TMI Blog2019 (4) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... t aside back to the file of the AO with a direction to pass a speaking order in accordance with law. - Remanded before AO - ITA No. 301/CHD/2017 - - - Dated:- 1-4-2019 - SMT. DIVA SINGH, JUDICIAL MEMBER For The Assessee : None For The Revenue : Smt. Chanderkanta, Sr. DR ORDER The present appeal has been filed by the assessee assailing the correctness of the order dated 05.12.2016 of CIT(A)-2, Chandigarh pertaining to 2009-10 assessment year on the following grounds : 1. That the order of the Ld. Commissioner of Income Tax (Appeals) - 2, Chandigarh is defective both in law and facts of the case. 2. That the Ld. CIT (A) - 2, Chandigarh is unjustified in upholding the re-assessment framed u/s 147 r.w.s. 148 of the I.T. Act, 1961 by the Ld. Assessing Officer which is bad in law as the reasons recorded were on the basis of incomplete version of notification without any proof and proper satisfaction. 3. That the Ld. CIT (A) - 2, Chandigarh is unjustified in upholding the order of the Ld. Assessing Officer regarding addition of ₹ 24,64,857/- under the head Long Term Capital Gains as the agricultural land sold by the appellant is not a capi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this ground from the form of appeal was not willful, this ground of appeal is admitted for adjudication as per the provisions of section 250(5) of the Act. The assessing Officer formed his reasons to believe that some income had escaped assessment and so issued notice u/s 148 of the Act. It has been held by Hon'ble Supreme Court in the case of ACIT vs. Rajesh Jhaveri Stock Brokers Pvt. Ltd. (291 ITR 500) that at the stage of issue of notice u/s 148, the only question to be seen is whether there was relevant material, on the basis of which a reasonable person could have formed the requisite belief. Whether material would conclusively prove escapement of income is not the concern at the stage of issue of notice u/s 148. It is so because the formation of belief is within the realm of the subjective satisfaction of the Assessing Officer. In view of the judgment of Hon'ble Supreme Court (supra) and by respectfully owing the same, the action of the Assessing Officer of re-opening the assessment is held. This additional ground of appeal taken by the appellant is dismissed. 6. Aggrieved the assessee is in appeal. However, in the absence of any material on record by way of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not filed even a single case of sale effected through Registry to support his claim. The AO, accordingly, obtained copies of sale deeds of five cases from the office of Registrar, Ropar and taking the average @ ₹ 279.43 per marla computed the long term capital gain and after allowing benefit u/s 54F to the assessee which resulted in the addition of ₹ 24,64,857/- as long term capital gains. 8. In appeal before the First Appellate Authority, the assessee assailed the action stating that the ancestral land had been acquired before 1981 and the cost of acquisition had been computed on the basis of Fair Market Value as on 01.04.1981 as assessed by the Government approved valuer. The action of the AO in relying upon the sale instances were assailed on the reasoning that the value of every property varies and is dependent on various factors. Reliance was placed upon report of the valuer which so as to argue that the assessee's land was not situated on a prime location on the national highway. The AO s arbitrary estimation was assailed on various other grounds including the ground that the AO was not a technical person. 8.1 These submissions did not find favour with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicate upon the issue. The first Appellate Authority under the Act and the Rules had ample powers to call for the Report from the Land Revenue Authorities and also direct the AO to place a Remand Report on record after obtaining the DVO s Report. It is well settled that if the version of the assessee relying on the Approved Valuer s Report was to be discarded, then the tax authorities necessarily need to refer the matter to the DVO. Similarly even on the issue of location of the specific property, the law is well settled that it is the word of the Land Revenue Authorities which is the last word. As noted in order dated 19.03.2019 in ITA No. 340/CHD/2017 Shri Iqbal SinghIt, The State expects the tax administrators to act fairly and competently in the performance of their fundamental and onerous duty to collect taxes on its behalf. However, it is well settled and non negotiable that the taxes so to be collected need to satisfy the touchstones of just and due taxes. The word just presupposes fairness in the actions of the tax administrators who are acting for and on behalf of the Government of India. The mind set needs to be re-oriented to consciously acknowledge that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Officers should take the initiative in guiding a taxpayer where proceedings or other particulars before them indicate that some refund or relief is due to him. This attitude would, in the long run, benefit the Department for it would inspire confidence in him that he may be sure of getting a square deal from the Department. Although, therefore, the responsibility for claiming refunds and reliefs rests with assessees on whom it is imposed by law, officers should :- (a) draw their attention to any refunds or reliefs to which they appear to be clearly entitled but which they have omitted to claim for some reason or other; (b) freely advise them when approached by them as to their rights and liabilities and as to the procedure to be adopted for claiming refunds and reliefs. 10.2 On a reading of the above, the Executive intent evident by the Board s Circular, unambiguously makes it clear that the tax authorities are not expected to encash for the State Exchequer the ignorance of the assessee. The Circulars are binding on the tax authorities is well settled. This aspect has very recently been noticed by the Hon'ble Madras High Court in W.P.No. 3849 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and securing reliefs. . Although, therefore, the responsibility for claiming refunds and reliefs rests with the assessees on whom it is imposed. 10.4 Considering the decisions and the Circular as recently considered by the Hon'ble Madras High Court there can be in no doubt that the assessee cannot be made to pay more tax than is legitimately due from him. The Hon'ble Apex Court in CIT Vs Mahendra Mills had taken note of the relevant provisions then applicable to the claim of depreciation and held that the officer is required to do no more then to advise the assessee. The relevant extract is reproduced hereunder for the sake of completeness: Income-tax Officer in such a case is required to compute the income without allowing depreciation allowance. Circular of the Board dated April 11, 1955 is of no help to the Revenue. It imposes merely a duty on the officers of the department to assist the tax-payers in every reasonable way, particularly, in the matter of claiming and securing relief. The Officer is required to do no more than to advise the assessee. It does not place any mandatory duty on the officer to allow depreciation if the assessee does not want to claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancial nuances and Taxing Statutes coupled with computer literacy has remained restricted to a large extent only to a few experts. The tax authorities constitute some of these few elites who have been equipped by the State by providing training and courses in order to hone the skill and competence with the use of cutting edge technology. I am of the view that the rash attitude of adopting the dangerous policy and philosophy of us against them in a free nation is to be strongly repelled and crushed. The ignorance and helplessness of the masses who are required to address the values of their inherited property, sales etc. of agricultural lands etc. before the tax authorities glaringly stand out as every day examples of some failure and malaise. The tax administration is not expected to collect taxes based on the ignorances of the assessee but is expected to ensure that in the discharge of their duties and responsibilities, the citizens on behalf of whom the tax administration functions are advised, counseled and guided towards tax compliances. 8.3 In the facts of the present case, the evidence of exact location of the land and the value thereof based on a Valuation Report a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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