Babulal Alias Balu Ram, Jodhpur v. ITO, Ward-1(1), Jodhpur

ITA 195/JODH/2018 | 2012-2013
Pronouncement Date: 25-11-2019 | Result: Allowed

Appeal Details

RSA Number 19523314 RSA 2018
Assessee PAN ANZPL1432F
Bench Jodhpur
Appeal Number ITA 195/JODH/2018
Duration Of Justice 1 year(s) 6 month(s) 22 day(s)
Appellant Babulal Alias Balu Ram, Jodhpur
Respondent ITO, Ward-1(1), Jodhpur
Appeal Type Income Tax Appeal
Pronouncement Date 25-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 25-11-2019
Assessment Year 2012-2013
Appeal Filed On 03-05-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH JODHPUR BEFORE SHRI N.K. SAINI VICE PRESIDENT AND SHRI SANDEEP GOSAIN JUDICIAL MEMBER ITA NO. 195/JODH/2018 ASSESSMENT YEAR: 2012-13 SHRI BABULAL ALIAS BALU RAM VS. THE ITO VILL: KUDI BHAGTASANI WARD 1(1) NEAR WATER TANK JODHPUR JODHPUR PAN NO. ANZPL1432F (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.K. SARAF C.A DEPARTMENT BY: SHRI K.C. BADHOK CIT DR DATE OF HEARING : 25/11/2019 DATE OF PRONOUNCEMENT : 25/11/2019 O R D E R PER N.K. SAINI VICE PRESIDENT : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORD ER DT. 15/02/2018 OF THE LD. CIT(A)-1 JODHPUR. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT ACCORDING TO THE FACTS AND CIRCUMSTANCES OF TH E CASE THE LEARNED CIT (APPEALS) HAS ERRED IN REJECTING THE APPEAL FOR DELETING THE ADDI TIONS OF RS. 5 34 11 530/- MADE BY THE LEARNED ITO WARD 1(1) JODHPUR. 2. THAT THE LEARNED CIT (APPEALS) HAS GROSSLY ERRED IN UPHOLDING THE INVOKING OF AND PROCEEDINGS UNDER THE PROVISIONS OF SECTION 147 OF THE INCOME TAX ACT 1961 BY THE LEARNED ITO & ISSUING NOTICE UNDER SECTION 148 BY HIM DUE T O VARIOUS REASONS INCLUDING THE FACTS THAT THE LEARNED ITO DID NOT HAVE ANY 'REASON TO BELIEVE ' NOR DID HE ISSUE ANY NOTICE UNDER SECTION 143(2) AND HE DID NOT DISPOSE OFF THE OBJEC TIONS RAISED ETC. 3. THAT THE LEARNED CIT (APPEALS) HAS ERRED IN UPHOLDI NG THE DEEMING OF THE DATE OF SALE OF 2 LANDS AS 14.07.2011 CONTRARY TO THE FACTS THAT THE ACTUAL DATES OF SALE FELL IN THE YEARS 1998- 99 1999-2000 IN VIEW OF THE SUB-CLAUSE (V) OF CLAU SE (47) OF SECTION 2 OF THE INCOME TAX ACT 1961 READ WITH SECTION 53A OF TRANSFER OF PROPERTY ACT AND CONSEQUENTLY CHARGING THE CAPITAL GAINS UNDER SECTION 45 OF THE INCOME TAX AC T. 4. THAT THE LEARNED CIT (APPEALS) HAS ERRED IN UPHOLDI NG THE ADOPTION OF THE VALUE OF THE LANDS UNDER SECTION 50C OF THE INCOME TAX ACT BY TH E LEARNED ITO. 5. THAT THE LEARNED CIT (APPEALS) HAS ERRED IN DISTING UISHING THE JUDGMENTS OF HON'BLE SUPREME COURT AND HIGH COURTS CITED BY THE APPELLAN T WITHOUT DISCUSSING THE RATIO OF THOSE JUDGMENTS AS THE CASE OF THE APPELLANT WAS SQUARELY COVERED BY THOSE JUDGMENTS. 6. THAT WITHOUT PREJUDICE TO THE ABOVE GROUNDS THE LEA RNED CIT (APPEALS) HAS ERRED IN NOT TAKING INTO ACCOUNT THE COST OF ACQUISITION OF THE ASSET WHILE COMPUTING CAPITAL GAINS AND THE AMOUNT OF ENTIRE SALE CONSIDERATION HAS BEEN TA KEN AS CAPITAL GAINS. 7. THAT THE LEARNED ITO HAS ERRED IN CALCULATING SURCH ARGE EDUCATION CESS AND INTEREST U/S 234A 234B AND 234C. 8. THAT ANY OTHER GROUNDS OF APPEAL MAY PLEASE BE PERM ITTED TO BE ADDED ALTERED AMENDED OR DELETED ON OR BEFORE THE DATE OF HEARING OF APPEAL. 9. THAT THE APPELLANT PRAYS THAT THE PROCEEDINGS UNDER SECTION 147 MAY PLEASE BE HELD AS AGAINST THE PROVISIONS OF LAW AND CONSEQUENTLY THE ADDITIONS OF RS.5 34 11 530/- MAY PLEASE BE DELETED. 10. THAT THE APPELLANT CRAVES FOR JUSTICE. 