Shri Keyur Jitendra Patel, Ahmedabad V. The Income Tax Officer, Ward-6(1)(4), Ahmedabad

ITA 1343/AHD/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1767 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 23-01-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 02-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: K C THAKKER
• Keywords: Set aside
• Section: 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) [THROUGH VIRTUAL COURT] ITA. NO: 1343/AHD/2017 (ASSESSMENT YEARS: 2012-13) SHRI KEYUR JITENDRA PATEL, 12, AMAR SOCIETY, OPP. BAL WATIKA, MANINAGAR, AHMEDABAD-380 008 PAN NO. AFIPP8430J THE I.T.O., WARD-6(1)(4), AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.C. THAKKER, A.R. RESPONDENT BY : SHRI LALIT P. JAIN, SR. D.R. ( )/ ORDER DATE OF HEARING : 23-11-2020 DATE OF PRONOUNCEMENT : 22 -02-2021 PER MAHAVIR PRASAD, J.M. 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (HEREINAFTER CALLED CIT(A)) ORDER NO. CIT(A)-6/103/15-16 ORDER DATED 23/05/2017 ARISING OUT OF ASSESSMENT ORDER DATED 30/03/2015. ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: ITA NO. 1343/AHD/2017 . A.Y. 2012-13 2 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE A.O. HAS RIGHTLY CALCULATED THE CAPITAL GAIN IN THE HAND OF THE APPELLANT THEREBY CONFIRMING THE ADDITION OF RS. 6,57,83,900/-. 2. THE LD.CIT(A) HAS FURTHER ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 51,61,500/- MADE U/S. 68 OF THE ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) OUGHT TO HAVE DELETED THE ADDITIONS OF RS. 6,57,83,900/- AND RS. 51,61,500/-. 4. IT IS THEREFORE PRAYED THAT THE ORDERS OF THE LOWER AUTHORITIES MAY BE SET ASIDE AND THE ADDITIONS OF RS. 6,57,83,900/- AND RS. 51,61,500/- MAY BE DELETED. 5. YOUR APPELLANT PRAYS FOR LEAVE TO ADD, ALTER OR AMEND ANY GROUND OF APPEAL AT THE TIME OF HEARING. 2. FACTS OF THE CASE ARE THAT THE ASSESSE SHRI KEYUR JITENDRA PATEL IS ASSESSED TO TAX IN THE STATUS OF INDIVIDUAL. HE DERIVED INCOME FROM BUSINESS AND OTHER SOURCES. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ON VERIFICATION OF SUBMISSION MADE BY THE ASSESSEE, IT WAS FOUND THAT REGISTERED BANAKHAT WAS EXECUTED ON 23.01.2008 OF RS. 20,00,000/-. AS PER THIS BANAKHAT THE PROPERTY WAS PURCHASED IN THE NAME OF KIRANBHAI RAVJIBHAI PATEL, DIRECTOR OF KUNJ INFRA DEVELOPMENT PVT. LTD. THEREAFTER, ON 13.06.2008, A SALE DEED OF RS. 42,16,100/- WAS REGISTERED AND IN THE SAID SALE DEED, PURCHASER OF THE PROPERTY WAS MENTIONED AS (I) SHRI KEYURBHAI JITENDRABHAI PATEL (II) SHRI KIRANBHAI RAVJIBHAI PATEL. ON VERIFICATION OF SALE DEED REGISTERED AT NO. 7783 OF 2008, IT IS SEEN THAT ON PAGE NO. 8 THE DETAILS OF PAYMENT OF RS. 42,16,100/- IS SHOWN MENTIONING DATE OF ISSUE OF CHEQUE AND CHEQUE NO. THE PAYMENTS ARE MADE FROM 11.04.2008 TO 10.06.2008 TOTALLING TO RS. 42,16,100/- HAVE BEEN MADE BY KUNJ INFRA DEVELOPMENT PVT. LTD. HOWEVER, FROM THE COPY OF BANK STATEMENT OBTAINED FROM BANK OF BARODA, BHAIRAVANATH, MANINAGAR , AHMEDABAD, THE ACCOUNT OF KUNJ INFRA DEVELOPMENT PVT. LTD. HAS BEEN OPENED ON 22.09.2008. AS PER DOCUMENT REGISTERED AT NO. 7783 OF 2008, THE PAYMENTS MADE BY KUNJ INFRA DEVELOPMENT PVT. LTD. DOES NOT MATCH WITH THE DATES OF PAYMENT OF RS. 42,16,100/-IS MADE WITHIN THE BRACKET OF DATE 11.04.2008 TO 10.06.2008 WHEREAS THE BANK ACCOUNT OF KUNJ INFRA DEVELOPMENT PVT. LTD. HAS BEEN OPENED FROM 22.09.2008. SO IT MAKES IT CLEAR THAT THE COMPANY KUNJ INFRA DEVELOPMENT PVT. LTD. HAS NOT PURCHASED LANDS FROM ITS FUNDS AND LAND ITA NO. 1343/AHD/2017 . A.Y. 2012-13 3 HAS BEEN PURCHASED IN THE NAME OF SHRI KEYURBHAI JITENDRABHAI PATEL IN THEIR INDIVIDUAL CAPACITY AND IN THE DEED NOWHERE IT HAS BEEN STATED THAT ANYWHERE THAT LAND HAS BEEN PURCHASED ON BEHALF OF KUNJ INFRA DEVELOPMENT PVT. 4. THE A.O. NOTED THOUGH COMPANY HAS SHOWN PURCHASE AND SALE OF THE PROPERTY IN ITS BOOKS OF ACCOUNT. HOWEVER, THE COMPANY DID NOT HAVE ANY SOURCE OF INCOME AND THE PROPERTY WAS PURCHASED BY THE APPELLANTS, AS WELL AS APPELLANT HAS NOT FURNISHED ANY PROOF THAT KUNJ INFRA DEVELOPMENT PVT. HAS OFFERED CAPITAL GAIN FOR TAXATION BY FILING ITS RETURN. THE APPELLANT CONTENTION IS THAT THEY CANNOT BE TAXED AS LAND HAS BEEN PURCHASED BY THE COMPANY BUT IT IS PERTINENT TO MENTION HERE THAT COMPANY DID NOT INCUR ANY EXISTENCE IN ORDER TO PURCHASE THE ABOVE SAID LAND. AFTER CONSIDERING THE ABOVE FACTS AN ADDITION OF RS. 51,61,500/- U/S. 68 WAS MADE BY THE ASSESSING OFFICER. 5. ON THE OTHER HAND, LD. A.R. CITED AN ORDER OF JAIPUR BENCH IN THE MATTER OF ACIT VS. SHRI ATMA RAM GUPTA IN ITA NO. 695/JP?2012 IN THE CASE THE AGRICULTURAL LAND WAS PURCHASED ON BEHALF OF THE COMPANY, GFFR PVT. LTD. IN THE NAME OF DIRECTOR, WAS SHOWN IN THE BALANCE SHEET OF THE COMPANY. THE PROPERTY WAS SOLD THROUGH DIRECTOR ON BEHALF OF THE COMPANY AND THE SHORT TERM CAPITAL GAIN WAS SHOWN IN THE RETURN OF THE COMPANY WHEREIN RELIEF WAS GRANTED TO THE ASSESSE. BUT FACTS AND CIRCUMSTANCES ARE TOTALLY DIFFERENT IN THE SAID CASE, COMPANY MADE THE PAYMENTS FOR PURCHASE OF LAND AND SHORT TERM CAPITAL GAIN WAS ALSO SHOWN IN THE RETURN OF THE COMPANY. BUT IN THE PRESENT CASE, NO SHORT TERM CAPITAL GAIN WAS SHOWN IN THE RETURN OF THE COMPANY. THE LD. D.R. RELY ON THE IMPUGNED ORDER. 6. THEREAFTER, ASSESSE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO CONFIRMED THE ACTION OF THE A.O. 7. WE HAVE GONE THROUGH THE RECORD AND IMPUGNED ORDER AND HEARD BOTH THE PARTIES. NOW QUESTION BEFORE US IS WHERE DIRECTOR OF A COMPANY PURCHASED LAND IN HIS ITA NO. 1343/AHD/2017 . A.Y. 2012-13 4 INDIVIDUAL CAPACITY BUT SOLD BY THE COMPANY SO IN THAT CASE WHO WILL BE LIABLE TO PAY CAPITAL GAIN TAX. 8. IN THIS CASE, DIRECTORS OF THE COMPANY PURCHASED LAND IN THEIR INDIVIDUAL CAPACITY AND PAYMENTS WERE MADE FROM THEIR INDIVIDUAL ACCOUNTS BETWEEN THE PERIOD OF 11/04/2008 TO 10/06/2008. IT IS PERTINENT TO NOTE THAT COMPANY BANK ACCOUNT WAS OPENED ON 22/09/2008 SO IT MAKES IT CRYSTAL CLEAR THAT AT THE TIME OF PURCHASING OF LAND COMPANY BANK ACCOUNT WAS NOT IN EXISTENCE MEANING THEREBY COMPANY DID NOT MAKE ANY PAYMENT FOR PURCHASE OF THE LAND. THE ASSESSE MADE PAYMENT FROM HIS PERSONAL ACCOUNT IN AN INDIVIDUAL CAPACITY. 9. SO IN SUCH CASE, WE DO NOT FIND ANY MERIT IN THE APPEAL FILED ON BEHALF OF THE ASSESSE AND THEREFORE WE DECLINE TO INTERFERE IN THE ORDER PASSED BY THE LD. CIT(A). 10. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 22- 02- 2021 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 22/02/2021 RAJESH COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD