TaxTMI 
TaxTMI 
2012 (5) TMI 588
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....n of ITO, Kapurthala-1, by wrongly endorsing the incompetent directions of Addl. CIT given u/s 144A, even after himself conceding that a valid objection had been filed by the assessee in terms of section 124(3). 3) That for want of service of notice u/s 148 on the assessee, the ld. CIT(a) ought to have annulled the impugned assessment. His findings to the contrary, in the facts of the case are perverse and hence not sustainable. 4. That again for want of service of notice u/s 143(2) on the assessee, after the alleged compliance of notice issued u/s 148 was made, the impugned order was liable to be held as bad in law. 5. That the ld. CIT(A) has grossly erred in holding that ITO Ward 2(6), Jalandhar had no jurisdiction over this case and so the notice issued by him u/s 148 on 16.5.2000 and subsequent actions taken in pursuance thereof, were invalid. 6. That without prejudice to the disputed jurisdiction of ITO Kapurthala, once the proceedings u/s 148 had been validly initiated by ITO Ward 2(6) and again pursued and dropped by another ITO vs. r-iv, BOTH OF Jalandhar, subsequent assumption of jurisdiction u/s 148 on the same very issue amounts to review, which is entirely opposed t....
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....ibunal: i) Certificate issued by Tehsildar, Kapurthala, being his office No.379 dated 17.03.2010 ( on the written request dated 22.02.2010 for distance by road, made by assessees through attorney S. Jarnail Singh), Certifying that the agriculture land bearing Hadbast No.144, The & Distt. Kapurthala, falling in village Nurpur Dona, in the name of S. Joginder Singh, Jasbir Singh & Lakhvir Singh, is approximately three and a half kilo meters from the limit of Municipal Committee, Kapurthala, in the year 1998-99 (Annexure A) ii) Copy of order dated 29.08.1997 passed by CIT, Jalandhar, as to jurisdiction of various Income Tax Officers, to be exercised w.e.f. 1.9.1997, thereby crating Ward 2(6) Jalandhar cum new assessee ward (Annexure B) 2. That the necessity to file the certificate of Tehsildar at No.1 arose only after the first appeal had been disposed of by the ld. CIT(A). In fact, the core issue in this case is taxability of gain on compulsory acquisition of agriculture land in vill. Nurpur Dona, by PUDA. The assessee inter alia claimed, on the strength of a certificate of vill. Sarpanch, that his land was situated beyond two KMs from the local limits of the Municipal Commi....
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....sing substantial justice, the additional evidence, as referred above, by kindly admitted and taken on appeal file with the permission to advance arguments by relying upon the same. Sd/- Jarnail Singh POA Through Sh. Surinder Mahajan,CA" Dated:08.06.2011 3. The Ld. DR, on the other and, opposed the said filing and admission of the additional evidence. 4. We have heard the rival contentions and perused the facts of the case. The core issue in the present appeal is the taxability of capital gain on compulsory acquisition of agricultural land by PUDA and the issue of Certificate of Tehsildar arose only after first appeal was disposed of by the ld. CIT(A). Since the matter goes into the root of the matter for deciding the issue on merits, therefore, we admit the additional evidence filed by the assessee. 5. Now, we take up the legal issue raised by the assessee, Sh. Jasbir Singh, NRI through Sh. Jarnail Singh, POA in ITA No.190(Asr)/2010 and our decision in this appeal shall be applicable in other appeals in the cases of Sh. Joginder Singh, NRI and Sh. Lakhvir Singh, NRI, in ITA No. 191 (ASR)/2010 & ITA No.192(Asr)/2010. 6. The brief facts with regard to the legal ground as arg....
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....mitted its report on different dates who had tried to contact Sh. Jasbir Singh that he does not reside there is available at PB-22. At PB 23 & 24, the notice of the ITO, Kaprthala in the name of the assessee was affixed at the main gate of Jungeghar/Dharmsala in vill. Noorpur Dona, Distt. Kapurthala in the presence of Inspector of the Income Tax Department, Sarpanch of the vill. Noorpur Dona and Chowkidar of Janjghar/Dharamsala, on 10.11.2006. The ITO, Kapurthala made the assessment in the name of Sh. Jasbir Singh S/o Sh. Jit Singh and copy of the order issued by the Income Tax Department is available at PB 25 to 29 which is dated 17.11.2006 alongwith demand notice.. The said order and the demand notice was also not served upon Sh. Jasbir Singh. 6.2. It was summed up by the Ld. counsel for the assessee, Sh. Surinder Mahajan, CA that notice u/s 148, 143(2) and 142(1) was not served by the ITO, Kapurthala, on he assessee who ultimately made the assessment on the assessee. As a matter of fact, the assessee is Non Resident Indian is a matter of record, as submitted hereinabove and the notices mentioned hereinabove should have been served on the agent of the assessee i.e. Mr. Jarnail S....
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....llage Panchyat of Noorpur Dona Dist, Kapurthala. The Sarpanch has written on the copy of the questionnaire issued that the assessee does not reside in village Noorpur Dona. The Sarpanch has also affixed his stamp on the said report. 4. The facts indicate that the assessee was not found residing in village Noorpur Dona. The AO decided to affix the notice u/s 142(1) on the main gate of Jhanjghar /Dharamshala of village Noorpur Dona. The affixture of the said notice was witnessed by the Sarpanch of Gram Panchyat and Chowkidar of the Dharamshala. 5. The aforesaid facts indicate the following position: i) That no attempt has been made by the AO to serve notice u/s 148 by affixture. ii) No efforts were made by the AO to find out the actual address of the assessee in the wake of report of the Sarpanch that the assessee does not reside in village Noorpur Dona. iii) A statutory notice is required to be affixed at the last known address of the assessee and not the village Jhanjghar/Dharamshala, while resorting to service of notice by affixture mode. iv) The compensation was made by PUDA through cheques. The AO could have attempted to find out the residential address of the assessee by ....
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....cord. At PB-75, there is order of Land Acquisition Collector dated 25.01.2005. 6.5. The Ld. counsel for the assessee drew our attention towards the returns of the assessee which have been filed and signed by the agent at the addresses of vill. Dhina, which are at PB 76 & 77. At PB 50 & 51, there is a certificate of the Sarpanch for our perusal. At PB 31 to 34, there is a petition made to CIT, Jalandhar u/s 264 dated 16.05.2007. At PB 39 to 42, there is a order u/s 264 of the Act made by the CIT, Jalandhar, in which the assessee had pleaded on behalf of the assessee that the assessee never resided in village Noorpur Dona/Mansoorwal Dona. The statutory notices were not served upon the assessee since the assessee was having only land at village Noorpur Dona. It was submitted before the CIT that notice u/s 148 was issued to the assessee on 16.05.2000 through Sh. Jarnail Singh, POA, by ITO Ward-2(6). The assessee had furnished return on 21.08.2000. The notice dated 22.08.2000 was issued by the ITO seeking certain information. In view of the reply submitted by the assessee, the proceedings were dropped. The ITO Ward IV(2), Range-IV, Jalandhar, issued a letter dated 04.12.2003 served up....
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....he purposes of service of notice u/s 148/142(1) of the Act, whether the land of the assessee qualifies to be determined as an asset within the meaning of section 2(14) of the Act. The AO was directed to make proper enquiries from PUDA authorities and Bank and ITO Ward IV(2), Range IV, Jalandhar with regard to the fate of the proceedings initiated in this case. The returned filed by the assessee is to be taken into account while making reassessment. Therefore, the matter has not at all come to an end by the order of the ld. CIT dated 18/25.02.2008. The Ld. counsel for the assessee relied upon the following decisions of ITAT in this regard. i) Dr. A. Naresh Babu Vs. Income Tax Officer, 124 ITD 28 (ITAT Hyderabad Bench): In this case, it was held that the appeals are maintainable from the fresh orders passed by the AO to give effect to a revisional order passed us 264, but only such issues can be agitated in such appeals which have not attained finality by virtue of order passed u/s 264 or earlier orders. It is not open to the assessees in such appeals to agitate any point which has already been decided by the revisional order passed u/s 264 or has attained finality. 6.7. The Bench....
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....te of the Municipal Councilor is also a blatant lie and should not be relied upon and cannot be taken cognizance by the Tribunal. 7.1. The Ld. DR, Sh. Tarsem Lal argued that the ld. CIT is a human being. He also can commit error while making order under section 264 of the Act and at the time of framing order u/s 264, he could not have noticed the actual address. The assessee has misled the ld. CIT in the proceedings u/s 264 of the Act. The Ld. DR further invited our attention to the assessment order at page 2 & 3 in last para of the AO which is reproduced for the sake of clarity, as under: "With a view to comply with the directions of the CIT-Jalandhar-II, Jalandhar, a letter dated 3.6.2008 was issued to the assessee to furnish information. Simultaneously, the enquiries were made from the Tehsildar, Kapurthala regarding the location of land belonging to the assessee acquired by the PUDA. In response to the query made by this office, Sh. Jarnail Singh, Power of Attorney of Shri Jasbir Singh furnished written reply dated 19.6.2008 alongwith which he furnished copy of return of income of the assessee for the assessment year 1999-2000, a certificate from the Sarpanch of village Mohad....
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....Tarsem Lal, the same was not confronted to the assessee. Moreover, Sh. Chanchal Singh in his statement available at PB 55 to 58 stated that he is cultivating land at village Noorpur Dona belonging to all the three present assessees for which no agreement has been executed. The said verbal agreement was made by Sh. Jarnail Singh of vill. Dhina, who is authorized person of the owners of the land. It was also stated that the payment is being made to Sh. Jarnail Singh in cash after six months and no receipt in lieu of the payment is being issued. As regards any house on the agricultural land, it was stated by Sh. Chanchal Singh that there is an old Haveli (ancestral house) related to the owners of the land in which they were living for the last 15/20 years. Mr. Surinder Mahajan, CA, the ld. counsel for the assessee, argued though the statement of Sh. Chanchal Singh ws not confronted to the assessee but the statement all over goes in favour of the assessee that the assessee did not live in village Noorpur Dona and the land was given for cultivation by the POA to Sh. Chanchal Singh. Moreover, Sh. Jarnail Singh, to whom the payment of sales proceeds were being given in cash to Sh. Jarnail....
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....d. The return so filed has not been declared invalid. No issue of power of attorney holder Sh. Jarnail Singh was ever raised by the Income Tax Department. As regards the notice u/s 131 (IA) of the Act dated 01.03.2000 issued by the Assistant Director of Income Tax at vill. Noorpur Dona, Distt. Kapurthala, which has been replied by the assessee on 24.03.2000 available at PB 6 & 7, it was argued by the ld. counsel for the assessee that the said notice has been taken by hand by the Power of Attorney holder S. Jarnail Singh but there is no service record of the same with the Department to prove that the said notice has actually been served on the assessee, S. Jasbir Singh and others at village Noorpur Dona, Distt. Kaprthala. The Ld. DR could not produce any document to prove the service of this notice on Mr. Jasbir Singh at Noorpur Dona, Distt. Kapurthala, which in fact cannot be served at village Noorpur Dona, Distt. Kapurthala since the assessee is a non-resident is a matter of record. Therefore, this notice though issued by Asstt. Director of Income Tax is before the date of initiation of assessment proceedings and in the absence of any service at village Noorpur Dona, Distt. Kapurt....
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....e said village has also certified that Sh. Jasbir Singh and others did not live in village Noorpur Dona, Distt. Kapurthala. The argument of the ld. DR, Sh. Tarsem Lal that 'Sarpanch' of the village is a politician and he is a liar and so argument had been made and commented upon about the Municipal Councilor also and who prayed the Bench to ignore the report said Sarpanch and Municipal councilor. Such argument by Ld. DR Sh. Tarsem Lal are without any basis and such personal remarks cannot prove the persons as residing at vill. Noorpur Dona, Distt. Kapurthala who actually are not residing at such village and are NRI 9.2 As regards the petition u/s 264 of the Act before the Ld. CIT, Jalandhar dated 16.05.2007 available at PB 31 to 34, also the order of the CIT u/s 264 available at PB 39 to 42, which is dated 25.02.2008 clearly mentions in para 4 at PB 41 that approach of the AO since initiating the proceedings under section 147 of the Act, appears to be very superficial either for locating the correct address and service of notices and letters or for the proper gathering of relevant facts relating to assessment proceeding and using them in the assessment order without allowing reaso....
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....assessment year 1999-2000, alongwith a certificate from the Sarpanch etc. 9.4 As regards the arguments of the Ld. DR that the assessee was living at village Noorpur Dona, Distt. Kapurthala and the assesse was having his agricultural land at vill. Noorpur Dona, in this regard statement of Sh. Chanchal Singh which was recorded by the ITO was brought to our notice though the said statement was not confonted to the assessee. But it goes in favour of the assessee for the reasons that Sh. Chanchal Singh in his statement had stated that he is cultivating land at vill. Noorpur Dona belonging to all the three NRIs. The said verbal agreement was made by Sh. Jarnail Singh of vill. Dhina, who is authorized person of the owners of the land. The payment is being made to Sh. Jarnail Singh in cash after six months. There is an old Haveli related to the owners of the land in which Sh. Chanchal Singh is living for the last 15-20 years. 10. In view of the facts and circumstances of the present case , the ITO Kapurthala has no jurisdiction to issue notice on the present assessees, which, in fact, should have been served upon Sh. Jarnail Singh, the power of attorney holder to whom the notices by the ....