Pr. Commissioner Of Income Tax, Panchkula v. Rajinder Kaur

IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH | ITA-336-2017 (O&M)Date of decision : 25.03.2019 Pr. Commissioner of Income Tax, Panchkula a... Appellant VS Rajinder Kaur ...... Respondent CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTALHON'BLE MR. JUSTICE MANJARI NEHRU KAUL Present:-Mr. Yogesh Putney, Senior Standing Counsefor the appellant. Mr. Rohit Kaura, Advocate forMr. Deepak Gupta, Advocatefor the respondent. 444 AJAY KUMAR MITTAL, J. (Oral) The present appeal has been filed by the revenue under Section260A of the Income Tax Act, 1961 (for short, ‘the Act’) against the orderdated 21.12.2016 passed by the Income Tax Appellate Tribunal, ChandigarhBench, in ITA No.765/CHD/2015 for the assessment year 2008-09,claiming the following substantial questions of law :- (1)Whether on the facts and in the circumstances of the case the Ld. ITAT is right in law in holding the proceedings underSection 147 of the Income Tax Act, 1961 as bad in law basedon the premise that there was no tangible material availableon record to justify reopening of the assessment ignoring theaspect that the same value in the case of co-owner was taken ITA-336-2017 (O&M) for the purpose of calculating the capital gains? (111) Whether on the facts and in the circumstances of the case the Ld. ITAT is right in law in holding that no reopening canbe made merely on the basis of valuation report of the DVO,whereas there is no such reference to the report of the DVOin the reasons recorded on 26.03.2013 after framing theassessment in the case of co-owner for the same Assessmentyear on 25.03.2013, on the same value, the processing of theassessment being for the purpose of determining the issue oftaxability on the share of the Assessee? (iv)Whether on the facts and in the circumstances of the casethe Ld. ITAT is right in law in accepting the Appeal of theAssessee ignoring the material aspect that the Assesseeparticipated in proceedings without challenging’ theReopening, Report of the DVO and the Valuation adopted inthe case of the Co-owner?the Ld. ITAT is right in law in accepting the Appeal of theAssessee ignoring the material aspect that the Assesseeparticipated in proceedings without challenging’ theReopening, Report of the DVO and the Valuation adopted inthe case of the Co-owner? (v) Whether on the facts and in the circumstances of the case,the order passed by the Ld. Income Tax Appellate Tribunal isperverse in nature and against law as it grossly overlookedthe scheme of the Income Tax Act, 1961 and materialavailable on record?the order passed by the Ld. Income Tax Appellate Tribunal isperverse in nature and against law as it grossly overlookedthe scheme of the Income Tax Act, 1961 and materialavailable on record? ?DAt the outset learned counsel for the respondent submits thatthe tax effect involved in this appeal is =53,56,436/-. However during thependency of the appeal, the assessee moved an application under Section154 of the Act before Assessing Officer and the order dated 28.01.2019 has ITA-336-2017 (O&M) been passed wherein the total tax effect has been determined atL44,.607,337/-. A copy of the order passed under Section 154 of the Act habeen produced in Court and the same is taken on record. 3,The said fact is not disputed by learned counsel for theappellant who has filed a copy of letter received from the Income TaxDepartment, Aayakar Bhawan, Panchkula showing that the tax effect is lessthan450,000,00/-. 4Learned counsel for the appellant-revenue states that since thetax effect involved is =44.67,837/-, he has instructions to withdraw thepresent appeal in view of circular No.03/2018, dated 11.07.2018 issued byITA-178-2016 Board of Direct Taxes, New Delhi. However, he has prayedthat liberty be granted to the revenue to file an application for revival of theappeal, in case something survives therein. been passed wherein the total tax effect has been determined atL44,.607,337/-. A copy of the order passed under Section 154 of the Act habeen produced in Court and the same is taken on record. 3,The said fact is not disputed by learned counsel for theappellant who has filed a copy of letter received from the Income TaxDepartment, Aayakar Bhawan, Panchkula showing that the tax effect is lessthan450,000,00/-. 4Learned counsel for the appellant-revenue states that since thetax effect involved is =44.67,837/-, he has instructions to withdraw thepresent appeal in view of circular No.03/2018, dated 11.07.2018 issued byITA-178-2016 Board of Direct Taxes, New Delhi. However, he has prayedthat liberty be granted to the revenue to file an application for revival of theappeal, in case something survives therein. 5Dismissed as withdrawn with liberty as prayed for. It is,however, clarified that withdrawal of the appeal by the revenue shall not betaken to be affirmation of order of the Tribunal on merits. Further, the legalissue as Claimed by the revenue is being left open to be adjudicated in anappropriate case. (AJAY KUMAR MITTAL)JUDGE 25.03.2019|anju (MANJARI NEHRU KAUL )JUDGE Whether speaking/reasoned?Whether reportable? Yes/NoYes/No