ASHA SHARAM,JAIPUR vs. CIT, KOTA

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh dqy Hkkjr] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 745/JP/2015 fu/kZkj.k o"kZ@Assessment Year : 2012-13 cuke Asha Sharma, Pr.C.I.T., Vs. Near Dak Bangla Girls Sr. Kota. Sec. School, Bhimganj Mandi, Kota Junction, Kota. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AIDPS 3855 Q vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Shravan Kr. Gupta (Adv) jktLo dh vksj ls@ Revenue by : Shri Varinder Mehta (CIT) lquokbZ dh rkjh[k @ Date of Hearing : 20/04/2017 mn?kks"k.kk dh rkjh[k @ Date of Pronouncement : 21/04/2017 vkns'k@ ORDER

PER: KUL BHARAT, J.M. This is an appeal filed by the assessee arises against the order dated 09/09/2015 passed by the ld. Pr. CIT, Kota pertaining to the A.Y. 2012-13, wherein the assessee has raised following grounds of appeal: “1. That the impugned order u/s 263 dated 09.09.2015 is bad in law and on facts of the case for want of jurisdiction and for various other reasons and hence the same may kindly be quashed. That the ld. Pr. CIT Kota is erred in law as well as on 2.1 the facts of the case in invoking S. 263 of the Act. The

ITA 745/JP/2015_ 2 Asha Sharma Vs Pr.CIT

same is being purely contrary to the provisions of law, therefore, the impugned order u/s 263 of the Act kindly be quashed. That the ld. CIT Kota is erred in law as well as on the 2.2 facts of the case in taking the action u/s 263 of the Act on the allegation that: deduction of Rs. 16,25,000/- for Shrama Ice Factory and Rs. 4,80,000/- in the case building at S-33, MBS Nagar is not allowable and the AO has erroneously assessed the Capital Gain at loss of Rs. 347/- and Rs. 5,805/-, respectively instead of Capital Gain of Rs. 16,24,653/- and Rs. 4,74,195/- thereby leading to the under assessment of income of Rs. 20,98,848/- . Which is contrary to the facts and such a finding being perverse, the impugned action is bad in law without jurisdiction and being void ab initio, the impugned order u/s 263 of the Act kindly be quashed. That the ld. Pr. CIT Kota is erred in law as well as on 3. the facts of the case in setting aside the assessment to be made afresh with the direction to re-examine the issue in the light of his observation. The same is being purely contrary to the provisions of law, therefore, the impugned order u/s 263 of the Act kindly be quashed. 2. All the grounds of the appeal in interlinked and are against the order

passed by the ld. Pr. CIT U/s 263 of the Income Tax Act, 1961 (hereinafter

referred as the Act). In this regard, the brief facts of the case are that the

assessment U/s 143(3) was completed vide order dated 31/3/2014.

Subsequently, the ld. Pr.CIT issued a notice U/s 263 of the Act calling upon

the assessee as to why the assessment order dated 31/3/2014 be not

ITA 745/JP/2015_ 3 Asha Sharma Vs Pr.CIT

revised as the order of the Assessing Officer being erroneous in so far as it

is prejudicial to the interest of the revenue on the issue of income under

the head “income from capital gain”. In response thereto, the assessee

made a written reply. However, the same was not accepted by the ld. Pr.

CIT. He proceeded to revise the order by setting aside the order of the

Assessing Officer and restoring the assessment for framing de novo

assessment to the Assessing Officer.

appeal before us.

of the ld. Pr.CIT is not justified. He reiterated the submissions as made in

the written submissions and further submitted that the Assessing Officer

had, in fact, made enquiry by making query on this issue.

submitted that a bare perusal of the assessment order would go to

demonstrate that the Assessing Officer has not carried out any enquiry in

respect of the issue in question and has not applied his mind. Therefore,

the ld. Pr.CIT was justified in revising the order.

material available on the record and have also gone through the orders of

the authorities below. It is noticed by the ld. Pr.CIT that during the year

ITA 745/JP/2015_ 4 Asha Sharma Vs Pr.CIT

under appeal, the assessee had sold two immovable properties. It is also

noticed by the ld. Pr.CIT that as per balance sheet filed by the assessee for

the assessment year 2011-12, the value of the two properties were as

under:-

Sharma Ice Factory Rs. 3,67,495/-

Building S-33, MBS Nagar Rs. 17,10,000/-

(8,10,000 + 9,00,000)

It is the case of the assessee that a valuation report was submitted

showing year wise construction and that the sale deed also mentions the

construction of property. However, the ld. Pr.CIT has given a finding, no

such evidence, books of account or balance sheet for the year in which the

construction has been made, filed to prove actual construction and its

recording in the books of account. The assessee was required to file

evidences in support of the construction for making a claim in respect of

cost of acquisition of the property by furnishing the evidence of

expenditure incurred. However, the assessee has filed a valuation report by

a registered valuer enclosed at pages No. 11 and 12 of the paper book.

The valuer has reported that cost of construction is calculated as per the

standing order of the department of Public Works,

Government of Rajasthan. Under these facts, we deem it appropriate to

modify the impugned order and direct the Assessing Officer

ITA 745/JP/2015_ 5 Asha Sharma Vs Pr.CIT while deciding the issue of cost of property would call for a valuation report from the departmental valuer and also make enquiry with regard to the cost of construction of the property.

Sd/- Sd/- ¼foØe flag ;kno½ ¼dqy Hkkjr½ (Vikram Singh Yadav) (Kul Bharat) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 21st April, 2017 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Smt. Asha Sharma, Kota. 2. izR;FkhZ@ The Respondent- The Pr.C.I.T., Kota. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File (ITA No. 745/JP/2015) vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत