TMI Blog2017 (10) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... ut by the Ld.A.R if the additional evidence is not considered it would cause not only financial injury to the assessee but also injustice and it had direct impact on the market value of the property. Therefore, in the interest of justice we admit the additional evidence and remit the entire matter back to the file of the assessing officer to consider the additional evidence submitted by the assessee and to redo the assessment denovo. Assessing officer may take the help of DVO and decide the issue afresh on merits. Appeal of the assessee on this ground is allowed for statistical purpose. - I.T.A. No. 27, 26/Viz/2017 - - - Dated:- 6-10-2017 - Shri V. Durga Rao, Judicial Member And Shri D. S. Sunder Singh, Accountant Member Appellant by : Shri I. Kama Sastry, AR Respondent by : Shri R.Govindarajan, DR ORDER Per D. S. Sunder Singh, Accountant Member 1. These appeals are filed by the assessee against the orders of the Commissioner of Income Tax (Appeals) [CIT(A)]-2, Visakhapatnam vide ITA No.142/2015-16/CIT(A)-2/W-4(2)/VSP/2016-17 dated 04.11.2016 and ITA No.141/2015-16/CIT(A)-2/W-4(2)/VSP/2016-17 dated 04.11.2016 for the assessment year 2012-13. Since the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Year Date of Registration before SRO Dwarakanagar Value as per sale deed executed Rs. SRO, Dwarakanagar registered value Rs. 1. 1826/2011 07.07.2011 30,00,000 48,00,000 2. 1789/2011 28.06.2011 1,25,00,000 6,90,34,000 3. 1788/2011 28.06.2011 2,50,00,000 12,68,08,000 4. 1827/2011 07.07.2011 10,00,000 22,14,000 4,15,00,000 20,28,64,000 3.1. The assessee is 1/3rd share holder of above properties. Since there was a difference in the valuation as per the stamp valuation authorities and the consideration as per the sale deeds executed, the assessing officer proposed to invoke the provisions of 5OC of I.T.Act and adopt the market value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal before this Tribunal. During the appeal hearing, the Ld.AR pressing the ground No.3 related to adoption of value as per section 50C of IT Act submitted the additional evidence and filed petition for admission of additional evidence. The additional evidence filed by the assessee was relating to the disputes of the property such as the court orders, surplus land declared under the Urban Land Ceiling Act and the evidence for filing Writ Petition before Hon ble High Court of Andhra Pradesh in WPSR 115303/2012 dated 13.07.2012 against the Government of Andhra Pradesh challenging the orders of Urban Land ceiling authorities declaring the impugned land as surplus land. The Ld.AR argued that the subject land was given on lease for 99 years by a registered document No.1138/1964 on 22.04.1964 in favour of Andhra Pradesh Electronic Construction and Equipment Company Ltd. (APEEC Ltd.) and the unexpired period of lease was 50 years as on the date of sale.. The lease amount was ₹ 3,000/- per annum and at the time of sale, there was unexpired period of about 50 odd years remained as per the lease agreement. Further out of the total extent of 15,056 sq.yds, the assessee had sold the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s less than the market value. Since the title of the land is in dispute with the ULC the vendees M/s Bhiragacha Finance Co. Pvt. Ltd, Kolkata and M/s ECE Industries Ltd., New Delhi. have also joined the assessee and filed writ petitions before the Hon ble High Court of AP in WPSR No.115303/2012 dated 13.07.2012 and WPSR No.66335/2012 dated 24.04. 2012. The Ld.AR submitted that as on the date, the writ petitions are still pending. The Ld.AR argued that when the land is subject to litigation, and the lease period did not expire and unexpired lease period standing at 50 years and the title of the land is in dispute it is impossible to get the fair price to any landlord and the assessee had been compelled to sell the land for whatever the price it may fetch. The Ld.AR further submitted that there was no proper approach also for the land. The Ld.AR further submitted that the assessee does not have financial capacity to make the payment of huge demand raised by the assessing officer by adopting 50C for capital gains. The Ld.AR stated that the assessee had agreed for the addition at the time of assessment to purchase peace with the department, but not aware of the consequences and repercu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich show cause notice was issued. Even though opportunity was given by the Ld.CIT(A), none appeared before the Ld.CIT(A) and did not avail the opportunities. Therefore, Ld.DR vehemently opposed the admission of additional evidence and argued that appeal be decided on merits as per the information available on record without admission of additional evidence. 6. We have heard the rival submissions and perused the material placed on record. In this case, the assessee has sold the property for a consideration of ₹ 4,15,00,000/- against the valuation as per the stamp valuation authorities at ₹ 20,28,64,000/- which is four times greater than the the actual sale consideration. The assessee is 1/3rd share holder in the property, hence received 1/3rd share of ₹ 4,15,00,000/-. The assessing officer computed the capital gains of assessee s share at ₹ 6,47,86,542/- and determined the tax demand at ₹ 1,78,32,460/-, against the consideration of ₹ 1,38,33,000/- received as per the sale deed. The subject land was under litigation with Urban Land Ceiling authorities who passed an order u/s 8(4) of Urban Land Ceiling Act declaring the impugned land as surplus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before it . 9. It would thus, be noticed that where additional evidence enables the Tribunal to pass orders or for any other substantial cause it could required the parties to do so. There is no gainsaying that while this power could be exercised by the Tribunal suo motu the jurisdiction vested in the Tribunal could be got invoked at the instance of one of the parties before it 11. While pp.2 to 5 are copies of correspondence entered between the assessee and the HUF landlord during the relevant period, copies 6 and 7 constitute a letter of almost the same period which emanated from the Asstt. General Manager, Union Bank of India, Bombay-2, containing terms of lease and the advance of loan of ₹ 11.40 lacs. 12. If we go through the grounds of appeal taken by the assessee in these two appeals which are similar, the first ground challenges the disallowance of interest paid by the assessees in a sum of ₹ 1,16,250 each to the bank which they claimed Was for business purposes while held to be otherwise by the D p rtment. Similarly, the other substantial dispute in these appeals is in respect of the treatment of the amount of deposit in a sum of R. 7.75,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to the Tribunal in passing orders or required to be admitted for any 'other substantial cause', it would rather be the duty of the Tribunal to admit them. Learned Judicial Member has rightly made reference to the Tribunal's decision in Rajmoti Industries' case (supra) wherein on an analysis of various decisions, it was held that is the receipt or admission of additional evidence was vital and essential for the purpose of consideration of the subject-matter of appeal and arrive at a final and ultimate decision, the Tribunal was amply empowered to admit additional evidence under r. 29 referred to supra, 13. In this connection, reference may be made much more authoritatively to a decision of the Apex Court in the case of K. Venkataramiah Vs. A. Seetharama Reddy AIR 1963 SC 1526, wherein their Lordships of Supreme Court had occasion to interpret and outline the object of r. 27 or the Order 41 of the CPC, 1908. Interestingly, the language of Order 41 r. 27 CPC and r. 29 of the Tribunal Rules is almost the same inasmuch as with a little different wording r. 27 of Order 41 of the CPC also says that parties to an appeal shall not be entitled to produce addit ional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al cause as found in r. 27(1)(b) Order 41 of the Code. Further, such a defect may be pointed out by a part but as held by the Privy Council in a decision in Psarsotim Thakur vs. Lai Mahar Thakur AIR 1931 PC 143, the requirement must be the requirement of the Court upon its appreciation of evidence as it stands. 15. The powers that are vested in the Tribunal in the matter of admission of additional evidence, therefore, are identical to the power vested in an Appellate Court under the CPC. The two provisions as has been noticed are not only similar but identical and that be so the view taken by the Hon ble Supreme Court while interpreting the relevant CPC provisions applies in law with equal force to the Tribunal while exercising powers under s.29 of the Tribunal Rules, 1963. 16. I am, therefore, inclined to agree more with the learned Judicial Member and answer question no.1 accordingly. 6.1. From the decision of the Hon ble 3rd Member, the powers are vested in Tribunal in the matter of admission of additional evidence and the additional evidence produced by the assessee is crucial to decide the appeal as discussed in detail in the submissions of the Ld.A.R. From c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entical to the appeal in ITA No.27/Vizag/2017, hence these grounds are remitted back to the file of the assessing officer to redo the assessment denovo after considering the additional evidence filed by the assessee. 9. Ground no.4 is related to the jurisdiction of the assessing officer. Ld.AR argued that the assessee is a salaried employee and the assessing officer has no jurisdiction to pass the assessment orders. The jurisdiction of the salaried employees vests with the Range-2, hence, according to the Ld.AR assuming the jurisdiction by assessing officer in Range 4 is erroneous and the order passed by the ITO-4(2) is without jurisdiction and required to be quashed. Ld.AR relied on the orders of the Hon ble ITAT, Bangalore Bench in 116 TTJ 0076(2008) in the case of Ziaulla Sheriff Vs. ACIT (International Taxation) and the decision of the Hon ble Calcutta High Court [372 ITR 83]. 10. We have heard the rival parties and perused the material placed on record. The assessing officer has issued the notice u/s 143(2) on 06.08.2013 and subsequently notices were issued by the assessee duly served on the assessee and the assessee has complied with the notices and cooperated during th ..... 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