Shri Mayurdhavjsinh G. Parmar, Jamnagar V. The Income Tax Officer, Ward-2, Surendranagar

ITA 1010/AHD/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5819 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 09-08-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 08-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT , !'# $,%!& BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER #./ I.T.A. NO.1010/AHD/2014 ( / ASSESSMENT YEAR : 2010-11) [RAJKOT BENCH APPEAL TRANSFERRED FROM AHMEDABAD BEN CH] SHRI MAYURDHAVJSINH G.PARMAR CAUSE WAY ROAD SURENDRANAGAR / VS. THE ITO WARD-2 SURENDRANAGAR !* # ./ # ./ PAN/GIR NO. : ABXPP 3450 F ( *, / APPELLANT ) .. ( -*, / RESPONDENT ) *,. / APPELLANT BY : SHRI CHETAN AGARWAL, AR -*,/. / RESPONDENT BY : MS.USHA SHROTE, DR 01/2 / DATE OF HEARING 14/03/2018 34 /2 / DATE OF PRONOUNCEMENT 20/ 03 /2018 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTAN CE OF THE ASSESSEE AGAINST THE APPELLATE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-XVI, AHMEDABAD [CIT(A) IN SHORT] DATED 07/02/2014 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3) OF T HE INCOME TAX ITA NO.1010/AHD /2014 SHRI MAYURDHAVJSINH G.PARMAR VS. ITO ASST.YEAR 2010-11 - 2 - ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') D ATED 31/12/2012 RELEVANT TO ASSESSMENT YEAR (AY) 2010-11. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE RE AD AS UNDER:- HON.CIT(A) HAS ERRED IN CONFIRMING ADDITION MADE BY LEARNED A.O. OF RS.66,72,200/- CONSIDERING IT AS UNEXPLAINED/UNDISCLOSED INVESTMENT. HON.CIT(A) HAS ERRED IN CONFIRMING ADDITION MADE BY LEARNED A.O. OF RS.26,27,800/- BEING SHORT TERM CAP ITAL GAIN ON SALE OF PROPERTY. 3. BRIEFLY STATED, THE ASSESSEE FILED A RETURN OF I NCOME FOR AY 2010- 11 WHICH WAS SUBJECTED TO SCRUTINY ASSESSMENT. IN THE COURSE OF THE SCRUTINY ASSESSMENT, THE ACCOUNTS OFFICER NOTED THA T THE ASSESSEE HAS PURCHASED AND SOLD IMMOVABLE PROPERTY DURING THE YE AR WHICH IS NOT REFLECTED IN THE RETURN OF INCOME. THE AO ACCORDIN GLY MADE AN ADDITION OF RS.66,72,000/- ON ACCOUNT OF UNEXPLAINED INVESTM ENT TOWARDS PURCHASE OF THE PROPERTY AND RS.26,27,800/- TOWARDS SHORT TERM CAPITAL GAIN (STCG) ARISING ON SALE OF THE SAID PROPERTY. 4. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) WITHOUT ANY SUCCESS. 5. FURTHER AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL. ITA NO.1010/AHD /2014 SHRI MAYURDHAVJSINH G.PARMAR VS. ITO ASST.YEAR 2010-11 - 3 - 6. THE LD.AR FOR THE ASSESSEE AT THE OUTSET SUBMITT ED THAT THE SOURCE OF PROPERTY PURCHASED WAS DULY SUBMITTED BEFORE THE LOWER AUTHORITIES. IT WAS SUBMITTED THAT THE CONTRIBUTION OF RS.66,72,000 /- TOWARDS PURCHASE OF PROPERTY IS SOURCED BY THE FAMILY MEMBERS; NAMEL Y, (I) REKHABEN M.PARMAR RS.11,72,000/-, (II) HANSABA G.PARMAR RS.20,00,000/-, (III) G.B. PARMAR HUF RS.15,00,000/- & (IV) M.G.PARMAR HUF RS.20,00,000/-. THE LD.AR SUBMITTED THAT THE CONFI RMATION AS WELL AS THE RETURN OF INCOME OF THE FAMILY MEMBERS CONTRIBU TING TOWARDS PURCHASE WAS DULY PRODUCED BEFORE THE AO AS WELL AS THE CIT(A). THE LOWER AUTHORITIES HAVE BRUSHED ASIDE THESE EVIDENCE S AND CONFIRMED THE ADDITIONS IN THE HANDS OF THE ASSESSEE. THE LD.AR NEXT SUBMITTED THAT THE CAPITAL GAIN THEREON TOWARDS SALE WAS ONLY ABOU T LOSS OF RS.1,00,000/- WHICH WAS CONSIDERED INSIGNIFICANT CAPITAL LOSS AND THEREFORE NO FORMED PART OF THE RETURN OF INCOME. THE LD.AR SUBMITTED THAT THESE FACTS CAN BE EASILY VERIFIED. HE THUS SOUGHT DELETION OF THE ADDITIONS SO MADE. 7. THE LD.DR FOR THE ASSESSEE, ON THE OTHER HAND, R ELIED UPON THE ORDER OF THE CIT(A). 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS EVID ENCES PLACED AT PAGE NOS.1 TO 85 OF THE PAPER-BOOK. THE SHORT ISSUE IN CONTROVERSY IS TOWARDS MAINTAINABILITY OF ADDITIONS TOWARDS ALLEGED UNEXPL AINED INVESTMENT AND ITA NO.1010/AHD /2014 SHRI MAYURDHAVJSINH G.PARMAR VS. ITO ASST.YEAR 2010-11 - 4 - ALLEGED STCG ON SALE OF PROPERTY. WE FIND MERIT I N THE PLEA OF THE ASSESSEE THAT EVIDENCES WERE FILED TOWARDS CONTRIBU TION MADE BY THE FAMILY MEMBERS TO THE ASSESSEE WHICH EXPLAINS THE S OURCE OF INVESTMENT IN THE PROPERTY. IT IS THE CONSISTENT PLEA OF THE ASSESSEE THAT PAYMENT TOWARDS PURCHASE OF PROPERTY IS OUT OF SOURCE OF FA MILY MEMBERS. THIS FACT HAS NOT BEEN REBUTTED BY THE REVENUE. HOWEVER , IN THE SAME VAIN, WE NOTE THAT THE AO/CIT(A) HAS NOT MADE ANY ENQUIRY FR OM THE RESPECTIVE FAMILY MEMBERS ON THE CORRECTNESS OF THE CLAIM OF T HE ASSESSEE. THE AO HAS SIMPLY PROCEEDED ON THE FACT THAT THE PLOT/PROP ERTY WAS PURCHASED IN THE NAME OF THE ASSESSEE. THE QUESTION IN THE PRES ENT CASE IS THE SOURCE OF INVESTMENT IN THE PLOT AND NOT THE NAME IN WHICH THE PROPERTY HAS BEEN ACQUIRED. THEREFORE, WE CONSIDER IT EXPEDIENT THAT THE MATTER IS RESTORED BACK TO THE FILE OF THE AO TO EXAMINE THE CORRECTNE SS OF THE STAND OF THE ASSESSEE TOWARDS SOURCE OF CONTRIBUTION BY TAKING C OGNIZANCE OF THE CONFIRMATIONS OF THE RESPECTIVE FAMILY MEMBERS AND AFTER MAKING ENQUIRY IN THIS REGARD FROM THE FAMILY MEMBERS, IF NECESSAR Y. IT SHALL BE OPEN TO THE ASSESSEE TO SUPPORT ITS CLAIM TOWARDS SOURCE OF CONTRIBUTION BY FILING SUCH EVIDENCES AS MAY BE CONSIDERED APPROPRIATE. TH E OTHER ISSUE TOWARDS TAXABILITY AS WELL AS QUANTIFICATION OF COR RECT AMOUNT OF STCG IS INTEGRAL TO THE ISSUE. ACCORDINGLY BOTH THE ISS UES ARE SET ASIDE AND RESTORED BACK TO THE FILE OF THE AO IN TERMS OF THE DIRECTIONS NOTED ABOVE. THE AO SHALL DECIDE THE ISSUE IN ACCORDANCE WITH L AW. ITA NO.1010/AHD /2014 SHRI MAYURDHAVJSINH G.PARMAR VS. ITO ASST.YEAR 2010-11 - 5 - 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 20/ 03 /2018 SD/- SD/- ($) ( ) %! ! ( MAHAVIR PRASAD ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DATED 20/ 03 /2018 ..0,.%0../ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. *, / THE APPELLANT 2. -*, / THE RESPONDENT. 3. #8# 2 92 / CONCERNED CIT 4. 92 ( ) / THE CIT(A)-XVI, AHMEDABAD 5. ;<=%2%0 , , /DR,ITAT,RAJKOT 6. =H1 / GUARD FILE. / BY ORDER, -;2%2 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) %&, / ITAT, RAJKOT 1. DATE OF DICTATION ..14.3.18 (DICTATION-PAD 11- PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .. 14.3.18 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 20.3.18 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20.3.18 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER