The ITO, Ward 2, GANDHIDHAM v. Smt Sethna Dinaz Ali, GANDHIDHAM

ITA 843/RJT/2009 | 2005-2006
Pronouncement Date: 18-03-2011 | Result: Dismissed

Appeal Details

RSA Number 84324914 RSA 2009
Bench Rajkot
Appeal Number ITA 843/RJT/2009
Duration Of Justice 1 year(s) 8 month(s) 29 day(s)
Appellant The ITO, Ward 2, GANDHIDHAM
Respondent Smt Sethna Dinaz Ali, GANDHIDHAM
Appeal Type Income Tax Appeal
Pronouncement Date 18-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 18-03-2011
Assessment Year 2005-2006
Appeal Filed On 19-06-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.843/RJT/2009 (ASSESSMENT YEAR 2005-06) ITO WD.2 VS SMT. SETHNA DINAZ ALI GANDHIDHAM D-1 SHAKTI NAGAR N.U. 10 GANDHIDHAM PAN :AENPS9072H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AVINASH KUMAR RESPONDENT BY : SHRI KALPESH DOSHI O R D E R PER AL GEHLOT AM THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF CIT(A)-II RAJKOT DATED 26-03-2009 FOR THE ASSESSMENT YEAR 200 5-06. THE FOLLOWING EFFECTIVE GROUND IS RAISED IN THE APPEAL: 1) THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING OF ADDITION OF RS.9 20 260/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTY. 2. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS PUR CHASED NON AGRICULTURAL LAND BEARING AMALGAMATED SURVEY NO.2000/12 WHICH WAS CON VERTED INTO INDUSTRIAL PURPOSES SITUATE AT TAL. BHACHAU DIST. KUTCH FOR A CONSIDERATION OF RS.1 54 500 THE ASSESSING OFFICER NOTICED THAT THE VALUATION OF THE PROPERTY AS PER THE REGISTERING AUTHORITY WAS RS .10 74 760. THE ASSES SING OFFICER ACCORDINGLY MADE THE ADDITION OF RS.9 20 260. THE ASSESSING OFFICER ALSO MADE ADDITION OF RS.10 951 U/S 14A OF THE ACT. ON APPEAL THE CIT(A ) DELETED THE ADDITION OF RS.9 20 260 AFTER CONSIDERING VARIOUS JUDGMENTS INC LUDING THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF KP VERGHESE 131 ITR 51 7 (SC); ITAT JODHPUR BENCH IN THE CASE OF KAMAL KISHORE CHANDAK VS ITO 1 03 TTJ (JD) 843; RAJKOT ITA NO.843/RJT/2009 2 BENCH IN THE CASE OF SHRI BHANUSHALI VASANT KARSAND AS IN ITA NO.533/RJT/07 DATED 23-01-2009 WHEREAS THE ADDITION MADE BY THE A SSESSING OFFICER U/S 14A OF THE ACT WAS CONFIRMED BY THE CIT(A). 3. THE REVENUE FILED APPEAL IN ITA NO.843/RJT/2009 BEFORE THE ITAT AGAINST THE DELETION OF RS.9 20 260 WHEREAS THE ASSESSEE FI LED CROSS OBJECTION NO.196/RJT/2009 AGAINST THE ADDITION MADE U/S 14A C ONFIRMED BY THE CIT(A) AND THE TRIBUNAL ALLOWED THE APPEAL FILED BY THE REVENU E AND DISMISSED THE CROSS OBJECTION FILED BY THE ASSESSEE. THE ASSESSEE MOVE D MISCELLANEOUS APPLICATION IN MA NO.09/RJT/2010 WHICH WAS ALLOWED BY THE ITAT VIDE ORDER DATED 16-12- 2010 ON THE GROUND THAT DUE TO OVERSIGHT THE ITAT D ID NOT CONSIDER THE DIRECT DECISION ON THE ISSUE THOUGH IT WAS CITED BY THE LD .AR. THIS IS HOW THE MATTER HAS COME UP BEFORE US FOR HEARING AGAIN. 4. THE LD.AR POINTED OUT THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY VARIOUS ORDERS OF ITAT INCLUDING THE RA JKOT BENCH IN ITA NO.533/RJT/2007 ORDER DATED 23-01-2009 WHEREIN THE ITAT FOUND THAT THE ASSESSEE IS BUYER AND NOT SELLER AND THAT THE FACTS WERE SIMILAR TO THE FACTS DECIDED IN ITO VS OPTEC DISC MANUFACTURING (2008) 1 1 DTR (CHD) 264. THE LD.AR HAS ALSO RELIED UPON THE LATEST JUDGMENT OF P &H HIGH COURT IN THE CASE OF CHANDNI BHUCHAR IN IT APPEAL NO.653 OF 2009 DATED 7 -1-2010. THE LD. AR SUBMITTED THAT THE JUDGMENT OF RAJASTHAN HIGH COURT IN THE CASE OF SMT. AMAR KUMARI SURANA 226 ITR 344 (RAJ) IS DISTINGUISHABLE ON FACTS AS IN THE LATEST JUDGEMENT THE RAJASTHAN HIGH COURT IN THE CASE OF KK ENTERPRISES 13 DTR 289 (RAJ) ITSELF HAS DISTINGUISHED THEIR OWN EARLIER JU DGMENT IN THE CASE OF SMT. AMAR KUMARI SURANA. THE LD.AR HAS ALSO RELIED UPON THE JUDGMENT OF THE ALLAHABAD HIGH COURT IN THE CASE OF DINESH KUMAR MITTAL VS IT O & ORS 193 ITR 770 (ALL). 5. THE LD.DR ON THE OTHER HAND SUBMITTED THAT THE EARLIER ORDER OF THE ITAT MAY BE RESTORED. ITA NO.843/RJT/2009 3 5. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES RECORD PERUSED. THE ADMITTED FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER HAS MADE THE ADDITION MERELY ON THE BASIS OF DIFFERENCE IN VALUA TION TAKEN BY THE REGISTRAR OFFICE FOR REGISTRATION OF DOCUMENT AND THE CONSIDERATION SHOWN BY THE ASSESSEE. THE ASSESSING OFFICER DID NOT MAKE ANY INDEPENDENT ENQU IRY TO FIND OUT WHETHER THE ACTUAL SALE CONSIDERATION PAID BY THE ASSESSEE WAS MORE THAN WHAT WAS DECLARED IN THE BOOKS OF ACCOUNT AND THE DOCUMENT. SINCE THE ADDITION IS MADE MERELY ON THE BASIS OF THE VALUATION ADOPTED FOR TH E PURPOSE OF REGISTRATION FOLLOWING THE ORDER OF ITAT IN THE CASE OF ITO VS S HRI BHANUSHALI VASANT KARSANDAS IN ITA NO.533/RJT/2007 ORDER DATED 23-01- 2009 AND THE LATEST JUDGMENT OF PUNJAB & HARYANA HIGH COURT IN CHANDNI BHUCHAR INCOME TAX APPEAL NO.653 OF 2009 DATED 7-1-2010 THE ORDER OF C IT(A) DELETING THE ADDITION OF RS. 9 20 260 IS CONFIRMED 6. AS REGARDS DISALLOWANCE U/S 14A AGITATED IN THE CROSS OBJECTION CONSIDERED BY THE TRIBUNAL IN ORDER DATED 16-10-200 9 WE MAY MAKE IT CLEAR THAT THE ORDER IN MISCELLANEOUS APPLICATION RECALLING TH E ORDER DATED 16-10-2009 IS LIMITED TO THE ISSUE OF ADDITION OF RS.9 20 260 AGI TATED IN REVENUES APPEAL. THEREFORE THE ORDER ON THE ISSUE OF DISALLOWANCE U /S 14A AGITATED IN THE CROSS OBJECTION STANDS. 7. IN THE RESULT APPEAL FILED BY THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18-03-2011. SD/- SD/- (N.R.S. GANESAN) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT DT : 18 TH MARCH 2011 PK/- ITA NO.843/RJT/2009 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-II RAJKOT 4. THE CITL-I RAJKOT 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT