M/S. RAGHUNATH GREEN POWER (P) LTD.,CHENNAI vs. ACIT, CHENNAI

आयकर अपीलीय अिधकरण, ’ए’ �ायपीठ, चे�ई IN THE INCOME-TAX APPELLATE TRIBUNAL ‘A’ BENCH, CHENNAI �ी धु�ु� आर.एल रे�ी, �ाियक सद� एवं �ी जी. मऺजुनाथा, लेखा सद� के सम� Before Shri Duvvuru RL Reddy, Judicial Member & Shri G. Manjunatha, Accountant Member आयकर अपील सं./I.T.A. Nos. 3084 & 3086/Chny/2019 िनधा�रण वष�/Assessment Year: 2005-06 M/s. Raghunath Green Power Pvt. Ltd., The Assistant Commissioner of No. 16, Cenotaph Road, Teynampet, Vs. Income Tax, Company Circle V(3), Chennai 600 018. Chennai. [PAN:AADCR1513K] (अपीलाथ�/Appellant) (��थ�/Respondent) अपीलाथ� की ओर से / Appellant by : Shri G. Baskar, Advocate ��थ� की ओर से/Respondent by : Shri G. Chandrababu, Addl. CIT सुनवाई की तारीख/ Date of hearing : 27.01.2021 घोषणा की तारीख /Date of Pronouncement : 11.03.2021 आदेश /O R D E R PER DUVVURU RL REDDY, JUDICIAL MEMBER: Both the appeals filed by the assessee are directed against the order of the ld. Commissioner of Income Tax (Appeals) 3, Chennai, dated 18.09.2019 relevant to the assessment year 2014-15 passed against the assessment order under section 143(3) r.w. section 147 of the Income Tax Act, 1961 [“Act” in short] as well as against the rectification order passed under section 154 of the Act.

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r.w. section 147 of the Act dated 22.12.2011, in which capital gains at ₹.60,02,099/- was determined by the Assessing Officer against the long term capital loss admitted by the assessee at ₹.25,70,937/-. On its appeal, vide order in I.T.A. No. 2307/Mds/2013 dated 11.09.2015, the ITAT has remitted the matter back to the file of the ld. CIT(A) for giving one more opportunity to the assessee to produce necessary evidence in connection with the expenditure claimed with transfer of impugned property at ₹.67,87,640/-. Meanwhile, vide order under section 154 of the Act dated 03.03.2015, the Assessing Officer rectified the order passed under section 143(3) r.w.s. 147 of the Act dated 22.12.2011 for substituting the cost of acquisition of the lands with a different figure and recomputed the capital gains at ₹.1,70,18,097/- as against the figure determined at ₹.60,02,099/-, which was confirmed by the ld. CIT(A) on appeal. On further appeal, vide order in I.T.A. No. 2268/Chny./2017 dated 22.02.2018, the ITAT remitted the matter back to the file of the ld. CIT(A) for fresh adjudication by clubbing both the appeals. In compliance to the directions of the ITAT, vide order dated 18.09.2019, the ld. CIT(A) confirmed the long term capital gains computed at ₹.1,70,18,097/-. On being aggrieved, the assessee is in appeal before the Tribunal by raising the following grounds:

2.1 Against the appellate order passed under section 143(3) r.w.s. 147 of the Act, the assessee has raised the following grounds:

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“1.1 The order of the CIT(A) is erroneous, opposed to law and facts and liable to be set aside insofar as the same is passed in a casual and summary manner. 1.2 The CIT(A) erred in disposing of the appeal in haste without adverting to any of the submissions made in the course of the appeal and in the detailed written submissions filed before him. 1.3 The CIT(A) erred in observing that no evidence had been produced before him when a voluminous paper book containing all the documents relevant had been submitted before him. This shows the pre-determined mind of the CIT(A). 2.1 The CIT(A) erred in upholding the jurisdiction of the AO to reopen the assessment u/s 147 of the Act; 2.2 The CIT(A) ought to have seen that the law laid down by the Hon'ble Supreme Court having not been followed should have quashed the order of reassessment. 3.1 The CIT(A) ought to have held that no "transfer" took place during the year and hence assessment of capital gains is untenable in law. 3.2 The CIT(A) did not apply his mind to the specific submissions made before him in para 10.1 of the written submissions filed before him. 4.1 The CIT(A) failed to see that no amount having actually been received by the Appellant and the entire agreement was assigned to Wescare in pursuance of the Memo of Compromise, whereby the entire amount was paid directly by the purchasers to Wescare and Wescare had offered the entire receipt as income, proof of which was submitted, and hence, assessment of capital gains in the hands of the assessee is unjustified and would amount to double taxation. 4.2 The CIT(A) also failed to note that Wescare having already offered the entire sum for taxation; inclusion of the same in Appellant's hands will only result in double taxation. 5.1 The CIT(A) erred in upholding the action of the Assessing Officer in invoking the provisions of Sec.50C of the Income-Tax Act. 5.2 The CIT(A) ought to have seen that provisions of Sec. 50C have no application here since the transfer is not by a registered document; the CIT(A) has ignored the plethora of decisions on this issue.

