Bakhtawar Singh Shaktawat, UDAIPUR v. ITO, UDAIPUR

ITA 242/JODH/2011 | misc
Pronouncement Date: 30-03-2012 | Result: Partly Allowed

Appeal Details

RSA Number 24223314 RSA 2011
Assessee PAN EAROF1995F
Bench Jodhpur
Appeal Number ITA 242/JODH/2011
Duration Of Justice 9 month(s) 29 day(s)
Appellant Bakhtawar Singh Shaktawat, UDAIPUR
Respondent ITO, UDAIPUR
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted SMC
Tribunal Order Date 30-03-2012
Date Of Final Hearing 22-03-2012
Next Hearing Date 22-03-2012
Assessment Year misc
Appeal Filed On 01-06-2011
Judgment Text
1 ITA 242-11 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH SMC JODHPUR. ( BEFORE SHRI R.K. GUPTA JUDICIAL MEMBER ) ITA NO. 242/JODH/2011 ASSTT. YEAR : 1987-88. SHRI BAKHTAWAR SINGH SHAKTAWAT VS. THE INCOME-TA X OFFICER JS BABEL & CO. 9 BAPU BAZAR UDAIPUR. WARD 2(1) UDAIPUR. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SURESH GANG DEPARTMENT BY : SHRI VINOD JOHARI DATE OF HEARING : 22.03.2012. DATE OF PRONOUNCEMENT : 30.03.2012 ORDER DATED : 30/03/2012. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 1987-88. 2. GROUND NOS. 1 TO 5 RELATE TO REOPENING OF ASSESS MENT UNDER SECTION 148 DATED 6.3.1995. 3. BRIEF FACTS OF THE CASE ARE THAT A NOTICE UNDER SECTION 148 WAS ISSUED SOMETIME IN 1988. DISPUTE AROSE WHETHER THIS NOTICE WAS FOR IN DIVIDUAL OR FOR HUF. THIS CONTROVERSY WAS SETTLED BY THE TRIBUNAL BY PASSING ORDER IN THE CASE OF INDIVIDUAL THAT ISSUANCE OF NOTICE WAS FOR HUF. AFTER ISSUANCE OF NOTICE UNDER SECTION 148 IN 1988 THE ASSESSEE FILED RETURN ALSO. THEREAFTER NEITHER ANY NOTICE UNDER SECTION 143(2) WAS ISSUED NOR ANY 2 ASSESSMENT PROCEEDINGS FOR COMPLETION OF ASSESSMENT UNDER SECTION 143(3) STARTED. THE ASSESSMENT PROCEEDINGS IN INDIVIDUAL CAPACITY WAS G OING ON AND ADDITION ON ACCOUNT OF CAPITAL GAIN WAS MADE IN THE HANDS OF INDIVIDUAL. MATTER REACHED UPTO THE STAGE OF TRIBUNAL AND THE TRIBUNAL HELD THAT 50% OF CAPITAL GAIN IS LIABLE TO BE ASSESSED IN THE HANDS OF INDIVIDUAL AND 50% IN THE HANDS OF HUF. A FTER RECEIVING THE ORDER OF TRIBUNAL THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 1 48 ON 6.3.1995. MATTER CAME BEFORE THE TRIBUNAL AND THE TRIBUNAL SET ASIDE TO THE FILE OF ASSESSING OFFICER AND THEN REASSESSMENT WAS MADE BY WHICH THE ADDITION OF THE AMOUNT OF CAPITAL GAIN AS PER ORDER OF TRIBUNAL ASSESSABLE IN THE HANDS OF HUF WAS ASSE SSED IN THE CAPACITY OF HUF. 4. ASSESSEE PREFERRED APPEAL BEFORE LD. CIT (A) RAI SING THAT INITIATION OF PROCEEDINGS UNDER SECTION 148 IS BAD IN LAW. THE GROUND OF THE ASSESSEE WAS DISMISSED BY PASSING APPELLATE ORDER EX PARTE AS NONE APPEARED BEFORE LD . CIT (A). THE ADDITION MADE BY LD. CIT (A) WAS ALSO CONFIRMED. 5. NOW THE ASSESSEE IS IN APPEAL HERE BEFORE THE TR IBUNAL. 6. AFTER CONSIDERING THE SUBMISSIONS OF BOTH SIDES I FIND THAT LEGAL GROUND RAISED IS LIABLE TO BE DISMISSED. IT IS A MATTER OF FACT THA T ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 AFTER RECEIVING THE ORDER OF TRIBUNAL D ECIDED IN INDIVIDUAL CAPACITY OF THE ASSESSEE BY WHICH 50% CAPITAL GAIN WAS TO BE ASSESS ED IN THE HANDS OF HUF. NOTICE UNDER SECTION 148 WAS ISSUED WITHIN TIME AS PER PRO VISIONS OF LAW AND 50% CAPITAL GAIN WAS TO BE ASSESSED IN THE HANDS OF HUF THEREFORE NOTICE UNDER SECTION 148 WAS ISSUED AFRESH. THIS NOTICE CANNOT BE TERMED IN CONTINUATI ON OF PROCEEDINGS OF NOTICE UNDER SECTION 148 ISSUED EARLIER IN THE YEAR 1988. AS AG AINST THAT NOTICE ASSESSEE FILED RETURN AND THE SAME WAS ACCEPTED BY THE ASSESSING OFFICER. THEREFORE TO ASSESS THE CAPITAL GAIN 3 @ 50% DETERMINED BY TRIBUNAL WAS TO BE ASSESSED IN THE HANDS OF HUF AND THEREFORE NOTICE UNDER SECTION 148 WAS ISSUED. IN MY VIEW I SSUANCE OF NOTICE UNDER SECTION 148 WAS VALID NOTICE. ACCORDINGLY I CONFIRM THE ORDER O F ASSESSING OFFICER IN ISSUING NOTICE UNDER SECTION 148. THESE GROUNDS OF THE ASSESSEE AR E DISMISSED. 7. NEXT ISSUE IS AGAINST TREATING THE HUF SPECIFIED INSTEAD OF HUF NON-SPECIFIED. 8. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD I DO NOT FIND ANY INFIRMITY IN THE FINDING OF LD. CIT (A) WH O HAS RESTORED THE MATTER TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO VERIFY THAT A S TO WHETHER OTHER MEMBERS OF HUF HAVE TAXABLE INCOME OR NOT. IF NONE OF THE FAMILY MEMBERS HAVE TAXABLE INCOME THEN THE HUF SHALL BE ASSESSED AS NON-SPECIFIED HUF. IN THI S DIRECTION I SEE NO UNREASONABLENESS. ACCORDINGLY I CONFIRM THE ORDER O F LD. CIT (A) IN THIS REGARD AND GROUND OF THE ASSESSEE IS REJECTED WHICH IS MIS-CON CEIVED BY WHICH IT HAS BEEN STATED THAT LOWER AUTHORITIES HAVE TREATED THE HUF AS SPECIFIED HUF WHICH IS NOT THE CASE IN HAND AS LD. CIT (A) HAS RESTORED THE ISSUE TO THE FILE OF A SSESSING OFFICER FOR VERIFICATION. 9. GROUND NO. 7 IS AGAINST CHARGING OF INTEREST UND ER SECTION 139(8). 10. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE ORDERS OF THE AUTHORITIES BELOW I FIND THAT ASSESSEE DESERVES TO SUCCEED IN THIS GROUND. ORIGINAL RETURN WAS FILED IN TIME AND THERE WAS NO TAX PAYABLE AND THEREFORE THERE IS NO QUESTION OF CHARGING ANY INTEREST UNDER SECTION 139(8). NOW NOTICE UNDER SE CTION 148 WAS ISSUED IN THE YEAR OF 1995 FOR ASSESSING THE CAPITAL GAIN DETERMINED BY T RIBUNAL WHILE PASSING ORDER IN CASE OF INDIVIDUAL. THEREFORE IN MY VIEW INTEREST UNDER S ECTION 139(8) IS NOT CHARGEABLE ON THE FACTS OF THE PRESENT CASE. ACCORDINGLY I ALLOW TH E GROUND OF THE ASSESSEE AND CANCEL THE LEVY OF INTEREST CHARGED UNDER SECTION 139(8). 4 11. REMAINING ISSUE IS IN RESPECT OF CHARGING OF IN TEREST UNDER SECTION 215 & 217. 12. IT WAS SUBMITTED THAT THIS IS A CASE OF ASSESSI NG CAPITAL GAIN ON THE BASIS OF ORDER OF TRIBUNAL PASSED IN INDIVIDUAL CAPACITY OF THE AS SESSEE AND THEREFORE INTEREST UNDER SECTION 215 AND 217 CANNOT BE LEVIED AS FOR ASSESSM ENT YEAR 1987-88 NO ADVANCE TAX WAS PAYABLE ON CAPITAL GAIN. THESE SUBMISSIONS OF THE ASSESSEE IN MY CONSIDERED VIEW ARE CORRECT. THEREFORE I DIRECT TO DELETE THE INTEREST CHARGED UNDER SECTION 215 AND 217. 13. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWE D IN PART. 14. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30 .03.2012. SD/- ( R.K. GUPTA ) JUDICIAL MEMBER JODHPUR COPY FORWARDED TO :- SHRI BAKHTAWAR SINGH SHAKTAWAT UDAIPUR THE ITO WARD 2(1) UDAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 242/JODH/2011) BY ORDER AR ITAT JODHPUR.