Ita/81/2015 Of Ram Kanwar v. Commissioner Of Income Tax Gurgaon Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. ITA8]2015 (O&M)Date of decision:09.07 2015 Ram Kanwar ..Appellant Versus. Commissioner of Income Tax, Gurgaon. ...Respondent CORAMHONBLE MR. JUSTICE S.J. VAZIFDAR, ACTING CHIEF JUSTICEHON5BLE MR. JUSTICE G.S. SAANDHAWALI Present: Mr. S.K. Yadav, Advocate, |for Mr. Sachin Bhardwaj, Advocate, |for the appellant. ee S.J. VAZIFDAR, A.C.J. (QRAL) This is an appeal against the order of the Tribunal dated 08.08.2014 upholding the assessment in part. The matter pertains to the block period 01.04.1987 to 18.02.1997. | oOThe appellant/assessee contends that the following three issuesraise substantial questions of law:-. “(i) Whether under the facts & circumstancesof the case, additional ground of appeal quathe issuance & service of mandatory noticeu/s 143(2) is sustainable and (or) validlydeclined to be raised for the first instancebefore the Tribunal in pursuance to ACIT &another V Hotel Blue (2010) 3 SCC 259? (ii) Whether the ‘chargeability of exemptincome’ to the share of coparcener as fallingin pursuance bank deposits (Rs. 50 lacs) quathe sale of ancestral HUF property &admitted by AO 1s required to be consideredwhile determining undisclosed income u/sL58B(b) ofthe Act? (111) Whether under the facts & circumstancesof the case, while arriving at the chargeableincome u/s 5 read with Sections 29, 57, 158BC of the Act, there 1s a requirement underthe ‘authority of law’ for granting theallowance for the deducting of expensesrelatable to the ‘income charged’? ” Re: Question (1) 4The first question sought to be raised is purely one of fact. The)appellant contended that the notice under Section 143(2) of the Income TaxAct, 1961 (in short the Act) had not been served upon him. However, asrightly noted by the Tribunal, the original assessment order mentions theService of the notice under Section 143(2) of the Act. It is important to notethat the assessee filed an appeal before the CIT (Appeals), but did notdispute the service of the notice under Section 143(2) of the Act upon him. Itis even more important to note that the CIT (Appeals) set aside theassessment order and directed the Assessing Officer to pass a fresh order.Even at that stage, the assessee did not raise any grievance about not havingbeen served with the notice. Furthermore, the fresh assessment order alsomentions the service of the notice under Section 143(2) of the Act upon theassessee. The assessee filed an appeal against this order before the |CIT (Appeals), but even at that stage did not dispute the service of the noticeunder Section 143(2) of the Act. Even in the appeal before the Tribunal, thisgrievance was not raised. Instead, it was sought to be raised for the first timeonly in the year 2009 by way of an additional ground. In thesecircumstances, it would have been surprising if the Tribunal had acceptedthe contention of the assessee that he had not been served with the notice. — 5.In these circumstances, it is only a pure question of fact and raisesno question of law. Re: Question (11) 6 The assessee has filed a rectification application before theTribunal which is pending. © The appellant will be at liberty to file a fresh appeal against theimpugned order of the Tribunal and the order on the application that may be passed, if he so desires. Re: Question (111) 6.Question (i) also does not raise a question of law. The assessee|claimed a deduction of419,83,350/- on account of commission andexpenditure incurred by him while brokering/arranging transactionsregarding the sale of various properties. The Tribunal observed that theassessee had not maintained complete details of the expenditure incurred inthis respect. The Tribunal has in fact taken a liberal view and allowed adeduction ofL10 lacs while observing that the assessee would have incurredSOTNEexpendituretowardsbrokerage,commission,CONVEY alCe,documentation etc. There is nothing perverse or irrational in the order of theTribunal in this regard. passed, if he so desires. Re: Question (111) 6.Question (i) also does not raise a question of law. The assessee|claimed a deduction of419,83,350/- on account of commission andexpenditure incurred by him while brokering/arranging transactionsregarding the sale of various properties. The Tribunal observed that theassessee had not maintained complete details of the expenditure incurred inthis respect. The Tribunal has in fact taken a liberal view and allowed adeduction ofL10 lacs while observing that the assessee would have incurredSOTNEexpendituretowardsbrokerage,commission,CONVEY alCe,documentation etc. There is nothing perverse or irrational in the order of theTribunal in this regard. vanThe appeal in respect of questions (i) and (ili) is, therefore,dismissed. The appellant, however, is at liberty to file a fresh appeal againstthe order that may be passed by the Tribunal upon the rectificationapplication. 09.07.2015Amodh (S.J. VAZIFDAR)ACTING CHIEF JUSTICE(G.S. SANDHAWALIA)JUDGE