Income Tax Appellate Tribunal - Jaipur
Purushottam Das Agarwal, Huf, Jaipur vs Ito, Jaipur on 26 July, 2017
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM
M.A. No. 129/JP/2016
Arising out if ITA No.225/JP/2015
fu/kZkj.k o"kZ@Assessment Year : 2006-07.
Purshottam Das Agarwal HUF cuke The Income Tax Officer,
Through Shri Vinod Agarwal, Vs. Ward 3(2),
D-18, Shiv Marg, Bani Park, Jaipur.
Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN No. AADHP 6413 P
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@ Assessee by : Shri Devendra Kumar (Advocate)
jktLo dh vksj ls@ Revenue by : Smt. Roshanta Meena (Addl. CIT)
lquokbZ dh rkjh[k@ Date of Hearing : 09.06.2017.
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 26/07/2017.
vkns'k@ ORDER
PER SHRI KUL BHARAT, JM.
This Miscellaneous Application by the assessee arise out of the order of the Tribunal in ITA No. 225/JP/2015 seeking rectification of the Tribunal's order dated 31.05.2016.
2. The ld. Counsel for the assessee reiterated the submissions as made in the Miscellaneous Application and also in the written submission filed separately. The written submissions of the assessee are reproduced as under :-
1. (i) That applicant-assessee HUF purchased land with constructions thereon from Shri Jugal Kishore Mehra and M/s Vishwanath Jugal Kishore bearing Municipal No. 194, Khasra No. 17771, Gram Paonda Pargana Loni, Tehsil 2 MA 129/JP/2016 Purshottam Das Agarwal, Jaipur.
Ghaziabad, on which seller established V.J. Dying & Printing Mills for Dying & Printing by Registered Sale Deed. Refer Annexure E Page Nos. 33 to 69 in the paper Book submitted by Revenue.
(ii) That applicant-assessee sold the above said land bearing Municipal No. 194, Khasra No. 1771, Gram Paonda Pargana Loni, Tehsil Ghaziabad, District Ghaziabad with Factory Shed, one Hall, two W.C. and other belongings by sale Deed dated 29th March, 2006, for a sale consideration of Rs. 1,15,00,000/-.
(iii) That applicant-assessee submitted return of Income on 30.11.2006 vide receipt No. 321004823 to Income Tax Officer, Ward 3(2), Jaipur along with computation of Income, above mentioned Sale Deed of Land & Building and valuation report of said property as on 01.04.1981.(Page 1 to 50 of Paper Book submitted by applicant-assessee). In the possession letter (Page 13 of Paper Book) description of the property has been mentioned as "Factory situated on Khasra No. 1771 measuring total land on One Bigha Pukhta which is 3250 sq. yds and a Build up Khoti on the said land & Old structure situated at Khasra No. 1771, Municipal No. 194 of Village Pasonda, Pargana Loni, Tehsil Ghazabad, Distt. Ghaziabad......" Similarly "On page 13 & 14 of the sale deed (Paper Book page No. 27 &
28) full description of property sold has been given as- "Factory situated on Khasra No. 1771 measuring total land on One Bigha Pukhta which is 3250 sq. yds and a Buildup Khoti on the said land & Old structure situated 3 MA 129/JP/2016 Purshottam Das Agarwal, Jaipur.
at Khasra No. 1771, Municipal No. 194 of Village Pasonda, Pargana Loni, Tehsil Ghazabad, Distt. Ghaziabad......."
(iv) That the Learned ITO Ward 3(2) selected case for scrutiny U/s 143(2) of Income Tax Act, 1961. Humble appellant submitted Books of Accounts, Explanation, details and information on various dates and after detailed examination the learned ITO, Ward 3(2) passed the order U/s 143(3) on 24.12.2008 and accepted returned income. In the assessment order (page 51 of Paper Book) it has been mentioned - " On change of incumbent officer further notices u/s 143(2) and 142(1) were issued on 07.08.2008 along with questionnaire seeking specific details. In response to the statutory notices, Shri Vinod Agarwal son of Shri Purshottam Dass Agarwal attended from time to time and furnished requisite information and details and case was discussed with him". The assessment order was communicated to the applicant-assessee.
