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Income Tax Appellate Tribunal, DELHI BENCH: ‘F’, NEW DELHI
Before: SH. N.K. SAINI & SH. KULDIP SINGH
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: ‘F’, NEW DELHI BEFORE SH. N.K. SAINI, ACCOUNTANT MEMBER AND SH. KULDIP SINGH, JUDICIAL MEMBER Assessment Year : NA M/s. Roop Chand Laxmi Narain Vs. Income Tax Officer, Ward- HUF, 31 Sunder Nagar, New 28(4), New Delhi Delhi PAN : AAKHR8297L (Appellant) (Respondent) And ITA No. 4004/Del/2011 Assessment Year : NA M/s. Roop Chand Ram Narain Vs. Income Tax Officer, Ward- HUF, 31 Sunder Nagar, New 28(4), New Delhi Delhi PAN : AAAFR8862K (Appellant) (Respondent) Appellant by Sh. K.R. Manjani, Adv. Respondent by Sh. Deepak Garg, Sr.DR Date of hearing 25.09.2017 Date of pronouncement 03.10.2017 ORDER PER KULDIP SINGH, J.M.:
Since common questions of facts and law have been raised in both the aforesaid appeals, the same are being disposed of by way of consolidated order.
The appellants, M/s. Roop Chand Laxmi Narain HUF & M/s. Roop Chand Ram Narain HUF (hereinafter referred to as ‘the assessee’) by filing the present appeal sought to set aside the impugned order dated 20.07.2011 passed by learned Commissioner of Income Tax (Appeals)- XXV, New Delhi, on the ground that:
“on facts and circumstances of the case, the Ld. A.O. as well as the CIT(A) have erred in not granting refund in respect of compensation due to the Appellant from the Land Acquisition Department Dehradun and also of amount recovered from the Tenant, in spite of fact that the Department is not denying their attachments, nor showing any outstanding against the assessee on plea of non-availability of record after expiry of 25 years though the default for this is attributable solely to the Respondents who slept over die matter without taking any action, in spite of repeated letters and opportunities. It is prayed that refund of above alongwith interest may kindly be ordered to be paid.”
Briefly stated facts necessary for adjudication of the controversy at hand are that the assessee claimed he is the owner of the property at 4, Dharshini Gate, Dehradun, and land at village Dhartawala Mafi in District Dehradun. The Income Tax Department has attached the rent from the property at 4, Dharshini Gate, Dehradun and land acquisition compensation awarded qua the land situated at village Dhartawala Mafi against non-existent demand from the HUF. The assessee claimed the refund of the amount recovered by the Revenue Department. The Assessing Officer, during the proceedings under Section 237 of the Income-tax Act, 1961 (for short “the Act”) came to the conclusion that the record pertaining to the assessee is not available in the Ward and that there is no evidence to show that the cheque received from the Special Land Acquisition Officer by Tehsildar were deposited with the Income Tax Department. The Assessing Officer further proceeded to hold that in the absence of specific assessment year, there is a technical problem to issue the refund to the assessee. The Assessing Officer also recorded that the assessee has failed to bring on record any evidence to prove that the taxes were paid to further justify that the amount of taxes paid is more than the amount chargeable to the tax and thereby dismissed the refund claim of the assessee. 3.1 The assessee carried the matter before the learned CIT(A) by way of filing appeal, who has confirmed the order passed by the Assessing Officer under Section 237 of the Act with further direction that the Assessing Officer to examine the outstanding demand in dispute of Rs. 20,59,964/- and take necessary steps to collect this demand. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal before the Tribunal.
We have heard the learned Authorized Representatives of the parties to the appeal, gone through the documents relied upon and order passed by the revenue authorities below.
Perusal of para 4(c) of the order passed by the Assessing Officer apparently goes to prove that the rent of property at 4, Dharshini Gate, Dehradun, was attached against the demand of Rs.20,59,964/- recoverable from the assessee. It is also not in dispute that as to whether Land Acquisition Officer, Dehradun has handed over the cheque for Rs.11,51,051.78 to Tehsildar, Dehradun on 14.08.1986. For ready perusal, operative part of the assessment order contained in para 4(c) & (d) is reproduced as under:
“(c) Enquiries conducted in this case have revealed that rent of 4, Darshini Gate property was attached against demand of Rs.20,59,964/- recoverable from Mr. Ram Narian Goya! (As evident from the copy of ITCP-5 dated 10/01/1978 issued by TRO, Dehradun, made available by the tenant of 4, Darshini Gate, Dehradun). As per this ITCP - 5, the rent of the property was attached by the then Tax Recovery Officer. The tenant furnished copies of 36 challans from which it is evident that taxes were paid on behalf of Sh. Ram Narain and Laxmi Narain Goel (in their individual capacities) and M/s Madho Sons (in the status of firm1 for the assessment years 1957-58 onward. On most of the challans either the assessment year has not been mentioned or if it is mentioned, it is paid as advance tax or self assessment tax for the assessment year 1984-85, 1985-86, 1988-89, 1989-90, 1990-91 1991-92, and 1992-93. Although various letters were written to the tenant, he failed to furnish any other document in this regard to show, the nature and the basis of mentioning the assessment year or the names of the persons as written on the challans. (d) Correspondences made with Special Land Acquisition Officer, Dehradun have revealed that a consolidated Treasury Cheque No. 032749 dated 29/07/1986 for Rs.11,51,051.78 was handed over to the Tehsildar Dehradun on 14/08/(year not written should be 1986) against the amount payable to Mr Ram Narain s/o Late Sh. Roop Chand- (Rs.3,89,930.08), Sh. Shiv Narian s/o Late Sh. Roop Chand (Rs.78,496 08), Sh Vinod Kumar s/o Sh. Om Prakash
(Rs.2,92,412.15)and Sh. Laxmi Narain s/o Late Sh. Roop Chand (Rs.3,90,213.46) From the photocopy of FHB Vol.-V, Part -1. Appendix - XI Form CC sent by the SLAO it appears that income tax and wealth tax was either recoverable from all the persons in their individual capacity as mentioned in the consolidated voucher prepared by the office of the SLAO or the Tehsildar Dehradun has issued separate cheques against the demand outstanding against the persons mentioned i.e. Ram Narian Goel and Sh. Laxmi Narain Goel.”
Undisputedly, the assessee had filed a writ petition, bearing W.P.(C) No. 402 & 403/1989 before the Hon’ble Delhi High Court, who vide order dated 25.05.2006 directed the Commissioner of Income Tax (A) to render the account qua the rent collected by them and to refund the amount so recovered together with the amount of compensation received from the Special Land Acquisition Officer, Dehradun by reconstructing the record, if need be. The Hon’ble High Court allowed the petition to the following extent:
“(i) The Commissioner of Income Tax-X (Delhi) shall treat the writ petitions filed by the petitioners as applications for refund of the amounts recovered from them. (ii) The CIT shall, on the basis of the record available with him or if no record is available, after the same is reconstructed, deal with the applications in accordance with law and pass appropriate orders expeditiously but not later than six months from the date a copy of this order is served upon him. (iii) For purposes of reconstruction of the record, the petitioners shall furnish the requisite documents, that are available with them or within their control and power.
(iv) The Commissioner shall be free to summon any requisite information considered relevant from the concerned quarters in which event, the concerned shall be duty bound to cooperate and furnish such information. (v) Depending upon the view that the Commissioner may take, a final order which shall be speaking in nature shall be passed by him and communicated to the petitioners either granting or rejecting the prayer for refund. (vi) In case a refund is found due to the petitioners, the interest, if any, payable in accordance with law on such amount shall also be paid. The petitioners shall be free to seek appropriate redress against the order of the Commissioner in accordance with law, should they have any grievance against the same.”
The assessee again had to approach the Hon’ble Delhi High Court by filing writ petition bearing W.P.(C) No. 1790/2008 which was disposed of by the Hon’ble High Court with the following observations:
“In view of the aforesaid, an appeal lies to Commissioner of Income Tax (Appeals). If an appeal is preferred within a period of six weeks from the date of the receipt of the order passed today along with the application for condonation of delay, the said authority shall condone the delay and dispose of the appeal on merits within a period of six months. It is open to the petitioners to file additional documents before the said authority. As conceded to by Ms. Rashmi Chopra, learned counsel for the respondent that the said authority shall enter into communication with the concerned Commissioner of Income Tax of Uttrakhand and try to get documents, if any, with regard to the amount that was realized from the petitioners. We hope and trust that the appellate authority shall conduct a proper inquiry and make an effort to mitigate grievances of the petitioners as they have put forth with substantial force that the amount was recovered by way of attachment by the Tehsildar, Dehradun at the instance of the Income Tax Officer. With the aforesaid directions, the writ petition stands disposed of without any order as to costs.”
Pursuant to the order passed by the Hon’ble High Court, the assessee approached the learned CIT(A) who has confirmed the order passed by the Assessing Officer rejecting the application for refund and ordered to examine the outstanding demand of Rs.20,59,964/- raised against the assessee.
Perusal of both the orders passed by the Hon’ble High Court (supra) goes to prove that learned CIT(A) has been directed to treat the writ petitions filed by the assessee as applications for refund of the amount recovered by them on the basis of record available or, if needs be, to reconstruct the record and the assessee was also directed to furnish the requisite documents. Commissioner of Income Tax was also directed to summon any requisite information from the quarter concerned to redress the issue in controversy. Appellate Authority was directed to conduct the proper inquiry and make an effort to mitigate the grievances of the assessee. 10. Now, when we examine the order passed by the learned CIT(A), it appears that he has travelled beyond the issue in controversy by highlighting some facts that the assessee is a big landlord, having numerous property etc., whereas the solitary question to be determined by learned CIT(A) was; “as to whether the rental of the property 4, Dharshini Gate, Dehradun and compensation of the property due towards the assessee was validly attached against the demand of Rs.20,59,964/- or it is refundable to the assessee?”
The only issue required to be adjudicated upon by the learned CIT(A) was against which of the demand raised by the Revenue, the rental accrued to the assessee from the property No. 4, Dharshini Gate and compensation of the property to the tune of Rs.11,51,051.78/-, was adjusted.
When the Assessing Officer in para 4(c) &(d) has categorically admitted the fact that the Special Land Acquisition Officer, Delhi has sent a cheque dated 29.07.1986 for Rs.11,51,051.78 and was handed over to the Tehsildar, Dehradun on 14.08.1986, which the assessee has never received and rental accrued to the assessee was admittedly attached, it was for the Revenue to clarify by conducting a discreet inquiry, if the said rental as well as compensation amount due towards the assessee was adjusted against the demand raised. 13. The impugned order passed by the learned CIT(A) has merely given reference of letters issued by the Assessing Officer to Tehsildar, Dehradun on numerous dates but has never preferred to summon the Tehsildar, Dehradun, alongwith the records to bring on record the true and correct facts, if any such amount of rentals as well as compensation awarded to the assessee was attached and adjusted against the demand raised by the Revenue. 14. The Hon’ble Delhi High Court vide order dated 25.05.2006 (supra) has given plenary power to the learned CIT(A) to summon any officer as well as the record from the quarter concerned to make out; “as to whether the attached rental accrued to the assessee and compensation awarded has been adjusted against the demand raised by the Revenue”.
From the letter dated 20.01.1988, available at page 6 of the appeal set, written by Special Land Acquisition Collector, it is apparently clear that the cheques for Rs. 3,89,930/- and Rs.3,90,213/- on account of compensation to be paid to the assessee were handed over to the Tehsildar, Delhi on 24.07.1986. When the compensation amount reached in the hands of the Tehsildar, Dehradun, where it was already attached by the Revenue against the demand of Rs.20,59,964/- as is evident from para 4(c) of the assessment order then the revenue department is under legal obligation to pass speaking order that such & such amount belonging to the assessee has been adjusted against such & such demand raised by the Department. Again it was for the Revenue to verify and intimate the assessee that the amount of rental and compensation had been adjusted against the said demand.
In view of what has been discussed above, we are of the considered view that the learned CIT(A) is required not only to dispose of the appeal but to conduct a discreet inquiry by summoning concerned officer and requisite record from the quarter concerned or to reconstruct the record, if need be, in compliance to the order passed by the Hon’ble High Court in order to adjudicate the controversy at hand once for all. Because right from 1986, the assessee is moving like a rolling stone by approaching one forum after another right from Assessing Officer, CIT(A), Chairman, CBDT, Hon’ble High Court and then Tribunal having its no fault. Consequently, the impugned order is set aside and file is remitted back to the learned CIT(A) to decide the issue afresh after providing opportunity of being heard to the assessee. Learned counsel for the assessee has also assured to extend necessary assistance to arrive at the logical conclusion.
In the result, both the appeals are allowed for statistical purposes. The decision is pronounced in the open court on 3rd October, 2017.