The Principal Commissioner Of Income Tax, Hisar v. Dr. R.s. Sangwan

ITA No. 361 of 2015 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ITA No. 361 of 2015 (O&M) Date of Decision: 3.12.2015 The Principal Commissioner of Income Tax, Hisar ....Appellant. Versus Dr. R.S. Sangwan ...Respondent. 1.Whether the Reporters of the local papers may be allowed to see the judgment?the judgment? 2.To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest?3.Whether the judgment should be reported in the Digest? CORAM:-HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.HON'BLE MR. JUSTICE RAMENDRA JAIN. PRESENT: Mr. Tajender K. Joshi, Advocate for the appellant. AJAY KUMAR MITTAL, J. 1.This appeal has been preferred by the revenue underSection 260A of the Income Tax Act, 1961 (in short “the Act”) against theorder dated 6.2.2015 (Annexure A-3) passed by the Income TaxAppellate Tribunal, Chandigarh Bench “B”, Chandigarh (hereinafterreferred to as “the Tribunal”) in ITA No. 492/CHD/2014, for theassessment year 2006-07, claiming the following substantial questionsof law:- i)Whether on the facts and circumstances of thecase, the Hon'ble ITAT has erred in notappreciating that the department has filedappeal before the Hon'ble High Court againstcase, the Hon'ble ITAT has erred in notappreciating that the department has filedappeal before the Hon'ble High Court against the order of Hon'ble ITAT setting aside the orderpassed under Section 263 of the I.T. Act, 1961,and ITAT ought to have kept the matter pendingas far as technical aspect of case is concerned?Whether the Hon'ble ITAT has not erred inholding that the order passed by the A.O. givingeffect to the order passed u/s 263 passed bythe CIT is invalid on technical ground and notdiscussing merits of the issues discussed in theassessment order? 3. Whether the Hon'ble ITAT has not erred in notappreciating the facts that in case thedepartment gets favourable order from theHon'ble High Court in the ITA filed by itchallenging the order passed by the ITATsetting aside the order passed under Section263 of the I.T. Act, the ITAT has no power toreview/revise its order? 2.Briefly stated, the facts necessary for adjudication of theinstant appeal as narrated therein may be noticed. The assessee filedhis return of income on 28.11.2006 for the assessment year 2006-07declaring the total income at ` 7,07,090/-. The return was processedunder Section 143(1) of the Act on 12.2.2007. Later on, the case wastaken up for scrutiny and notice under Section 143(2) of the Act wasissued on 28.3.2007. The Assessing Officer framed the assessmentvide order dated 21.10.2008 under Section 143(3) of the Act at a totalincome of ` 7,51,120/-. The assessee sold a house located at Vasant ITA No. 361 of 2015-3- 2.Briefly stated, the facts necessary for adjudication of theinstant appeal as narrated therein may be noticed. The assessee filedhis return of income on 28.11.2006 for the assessment year 2006-07declaring the total income at ` 7,07,090/-. The return was processedunder Section 143(1) of the Act on 12.2.2007. Later on, the case wastaken up for scrutiny and notice under Section 143(2) of the Act wasissued on 28.3.2007. The Assessing Officer framed the assessmentvide order dated 21.10.2008 under Section 143(3) of the Act at a totalincome of ` 7,51,120/-. The assessee sold a house located at Vasant ITA No. 361 of 2015-3- Vihar, New Delhi for a sale consideration of ` 4,51,00,000/- vide saledeed dated 11.11.2005 during the previous year relevant to theassessment year 2006-07 which was purchased by him as sole buyer on24.12.1974. The assessee had declared capital gains corresponding to1/6[th] share of the property and as such the Assessing Officer acceptedthe capital gains so declared. The then Commissioner of Income Tax (forbrevity “the CIT”) on examining the assessment record found theassessment order dated 21.10.2008 passed by the Assessing Officerunder Section 143(3) of the Act to be erroneous as well as prejudicial tothe interest of the revenue. The CIT vide order dated 7.3.2011(Annexure A-4) passed under Section 263(1) of the Act set aside theaforesaid order of the Assessing Officer holding that the property inquestion was solely owned by the assessee and has to be assessed inhis hands alone. Further, the CIT had held the order of the AssessingOfficer to be erroneous and prejudicial to the interest of the revenue anddirected the Assessing Officer to make fresh assessment on all theissues after affording due opportunity of hearing to the assessee.Feeling aggrieved, the assessee filed an appeal before the Tribunal whovide order dated 30.4.2013 (Annexure A-5) set aside the revisional orderpassed under Section 263 of the Act and restored that of the orderpassed by the Assessing Officer. Being dissatisfied, the revenuechallenged the order dated 30.4.2013 (Annexure A-5) before this Courtvide ITA No. 352 of 2015. During the pendency of the appeal of theassessee against the order dated 7.3.2011 (Annexure A-4) before theTribunal, the Assessing Officer re-framed the assessment under Section143(3) of the Act vide order dated 26.12.2011 (Annexure A-1) andenhanced the income of the assessee from ` 7,51,120/- to ` 2,57,56,820/-. Against the order, Annexure A-1, the assessee filed anappeal before the Commissioner of Income Tax (Appeals) [in short “theCIT(A)”]. The CIT(A) vide order dated 20.2.2014 (Annexure A-2) allowedthe appeal holding that the Tribunal in its order dated 30.4.2013(Annexure A-5) had restored the original assessment order dated21.10.2008 and set aside the order dated 7.3.2011 (Annexure A-4) of theCIT and, therefore, the order dated 26.12.2011 (Annexure A-1) passedby the Assessing Officer had become invalid and stands cancelled. Therevenue challenged the order, Annexure A-2, before the Tribunal by wayof an appeal. The Tribunal vide order dated 6.2.2015 (Annexure A-3)upheld the order of the CIT(A) and dismissed the appeal. Hence, thepresent appeal by the revenue. 3.We have heard learned counsel for the appellant-revenue. 4.The Tribunal had dismissed the appeal of the revenue videorder dated 6.2.2015 (Annexure A-3) on the ground that it had cancelledthe order dated 7.3.2011 (Annexure A-4) under Section 263 of the Actpassed by the CIT. This Court vide order of even date passed in ITA No.352 of 2015, has upheld the order of the Tribunal dated 30.4.2013(Annexure A-5) cancelling the revisional order. Accordingly, nosubstantial question of law arises in this appeal and the same is herebydismissed. (AJAY KUMAR MITTAL) JUDGE December 3, 2015 gbs (RAMENDRA JAIN) JUDGE