Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, JAIPUR BENCHES “B”, JAIPUR
Before: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 709/JP/2019
ORDER PER: SANDEEP GOSAIN, J.M. The present appeal has been filed by the assessee against the order of the ld. CIT(A), Ajmer dated 12/03/2019 for the A.Y. 2009-10, wherein the assessee has raised following grounds of appeal: “1. The ld. AO has erred on facts and in law and in holding that assessee has sold the property situated at 3/65, Vidhyadhar Nagar, Jaipur twice, once on 19.05.2008 to Smt. Manju Gupta for Rs.35 lacs and again on 16.03. to Smt. Vandana Gupta for Rs.27 lacs and thus, the sale consideration is Rs.62 lacs resulting into short term capital gain of Rs.25,49,480/- (62,00,000- 36,50,520) ignoring that sale deed dt. 19.05.2008 which was fraudulently executed by Sh. Sunil Gupta, husband of Smt. Manju Gupta as POA holder of the assessee stood cancelled as per Rajinama dt. 30.06.2009 and consequent cancellation deed dt. 05.11.2009 and the Ld. CIT(A) has erred on facts and in law in confirming the addition as against the 2 ITA 709/JP/2019_ Raghuvendra Khandelwal Vs ITO short term capital loss of Rs.9,50,520/-(25,00,000-36,50,520) claimed by the assessee. 1.1. Deciding the appeal without admitting the additional evidence filed by the assessee under rule 46A by way of cancellation deed dt. 05.11.2009 through which the sale deed dt. 19.05.2008 was cancelled by the Sub-Registrar.
2. The ld. CIT(A) has erred on facts and in law in not deciding the ground of appeal relating to computation of short term capital gain of Rs.3,69,000/- (20,00,000-16,31,000) in respect of property at 266/19, Sector-3, Vidhyadhar Nagar, Jaipur and ignoring the fact that this property was sold by the assessee in AY 2008-09 as per agreement to sale dt. 02.02.2008.
3. The appellant craves to alter, amend and modify any ground of appeal.
4. Necessary cost be awarded to the assessee.”
2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic.
3. Ground No. 1 and 1.1. are interrelated and interconnected, therefore, the same are being disposed off by a consolidated finding. The briefly stated facts of the case are that the A.O. made additions on account of short term capital gain on the ground that the assessee had sold the property situated at 3/65, Vidhyadhar Nagar, Jaipur twice, once on 19.05.2008 to Smt. Manju Gupta for Rs.35 lacs and again on 16.03.2009 to Smt. Vandana Gupta for Rs.27 lacs and thus, the sale consideration is Rs.62 lacs resulting into short term capital gain of Rs.25,49,480/-. Whereas 3 ITA 709/JP/2019_ Raghuvendra Khandelwal Vs ITO on the contrary, it was submitted by the ld AR that the revenue authorities ignored the fact that the sale deed dated 19.05.2008 which was fraudulently executed by Sh. Sunil Gupta, husband of Smt. Manju Gupta as Power of Attorney holder of the assessee stood cancelled as per Rajinama dated 30.06.2009 and consequent cancellation deed dated 05.11.2009 and the Ld. CIT(A) has erred on facts and in law in confirming the addition as against the short term capital loss of Rs.9,50,520 claimed by the assessee. It was submitted by the ld AR that initially the assessee could not place on record registered cancellation deed dated 05/11/2009 before the lower authorities i.e. the A.O. However, during the appellate proceedings before the ld. CIT(A), the assessee had filed an application under Rule 46A of the Income Tax Rules, 1962 (in short, the Rules) for admission of additional evidence by way of cancellation deed dated 05/11/2009 through which the sale deed dated 19/05/2008 was cancelled by the Sub-Registrar but the ld. CIT(A) did not accept the said application and rejected the same.
4. Now before us, the ld AR of the assessee has reiterated the same arguments as were raised before the ld. CIT(A) and drawn our attention to the application moved before the ld. CIT(A) for admission of additional evidence under Rule 46A of the Rules and the same is contained in para 3.0 of the impugned order is reproduced below:
4 ITA 709/JP/2019_ Raghuvendra Khandelwal Vs ITO “3.0 During appeal, the assessee has filed an application on 26.12.2017 for admission of additional evidences under rule 46A of the IT Rules stating as under:
"The appellant begs to submit the following additional evidences in support of the above appeal and admit the same for your honors kind consideration while adjudicating over the aforesaid appeal of the appellant- 1. CERTIFIED TRUE COPY BY THE DY. REGISTRAR REGISTRATION, JAIPUR V, JAIPUR OF INSTRUMENT OF CANCELLATION (INEFFECTIVE) OF SALE DEED IN FAVOUR OF SMT. MANJU GUPTA, EXECUTED BY REGISTERED POWER OF ATTORNEY HOLDER SHRI SUNIL GUPTA FROM RAGHVENDRA KHANDELWAL (OWNER OF THE PROPERTY, PLOT NO 3/65, VIDHYADHAR NAGAR, JAIPUR, DATED 05/11/2009) It would kindly be noted that, the appellant filed the document in support of the claim that sale of the aforesaid plot in favour of Smt. Manju Gupta, between the parties, concerned, including assessee, Smt. Manju Gupta and Smt. Vandna Gupta, in whose favour the sale of the same plot registered on 16/03/2009 remained effective and substring. The Ld. AO has also referred this fact on page 3 of the assessment order at para II by the Ld. AO. However, he did not comment anything on this document thus appellant bona fide believed that the Ld. AO has accepted this claim of the appellant and due regard would be given by him while completing the proceedings of assessment and passing the assessment order. However on receipt of the assessment order the aforesaid fact of not giving any thought and necessary effect of this document, and quite illegally and imaging assessed by taking the transfer of the same property to two persons and taking the consideration mentioned in both the sale deeds as one transaction, and assessed the Short Term Capital Gain accordingly.
5 ITA 709/JP/2019_ Raghuvendra Khandelwal Vs ITO Submission for admitting this evidence That neither the Ld. AO commented anything upon the evidence in the form of "RAJINAMA" for cancellation of nulling the sale deed in favour of Smt. Manju Gupta nor asked for any further evidence, the appellant being under a bonafide belief for submitting further evidence in this respect, assuming that there has been prevailed on the mind of Ld. AO that this evidence might not be acceptable to him, further evidence of " CANCELLATION THE SALE SINCE IT'S EXECUTION" by obtaining certified true copy of another document to the same effect from the DY. Registrar, registration is being submitted, which is also material evidence obtained from the Govt. Authority. Therefore, the appellant was prevented to sufficient and reasonable cause and as the Ld. AO did not provide any opportunity for filling such evidence both grounds may kindly be accepted as reasonable cause and same may very kindly be accepted and considered while adjudicating the relevant grounds of appeal by your honor."
5. On the other hand, the ld DR has relied upon the order of the ld. CIT(A) and submitted that since the case of the assessee was not covered under any provision of under Rule 46A of the Rules, therefore the ld. CIT(A) has rightly not admitted the additional evidences under Rule 46A of the Rules. It was further submitted that sufficient opportunity of being heard was provided to the assessee at the time of assessment, therefore, the impugned order need not require any interference.
We have heard the ld. Counsels of both the parties and have perused the material placed on record. From the record, we noticed that the assessee categorically mentioned before the ld. CIT(A) as well as the 6 ITA 709/JP/2019_ Raghuvendra Khandelwal Vs ITO A.O. that the sale deed dated 19/05/2008 was fraudulently executed by Shri Sunil Gupta, husband of Smt. Manju Gupta as Power of Attorney holder of the assessee and therefore, ultimately a Rajinama was executed between the parties for cancellation of the sale deed and the said Rajinama was dated 30/06/2009 which was placed on record before the A.O. as well as before the ld. CIT(A) and consequent to the said Rajinama, cancellation deed dated 05/11/2009 was got registered. It was submitted by the ld AR that neither the AO commented anything upon the evidence in the form of "RAJINAMA" for cancellation of nulling the sale deed in favour of Smt. Manju Gupta nor asked for any further evidence, the assessee being under a bonafide belief for submitting further evidence in this respect, assuming that there has been prevailed on the mind of the AO that this evidence might not be acceptable to him, further evidence of " CANCELLATION THE SALE SINCE IT'S EXECUTION" by obtaining certified true copy of another document to the same effect from the DY. Registrar, registration is being submitted, which is also material evidence obtained from the Govt. Authority. It was further submitted that the assessee was prevented by sufficient reasonable cause for not placed on record the cancellation deed before the ld. CIT(A) as mentioned above.
7 ITA 709/JP/2019_ Raghuvendra Khandelwal Vs ITO 7. After having heard the ld. Counsels, we found the entire controversy relates to execution of two sale deeds by the assessee i.e. dated 19/05/2008 and another dated 16/03/2009. However, as per the specific plea of the assessee that earlier the sale deed executed in favour of Manju Gupta through Power of Attorney holder Sh. Sunil Gupta was cancelled through Rajinama dated 30/06/2009 and registered cancellation dated 05/11/2009, therefore, the said sale deed dated 19/05/2008 become nonest and could not have been taken into consideration while calculating short term capital gain by the A.O. We found that the assessee had placed on record Rajinama dated 30/06/2009 which was consequently followed by registered cancellation deed dated 05/11/2009. Since the assessee has already placed on record Rajinama dated 30/06/2009 but could not place on record registered cancellation deed dated 05/11/2009 because of the reasons mentioned above, in our view, the cancellation deed dated 05/11/2009 is a registered document and cancellation deed was followed by Rajinama dated 30/06/2009 which have already been placed on record by the assessee. Since according to the assessee, the said Rajinama dated 30/06/2009 was already filed before the A.O. and the cancellation deed was not available at that time with the assessee and after assessment, the assessee obtained a certified true copy of the cancellation deed from the Sub-Registrar, therefore, the case of the assessee is covered by Clause (c)
8 ITA 709/JP/2019_ Raghuvendra Khandelwal Vs ITO of Rule 46A of the Rules. We are of the considered view that since the veracity of the registered cancellation deed dated 05/11/2009 has not been disputed by the revenue in any manner, therefore, the ld. CIT(A) ought to have admitted the said documents as additional evidence. Since ld. CIT(A) has not admitted the Registered Cancellation deed dated 05/11/2009, therefore, keeping in view our above discussion, we direct the ld. CIT(A) to admit the Registered Cancellation deed dated 05/11/2009 as additional evidence.
Since, we have allowed the additional evidence of the assessee, therefore, in the interest of justice, we restore the matter back to the ld. CIT(A) for deciding the issue of short term capital gain afresh by taking into consideration the fact of registered cancellation deed dated 05/11/2009.
Ground No. 2 of the appeal raised by the assessee is against not deciding the issue relating to computation of short term capital gain of Rs. 3,69,000/-. Since we have restored the main issue involved back to the ld. CIT(A), therefore, this issue is also restored back to the ld. CIT(A) for deciding the same afresh after providing due and reasonable opportunity of being heard to the assessee.
9 ITA 709/JP/2019_ Raghuvendra Khandelwal Vs ITO 10. In the result, this appeal of the assessee is allowed for statistical purposes only.
Order pronounced in the open court on 03rd March, 2021. Sd/- Sd/- ¼foØe flag ;kno½ ¼lanhi x®lkÃa½ (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 03/03/2021 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Shri Raghuvendra Khandelwal, Jaipur. 1. izR;FkhZ@ The Respondent- The ITO, Ward-4(2), Jaipur. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 709/JP/2019) 6. vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत