Ms. Gurpreet Kaur Maini,, New Delhi v. DCWT, New Delhi

CO 28/DEL/2011 | 2005-2006
Pronouncement Date: 04-02-2011 | Result: Allowed

Appeal Details

RSA Number 2820123 RSA 2011
Assessee PAN AKKPM1855B
Bench Delhi
Appeal Number CO 28/DEL/2011
Duration Of Justice 4 day(s)
Appellant Ms. Gurpreet Kaur Maini,, New Delhi
Respondent DCWT, New Delhi
Appeal Type Cross Objection
Pronouncement Date 04-02-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 04-02-2011
Date Of Final Hearing 01-02-2011
Next Hearing Date 01-02-2011
Assessment Year 2005-2006
Appeal Filed On 31-01-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER W.T.A NOS. 34 35/DEL/10 ASSTT. YEARS 2005-06 2006-07 DCWT CIRCLE-41(1) ROOM NO. 306 MAYUR BHAWAN NEW DELHI. VS. MS. GURPREET KAUR MAINI 6-C HUDCO PLACE ANDREWS GANJ NEW DELHI. AKKPM1855B (APPELLANT) (RESPONDENT) AND C.O. NO.28/DEL/11 WTA NO. 34/DEL/2010 ASSTT. YEAR 2005-06 MS. GURPREET KAUR MAINI 6-C HUDCO PLACE ANDREWS GANJ NEW DELHI. AKKPM1855B VS. DCWT CIRCLE-41(1) ROOM NO. 306 MAYUR BHAWAN NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI RAJNIKANT GUPTA CIT(DR) RESPONDENT BY: SHRI SANJAY MEHRA CA WTA NOS. 34 35/DEL/10 A SSTT. YEARS 2005-06 2006- 07 & CO NO. 28 /DEL/2011 ASSTT. YEAR 2 005-06 2 ORDER PER BENCH: THE PRESENT TWO APPEALS ARE DIRECTED AT THE INSTAN CE OF REVENUE AGAINST THE ORDER OF LD. CWTA DATED 7 TH MAY 2010 PASSED FOR ASSTT. YEARS 2005-06 AND 2006-07. ON RECEIPT OF NOTICE IN THE REVENUES APPEAL FOR ASSTT. YEAR 2005-06 ASSESSEE HAS FILED THE CRO SS OBJECTION BEARING NO. 28/D/2011. THE REGISTRY HAS POINTED OUT THAT CR OSS OBJECTION IS TIME BARRED BY 32 DAYS. 2. WITH THE ASSISTANCE OF LD. REPRESENTATIVE WE HAV E GONE THROUGH THE RECORD CAREFULLY. WE FIND THAT THESE APPEALS WE RE FILED BY THE REVENUE ON 29.7.2010. THE APPEALS WERE POSTED FOR H EARING ON 22 ND SEPTEMBER 2010. ON 22 ND SEPTEMBER 2010 NO ONE APPEARED ON BEHALF OF THE ASSESSEE. HEARING WAS ADJOURNED TO 23.11.201 0. NOTICE OF THE HEARING HAS BEEN ISSUED TO THE RESPONDENT BY REGIST ERED POST. THE REVENUE HAS FILED REVISED GROUND OF APPEAL VIDE LET TER DATED 21.10.2010. IN THE ORIGINAL GROUND OF APPEAL REVENUE HAS PLEADE D THAT LD. CWTA HAS ERRED IN DELETING THE ADDITION OF ` 7 28 99 200/- FROM THE NET TAXABLE WEALTH OF THE ASSESSEE IN EACH ASSTT. YEAR. IN THE REVISED GROUND REVENUE HAS PLEADED THAT THIS ADDITION HAS BEEN DEL ETED BY ENTERTAINING ADDITIONAL EVIDENCE IN VIOLATION TO RULE 5A OF THE WEALTH TAX RULES WTA NOS. 34 35/DEL/10 A SSTT. YEARS 2005-06 2006- 07 & CO NO. 28 /DEL/2011 ASSTT. YEAR 2 005-06 3 1957. THE SERVICE OF THIS REVISED GROUND OF APPEAL HAS NOT BEEN EFFECTED UPON THE ASSESSEE. WE HAVE APPRISED THE LD. COUNSEL FOR THE ASSESSEE ABOUT THE REVISED GROUND OF APPEAL. IN VIEW OF THIS DEVELOPMENT IN OUR OPINION THE CROSS OBJECTION CANNOT BE SAID TO BE TI ME BARRED. BECAUSE ON SERVICE OF THE REVISED GROUND OF APPEAL THE ASSE SSEE CAN FILE THE CROSS OBJECTION. WITH THE ABOVE OBSERVATION WE TRE AT THE CROSS OBJECTION WELL IN TIME AND PROCEED TO ADJUDICATE THE APPEAL A S WELL AS THE CROSS OBJECTION ON MERIT. 3. THE SOLITARY COMMON GRIEVANCE IN THE REVENUES A PPEAL RELATES TO DELETION OF ` 7 28 99 200/- FROM THE NET TAXABLE WEALTH OF THE AS SESSEE BY ENTERTAINING ADDITIONAL EVIDENCE IN VIOLATION TO RULE 5A OF THE WEALTH TAX RULES 1957. 4. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSMENT PROCEEDINGS IN BOTH THE YEARS HAVE BEEN INITIATED BY ISSUANCE OF A NOTICE U/S 17(1) OF THE WEALTH TAX ACT. THIS NOTICE WAS ISSUED ON 27.2. 2009. THE ASSESSEE HAS FILED WEALTH TAX RETURN ON 3 RD JUNE 2009 IN BOTH THE ASSESSMENT YEARS WHEREIN SHE DECLARED HER TAXABLE WEALTH AT ` 11 90 550/- IN ASSTT. YEAR 2005-06 AND ` 14 67 850/- IN ASSTT. YEAR 2006- 07. THE AO HAS OBSERVED THAT ASSESSEE HAD A RESIDEN TIAL HOUSE PROPERTY COMPRISED AT F-130/1 W-5 LANE WESTERN AV ENUE SAINIK FARM WTA NOS. 34 35/DEL/10 A SSTT. YEARS 2005-06 2006- 07 & CO NO. 28 /DEL/2011 ASSTT. YEAR 2 005-06 4 NEW DELHI. ACCORDING TO THE AO ASSESSEE CLAIMED EX EMPTION OF THIS ASSET U/S 5 (VI) OF THE WEALTH TAX ACT. IT EMERGES OUT FROM THE RECORD THAT THIS PROPERTY HAS DEVOLVED UPON THE ASSESSEE B Y WAY OF RELINQUISHMENT DEED DATED 4 TH JUNE 1998 EXECUTED BY SMT. DARSHAN CHAUDHARY MOTHER OF THE ASSESSEE. ACCORDING TO THE AO THIS LAND IS SITUATED AT KHASRA NO. 14/21 IN VILLAGE DAVALI TAHS IL. MEHRAULI NEW DELHI. IT IS KNOWN AS SAINIK FARM NEW DELHI. THIS LAND IS MEASURING 5 BIGHAS AND 4 BISWAS. THE ALLEGED HOUSE CLAIMED BY T HE ASSESSEE AS EXEMPT U/S 5(VI) OF THE WEALTH TAX ACT HAS BEEN BUI LT UPON AN AREA OF 1000 SQ. YARDS. THE TOTAL AREA OF THE KHASRA NO. IS ROUGHLY 5000 SQ. YARDS. ACCORDING TO THE AO THE ASSESSEE FAILED TO D ISCLOSE THE WEALTH OF 4000 SQ. YARDS FOR THE PURPOSE OF WEALTH TAX ACT. H E WAS OF THE OPINION THAT VALUE OF VACANT LAND ALONG WITH THIS HOUSE ME ASURING 4000 SQ. YARDS OUGHT TO BE INCLUDED IN THE TOTAL WEALTH. HE ESTIMATED THE VALUE OF THIS PROPERTY AT ` 7 28 99 200/- AND INCLUDED IT IN THE TAXABLE WEALT H OF THE ASSESSEE. 5. DISSATISFIED WITH THE ADDITION ASSESSEE CARRIED THE MATTER NEITHER BEFORE THE LD. CWT(A). SHE APPRISED THE LD. CWT(A) THAT AO HAS FAILED TO APPRECIATE THE RELINQUISHMENT DEED AS WELL AS PU RCHASE DEED IN RIGHT PERSPECTIVE. ASSESSEE HAS PREPARED A LIST OF EVENTS EXHIBITING THE DETAILS WTA NOS. 34 35/DEL/10 A SSTT. YEARS 2005-06 2006- 07 & CO NO. 28 /DEL/2011 ASSTT. YEAR 2 005-06 5 OF LAND IN KHASRA NO. 14/21 AND HOW IT HAS DEVOLVED UPON THE ASSESSEE. LD. CWT(A) HAS REPRODUCED SUCH EVENT ON PAGE NO. 3 OF THE IMPUGNED ORDER. THE ASSESSEE HAS FILED COPIES OF THE SALE AG REEMENT BEFORE THE LD. CWT(A). ON AN ANALYSIS OF ALL THESE DOCUMENTS L D. CWTA ARRIVED AT A CONCLUSION THAT ONE SHRI AVTAR SINGH AND SHRI GUR MEET SINGH SONS OF SHRI RAGHUNANDAN SINGH WERE THE OWNER OF THE PROPER TY TOTAL AREA MEASURING 5000 SQ. YARDS. THEY ENTERED INTO A DEVEL OPMENT AGREEMENT WITH M/S. COMPETENT HOLDINGS LTD. ACCORDING TO THAT ARRANGEMENT M/S. COMPETENT HOLDINGS LIMITED WILL CONSTRUCT 5 HOUSES ON THIS LAND. THE SALE PROCEED OF THOSE 5 HOUSES WILL BE SHARED EQUAL LY BETWEEN THE OWNERS AND DEVELOPERS I.E. 50% WOULD COME TO SHRI A VTAR SINGH AND SHRI GURMEET SINGH AND 50% WOULD GO TO M/S COMPETE NT HOLDINGS LIMITED. THE HOUSE OWNED BY THE ASSESSEE WAS ORIGIN ALLY PURCHASED BY MR. MUKUL RASTOGHI MR. RAJIV NAYAR AND MR. RAVI SH ANKAR VIDE AGREEMENT TO SALE DATED 27.11.95. SHRI MUKUL RASTOG HI SHRI RAJIV NAYAR AND SHRI RAVI SHANKAR HAS SOLD THIS PROPERTY OF HOUSE NO. 1 WHICH COMPRISED ON AN AREA OF 1000 SQ. YARDS TO MRS . DARSHAN CHOWDHARY ASSESSEE I.E MS. GURPREET KAUR AND MRS. PRITAM KAUR VIDE SALE AGREEMENT DATED 6 TH DECEMBER 1996. ON 4 TH JUNE 1998 MRS. DARSHAN CHOWDHARY HAS RELINQUISHED HER RIGHT IN FAV OUR OF ASSESSEE AS WTA NOS. 34 35/DEL/10 A SSTT. YEARS 2005-06 2006- 07 & CO NO. 28 /DEL/2011 ASSTT. YEAR 2 005-06 6 PER THE FAMILY SETTLEMENT. IN THIS WAY ASSESSEE HAS BEEN STATED TO BE THE OWNER OF THE HOUSE PROPERTY WHICH COMPRISED IN 1000 SQ. YARDS ONLY. LD. CWT(A) ACCORDINGLY DELETED THE ADDITION. 6. LD. DR POINTED OUT THAT DURING THE ASSESSMENT PR OCEEDING AO HAS CONFRONTED THE ASSESSEE AS TO WHY VALUE OF 4000 SQ. YARDS OF LAND BE NOT INCLUDED IN HER NET WEALTH. THE ASSESSEE DID NO T EXPLAIN HER POSITION. THE SALE AGREEMENT REFERRED TO IN THE LIS T OF EVENTS HAVE BEEN FILED FOR THE FIRST TIME BEFORE LD. CWT(A). THESE A GREEMENTS WERE NOT CONFRONTED WITH THE AO BY THE LD. FIRST APPELLATE A UTHORITY. THEREFORE THE EVIDENCE COULD NOT BE READ WHILE DISPOSING OFF THE APPEAL. HE REFERRED TO SUB RULE 3 OF RULE 5A AND SUBMITTED THA T EXPRESSION SHALL HAS BEEN USED IN THIS SUB RULE. THIS RULE CONTEMPLA TE THAT EVIDENCE ENTERTAINED BY THE LD. CWT (A) SHALL NOT BE TAKEN I NTO ACCOUNT UNLESS AO HAS BEEN ALLOWED A REASONABLE OPPORTUNITY TO EXA MINE THE EVIDENCE OR DOCUMENT OR TO CROSS EXAMINE THE WITNESS. THE CW T(A) WAS DUTY BOUND TO GIVE AN OPPORTUNITY TO THE AO FOR LEADING ADDITIONAL EVIDENCE IN REBUTTAL TO THE EVIDENCE PRODUCED BY THE ASSESSEE. LD. COUNSEL ON THE OTHER HAND SUBMITTED THAT ASSESSEE HAS NOT PRODUCED ADDITIONAL EVIDENCE. THESE DOCUMENTS ARE FORMING PART OF THE R ECORD. THE RELINQUISHMENT DEED IS ALREADY BEFORE THE AO. WTA NOS. 34 35/DEL/10 A SSTT. YEARS 2005-06 2006- 07 & CO NO. 28 /DEL/2011 ASSTT. YEAR 2 005-06 7 7. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE RECORD CAREFULLY. SUB RULE 1 OF RULE 5A PROHIBI TS THE APPELLANT TO PRODUCE ADDITIONAL EVIDENCE BEFORE THE LD. FIRST AP PELLATE AUTHORITY UNLESS THE CASE FALLS WITHIN THE EXCEPTION PROVIDED IN SUB CLAUSES A TO D OF SUB RULE 1. SUB RULE 2 OF RULE 5A FURTHER PROVID E THAT NO EVIDENCE SHALL BE ADMITTED BY THE LD. FIRST APPELLATE AUTHOR ITY UNLESS HE RECORDS IN WRITING THE REASONS FOR ITS ADMISSION. SUB RULE 3 FURTHER PROVIDE THAT THE EVIDENCE SO PERMITTED SHALL NOT BE USED UNLESS AO HAS BEEN GIVEN A REASONABLE OPPORTUNITY TO REBUT THE EVIDENCE PRODUC ED BY THE APPELLANT. SUB RULE 4 OF 5A EMPOWER THE FIRST APPELLATE AUTHO RITY TO CALL FOR ANY EVIDENCE WHICH THE AUTHORITY DEEM FIT FOR THE JUST DECISION OF THE APPEAL. IN THE PRESENT CASE THOUGH ASSESSEE CONTESTED THE A RGUMENT OF THE REVENUE THAT NO EVIDENCE WAS PRODUCED BEFORE THE CW T(A) BUT FROM THE PAPER BOOK WE FIND THAT ASSESSEE HAS FILED A FL OW CHART WHEREIN SHE HAS DEMONSTRATED HOW THE PROPERTY HAS DEVOLVED UPON HER AND WHAT IS THE QUANTUM OF PROPERTY. NEITHER THIS EXPLANATION W AS FILED BEFORE THE AO NOR THE SUPPORTING DOCUMENTS. THE AO MIGHT HAVE MISCONSTRUED THE RELINQUISHMENT DEED BUT THE SALE AGREEMENT ENTERED BY SHRI AVTAR SINGH WITH SHRI MUKUL RASTOGHI AND OTHER AVAILABLE ON PAGE 30 OF THE PAPER BOOK WAS NOT SUBMITTED BEFORE THE AO. SIMILAR LY THE DOCUMENT WTA NOS. 34 35/DEL/10 A SSTT. YEARS 2005-06 2006- 07 & CO NO. 28 /DEL/2011 ASSTT. YEAR 2 005-06 8 AVAILABLE ON PAGE 41 I.E AN AGREEMENT TO SALE BY MR . MUKUL RASTOGHI AND OTHERS IN FAVOUR OF THE ASSESSEE AND MRS. DAR SHAN CHOWDHARY WAS NOT SUBMITTED BEFORE THE AO. LD. CWT(A) HAS TAK EN COGNIZANCE OF THESE DOCUMENTS WITHOUT AFFORDING DUE OPPORTUNITY O F HEARING TO THE AO TO REBUT THESE DOCUMENTS. 8. WE HAVE PERUSED THE PHOTOCOPIES OF THE SALE AGRE EMENTS. PRIME FACIE REVEALS FROM THESE DOCUMENTS THAT ASSESSEE IS THE OWNER OF A HOUSE PROPERTY WHICH IS COMPRISED IN 1000 SQ. YARDS . THESE DOCUMENTS ARE ESSENTIAL DOCUMENTS FOR SILENCING THE CONTROVER SY BETWEEN THE REVENUE AND THE ASSESSEE. FROM THE COPY OF THE RELI NQUISHMENT DEED IT DOES NOT DISCERN THAT AREA OF THIS HOUSE IS 1000 S Q. YARDS ONLY. THE RELINQUISHMENT DEED ONLY DISCLOSE THE KHASRA NO. WH ICH HAS AN AREA OF 5 BIGHAS AND 4 BISWAS. IT ALSO REFER TO THE SALE AG REEMENT BETWEEN MRS. DARSHAN CHOWDHARY AND OTHERS AND MR. MUKUL RASTOGHI AND OTHERS. BUT THE EXACT AREA IS NOT DISCERNABLE. THIS MIGHT HAVE LED THE AO TO ARRIVE AT A WRONG CONCLUSION. THEREFORE AS FAR AS ENTERTAINM ENT OF ADDITIONAL EVIDENCE BY THE LD. CWT(A) IS CONCERNED WE DO NOT FIND ANY FAULT IN THE ORDER BECAUSE THESE DOCUMENTS ARE ESSENTIAL DOCUME NTS FOR THE JUST DECISION OF THE APPEALS. THE DOCUMENTS COULD HAVE B EEN CALLED FOR WHILE EXERCISING THE POWERS UNDER SUB RULE 4 OF RUL E 5A. HOWEVER LD. WTA NOS. 34 35/DEL/10 A SSTT. YEARS 2005-06 2006- 07 & CO NO. 28 /DEL/2011 ASSTT. YEAR 2 005-06 9 CWT(A) HAS VIOLATED THE CONDITIONS ENUMERATED IN SU B RULE 3 OF RULE 5A OF THE WEALTH TAX RULES. AN OPPORTUNITY TO THE AO I S MUST BEFORE CONSIDERING THESE DOCUMENTS. A REMAND REPORT OUGHT TO HAVE BEEN CALLED FOR. THEREFORE THE ORDER OF THE LD. FIRST A PPELLATE AUTHORITY ON THIS POINT DESERVES TO BE SET ASIDE. WE ACCORDINGLY ALL OW THE APPEALS OF DEPARTMENT FOR STATISTICAL PURPOSE AND SET ASIDE TH IS ISSUE IN BOTH THE ASTTT. YEARS TO THE FILE OF LD. FIRST APPELLATE AUT HORITY FOR READJUDICAITION. LD. FIRST APPELLATE AUTHORITY SHALL CALL FOR A REMA ND REPORT FROM THE AO ON THE ADDITIONAL EVIDENCE ENTERTAINED BY HER AND T HEN DECIDE THE ISSUE AFTER AFFORDING DUE OPPORTUNITY OF HEARING TO THE A SSESSEE. CROSS OBJECTION NO. 28/DEL/11 9. THIS CROSS OBJECTION HAS BEEN FILED BY THE ASSES SEE IN ASSTT. YEAR 2005-06. IN THE CROSS OBJECTION ASSESSEE HAS DISPUT ED THE VALUATION OF A VACANT PLOT OF LAND AT MOHALI AT ` 75 00 000/- THE FINDING RECORDED BY THE AO ON THIS ISSUE READ AS UNDER :- 3. THE WEALTH OF THE ASSESSEE INCLUDES ONE PLOT OF LAND (URBAN) AT MOHALI MEASURING 500 SY. YDS. THIS PLOT IS AT NO. 233 SEC FOR 70 URBAN ESTATE SAS NAGAR MOHALI. THE ASSESSEE HAS DECLARED THE VALUE OF THIS PROPERTY AT RS. 8 LAKHS ONLY. THE VALUE DECLARED BY THE ASSESSEE IS V ERY MUCH ON LOWER SIDE AND WITHOUT ANY PROPER BASIS. ASSESSEE HAS FAILED T O GIVE ANY EXPLANATION AND EVIDENCE IN THIS REGARD THOUGH SPECIFICALLY AS KED TO CLARIFY THE ISSUE ON MANY OCCASIONS (ORDER SHEET ENTRY 09.12.2009 AND 23 .12.2009). CONSIDERING THE FACT THAT PLOT IS IN MOHALI WHICH IS A FULLY DE VELOPED CITY AND IS QUITE NEAR TO CHANDIGARH CITY THE FAIR MARKET VALUE OF THE LAND IN THIS AREA IS ESTIMATED AT RS. 15 000/- PER SQ. YARDS AS ON 31.3.2005. THE VAL UE OF THIS PLOT AT THIS RATE AS SUCH WORKS OUT AT RS. 75 00 000/- (500 X 15 000) . AS SUCH THE VALUE OF THIS LAND AS ON 31.3.2005 IS ADOPTED AT RS. 75 00 000/-. WTA NOS. 34 35/DEL/10 A SSTT. YEARS 2005-06 2006- 07 & CO NO. 28 /DEL/2011 ASSTT. YEAR 2 005-06 10 10. APPEAL TO THE LD. CIT(A) DID NOT BRING ANY RELI EF TO THE ASSESSEE. 11. WE HAVE HEARD THE LD. COUNSEL AND GONE THROUGH THE RECORD CAREFULLY. ON PERUSAL OF THE ASSTT. ORDER WE DO NOT FIND ANY BASIS FOR ADOPTING THE VALUE OF THIS PLOT AT ` 75 00 000/-. THE AO HAS NEITHER REFERRED ANY REPORT OF THE DVO OR THE CIRCLE RATE IF ANY NOTIFIED BY THE STATE GOVERNMENT EXHIBITING THE VALUE OF THE VACAN T PLOTS IN THIS AREA FOR THE PURPOSE OF STAMP VALUATION ETC. THE AO HAS ESTIMATED THE VALUE BY WAY OF A THUMB RULE. IN OUR OPINION BEFORE ARRIV ING AT THIS VALUE HE SHOULD HAVE COLLECTED THE EVIDENCE EXHIBITING THIS RATE IN THE VICINITY. THE EVIDENCE COULD BE IN THE SHAPE OF SALE DEEDS ETC. T HE ADOPTION OF THE VALUE OF ` 75 00 000/- WITHOUT THEIR BEING ANYTHING ON RECORD CANNOT BE UPHELD. THEREFORE WE SET ASIDE THE ORDER OF THE AO AS WELL AS LD. CIT(A) ON THIS ISSUE IN ASSTT. YEAR 2005-06. WE RES TORE THIS ISSUE TO THE FILE OF AO FOR READJUDICATION. 12. IN THE RESULT THE APPEALS AS WELL AS CROSS OBJ ECTION ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 4.2.2011. SD/- [SHAMIM YAHYA] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 4.2.2011 WTA NOS. 34 35/DEL/10 A SSTT. YEARS 2005-06 2006- 07 & CO NO. 28 /DEL/2011 ASSTT. YEAR 2 005-06 11 VEENA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT