Income Tax Appellate Tribunal - Amritsar
Balbir Singh Chaudri S/O Sh. Lakhi ... vs Commissioner Of Income Tax, Jalandhar on 30 December, 2016
IN THE INCOME TAX APPELLATE TRIBUNAL
AMRITSAR BENCH; AMRITSAR.
BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEMBER
AND SH. N.K. CHOUDHRY, JUDICIAL MEMBER
ITA No.193 (Asr)/2015
A.Y : 2010-11
PAN : ACOPO-5590 B
Shri Balbir Singh Choudhry Vs. Commissioner of Income Tax
(Appeal), Jalandhar.
S/o Shri Lakhi Singh, VPO.
Lakhinder, Teh. Dasyuya,
Distt. Hoshiarpur.
(Appellant) (Respondent)
Appellant by : Sh. J. K. Passi Ld. A. R.
Respondent by: Sh. Ved Pal Singh, Ld D.R.
Date of hearing : 20/12/2016
Date of pronouncement : 30/12/2016
ORDER
PER N. K. CHOUDHRY:-
This is an appeal filed by the assessee against the order dated 01.04.2015 passed by the learned CIT (A), I, Jalandhar for the assessment year 2010-2011.
2. The Assessee has raised the following grounds of appeal.
(I) That the order under appeal is against law and facts of the case. (2) That the learned CIT (A) is not justified in upholding the order of the Assessing Officer regarding addition of Rs. 15,26,000/- disallowances of assessee claim U/S 54 F of the Act on the technical ground.
2 ITA No.401/Asr/2016A.Y. 2010-11 (3) That the Assessee deposited Rs. 15,26,000/- under capital gain scheme for 100 days only and the bank authority on maturity of the capital gain STDR converted the said amount in normal STDR without permission of the assessee on 01.10.2007. The assessee cannot be penalized for the fault committed by bank authority by way of disallowances of deduction U/S 543 F of the Act, as held in the case of Rafique V/s Munshi Lal AIR (SC) 1400 and Mahaveer Parshad Jain V/s CIT (1988 172 ITR 331 (MP).
(4) That the bank authority converted the sales proceeds in normal STDR on 01.10.2007, it means the fault was committed by the Assessee on 01.10.2007 and capital gain tax should be levied in the year, when the fault was committed that is on 01.10.2007 (Asstt. Year 2008-09) and capital gain tax cannot be assessed in the Assessment Year 2010-11.
(5) That the direction given by the Learned CIT (A) to assess this amount in the Asstt Year 2010-11 is illegal, unjustified and unwarranted by the facts of case, being fault committed by the assessee on 01.10.2007 when the Bank Authority converted the Sales proceed of Capital Gain Scheme STDR in normal STDR and the same should be assessed in the Asstt. Year 2008-
09. (6) That the Learned CIT (A) did not comment on the assessee plea regarding assessing of capital gain tax in the A.Y. 2008-09 nor give any reason for his agreement or disagreement, while passing the impugned order.
(7) That order under Appeal being against law facts on the case is liable to be quashed."
3. The brief facts of the case are as under:-
The Assessee derives income from Pension, House property, Bank interest and Agriculture Income. Return of income for the Assessment Year 2010-11, declaring total income of Rs. 3,38,650/- and Agriculture Income of Rs. 9,00,000/- was filed by the assessee on 31.07.2007. The said return was processed u/s 143 (1) of through manual selection after obtaining approval of Joint Commissioner of Income Tax vide approval granted on 11.08.2011. Statutory notices under section 143 (2)/142(1) of the Income Tax Act, 1961 were accordingly issued to the assessee from time to time. In response to the said notices, Shri. J.K. Passi, Advocate, counsel of the assessee attended the assessment proceedings from time to time along with Shri Balbir Singh Choudhary. A detailed questionnaire was 3 ITA No.401/Asr/2016 A.Y. 2010-11 also issued to the assessee on 03.08.2011, which was also duly served upon the assessee. The assessee has furnished the detailed information as required. The case was discussed in detail and necessary details/information called for and filed, were also examined.
02. The Case of the assessee for the year under consideration was selected for scrutiny on the facts "That on 25.02.2007 the Punjabi Co-op Housing Building Society Ltd. Mohali, of which the assessee is the member, entered into tripartite Joint development agreement with M/s HASH Builders (P) Ltd, Chandigarh and M/S Tata Housing Development Company Ltd., Mumbai. By virtue of the tripartite agreement, it was agreed upon among these parties that the Punjabi Co-op Housing Building Society Ltd., Mohali, owner of 21-2 acre land, shall transfer its land to M/S Tata Housing Development Company Ltd.
,in lieu of monetary consideration and consideration in kind. As per the agreement, the assessee would receive Rs. 82,50,000/- in addition to one flat of 2250 sq feet worth Rs. 1,01,25,000/-. The important fact is that as per the Joint Development Agreement 'owner includes its members. Accordingly, assessment proceedings for the A.Y. 2007-08 were initiated u/s 147/148 and notice u/s 148 was issued to the assessee.
Finally the Assessing Officer determined the liability of the Assessee as under;-
04. During the course of assessment proceedings the Assessee furnished detail of Income from House Property totaling to Rs. 2,22,012/- whereas in the computation of Assessable Income filed along with return it was declare as ?Rs. 2,19,020/- When confronted to explain the difference the assessee and his counsel requested to add the difference.
4 ITA No.401/Asr/2016A.Y. 2010-11 Accordingly a sum of Rs. 2,094/- is added to the Taxable Income of the assessee after allowing the Statutory deduction @ 30% on Income under the head Income from House Property (i.e. Rs. 2,22,012 - 2,19,020 = 2992 @30%). Since the assessee has furnished inaccurate particulars of his income Penalty proceedings u/s 271 (1) © are being initiated separately.
05. In view of the facts and evidences brought on record, total taxable income of the assessee is computed as under:-
a) Total taxable income as declare. Rs. 3,38,650/-
b) Add:-
I) Addition as discussed in Para 3 to 3.2 above Rs. 15,26,000/-
II) Addition as discussed in Para 4 above Rs. 2,094/-
Total Income: Rs. 18,66,744/-
Add. Agriculture income as declared
for rate purpose Rs. 9,00,000/-
4. Feeling aggrieved by the order passed by the Assessing Officer, the Assessee preferred the first appeal before the Learned CIT appeal.
5. The learned CIT (Appeal) upheld the order of the Assessing Officer by concluding as under:-
I have considered the observations of the Assessing Officer as made by him in the assessment order. I have also considered the written submission filed by the assessee vide letters dated 24.03.2015 and 01.04.2015. I have further considered various judicial pronouncements relied upon by the Ld. AR of the assessee. On careful consideration of the rival contentions, it has been noticed that the imp0ugned addition (Challenged by the assessee in present appeal) has been made by the Assessing Officer by 5 ITA No.401/Asr/2016 A.Y. 2010-11 following the directions of the Ld. CIT (A), Jalandhar as contained in his appellate order in the case of assessee himself for the A. Y. 2007-08 in Appeal No. 201/10- 11/CIT (A) Jalandhar dated 29.03.2011. It has also been noticed that the assessee has not challenged the directions given by the assessee before the Honorable ITAT, Amritsar Bench, Amritsar. Moreover, the order of Ld. CIT(A) , Jalandhar for the A. Y. 2007-08 which contain the directions given by him to tax an amount of Rs. 15,26,000/- in A.Y. 2010-11 has been confirmed by the Honorable ITAT, Amritsar Bench, Amritsar vide its order dated 19.08.2013. Now the appropriate authority to challenge the directions given by Ld. CIT (A) in my opinion is only Honorable Punjab & Haryana High Court. In my opinion, as the addition under challenge has been made by the Assessing Officer as per directions given by the Ld. CIT (A) in his appellate order for the A.Y. 2007-08 dated 29.03.2011, I do not find any ambiguity in the action of the Assessing Officer in making addition of Rs. 15,26,000/- Moreover, it is an admitted fact that the amount of Rs.
15,26,000/- after it was withdrawn from Capital Gain Scheme has not been utilized for specified purposes within prescribed time limit. The judicial pronouncements relied upon by the assessee has no application in the case of assessee as the facts in those cases are entirely different from the facts of the case of the assessee.
In view of the above stated facts in the circumstances of the case and in view of the discussion 6 ITA No.401/Asr/2016 A.Y. 2010-11 made in the proceeding paragraphs, I am of the opinion that the Assessing Officer is fully justified in making addition of Rs. 15,26,00/- as the same has been made as per directions of Ld. CIT (A), Jalandhar. The addition66 of Rs.15,26,000/- made by the Assessing Officer is, therefore, upheld. In the result, grounds No. 1,2,3,4,5,6 and 9 of appeal taken by the assessee are dismissed.
The grounds No. 7 and 8 of appeal taken by the assessee are premature in nature and do not require any adjudication at this stage.
As a result, the appeal filed by the assessee is dismissed.
6. Feeling aggrieved by the said order passed by the Learned CIT (Appeal), the Assessee preferred the instant appeal which is under consideration.
7. The learned A. R. specifically emphasized that the Assessee admitted the liability of the amount Rs. 55,26,000 which is under dispute , however submitted that the same can be taxed either under in the assessment year 2008-09 or 2009-010.
8. The Learned DR on the other hand, has not raised any specific objection with the regard to the contention of the assessee that the amount under dispute can be considered for taxation purpose either in the Assessment Year 2008- 2009 or 2009-10.
9. We have gone through with the facts and circumstances of the case as a short issue is involved in the instant appeal, whether the amount which is consideration can be subjected to assessment year 2008-09 or 2009-2010. We are of the 7 ITA No.401/Asr/2016 A.Y. 2010-11 considered opinion that no prejudice shall be caused to the revenue because the assessee has already admitted his liability and only praying for treating the amount in the year 2008-09 or 2009-10.
In our considered opinion Justice would be met, if the amount under consideration can be considered for taxation purpose in the year 2009-10 because the amount under dispute has been received in Feb. 2007, so three years has been completed in 2009-10 only, hence we allowed the instant appeal of the appellant Assessee with the direction to consider the amount under consideration in the assessment year 2009-10.
10. In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open court on 30/12/2016.
Sd/- Sd/-
(T.S. KAPOOR) (N.K. CHOUDHRY)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated:30/12/2016
PK/Ps
Copy of the order forwarded to:
1. The Assessee:
2. The
3. The CIT(A)
4. The CIT
5. The SR DR, ITAT, Amritsar.
True copy
By order