DCIT, CHENNAI v. Smt. G.V.Jayalakshmi, CHENNAI

ITA 1215/CHNY/2008 | 2002-2003
Pronouncement Date: 09-09-2011 | Result: Partly Allowed

Appeal Details

RSA Number 121521714 RSA 2008
Assessee PAN AEKPJ1571R
Bench Chennai
Appeal Number ITA 1215/CHNY/2008
Duration Of Justice 3 year(s) 3 month(s) 4 day(s)
Appellant DCIT, CHENNAI
Respondent Smt. G.V.Jayalakshmi, CHENNAI
Appeal Type Income Tax Appeal
Pronouncement Date 09-09-2011
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 09-09-2011
Date Of Final Hearing 25-08-2011
Next Hearing Date 25-08-2011
Assessment Year 2002-2003
Appeal Filed On 05-06-2008
Judgment Text
IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI A BENCH CHENNAI. BEFORE SHRI.U.B.S. BEDI J.M. & SHRI. N.S. SAINI A .M. I.T.A. NO. 1215/MDS/2008 ASSESSMENT YEAR: 2002-03 THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE XIII 121 N.H. ROAD CHENNAI 600 034. VS. SMT. G.V. JAYALAKSHMI NO.46 HALLS ROAD KILPAUK CHENNAI 600 010. [PAN:AEKPJ1571R] (APPELLANT) (RESPONDENT) I .T.A. NO. 1249/MDS/2008 ASSESSMENT YEAR: 2002-03 SMT. G.V. JAYALAKSHMI NO.46 HALLS ROAD KILPAUK CHENNAI 600 010. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE XIII CHENNAI 600 034. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SHAJI P. JACOB SR. DR ASSESSEE BY : SHRI T. BANUSEKAR C.A. DATE OF HEARING : 25.08.2011 DATE OF PRONOUNCEMENT 09.09.2011 ORDER PER BENCH THESE TWO CROSS APPEALS ONE BY THE REVENUE AND THE OTHER BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY TH E LD. CIT(A) XII CHENNAI DATED 29.02.2008 RELEVANT TO THE ASSESSMENT YEAR 2002-03 2. IN THE APPEAL OF THE REVENUE BESIDES CHALLENGI NG THE ACTION OF THE LD. CIT(A) IN FIXING THE FAIR MARKET VALUE AS ON 01.04. 1981 AT ` . 2.50 LAKHS PER GROUND SINCE ` .50 000/- AS ADOPTED BY THE ASSESSING OFFICER ON TH E BASIS OF GUIDELINE VALUE OBTAINED FROM SUB-REGISTRAR OFFICE THE ACTIO N OF LD. CIT(A) IN GRANTING EXEMPTION UNDER SECTION 54 ON THE BASIS OF FRESH EV IDENCE WITHOUT GRANTING ANY I II I.T.A. NO. .T.A. NO. .T.A. NO. .T.A. NO.1 11 1215 & 1249 215 & 1249 215 & 1249 215 & 1249/MDS/ /MDS/ /MDS/ /MDS/08 0808 08 2 OPPORTUNITY TO THE ASSESSING OFFICER IN VIOLATION O F RULE 46A OF THE ITAT RULE HAS BEEN CHALLENGED. 3. AS REGARDS GROUND NO. 3 OF THE REVENUES APPEAL THE ISSUE IS WITH REGARD TO DEDUCTION UNDER SECTION 54 BY OBTAINING ADDITION AL EVIDENCES WITHOUT FOLLOWING RULE 46A BOTH THE SIDES HAVE AGREED AND SUBMITTED THAT THERE IS A VIOLATION OF RULE 46A BECAUSE CERTAIN DOCUMENTS WERE OBTAINED B Y THE LD. CIT(A) WITHOUT ASSOCIATING THE ASSESSING OFFICER WITH THE APPEAL P ROCEEDING OR WITHOUT SEEKING ANY REMAND REPORT FROM THE ASSESSING OFFICER. THERE FORE THIS ISSUE CAN BE SET ASIDE AND MATTER MAY BE RESTORED BACK TO THE FILE O F THE ASSESSING OFFICER. 4. WE HAVE HEARD BOTH THE SIDES ON THIS ISSUE AND FIND THAT CERTAIN FRESH EVIDENCE HAS BEEN OBTAINED BY THE LD. CIT(A) TO DEC IDE THE ISSUE IN RELATION TO RELIEF UNDER SECTION54/54F OF THE IT ACT WITHOUT AS SOCIATING THE ASSESSING OFFICER WITH THE APPEAL PROCEEDINGS OR SEEKING ANY REMAND R EPORT FROM THE ASSESSING OFFICER. THEREFORE IT IS A CLEAR VIOLATION OF RULE 46A IN THIS REGARD. AS SUCH WHILE ACCEPTING THE COMMON CONTENTION OF BOTH THE SIDES WE SET ASIDE THE ORDER OF AUTHORITIES BELOW ON THIS ISSUE AND RESTORE THE MAT TER BACK ON THE FILE OF ASSESSING OFFICER WITH THE DIRECTION TO REDECIDE THE ISSUE AF TER GIVING DUE OPPORTUNITY TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. 5. AS REGARDS GROUND NO. 2 AND 2.1 OF REVENUES AP PEAL WHICH IS STATED TO BE SIMILAR TO GROUND NO. 3 OF ASSESSEES APPEAL RELAT ES TO NOT ADOPTING THE 01.04.1981 VALUE AT ` .1.00 LAKH PER GROUND AS PER THE VALUATION REPORT S UBMITTED BY THE ASSESSEE. IT IS A COMMON GROUND OF BOTH THE SIDES THAT IN THE CASE OF CO- OWNER OF THE PROPERTY THE ITAT HAS ADOPTED THE VAL UE OF ` .1.00 LAKH PER GROUND AS I II I.T.A. NO. .T.A. NO. .T.A. NO. .T.A. NO.1 11 1215 & 1249 215 & 1249 215 & 1249 215 & 1249/MDS/ /MDS/ /MDS/ /MDS/08 0808 08 3 ON 01.04.1981 TO WORK OUT THE CAPITAL GAIN. THEREFO RE THE SAME SHOULD BE ADOPTED HERE. 6. AFTER HAVING HEARD BOTH THE SIDES AND CONSIDERI NG THE MATERIAL ON RECORD AS WELL AS COMMON GROUND RAISED WE FIND THAT THE ISSU E IS SQUARELY COVERED BY EARLIER DECISION OF THE ITAT A BENCH IN ITA NOS. 2944 & 2 945/MDS/2005 DATED 13.04.2007 WHEREIN THE FAIR MARKET VALUE WAS FIXED AT ` .1.00 LAKHS PER GROUND IN RESPECT OF OTHER TWO CO-OWNER OF THE PROPERTY. THER EFORE WHILE FOLLOWING THE ABOVE DECISION OF THE ITAT WE SET ASIDE THE ORDERS OF AU THORITIES BELOW ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO ADOPT THE VALUE AT ` .1.00 LAKHS PER GROUND TO WORK OUT THE CAPITAL GAIN. WE HOLD AND DIRECT ACCORDINGL Y. 7. THE ASSESSEE HAS ALSO RAISED REOPENING ISSUE IN HER APPEAL AND IT IS CONTENDED THAT SINCE THE ASSESSMENT ORDER HAS BEEN PASSED ON 31.12.2007 SO IT IS BEYOND THE TIME LIMIT PRESCRIBED. AS SUCH THE O RDER OF REASSESSMENT SHOULD BE QUASHED. 8. THE LD. DR SUBMITTED THAT PRIOR TO REOPENING UN DER SECTION 148 THE RETURN WAS ONLY PROCESSED UNDER SECTION 143(1) AND THERE I S NO ASSESSMENT ORDER HAVING BEEN PASSED. HENCE THE ISSUE IS SQUARELY COVERED B Y THE HONBLE APEX COURTS DECISION IN THE CASE OF ACIT V. RAJESH JHAVERI STOC K BROKERS P. LTD. 291 ITR 500. THEREFORE THE PLEA OF THE ASSESSEE IN THIS REGARD SHOULD BE DISMISSED. 9. AFTER HAVING HEARD BOTH THE SIDES AND CONSIDERI NG THE MATERIAL ON RECORD WE FIND THAT ITS A CASE WHERE PROCESSING HAS BEEN DONE UNDER SECTION 143(1) AND NO ASSESSMENT HAS BEEN FRAMED WHEN NOTICE UNDER SEC TION 148 DATED 16.02.2006 WAS STATED TO BE SERVED ON 03.03.2007 WHICH PERIOD COMES WITHIN 4 YEARS FROM I II I.T.A. NO. .T.A. NO. .T.A. NO. .T.A. NO.1 11 1215 & 1249 215 & 1249 215 & 1249 215 & 1249/MDS/ /MDS/ /MDS/ /MDS/08 0808 08 4 THE END OF THE ASSESSMENT YEAR. THEREFORE INITIATI ON OF REASSESSMENT PROCEEDINGS CANNOT BE HELD TO BE BAD IN LAW IN VIEW OF THE HON BLE SUPREME COURTS DECISION IN THE CASE OF ACIT V. RAJESH JHAVERI STOCK BROKERS P. LTD. (SUPRA) AS CITED BY THE LD. DR. AS SUCH THE APPEAL OF THE ASSESSEE ON THIS GRO UND IS DISMISSED. 10. IN THE RESULT BOTH THE APPEALS OF THE REVENUE AS WELL AS ASSESSEE ARE PARTLY ALLOWED/STATISTICAL PURPOSE. ORDER PRONOUNCED ON 09.09.2011. SD/- SD/- (N.S. SAINI) ACCOUNTANT MEMBER (U.B.S. BEDI) JUDICIAL MEMBER CHENNAI DATED THE 09.09.2011 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.