VANITA MANJI PATEL, RAIGAD V. ITO WD 2, THANE

ITA 1241/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9733 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 22-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K BEPARI
• Keywords: Capital asset; Business income

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) I.T.A. NO. 1241 /MUM/ 2017 (ASSESSMENT YEAR 20 1 0 - 11 ) SMT.VANITA MANJI PATEL 01, YOGESHWAR KRUPA DONGRI PUL, AT POST MAHAD MAHARASHTRA - 402 301. PAN NO. AKPPP6795C VS. I TO WARD 2 ROOM NO. 29 B WING, 6 TH FLOOR ASHAT IT PARK THANE - 400 604. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI BIMLENDU BHUSHAN DEPARTMENT BY SHRI S.K. BEPARI DATE OF HEARING 11.9. 201 7 DATE OF PRONOUNCEMENT 11 . 9 . 201 7 O R D E R THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 29.12.2016 PASSED BY THE LEARNED CIT(A) - 2, THANE AND IT RELATES TO A.Y. 2010 - 11. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LEARNED CIT(A) IN CONFIRMING THE ADDITION OF ` 24.73 LAKHS RELATIN G TO PROFIT REALISED ON SALE OF LAND. 2. LEARNED AR SUBMITTED THAT THE ASSESSEE ALONG WITH THREE OTHER CO - OWNERS HAD PURCHASED CERTAIN PARCEL S OF LAND AND TRANSFERRED THE SAME TO A CLOSELY HELD COMPANY NAMED M/S. RAIGAD INFRA PROJECTS LIMITED. THE ASSESS EE AND OTHER CO - OWNERS ENTERED TRANSACTIONS OF PURCHASE ON BEHALF OF THE ABOVE SAID COMPANY ONLY AND HENCE THEY DID NOT DECLARE ANY GAINS ON SALE OF LAND TO THE ABOVE SAID COMPANY. THE ASSESSING OFFICER, HOWEVER, TREATED THE SAME AS BUSINESS TRANSACTION A ND ACCORDINGLY ASSESSED A SSESSEES SHARE OF ` 24.73 LAKHS AS BUSINESS INCOME OF THE ASSESSEE. 3. BEFORE THE LEARNED CIT(A), THE ASSESSEE OWNED UP TRANSACTION OF PURCHASE OF LAND , BUT CLAIM ED THAT THE IMPUGNED LAND S W ERE AGRICULTURAL LAND S FALLING OUTSIDE THE SCOPE OF DEFINITION OF CAPITAL ASSET GIVEN IN SEC. 2( 14 ) OF THE SMT.VANITA MANJI PATEL 2 ACT . B UT THE SAID ARGUMENT DID NOT FIND FAVOUR WITH THE LEARNED CIT(A) AND HENCE HE CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 4. LEARNED AR SUBMITTED THAT, SUBSEQUENT TO PASSI NG OF THE ORDER BY THE LEARNED CIT(A) , CERTAIN NEW DEVELOPMENTS HAVE TAKEN PLACE. HE SUBMITTED THAT THE ASSESSEE HAD PURCHASED LAND S FROM A PERSON NAMED MR. WAMAN ARJUN GAWADE ON 8.9.2005, VIDE DOCUMENT NO. 742/2005. LATER IT CAME TO THE NOTICE OF THE ASS ESSEE THAT MR. WAMAN ARJUN GAWADE HAD EARLIER SOLD THE VERY SAME LAND TO ANOTHER PERSON SHRI SHELAR IN 1992. HENCE, MR. SHELAR HAD LODGED OWNERSHIP CLAIM BEFORE THE SDO WHO DECIDED THE ISSUE IN FAVOUR OF MR. SHELAR. SUBSEQUENTLY, ADDITIONAL COLLECTOR OF R AIGAD TRANSFERRED THE OWNERSHIP OF LAND BACK TO MR. SHELAR AND DUE EFFECT HAS ALSO BEEN GIVEN IN THE PROPERTY RECORDS. 5. IN VIEW OF THE ABOVE SAID DEVELOPMENT, LEARNED AR SUBMITTED THAT THE ASSESSEE CANNOT BE CONSIDERED TO BE THE OWNER OF THE LAND AND HE NCE TRANSACTION OF SALE OF LAND WILL ALSO NOT BE RECOGNISED IN THE EYES OF LAW. LEARNED AR SUBMITTED THAT THE ASSESSEE HAS FURNISHED ALL THE RELEVANT DOCUMENTS IN THE PAPER BOOK AND ACCORDINGLY CONTENDED THAT THE ENTIRE ISSUE REQUIRES RECONSIDERATION IN TH E LIGHT OF THE SUBSEQUENT DEVELOPMENT THAT TOOK PLACE. 6. I HEARD LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORD. IN VIEW OF THE SUBSEQUENT DEVELOPMENT NARRATED BY LEARNED AR, I FIND MERIT IN HIS PRAYER THAT THIS ISSUE REQUIRES FRESH EXAMINATI ON AT THE END OF THE ASSESSING OFFICER. UNDER THE PROVISIONS OF THE ACT, THE AO IS EMPOWERED TO ASSESS THE INCOME THAT HAS ACCRUED TO THE ASSESSEE. THE ASSESSEE NOW BROUGHT ON RECORD CERTAIN NEW FACTS IN SUPPORT OF HIS CLAIM THAT INCOME HAS NOT ACCRUED TO HIM. HENCE THE ABOVE SAID CLAIM OF THE ASSESSEE REQUIRES EXAMINATION AT THE END OF THE AO. ACCORDINGLY, I SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE SAME AFRESH BY DULY CONSIDERING OF THE FACTS SURROUNDING THE SMT.VANITA MANJI PATEL 3 ISSUE AND ALSO THE EXPLANATION S THAT MAY BE FURNISHED BY THE ASSESSEE BEFORE HIM. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 11 . 9 . 201 7. SD/ - (B.R.BASKARAN) ACCOUNTANT MEMBER MUMBAI ; DATED : 11 / 9 / 20 1 7 COPY OF THE ORDER FORWA RDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBAI