LAXMIBEN MANJI PATEL, MUMBAI V. ITO WD 2, THANE

ITA 1239/MUM/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5803 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 22-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BRAJENDRA KUMAR LD
• Assessee Lawyers: BIMLENDU BHUSHAN LD
• Keywords: Business income
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMA R AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO. 1239/MUM/2017 ( / ASSESSMENT YEAR : 2010 - 11 ) SMT. LAXMIBEN MANJI PATEL 01, YOGESHWARKRUPA, DO N GRIPUL AT POST, MAHAD - 402301 / VS. ITO W ARD - 2 R. NO. 29 , B - WING , 6 TH FLOOR, ASHAR IT PARK, WAGLE INDUSTRIAL ESTATE, THANE - 400 604 ./ ./ PAN/GIR NO . A EJPP - 2824 - A ( / APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI BIMLENDU BHUSHAN LD AR REVENUE BY : SHRI BRAJENDRA KUMAR - LD. SR . DR / DATE OF HEARING : 14/09 /2021 / DATE OF PRONOUNCEMENT : 14/09/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR (AY) 2010 - 11 ARISES OUT OF THE COMMON ORDER OF LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 2 , THANE [ CIT(A)], DATED 29/12 /20 16 IN THE MATTER OF ASSESSMENT FRAMED BY LD. ASSESSING OFFICER (AO) U/S 143(3) R.W.S 147 ON 30/03/2016. THE IMPUGNED ORDER IS COMMON ORDER FOR AYS 2010 - 11 IN RESPECT TO 4 ASSESSEES I.E. (I)LAXMIBEN MANJI PATEL (ASSESSEE); (II) MANJI BHANJI PATEL; (III) NAROTTAM MANJI PATEL; (IV) VANITA MANJI PATEL. 2 2. DURING THE COURSE OF HEARING, BOTH THE REPRESENTATIVES CONVERGED ON THE POINT THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF LD. AO WITH SIMILAR DIRECTIONS AS GIVEN BY THE COORDINATE BENCH OF PUNE TRIBUNAL IN IT A NO S . 1242/MUM/2017 DATED 21 / 02 / 2020 PASSED IN CASE OF OTHER CO - OWNER FOR AY 2010 - 11 AS WELL AS IN THE CASE OF ASSESSEE FOR AY 2011 - 12. THE COPY OF THE ORDER HA S BEEN PLACED ON RECORD. 3. THE PERUSAL OF CASE RECORDS WOULD SHOW THAT THE ASSESSEE ALONG WITH OTHER CO - OWNERS SOLD CERTAIN PIECES OF LAND DURING THE YEAR BUT NO CAPITAL GAIN WAS REFLECTED IN THE RETURN OF INCOME. THE LD. AO COMPUTED BUSINESS INCOME OF RS .165.52 LACS ON SALE OF LAND AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. THE LD. CIT(A), VIDE COMMON ORDER DATED 29/12/2016, FOLLOWING APPELLATE ORDER OF ONE CO - OWNER NAMELY NAROTTAM PATEL FOR AY 2011 - 12 , CONFIRMED THE STAND OF LD. AO. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. WE FIND THAT IMPUGNED ORDER, IN THE CASE OF ONE OF THE CO - OWNER I.E. MANJI BHANJI PATEL, CAME UP FOR CHALLENGE BY THE ASSESSEE BEFORE PUNE TRIBUNAL VIDE ITA NO.1242/MUM/2017 & ORS. COMMON ORDER DATED 21/02/2020. DURING HEARING, I T WAS SUBMITTED THAT THE ASSESSEE HAD NOT TRANSFERRED ANY PIECE OF LAND WILLINGLY BUT THE TRANSFEREE COMPANIES GOT THE LAND TRANSFERRED IN THEIR NAME BY FRAUD AND MISGUIDING THE ASSESSEE. THE ASSESSEE DID NOT RECEIVE ANY CONSIDERATION AND FILED SUIT BEFORE COURT FOR REVOCATION AND CANCELLATION OF THE SALE AGREEMENTS / DEEDS. AFTER CONSIDERING THE SAME, THE BENCH HELD AS UNDER: - 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE RAISED IN THE PRE SENT APPEAL IS WITH RESPECT TO THE ALLEGED PROFIT RECEIVED ON SALE OF LAND. IT IS THE ASSESSEE S CONTENTION THAT THE ASSESSEE HAS NEVER RECEIVED ANY SALE CONSIDERATION AND HAS FILED SUIT BEFORE THE COURT OF ALIBAUG FOR REVOCATION AND CANCELLATION OF THE SA LE AGREEMENT/DEEDS. IN THE REVENUE RECORDS, THE NAME OF THE ORIGINAL OWNER HAS ALSO BEEN REGISTERED WHICH IS EVIDENT FROM THE COPY OF REVENUE RECORDS WHICH IS PLACED BY THE ASSESSEE IN THE PAPER BOOK. WE FIND 3 THESE DEVELOPMENTS WERE NOT AVAILABLE BEFORE TH E LOWER AUTHORITIES AT THE TIME OF DEALING WITH THE ISSUE. THEREFORE, IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE MATTER NEEDS TO BE RE - VERIFIED & RE - ADJUDICATED BY THE ASSESSING OFFICER AFTER CONSIDERING THE FACTUAL POSITI ON AND WE, THEREFORE, RESTORE THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER TO DECIDE THE MATTER AFRESH AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL GRANT REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSE E IN ACCORDANCE WITH LAW. THE ASSESSEE IS ALSO DIRECTED TO PRODUCE RELEVANT DOCUMENTS BEFORE THE ASSESSING OFFICER. THUS, GROUNDS RAISED BY THE ASSESSEE IN THE APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. SINCE SIMILAR PLEA HAS BEEN MADE BY LD. AR BEFORE US, WE RESTORE THE MATTER BACK TO THE FILE OF LD. ASSESSING OFFICER A FTER CONSIDERING THE FACTUAL POSITION AND DECIDE THE MATTER AFRESH AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL GRANT REASONABLE OPPORTU NITY OF HEARING TO THE ASSESSEE IN ACCORDANCE WITH LAW. THE ASSESSEE IS ALSO DIRECTED TO PRODUCE RELEVANT DOCUMENTS BEFORE THE ASSESSING OFFICER. THUS, GROUNDS RAISED BY THE ASSESSEE IN THE APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. 5. THE APPEAL STAND A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 14 TH SEPTEMBER , 2021. SD/ - SD/ - ( MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 14/09/2021 SR.PS, DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE 4 / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITA T, MUMBAI.