M/s. Hari Singh Ex- MLA, Zira v. The Income tax Officer, Ferozepur

MA 9/ASR/2014 | 2007-2008
Pronouncement Date: 15-04-2014 | Result: Dismissed

Appeal Details

RSA Number 920924 RSA 2014
Assessee PAN AYOPS9612C
Bench Amritsar
Appeal Number MA 9/ASR/2014
Duration Of Justice 3 month(s) 29 day(s)
Appellant M/s. Hari Singh Ex- MLA, Zira
Respondent The Income tax Officer, Ferozepur
Appeal Type Miscellaneous Application
Pronouncement Date 15-04-2014
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 15-04-2014
Date Of Final Hearing 11-04-2014
Next Hearing Date 11-04-2014
Assessment Year 2007-2008
Appeal Filed On 17-12-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU JUDICIAL MEMBER AND SH. B.P.JAIN ACCOUNTANT MEMBER M.A.NO.09(ASR)/2013 (ARISING OUT OF I.T.A. NO.394(ASR)/2013) ASSESSMENT YEAR:2007-08 PAN :AYOPS9612C SH. HARI SINGH EX-MLA VS. INCOME TAX OFFICER MAKHU ROAD ZIRA. RANGE III(2) FEROZEPUR (APPELLANT) (RESPONDENT) APPELLANT BY: SH.P.N.ARORA ADVOCATE RESPONDENT BY:SH.TARSEM LAL DR DATE OF HEARING: 11/04/2014 DATE OF PRONOUNCEMENT: 15/04/2014 ORDER PER BENCH ; THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE AGAINST OUR ORDER DATED 31.10.2013 PASSED IN ITA NO.394(ASR)/2 013 FOR THE ASSESSMENT YEAR 2007-08. THE MISC. APPLICATION FILED BY THE AS SESSEE IS REPRODUCED FOR THE SAKE OF CONVENIENCE AS UNDER: THIS MISC. APPLICATION ARISES OUT OF THE ORDER OF THE ITAT AMRITSAR BENCH AMRITSAR IN ITA NO.394(ASR)/2013 DATED 06.1 1.2013. MA NO.09(ASR)/2014 2 IN THIS CONNECTION IT MAY BE POINTED OUT THAT IN T HIS CASE GROUNDS OF APPEAL NOS. 2 & 3 WERE SPECIFICALLY RAISED BEFORE T HE TRIBUNAL BUT THE TRIBUNAL HAS NOT ADJUDICATED N THESE ISSUES. THE SA ME ARE REPRODUCED HEREUNDER: 2. WHETHER LD. CIT(A) ON HIS OWN DISALLOWING THE DEDUCTION ALLOWED UNDER 54F OF THE INCOME TAX ACT 1961 TO T HE TUNE OF RS.66 00 000/- IS RIGHT WITHOUT THE SEEING THE AS SESSMENT RECORD BY USING HIS POWERS EMPOWERED UNDER SECTION 251(1)(A) OF THE ACT WITHOUT AFFORDING THE REASONABLE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE AND WHICH IS ALSO A LIMITATION ON THE CIT (A) BEFORE USING THE POWERS UNDER THE ABOVE PROVISIONS OF THE ACT. UNDE R SECTION 251(2) OF THE ACT WITH THE PLEA THAT THE YEAR OF CONSTRUCTIO N IS VERY IMPORTANT. BUT THE LD. CIT(A) HAS SAID IN HIS ORDER THAT I HA VE GONE INTO THE ASSESSMENT RECORD BUT TO MY MIND THE LD. CIT(A) BA THINDA HAS NEVER SEEN THE ASSESSMENT RECORD. HAD THE LD. CIT(A) SEE N THE ASSESSMENT RECORD HE MIGHT HAD FOUND THE YEAR OF CONSTRUCTION AND YEAR COMPLETION AND THE SOURCE OF INVESTMENT (COPY OF W RITTEN REPLY FILED FOR EXPLAINING THE EXPENDITURE DURING THE ASSESSME NT PROCEEDINGS FOR CLAIMING THE DEDUCTION U/S 54F OF THE ACT DATED 16 .11.2010 AND 18.12.2010 MAP PASSED FROM MC ZIRA AND VALUATION REPORT FROM SDO PWD FEROZEPUR COMPLETION CERTIFICATION RECE IVED FROM THE MC ZIRA AND AFFIDAVIT FROM SH.HARI SINGH THAT I D O NOT HAVE ANY OTHER HOUSE WHICH FORMS PART ASSESSMENT RECORD ALL THE PHOTOCOPY ATTACHED AND ALSO SUBMITTED BEFORE THE CIT(A) WITH PAPER BOOK.). THE DETAILS OF CALCULATIONS ARE GIVEN AS UNDER: TOTAL SALE CONSIDERATION IN CASH AS WELL AS IN KIN D ARE RS.1 65 00 000/- + TWO FLATS COSTING RS.2 02 50 00 0/- =RS3 67 50 000 LESS INITIAL COST OF CONSTRUCTION RS. 10 00 000 BALANCE AMOUNT RS.3 57 50 000 LESS DEDUCTION U/S 54 ALLOWED BY THE ITO AND DISALLOWED BY THE CIT(A) (RS.30 00 000 ON 5.3.2010 AND RS.36 00 000 ON 4.5.2007) BALANCE WHICH WAS BROUGHT TO CAPITAL GAIN TAX RS. 2 91 50 000 BY ITO MA NO.09(ASR)/2014 3 BUT CIT(A) DISALLOWED THE DEDUCTION 54F BY USING POWERS ASSIGNED U/S 251(1)(A) BUT HAS FORGOTTEN THE RESTRICTION IMPOSED BY THE LAW UNDER THE SAME SECTION I.E. 251(2) OF REASONABLE OPPORTUNITY BEFORE ENHANCE INCOME OF THE ASSESSEE. IF WRONG THEN THE APPEAL OF THE ASSESSEE MAY KIND LY BE ACCEPTED. 3. THAT THE CIT(A) BATHINDA IS NOT RIGHT IN DISALLOWI NG THE DEDUCTION U/S 54F OF TO THE TUNE OF RS.66 00 000/- ON THE RECEIPT BASIS AGAINST THE TOTAL CLAIM OF THE ASSESSEE I.E. 209761 62.15 (COST OF CONSTRUCTION RS.70 09 220/- AS PER VALUATION REPORT OF THE SDO PWD DEPARTMENT ZIRA AND COST OF LAND AS PER REVENUE RE CORD AMOUNT TO RS.1 39 66 842/15) SINCE CIT(A) HAS ON HIS OWN DISA LLOWED THE DEDUCTION U/S 54 OF THE ACT BY USING THE POWERS EMP OWERED U/S 251(1)(A) OF THE ACT WITHOUT AFFORDING ANY REASONA BLE OPPORTUNITY OF BEING HEARD WHICH IS TO BE PROVIDED TO THE ASSESSEE U/S 251(2). THE ASSESSEE SUBMITTED THE FOLLOWING DOCUMENTS ONLY THE N A.O. WAS GOT SATISFIED AND ALLOWED THE DEDUCTION U/S 54F OF THE ACT ON THE FOLLOWING DOCUMENTS. THE AO HAS ALSO HIMSELF HAS DI SCUSSED REGARDING THE SUBMISSION OF THESE DOCUMENTS IN ORDE RS AT PAGE 5 & 6 OF THE ASSESSMENT ORDERS AS EXPLAINED BELOW: A) THE ASSESSEE SUBMITTED THE MAP OF THE HOUSE WHICH W AS GOT PASSED FROM THE MC FEROZEPUR. B) THAT THE COMPLETION CERTIFICATE FROM MC ZIRA C) THE VALUATION OF THE SDO PWD ZIRA D) THE EXPENDITURE OF RS.66 00 000 RECEIVED CONSIDERAT ION FROM TATA AND HARSH BUILDERS PLUS RS.409220 OUT OF PERS ON AGRICULTURAL INCOME THUS TOTALING RS.70 09 220/-. E) THAT AN AFFIDAVIT FROM SH. HARI SINGH THAT I DO NOT HAVE ANY OTHER HOUSE. IF EVEN IT IS ADMITTED THE LD. CIT(A) DISALLOWED TH E DEDUCTION RIGHTLY BEEN ALLOWED EVEN THEN HIS HANDS OF CIT(A) ARE TIGH T WITH THE RESTRICTION IMPOSED FOR PROVIDING THE PROPER OPPORT UNITY TO THE ASSESSEE TO EXPLAIN HIS POSITION U/S 251(2) OF THE ACT BEFORE THE DISALLOWING THE DEDUCTION IN MY CASE NO PROPER OPP ORTUNITY WAS GIVEN TO ME. HENCE DEDUCTION DISALLOWANCE BY THE CIT(A) U/S 54F OF MA NO.09(ASR)/2014 4 THE ACT WITHOUT PROVIDING REASONABLE AND PROPER OPP ORTUNITY TO THE ASSESSEE MAY KINDLY BE ALLOWED. THESE GROUNDS OF APPEAL WERE ARGUED AND IN THE WRI TTEN SUBMISSIONS BOTH THE POINTS WERE AGITATED BUT WITHO UT GOING INTO THE FACTS AND MERITS OF THE CASE AS WELL AS THE LEGAL P ROPOSITION RAISED BY THE APPELLANT IN APPEAL REGARDING LIMITATION OF SEC TION 251(2) HAS NOT BEEN CONSIDERED WHILE DECIDING THE ISSUES IN PARA-7 OF THE ORDER OF ITAT DATED 31/10/2013. THUS THESE POINTS MAY KINDLY BE CONSIDERED AND ALL THE RELEVANT MENTION FACTS & AS REFERRED ABOVE MAY BE TAKEN INTO CONSIDERATION AS REQUESTED ABOVE AS THESE ARE MISTAKES APPARENT FROM RECORD AND CALLS FOR RECTIFICATION. THIS MISC. APPLICATION IS WITHIN THE TIME AND MISC. APPLICATION FEE RECEIPT OF RS.50/- IS ENCLOSED HERE WITH. IT IS PRAYED THAT THIS MISC. APPLICATION MAY KINDLY BE ENTERTAIN ED. 2. THE LD. COUNSEL FOR THE ASSESSEE MR. P.N.ARORA ADVOCATE READ THE MISC. APPLICATION AND MADE A PRAY THAT IT IS A MIST AKE APPARENT FROM RECORD AND CALLS FOR RECTIFICATION. 3. THE LD. DR MR. TARSEM LAL ON THE OTHER HAND OPPOSED THE SAME AND ARGUED THAT THE ORDER OF THE LD. CIT(A) HAS MER GED WITH THE ORDER OF THE TRIBUNAL AND THE TRIBUNAL HAS ALREADY DEALT WITH TH E ISSUE RAISED IN THE MISC. APPLICATION IN PARA 7 AT PB 106 & 107 OF THE ORDER. THEREFORE THERE IS NO MISTAKE APPARENT FROM RECORD AND THE LD. COUNSEL FO R THE ASSESSEE UNDER THE GARB OF MISC. APPLICATION WANTS TO GET THE ORDER RE VIEWED WHICH POWER DOES NOT VESTS WITH THE TRIBUNAL. MA NO.09(ASR)/2014 5 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ISSUE RAISED IN THE MISC. APPLICATION BY THE A SSESSEE HAS ALREADY BEEN DEALT WITH IN OUR ORDER DATED 31.10.2013 AND NOW TH E ISSUE RAISED BY THE LD. COUNSEL FOR THE ASSESSEE TANTAMOUNT TO REVIEW OF O UR ORDER WHICH IS NOT PERMISSIBLE UNDER THE LAW. THEREFORE THE MISC. APP LICATION FILED BY THE ASSESSEE IS DISMISSED. 5. IN THE RESULT MA NO.09(ASR)/2014 FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15TH APRIL 2014. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 15TH APRIL 2014 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. HARI SINGH EX-MLA ZIRA. 2. THE ITO WAD III(2) AMRITSAR. 3. THE CIT(A) AMRITSAR. 4. THE CIT AMRITSAR. 5. THE SR DR ITAT AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR