ITO v. Sumitra Devi - Taxpublishers.in

Case Laws Analysis
REFERRED Braham Prakash Lakra v. ITO 2019 TaxPub(DT) 7668 (Del-Trib)
REFERRED Narain Dutt Sharma v. ITO 2018 TaxPub(DT) 1816 (Jp-Trib)
REFERRED Sunrise Education Trust v. ITO 2018 TaxPub(DT) 1002 (Guj-HC)
REFERRED CIT v. Indo Arab Air Services 2015 TaxPub(DT) 5400 (Del-HC)
REFERRED CIT v. Ghanshyam (Huf) 2009 TaxPub(DT) 1897 (SC)
REFERRED Stanes Motors (South India) Ltd. v. CIT 2002 TaxPub(DT) 1549 (Mad-HC)
REFERRED Sagar Enterprises v. Assistant Commissioner of Income Tax 2002 TaxPub(DT) 1549 (Guj-HC)

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The Tax Publishers2024 TaxPub(DT) 1227 (Del-Trib) IN THE ITAT, DELHI BENCH B.R.R. KUMAR, A.M. & ASTHA CHANDRA, J.M. ITO v. Sumitra Devi ITA No. 906/DEL/2020 & C.O. No. 173/DEL/2022 28 February, 2024 Assessee by: Sachin Kumar, Advocate Department by: Piyush Tripathi, Sr. D.R. ORDER *Astha Chandra, J.M.* The appeal filed by the Revenue and the cross-objection filed by the assessee arise out of the Order dated 20-11-2019 of the learned Commissioner (Appeals), Delhi-13 (CIT (A)) pertaining to assessment year (AY) 2010-11. 2. The Revenue has raised the following grounds:- Whether on the facts and in the circumstances of the case, the learned Commissioner (Appeals) has erred in deleting the addition of Rs. 3,21,75,000 ignoring fact that the amount of enhanced compensation is taxable under section 45(5)(b) of the Income Tax Act, 1961 and that the enhanced compensation amount would invariably be subsequent to the date of compulsory acquisition of land. 2.1 Subsequently, on 29-5-2023 the Revenue has taken the following additional ground of appeal:- The learned Commissioner (Appeals) failed to appreciate the amount of enhanced compensation of Rs. 3,20,87,825 which was not taxed/declared by the assessee assessment year 2008-09, thereby the cost of acquisition was taken at nil against the sale consideration of Rs. 3,21,75,000 against the transaction for sale of said plot which is to be taxed under section 45(1) after allowing the expenses incurred by the assessee at the time of acquiring of the plot. 3. The assessee has raised the following cross-objection:- 1. The appeal is not maintainable, inter alia, because: (1) The appeal is not in the Form No. 36 prescribed by Rule 47(1) of the Income Tax Rules, 1962. (2) As per Column No. 9 of the Form No. 36, the order appealed against was communicated on 10-12-2019 and, therefore, the last date to file appeal was 8-2-2020; but the appeal has been filed on 25-2-2020 and thus, the appeal is late by 17 days. 2. The initiation of the proceedings under section 147 of the Income Tax Act, 1961 (hereafter the Act) by the learned Income Tax Officer, Ward-44(4), New Delhi (hereafter the ITO, Ward-44(4)), being without satisfying and complying with the pre-requisite mandatory conditions mandated by section 147, 148 and 151 of the Act, which are sine qua non for assumption of valid jurisdiction to initiate the proceedings under section 147 of the Act and without jurisdiction, is bad in law, null and void-ab- initio and deserves to be annulled. (1) The purported 'reasons to believe' are based on the allegation that the Assessee did not file her return of income, whereas, as a matter of fact the return of income was filed by the Assessee. (2) The learned Income Tax Officer, Ward-44(4) had no reason to believe' to initiate the proceedings under section 147 of the Act, the proceedings were initiated on highly misconceived grounds, in the nature of pretence and without any justification and on wrong facts. SUBSCRIBE FOR FULL CONTENT

The Tax Publishers2024 TaxPub(DT) 1227 (Del-Trib)

IN THE ITAT, DELHI BENCH

B.R.R. KUMAR, A.M. & ASTHA CHANDRA, J.M.

ITO v. Sumitra Devi

ITA No. 906/DEL/2020 & C.O. No. 173/DEL/2022

28 February, 2024

Assessee by: Sachin Kumar, Advocate

Department by: Piyush Tripathi, Sr. D.R.

ORDER

Astha Chandra, J.M.

The appeal filed by the Revenue and the cross-objection filed by the assessee arise out of the Order dated 20-11-2019 of the learned Commissioner (Appeals), Delhi-13 (CIT (A)) pertaining to assessment year (AY) 2010-11.

2. The Revenue has raised the following grounds:-

Whether on the facts and in the circumstances of the case, the learned Commissioner (Appeals) has erred in deleting the addition of Rs. 3,21,75,000 ignoring fact that the amount of enhanced compensation is taxable under section 45(5)(b) of the Income Tax Act, 1961 and that the enhanced compensation amount would invariably be subsequent to the date of compulsory acquisition of land.

2.1 Subsequently, on 29-5-2023 the Revenue has taken the following additional ground of appeal:-

The learned Commissioner (Appeals) failed to appreciate the amount of enhanced compensation of Rs. 3,20,87,825 which was not taxed/declared by the assessee assessment year 2008-09, thereby the cost of acquisition was taken at nil against the sale consideration of Rs. 3,21,75,000 against the transaction for sale of said plot which is to be taxed under section 45(1) after allowing the expenses incurred by the assessee at the time of acquiring of the plot.

3. The assessee has raised the following cross-objection:-

1. The appeal is not maintainable, inter alia, because:

(1) The appeal is not in the Form No. 36 prescribed by Rule 47(1) of the Income Tax Rules, 1962.

(2) As per Column No. 9 of the Form No. 36, the order appealed against was communicated on 10-12-2019 and, therefore, the last date to file appeal was 8-2-2020; but the appeal has been filed on 25-2-2020 and thus, the appeal is late by 17 days.

2. The initiation of the proceedings under section 147 of the Income Tax Act, 1961 (hereafter the Act) by the learned Income Tax Officer, Ward-44(4), New Delhi (hereafter the ITO, Ward-44(4)), being without satisfying and complying with the pre-requisite mandatory conditions mandated by section 147, 148 and 151 of the Act, which are sine qua non for assumption of valid jurisdiction to initiate the proceedings under section 147 of the Act and without jurisdiction, is bad in law, null and void-ab- initio and deserves to be annulled.

(1) The purported 'reasons to believe' are based on the allegation that the Assessee did not file her return of income, whereas, as a matter of fact the return of income was filed by the Assessee.

(2) The learned Income Tax Officer, Ward-44(4) had no reason to believe' to initiate the proceedings under section 147 of the Act, the proceedings were initiated on highly misconceived grounds, in the nature of pretence and without any justification and on wrong facts.