SMT. PARAMJIT KAUR,LUDHIANA vs. PR.CIT-2, LUDHIANA

आदेश/Order

Per SudhanshuSrivastava, Judicial Member: This appeal is preferred by the assessee against order dated

28.02.2020 passed by the Ld. Pr. Commissioner of Income Tax,

Ludhiana (hereinafter called the Ld. PCIT) wherein for

assessment 2011-12, the Ld. PCIT, vide order passed under

section 263 of the Income Tax Act,1961 (hereinafter called the

Act) has held that the assessment order dated 30.11.2019 passed

under section 143(3) r.w.s. 148 of the Act accepting the returned

2 337-Chd-2020 (A.Y. 2011-12) – Smt. Paramjit Kaur, Ludhiana income of the assessee was erroneous and prejudicial to the

interest of the revenue and wherein the Ld. PCIT has set-aside

the said assessment order to the file of the Assessing Officer (AO)

for the purpose of passing a fresh order in respect of the issue

relating to purchase of property.

2.0 The brief facts of the case are that based on information

regarding purchase of plot amounting to Rs.11,50,000/-, the

assessee’s case was reopened by issuing notice under section 148

of the Act and, subsequently, in response to the said notice, the

return of income was filed declaring taxable income at

Rs.2,14,160/-. During the course of such assessment

proceedings, on being required to explain the contents of an

agreement to sell, the assessee submitted before the AO that no

agreement to purchase any property, (specifically the plot under

question measuring 200 sq. yards.), from one Shri Nihal Singh,

jointly with the husband Shri Inderjit Singh Singh had taken

place in the captioned assessment year and further that the

purchase was executed on 25.03.2013 and the payments were

also were made at that point of time. It was submitted before the

AO that the said transaction took place in assessment year 2013-

14 and evidences were filed before the AO in that regard. In view

3 337-Chd-2020 (A.Y. 2011-12) – Smt. Paramjit Kaur, Ludhiana of the submissions of the assessee, the AO accepted the returned

income.

2.1 Subsequently, the Ld. PCIT issued a show cause notice

under section 263 of the Act and it was pointed out by the Ld.

PCIT during the proceedings before him that an agreement to sell

dated 01.11.2010 existed and payments of Rs.6,00,000/- and

2,50,000/- had been made on 28.11.2010 and 01.12.2010

respectively. As per the Ld. PCIT, the assessee could not explain

these documents and, therefore, the Ld. PCIT reached the

conclusion that there was a complete lack of enquiry and non-

application of mind by the AO and that the assessing officer had

failed to reconcile facts stated by the assessee in her statement in

response to particular summons issued by the CIT (A)-2,

Ludhiana (basis of information for re-opening the case) and

further that the AO had not raised any query regarding dates of

payments mentioned in the agreement to sell and had passed the

assessment order in haste thereby making the impugned order

erroneous as well as prejudicial to the interest of the revenue.

The Ld. PCIT set-aside the assessment order and directed the AO

to frame a fresh assessment after duly considering the issues

pointed out in the show cause notice.

4 337-Chd-2020 (A.Y. 2011-12) – Smt. Paramjit Kaur, Ludhiana

2.2 Aggrieved by this order of the Ld. PCIT, the assessee is now

in appeal before this Tribunal and has raised the following

Grounds of appeal:

5 337-Chd-2020 (A.Y. 2011-12) – Smt. Paramjit Kaur, Ludhiana 4. That the order of the Pr. CIT is bad in law and, therefore, deserves to be set aside.

3.0 At the outset, the Ld. AR submitted that the Registry of the

Tribunal has pointed out that there was a delay of 205 days in

filing of this appeal before the Tribunal. It was submitted that the

due date for filing of the appeal was 03.05.2020 whereas a

country-wide lockdown has been announced on 22.03.2020 in

view of the Covid -19 situation. It was further submitted that the

appeal was filed on 24.11.2020 when the Covid-19 situation in

the country had improved a little. He further placed reliance on

the order of the Hon’ble Apex Court as reported in (2021) 432 ITR

206 (SC) wherein the Hon'ble Apex Court had directed that in

computing the period of limitation for any suit, appeal,

application or proceedings, the period from March 15,2020 till

March 14, 2021 shall stand excluded. It was submitted that in

view of this order of the Hon’ble Apex Court, there was no actual

delay in filing of the appeal before the Tribunal.

4.0 The Ld. CIT DR did not refute the contentions of the Ld. AR

vis-à-vis the issue of condonation of delay.

6 337-Chd-2020 (A.Y. 2011-12) – Smt. Paramjit Kaur, Ludhiana 5.0 Accordingly, looking into the facts of the case and also the

cause of the delay, as has been explained by the Ld. AR, and

respectfully following direction of the Hon’ble Apex Court as

aforesaid, we admit the appeal for the purpose of hearing by

holding that there is no delay in the filing of this appeal.

6.0 The Ld. AR submitted that the assessee is working as a

teacher in Ludhiana and on the basis of information received in

the case of the assessee as well as her husband Shri Inderjit

Singh, their cases were reopened on the basis of identical

reasons. It was submitted that as per the reasons recorded in the

cases of both the assessee as well as her husband, they had

jointly purchased a plot of land measuring 200 sq yrds. from one

Sri Nirmal Singh. It is was further submitted as per the said

information, the agreement to sell was entered into in A.Y. 2011-

12 for which stamp papers were purchased on 01.11.2010 and

the assessee and her husband were said to have paid an amount

of 11,50,000/- during assessment year 2011-12. It was further

stated in the information that though substantial part of

purchased consideration was paid during assessment year 2011-

12, the sale deed was executed on 25.03.2013.

7 337-Chd-2020 (A.Y. 2011-12) – Smt. Paramjit Kaur, Ludhiana 6.1 The Ld. AR submitted that the statement on which the said

information has been based had been made during the course of

appellate proceedings in the case of Shri Nirmal Singh and the

assessee’s case was re-opened. It was further submitted that the

correct factual position was that the assessee had made no

payments towards the purchase of plot in A.Y. 2011-12 and even

the sale deed came to be executed in assessment year 2013-14

only. It was further submitted that this fact was duly brought to

the knowledge of the AO during the course of assessment

proceedings and further, the assessee had also stated before the

AO that she had earlier mentioned the date of payment wrongly

before the Ld. CIT (A) in her statement as at that point of time

she could not recollect the date correctly.

6.2 The Ld. AR argued that the AO had taken a concious

decision of accepting the returned income of the assessee after

duly considering her submissions and also after duly verifying

the fact from the agreement to sell that there was no signature of

the assessee on the said agreement.

6.3 The Ld. AR further submitted that even the reassessment

proceedings in the case of the assessee’s husband, after duly

8 337-Chd-2020 (A.Y. 2011-12) – Smt. Paramjit Kaur, Ludhiana considering the facts and circumstances, which were identical

both in the case of the assessee as well as her husband, were

dropped by the AO. Our attention was drawn to the assessment

order in the case of the assessee’s husband in this regard.

6.4 The Ld. AR relied on numerous judicial precedents to

support his contention that where the AO has passed an

assessment order after due application of mind and after duly

considering the various evidences and documents, the Ld. CIT

would not be justified in resorting to revisionary proceedings

under 263 of the Act. It was submitted that the AO had accepted

the returned income only after due application of mind and

verification of facts.

6.5 It was further argued by the Ld. AR that even on the

principle of consistency, the impugned order does not survive as

identical issue in the case of the husband had been accepted

with the AO dropping the re-assessment proceedings and the Ld.

PCIT choosing not to initiate revisionary proceedings in the case

of the husband.

7.0 Per Contra, the Ld. CIT DR argued that the AO had erred in

not considering the statement of the assessee wherein she had

9 337-Chd-2020 (A.Y. 2011-12) – Smt. Paramjit Kaur, Ludhiana admitted that the payment of Rs.11,50,000/- had been made in

assessment year 2011-12. It was argued that, apparently, the AO

had not applied his mind to the reasons for which the

reassessment proceedings had been initiated and that he had

accepted the version of the assessee without making due

enquiries. It was further submitted that the case of the assessee’s

husband cannot be relied upon by the assessee for the simple

reason that each and every case as an independent case and

further the fact remained that no enquiry had been conducted by

the AO in the case of the assessee.

8.0 We have heard the rival submissions and have also perused

the material on record. It is seen that the assessee, in response to

the notice issued by the AO, had clarified before the AO that no

payment towards purchase of plot had been made during

assessment year 2011-12 and the AO had accepted this

contention of the assessee as the assessee cannot be expected to

prove the negative. In our considered view, if the Ld. PCIT

doubted the contentions of assessee, he himself should have

brought evidence to the contrary on record but this was not done.

Further, the Ld. PCIT has referred to a particular agreement to

sell which the assessee has denied as having entered into with

10 337-Chd-2020 (A.Y. 2011-12) – Smt. Paramjit Kaur, Ludhiana the seller Shri Nirmal Singh. It is also note-worthy that the said

agreement to sell does not contain the signature of the assessee.

In absence of her signatures, no evidentiary value can be

attached to the said agreement to sell.

8.1 Therefore, in our considered view, based on the record

before him, the AO took a conscious view after due application of

mind and after deciding that no further enquires were required,

he accepted the returned income of the assessee. Thus, the AO

took one of the possible views which he could have taken and he

chose to accept the contention of the assessee. It is settled law

that no assessment order would become erroneous and/or

prejudicial to the interest to the revenue only because the AO has

accepted the contention of the assessee.

8.2 On the issue of lack of enquiry and inadequate enquiry, it

would be relevant to make a reference to the order of the co-

ordinate Bench in the case of Sanjay Jain & Others reported in

96 ITR (Trib) 1 (Chd), wherein, the co-ordinate Bench relied upon

the judgment of the Hon'ble Delhi High Court in the case of CIT

Vs. Sunbeam Auto Ltd. reported in (2011) 332 ITR 167 (Del) and

also the judgment in the case of ITO Vs. DG Housing Projects

11 337-Chd-2020 (A.Y. 2011-12) – Smt. Paramjit Kaur, Ludhiana Ltd. (2012) 343 ITR 329 (Delhi), wherein the Hon'ble Delhi High

Court has ruled that one has to keep in mind the distinction

between lack of inquiry and inadequate inquiry and further if any

inquiry was found to be inadequate, that would not by itself give

occasion to the Commissioner to pass the order under section

263 of the Act, merely because he has a different opinion in the

matter. Further, the Ld. PCIT has not pointed out as to what

further inquiries were required to be made and how without

those inquiries, the order of the Assessing Officer was erroneous

in so far as being prejudicial to the interests of revenue.

8.3 We are also conscious of the landmark judgment of the

Hon’ble Apex Court reported in Malabar Industrial Co. Ltd. Vs.

CITR (2000) 243 ITR 83 (SC) and also the judgment of the

Hon'ble jurisdictional High Court in the case of CIT Vs. Unique

Autofelts (P) Ltd. (2009) 30 DTR 231, in which , it has been held

as under:-

“5. From the finding of the Tribunal, it is clear that the assessee had given proper explanation by filing the necessary confirmations view of such a finding, the Tribunal rightly held that power under section 263 of the Act could be exercised where view taken by an Assessing Officer was erroneous. While exercising such

12 337-Chd-2020 (A.Y. 2011-12) – Smt. Paramjit Kaur, Ludhiana power, the Commissioner was bound to take into account all relevant facts. If order invoking the said power proceeds on an erroneous assumption, the same could be set-aside by the Tribunal. Finding of the Tribunal is not shown to be perverse. No substantial question of law arises.”

8.4 Reliance by the assessee on various judgments quoted as

mentioned supra in the case of PCIT Vs. Kesoram Industries Ltd.

(Hon’ble Calcutta High Court) reported in (2020) 423 ITR 180

(Cal), is also relevant, in which, it has been held as under:-

“Revision-Powers of Commissioner- order of Tribunal setting aside revision order on ground issues raised by Commissioner, had been considered by the Assessing Officer and order not erroneous – Reasoned order based on facts – Need not be interfered with – Income tax Act, 1961 m SS 253, 254 , 263.”

8.5 Further, the contention of the assessee that in the case of

husband, Shri Inderjit Singh, on similar facts and circumstances,

148 proceedings were filed has also to be duly considered as on

the same set of facts, there cannot be two separate conclusions

and further on account of consistency, the order of the ITAT

Chandigarh Bench in the case of Smt. Amarjit Kaur Vs. ITO in

13 337-Chd-2020 (A.Y. 2011-12) – Smt. Paramjit Kaur, Ludhiana ITA Nos. 40 & 41/Chd/2019 is quite relevant and the relevant

finding in the case of above order is almost on identical facts and

the same is being reproduced as under:-

“13. Therefore by keeping in view the ratio down by the Hon'ble Supreme Court and Hon'ble Jurisdictional High Court in the aforesaid referred to cases, I am of the view that the Department ought to have maintained consistency and that the addition sustained by the Ld. CIT (A) was not justified particularly when an identical addition made in the hands of the co-owner of the same property i.e. Husband of the assessee, has been deleted by the Ld. CIT(A) and the said order was not challenged before the higher Forum. In view of the above the addition made by the AO and sustained by the Ld. CIT (A) is deleted. 14. In ITA No.41/Chd/2019 for the Assessment Year 2008-09, the facts are similar as were in ITA No. 40/Chd/2019 for the Assessment Year 2006-07, the only difference is in the amount involved, therefore may findings given in the former part of this order shall apply mutatis mutandis for this Assessment Year also.”

8.6 Thus, both on the issue of application of mind and adequate

inquiry having been made by the Assessing Officer as well as on

the issue of consistency, as elaborated above, we have no

14 337-Chd-2020 (A.Y. 2011-12) – Smt. Paramjit Kaur, Ludhiana hesitation to quash the order as passed by the Ld. PCIT under section 263 of the Act.

9.0 In the final result, the appeal of the assessee stands

allowed.

Order pronounced on 22.08.2022

Sd/- Sd/- ( N.K. SAINI) (SUDHANSHU SRIVASTAVA) Judicial Member Vice President Dated : 22.08.2022 “आर.के.”

आदेशक���त*ल+पअ,े+षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकरआयु-त/ CIT 4. आयकरआयु-त (अपील)/ The CIT(A) 5. +वभागीय��त�न0ध, आयकरअपील$यआ0धकरण, च2डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड�फाईल/ Guard File

आदेशानुसार/ By order, सहायकपंजीकार/ Assistant Registrar