2. AT THE FIRST INSTANCE THE ONLY LEGAL GROUND RELA TING TO THE ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT 1961 (HEREINAFTER REF ERRED TO AS ACT) RAISED VIDE GROUND NO. 2 WAS ARGUED BY BOTH THE PARTIES. 3. LD. COUNSEL OF THE ASSESSEE AT THE VERY OUTSET S TATED THAT NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED AND THIS FACT HAS ALREADY BEE N MENTIONED BY THE LD. CIT(A) IN PARA 3.3 OF THE IMPUGNED ORDER. 4. HE RELIED UPON THE LATEST JUDGMENT OF THE HON'BL E SUPREME COURT IN THE CASE OF CIT VS. LAXMAN DAS KHANDELWAL IN CIVIL APPEAL NOS. 6261-626 2 OF 2019 ORDER DATED 13/08/2019 (COPY OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON REC ORD). 5. IN HIS RIVAL SUBMISSIONS THE LD. SR. DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSEE COOPERATED AND APPEARED IN THE PROCEEDINGS BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE LD. CIT( A). THEREFORE IN VIEW OF THE PROVISIONS CONTAINED UNDER SECTION 292BB OF THE ACT THE LD. CI T(A) WAS JUSTIFIED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT IS AN ADMITTED FACT THAT NOTICE UNDER SECTION 3 143(2) OF THE ACT WAS NOT ISSUED TO THE ASSESSEE AF TER REOPENING THE ASSESSMENT UNDER SECTION 147 R.W.S 148 OF THE ACT. ON AN IDENTICAL ISSUE THE HON'BLE APEX COURT IN THE CASE OF CIT VS. LAXMAN DAS KHANDELWAL (SUPRA) HELD AS UNDER: ' 8. THE LAW ON THE POINT AS REGARDS APPLICABILITY OF THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) OF THE ACT IS QUITE CLEAR FROM THE DECISION IN THE CASE OF ACIT VS. M/S HOTEL BLUE MOON IN CIVIL APPEAL NO. 1198 OF 2010 DT. 02/02/2010. TH E ISSUE THAT HOWEVER NEEDS TO BE CONSIDERED IS THE IMPACT OF SECTION 282BB OF THE AC T. 9. ACCORDING TO SECTION 292BB OF THE ACT IF THE AS SESSEE HAD PARTICIPATED IN THE PROCEEDINGS BY WAY OF LEGAL FICTION NOTICE WOULD BE DEEMED TO BE VALID EVEN IF THERE BE INFRACTIONS AS DETAILED IN SAID SECTION. THE SCOPE OF THE PROVISION IS TO MAEK SERVICE OF NOTICE HAVING CERTAIN INFIRMITIES TO BE PROPER AND VALID I F THERE WAS REQUISITE PARTICIPATION ON PART OF THE ASSESSEE. IT IS HOWEVER TO BE NOTED THAT THE SECTION DOES NOT SAVE COMPLETE ABSENCE OF NOTICE. FOR SECTION 292BB TO APPLY THE NOTICE M UST HAVE EMANATED FROM THE DEPARTMENT. IT IS ONLY THE INFIRMITIES IN THE MANNER OF SERVICE OF NOTICE THAT THE SECTION SEEKS TO CURE. THE SECTION IS NOT INTENDED TO CURE COMPLETE ABSENCE OF NOTICE ITSELF. 10. SINCE THE FACTS ON RECORD ARE CLEAR THAT NO NOT ICE UNDER SECTION 143(2) OF THE ACT WAS EVER ISSUED BY THE DEPARTMENT THE FINDINGS RENDERE D BY THE HIGH COURT AND THE TRIBUNAL AND THE CONCLUSION ARRIVED AT WERE CORRECT. WE THE REFORE SEE NO REASON TO TAKE A DIFFERENT VIEW IN THE MATTER. 7. WE THEREFORE KEEPING IN VIEW THE RATIO LAID DOWN BY THE HON'BLE APEX COURT IN THE AFORESAID REFERRED TO CASE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND QUASH THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WITHOUT ISSUING THE NOTICE UNDER SECTION 143(2) WHICH IS MANDATORY REQUIREMENT FOR FRAMING T HE ASSESSMENT UNDER SECTION 143(3) R.W.S 147 OF THE ACT. 8. SINCE WE HAVE DECIDED THE LEGAL ISSUE IN FAVOUR OF THE ASSESSEE NO FINDINGS ARE BEING GIVEN ON THE REMAINING ISSUES RAISED BY THE ASSESSE E. 9. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 25/11/2019 ) SD/- SD/- (SANDEEP GOSAIN) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED : 25/11/2019 AG COPY TO: 1.THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR