SHRI SHRIKANT SHUKLA,INDORE vs. THE ACIT, CIRCLE 5(1), INDORE

Shri Krishnakant Shukla – ITA No.100/Ind/2017 Shrikant Shukla – ITA No. 101/Ind/2017 आयकरअपील�यअ�धकरण ,इ�दौर�यायपीठ ,इ�दौर IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE �ी सी.एम.गग� ,�या�यकसद�य तथा �ीओ.पी.मीना ,लेखासद�यकेसम� BEFORE SHRI C. M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER 1. आ.अ.सं /.I.T.A. No.100/Ind/2017 2. आ.अ.सं /.I.T.A. No.101/Ind/2017 �नधा�रणवष� / Assessment Year: 2006-07 1. Shri Krishnakant Shukla vs. Asstt. Commissioner of 654, Khajrana Income Tax 5(1) Above Pipal Chowk Indore Near Ram Mandir Indore 2. Shrikant Shukla 564, Khajrana Above Pipal Chowk Near Ram Mandir Indore अपीलाथ� /Appellants अपीलाथ� ��यथ� /Respondent ��यथ� अपीलाथ� अपीलाथ� ��यथ� ��यथ� �था.ले.सं./PAN: BDNPS – 9624K & BDNPS – 9624K अपीलाथ� क� ओर से अपीलाथ� क� ओर से/Appellants by अपीलाथ� क� ओर से अपीलाथ� क� ओर से Shri Avinash Agrawal ��यथ� क� ओर से ��यथ� क� ओर से/Respondent by ��यथ� क� ओर से ��यथ� क� ओर से Shri Mohd. Javed सुनवाई क� तारीख सुनवाई क� तारीख/Date of hearing सुनवाई क� तारीख सुनवाई क� तारीख 21.03.2017 उ�ोषणा क� तारीख/Date of pronouncement उ�ोषणा क� तारीख उ�ोषणा क� तारीख उ�ोषणा क� तारीख 27.03.2017 आदेश आदेश /O R D E R आदेश आदेश PER BENCH These appeals are filed by the above-mentioned assessees against different orders of learned Commissioner of Income tax-II,

Shri Krishnakant Shukla – ITA No.100/Ind/2017 Shrikant Shukla – ITA No. 101/Ind/2017 Indore [hereinafter referred to as the “CIT (A)”] dated 26.10.2016.

These appeals pertain to Assessment Year 2006-07 as against

appeals decided in respect of different assessment orders dated

30.11.2012 passed u/s. 144/254 of the Income Tax Act, 1961

(herein after referred to as "the Act) by the ACIT 5(1), Indore

[hereinafter referred to as the “AO"].

been taken by these assessees :-

“On the facts and in the circumstances of the case:-

barred by limitation, passed without jurisdiction, bad in law,

contrary to material and law and/or was illegal.

lakh under section 50C

lakh as the ld. A.O. did not follow the direction of Hon. ITAT,

Indore Bench to consider the cases relied upon by the

assessee along with the report of AVO and then decide in

accordance with the law.

Shri Krishnakant Shukla – ITA No.100/Ind/2017 Shrikant Shukla – ITA No. 101/Ind/2017 4. The ld. CIT(A) failed to consider that the DVO’s valuation

was without any basis and therefore the same should have

been ignored.

dated 3.6.2010 was applicable in the facts of present case

as the property was not registered in the year of sale.

Sugantha Ravindram (2013) 32 taxmann.com 274(Madras)

was applicable in the facts of present case as the property

was not registered in the year of sale.

Kumar Thakkar 110 ITD 525 (Jodh) was applicable in the

facts of present case as the property was not registered in

the year of sale.

order and therefore illegal and bad in law.”

similar with each other except the figures, we shall decide ITA No.

100/Ind/2017 first being the lead case. 3

Shri Krishnakant Shukla – ITA No.100/Ind/2017 Shrikant Shukla – ITA No. 101/Ind/2017 ITA No. 100/Ind/2017

2.1 Succinctly, facts as culled out from the orders of lower

authorities are that the original assessment in this case was

completed determining the total income of the assessee at

Rs.17,52,520/- as against the returned income of Rs.5,63,724/-.

While completing the assessment the Assessing Officer made

addition u/s 50C of the Act. On appeal the learned CIT(A) granted

part relief to the assessee. On further appeal, the Tribunal remitted

the matter to the file of the Assessing Officer for fresh consideration

after affording due opportunity of being heard to the assessee.

Therefore, the Assessing Officer issued notice u/s 143(2) of the Act.

The Assessing Officer also issued a letter asking the assessee to

show reasons as to why the report of the AVO should not be

rejected as the same is not acceptable in view of the provisions of

section 50C of the Act. The Assessing Officer fixed the case for

hearing on 18.10.2012 but neither there was any representation on

behalf of the assessee nor any reply was filed. The Assessing Officer

also contacted the learned counsel for the assessee on phone on

29.10.2012 in response to which he assured that he would attend

with reply. However, none attended. The Assessing Officer also 4

Shri Krishnakant Shukla – ITA No.100/Ind/2017 Shrikant Shukla – ITA No. 101/Ind/2017 provided similar opportunities to the assessee on 22.11.2012 but

the assessee did not remain present. However, written submission

was filed in Dak asking for adjournment. The Assessing Officer also

made a request over telephone on 29.10.2012 but to no avail. In the

wake of the non-cooperation on the part of the assessee, the

Assessing Officer inferred that the assessee has nothing to provide

any material in support of his claim. The claim of the assessee was

that the AVO’s report should not be rejected without providing

opportunity. The Assessing Officer observed that more than

sufficient opportunity has been provided to the assessee but he has

failed to represent his case. However, the Assessing Officer observed

that the report of the AVO cannot be accepted as in the provisions

of section 50C of the Act, if the value of the sale consideration

shown by the assessee is below than the value determined by the

registered authority, the value as determined is to be adopted as

sale consideration for the purpose of computing capital gains. In

the instant case, the assessee has shown sale consideration for

land-2 at Rs.60.14 lacs. The registering authority valued the same

at Rs.88.54 lacs. On the objection of the assessee, the Assessing

Officer referred the matter to the DVO who valued the land at 5

Shri Krishnakant Shukla – ITA No.100/Ind/2017 Shrikant Shukla – ITA No. 101/Ind/2017 Rs.71.52 lacs below than the value adopted by the registering

authority. The assessee claimed that the value of the land should be

adopted at Rs.58.87 lacs as per report of AVO. However, the

Assessing Officer did not agree with the same. In this case the ITAT,

Indore Bench, had set aside the issue to the file of the Assessing

Officer with the direction that the assessee should be given

sufficient opportunity not only to present the case but also to

furnish evidence in support of its contentions. The Tribunal also

directed the Assessing Officer to consider the cases relied upon by

the assessee along with the report of the AVO. However, the

Assessing Officer proceeded to make the assessment u/s 144 of the

Act in the absence of non-cooperation on the part of the assessee.

Accordingly, the Assessing Officer determined the valuation of the

property at Rs.71.52 lacs on the ground that the Valuation Officer

has duly applied his mind to the entire facts of the case including

the points raised by the assessee.

2.2 Being aggrieved, the assessee preferred appeal before the

learned CIT(A) who, after elaborately discussing the issue,

confirmed the action of the Assessing Officer.

Shri Krishnakant Shukla – ITA No.100/Ind/2017 Shrikant Shukla – ITA No. 101/Ind/2017 2.3 Now, the assessee is in appeal before the Tribunal. Before

us, the learned counsel for the assessee submitted that the learned

CIT(A) was not justified in confirming the valuation adopted by the

Assessing Officer. On the other hand, the learned DR supported the

orders of the authorities below.

2.4 After careful consideration of the submissions of the parties

in view of the facts of the case, we find that in this case the

Assessing Officer has made the assessment u/s 144/254 of the IT

Act. It is a well settled principle of natural justice that no-body

should be condemned unheard. Principle of natural requires that

sufficient opportunity of being heard should be provided to the

assessee before deciding the issue against him. We are of the view

that since the Assessing Officer has decided the matter without

hearing the assessees in violation of the principles of natural justice

and fair play, this appeal needs to be restored to his file for deciding

the same after providing due opportunity of being heard to the

assessees. We, therefore, following the principle of natural justice,

restore this appeal to the file of the Assessing Officer with the

direction to frame fresh assessment after providing the assessees

due opportunity of being heard. We also direct the Assessing Officer 7

Shri Krishnakant Shukla – ITA No.100/Ind/2017 Shrikant Shukla – ITA No. 101/Ind/2017 to consider the decisions in the cases of CIT vs. Sugantha Ravindram (2013) 32 taxmann.com 274(Mad.) and Navneet Kumar Thakkar; 110 ITD 525 (Jodh) as cited by these assessee in the grounds of appeal as quoted above. Needless to mention that the assessee is at liberty to file evidence, if any, in support of his claim before the Assessing Officer. ITA No. 101/Ind/2017 2.5 Since the facts of the present case are identical with ITA No. 100/Ind/2017, following the reasoning given therein above, we issue similar directions to the Assessing Officer and decide this appeal accordingly. 3. In the result, the appeals of the assessees are allowed for statistical purposes. 4. Order pronounced in the open Court on 27th March, 2017.

Sd/- Sd/- (सी.एम.गग�) (ओ.पी.मीना) �याियक सद�य लेखा सद�य (C.M.GARG) (O.P.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER

March 27th 2017

Shri Krishnakant Shukla – ITA No.100/Ind/2017 Shrikant Shukla – ITA No. 101/Ind/2017 Dn/-