Shri Ravindra Ramrao Rajadnya, Aurangabad V. ITO Wd-2(2), Aurangabad, Aurangabad

ITA 126/PUN/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1891 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 07-04-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 31-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Business income; Salary income; Cost of acquisition; Corroborative evidences; Revised return
• Section: 142(1); 234B; 131; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , AM . / ITA NO. 126 /PN/201 1 / ASSESSMENT YEAR : 20 0 5 - 0 6 SHRI RAVINDRA RAMRAO RAJADNYA, RAMKRISHNA, PLOT NO.182, LANE 11, HARIOM NAGAR, AURANGABAD 416010 . / APPELLANT PAN: A BAPR6869B VS. THE INCOME TAX OFFICER , WARD 2( 2 ) , AURANGABAD . / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SHRI SANJAY PUNGLIA / DATE OF HEARING : 07 . 0 4 .201 6 / DATE OF PRONOUNCEMENT: 27 . 0 4 .201 6 / ORDER PER SUSHMA CHOWLA, J M : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) , AURANGABAD , DATED 29 . 1 0 .20 1 0 RELATING TO ASSESSMENT YEAR 20 0 5 - 0 6 AGAINST ORDER PASSED UNDER SECTION 1 4 3(3) OF THE INCOME - TAX ACT , 1961 (IN S HORT THE ACT) . ITA NO. 126 /PN/20 1 1 SHRI RAVINDRA RAMRAO RAJADNYA 2 2 . THE APPEAL WAS FIXED FOR HEARING FROM FEBRUARY, 2012 AND WAS ADJOURNED TO VARIOUS DATES AT THE REQUEST OF THE COUNSEL FOR THE ASSESSEE REPEATEDLY. ON THE LAST DATE OF HEARING I.E. 30.12.2015 , THE COUNSEL FOR THE ASSESSEE WITHDREW HI S POWER OF ATTORNEY AND HEARING WAS ADJOURNED TO 07.04.2016 FOR WHICH, NOTICE WAS ISSUED TO THE ASSESSEE. HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE APPOINTED DATE OF HEARING I.E. 07.04.2016 NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT. IN VIEW THEREOF, WE PROCEED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1) ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. C. I.T. (A) - AURANGABAD WAS NOT LEGALLY CORRECT TO HOLD AS PER PARA 8.4 OF THE ORDER THAT IN FUTURE THE APPELLANT MAY RECOVER SOME AMOUNT OUT OF SALE CONSIDERATION OF RS. 45,30,000/ - WHICH HAS BEEN FRAUDULENTLY GRABBED BY THE POWER OF ATTORNEY HOLDER. I T BE HELD FRAUDULENTLY GRABBED BY THE POWER OF ATTORNEY HOLDER. I T BE HELD ACCORDINGLY. 2) ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW AND IN VIEW OF GROUND NO.1 ABOVE THE LD. C. I.T. (A) ERRED IN DIRECTING THAT THE AMOUNT OF RS. 45,30,000/ - IS TO BE TAXED AS CAPITAL GAIN IN THE HANDS OF THE APPELLANT O N 'PROTECTIVE BASIS'. THE DECISION IS OPPOSED TO LAW. IT BE QUASHED . 3) ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW AND HAVING ACCEPTED BY LD. C. I.T. (A) THAT THE AMOUNT OF CONSIDERATION OF RS. 45,30,000/ - WAS DIVERSION AT SOURCE BY THE PO WER OF ATTORNEY HOLDER THE QUESTION OF ITS TAXABILITY IN THE HANDS OF THE APPELLANT AT THIS STAGE DOES NOT ARISE AT ALL. THE DIRECTIONS BEING CONTRARY TO THE PROVISIONS OF LAW BE SET ASIDE. 4) ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW I T BE DECLARED THAT THE ASSESSMENT IS VITIATED IN LAW FOR WANT OF SERVICE OF STATUTORY/ MANDATORY NOTICE UNDER S.143(2) OF THE ACT AND IN VIEW OF THIS THE ASSESSMENT IS ILLEGAL AND WITHOUT JURISDICTION. THE ASSESSMENT BE QUASHED . 5) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSEE DENIES HIS LIABILITY TO PAY INTEREST U/S. 234 - A, 234 - B AND 234 - C OF THE ACT AND THE SAME BE DELETED ITA NO. 126 /PN/20 1 1 SHRI RAVINDRA RAMRAO RAJADNYA 3 4. THE ISSUE IN GROUNDS OF APPEAL NO.1 AND 2 IS IN RELATION TO THE ADDITION MADE ON ACCOUNT OF CAP ITAL GAINS AMOUNTING TO RS.45,30,000/ - ON PROTECTIVE BASIS. 5. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE WAS WORKING AS DEPUTY ENGINEER WITH MIDC, AURANGABAD SINCE 1998. THE ASSESSEE HAD ALSO WORKED AS AN EMPLOYEE OF MIDC CHIPLUN SUB - DIVISION DUR ING THE PERIOD FROM 1974 TO 1987 AS ASST. ENGINEER. THE ASSESSEE HAD PURCHASED AGRICULTURAL LAND ON 15.04.1999 ADMEASURING 2 HECTORS 40R AT CHIPLUN, DIST. RATNAGIRI FOR RS.2 LAKHS AND HAD PAID STAMP DUTY OF RS.61,000/ - . THE ASSESSEE ENTERED INTO AN AGREE MENT TO SELL THE SAID LAND WITH SHRI AJMAL FAZALUDDIN PATEL ON 05.06.2004 FOR CONSIDERATION OF RS.7,50,000/ - . THE ASSESSEE ALSO GAVE AN IRREVOCABLE GENERAL POWER OF ATTORNEY DATED 05.06.2004 TO SHRI A.F. PATEL FOR THE SAID LAND. ON THE BASIS OF SAID AGRE EMENT TO SELL / IRREVOCABLE GPA , SHRI A.F. PATEL SOLD THE LAND AT CHIPLUN FOR CONSIDERATION OF RS.52,80,000/ - VIDE SALE DEED DATED 30.12.2004 AND HANDED OVER THE OWNERSHIP AND POSSESSION OF THE LAND TO CHIPLUN MUNICIPAL COUNCIL. THE FACTUAL FINDING OF THE AUTHORITIES BELOW WAS THAT THERE WAS NO SUPPORTING EVIDENCE ON RECORD PROVING THAT THE ABOVE STATED CONSIDERATION FOR SALE OF LAND COLLECTED BY SHRI A.F. PATEL ON THE BASIS OF IRREVO CABLE GPA / AGREEMENT TO SELL DATED 05.06.2004 HAD BEEN RECEIVED BY THE A SSESSEE FROM SHRI A.F. PATEL, EXCEPT RS.7,50,000/ - AS AGREED TO HAVE BEEN RECEIVED BY THE ASSESSEE. DURING THE COURSE OF TDS ENQUIRY BY THE ITO, RATNAGIRI, IT WAS NOTICED THAT THE ASSESSEE HAS SOLD THE SAID PIECE OF LAND TO CHIPLUN MUNICIPAL COUNCIL AND O N THIS BASIS, THE ITO, WARD - 4, RATNAGIRI ISSUED NOTICE UNDER SECTION 142(1) OF THE ACT TO THE ASSESSEE IN CONNECTION WITH TAXABILITY OF C APITAL GAINS FROM THE ABOVE SAID TRANSACTION. THE ASSESSEE HAS FAILED TO COMPLY WITH THE SAME AND THEREAFTER, SUMMONS UNDER SECTION 131 OF ITA NO. 126 /PN/20 1 1 SHRI RAVINDRA RAMRAO RAJADNYA 4 THE ACT WERE ISSUED. THE ASSESSEE FURNISHED RETURN OF INCOME ON 2 5 .0 7 .2005 FOR THE RELEVANT ASSESSMENT YEAR WITH ITO, WARD 2(2), AURANGABAD. CONSIDERING THIS, ITO, WARD 4, RATNAGIRI SUBMITTED DETAILED REPORT ON THE ACTION TAKEN BY HI M TO THE ITO, WARD 2(2), AURANGABAD VIDE LETTER DATED 22.02.2006 ALONG WITH STATEMENT RECORDED OF THE ASSESSEE A S ALSO THE STATEMENT RECORDED OF SHRI A.F. PATEL ALONG WITH CORRESPONDING PAPERS SERIALLY NUMBERED 1 TO 67. AFTER INTERROGATION , THE ASSESSEE F ILED REVISED RETURN OF INCOME ON 17.01.2006 ACCEPTING THE SALE CONSIDERATION OF RS.52,80,000/ - AND AFTER DEDUCTING COST OF ACQUISITION AND ALSO IMPROVEMENT COST OF RS.44,30,000/ - HAD DECLARED INCOME FROM LONG TERM CAPITAL GAINS AT RS. 5,27, 5 43/ - IN THE REVI SED RETURN OF INCOME. ALONG WITH RETURN OF INCOME, THE ASSESSEE ALSO ENCLOSED TWO TDS CERTIFICATES ISSUED BY MUNICIPAL COUNCIL, CHIPLUN FOR RS. 60,720/ - EACH ACCEPTING THE SALE TRANSACTIONS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSEE FILED SECOND REVISED RETURN OF INCOME ON 31.03.2007 IN WHICH THE ASSESSEE IN ADDITION TO THE SALARY INCOME, HAS SHOWN CAPITAL GAINS OF RS. 3,61,311/ - . IN THE RE - REVISED RETURN, THE ASSESSEE HAS CLAIMED SALE CONSIDERATION TO RS. 7,50,000/ - THE ASSESSING OFFICER C ONSIDERED AT LENGTH T HE ASSESSEE HAVING FILED DIFFERENT RETURNS OF INCOME AND OBSERVED THAT THE OWNERSHIP OF LAND WAS CONFIRMED BY THE ASSESSEE HIMSELF IN HIS STATEMENT RECORD UNDER SECTION 131 OF THE ACT AND FURTHER ENQUIRIES WERE MADE AS TO WHETHER THE L AND SOLD BY THE ASSESSEE TO SHRI A.F. PATEL AND WHETHER HE HAD FURTHER SOLD TO CHIPLU N MUNICIPAL COUNCIL. THE ASSESSEE IN REPLY, CONFIRMED THAT HE HAD SOLD THE LAND TO SHRI A.F. PATEL FOR RS.7,50,000/ - ON 05.06.2004 AND HAD RECEIVED PART MONEY UP TO OCTOB ER, 2004 AND PART OF BALANCE MONEY OF RS. 4,60,000/ - WAS RECEIVED IN CASH DURING THE PERIOD JANUARY, 2005 TO AUGUST, 200 5 . IN SUPPORT, THE ASSESSEE FURNISHED THE DOCUMENT ON STAMP PAPER DATED 01.06.2004 OF RS.20/ - TYPED IN MARATHI LANGUAGE KNOWN AS AGREEME NT LETTER DATED 05.06.2006 . THE ASSESSING OFFICER ITA NO. 126 /PN/20 1 1 SHRI RAVINDRA RAMRAO RAJADNYA 5 WAS OF THE VIEW THAT WHERE THE LAND SOLD STOOD IN THE NAME OF ASSESSEE AS PER 7/12 EXTRACT OF THE SAID LAND AND WHERE THE TDS CERTIFICATES WERE ALSO ISSUED BY CHIPLUN MUNICIPAL COUNCIL IN THE NAME OF ASSES SEE AND SHRI A.F. PATEL WAS ONLY GPA HOLDER, THE CLAIM OF THE ASSESSEE THAT THE LAND WAS TRANSFERRED / SOLD TO SHRI A.P. PATEL FOR RS. 7,50,000/ - WAS NOT ACCEPTED. 6. ANOTHER POINTED NOTED BY THE ASSESSING OFFICER WAS THAT CHIPLUN MUNICIPAL COUNCIL HAD P ASSED A RESOLUTION THAT ADMINISTRATIVE APPROVAL TO PURCHASE THE SAID LAND ON 05.06.2004 AND THE AGREEMENT TO SELL / GPA WAS ALSO GIVEN TO SHRI A.F. PATEL ON 05.06.2004 . THE ASSESSING OFFICER WAS OF THE VIEW THAT THE SAID AGREEMENT / GPA WAS PREPARED AFTER WARDS I.E. AFTER SALE OF LAND TO CHIPLUN MUNICIPAL COUNCIL ON 30.12.2004 . THE ASSESSING OFFICER WAS OF THE VIEW THAT THE AFFIDAVIT FILED BY THE ASSESSEE ALONG WITH SECOND REVISED RETURN WAS SELF - SERVING EVIDENCE SINCE THE ASSESSEE HAD NOT GIVEN THE POSSES SION OF LAND TO SHRI A.F. PATEL AND THERE WAS NO PURPOSE OF CONTRACT AND HENCE, THERE WAS NO TRANSFER OF AGRICULTURAL LAND AS PROVIDED UNDER SECTION 2(47) OF THE ACT. THE ASSESSING OFFICER FURTHER NOTED THAT AS PER SALE DEED DATED 30.12.2004 , THE POSSESSI ON WAS WITH THE ASSESSEE. THE ASSESSING OFFICER THUS, REJECTING THE CLAIM OF ASSESSEE HELD THAT THE SAID SALE CONSIDERATION OF RS. 52,80,000/ - WAS ASSESSABLE IN THE HANDS OF ASSESSEE AND COMPUTED THE INCOME FROM LONG TERM CAPITAL GAINS IN THE HANDS OF ASSE SSEE AT RS. 49,57,943/ - . THE CLAIM OF THE ASSESSEE OF IMPROVEMENT OF EXPENDITURE ON DEVELOPMENT, WAS REJECTED SINCE THE DOCUMENTS WERE SELF - MADE VOUCHERS. 7. BEFORE THE CIT(A), THE ASSESSEE FURNISHED WRITTEN SUBMISSIONS, WHICH ARE INCORPORATED AT PAGES 10 TO 20 OF THE APPELLATE ORDER. THE CIT(A) NOTED THAT THE ASSESSEE HAD PURCHASED THE AGRICULTURAL LAND IN THE YEAR 1999 FOR TOTAL ITA NO. 126 /PN/20 1 1 SHRI RAVINDRA RAMRAO RAJADNYA 6 SALE CONSIDERATION OF RS.2,61,000/ - . THE ASSESSEE CAME INTO CONTRACT WITH SHRI A.F. PATEL, WHO WAS LOCAL PERSON FROM CHIPLU N AND WAS ALSO A MEMB ER OF CHIPLUN MUNICIPAL COUNCIL. THE SAID MUNICI PAL COUNCIL WANTED THE LAND FOR DUMPING GARBAGE AND RESOLUTION WAS PASSED BY THE COUNCIL ON 05.06.2004 FOR PURCHASE OF THE SAID LAND. THE ASSESSEE HAD GIVEN REGISTERED IRREVOCABLE GENER AL POWER OF ATTORNEY DATED 05.06.2004 TO SHRI A.F. PATEL IN RESPECT OF THE SAID LAND AND HAD ALSO ENTERED INTO AN AGREEMENT TO SELL DATED 05.06.2004 FOR THE SALE OF LAND TO SHRI A.F. PATEL FOR TOTAL SALE CONSIDERATION OF RS. 7,50,000/ - . ON THE BASIS OF AFO RESAID DOCUMENTS, SHRI A.F. PATEL TRANSFERRED THE SAID LAND TO CHIPLUN MUNICIPAL COUNCIL VIDE SALE DEED DATED 30.12.2004 FOR TOTAL SALE CONSIDERATION OF RS. 52,80,000/ - . THE POSSESSION OF THE LAND WAS ALSO HANDED OVER IN JUNE, 2004. THE GP A HOLDER AND THE PURCHASER OF LAND AS PER THE AGREEMENT TO SALE, DATED 05.06.2004 , SHRI A.F. PATEL HAD RECEIVED CHEQUES OF RS. 51,58,560/ - FROM THE COUNCIL AFTER DEDUCTION OF TDS FROM TOTAL SALE CONSIDERATION OF RS. 52,80,000/ - . THE STATEMENT ON OATH OF SHRI A.F. PATEL WAS RECORDED, IN WHICH HE CLAIMED THAT HE HAD INCURRED EXPENDITURE ON DEVELOPMENT OF THE SAID LAND SOLD AND HAD MADE PAYMENTS TO FOUR SUB - CONTRACTORS TOTALING RS. 44,30,000/ - . FURTHER, SHRI A.F. PATEL STATED IN STATEMENT ON OATH THAT HE HAD PAID SOME AMOUNT I N CASH TO THE ASSESSEE AND HOWEVER, IN RESPECT OF SAID PAYMENT, NO EVIDENCE WAS FILED BY SHRI A.F. PATEL. IN VIEW THEREOF, THE CIT(A) WAS OF THE VIEW THAT THE ASSESSEE HAD NOT RECEIVED CONSIDERATION TO THE EXTENT OF RS. 52,80,000/ - BUT HAD ACTUALLY RECEIVE D CONSIDERATION OF RS.7,50,000/ - ONLY AS PER AGREEMENT TO SELL DATED 05.06.2004 , WHEREIN THE CONSIDERATION WAS FIXED AT RS. 7,50,000/ - /. THE CONTENTION OF ASSESSING OFFICER THAT THE GPA AND THE AGREEMENT TO SELL DATED 05.06.2004 WAS AN AFTERTHOUGHT AND HAD BEEN PREPARED AFTERWARDS I.E. AFTER SALE OF LAND TO CHIPLUN MUNICIPAL COUNCIL ON 30.12.2004 WAS NOT ACCEPTED BY THE CIT(A) SINCE ITA NO. 126 /PN/20 1 1 SHRI RAVINDRA RAMRAO RAJADNYA 7 IN THE ABSENCE OF ABOVE SAID DOCUMENTS, CHIPLUN MUNICIPAL COUNCIL COULD NOT HAVE ENTERED INTO REGISTERED PURCHASE DEED DATED 3 0.12.2004, WHEREIN THE GPA HOLDER SHRI A.F. PATEL SIGNED ON BEHALF OF THE ASSESSEE. FURTHER, THOUGH THE LAND ON THE DATE OF SALE DEED WAS IN THE NAME OF ASSESSEE, CHIPLUN MUNICIPAL COUNCIL HAD PAID THE CONSIDERATION FOR SALE BY ACCOUNT PAYEE CHEQUE TO SHR I A.F. PATEL, WHICH WAS NOT POSSIBLE IN THE ABSENCE OF ANY AGREEMENT TO SELL AND IRREVOCABLE GPA DATED 05.06.2004 . IN VIEW THEREOF, THE CIT(A) HELD THAT THE LAND WAS TRANSFERRED BY THE APPELLANT T O SHRI A.F. PATEL ON 05.06.2004 WITHIN MEANING OF SECTION 2 (47) OF THE ACT BY ENTERING INTO IRREVOCABLE GPA AND AGREEMENT OF SALE DATED 05.06.2004 . FURTHER, THE ASSESSEE HIMSELF HAD FILED REVISED RETURN OF INCOME SHOWING SALE CONSIDERATION OF RS. 52,80,000/ - AND CLAIMED IMPROVEMENT COST FOR DEVELOPMENT OF THE SAID LAND SOLD AT RS. 44,30,000/ - . THEREAFTER, THE ASSESSEE CLAIMS TO HAVE FILED RE - REV ISED RETURN OF INCOME ON THE PLEA THAT HE WAS MIS - GUIDED BY SHRI A.F. PATEL AND TAX CONSULTANT TO FILE REVISED RETURN . O N A LATER DATE , THE ASSESSEE HAD DECLARED SALE PROCE EDS OF LAND AT RS.7,50,000/ - AS PER AGREEMENT TO SELL. THE CIT(A) THUS, ACCEPTED THE RE - REVISED RETURN OF INCOME FILED BY THE ASSESSEE TO BE CORRECT. IT WAS FURTHER NOTED BY THE CIT(A) THAT THE ASSESSEE HAD FILED A CIVIL SUIT IN THE CIVIL COURT OF RATNAG IRI AGAINST SHRI A.F. PATEL AND CHIPLUN MUNICIPAL COUNCIL CLAIMING THAT THE GPA HOLDER HAD ACTED FRAUDULENTLY AND RECEIVED CONSIDERATION OF RS. 51,58,560/ - AFTER TDS AND THE SAID AMOUNT SHOULD BE HANDED OVER TO THE ASSESSEE. IT IS ALSO CLAIMED BY THE ASSES SEE IN THE SAID CIVIL SUIT THAT AS SHRI A.F. PATEL HAD ENTERED INTO AN AGREEMENT WITH MUNICIPAL COUNCIL OF CHIPLUN AND HAD RECEIVED THE CONSIDERATION, INCOME TAX ON THE SAID TRANSACTION WAS TO BE PAID BY HIM . IN VIEW THEREOF, THE CIT(A) THUS, WAS OF THE V IEW THAT THE CAPITAL GAINS IN RESPECT OF CONSIDERATION RECEIVED BY THE ASSESSEE TO THE EXTENT OF RS.7,50,000/ - IS TO BE TAXED IN THE HANDS OF ASSESSEE AS LONG ITA NO. 126 /PN/20 1 1 SHRI RAVINDRA RAMRAO RAJADNYA 8 TERM CAPITAL GAINS. THE TAXABLE CAPITAL GAINS WAS WORK ED OUT IN THE HANDS OF ASSESSEE AT RS. 4,27 ,943/ - AFTER REDUCING THE INDEX ED COST OF ACQUISITION OF RS. 3,22,057/ - . THE CIT(A) FURTHER HELD THAT THE REMAINING AMOUNT OF SALE CONSIDERATION OF LAND AMOUNTING TO RS. 45,30,000/ - WAS TO BE TAXED IN THE HANDS OF SHRI A.F. PATEL AS BUSINESS INCOME BEING IN COME FROM ADVENTURE IN THE NATURE OF TRADE AND AS INCOME IN ANOTHER HEAD AS DECIDED BY THE ASSESSING OFFICER ACCORDING TO THE PROVISIONS OF LAW. FURTHER, SINCE THE ASSESSEE HAD FILED SUIT IN CIVIL COURT AGAINST SHRI A.F. PATEL AND CHIPLUN MUNICIPAL COUNCI L FOR RECOVERY OF SALE PROCEEDS AND IN CASE THE ASSESSEE RECOVERS THE SAME AMOUNT OF SALE CONSIDERATION FROM SHRI A.F. PATEL, THE SAME IS TO BE ADDED IN THE HANDS OF ASSESSEE , THEREFORE, THE AMOUNT OF SALE CONSIDERATION OF RS. 45,30,000/ - WAS HELD TO BE CON SIDERED AS CAPITAL GAINS IN THE HANDS OF ASSESSEE ON PROTECTIVE BASIS. THE CIT(A) THUS, HELD IF THE APPELLANT RECEIVES ADDITIONAL CONSIDERATION IN FUTURE FROM SHRI A.F. PATEL AS PER THE DECREE OF HONBLE COURT, THE SAID AMOUNT RECEIVED WILL BE TAXABLE IN THE HANDS OF THE APPELLANT TO THAT EXTENT ON SUBSTANTIVE BASIS. THE CIT(A) HAD DIRECTED THAT NECESSARY ACTION SHOULD BE TAKEN UNDER SECTION 150 OF THE ACT ACCORDING TO LAW. 8. THE PERUSAL OF ORDER OF CIT(A) CLARIFIES THE POSITION THAT THE LAND WAS SO LD BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION FOR TOTAL SALE CONSIDERATION OF RS. 7,50,000/ - AS PER AGREEMENT O SELL AND IRREVOCABLE GPA EXECUTED BY THE ASSESSEE ON 05.06.2004 . THE SAID LAND WAS PURCHASED BY CHIPLUN MUNICIPAL COUNCIL VIDE AGREEMEN T DATED 05.06.2004 ITSELF BY ENTERING INTO AN AGREEMENT WITH SHRI A.F. PATEL. THE LAND WAS SOLD THROUGH REGISTERED DOCUMENT DATED 30.12.2004 , WHEREIN SHRI A.F. PATEL SIGNED ON BEHALF OF THE ASSESSEE THOUGH THE NAME OF ASSESSEE WAS MENTIONED IN THE LAND RE CORDS. HOWEVER , THE AMOUNT WAS PAID TO SHRI A.F. PATEL THROUGH ACCOUNT PAYEE ITA NO. 126 /PN/20 1 1 SHRI RAVINDRA RAMRAO RAJADNYA 9 CHEQUE AND EVEN TAX WAS DEDUCTED AT SOURCE FROM THE SAID PAYMENTS. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE AGREEMENT TO SELL AND GPA EXECUTED ON 05.06.2004 WAS AN AFTERTH OUGHT AND THE CIT(A) HAS ELABORATELY DEALT WITH THE ISSUE AND NOTED THE FACT THAT CHIPLUN MUNICIPAL COUNCIL WHILE EXECUTING THE SALE DEED HAD RECOGNIZED SHRI A.F. PATEL AND IN CASE THE AGREEMENT TO SELL AND GPA WAS NOT THERE, THEN THERE WAS NO QUESTION OF RECOGNIZING HIM. IT MAY BE POINTED OUT THAT IN CASE OF LAND DEALS, THE GPA HAS TO BE REGISTERED DOCUMENT. THE ASSESSEE BEFORE US HAS FAILED TO APPEAR AND THOUGH PAPER BOOK HAS BEEN FILED BY THE ASSESSEE, BUT THE DOCUMENTS ARE NOT PLACED ON RECORD. SEVER AL OPPORTUNITIES OF HEARING WERE GIVEN TO THE ASSESSEE, WHO FAILED TO APPEAL AND SOUGHT ADJOURNMENTS THROUGH COUNSEL AND THEREAFTER, THE COUNSEL HIMSELF WITHDREW HIS POWER OF ATTORNEY. ANOTHER NOTICE OF HEARING WAS ISSUED TO THE ASSESSEE, WHO AGAIN DID NO T APPEAR ON THE DATE OF HEARING NOR ANY APPLICATION FOR ADJOURNMENT WAS MOVED. IN THE ABSENCE OF SAME, WE PROCEED TO DECIDE THE PRESENT APPEAL. ANOTHER POINT TO BE NOTED IS THAT THE ASSESSEE IN THE RE - REVISED RETURN OF INCOME HAS DECLARED THE SALE CONSI DERATION AT RS.7,50,000/ - IS TO BE TAXED IN HIS HANDS. FIRST OF ALL, IT MAY BE NOTED THAT THE AGREEMENT TO SELL WAS EXECUTED BETWEEN THE ASSESSEE AND SHRI A.F. PATEL AND THE POSSESSION OF LAND WAS HANDED OVER TO SHRI A.F. PATEL AND AN IRREVOCABLE POWER OF ATTORNEY WAS EXECUTED. THE CIT(A) HAS VIDE PARA 8.1 GIVEN HIS FINDING THAT SHRI A.F. PATEL HAS ALSO TAKEN THE POSSESSION AND HANDED OVER THE POSSESSION OF LAND TO CHIPLUN MUNICIPAL COUNCIL. IN THE STATEMENT RECORDED ON OATH OF SHRI A.F. PATEL, HE HAD SA ID TO HAVE PAID SOME AMOUNT IN CASH TO THE ASSESSEE . WHERE THE TRANSACTION IS RELATABLE TO SALE OF LAND AND THE SAME HAS BEEN REGISTERED ON 30.12.2004 , WHEREIN THE GPA HOLDER HAD SIGNED ON BEHALF OF ASSESSEE, THE SALE IS COMPLETE AND HENCE, THE INCOME FRO M LONG TERM CAPITAL GAINS IS TO BE ASSESSED IN THE HANDS OF ASSESSEE. HOWEVER, IN THE FACTS OF THE PRESENT CASE, ITA NO. 126 /PN/20 1 1 SHRI RAVINDRA RAMRAO RAJADNYA 10 WHERE THE LAND THOUGH ON THE DATE OF SALE DEED WAS IN THE NAME OF ASSESSEE, WHICH FACT HAS BEEN ACCEPTED BY THE ASSESSING OFFICER, CHIPLUN MUN ICIPAL COUNCIL DID NOT PAY THE CONSIDERATION FOR SALE TO THE PLOT HOLDER, BUT PAID THE AMOUNT BY ACCOUNT PAYEE CHEQUE TO SHRI A.F. PATEL, WHO WAS A GPA HOLDER, EXCEPT FOR RS. 7,50,000/ - , NO OTHER AMOUNT HAS BEEN PAID TO THE ASSESSEE. THE ASSESSEE HAS FILED A CIVIL SUIT IN THE CIVIL COURT OF RATNAGIRI AGAINST SHRI A.F. PATEL AND CHIPLUN MUNICIPAL COUNCIL CLAIMING THAT THE GPA HOLDER HAD ACTED FRAUDULENTLY AND HAD RECEIVED THE CONSIDERATION OF RS. 51,58,560/ - AFTER TDS WHICH SHOULD BE REFUNDED TO THE ASSESSEE. THE SAID CIVIL SUIT IS PENDING BEFORE THE CIVIL COURT. IN THE ABOVE SAID FACTS AND CIRCUMSTANCES, THE CIT(A) HELD THAT IN THE HANDS OF ASSESSEE, THE CAPITAL GAINS IS TO BE TAXED BY ADOPTING SALE CONSIDERATION AT RS. 7,50,000/ - . IT IS FURTHER HELD BY THE CIT(A) THAT IN CASE THE ASSESSEE RECOVERS SOME AMOUNT OF SALE CONSIDERATION FROM SHRI A.F. PATEL, THEN THE SAME IS TO BE CONSIDERED AS CAPITAL GAINS IN THE HANDS OF ASSESSEE ON PROTECTIVE BASIS. HOWEVER, THE CIT(A) HAS FURTHER CLARIFIED THIS BY SAYING TH AT WHERE THE ASSESSEE RECEIVES ADDITIONAL CONSIDERATION IN FUTURE FROM SHRI A.F. PATEL, THEN THE SAME IS TO BE ASSESSED IN THE HANDS OF ASSESSEE ON SUBSTANTIVE BASIS BY TAKING NECESSARY ACTION UNDER SECTION 150 OF THE ACT IN ACCORDANCE WITH LAW. THE FINAL CONCLUSION OF CIT(A) IN THIS REGARD IS THAT SINCE THE CIVIL SUIT FOR RECOVERY OF THE CONSIDERATION IS PENDING, THEN WHENEVER IF ANY AMOUNT IS RECEIVED BY THE ASSESSEE , THEN THE SAME IS INCLUDABLE IN THE HANDS OF ASSESSEE UNDER SECTION 150 OF THE ACT . WE FIND NO ERROR IN THE SAID DIRECTIONS OF CIT(A) . I N ORDER TO GIVE EFFECT TO ANY FINDING OR DIRECTIONS CONTAINED IN AN ORDER PASSED BY ANY AUTHORITY IN ANY PROCEEDINGS UNDER THIS ACT BY WAY OF APPEAL, REFERENCE OR REVISION, OR BY A COURT IN ANY PROCEEDINGS UNDER ANY OTHER LAW, IT IS PROVIDED THAT FOR THE PURPOSE OF MAKING AN ASSESSMENT OR RE - ASSESSMENT OR RE - COMPUTATION CONSEQUENT THERETO, NOTWITHSTANDING ANYTHING ITA NO. 126 /PN/20 1 1 SHRI RAVINDRA RAMRAO RAJADNYA 11 CONTAINED IN SECTION 149 OF THE ACT, NOTICE UNDER SECTION 148 OF THE ACT MAY BE ISSUED AT ANY T IME. THUS, U NDER THE ACT, IT IS PROVIDED THAT CONSEQUENT TO ANY DIRECTIONS OR FINDING BY A COURT IN ANY PROCEEDINGS UNDER ANY OTHER LAW, IN CASE ANY AMOUNT IS RECEIVED BY THE ASSESSEE, THEN THE SAME IS TO BE CONSIDERED IN THE HANDS OF ASSESSEE BY FOLLOWIN G PROCEDURE LAID DOWN UNDER THE ACT. CONSEQUENTLY, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE THAT THE ADDITION HAS BEEN MADE IN THE HANDS OF ASSESSEE ON PROTECTIVE BASIS HAS NO MERIT SINCE THE CIT(A) HAS DIRECTED THAT PURSUANT TO THE DECISION OF CIVIL COURT, THE NECESSARY ACTION SHOULD BE TAKEN UNDER SECTION 150 OF THE ACT IN ACCORDANCE WITH LAW. UPHOLDING THE SAME, WE DISMISS GROUNDS OF APPEAL NO.1 TO 3 RAISED BY THE ASSESSEE. 9. NOW, COMING TO THE ISSUE IN GROUND OF APPEAL NO.4. THE ASSESSEE IS AGG RIEVED BY NON - ISSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT. 10. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE REFERRED TO THE PARA 5 OF ASSESSMENT ORDER, WHEREIN IT HAS BEEN MENTIONED THAT NOT ICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED O N 16.10.2006 WHICH WAS DULY SERVED UPON THE ASSESSEE ON 20.10.2006. IN RESPONSE TO WHICH, THE ASSESSEE PERSONALLY ATTENDED ON 21.10.2006 AND THEREAFTER, ON VARIOUS DATES UP TO AUGUST , 2007. FURTHER, THE ASSESSEE ATTENDED ALONG WITH THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FROM 28.09.2007 TO 20.12.2007. IN VIEW OF NOTICE UNDER SECTION 143(2) OF THE ACT BEING ISSUED TO THE ASSESSEE AND THE ASSESSEE HAVING FAILED TO SUBSTANTIATE HIS CLAIM, WE FIND NO MERIT IN THE GROUND OF APPEAL NO.4 AND THE SAME IS REJECTED. ITA NO. 126 /PN/20 1 1 SHRI RAVINDRA RAMRAO RAJADNYA 12 11. THE ISSUE IN GROUND OF APPEAL NO.5 IS AG AINST CHARGING OF INTEREST UNDER SECTION 234A, 234B AND 234C OF THE ACT, WHICH IS CONSEQUENTIAL, HENCE, THE SAID GROUND OF APPEAL IS ALSO REJECTED. 1 2 . IN THE RESULT, THE APPEAL OF THE ASSES SEE IS DISMISSED. ORDER PRONOUNCED ON THIS 27 TH DAY OF APRIL , 201 6 . SD/ - SD/ - (PRADIP KUMAR KEDIA) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 27 TH APRIL , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPE LLANT ; 2. / THE RESPONDENT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A), AURANGABAD ; 4. / THE CIT , AURANGABAD ; 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE