SH JAGDISH SAIN, Jaipur v. ITO, Jaipur

ITA 32/JPR/2011 | 2007-2008
Pronouncement Date: 22-07-2011 | Result: Allowed

Appeal Details

RSA Number 3223114 RSA 2011
Bench Jaipur
Appeal Number ITA 32/JPR/2011
Duration Of Justice 6 month(s) 11 day(s)
Appellant SH JAGDISH SAIN, Jaipur
Respondent ITO, Jaipur
Appeal Type Income Tax Appeal
Pronouncement Date 22-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 22-07-2011
Assessment Year 2007-2008
Appeal Filed On 10-01-2011
Judgment Text
1 ITA 32(2)-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH A JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 32/JP/2011 ASSTT. YEAR : 2007-08. SHRI JAGDISH SAIN VS. THE INCOME-TAX OFFICER S/O SHRI GEEGA RAM SAIN WARD 7(4) R/O VILL. SANJHARIA POST THIKARIYA JAIPUR. TEHSIL SANGANER JAIPUR. ITA NO. 97/JP/2011 ASSTT. YEAR : 2007-08. THE INCOME-TAX OFFICER VS. SHRI JAGDISH SAIN WARD 7(4) JAIPUR. SANJHARIA JAIPUR. (APPELLANTS) (RESPONDENTS) APPELLANT BY : SHRI M.L. BORAD RESPONDENT BY : SHRI SUNIL MATHUR ORDER DATE OF ORDER : 22/07/2011. PER R.K. GUPTA J.M. THESE ARE TWO APPEALS BY ASSESSEE AND DEPARTMENT A GAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2007-08. 2. THE ASSESSEE IN HIS APPEAL HAS TAKEN 10 GROUNDS OF APPEAL. 3. FIRST GROUND IS AGAINST UPHOLDING THE EX PARTE A SSESSMENT UNDER SECTION 144 AND THE DEPARTMENT IN ITS FIRST GROUND IS OBJECTING IN ACCEPTING THE ADDITIONAL EVIDENCE UNDER RULE 46A FURNISHED BY THE ASSESSEE DESPITE VARIOUS OBJECTIONS MADE BY AO AS AO HIMSELF HAS ALLOWED MANY OPPORTUNITIES BEFORE COMPL ETING ASSESSMENT UNDER SECTION 144. 2 4. AFTER HEARING BOTH THE PARTIES ON THESE GROUNDS IT WAS FELT THAT MATTER SHOULD GO BACK TO THE FILE OF AO TO EXAMINE THE MATTER AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. VARIOU S ISSUES HAVE BEEN RAISED BY THE ASSESSEE IN HIS APPEAL WHICH REQUIRED DETAILED VERI FICATION AND INVESTIGATION. FOR EXAMPLE THE ASSESSEE HAS CLAIMED IMPROVEMENT COST OF RS. 24.50 LACS. IN SUPPORT OF THIS CLAIM ONLY AN AFFIDAVIT WAS FILED AND THE SAME HAS BEEN REJECTED BY THE LD. CIT (A). THE LD. COUNSEL OF THE ASSESSEE STATED THAT THERE IS AM PLE EVIDENCE IN RESPECT TO IMPROVEMENT EXPENDITURE MADE BY ASSESSEE WHICH IS ASCERTAINABLE ALSO. THESE NEED VERIFICATION AND INVESTIGATION AT THE END OF THE AO. 5. SIMILARLY THE ISSUE IN APPEAL OF ASSESSEE IS TH AT LAND IN QUESTION IS SITUATED BEYOND 8 KM OF MUNICIPAL LIMIT AND THEREFORE THE LAND IN QUESTION IS NOT CAPITAL ASSET IN TERMS OF SECTION 2(14) WHEREAS THE LD. CIT (A) HAS TREATED THAT THE LAND IN QUESTION IS SITUATED WITHIN 8 KM OF MUNICIPAL LIMIT AND IS LIAB LE FOR CAPITAL GAIN TAX. THIS FACT ALSO NEEDS VERIFICATION. THE ASSESSEE HAS CLAIMED FURTH ER DEDUCTION UNDER SECTION 54B WHICH HAS ALSO NOT BEEN ALLOWED BY LD. CIT (A). AGAIN TH IS NEEDS RE-VERIFICATION. 6. SIMILARLY THE DEPARTMENT IS OBJECTING IN ALLOWIN G DEDUCTION UNDER SECTION 54F AND AS PER AO THIS DEDUCTION IS NOT AVAILABLE TO THE AS SESSEE. AGAIN WE ARE OF THE VIEW THAT THIS NEEDS RE-VERIFICATION AT THE END OF THE AO. 7. KEEPING IN MIND ALL THESE FACTS AND OTHER CIRCUM STANCES WE ARE OF THE VIEW THAT MATTER SHOULD GO BACK TO THE FILE OF AO FOR FRESH E XAMINATION. THIS WAS PROPOSED DURING THE APPELLATE PROCEEDINGS ITSELF AND BOTH THE PARTI ES HAVE FAIRLY AGREED THAT MATTER CAN BE SENT BACK TO THE FILE OF AO TO EXAMINE THE ISSUE AF RESH AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORD INGLY WE SET ASIDE THE ORDER OF LD. CIT 3 (A) AND RESTORE THE MATTERS TO THE FILE OF AO TO DE CIDE THE SAME AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. WE ORDER ACCORDINGLY. 8. IN THE RESULT APPEAL OF THE ASSESSEE AND APPEAL OF THE DEPARTMENT ARE ALLOWED FOR STATISTICAL PURPOSES. 9. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 22. 7.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR D/- COPY FORWARDED TO :- SHRI JAGDISH SAIN SANJHARIA JAIPUR. THE ITO WARD 7(4) JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 32(2)/JP/2011) BY ORDER AR ITAT JAIPUR.