TaxTMI 
TaxTMI 
2018 (7) TMI 1398
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....ee. The action of ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the said addition of Rs. 12,93,175/-. 2. In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in confirming the action of ld. AO in making addition of Rs. 1,59,32,450/- although having decided that the entire transaction of alleged sale of land do not pertain to the AY 2006-07 and pertain to the AY 2007-08. 3. (a) In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in confirming the action of the ld. AO in making addition of Long Term Capital Gain at Rs. 23,41,244/-. The action of the ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the said addition of Rs. 23,41,244/-. (b) In the facts and circumstances of the case and in law the ld. CIT(A) has erred in confirming the action of the ld. AO in applying the provisions of section 50C of the Income Tax Act, 1961 and adopting the sale consideration at Rs. 23,57,148/- against the declared sale consideration of Rs. 18,46,095/-. The action of the ld.....
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....umar Jain v. CIT [1975] 99 ITR 349 wherein it was held that by giving up the ground, the assessee could not confirm jurisdiction on the Income Tax Officer where he had none and it was further held in that case that the Tribunal was bound to hear the appeal of the assessee and could not reject the appeal on the ground that certain grounds were not agitated before the appellate ACIT and thus could not be permitted to be agitated before the Tribunal. 5. We find that the additional ground of appeal which has been taken by the assessee wherein the assessee has challenged the reopening of the assessment u/s 147 of the Act is a purely legal ground and the same is admitted following the Hon'ble Supreme Court decision in case of NTPC (supra). 6. Now, coming to the merits of the additional ground and the contentions advanced by the ld AR, it was submitted by the ld. AR that it is a settled legal proposition that the reasons to believe should be based on some relevant material and there should be a live link between the material and the formation of belief that income has escaped assessment. In the present case, from perusal of the reasons recorded by the AO, it is evident that the AO, ....
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....ks jurisdiction. In support, reliance was placed on the decision of Supreme Court in the case of Chhugamal Rajpal v. S.P. Chaliha [1971] 79 ITR 603 (SC). Further reliance was placed on the decision of Bombay High Court in the case of Smt. Kalpana Shantilal Haria vs. ACIT. It was further submitted by the AR that in terms of provisions of section 148 of the Act, the impugned notice can be issued only to the assessee and if we analysed the definition of the term "assessee" as defined in section 2(7) of the Act, the appellant does not fall into the cited categories and therefore the notice issued u/s 148 is bad in law. In support, reliance was placed on the provisions of section 142(1) where the legislature has used the term "person" as well as section 153A which again refer to any "person". It was accordingly submitted that where the legislature has clearly made reference to the term "assessee" u/s 148 of the Act, it is obligatory on the part of the AO to comply with the same and the appellant not falling in the definition of the term "assessee", the present proceedings are without any legal justification and the same deserves to be quashed. 7. In order to appreciate the contention....
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.... National Bank. Sources of these deposits are not explained. Thus, the income of Rs. 22,55,000 has also escaped assessment. Thus, I have reasons to believe that income has escaped assessment. " 8. Firstly, we note that reasons recorded before issuance of notice are two-fold. Firstly, the sale of the land situated at village Ginor in respect of which capital gains has been stated to be chargeable to tax and which has escaped taxation. Secondly, the unexplained deposits found in assessee's bank account maintained with PNB which have also escaped taxation. Regarding the first ground, on perusal of the sale deed executed by the assessee with Jamna Devi and Narangi Devi, it is observed that the date on which the sale deed has been executed has been stated as 11.01.2006, the date of purchase of the stamp paper has been mentioned as 11.01.2007 and the date on which the sale deed was presented for registration with the stamp authorities and finally registered has been stated as 12.01.2007. Identical fact pattern exist in respect of other sale deeds so executed by the assessee with Jamna Devi and Narangi Devi. There could be two possi....
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....99 are clearly invalid, supports the case of the assessee. 9. Now, coming to second ground for reopening which has been stated to be unexplained deposits found in assessee's bank account maintained with PNB which have also escaped taxation, there has been no dispute and no contentions have been raised by the ld AR as well. It is a case where no return of income has been filed prior to issuance of notice u/s 148 of the Act and therefore, where the AO has found certain unexplained deposits in the assessee's bank account, the AO is well within his jurisdiction to form a prima facie view that such deposits have escaped taxation. In light of the same where the second ground of reopening has been held to be a valid ground for reopening, the assumption of jurisdiction by the AO under section 147 cannot be held invalid and the same is upheld. It is not a case that first ground is the main ground and the second is the ancillary ground for reopening the assessment. In our view, both grounds carry equal weight and importance and it cannot be said that if the first ground is held invalid, by default, the second ground has to be held invalid. 10. Further, we have gone through the contenti....
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....ns and where there were any doubt about the transactions, summons u/s 131 could have been issued to these persons. Regarding the finding of the ld. CIT(A) that assessee has cooked up a story and an afterthought to explain unexplained deposits and affidavits of these persons are merely self serving documents, it was submitted that the ld. CIT(A) has not pinpointed any defects in the documents and she has also not explained as to how she felt that assessee has cooked up a story. Regarding the observations of the ld. CIT(A) that no evidence/details were filed regarding failure of sale transactions, it was submitted that disputes are not documented unless taken up in Civil Court and therefore not evidence for the same can even exists. It was further submitted that when after negotiations, some disputes arose with the persons who gave advances, the deal was cancelled and the land was sold to some other persons whose details were submitted. Regarding observations of ld. CIT(A) that a common cash flow summary along with Smt. Jamna Devi and Smt. Narangi Devi having independent identity and carrying separate transaction, it was submitted that the sale deeds so executed with the two ladies w....
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....ing the source of these deposits. Hence, the addition so made is hereby deleted. The ground no.1 taken by the assessee is allowed. 13. The Ground No. 2 is regarding addition of Rs. 1,59,32,450/- as long term capital gains on sale of land. The said ground was not pressed by the ld. AR during the course of hearing as the said addition was deleted by the ld. CIT(A) for the impunged assessment year and confirmed in AY 2007-08. The ground is therefore dismissed as not pressed. 14. In Ground No. 3(a) read with 3(b), the assessee has challenged the action of the AO in invoking provisions of section 50C and adopting sale consideration of Rs. 23,41,244/- instead of actual sale consideration of Rs. 18,46,095/-. In this regard, it was submitted that the value adopted by the Sub-Registrar for stamp duty purposes is not final value which has to be taken for tax purposes. It was submitted that where the assessee claims that the fair market value is less than the stamp duty value, then in terms of section 50C(2), the AO is required to refer the matter to the Valuation Officer. It was submitted that the ld. CIT(A) has erred in holding that the assessee has not requested the AO for making ref....
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....no. 3(a) read with 3 (b) is dismissed. 16. In Ground No. 3(a) read with 3(c), the assessee has challenged the action of the AO in treating the land sold as capital assets instead of agricultural land and therefore levying capital gains on the same. It was submitted that the ld. CIT(A) while holding that the land in question as capital asset has placed reliance on the remand report submitted by the AO who has in turn relied upon the certificate of Tehsildar. It was submitted that the enquiry with Tehsildar was conducted at the back of the assessee and no opportunity of cross examination was given to the assessee. In support, reliance was placed on the decision of Hon'ble Supreme Court in case of Andaman Timber Industries, Civil Appeal No. 4228 of 2006, dated 2nd Sept 2015 and Hon'ble Delhi High Court in case of CIT vs. Ashwani Gupta [2010] 322 ITR 396 (Delhi). It was further submitted that the assessee, in order to support his contention has submitted a certificate of Gram Panchayat and as per the said certificate, village Goner is situated at a distance of 9 k.m from the municipality limits of Jaipur Nagar Nigam. It was submitted that the ld. CIT(A) has failed to appreciate the ....
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....or A.Y 2007-08, the assessee has taken the following grounds of appeal:- "1. In the facts and circumstances of the case and in law, the Id. CIT(A) has erred in confirming the action of the Ld. AO in reopening the assessment u/s 147 of Income Tax Act, 1961. The action of the ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the reassessment proceedings, being illegal and without any basis. 2. In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in confirming the action of the ld. AO in making addition of Rs. 3,80,000/- of alleged unexplained deposits in the bank account of the assessee. The action of ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the said addition of Rs. 3,80,000/-. 3. (a) In the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in enhancing the income and charging the Long Term Capital Gain at Rs. 1,62,72,000/-. The action of the ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by dele....
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....land sold was the agricultural land, which is not a capital asset as per section 2(14) of the Income Tax Act, 1961. The action of the ld. CIT (A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the said addition of Rs. 14,62,758/- and accepting the land being agricultural land and not a capital asset as per section 2(14) of the Income Tax Act, 1961." 21. The facts of the case are that the assessee has not filed any original return of income and subsequently on receipt of notice u/s 148, a return of income was filed disclosing agriculture income of Rs. 1,20,000/-. The assessment u/s 147 r.w.s 143(3) was thereafter completed at a total income of Rs. 18,51,320/-. 22. Regarding ground No. 1 of assessee's appeal, the assessee has challenged the action of the AO in reopening the assessment proceedings u/s 147 of the Act. The AO, on observing that a sum of Rs. 16,50,000/- has been deposited in the bank account of the assessee, formed the belief that income to the tune of Rs. 25,55,000 has escaped assessment and, thereafter, the assessment was reopened u/s 147 by issuance of notice u/s 148 of the Act. The said action of t....
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....da Exports vs. ITO [2015] 58 taxmann.com 176 (Rajasthan). It was further submitted that the appellant does not fall in the definition of the term ' assessee' as defined in section 2(7) of the Act and therefore, the notice issued u/s 148 is void in substance. It was further submitted that during the course of appellant proceedings, the copy pasted error was brought to the notice of the ld. CIT(A). However, ld. CIT(A) in very casual manner held that the error committed by the AO is inadvertent error which could be cured u/s 292B of the Act. 24. In order to appreciate, the contention so raised by the ld. AR, it would be relevant to refer to the reasons which have been recorded before issuance of notice u/s 148 of the Act and the same are reproduced as under:- "Return of income has not been filed by the assessee. During the year under consideration, the assessee has deposited a sum of Rs. 16,50,000/- in his bank account no. 3801 with Punjab National Bank. Sources of these deposits are not explained. Thus, the income of Rs. 25,55,000/- has escaped assessment. Thus, I have reasons to believe that income has escaped assessment." 25. It is a case where no return ....
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....d it was noted that the approval u/s 151 is duly placed on record. Hence, the said contention has been duly addressed and doesn't support the case of the assessee. In the result, the ground of appeal is hereby dismissed and the assumption of jurisdiction by the AO u/s 147 of the Act is held to be valid. 28. Regarding Ground No. 2 of the assessee's appeal, he has challenged the addition of Rs. 3,80,000/- made by the AO on account of unexplained deposits. During the course of assessment proceedings, the AO observed that there is a total deposits of Rs. 17,00,000/- in the bank account of the assessee consisting of 1.5 lacs in cash and Rs. 15.5 lacs through cheque/demand draft. The assessee submitted that an amount of Rs. 13,20,000/- was received from M/s Fine Tech Macro Developers Pvt. Ltd. for sale of land and copies of sale deed were produced. However, in respect, the balance deposits of Rs. 3,80,000/-, no explanation was furnished by the assessee and the same was treated by the AO as made out of the said unexplained source and brought to tax in the hands of the assessee company. 29. Being aggrieved, the assessee carried the matter in appeal before the ld. CIT(A) who has confi....
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....dingly, she directed the deletion of the said addition of an equivalent amount in AY 2006-07. 33. In this regard, the ld. AR submitted that ld. CIT(A) has erred in making enhancement as the power of enhancement has to be distinguished from the power of reassessment. Section 251 therefore, has not included the power to reassessment while describing the scope of powers of CIT(A) in appeal. 34. It was submitted that it is a settled legal proposition that ld. CIT(A) is not open to travel outside the record while enhancing the income. She has to restrict herself to the source of income which has been subject matter of consideration by AO from the point of view of taxability. In the present case, ld. CIT(A) has accepted the fact that enhancement can be made only when the AO has discussed the transaction in assessment order [CIT(A) page 34]. However, ld. CIT(A) only after considering that the transaction of sale of land has been discussed, made enhancement in the year under appeal. Ld. CIT(A) also mentioned that in para 6 of AO order for A.Y. 2007-08 i.e. the year under appeal, ld. AO has discussed about the capital gains for sale of the land in question and, therefore, it is ....
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....for which direction could be given u/s 150 (1) of IT Act." It was submitted that section 150 and section 251 are independent of each other. Section 150 empowers the AO to issue notice u/s 148 to give effect to any finding or direction contained in an order passed by any authority whereas section 251 defines the powers of CIT (A). Thus, section 150 and section 251 have different play areas. When a direction u/s 150 is given to issue notice u/s 148, ld. AO is again bound to take approval of higher authority in spite of the fact that some higher authority has given direction. Reliance is placed on Hon'ble Allahabad High Court Judgment in the case of Smt. Maya Rastogi vs. CIT [2011] 196 Taxman 283 (All) which held as under: "Section 148 (see below) 5 is titled 'Issue of notice where income has escaped assessment'. The notices are issued in case income escapes assessment. This is irrespective of the fact that the case is covered by section 149 or section 150. 52. Section 151(2) (see footnote 3) provides that 'no notice will issue under section 148 by an Assessing Officer...' This shows that section 148 is subject to section 151 of the Act. The condition mentio....
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....ade before ld. CIT (A) may please be considered in correct perspective. II. Before ld. CIT (A) it was conclusively established that the owner of the land Shri Jagdish Narayan Sharma was facing serious family disputes. Claims and counterclaims from different relatives were made over the land inherited by Jagdish Narayan Sharma. Complete documentary evidences to substantiate these facts were placed before the ld. CIT (A). None of these factual aspects are disputed by ld. CIT (A). III. Shri Jagdish Narayan Sharma, in this background, in order to safeguard his land, on wrong legal advice, executed a sale deed in favour of his daughter-in-laws. The reason leading to execution of sale deed has not at all been countered by the ld. CIT (A) IV. Ld. CIT (A) disregarded the submissions mainly for the solitary reason of a sale deed having been executed amongst the parties leading to presumption that sale has taken place. She has further herself admitted the fact that the sale deed is not conclusive evidence and the said presumption is rebuttable by the assessee through effective evidence. In this regard it is submitted that during the appellate proceedings affidavits....
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....er erred in considering that since the sale deed is witnessed, it shall be presumed that witness has attested the contents of the instruments also. As submitted above the sale deed in the present case is a sham document. Ld. CIT (A) has further erred in observing that the Sub-Registrar has endorsed in the sale deed that consideration has been passed on in his presence. It is submitted that as evident from the sale deed PB 389 which is also reproduced by ld. CIT (A) at page 38 of her order, the endorsement by Sub- Registrar is highly mechanical from which no conclusion can be drawn as the Sub- Registrar has not strike off the irrelevant portions. It is not clear whether the consideration has flown and passed before him. Therefore, the contention of ld. CIT (A) is devoid of merits. VIII. Admittedly sale deed can be persuasive evidence but for sure cannot be conclusive evidence. Any persuasive evidence has to be weighed with reference to other allied/circumstantial evidences and, thereafter, in totally a conclusion can be drawn. In the present case, the following specific evidences before the lower authorities were enough to prove that apparent was not real and it can be conc....
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....t the ld CIT(A) was well within her jurisdiction to bring to tax the sale transactions in the impunged assessment year consequent to the relief given to the assessee for A.Y 2006- 07. It was submitted that the assessee cannot expect to get scot-free and donot pay tax at all in either of the years when the transaction of sale of land is evidenced by the registered sale deeds. Our reference was drawn to Para 4 of the ld CIT(A)'s order giving the factual background and issue of enhancement notice which reads as under: "During the course of appellate proceedings, it was noticed that the appellant has conducted a sale transaction of land wherein he has sold land to his two daughters in law, Jamna Devi and Narangi Devi in this year for Rs. 1,62,72,000/- The AO has discussed this issued in the assessment order for this year at page no. 6 of his order as under: "Working of income under the head capital gains : The assessee has sold his land during the year under consideration for Rs. 18629148/ (16272000 + 2357148/) the Village- "Goner,Tehsil-Sanganer, Jaipur" This Capital Gain transaction was inadvertently not added by AO to appellant's income in this year. Therefore ....
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....d above, since the AO has mentioned in para 6 of his order for AY 2007-08 about the capital gain for sale of this land, this is not a new source of income not discussed by AO. Hence the above mentioned case is distinguishable and not applicable. Further, the action u/s 251(1)(a) is also strengthened by the fact that the AO could have taken remedial action for which direction could be given u/s 150(1) of IT Act. Looking to the facts and circumstances of the case I hereby proceed to enhance the income of the appellant in terms of the decision given below." 44. We have heard the rival contentions and purused the material available on record. The issue which arise for consideration is whether the ld CIT(A) was justified in bringing to tax long term capital gains, on sale of land by the assessee to his two daughter-in-laws, by way of enhancement of income in terms of provisions of section 251(1)(a) of the Act which reads as under: "251(1) In disposing of an appeal, the Commissioner(Appeals) shall have the following powers: (a) In an appeal against an order of assessment, he may confirm, reduce, enhance or annual the assessment." 45. Regarding the powers ....
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....mited by the subject-matter. The appellate authority has no power to travel beyond the subject-matter of the assessment and, for all the reasons advanced by the appellant, is in my opinion not entitled to assess new sources of income." The view of the Patna High Court receives support from a decision of the Madras High Court in Gajalakshmi Ginning Factory v. Commissioner of Income-tax [1952] 22 ITR 502 where, at page 510, the Divisional Bench observed as follows: "Of course, it would not be open to the Appellate Assistant Commissioner to introduce into the assessment new sources, as his power of enhancement should be restricted only to the income which was the subject-matter of consideration for purposes of assessment by the Income-tax Officer." In Bishwanath Prasad Bhagwat Prasad v. Commissioner of Income-tax [1956] 29 ITR 748, the Appellate Assistant Commissioner had actually remanded the case, but while considering the powers of the Appellate Assistant Commissioner, the Divisional Bench appears to have approved of the above- quoted passage from the Madras case. The observations in that case may be treated as obiter. In Narrondas Manordass v. Commission....
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....kes a grievance, but a revising authority in the sense that once the appeal is before him he can revise not only the ultimate computation arrived at by the Income-tax Officer but he can revise every process which led to the ultimate computation or assessment. In other words, what he can revise is not merely the ultimate amount which is liable to tax, but he is entitled to revise the various decisions given by the Income-tax Officer in the course of the assessment and also the various incomes or deductions which came in for consideration of the Income-tax Officer." The learned Chief Justice in the judgment under appeal considers that this court has thus given approval to his view and also the view of the Patna High Court in the earlier case. In our opinion, this court must be held not to have expressed its final opinion on the point arising here, in view of what was stated at pages 709 and 710 of the report. This court, however, gave approval to the opinion of the learned Chief Justice of the Bombay High Court that section 31 of the Income-tax Act confers not only appellate powers upon the Appellate Assistant Commissioner in so far as he is moved by an assessee but....
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....hat has been accepted in India as its true import, particularly as that view is also reasonably possible." 47. The Hon'ble Rajasthan High Court in case of Commissioner of Income-tax vs. Associated Garments Makers reported in 64 Taxman 215, following the above decision of the Hon'ble Supreme has held as under: "7. Appeals are provided under section 246 of the Act before the AAC and the Commissioner (Appeals). These appeals are by the assessee aggrieved by the orders mentioned therein. Any order made under section 143(3) is appealable and the powers of the appellate court are provided in section 251 of the Act wherein appellate authority has power to confirm, reduce, enhance or annul the assessment or he may set aside the assessment and refer the case back to the ITO for making fresh assessment in accordance with directions given in appeal and after making such further enquiry as may be necessary. These powers are, inter alia, mentioned in the other powers. According to sub- section (2) of section 251, the AAC has no power to enhance assessment or a penalty, or reduce the amount or refund unless the appellant has a reasonable opportunity for showing cause against....
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.... 31(3) is restricted to the sources of income which have been the subject-matter of consideration by the Income-tax Officer from the point of view of taxability". Their Lordships considered the meaning of the word 'consideration' and held that, " 'consideration' does not mean 'incidental' or 'collateral' examination of any matter by the Income-tax Officer in the process of assessment. There must be something in the assessment order to show that the Income-tax Officer applied his mind to the particular subject-matter or the particular source of income with a view to its taxability or to its non- taxability and not to any incidental connection". In the instant case, the AAC had himself, after issuing notice, considered the new material and had gone into new sources of income for the consideration of which he had no jurisdiction. 8. In fact, we fail to understand as to why when the order was brought to the notice of the Commissioner he proceeded into wrong direction when he had ample powers under other provisions of this Act. There are various other provisions under the Act which can be invoked in cases of escaped income or such situation where....
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....cussions and the relevant findings of the Hon'ble High Court as under: "The Ambit of Appellate Power: 37. To begin with, let us examine section 251 of the Act. As the assessment year was 1995-96, we will examine the provision as stood then. Before the amendment by Act 18 of 2008, section 251 read as: 251. Powers of the [* * *] Commissioner (Appeals).- (1) In disposing of an appeal, the [* * *] Commissioner (Appeals) shall have the following powers- (a) in an appeal against an order of assessment he may confirm, reduce, enhance or annul the assessment; [* * *] (b) in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty; (c) in any other case, he may pass such orders in the appeal as he thinks fit. (2) The [* * *] Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of refund unless the appellant has had a reasonable opportunity of showing cause against such enhancement or reduction. Explanation.-In disposing of an appeal, the [* * *] Commissioner (Appeals) may consider and decide....
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.... with that of the Income Tax Officer, and if that is so, there appears to be no reason why the appellate authority cannot modify the assessment order on an additional ground even if not raised before the Income Tax Officer. No exception could be taken, held the Supreme Court in CIT v. Nirbheram Deluram [1997] 224 ITR 610/91 Taxman 181 to this view as the Act places no restriction or limitation on exercising appellate power. Even otherwise, an appellate authority while hearing the appeal against the order of a subordinate authority, has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitation, if any, prescribed by the statutory provisions. Absent any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have. 42. In CIT v. Shapoorji Pallonji Mistry [1962] 44 ITR 891 (SC) the assessment year was 1947-1948, and the case was finally decided in 14.02.1962. So the Act considered was pre-Independence enactment. Examining section 31 of the old Act, the Supreme Court has held that there is no doubt that the appellate authority can "enhance the a....
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.... is vested with all the plenary powers which the Income Tax Officer may have while making the assessment. 47. Indeed, examining Daluram's holding, a Division Bench of the Delhi High Court in CIT v. Union Tyres [1999] 240 ITR 556/107 Taxman 447, has observed that Daluram did not comment whether these wide powers also include the power to discover a new source of income. So, Union Tyres concludes that the principle of law laid down in Shapoorji and Chamaria still holds the field. 48. The principle emerging from various pronouncements of the Supreme Court, Union Tyres observes, is that the first Appellate Authority is invested with very wide powers under Section 251(1)(a) of the Act and once an assessment order is brought before the authority, his competence is not restricted to examining only those aspects of the assessment about which the assessee makes a grievance and ranges over the whole assessment to correct the Assessing Officer not only regarding a matter raised by the assessee in appeal but also regarding any other matter considered by the Assessing Officer and determined in assessment. 49. There is a solitary but significant limitation, accordi....
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....Jaipur to his two daughters-in-law namely Narangi Devi w/o Chhaju lal and Jamna Devi w/o Kaluram for a total consideration of Rs. 1,62,72,000. Now, if we look at the return of income filed by the assessee, it is noted that pursuant to issuance of notice u/s 148, the assessee had filed his return of income disclosing agricultural income of Rs. 1,10,000/- and prior to that, no return of income was filed by the assessee. The notice issued under section 148 dated 15.03.2013 talks about an amount of Rs. 16,50,000 deposited in assessee's bank account maintained with PNB, the source of which has not been explained and the same has thus escaped assessment. On perusal of the assessment order passed under section 143(3) read with section 147 of the Act, it is noted that the said deposits in assessee's bank has been examined however, there is no linkage with the impunged sale transactions which are the subject matter of enhancement by the ld CIT(A). Further, there is a sale transaction which is the subject matter of assessment which relates to sale of ancestral land situated at the same village Goner, Village Goner, Tehsil Sanganer, Jaipur vide sale deed dated 26.12.2006 to M/s Fine Tech Macr....
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.... suo motu power to consider the questions arising thereof but there is no provision to go beyond the matter arising out of the proceedings before the Assessing officer, more particularly as separate provisions for such eventuality are provided in the Act. In light of the same, the enhancement so done by the ld CIT(A) whereby the impunged sale transactions are brought to tax in the year under consideration are beyond the scope of her powers envisaged under section 251(1)(a) and the same thus cannot be accepted. However, the AO shall be free to take action as per law. 51. In light of the above discussions, having decided against the exercise of powers of the ld CIT(A) in bringing to tax the subject transaction, we donot deem it appropriate to examine and the address the arguments and contentions so raised by both the parties on merits of the taxability of the subject transaction. 52. In the result, the ground of appeal is allowed in favour of the assessee . 53. Regarding Ground No. 4 of the appeal, the assessee has challenged the action of the AO in invoking the provisions of section 50C whereby the AO has considered sale consideration of Rs. 14,88,000/- instead ....
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....icular Form in Income Tax Rules is prescribed for requesting the AO to refer the matter to Valuation Officer. The basic condition is "claiming" before the AO that value adopted by Stamp Valuation Authorities exceeds the Fair Market Value at which the transaction of sale has taken place. Subsequent condition is that no appeal is filed under Stamp Duty Law. 56. It was submitted that the ld. CIT(A) has erred in holding that the assessee has not requested ld. AO for making reference to the valuation officer. It is submitted that the assessee before ld. CIT(A) claimed that AO should have referred the case to valuation officer. Thus, a specific request was made. It is a settled legal proposition that ld. AO while discharging his duties is bound to refer the valuation to the valuation officer when the assessee has disputed the value adopted by the Stamp Authorities, even if the assessee has not made a specific request for the same. 57. Reliance was placed on the following judicial pronouncements: * Sunil Kumar Agarwal [2014] 47 taxmann.com 158 (Cal.) * Smt. Kamlesh Tiwari, ITA No. 587/JP/2013 * Vijay Kumar Patni, ITA No. 202/JP/2012 * Sarwan Kumar....
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....he assessee's appeal for AY 2006-07 in ITA No. 75/14-15. Since the facts of the case in the year under appeal are similar as existed in AY 2006-07 and the land under question is contiguous to the same land / located in the same area as the land which was sold in the preceding assessment year thus under these circumstances I am inclined to follow the observations made and the order passed in AY 2006-07-in ITA No. 75/14-15 supra and accordingly both the grounds raised by the appellant in this year are decided against the assessee and the addition of Rs. 14,62,758/- is confirmed." 62. We find that the facts and circumstances of the case are identical to the facts as in ITA No. 751/JP/2015 and similar contentions have been raised by the ld AR. Our findings and directions contained in Para 18 in ITA No. 751/JP/2015 (Supra) shall apply mutatis mutandis to this matter as well. The ground of assessee's appeal is therefore dismissed. 63. In this appeal (ITA No. 753/JP/2015) for A.Y 2008-09, the assessee has taken the following ground of appeal: "In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in confirming the action of ld. AO in making add....
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.... by the ld AR that a request was made to carry out filing inspection of assessment records and on such inspection, it was noted that there is no copy of sanction obtained u/s 151 before reopening the assessment. In this regard, the ld AR submitted that if the Bench deem fit, it may call the record to ascertain correct facts. During the course of hearing, the assessment records were called and it was noted that the approval u/s 151 is duly placed on record. Hence, the said contention has been duly addressed and doesn't support the case of the assessee. 69. In the result, the additional ground of appeal is dismissed. 70. Now, coming to other ground of appeal wherein the assessee has challenged the addition of Rs. 18,15,462/- on account of unexplained deposits where AO observed that the assessee has failed to produce necessary explanation of the source of such deposits. 71. During the course of assessment proceedings, the AO observed that there are cash deposits of Rs. 17,95,000/- and cheque deposits of Rs. 20,462/- totalling to Rs. 18,15,462/- in the assessee's bank account. The assessee was asked to explain the source of deposits made by him in his bank account and in absen....