARTMENT HAS STARTED COERCIVE METHOD AND THE TRO HAS ATTACHED 1/3 RD . 2 SA NO. 02/RPR /2018 ASSESSMENT YEAR: 2012 - 13 OF THE SALARY OF THE APPLICANT AND THE AMOUN T IS DEDUCTED EVERY MONTH DUE TO WHICH THE ASSESSEE IS FACING DIFFICULTY IN MAINTAINING HIS FAMILY. 3. THE LD. COUNSEL FURTHER SUBMITTED THAT THE LD. CIT(A) HAS WRONGLY CONFIRMED ADDITION MADE BY THE AO. THE ASSESSEE IN THE YEAR 2001 PURCHASED TWO PLOTS MEASURING 7,800SQ.FT. FROM SH. LALLAN TIWARI FOR A TOTAL CONSIDERATION OF RS.10,00,000/ - AND THE ASSESSEE TOOK PHYSICAL POSSESSION OF THE PLOTS HOWEVER, THE SALE DEED WAS NOT REGISTERED IN ACCORDANCE WITH THE PROVISIONS OF LAW. IN THE YEAR 2011, THE ASSESS EE SOLD THE SAID PLOTS FOR A TOTAL CONSIDERATION OF RS. 88,53,000/ - . THE SALE DEED WAS EXECUTED BY THE ASSESSEE IN THE CAPACITY OF POWER OF ATTORNEY HOLDER OF SH. LALLAN TIWARI. THE ASSESSEE OFFERED CAPITAL GAIN ON THE SALE OF PROPERTY AND CLAIMED DEDUCTI ON U/S 54F OF THE INCOME TAX ACT (FOR SHORT THE ACT). THE AO REJECTED THE CLAIM HOLDING THAT SINCE THE ASSESSEE WAS NOT THE OWNER IN POSSESSION OF THE LAND IN QUESTION BENEFIT OF SECTION 54F CANNOT BE GIVEN TO THE ASSESSEE AND THE AMOUNT IN QUESTION I S TAXABLE U/S 69 /69 A OF THE ACT . THE LD. COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE HAS A GOOD PRIMA FACIE CASE IN ITS FAVOUR AS THE ACTION OF THE AO IS NOT BASED ON THE EVIDENCE ON RECORD AND IN ACCORDANCE WITH THE PROVISIONS OF LAW. 4. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) OPPOSED THE APPLICATION FOR STAY OF DEMAND AND SUBMITTED THAT THE ASSESSEE MAY BE DIRECTED TO PAY THE OUTSTANDING DEMAND. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE MATERIAL ON RECORD. AD MITTEDLY, IN THIS CASE THE ASSESSEE WAS NOT THE RECORDED OWNER OF THE PLOTS IN QUESTION WHEN THE PLOTS WERE SOLD IN THE YEAR 2011, YET THIS FACT CANNOT BE IGNORED THAT THE PLOTS IN QUEST I ON WERE SOLD BY THE ASSESSEE , THOUGH IN THE CAPACITY OF ATTORNEY OF S H. LALLAN TIWARI. FROM THE AFORE SAID F ACT AN INFERENCE CAN BE DRAWN THAT THERE HAS BEEN SOME UNDERSTANDING BETWEEN SH. 3 SA NO. 02/RPR /2018 ASSESSMENT YEAR: 2012 - 13 LALLAN TIWARI AND THE ASSESSEE. THE GENUINENESS OF TRANSACTION BETWEEN THE PARTIES IS YET TO BE ESTABLISHED BY THE ASSESSEE , BUT ON THE BASIS OF THE DOCUMENTS RELIED UPON BY THE ASSESSEE, THE CONTENTION OF THE ASSESSEE CANNOT BE REJECTED AT THIS STAGE . HENCE, IN OUR CONSIDERED OPINION, THE ASSESSEE HAS A PRIMA FACIE CASE IN ITS FAVOUR AND IF THE DEMAND IS NOT STAYED, THE ASSESSEE WILL NOT BE IN A POSITION TO MAINTAIN HIS FAMILY AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE. HENCE, WE ARE OF THE CONSIDERED VIEW THAT THIS IS A FIT CASE IN WHICH STAY CAN BE GRANTED. WE ACCORDINGLY ALLOW THE APPLICATION OF THE ASSESSEE AND STAY RECOVERY OF D EMAND FOR 180 DAYS FROM THE DATE OF THIS ORDER OR TILL DISPOSAL OF THE CASE WHICHEVER IS EARLIER. IN THE RESULT, STAY APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH MARCH, 2018 . SD/ - SD/ - ( N.K. BILLAIYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER RAIPUR ; DATED: 05 / 0 3 / 201 8 ALINDRA PS / COPY OF THE ORDER F ORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , RAIPUR / DR, ITAT, RAIPUR 6. / GUARD FILE . / BY ORDER, //TRUE COPY// PRIVATE SECRETARY ITAT , RAIPUR