Yeshwant Vishnu Apte, Pune V. Income-tax Officer,

ITA 1057/PUN/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9490 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 07-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 20-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHIVANAND H KALAKERI
• Section: 143(3); 5(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE , , , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI , AM . / I TA NO. 1057 /PUN/20 14 / ASSESSMENT YEAR : 2008 - 09 YESHWANT VISHNU APTE FLAT NO.3, GAUTAM APARTMENT, BEHIND CONGRESS HOUSE, SHIVAJINAGAR, PUNE - 411 005 PAN : AAZPA4608B ....... / APPELLANT / V/S. INCOME TAX OFFICER, WARD NO - 5(2) PUNE. / RESPONDENT A PPELLANT BY : NONE R EVENUE BY : SHRI SHIVANAND H. KALAKERI / DATE OF HEARING : 18.05.2017 / DATE OF PRONOUNCEMENT : 24.05.2017 / ORDER PER SUSHMA CHOWLA , JM THIS PRESENT APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (A) - III, PUNE DATED 12.02.2014 RELATING TO ASSESSMENT YEAR 2008 - 09 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT , 1961 ( IN SHORT THE ACT). 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE APPELLANT HAD TRANSFERRED THE PORTION OF LAND ADM 1000 SQ.MT IN THE LAND SITUATED AT S. NO. 27/2 OF VILLAGE BANER THROUGH DEVELOPMENT AGREEMENT AND POWER OF ATTORNEY & POSSESSION 2 ITA NO. 1057/PUN/2014 A.Y. 2008 - 09 RECEIPT EXECUTED ON 10 TH JULY 2007 IN FAVOUR OF M/S YATIRAJ REALTY BY DISREGA RDING THE DOCUMENTARY EVIDENCE, DEMONSTRATING THAT THE PHYSICAL POSSESSION OF THE LAND WAS NEVER GIVEN TO M/S YATIRAJ REALTY. 2. THE LEARNED CIT(A) ERRED IS NOT CONSIDERING THAT M/S YATIRAJ REALTY HAVE NOT DEVELOPED SAID LAND ON THE BASIS OF THE DEVELOP MENT AGREEMENT NEITHER ACTED UPON THE POWER OF ATTORNEY FROM 2007 - 2014. 3. THAT THE LEARNED CIT APPEAL FAILED TO APPRECIATE THAT APPELLANTS CLAIM OF OWNERSHIP AND ACTUAL POSSESSION WAS DENIED BY MARUTI SHRIPATI DHANKUDE AND OTHERS AND HENCE APPELLANT FILED REGULAR CIVIL SUIT NUMBER 1648/2002 IN THE COURT OF CIVIL JUDGE, JUNIOR DIVISION, PUNE ON 21/11/2002 FOR DECLARATION FOR HIS OWNERSHIP RIGHTS AND OF POSSESSION AND IN THE SAID SUIT MARUTI SHRIPATI DHANKUDE, DHANAJI SHR IPATI DHANKUDE AND HARISHCHANDRA SHRIPATI DHANKUDE ( DEFENDANT NO.5,6 & 7 IN SAID SUIT) HAVE DENIED APPELLANTS OWNERSHIP RIGHTS AND POSSESSION AND QUESTION OF APPELLANTS OWNERSHIP & POSSESSION IN SUB JUDICE FROM 2002. 4. THAT THE LEARNED CIT(A) FAILED TO MAKE PROPER INQUIRY IN THE MATTER : 5. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 6247034/ - MADE BY THE A.O. ON ACCOUNT OF LONG TERM CAPITAL GAIN ARISING ON SALE. THE APPELLANT PRAYS FOR DELETION OF THE ADDITION. 6. THE APPELLANT CRAVE S LEAVE TO ADD TO, AMEND, MODIFY OR WITHDRAW ANY OR ALL GROUNDS OF APPEAL. 3. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE NOE A NY APPLICATION WAS MOVED FOR ADJOURNMENT. THIS PRESENT APPEAL WAS FIXED FOR HEARING ON SEVERAL DATES FRO M 17.07.2015 AND THE ASSESSEE SOUGHT ADJOURNMENT ON 17.07.2015, 03.11.2015, 03.03.2016 AND 30.05.2016. THEREAFTER, ON 07.09.2016 AND 01.12.2016, NONE APPEARED ON BEHALF OF THE ASSESSEE AND THE MATTER WAS FINALLY ADJOURNED TO 07.03.2017. THE ASSESSEE SOUGHT ADJOURNMENT ON THE SAID DATE AND THE MAT TER WAS ADJOURNED TO 18.05.2017, WHEN NONE APPEARED. WE PROCEED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE LD. DR FOR THE REVENUE. 4. THE ISSUE RAISED IN THE PRESENT APPEAL IS IN RELATION TO COMPUTATION OF LO NG TERM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. IN THE GROUNDS OF APPEAL, THE ASSESSEE ALLEGED THAT PHYSICAL POSSESSION OF THE LAND WAS NEVER GIVEN TO THE DEVELOPERS AND NO LAND HAS BEEN DEVELOPED FROM YEAR 2007 TO 2014. NO 3 ITA NO. 1057/PUN/2014 A.Y. 2008 - 09 LONG TERM CAPITAL GAIN IS ASSESSABLE IN THE HANDS OF THE ASSESSEE IN THE RELEVANT ASSESSMENT YEAR. THE PLEA OF THE ASSESSEE IS THAT THERE WAS SEVERAL DISPUTES REGARDING LAND AND THE QUESTION OF ASSESSEES OWNERSHIP AND POSSESSION IS SUB - JUDICE D FROM 2004. UNDER PROVISION OF INCOME TAX ACT, 1961, HANDING OVER OF POSSESSION OF LAND IS ONE OF THE MAIN CON DI TIONS TO BE FULFILLED FOR TRANSFERRING ANY IMMOVABLE PROPERTY AND RIGHTS IN IMMOVABLE PROPERTY BEING LAND OR LAND AND BUILDING. THE ASSESSEE CLAIMS IN THE PRESENT APPEAL THAT HIS RI GHTS IN THE SAID LAND ARE SUB - JUDICE D BY WAY OF CIVIL SUIT. HE FURTHER CLAIMS NOT TO HAVE HANDED OVER ANY POSSESSION OF THE LAND TO THE DEVELOPERS FOR THE DEVELOPMENT OF THE PROPERTY AND ALSO NO DEVE LOPMENT OF THE PROPERTY HAS TAKEN PLACE. 5. IN VIEW OF T HE AFORESAID FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT NECESSARY EVIDENCE IN THIS REGARD IS TO BE LOOKED INTO TO ADJUDICATE THE ISSUE OF COMPUTATION OF THE LONG TERM CAPITAL GAIN. THUS, IN VIEW OF TH E ABOVE FACTS AND CIRCUMSTANCES AND THE GROUN D OF APPEAL RAISED BY THE ASSESSEE IN THIS REGARD, WE DE EM IT FIT TO RESTORE THE MATTER BACK TO THE FILE O F ASSESSING OFFICER AND DIRECT THE ASSESSEE TO FURNISH NECESSARY EVIDENCE BEFORE THE ASSESSING OFFICER, WHO SHALL ADJUDICATE THE ISSUE IN ACCORDANCE WITH L AW AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. IN THE RESULT, GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRO NOUNCED ON 24 TH DAY OF MAY , 201 7 . SD / - SD/ - (ANIL CHATURVEDI) ( SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 24 TH MAY , 2017 . SB 4 ITA NO. 1057/PUN/2014 A.Y. 2008 - 09 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) - III, PUNE. 4. THE CIT - III, PUNE. 5 . , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. // TRUE COPY // / BY ORDER, /ASSISTANT REGISTRAR , / ITAT, PUNE 5 ITA NO. 1057/PUN/2014 A.Y. 2008 - 09