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5.3 The CIT(A) failed to see that in any event, the difference between the guideline value and the sale consideration is only a venial variance of 9.6%, ought to have deleted the addition. 6.1 The CIT(A) erred in confirming the disallowance of Rs.67,87,640/- VIZ. expenditure incurred in connection with the lands, and has wrongly and arbitrarily observed that no evidences were placed before him in this regard. 6.2 The CIT(A) went wrong in not considering the detailed and elaborate evidences, submissions and case laws cited before him in the proper perspective and has merely reiterated the order of the assessment. 7. Any other ground/s that may be raised at the time of hearing.” 3. By referring to the grounds of both the appeals, the ld. Counsel for the assessee has submitted that the legal issues raised in the appeal filed by the assessee under section 143(3) r.w.s. 147 of the Act as well as the appeal filed against confirmation of rectification order passed under section 154 of the Act, were not adjudicated by the ld. CIT(A) while concluding his appellate order and prayed for suitable directions. On the other hand, the ld. DR supported the orders of authorities below.

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assessee has raised the specific legal issue before the ld. CIT(A), which was also reproduced in the appellate order dated 30.10.2013. On appeal, the Tribunal has directed the ld. CIT(A) to adjudicate entire issues after affording an opportunity of being heard to the assessee. However, in the second round of litigation, despite reproducing the original grounds of appeal raised by the assessee in the appeal filed against the order passed under section 143(3) r.w.s. 147 of the Act, in which, the assessee has raised the specific legal issue of reopening of assessment at ground No. 2 & 3, the ld. CIT(A) has not adjudicated the legal issue in his appellate order dated 18.09.2019. Until and unless the legal issue raised in the appeal filed by the assessee challenging the jurisdiction under section 147 of the Act is adjudicated, the ld. CIT(A) cannot proceed further to adjudicate the issues raised in the appeal of the assessee. Since the ld. CIT(A) has not adjudicated the legal issue raised under section 147 of the Act, we set aside the appellate order and direct the ld. CIT(A) to adjudicate all the issues raised by the assessee in accordance with law after affording an opportunity of being heard.

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2.1 The CIT(A) has gravely erred in upholding the rectification order passed by the AO u/s 154, substituting the land costs for FY 2000-01 at Rs. 26,80,621/- and for FY 2001-02 at Rs. 58,19,355/-. 2.2 The CIT(A) ought to have seen that proceedings under Sec. 154 are unwarranted since the issue sought to be rectified is not a mistake apparent on record, but a debatable one. 3.1 The CIT(A) has not adverted to the specific submission of the Appellant with respect to jurisdiction of the AO to initiate proceedings u/s 154 vis-à-vis operation of provisions of Sec. 154(1A) and 'doctrine of merger theory'. 3.2 The CIT(A) failed to see that the order sought to be rectified dated 22.12.2011, has merged with the order of the CIT(A) dated 30.10.2013 and hence the present Rectification Order dated 03.03.2015 is illegal u/s 154(1A). 4. In any event, the CIT(A) should have seen that the actual land cost of Rs.66,46,965/- and Rs.1,07,24,323/- is rightly mentioned in the computation of total income and substitution of these figures with some other amounts is uncalled for. 5. The CIT(A) has not at all considered the detailed evidences furnished, submissions made and the case laws cited. Any other ground/s that may be raised at the time of hearing.” 6. 6. So far as the appeal filed by the assessee in I.T.A. No. 3086/Chny/ 2019 is concerned, the first effective ground raised in the appeal of the assessee relates to the jurisdiction of the Assessing Officer in passing the rectification order under section 154 of the Act. Before the ld. CIT(A), the assessee has raised the jurisdiction of the Assessing Officer in passing the rectification order under section 154 of the Act. However, the ld. CIT(A) has not adjudicated the jurisdiction issue, in fact, in the first round of litigation, the assessee has raised the specific issue before the ld. CIT(A), which was

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also reproduced in the appellate order dated 30.06.2017. On appeal, the Tribunal has set aside the appellate order by observing as under: “4. We have considered the rival contentions and perused the orders of the authorities below. Assessment was originally completed on 22.12.2011 determining capital gain of Rs.60,02,099/- against long term capital loss of Rs.25,70,937/- admitted by the assessee. Ld. Assessing Officer had substituted gross consideration with guideline value and disallowed the claim of expenditure. Assessee had moved in appeal before the ld.CIT(A) against such assessment. While this appeal was pending before the ld. Commissioner of Income Tax (Appeals), ld. Assessing Officer did a rectification u/s.154 of the Act substituting the cost of acquisition of the land with a different figure. Though this was brought to the notice of the ld. Commissioner of Income Tax (Appeals), he went ahead and disposed off the appeal of the assessee, confirming the order of the ld. Assessing Officer. Assessee had moved further appeal before this Tribunal and this Tribunal had remitted the matter back to the ld. Commissioner of Income Tax (Appeals) vide its order dated 11.09.2015 in ITA No.2307/Mds/2013. The directions of the Tribunal at para 6 of the said order is reproduced hereunder:- “6. We have heard both sides, perused the materials on record and gone through the orders of authorities below. The assessee sold a property for a consideration of Rs.2,41,58,928/- and claimed expenses in connection with transfer at ₹67,87,640/-. However, the assessee has not furnished any proof for the expenses incurred and therefore, the Assessing Officer has taken the guideline value for stamp valuation purposes and worked out the sale consideration at ₹2,67,44,324/- for computation of capital gain. On appeal, even before the ld. CIT(A), the assessee has not furnished any evidence for the claim of expenditure incurred by it. However, the ld. Counsel for the assessee has submitted that initially the case was heard partly before the ld. CIT(A) and the matter was adjourned for the purpose of filing evidences. It was further submitted that the notice of hearing issued by the Department has not reached the assessee since it was sent to assessee’s old address and it was re-routed to the assessee and reached after the date of hearing. Therefore, the assessee was not able to produce evidences for the expenditure incurred for the sale of property and submitted that one more opportunity may be granted to the assessee for filing the evidences. In view of the above, we are of the considered opinion that one more opportunity shall be given to the assessee to meet the ends of justice. Accordingly, we set aside the order of the ld. CIT(A) and the entire issue is remitted back to the ld. CIT(A) with a direction to consider the evidences for the expenditure

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incurred, as may be filed by the assessee, and decide the issue afresh after giving required opportunity to the assessee”. The matter now before us is the appeal filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals) whereby he affirmed the rectificatory order passed by the ld. Assessing Officer, substituting the cost of acquisition with a different figure for computing long term capital gains/loss. Since the issues are all related to computation of capital gains or loss arising out from the sale of very same property, we are of the opinion that ld. Commissioner of Income Tax (Appeals) should consider both the appeals together. In other words, ld. Commissioner of Income Tax (Appeals) has to consider the original appeal of the assessee which is before him pursuant to the order dated 11.09.2015 in ITA No.2307/Mds/2013 of the Tribunal, along with the appeal filed by the assessee against the rectification order passed by the ld. Assessing Officer u/s.154 of the Act, together. We therefore set aside the order of the ld. CIT(A) and remit this appeal also back to him, for consideration afresh along with appeal against the original assessment which is to be adjudicated again, pursuant to direction of the Tribunal. However, in the second round of litigation, despite reproducing the grounds of appeal raised by the assessee in the appeal filed against the order passed under section 154 of the Act at page 4 in para 4, in which, the assessee has specifically challenged the rectification order passed under section 154 of the Act at ground No. 2 & 3, the ld. CIT(A) has not properly adjudicated and passed speaking order on the jurisdiction of the Assessing Officer in passing the rectification order in his appellate order dated 18.09.2019 except by stating that “I found that there is no infirmity in the action of the assessing officer in rectifying the assessment order passed u/s 143(3) rws 147 on 22.12.2011 ……….”. Until and unless the jurisdiction of the Assessing Officer in passing the rectification order under section 154 of the Act is adjudicated in right perspective, the ld. CIT(A) cannot proceed further to adjudicate the issue on merits raised in the appeal of the

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assessee. Since the ld. CIT(A) has not adjudicated the legal issue raised under section 154 of the Act, we set aside the appellate order and direct the ld. CIT(A) to adjudicate all the issues raised by the assessee in accordance with law by passing a speaking order after affording an opportunity of being heard to the assessee.

Sd/- Sd/- (G. MANJUNATHA) (DUVVURU RL REDDY) ACCOUNTANT MEMBER JUDICIAL MEMBER Chennai, Dated, 11.03.2021 Vm/- आदेश की �ितिलिप अ�ेिषत/Copy to: 1. अपीलाथ�/Appellant, 2.��थ�/ Respondent, 3. आयकर आयु� (अपील)/CIT(A), 4. आयकर आयु�/CIT, 5. िवभागीय �ितिनिध/DR & 6. गाड� फाईल/GF.