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TMI Blog2020 (8) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... findings given above and in view of the various case laws as discussed above, we have no hesitation to hold that the additional income was returned by the assessee perhaps under force, pressure, threat or coercion and under the mistaken belief. The assessee, in our view, was not liable to pay tax on the said additional income returned. We accordingly direct the Department to refund the taxes, if any, paid by the assessee in respect of additional income offered during the survey action. Even as per the provisions of sub section (4) and sub section (5) of section 250 of the Act, it was required of the CIT(A) to look into grounds taken by the assessee which were based on documentary evidence in the shape of Court orders and adjudicate upon them so as to determine the correct tax liability of the assessee. In view of this, the impugned orders of the CIT(A) which have been passed without considering the pleas taken by the assessee are not sustainable in the eye of law. However, the issue is required to be restored to the file of the CIT(A) for decision afresh. Appeal of assessee allowed for statistical purposes. - ITA No. 194 to 197/Chd/2020 & S.A. Nos. 13 to 16/CHD/2020 - - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient reasons for not determining the ALV of property No.13 as per the provisions of the Income Tax Act. The Assessing Officer, therefore, determined the ALV of Property No. 13 as per market rate and accordingly made the impugned additions after giving the benefit to the assessee of statutory deductions. 6. Being aggrieved by the above order of the Assessing Officer, the assessee preferred appeals before the CIT(A). Before the Ld. CIT(A), the assessee took the stand that Property No.13 was self-occupied property, hence, as per the provisions of the Income Tax Act, no ALV could have been determined. So far as Property No. 73 is concerned, the assessee submitted that there was a restrain order passed by the Hon'ble High Court (in CS (OS) Appeal No. 1863/2006) not only in respect of Petition filed by M/s Ishvakoo Grand Plaza i.e. tenant in the property against the then Landlord of the property from whom the assessee has purchased the property in the year 2005, wherein, the said tenant M/s Ishvakoo Grand Plaza had taken the plea that he had preemption right and that he should be given first offer to purchase the property at the rate at which the same was sold to the assessee. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A perusal of the above order of the Hon'ble Delhi High Court reveals that firstly the property was sealed by the MCD. Secondly, that there was a restriction put by the Hon'ble Delhi High Court for further letting out of property without consent of M/s Ishvakoo Grand Plaza. However, there was no restriction for the self-occupation of the property after getting it de-sealed from the MCD. The Ld. Counsel, therefore, has relied upon the paper book pages 10 to 13 to submit that the property, in fact, was desealed in the year 2010 by the MCD. That prior to that, the property was sealed by the MCD, hence, the assessee was not able to rent out the property. The assessee could not use if for self-occupation also. It has been submitted that the property No.13 was, in fact, self-occupied by the assessee. However, the Ld. CIT(A) has not given any findings on any of the plea taken by the assessee before him. The order of the CIT(A) is silent relating to all these aspects. The plea taken by the assessee is based on documentary evidence which should have been required to be looked into by the CIT(A) as the powers of the CIT(A) are co-terminus with that of the Assessing Officer. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had taken a number of grounds of appeal, however, the inclusion of the said amount of interest was not challenged. The inclusion of the said amount of interest was not objected to even in the grounds of appeal as originally filed before the Tribunal. However, the assessee by way of subsequent letter raised the additional ground in relation to the said inclusion of interest into the income of the assessee. In the above circumstances, the question before the Hon ble Supreme Court was Where on the facts found by the authorities below a question of law arises (though not raised before the authorities) which bears on the tax liability of the assessee, whether the Tribunal has jurisdiction to examine the same? The Hon ble Supreme Court while answering the said question observed that under section 254 of the Income Tax Act, the power of the Tribunal in dealing with the appeals is expressed in the widest possible terms; the power of the Tribunal under section 254 is not restricted only to decide the grounds which arise from the order of the Commissioner of Income Tax (Appeals); that both the assessee as well as the department have a right to file an appeal/cross objection before the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee is entitled to raise not merely additional legal submissions before the appellate authorities, but is also entitled to raise additional clams before them. The appellate authorities have jurisdiction to deal not merely with additional grounds, which became available on account of change of circumstances or law, but with additional grounds which were available when the return was filed. The words could not have been raised must be construed liberally and not strictly. There may be several factors justifying the raising of a new plea in an appeal and each case must be considered on its own facts. The co-ordinate bench of the Tribunal in the case of Shri Chandrashekhar Bahirwani ITA No.7810/M/2010 and 6599/M/2011 vide order dated 17.06.2015 while deciding the question as to whether the income cannot be assessed less than the returned income has observed as under: 5. Now coming to the finding of the Ld. CIT(A), that income cannot be assessed less than the returned income, the Ld. A.R. of the assessee has submitted before us that the action of the Ld. CIT(A) in rejecting the claim of the assessee on this ground was not justified. He has further relied upon the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the Income Tax Authorities to charge the legitimate tax from the tax payers. They are not there to punish the tax payers for their bonafide mistakes. In view of our above observations, it is held that the assessee is not liable to pay Capital Gains Tax, though originally he had subjected himself to the said tax as per his return of income. The AO is directed to process the claim of refund in this respect as per provisions of the law. 21. In view of the above observation, we hold that the Ld. CIT(A) though, rightly admitted the question of law as to whether the income offered by the assessee in the return of income consequent to offer made in his statement recorded during the survey action can be challenged before the appellate authority, but wrongly decided the same in favour of revenue. In view of our findings given above and in view of the various case laws as discussed above, we have no hesitation to hold that the additional income was returned by the assessee perhaps under force, pressure, threat or coercion and under the mistaken belief. The assessee, in our view, was not liable to pay tax on the said additional income returned. We accordingly direct the Department to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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