Case Law Required

[ravindra_manek123]

Dear members,

Kindly provide me full text of following judgment.

ITO vs. Sushma Gupta (Smt.) (2011) 44 SOT 568 (Delhi)(Trib.)

Thanks in advance.

[ashutosh majumdar]

INCOME TAX OFFICER vs. SMT. SUSHMA GUPTA*
ITAT, DELHI 'C' BENCH
I.P. Bansal, J.M. & B.C. Meena, A.M.
ITA No. 1130/Del/2007; Asst. yr. 2003-04
27th August, 2010
(2011) 44 SOT 568 (Del)
Legislation referred to
Section 2(47)(v), 50C, 143(2), 282,
Case pertains to
Asst. Year 2003-04
Decision in favour of
Revenue
*Also Smt. Sushma Gupta vs. ITO (C.O. No. 103/Del/2008; Asst. yr. 2003-04)
Notice—Service—Validity—AO issued notice under s. 143(2) at the address mentioned by
the assessee in the return of income and since the assessee was found not traceable at
the address given, notice was served by affixture—Notice is validly served as AO is
expected only to serve notice on the address given in the return of income as the
assessment proceedings, if initiated, are to be initiated only at the address given in the
return of income unless it is shown that any application for change of address later on
was filed
Conclusion :
Service of notice by affixture at the address given by the assessee in the return of income is valid
as the AO is expected to serve the notice only at the address given in the return of income unless
the application for change in address is filed.
In favour of :
Revenue
Capital gains—Sale of agricultural land purchased through power of attorney—Assessee
contending that land did not belong to her—As assessee herself declared profit on sale of
land as business income and provisions of s. 2 (47)(v) were applicable, profit was
chargeable to tax as capital gain—Sec. 50C was applicable and the value adopted or
assessed for the purpose of stamp valuation shall be deemed to be the full value of the
consideration received—CIT(A) was not justified in holding that s. 50C did not apply as
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assessee was not direct owner—However as the assessee has agitated the addition, the
issue is restored to the file of AO for providing the opportunity to show that the value
adopted or assessed by stamp valuation authority exceeded the fair market value of the
property as on the date of the transfer and if the assessee raises objection the AO is
directed to refer the issue to the Valuation Officer and after adopting such procedure
assess capital gain in accordance with the law
Held :
If a capital asset is transferred on which the capital gain is liable to be assessed, then, according to
s. 50C(1), the value adopted or assessed for the purpose of stamp valuation shall be deemed to be
the full value of the consideration received. It nowhere states that the assessee should be directly
the owner. Moreover, the transaction has been owned by the assessee and it has been so returned
by her in the IT return. Therefore, now the assessee cannot plead that she was not the owner and
she did not transfer the said land and, therefore, no capital gain was assessable in her hands. If
the asset transferred is a capital asset, then, she is liable for capital gain which is to be computed
in accordance with the provisions of the Act. However, if the assessee claims that the value
adopted for stamp valuation exceeds, the fair market value of the property as on the date of
transfer or the value so adopted or assessed by the stamp valuation authority is disputed in any
appeal or revision or no reference has been made by other authority, Court or the High Court, etc.,
the AO may refer the valuation of the capital asset to the Valuation Officer. Therefore, if the
assessee claims that the value adopted for stamp valuation purposes is in excess of fair market
value of the property, then, he may request the AO for the valuation of the said land from the
valuation officer and the procedure laid down in s. 50C is Required to be adopted. The case of the
assessee falls within the purview of s. 50C as the consideration received by the assessee as a
result of transfer of the said land is less than the value adopted or assessed by the stamp valuation
authority.
(Para 31)
However, keeping in view that assessee has agitated such addition, the assessee may be provided
with the opportunity to show that the value adopted or assessed by stamp valuation authority
exceeded the fair market value of the property as on the date of the transfer. Therefore, to provide
with such an opportunity this issue is restored to the file of AO and if the assessee raise objection
to this extent, then, refer the issue to the Valuation Officer and after adopting such procedure he
will assess his capital gain in accordance with the law.
(Para 37)
Conclusion :
Profit on transaction of land purchased and sold by the assessee through holder of power of
attorney was liable to be taxed as capital gain; as the consideration received by the assessee as a
result of transfer of the land is less than the value adopted or assessed by the stamp valuation
authority; s. 50C was applicable; CIT(A) was not justified in holding that s. 50C did not apply as
assessee was not the direct owner of land.
In favour of :
Revenue
Case referred to
CIT vs. Chandni Bhuchar (2010) 229 CTR (P&H) 190 : (2010) 34 DTR (P&H) 137 : (2010) 323 ITR
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510 (P&H)
Counsel appeared :
Sanjay Awasthi, for the Revenue : O.P. Sapra, for the Assessee


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[ravindra_manek123]

Thank you sir for your kind help

[pawansingla]

2011-TIOL-620-ITAT-KOL

IN THE INCOME TAX APPELLATE TRIBUNAL
BENCH 'B' KOLKATA

ITA Nos.1715, 1867 & 1869 (Kol) of 2009
Assessment Years: 2000-01, 2001-02 & 2003-2004

DEPUTY COMMISSIONER OF INCOME TAX
CIRCLE-6, KOLKATA

Vs

NICCO UCO ALLIANCE CREDIT LTD
KOLKATA
PAN NO:AABCN5012H

B R Mittal, JM and Akber Basha, AM

Dated: May 06, 2011

Appellant Rep by: Smt A Mukherjee
Respondent Rep by: Sri S L Kochar

Income Tax:- Sections 143(2) 147, 148, 292BB - Whether service of scrutiny notice u/s 143(2) is a condition precedent for framing an assessment under section 147 read with 143(3) - Whether provisions of section 292BB can cure such sort of jurisdictional error.

Assessee's case was reopened under section 147 - however, before framing the assessment the AO did not issue the notice of 143(2) - CIT (A) annulled the assessment.

On appeal, the ITAT observed that,

++ the provisions of sec. 292BB of the Act do not apply to the facts of the cases before us as in the cases before us there is no dispute that the A.O. did not issue notice at all u/s. 143(2) of the Act and whereas provisions of sec. 292BB of the Act deal only in respect of the irregularities in serving of notice on the assessee. Hence the contention of the ld. Departmental Representative has no merit that the assessee cannot question the validity of notice in the appellate proceedings as the assessee failed to take any objection before the A.O. that the notice was not served upon it properly or in time or served in an improper manner. Moreover, the said provision has been inserted by the Finance Act, 2008 w.e.f. 1st April, 2008, i.e. applicable for assessment year 2008-09 and whereas the assessment years under consideration are 2000-01, 2001-02 and 2003-04;

++ now coming to the issue as to whether non-issuance of notice u/s. 143(2) of the Act goes to the very root of the validity of the reassessment order or not, we find that by virtue of Sec. 143(2) of the Act, the assesses have been given opportunity to substantiate the return filed. As per proviso to sub-sec. (2) of sec. 143, no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return u/s. 139 or in response to notice u/s. 142(1) is furnished. Therefore, for initiating scrutiny and/or reassessment proceeding, service of notice u/s. 143(2) of the Act is a condition precedent. In the instant cases, admittedly no notice u/s. 143(2) of the Act had ever been served upon the assessee and this fact is also evident from the remand report of the A.O. stating that notice u/s. 143(2) of the Act was not issued after issuing of notice u/s. 148 of the Act. We find that the I.T.A.T., Mumbai Bench as well as Jodhpur Bench in the cases of Kiran Nagji Nisar vs. ITO (supra) and Hari Singh & Associates vs. ITO (supra) respectively have held that it is only a procedural irregularity and the same could be set right by setting aside the assessment order. On the other hand, we find that Hon'ble Bombay High Court in the case of CWT vs. HUF of H.H. Late J.M. Scindia (supra) has held that though notice u/s. 16(2) of the W.T. Act may be procedural, the proviso to sec. 16(2) is not procedural. It is in the nature of a limitation on the power of the A.O. not to proceed further in a case where return has been filed u/s. 14 or 15 of the W.T. Act and this has to be read as applicable to a case of reassessment u/s. 17 of the W.T. Act as well. The provisions of secs. 16(2) and 17 of W.T. Act are in pari materia with the provisions of Sec. 143(2) and Sec. 147 of I.T. Act respectively and, therefore, the ratio of the said decision of Hon'ble Bombay High Court is applicable to the instant cases. Similarly, Hon'ble Gauhati High Court in the case of Smt. Bandana Gogoi vs. CIT (supra) has held that when the A.O. failed to issue notice u/s. 143(2) of the Act after the block return was filed by the assessee, the return filed by the assessee became final and no scrutiny proceeding could be started in respect of that return as the A.O. failed to issue notice u/s. 143(2) of the Act within the stipulated time. Moreover, Lucknow Bench of I.T.A.T. in the case of DCIT vs. K.M. Sugar Mills Ltd. (supra) has considered the same very issue and after considering the decisions of Hon'ble Apex Court in the case of ACIT vs. Hotel Blue Moon (supra) and Hon'ble Allahabad High Court (Lucknow Bench) in the case of CIT vs. Rajeev Sharma (supra) has held that non-issuance of notice u/s. 143(2) of the Act after filing of return by the assessee in response to notice u/s. 148 vitiates the reassessment proceedings.

Revenue's appeal dismissed