ITO, Ward-31(2),, v. B D Gupta & Sons (HUF),,

ITA 2378/DEL/2004 | 1994-1995
Pronouncement Date: 03-11-2011 | Result: Partly Allowed

Appeal Details

RSA Number 237820114 RSA 2004
Bench Delhi
Appeal Number ITA 2378/DEL/2004
Duration Of Justice 7 year(s) 5 month(s) 19 day(s)
Appellant ITO, Ward-31(2),,
Respondent B D Gupta & Sons (HUF),,
Appeal Type Income Tax Appeal
Pronouncement Date 03-11-2011
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted E
Tribunal Order Date 03-11-2011
Date Of Final Hearing 03-11-2011
Next Hearing Date 03-11-2011
Assessment Year 1994-1995
Appeal Filed On 14-05-2004
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH E BENCH E BENCH E BENCH E : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.D.AGRAWAL BEFORE SHRI G.D.AGRAWAL BEFORE SHRI G.D.AGRAWAL BEFORE SHRI G.D.AGRAWAL VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI A.D.JAIN JUDICIAL MEMBER SHRI A.D.JAIN JUDICIAL MEMBER SHRI A.D.JAIN JUDICIAL MEMBER SHRI A.D.JAIN JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NOS SS S. .. .2376 TO 2381/DEL/2004 702/DEL/2002 & 4305/DEL/200 4 2376 TO 2381/DEL/2004 702/DEL/2002 & 4305/DEL/2004 2376 TO 2381/DEL/2004 702/DEL/2002 & 4305/DEL/2004 2376 TO 2381/DEL/2004 702/DEL/2002 & 4305/DEL/2004 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 1992 1992 1992 1992- -- -93 9393 93 TO 1998 TO 1998 TO 1998 TO 1998- -- -99 & 2001 99 & 2001 99 & 2001 99 & 2001- -- -02 0202 02 I II INCOME TAX OFFICER NCOME TAX OFFICER NCOME TAX OFFICER NCOME TAX OFFICER WARD WARD WARD WARD- -- -31(2) 31(2) 31(2) 31(2) NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. M/S B.D.GUPTA & SONS (HUF) M/S B.D.GUPTA & SONS (HUF) M/S B.D.GUPTA & SONS (HUF) M/S B.D.GUPTA & SONS (HUF) 26 SCHOOL LANE BENGALI MARKET 26 SCHOOL LANE BENGALI MARKET 26 SCHOOL LANE BENGALI MARKET 26 SCHOOL LANE BENGALI MARKET NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (RESPONDENT) CROSS OBJECTION NOS.185 TO 192/DEL/2008 CROSS OBJECTION NOS.185 TO 192/DEL/2008 CROSS OBJECTION NOS.185 TO 192/DEL/2008 CROSS OBJECTION NOS.185 TO 192/DEL/2008 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 1992 1992 1992 1992- -- -93 TO 1998 93 TO 1998 93 TO 1998 93 TO 1998- -- -99 & 2001 99 & 2001 99 & 2001 99 & 2001- -- -02 0202 02 M/S B.D.GUPTA & SONS M/S B.D.GUPTA & SONS M/S B.D.GUPTA & SONS M/S B.D.GUPTA & SONS (HUF) (HUF) (HUF) (HUF) 26 SCHOOL LANE 26 SCHOOL LANE 26 SCHOOL LANE 26 SCHOOL LANE BENGALI MARKET BENGALI MARKET BENGALI MARKET BENGALI MARKET NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. INCOME TAX OFFICER INCOME TAX OFFICER INCOME TAX OFFICER INCOME TAX OFFICER WARD WARD WARD WARD- -- -31(2) 31(2) 31(2) 31(2) NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (RESPONDENT) DEPARTMENT BY : SHRI R.S.NEGI SR.DR. ASSESSEE BY : SHRI M.P.RASTOGI AND SMT.LALITHA KRISHNAMURTHY CAS. ORDER ORDER ORDER ORDER PER BENCH PER BENCH PER BENCH PER BENCH : :: : THE EIGHT APPEALS OF THE DEPARTMENT HAVE BEEN REMA NDED BY THE HONBLE HIGH COURT VIDE ORDER DATED 11.9.2008. THE EIGHT RESPECTIVE CROSS OBJECTIONS HAVE BEEN FILED BY THE ASSESSEE. THE RELEVANT PORTION OF THE HIGH COURT ORDER READS AS F OLLOWS:- THE ORDER PASSED ON 30.08.2005 IN RESPECT OF THE ASSESSMENT YEAR 1998-99 HAS BEEN TREATED AS THE MAI N ORDER WHICH HAS BEEN FOLLOWED BY THE TRIBUNAL IN TH E OTHER ORDERS. IN THE ORDER DATED 30.08.2005 THE TRIBUNA L HAS CONFIRMED THE VIEW TAKEN BY THE COMMISSIONER OF INC OME- TAX (APPEALS) WHEREIN NOTE OF THE ORDER DATED 17.02 .1984 PASSED BY THIS COURT IN AN INTERLOCUTORY APPLICATIO N IN A PARTITION SUIT FILED BY ONE OF THE HEIRS OF LATE MR .B.D.GUPTA ITA-2376/DEL/2004 & OTHERS 2 WAS TAKEN. THE CIT(APPEALS) HELD THAT ONLY 40% OF THE PROPERTIES BELONGED TO THE HUF AND THE BALANCE 60% OF THE PROPERTIES WERE TO BE TREATED AS PROPERTIES IN THE HANDS OF THE HEIRS OF LATE SHRI B.D.GUPTA IN THEIR INDIVIDUA L CAPACITIES. IN THE COURSE OF ARGUMENTS BEFORE THIS COURT THE LEARNED COUNSEL FOR THE RESPONDENTS SUBMIT THAT THE SAID SUIT WHICH WAS PENDING BEFORE THIS COURT WAS SUBSEQUENTLY TRANSFERRED TO THE DISTRICT COURT ON A CCOUNT OF ENHANCEMENT OF THE PECUNIARY JURISDICTION OF THE DI STRICT COURTS. THAT SUIT WAS ULTIMATELY WITHDRAWN BY THE PLAINTIFF IN VIEW OF A FAMILY SETTLEMENT THAT HAD BEEN ARRIVE D AT BETWEEN THE PARTIES ON 05.11.2004. HE HAS PLACED O N RECORD A COPY OF THE APPLICATION UNDER ORDER 8 RULE 1A READ WITH SECTION 151 AS WELL AS PHOTOCOPY OF THE F AMILY SETTLEMENT DATED 05.11.2004 AND A PHOTOCOPY OF THE APPLICATION FILED BY THE PLAINTIFF (SMT. SNEHA LATA GUPTA) FOR WITHDRAWAL OF THE SUIT. ALSO PLACED ON RECORD IS A PHOTO COPY OF THE ORDER DATED 19.05.2006 PASSED BY THE LE ARNED ADDITIONAL DISTRICT JUDGE WHEREBY THE SUIT WAS PERM ITTED TO BE WITHDRAWN AFTER RECORDING THE STATEMENTS OF THE PARTIES. 3. THE ASSESSING OFFICER AS WELL AS THE COMMISSIONE R OF INCOME-TAX (APPEALS) AND THE TRIBUNAL HAVE RECORDED THAT THE ORDERS PASSED BY THEM WOULD BE SUBJECT TO THE F INAL ORDER PASSED BY THE HIGH COURT IN RESPECT OF THE BA LANCE 40% SHARE WHICH WAS BEING TREATED AT THE HANDS OF T HE HUF. 4. THE SUBSEQUENT DEVELOPMENTS OF THE TRANSFER OF T HE SUIT TO THE DISTRICT COURT AND THE WITHDRAWAL THERE OF IN VIEW OF THE FAMILY SETTLEMENT WAS NOT BEFORE THE TRIBUNA L WHEN THE IMPUGNED ORDER WAS PASSED. THE LEARNED COUNSEL FOR THE PARTIES AGREE THAT IN VIEW OF THESE DEVELOPMENT S THE MATTER BE REMANDED TO THE TRIBUNAL FOR CONSIDERING THE ENTIRE ISSUE AFRESH IN ACCORDANCE WITH LAW. CONSEQ UENTLY WE SET ASIDE THE IMPUGNED ORDER AND REMAND THE MATT ER TO THE INCOME-TAX APPELLATE TRIBUNAL TO CONSIDER THE A PPEALS AFRESH AFTER TAKING INTO ACCOUNT THE FURTHER DEVELO PMENTS THAT HAVE TAKEN PLACE AS INDICATED ABOVE. IT WOULD BE OPEN TO THE TRIBUNAL TO PASS ANY ORDER IN ACCORDANC E WITH LAW. IN DOING SO THE TRIBUNAL SHALL TAKE NOTE OF THE PROVISIONS OF THE INCOME-TAX ACT 1961 AND IN PARTI CULAR SECTION 171 THEREOF. THIS ORDER IS ALSO BEING PASS ED BECAUSE WHEN THE SUIT WAS PERMITTED TO BE WITHDRAWN BY THE ORDER DATED 19.05.2006 THERE WAS ALSO A SPECIFI C DIRECTION THAT THE ORDER DATED 17.02.1984 WHICH HA D BEEN TAKEN NOTE OF BY THE COMMISSIONER OF INCOME-TAX (AP PEALS) AS ALSO THE TRIBUNAL HAD BEEN VACATED. ITA-2376/DEL/2004 & OTHERS 3 WITH THESE DIRECTIONS THESE APPEALS STAND DISPOSE D OF. 2. THE ASSESSEE IS AN HUF ENGAGED IN THE BUSINESS O F TRADING IN SPORTS GOODS. IT ALSO HAS INCOME FROM HOUSE PROPER TY AND OTHER SOURCES. ITS ORIGINAL KARTA SHRI B.D.GUPTA HAD EX PIRED IN 1970. SMT.SNEH LATA GUPTA AND HEIR OF SHRI B.D.GUPTA AND MEMBER OF THE SAID HUF HAD FILED A SUIT IN 1983 FOR PARTITION. VIDE INTERIM ORDER DATED 17.2.1984 (COPY AT PAGES 2 TO 20 OF THE ASSES SEES PAPER BOOK APB FOR SHORT FOR AY 1998-99) THE HON'BLE DELHI HIGH COURT HAD DECIDED THAT ONLY 40% OF THE PROPERTIES LEFT BEHIND BY SHRI B.D.GUPTA BELONGED TO THE HUF. THE CIT(A) VIDE ORDER DATED 28.12.2001 FOR AY 1998-99 FOLLOWED THE SAID INTERIM ORDER OF THE HIG H COURT TO HOLD THAT ONLY 40% OF THE PROPERTIES BELONGED TO THE HUF AND THAT THE BALANCE 60% OF THE PROPERTIES WERE INDIVIDUAL PROPERTIES IN THE HANDS OF THE HEIRS OF LATE SHRI B.D.GUPTA. THE TRIBUNAL VIDE O RDER DATED 30.8.2005 FOR AY 1998-99 FOLLOWED FOR THE OTHER ASSESSMENT Y EARS UPHELD THE SAID ORDER OF THE CIT(A). 3. THE AFOREMENTIONED PARTITION SUIT ON ENHANCEMEN T OF THE PECUNIARY JURISDICTION OF THE DISTRICT COURTS OF DE LHI WAS TRANSFERRED BY THE HIGH COURT TO THE DISTRICT COURT. A FAMILY SET TLEMENT DATED 5.11.2004 WAS ARRIVED AT BETWEEN THE PARTIES TO THE PARTITION SUIT. PURSUANT TO THAT FAMILY SETTLEMENT THE SUIT WAS PR AYED TO BE WITHDRAWN BY THE PLAINTIFF. BY VIRTUE OF ORDER DAT ED 19.5.2006 THE LEARNED ADDITIONAL DISTRICT JUDGE PERMITTED THE WIT HDRAWAL OF THE SUIT WHICH IS POST THE AFOREMENTIONED TRIBUNAL ORDER DA TED 30.8.2005. 4. IT IS THE ABOVE SUBSEQUENT DEVELOPMENTS WHICH HA VE RESULTED IN THE REMAND OF THESE MATTERS BY THE HONBLE HIGH COU RT TO THE TRIBUNAL AS NOTED BY THE HONBLE HIGH COURT IN THEIR ORDER D ATED 11.9.2008 (SUPRA). ITA-2376/DEL/2004 & OTHERS 4 5. THE ASSESSING OFFICER IN THE FACT-SITUATION OBT AINING AT THE TIME OF THE PENDENCY OF PROCEEDINGS BEFORE HIM HAD HELD THAT THE TOTAL INCOME OF `9 88 581/- INCLUDING THE BUSINESS INCOM E OF M/S GUPTA SPORTS HOUSE WAS ASSESSABLE IN THE HANDS OF THE HU F ON A PROTECTIVE BASIS TILL THE PARTITION OF THE HUF BY WAY OF FINA L DECISION IN THE PARTITION SUIT. 6. THE AFORESAID SUBSEQUENT DEVELOPMENTS IN THE MAT TER IN THE SHAPE OF WITHDRAWAL OF THE PARTITION SUIT HAVE REN DERED THE ASSESSMENTS OPEN ONCE AGAIN AND THE ASSESSMENTS REQ UIRE TO BE FRAMED DE-NOVO IN THE LIGHT THEREOF SO AS TO PROV IDE THE PARTIES I.E. THE ASSESSEE HUF AS WELL AS THE DEPARTMENT A FRESH FAIR OPPORTUNITY TO ENABLE CORRECT ASSESSMENTS TO BE ARRIVED AT. 7. ACCORDINGLY ALL THE EIGHT APPEALS OF THE DEPART MENT ALONGWITH THE RESPECTIVE CORRESPONDING CROSS-OBJECTIONS OF TH E ASSESSEE ARE REMITTED TO THE ASSESSING OFFICER FOR FRAMING THE A SSESSMENTS DE-NOVO IN ACCORDANCE WITH LAW IN THE LIGHT OF THE HIGH CO URT ORDER DATED 11.9.2008 (SUPRA). THE PARTIES HAVE MUTUALLY AGREE D TO THIS COURSE BEING ADOPTED. 8. IN THE RESULT FOR STATISTICAL PURPOSES ALL THE EIGHT APPEALS OF THE DEPARTMENT AND ALL THE RESPECTIVE CORRESPONDING EIG HT CROSS- OBJECTIONS OF THE ASSESSEE ARE TREATED AS ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 3 RD NOVEMBER 2011. SD/- SD/- (G.D.AGRAWAL (G.D.AGRAWAL (G.D.AGRAWAL (G.D.AGRAWAL) )) ) ( (( (A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN) )) ) VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 03.11.2011 VK. ITA-2376/DEL/2004 & OTHERS 5 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT ASSISTANT REGISTRAR