DCIT CIR 3-KALYAN, MUMBAI V. SHANKAR BHIVA NANDE, MUMBAI

ITA 1313/MUM/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7712 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 22-03-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 26-02-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI D. MANMOHAN, V.P. AND SHRI R. K. PANDA, A. M. I.T.A. NO. 1313/MUM/2009 ASSESSMENT YEAR: 2005-06 THE DCIT, CIRCLE- 3 RANI MANSION, MURBAD ROAD, KALYAN SHRI SHANKAR BHIVA NANDE VILLAGE GANDHARE, KALYAN (W) PAN NO: AFYPN0616A (APPELLANT) VS. (RESPONDENT) ORDER PER R. K. PANDA (AM) : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER DATED 27.11.2008 OF THE COMMISSIONER OF INCOME TAX (APPEA LS)-I, THANE AND RELATES TO THE ASSESSMENT YEAR 2005-06. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS FOLLOWS :- 1. THE LEARNED CIT(A) HAS ERRED IN DELETING THE AD DITION OF ` .1,71,25,200/- ON ACCOUNT OF LONG TERM CAPITAL GAIN . 2. THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADD ITION ON ACCOUNT OF SECTION 53A OF TRANSFER OF PROPERTY ACT. IN VIEW OF THE DOCUMENTS ON RECORD, THE TRANSACTION SATISFIES THE CONDITION AND PROVISION OF SECTION 2(47)(V) OF THE INCOME TAX ACT . THOUGH, TITLE IS NOT IN THE NAME OF THE DEVELOPER, POSSESSION OF THE LAND WAS GIVEN TO HIM. THE DEVELOPER APPLIED FOR APPROVAL OF THE B UILDING PROJECT AFTER OBTAINING THE N.A. PERMISSION FROM THE DISTRI CT COLLECTOR, THANE VIDE ORDER DATED 21.04.2007. APPELLANT BY : MS. ASHIMA GUPTA RESPONDENT BY : SHRI SHANKAR B. NANDE 2 3. THE ASSESSING OFFICER CRAVES LEAD TO ADD, AMEND OR DELETE ANY GROUNDS OF APPEAL . 3. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE FILED A PAPER BOOK CONTAINING CERTAIN ADDITIONAL EVIDENCES AND RE QUESTED THAT THE SAME SHOULD BE ADMITTED AS IT GOES TO THE ROOT OF THE MA TTER. HE FURTHER REQUESTED THAT THE MATTER SHOULD BE RESTORED TO THE FILE OF T HE AO FOR FRESH ADJUDICATION. 4. THE LEARNED DR ALSO FAIRLY CONCEDED THAT IN VIEW OF THE ADDITIONAL EVIDENCES FILED BEFORE THE TRIBUNAL WHICH WERE NOT BEFORE THE AO OR THE LEARNED CIT (APPEALS) AND SINCE THESE ADDITIONAL EVIDENCES GO TO THE ROOT OF THE MATTER, THE MATTER SHOULD BE RESTORED TO THE FILE OF THE A O FOR FRESH ADJUDICATION. 5. IN VIEW OF THE ABOVE SUBMISSION MADE BY BOTH THE SIDES THAT THE ADDITIONAL EVIDENCES GO TO THE ROOT OF THE MATTER A ND SINCE THESE EVIDENCES WERE NOT AVAILABLE AT THE TIME OF ASSESSMENT OR APPEAL P ROCEEDINGS, THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE MATTER SHOULD GO BACK TO THE FILE OF AO FOR FRESH ADJUDICATION IN THE LIGHT OF THE ADDITIONAL E VIDENCES. THE AO SHALL DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING DUE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE G ROUND RAISED BY THE REVENUE IS ACCORDINGLY, ALLOWED FOR STATISTICAL PUR POSE. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THIS 31 ST DAY OF MARCH, 2011. SD/- SD/- (D. MANMOHAN) ( R.K. PANDA ) VICE PRESIDENT ACCOU NTANT MEMBER MUMBAI, DATE: 31/03/2011 3 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR - E- BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI