Sh. Jaswinder Hans,, Jalandhar v. The Assistant Commissioner of Income Tax, Jalandhar

MA 61/ASR/2014 | 2006-2007
Pronouncement Date: 30-11-2017 | Result: Allowed

Appeal Details

RSA Number 6120924 RSA 2014
Assessee PAN AANPH3846C
Bench Amritsar
Appeal Number MA 61/ASR/2014
Duration Of Justice 3 year(s) 7 month(s) 23 day(s)
Appellant Sh. Jaswinder Hans,, Jalandhar
Respondent The Assistant Commissioner of Income Tax, Jalandhar
Appeal Type Miscellaneous Application
Pronouncement Date 30-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 30-11-2017
Date Of Final Hearing 30-06-2017
Next Hearing Date 30-06-2017
First Hearing Date 30-06-2017
Assessment Year 2006-2007
Appeal Filed On 07-04-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. T. S. KAPOOR ACCOUNTANT MEM BER AND SH.N. K. CHOUDHRY JUDICIAL MEMBER M. A. NO. 61/(ASR)/2014 (ARISING OUT OF I.T.A. NO. 88/(ASR)/2012) ASSESSMENT YEAR: 2006-07 PAN: AANPH3846C SH. JASVINDER HANS C/O M/S. ZOLOTO INDUSTRIES NAKODAR ROAD LAMBRA JALANDHAR. VS. A. C. I. T. RANGE IV JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. J. S. BHASIN ( ADV.) RESPONDENT BY: SH. RAHUL DHAWAN (D.R.) DATE OF HEARING: 08.09.2017 DATE OF PRONOU NCEMENT: 30.11.2017 ORDER PER T. S. KAPOOR (AM): THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY AS SESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 28.02.2014. 2. IN THE MISCELLANEOUS APPLICATION THE ASSESSEE H AS TAKEN THREE GROUNDS ON WHICH HE HAS PRAYED THAT RECTIFICATION O F MISTAKES IS REQUIRED. 3. AT THE OUTSET THE LD. AR INVITED OUR ATTENTION TO GROUNDS NO. 1 AND 2 OF ITS APPEAL MEMO AND SUBMITTED THAT ASSESSI NG OFFICER HAD SUBSTITUTED THE VALUE OF SALE CONSIDERATION WITH TH E VALUE OF SALE DEED FOR THE PURPOSE OF STAMP DUTY AND HAD MADE ADDITION AND HE HAD NOT CONFRONTED THE ASSESSEE REGARDING THE PROPOSED ADDI TION WHEREAS IT HAS BEEN SPECIFICALLY PROVIDED IN PROVISO TO SECTION 50 C THAT IF THE ASSESSEE CLAIMED BEFORE ANY ASSESSING OFFICER THAT THE VALUE TAKEN FOR THE PURPOSE M A NO. 61 (ASR)/2014 (ARISING OUT OF I.T. A. NO.88/(ASR)/2012) ASST. YEAR:2006-07 2 OF STAMP DUTY IS MORE THAN FAIR MARKET AS ON THE DA TE OF THE TRANSFER THE ASSESSING OFFICER MAY REFER THE VALUATION OF SUCH C APITAL ASSETS TO VALUATION OFFICERS. IT WAS SUBMITTED THAT THE AUTHO RITIES BELOW WITHOUT CONSIDERING THE PROVISIONS OF SECTION 50C HAD MADE AND UPHELD THE ADDITION AND BEFORE THE HON'BLE BENCH VIDE GROUND N O. 1 THE ASSESSEE HAD SPECIFICALLY TAKEN THE GROUND THAT ASSESSEE WAS NEVER CONFRONTED IN ASSESSMENT ON THIS ISSUE. IT WAS SUBMITTED THAT THE HON'BLE BENCH WHILE UPHOLDING THE ACTION OF LD. CIT(A) HAS HELD THAT AS SESSEE DID NOT LED ANY EVIDENCE TO SHOW THAT THE FAIR MARKET VALUE OF THE PROPERTY WAS LESS THAN THE RATE ADOPTED FOR THE PURPOSE OF STAMP DUTY BY V ALUATION AUTHORITY WHEREAS THE FACT REMAINS THAT ASSESSING OFFICER WAS REQUIRED TO CONFRONT THE ASSESSEE WITH HIS INTENTION TO APPLY COLLECTOR S RATE SO AS TO ENABLE THE ASSESSEE TO FILE HIS OBJECTIONS AND THE QUESTIO N BEFORE THE BENCH WAS AS TO WHETHER THE CIT(A) WAS CORRECT IN CONFIRMING THE ACTION OF ASSESSING OFFICER ON THE PREMISE THAT SECTION 50C D ID NOT PROVIDE SUCH AN OPPORTUNITY TO BE GIVEN. IT WAS SUBMITTED THAT W ITHOUT ADDRESSING THIS FUNDAMENTAL DISPUTE THE HON'BLE BENCH STRAIGHTWAY CONFIRMED THE ORDER OF CIT(A) AND THUS THERE WAS A MISTAKE APPARE NT FROM RECORD WHICH NEEDS TO BE RECTIFIED. AS REGARDS GROUND NO. 2 THE LD. AR SUBMITTED THAT THE HON'BLE TRIBUNAL HAS NOT ADJUDICATED THIS GROUND OF APPEAL AND HAS WRONGLY CONSIDERED THE GROUND NO. 2 AS SECOND LIMB OF THE G ROUND NO. 1 AND THEREFORE IT NEEDS TO BE ADJUDICATED AND THEREFORE THERE IS A MISTAKE IN THE ORDER OF HON'BLE BENCH. M A NO. 61 (ASR)/2014 (ARISING OUT OF I.T. A. NO.88/(ASR)/2012) ASST. YEAR:2006-07 3 AS REGARDS GROUND NO. 3 AND 4 THE LD. AR SUBMITTE D THAT ASSESSEE HAD CLAIMED AN EXPENSES OF RS.42582/- TO EARN COMMI SSION INCOME OF RS.85 165/- WHICH THE ASSESSING OFFICER HAD DISALL OWED BY HOLDING THAT NO CASH WAS WITHDRAWN BY ASSESSEE TO INCUR EXPENDIT URE WHEREAS THE LD. CIT(A) HAD ACCEPTED THAT ASSESSEE HAD SUFFICIENT WI THDRAWLS TO MEET THE IMPUGNED EXPENSES BUT HE UPHELD THE ACTION OF ASSES SING OFFICER BY TAKING A STANCE DIFFERENT FROM THE ASSESSING OFFICE R THAT NO EVIDENCE WAS FURNISHED TO SUPPORT THE SAID EXPENDITURE FROM BANK ACCOUNT. THE LD. AR SUBMITTED THAT WHILE ARGUING BEFORE THE BENCH I T WAS ARGUED THAT WHEN THE ASSESSING OFFICERS FINDINGS WERE CONFINED TO ONE ASPECT OF THE MATTER THAT THE ASSESSEE HAD NO WITHDRAWLS AND LD. CIT(A) APPRECIATING THE FACTS AND EVIDENCE ON RECORD FOUND THE ASSESSI NG OFFICERS VERSION TO BE PRIMA-FACIE INCORRECT THEN HE OUGHT TO HAVE DEL ETED THE ADDITION RATHER THAN CONFIRMING THE SAME ON A DIFFERENT NOTE THAT NO EVIDENCE WAS ADDUCED. THE LD. AR SUBMITTED THAT VIDE GROUND NO. 3 THE BENCH WAS REQUESTED TO ADJUDICATE AS TO WHETHER THE LD. CIT(A ) CAN CONFIRM THE DISALLOWANCE ON A PREMISE DIFFERENT FROM ASSESSING OFFICER AND WHICH THE HON'BLE BENCH HAS OMITTED TO ADJUDICATE. THE LD. AR FURTHER SUBMITTED THAT VIDE GROUND NO. 8 IT WAS SUBMITTED THAT ALL T HE ADDITIONS WERE MADE BY ASSESSING OFFICER WITHOUT PROPER OPPORTUNITY AND LD. CIT(A) HAD CONCEDED ON THIS ISSUE BUT STILL UPHELD THE ADDITIO NS. IN THE APPEAL BEFORE HON'BLE BENCH THIS POINT WAS SPECIFICALLY R AISED WHEREAS THE HON'BLE. TRIBUNAL HAD DISPOSED OF THIS GROUND TREAT ING THE SAME TO BE GENERAL WHEREAS THE SPECIFIC ADJUDICATION WAS REQUI RED. IN VIEW OF THESE FACTS AND CIRCUMSTANCES; THE LD. AR SUBMITTED THAT MISTAKE APPARENT M A NO. 61 (ASR)/2014 (ARISING OUT OF I.T. A. NO.88/(ASR)/2012) ASST. YEAR:2006-07 4 FROM RECORD HAS CREPT IN THE ORDER OF THE BENCH WHI CH NEEDS TO BE RECTIFIED. 4. THE LD. DR ON THE OTHER HAND SUBMITTED THAT THE HON'BLE TRIBUNAL HAS PASSED THE ORDER AFTER GIVING ITS FINDINGS ON T HE ISSUES RAISED BY LD. AR AND ANY CONTRARY FINDINGS WILL AMOUNT TO REVIEW OF ITS ORDER WHICH IS AGAINST THE PROVISIONS OF LAW. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. AS FAR AS THE FIRST ISSU E OF NOT CONFRONTING THE ASSESSEE REGARDING APPLICATION OF PROVISIONS OF SEC TION 50C ARE CONCERNED WE FIND THAT ASSESSING OFFICER HAD NOT G IVEN ANY OPPORTUNITY TO THE ASSESSEE REGARDING THIS AND LD. CIT(A) HAS A LSO HELD THAT UNLESS THE ASSESSEE PROVIDES ANY EVIDENCE OF LOW RATES TO SHOW THAT HIS PROPERTY WAS SITUATED IN A MANNER WHICH WOULD FETCH LOWER RA TES THAN OTHER COMPARABLE RATES IN THE LOCALITY THE ASSESSING OFF ICER WAS NOT BOUND TO CONSIDER THE SAME AND IN THE ABSENCE OF ANY SUCH EV IDENCE OR CLAIM HE HAS UPHELD THE ACTION OF ASSESSING OFFICER. THE ASS ESSEE BEFORE THE HON'BLE TRIBUNAL VIDE GROUND NO. 1 HAS SPECIFICALLY TAKEN UP THIS ISSUE TO WHICH THE HON'BLE ITAT HAS ADJUDICATED VIDE PARA NO . 6.1 AND WHEREIN THE HON'BLE TRIBUNAL HAD HELD THAT ASSESSEE SHOULD HAVE LED SOME EVIDENCE TO SHOW THAT HIS PROPERTY WAS SITUATED IN A MANNER WHICH WOULD FETCH LOWER RATES THAN OTHER COMPARABLE RATES IN THE LOCALITY AND IN THE ABSENCE OF ANY SUCH EVIDENCE OR CLAIM THE LD. CIT(A) HAS RIGHTLY ACCEPTED THE DECISION OF ASSESSING OFFICER. THE HON 'BLE TRIBUNAL HAS PASSED THE ORDER HOLDING THAT NO FRESH EVIDENCE WAS PROVIDED BY ASSESSEE BUT IT HAS OMITTED TO ADJUDICATE ON THE SPECIFIC GR OUND AS TO WHETHER THE M A NO. 61 (ASR)/2014 (ARISING OUT OF I.T. A. NO.88/(ASR)/2012) ASST. YEAR:2006-07 5 LD. CIT(A) CAN UPHOLD THE ADDITION U/S 50C BY SUBST ITUTING APPARENT CONSIDERATION WITH THE VALUE AS PER STAMP DUTY WHEN THE ASSESSEE WAS NEVER CONFRONTED. THEREFORE THERE IS A MISTAKE IN T HE ORDER OF HON'BLE TRIBUNAL AS FAR AS GROUND NO. 1 IS CONCERNED AND I T NEEDS RECTIFICATION AS THE SPECIFIC GRIEVANCE OF ASSESSEE HAS NOT BEEN ADJ UDICATED. AS REGARDS THE SECOND GRIEVANCE THE LD. AR ARGUED THAT GROUND NO. 2 HAS NOT BEEN ADJUDICATED. IN THIS RESPECT WE FIND THAT HON'BLE TRIBUNAL DISMISSED GROUND NO. 2 BY RECORDING ITS FI NDINGS AT PARA 6 AND WHEREIN THE HON'BLE TRIBUNAL HAS DISMISSED THE GROU ND ON DIFFERENT PREMISES AND HAS NOT DISCUSSED THE ISSUE RAISED BY ASSESSEE. AS REGARDS THE ISSUE RAISED BY ASSESSEE VIDE GROUND NO. 3 IT WAS RAISED THAT LD. CIT(A) CANNOT UPHOLD AN ADDITION ON A DIFFERENT PRE MISE THAN MADE BY ASSESSING OFFICER. THE HON'BLE TRIBUNAL HAS DISCUSS ED THIS ISSUE AT PARA 7 AND HAS UPHELD THE ACTION OF LD. CIT(A) BY CONCUR RING WITH THE FINDINGS OF LD. CIT(A) THAT NO SPECIFIC EXPENDITURE WAS SHOW N TO HAVE BEEN INCURRED BY THE ASSESSEE THROUGH HIS BANK ACCOUNT. IN THIS REGARD WE FIND THAT THE ASSESSING OFFICER HAD MADE THE DISALL OWANCE BY HOLDING THAT THERE WAS NO CASH WITHDRAWLS FOR MAKING THE EX PENDITURE. THE LD. CIT(A) ON THE OTHER HAND HAD HELD THAT THE ASSESSEE HAD MADE CASH WITHDRAWLS FROM HIS BANK ACCOUNT BUT HE HAS UPHELD THE DISALLOWANCE ON THE BASIS THAT THE ASSESSEE HAD NOT SHOWN TO HAV E INCURRED THE EXPENDITURE THROUGH HIS BANK ACCOUNT. THEREFORE TH E LD. CIT(A) HAS UPHELD THE DISALLOWANCE ON A DIFFERENT PREMISE AND HON'BLE TRIBUNAL WAS REQUESTED TO ADJUDICATE ON THIS ISSUE AS TO WHETHER LD. CIT(A) CAN CONFIRM AN ADDITION ON A DIFFERENT PREMISE. FROM TH E FINDINGS OF ORDER OF M A NO. 61 (ASR)/2014 (ARISING OUT OF I.T. A. NO.88/(ASR)/2012) ASST. YEAR:2006-07 6 HON'BLE TRIBUNAL WE FIND THAT HON'BLE TRIBUNAL HAS NOT GIVEN ANY FINDING IN THIS RESPECT AND HAS UPHELD THE ACTION OF LD. CI T(A) THEREFORE THERE IS APPARENT MISTAKE WHICH NEEDS TO BE RECTIFIED AS THE GROUND OF APPEAL HAS NOT BEEN PROPERLY ADJUDICATED. AS REGARDS THE OTHER MISTAKE THE LD. AR ARGUED TH AT GROUND NO. 8 WAS RAISED SPECIFICALLY AND THE HON'BLE TRIBUNAL WA S REQUIRED TO ADJUDICATE AS TO WHETHER THE ASSESSING OFFICER WITH OUT AFFORDING PROPER OPPORTUNITY AND LD. CIT(A) EVEN AFTER CONCEDING ON THIS ISSUE ERRED IN STILL UPHOLDING THE ADDITIONS AND THE HON'BLE TRIBU NAL HAS DISMISSED THIS GROUND VIDE PARA 14 HOLDING THAT THE GROUND WAS GEN ERAL IN NATURE WHEREAS WE FIND THAT THIS IS NOT A GENERAL GROUND A ND IT NEEDED ADJUDICATION WHICH HAD SKIPPED THE ATTENTION OF HON 'BLE TRIBUNAL. IN VIEW OF THESE FACTS AND CIRCUMSTANCES WE FIND THAT MISTAKE HAS CREPT IN THE ORDER OF THE HON'BLE TRIBUNAL AND THEREFORE GRO UND NO. 1 2 3 4 AND 8 ARE RECALLED FOR READJUDICATION. THE REGISTRY IS DIRECTED TO FIX THE APPEAL OF THE ASSESSEE FOR READJUDICATION ON THESE GROUNDS UNDER INTIMATION TO BOTH PARTIES. 6. IN VIEW OF THE ABOVE THE MISCELLANEOUS APPLICAT ION FILED BY ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.11. 2017. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 30/11/2017 GP/SR./PS COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE M A NO. 61 (ASR)/2014 (ARISING OUT OF I.T. A. NO.88/(ASR)/2012) ASST. YEAR:2006-07 7 (3) THE CIT(A) (4) THE CIT (5) THE SR DR I.T.A.T. TRUE COPY BY ORDER