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Income Tax Appellate Tribunal, DELHI BENCH: ‘G’ NEW DELHI
Before: SH. H.S. SIDHU & SH. O.P. KANT
ORDER PER O.P. KANT, A.M.: The present appeal and the cross objection filed by the Revenue and the assessee respectively are directed against the C.O. 217/Del/2013 AY: 2007-08 order of learned Commissioner of Income Tax(Appeals)-XXX, New Delhi, dated 28.03.2013 passed for the assessment year 2007-08. 2. The Revenue raised the following grounds of appeal: i. Deleting the addition of Rs. 22652640/- as rightly made by the Assessing Officer on account of Long Term Capital Gain on sale of land which was wrongly claimed as exempt u/s 2(14)(iii) of the I.T. Act. ii. In accepting the assessee’s claim of transfer of agricultural land in the F.Y. 2011-12 whereas the assessee has himself claimed the sale of land in the F.Y. 2006-07. iii. The order of learned Commissioner of Income Tax (Appeals) is perverse in nature as the order is in total disregard to fact of the case as much as complete disregard to cannon of natural justice and due opportunity. iv. In not allowing the opportunity under rule 46A of the I.T. Act, to the Assessing Officer to examine and rebut the evidences produced before the learned Commissioner of Income Tax (Appeals) despite repeated requests made by the Assessing Officer during the appellate proceedings. v. In recording his findings that the Assessing Officer did not attend the appeal proceedings alongwith assessment folder whereas the Assessing Officer had duly complied with all the requisitions and attended the proceedings alongwith assessment record. vi. The appellant craves the right to alter, amend, add or substitute the grounds of appeal.
3. The cross-objections raised by the assessee are as under:
1. That the reassessment proceedings/reassessment order dated 29.12.2011 passed u/s 147 r.w.s. 143(3) deserves to be quashed on various factual & legal grounds because: (i) it is a case of difference of opinion; (ii) the learned Assessing Officer had proceeded with the assessment proceedings, without supplying copy of the “Reasons Recorded”, to the assessee; C.O. 217/Del/2013 AY: 2007-08 (iii) the learned Assessing Officer had taken unreasonable time of 16 months to supply copy of the “Reasons Recorded”, to the assessee; and (iv) the learned Assessing Officer had not effectively disposed off the assessee’s objections apropos “Reasons Recorded” while initiating proceedings u/s 147.
2. That the assessee craves leave to amend/modify the Ground of Cross Objection raised by him and/or to raise additional grounds of cross objection, at any time prior to disposal of matter.
4. The brief facts of the case, as narrated by learned Commissioner of Income Tax (Appeals), in his appeal, are as under: “1. During the first round of assessment, the assessee furnished all the desired details, documents, information, explanation etc. to the A.O. On getting a certificate dt. 14.09.2006 issued by the Tehsildar Dehradun with respect to assessee’s agricultural land situated at village Gunial, Dehradun, the A.O. issued notices u/s 133(6) of the Income-tax Act, 1961 (for short “the Act”) dt. 10.11.2009 and 27.11.2009, to the Tehsildar Dehradun, thereby making certain enquiries regarding the said agricultural land. Thereafter, the A.O. deputed his I.T.I. to visit the actual site to ascertain the facts personally. The I.T.I. submitted his report to the A.O., stating therein that village Gunial is within the prescribed limit of 8 kms from the local municipal limit of Dehradun. Based on the I.T.I.’s report, the A.O. issued a notice u/s 142(1) of the Act to the assessee. In response to which, the assessee filed letter dt. 15.12.2009, thereby claiming that the said agricultural land was not the “Capital Asset” within the definition of section 2(14) and stating that the enquiries have been made after around a gap of 3 years. The A.O. passed the assessment order u/s 143(3) on 16.12.2009, thereby accepting the income returned by the appellant.
C.O. 217/Del/2013 AY: 2007-08 2. The A.O. issued a notice dt. 25.06.2010 u/s 148 to the appellant, in response to which the assessee informed the A.O. that the ACIT, Circie-48(1) already passed the assessment order u/s 143(3). At the same time, the appellant requested the A.O. to treat the return of income already filed, as return filed in response to notice u/s 148 and also to furnish reasons recorded for reopening the case. The A.O. supplied photocopy of the undated sheet containing the reasons recorded for reopening of the case, to the appellant after a gap of 16 months from the date of specific request made by the appellant vide letter dt.23.07.2010. On getting the said undated sheet containing the reasons recorded, the appellant raised objections with respect to reasons for reopening of the case, vide letter dt. 20.12.2011 alongwith its enclosures.
The A.O. issued a show cause notice dt. 22.12.2011, thereby requiring the appellant to explain as to why the profit arising out of transfer of the said land be not treated as capital gains u/s 45 and added back to the income of the appellant. In compliance to the said show cause notice dt. 22.12.2011, the appellant submitted a letter dt.26.12.2011 alongwith photocopy of the letter dt.14.12.2009 sent by the Tehsildar, Dehradun to the A.O.
4. The appellant, vide his letter dt. 28.12.2011, requested the A.O. to kindly make the reply dt. 14.12.2009 sent by the Tehsildar, Dehradun the basis of reassessment proceedings and accordingly do not treat his said agricultural land as the “capital asset”. As soon as the appellant could be telephonically contacted by his A.R., the appellant had informed his A.R. that: (i) he had received an amount of Rs. 2.40 crores from M/s MaaVaishno Devi Buildhome Pvt. Ltd, during the previous year relevant to A.Y. 2007-08 in terms of Agreement to Sell; C.O. 217/Del/2013 AY: 2007-08 (ii) the transfer of the said agricultural land had not taken place during the previous year relevant to A..Y. 2007-08; and (iii) during the previous year, relevant to A.Y. 2012-13, he had executed the sale deed on 29.08.2011 in favour of another party, namely M/s Nature Travels Adventure Holidays Pvt. Ltd.
5. In turn, the A.R. of the appellant, vide letter dt. 28.12.2011, communicated such facts to the A.O. A photocopy of the sale deed dt. 29.08.2011 was also provided to the A.O., vide letter dt.28.12.2011 such letter and photocopy of the Sale Deed dt. 29.08.2011 was filed on dak-counter of the A.O.
6. The A.O. concluded the second round of assessment proceedings, vide assessment order dt. 29.12.2011 passed u/s 147/143(3) of the I T. Act 1961. This time the A.O. had made an addition of Rs. 2,26,52.640/- on account of Long Term Capital Gains.”
5. Aggrieved from the above findings, the assessee filed an appeal before the learned Commissioner of Income Tax (Appeals), who partly allowed the appeal of the assessee by observing as under: “I therefore hold that the transfer in respect of agricultural land situated in Village Gunial, Dehradun, Uttranchal did not take place in F.Y. 2006-07 (A.Y. 2007-08) and hence the addition of rs. 2,26,52,640/- made on account of Long Term Capital Gain cannot be sustained. At the same time, I hold that the transfer in respect of agricultural land situated in Village Gunial, Dehradun, Uttranchal actually took place in F.Y. 2011-12 (A.Y. 2012-13), for which the appellant has already filed his revised return of income voluntarily. I therefore direct the A.O. to work out the refund due to the appellant for A.Y. 2007-08 and adjust the same against the tax liability for A.Y. 2012-13.”
C.O. 217/Del/2013 AY: 2007-08
6. Aggrieved from the above findings of learned Commissioner of Income Tax (Appeals), the Revenue and the assessee filed appeal and cross objections respectively before the ITAT.
First we take up the cross objections filed by the assessee, as the cross objections goes to the root of the matter. In the Cross Objections, the assessee has challenged the jurisdiction in the reopening of the assessment. 7.1 At the outset, learned Sr. Departmental Representative submitted that the grounds involved in the Cross Objections have not been adjudicated by the learned Commissioner of Income Tax (Appeals). The issue may be restored to the learned Commissioner of Income Tax (Appeals) for fresh adjudication. 7.2 Learned Authorized Representative of the assessee could not controvert the submission of the learned Departmental Representative. 7.3 We have heard the rival submissions and perused the material on record. We find from the impugned order that following grounds were taken by the assessee before the learned Commissioner of Income Tax(Appeals): “1. That on the facts of the case and under the law, the Ld. A.O. has erred in initiating proceedings U/s 147 of the I.T. Act 1961, issuing notice U/s 148 of the I.T. Act 1961 and refraining the assessment order U/s 147 r.w.s. 143(3) of the I.T. Act 1961.
2. That the reassessment proceedings/reassessment order dt. 29.12.2011 deserves to be quashed, because in spite of C.O. 217/Del/2013 AY: 2007-08 specific request for supply of the “reasons recorded” (as made by the assessee vide his A.R.’s letter dt. 23.07.2010), the Ld. A.O. had proceeded with the reassessment proceedings, without supplying the “reason recorded” to the assessee. [The Ld. A.O. had supplied photocopy of the sheet containing the “reasons recorded” to the assessee after a gap of 16 months, on 16.12.2011] 3. That the reassessment proceedings/reassessment order deserves to be quashed, because the Ld. A.O. has not effectively disposed of the objections w.r.t. “Reasons Recorded”, as raised by the assessee vide his A.R.’s letter dt. 20.12.2011.
That the reassessment order deserves to be quashed, because the Ld. A.O. had not effectively confronted the assessee with the material, on the basis of which the Ld. A.O. had rejected the assessee’s claim that the said agricultural land was not the “Capital Asset”, as per the definition provided U/s 2(14)(iii) of the I.T. Act, 1961.
That the assessee denies his liability to be taxed on account of the alleged transfer of the said agricultural land, which was not the “Capital Asset”, as per the definition provided U/s 2(14)(iii) of the I.T. Act 1961. Various observations of the Ld. A.O. are either factually incorrect or legally untenable.
That the reassessment order deserves to be quashed, because the Ld. A.O. had ignored few very important/crucial documentary evidences, including the assessee’s letters dt. 28.12.2011 as well as copy of the Sale Deed dt. 29.08.2011, in respect of agricultural land situated in Village Gunial Gaon, Distt. Dehradun, executed by the assessee in favour of M/s Nature Trails Adventure Holidays (P) Ltd. [The assessee, vide letter dt. 28.12.2011, had claimed that the transfer had not been effected during C.O. 217/Del/2013 AY: 2007-08 the previous year relevant to A.Y. 2007-08, but had been effected during the previous year relevant to A.Y. 2012- 13].
7. That the assessee denies his liability to be taxed for the year under consideration, on account of amount received from M/s Maa Vaishno Devi Buildhome (P) Ltd. and Shri Dhirendra Kumar Shimal against sale of the said agricultural land, because the transfer had not been effected during the previous year, relevant for A.Y. 2007- 08. Various observations of the Ld. A.O. are either factually incorrect or legally untenable.
That on the facts of the case and under the law, the Ld. A.O. has erred in making addition of Rs. 2,26,52,640/-, on a/c of alleged capital gains, towards the returned income/originally assessed income. Various observations of the Ld. A.O. are either factually incorrect or legally untenable.
That on the facts of the case and under the law the Ld. A.O. has erred in charging interest U/s 234B of the I.T. Act 1961.”
7.4 The learned Commissioner of Income Tax (Appeals) has decided the issue on merit and directed the Assessing Officer to assess the long term capital gain for the assessment year 2012-13, however, the learned Commissioner of Income Tax (Appeals) has not decided the other grounds challenging the jurisdiction of the Assessing Officer in the reopening of the assessment. As the issue of jurisdiction goes to the root of the matter, in the interest of justice, we direct to restore the Cross C.O. 217/Del/2013 AY: 2007-08 Objections of the assessee to the learned Commissioner of Income Tax (Appeal) for adjudication of the issue in question. 7.5 We find from the ground of appeal taken by the Revenue that the Revenue is aggrieved for not allowing the opportunity under Rule 46 of the Income Tax Rules, 1962 to the Assessing Officer to examine and rebut the evidence produced before the learned Commissioner of Income Tax (Appeals). We further find from the impugned order that the Assessing Officer objected to the additional evidence, however, learned Commissioner of Income Tax (Appeals) admitted the additional evidence but after the admission, the same were not sent to the Assessing Officer for his comment. The learned Commissioner of Income Tax (Appeals) has noted that it directed the Assessing Officer to attend his office and produce the assessment folder, however, the Assessing Officer did not produce the assessment folder and, therefore, he proceeded to decide the appeal on the basis of the documents made available by the assessee. In view of the facts, in the interest of justice, learned Commissioner of Income Tax (Appeals) is directed to provide sufficient opportunity or being heard to both the parties.
8. Since we have already restored the Cross Objection of the assessee to the learned Commissioner of Income Tax (Appeals), the appeal is also restored to the learned Commissioner of Income Tax (Appeals) for fresh adjudication, after providing sufficient opportunity of being heard to both the parties.
C.O. 217/Del/2013 AY: 2007-08 12. In the result, appeal of the Revenue and the Cross Objection of the assessee are allowed for statistical purposes. The decision is pronounced in the open court on 20th Sept., 2016.