Income Tax Appellate Tribunal - Cuttack
Tarani Devi Agrawal, Bargarh vs Assessee on 12 June, 2013
1
ITA No.249/CTK/2013
Lt. Taramani Devi Agarwal, L/h Pawan Kr. Agarwal
AY 1999-2000
IN THE INCOME TAX APPELLATE TRIBUNAL: CUTTACK BENCH: CUTTTACK
(Before Shri K. K. Gupta, AM & Shri George Mathan, JM)
ITA No. 249/CTK/2013
Assessment Year: 1999-2000
Late Taramani Devi Agarwal Vs. Income-tax Officer, Ward Bargarh
L/H Pawan Kr. Agarwal
(PAN: ABMPA5160A)
(Appellant) (Respondent)
Date of hearing: 12th June, 2013
Date of pronouncement: 12th June, 2013
Appellant by: Shri Sachidananda Padhi, AR
Respondent by: Shri N. K. Neb, Sr. DR
ORDER
Per Bench:
This is an appeal filed by the assessee against the order of CIT(A), Berhampur in appeal No. 0779/11-12(SBP) dated 16.01.2013 for AY 1999-2000.
2. Shri Sachidananda Padhi appeared on behalf of the assessee and Shri N. K. Deb appeared on behalf of the revenue.
3. In assessee's appeal assessee has raised following grounds:
"1.For that on the facts and in the circumstances of the case, the rejection of petition u/s. 154 of the I. T. Act, 1961 filed before the AO and confirmation thereof by the Ld. CIT(A) is illegal and unjustified.
2. For that on the facts and in the circumstances of the case, the Ld. CIT(A) ought to have allowed the appeal of the assessee and direct the AO to rectify the assessment made u/s. 143(3)/147/254 by adopting the value as per ;the Valuation Report filed by the assessee stating therein the Fair Market Value of raw and uncut diamond as on 1.4.1981 furnished by the assessee pursuant to the direction of the Tribunal and recomputed the capital gain to be taxed in the hands in accordance with the direction of the Hon'ble Tribunal in ITA No. 519/CTK/2005 dt. 04.04.2007 in the case of the appellant and ITA No. 555/CTK/2002 dt. 17.11.2006 passed by Hon'ble ITAT, Special Bench, Cuttack at Kolkata in the case of Hiralal Lokchandani Vs. ITO.
3. For that on the facts and in the circumstances of the case, the non- compliance to the direction of the Hon'ble Tribunal by the AO is in violation 2 ITA No.249/CTK/2013 Lt. Taramani Devi Agarwal, L/h Pawan Kr. Agarwal AY 1999-2000 of the norms of judicial discipline and in that view of the matter, the assessment order passed by the AO is void as per the principles decided by Hon'ble jurisdictional High Court rendered in the case of Orissa Ceramic Sales V. ITO & Anr (145 ITR 464 (Ori), and in that view of the matter, the Ld. AO ought to have effect the rectification as prayed for by the assessee.
4. For that by not following the direction of the Hon'ble Tribunal, the assessment order passed by the AO by superimposing his judgment/opinion, which have already been considered by the Hon'ble Tribunal, make the assessment erroneous giving rising to the scope of rectification u/s. 154 of the I. T. Act, and in that view of the matter, rejection of petition filed by the assessee u/s. 154 by the AO is illegal, arbitrary and bad in law."
4. At the time of hearing it is fairly agreed by both the sides that the issue under appeal was squarely covered by the decision of coordinate Bench of this Tribunal in the case of Shyam Sundar Poddar (HUF) & Ors. in ITA Nos. 153 & 154/CTK/2012 & ors. dated 09.11.2012. It was, however, submitted by the Ld. DR that the order of the Tribunal has not become final and the revenue filed appeals before the Hon'ble High Court.
5. We have considered the rival submissions. As it is noticed that issue in the appeal of the assessee is squarely covered by the decision of the Coordinate Bench of this Tribunal in the case of Shyam Sundar Poddar (HUF) & Ors., referred to supra, wherein the Coordinate Bench of this Tribunal held as under:
"5. We have heard the rival submissions. On careful consideration of the facts and circumstances of the case, we are inclined to find force in the contention of the learned Counsel of the assessee. It is not disputed that the matter was restored to the Assessing Officer by the Tribunal with a direction to pass fresh assessment order in the light of the decision of ITAT,Special Bench in the case of Hiralal Lokchandani v. ITO in ITA No.555/CTK/2002 dt.17.11.2006. The Special Bench has categorically observed in paragraph 21 that the Assessing Officer have to recompute the capital gain after considering the valuation report as basis for determining Fair Market Value of raw and uncut diamond as on 1.4.1981. Perusal of the assessment orders reveals that the Assessing Officer has not followed the direction of the Tribunal but recomputed the capital gain again on its own finding of facts proportionately against the very direction of the Tribunal, which fact has already been considered by the Special Bench of ITAT was not to be disturbed. This clearly indicates that the Assessing Officer has superimposed his judgment/opinion on importing new facts arithmetically and not followed the direction of the Tribunal, whereby he was only to take the valuation report from the assessee and determine the Fair Market Value of the raw and uncut diamonds after considering such valuation report as basis for determining Fair Market Value of raw and uncut diamond as on 1.4.1981 and compute the capital gains that is taxable in the hands of the assessees. Therefore in view of the case laws relied on by the learned Counsel of the assessee referred to in paragraph 4 above including the decision of this Bench of the Tribunal in other group cases, there being clear violation of the direction of the Tribunal by the 3 ITA No.249/CTK/2013 Lt. Taramani Devi Agarwal, L/h Pawan Kr. Agarwal AY 1999-2000 Assessing Officer in the present cases, the assessment orders must be held to be erroneous, which give rise to the scope of rectification u/s.154. In such view of the matter, when the assessees moved applications u/s.154 for rectification of the said assessment orders, the learned Assessing Officer is not justified in rejecting the same. The learned CIT(A) without considering this vital aspect of the case was not justified in confirming the action of the Assessing Officer in rejecting the applications filed by the assessees u/s.154. Therefore, we are of the considered view that the orders passed by the Departmental Authorities are not sustainable for legal scrutiny and hence, they are hereby set aside by allowing the appeals of the assessees. The learned Assessing Officer is hereby directed to rectify the assessment orders passed in the case of respective assessees by adopting the value as per the Valuation Report stating therein the Fair Market Value of raw and uncut diamond as on 1.4.1981 furnished by the assessee pursuant to the direction of the Tribunal and recompute the capital gain to be taxed in the hands of the respective assessees in accordance with law. Needless to say that the Assessing Officer will extend reasonable opportunity of being heard to the assessees.
6. Under these circumstances, respectfully following the decision of Coordinate Bench of this Tribunal in the case of Shyam Sundar Poddar (HUF) & Ors., referred to supra, the AO is directed to rectify the assessment orders passed by adopting the value as per the valuation report stating therein the fair market value of the raw and uncut diamond as on 01.04.1981 furnished by the assessee pursuant to the direction of the Tribunal and recomputed the capital gains to be taxed in the hands of the assessee.
7. In the result, appeal of the assessee is allowed.
8. Order is pronounced in the open court.
Sd/- Sd/-
(K. K. Gupta) (George Mathan)
Accountant Member Judicial Member
Date: 12th June, 2013
(JD) Sr. P.S
Copy forwarded to :-
1. Appellant - Late Taramani Devi Agarwal, L/h Pawan Kr. Agrawal, near Marwari Dharmsala, P.O. & Dist. Burgarh-768028
2. Respondent- ITO, Burgarh Ward
3. CIT(A), Berhampur
4. CIT, Berhampur
5. DR, ITAT, Cuttack True copy By Order Sr. Pvt. Secy.
ITAT, Cuttack