However internal note on the file was never communicated to applicant- assessee. The applicant-assessee has for the first time came to know of the internal note from the assessment order passed u/s 147/148 r.w.s. 143(3) of I.T.Act, 1961. The internal note reads as under:
"The assessee has sold land and building which is an industrial plot with a shed constructed over it at G.T. Road, Gaziabad. The total sale consideration received as per registered sale deed is Rs. 1.15.00,000/-. The property was acquired by the assessee prior to 1981. The valuation of land and building was made by the approved valuer at Rs. 4 MA 129/JP/2016
Purshottam Das Agarwal, Jaipur.
25,16,750/- as on 01.04.1981. The index cost on the date of sale comes to Rs. 1,25,08,247/-. The valuation of the property for the purpose of stamp duty on sale was done by Collector (Finance and Revenue), Gaziabad at a value of Rs. 1,07,63,356/-. Although the approved valuer has mentioned that circle rate as on 01.04.1981 for the area of G.T.Road was Rs. 500/- per sq. yd. But for verification of the sale, letter was written to Sub-Registrar-III, Ghazabad, UP on 16.12.2008 for obtaining the prevent circle rates as on 01.04.1981. No reply has been received till date. As the matter is getting barred by limitation, the order is being passed. If any information is received in the nature that the prevalent circle rate as on 01.04.981 for that area were less than Rs. 500/- then suitable action in this case has to be taken."
(v) That it appears that Asstt. Director of Income Tax (Inv.)-II, Jaipur by letter dated 18.03.2013 informed the Income Tax Officer, Ward 3(2), Jaipur- Assessing Officer, that regarding circle rate as on 01.04.1981. It has been mentioned in the letter (Page 2 of paper book submitted by revenue) as under:
" DLC rate list for Industrial Area, Pasonda, G.T. Road, Ghaziabad applicable w.e.f. 13.08.1980 has been procured. As per this rate list, DLC rate of the alleged property as on 01.04.1981 was Rs. 50/- per sq. yd. Only."5
MA 129/JP/2016
Purshottam Das Agarwal, Jaipur.
Along with this letter the Asstt. Director has attached copy of DLC rate list (Page 8 of the paper book submitted by Revenue. From this list of DLC rate it is, apparent (i) it is, signed on 11.08.1982. On the top of it expression w.e.f. 13.08.1980. (ii) on the top of the list the description regarding the place to which this list relates has not been shown. Another copy of this list has been submitted by Revenue on Page 75 of Paper Book submitted by Revenue. In the list of page 75 of Paper Book it has been specified that DLC rate were notified for residential and industrial area of Loni Area. ( yksuh {ks= essa fLFkr vkolh;@vkS/kksfxd dkyksuh esa Hkwfe dh orZeku izLrkfor njsa½ These rates were not related to Pasonda where the property in question was existing. It is, pertinent to submit that Revenue has filed Annexure F in the paper book submitted by Revenue. In the letter dated 07.03.2014 Sahayak Maha Nirishak Nibandhan, Ghaziabad has informed the A.O. that DLC rate for land within Municipal Limit of Pasonda G.T. Road is Rs. 500/- per sq. yd. He has also informed that since the DLC rate of 1981 are not available the Market rate for the year 1981 may be determined on the basis of DLC rate of 1982. Along with the DLC rate of different areas has been attached. On page 74 of the Paper Book DLC rate for Pasonda (Both sides of G.T.Road) within Municipal Area has been notified as Rs. 500/- per sq. yd.
6MA 129/JP/2016
Purshottam Das Agarwal, Jaipur.
(vi) That from the above facts it is, apparent that recommendation of Assistant Director of Income-tax (Inv.)-II, Jaipur for reopening the assessment were based on irrelevant material i.e. rate list for Loni Area.
(vii) That on the basis of report of Assistant Director of Income-tax (Inv.)-II, Jaipur, which as submitted above was based on irrelevant material i.e. DLC rates of Loni Area and not DLC rate of Pasonda within Municipal Area, reopened the case. In the reasons recorded for reopening of assessment u/s 148 of Income Tax Act, 1961 (page 63 of paper book submitted by applicant-assessee) there is no allegation that income chargeable to tax has escaped assessment by reason of failure on the part of assessee to disclose fully and truly all material facts necessary for assessment, which is a condition precedent for notice after four years. In absence of such allegation in the reasons recorded for reopening of assessment the proceeding initiated and notice issued after four years is barred by limitation.
(viii) That during the proceedings the applicant-assessee also obtained the DLC rates from the authorities of Gaziabad and submitted the same to the A.O. (Page 79 to 84 of Paper Book). The DLC rates are the same as has been procured by A.O. and submitted as Annexure F(Page No. 70 to 77 of paper book submitted by revenue).
(ix) That A.O finalized the assessment considering the DLC rate of Loni Industrial Area.
7MA 129/JP/2016
Purshottam Das Agarwal, Jaipur.
2. That against the assessment order applicant-assessee submitted appeal before the CIT, Appeals 1, Jaipur. CIT Appeals 1, Jaipur by order dated 19.12.2014 accepted the appeal.
3. That against the order of CIT, Appeals 1, Jaipur dated 19.12.2014 revenue preferred appeal before the Tribunal. Hon'ble Tribunal by order dated 31.05.2016 accepted the appeal of revenue.
4. That applicant assessee has submitted rectification application for rectification of the order dated 31.05.2016.
Facts and observations in ITAT's Facts on record. Order Para 4.3 Applicant has in para 4.3 The question regarding non submitted "In the reasons to belief mentioning and its affect on exercise recorded by the AO. He has neither of jurisdiction of AO has not been alleged nor has mentioned in the decided.
reasons for reopening that there was failure on the part of the assessee to make a return u/s 139 or in response to notice under sub-section (1) of Section 142 or section 148 or to disclose fully and truly all material facts necessary for making facts necessary for making assessment.
The ld. A.R. submitted that in absence of such allegation, reopening of assessment after four years is bad in law and without jurisdiction. In support he relied on the judgments 8 MA 129/JP/2016 Purshottam Das Agarwal, Jaipur.
..." (Page 63 & 64 of assessee's paper book) Para 4.9 - The return income and the As submitted above the applicant valuation Report clearly suggest that submitted return along with sale the address of the property is 194 GT deed, valuation report etc. In the sale Road, Ghaziabad and not village deed at page 13 & 14 (Paper Book Pasonda situated at National High page 27 & 28) full description of Way, G.T. Road side. property sold has been given as "Factory situated on Khasra No. 1771 measuring total land on One Biga Pukhta which is 3250 sq. yds and a Buildup Khoti on the said land & Old structure situated at Khasra No. 1771, Municipal No. 194 of Village Pasonda, pargana Loni, Tehsil Ghaziabad.
Non consideration of the description of property and that it is situated in Village Pasonda and in Municipal Area has materially affected the consideration of the case and decision of appeal.
Para 4.11 The Tribunal has Applicant assessee submitted its observed that assessee has not return of income accompanied by sale submitted necessary facts for deed and valuation report in which assessment. description of property, sale consideration received and valuation as on 1.4.1981 was disclosed. The assessee has thus submitted material particulars.
9MA 129/JP/2016
Purshottam Das Agarwal, Jaipur.
Para 4.11 - Page 18 - Tribunal has The facts remains the same from the observed that - "However the time of sale and submission of assessee during the reopening returns. As submitted above the Sale proceedings has changed its stand Deed which was part of return clearly and has submitted that the property stated that property is situated in is situated that the property is Village Pasonda. From the stage of situated at village Pasonda, G.T. return and during proceedings the Road, Ghaziabad" stand of applicant assessee remained the same.
The assessee has wrongly mentioned circle rate of 500/- and therefore The valuer has applied the rate of assessee has failed to disclose fully 500/- which was prevalent rate for and truly. Pasonda Municipal Area. Letter dated 07.03.2014 of Asstt. Inspector General Nibandhan Ghaziabad letter No. 351/ACS/14 dated 7.3.2014 (Page 70 to 77 of Revenue Paper Book) clearly mentioned on page 75 that for Pasonda (G.T. Road both side) in Municipal Area the DLC rate is Rs. 500/- and page 70 has specified that for the year 1981 the same rate is the basis. Therefore the assessee has not made any incorrect statement. The letter has not been taken into consideration while determining rate. Thus material and relevant evidence has not been considered.
10MA 129/JP/2016
Purshottam Das Agarwal, Jaipur.
Para 5.1. - Page 19- Applicant has specifically pointed out Tribunal has observed that -"The that the sale deeds are not assessee has failed to point out as to comparable firstly before A.O. (Para 5 how the sale deeds are not page 8 & 9 of assessment order), comparable with the land in before CIT Appeal (Para 10 page 5 & question." 6 of appeal order) and before Tribunal at page 6 & 7). Non consideration of submissions and distinctive features has materially affected the order.
CIT Appeal gave a specific finding The question whether rate list at that the documents on the basis Page 8 of revenue paper book was which proceedings for reassessment manipulated and what is the effect of were initiated were manipulated the same has not been considered documents and thus proceedings and decided. initiated are bad in law.
Humble applicant prays that order may please be rectified/recalled and appeal of the revenue may please be rejected. "
2.1. On the contrary, the ld. D/R vehemently opposed the submissions and submitted that by way of the present application, the assessee is seeking review of the order of the Tribunal which is not permissible under the law and even otherwise also he submitted that the Miscellaneous Application runs into 10 pages which shows that the issues are debatable which is beyond the scope of section 254 of the I.T. Act.11
MA 129/JP/2016
Purshottam Das Agarwal, Jaipur.
2.2 We have heard the rival contentions and perused the material available on record. As per the assessee first mistake is that the assessee had submitted that the re-opening of assessment was after four years and the AO has not mentioned any reasons for reopening that there was failure on the part of the assessee to disclose true and correct particulars. The submission of the assessee was not considered and addressed by the Tribunal. Another mistake as per the assessee is with regard to description of property. It is stated that the description of the property remained the same throughout, there was no change into the stand of the assessee. It is also stated that the question whether rate list at page 8 of revenue's paper book was manipulated and what was the effect of the same was not considered. Thus the contention of the assessee is two fold firstly, the question of legality in respect of re- opening of assessment proceedings after four years is not considered. Secondly, the impact of factual aspect related to location and value of the property are not adjudicated in the order sought to be rectified.
2.3 We have given our thoughtful consideration to the rival contentions. There is no ambiguity in law that the scope of the provisions of section 254 of the Act is to rectify any error or mistake apparent from record. In the present case, the germane of dispute is with regard to adoption of value of property in question. Undisputedly, the value of the property differs from one place to another, shift in place materially affect the valuation. The submission of the assessee is that it had duly furnished the material particulars by filing sale deed where the particulars of the property in question are described. So far the objection of the assessee that the legality of reopening of assessment after four years is concerned, we find that the ld. CIT (A) 12 MA 129/JP/2016 Purshottam Das Agarwal, Jaipur.
had not decided this issue specifically by holding that the initiation of proceedings are vitiated on account of the AO not recording the reason with regard to the failure of the assessee to disclose true and correct particulars in the return of income. The assessee admittedly has not filed any appeal against that order. Therefore, in our view, this aspect cannot be looked into in the appeal of the revenue. Therefore, this cannot be treated as mistake apparent from record. Therefore, we deem it proper to recall our order in respect of consideration of location of the property and valuation thereof. For this limited purpose, the order is recalled and the Registry is directed to fix the appeal in due course.
3. In the result, Miscellaneous Application of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 26/07/2017.
Sd/- Sd/-
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( VIKRAM SINGH YADAV) ( KUL BHARAT )
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Jaipur
Dated:- 26/07/2017.
das/
vkns'k dh izfrfyfi vxzfs "kr@Copy of the order forwarded to:
1. The Appellant- Purshottam Das Agarwal HUF, Jaipur.
2. The Respondent- The ITO Ward 3(2), Jaipur.
3. The CIT(A).
4. The CIT,
5. The DR, ITAT, Jaipur
6. Guard File ( M.A. 129/JP/2016) vkns'kkuqlkj@ By order, lgk;d iathdkj@ Assistant. Registrar 13 MA 129/JP/2016 Purshottam Das Agarwal, Jaipur.