Sudarshan Wamanmaharaj Degloorkar, Beed V. Income-tax Officer,

ITA 1404/PUN/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9135 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-03-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 28-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Reasonable cause
• Section: 2(14)

Judgement Text

SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE . , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO.1404/PUN/2016 / ASSESSMENT YEAR : 2011-12 SUDARSHAN WAMANMAHARAJ DEGLOORKAR, A-23, GOPAL APARTMENT, GOVIND NAGAR, NEAR MANE COMPLEX, BEED. PAN : AFSPD3909A . /APPELLANT VS. INCOME-TAX OFFICER, WARD-2(4), BEED . / RESPONDENT / APPELLANT BY : SMT. DEEPA KHARE / RESPONDENT BY : SHRI AJAY MODI, JCIT / DATE OF HEARING : 13.03.2018 / DATE OF PRONOUNCEMENT: 13.03.2018 / ORDER PER D. KARUNAKARA RAO, AM : THIS IS THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDE R OF CIT(A)-2, AURANGABAD, DATED 10-02-2016 FOR THE ASSESSME NT YEAR 2011-12. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE BROUGHT MY ATTENTION TO THE AFFIDAVIT DATED 28-11-2016 FILED BY THE ASSESSEE AN D SUBMITTED THAT THERE IS DELAY OF 78 DAYS IN FILING THE APPEAL (SIC : 77 DAYS). ASSESSEE STATED IN THE AFFIDAVIT THAT THE DELAY IS ATTRIBUT ABLE TO SHIFTING OF HIS HOUSE TEMPORARILY AND THE RELATED COMMUNICATION G AP BETWEEN THE ASSESSEE AND THE TAX CONSULTANT. THEREFORE, LD. COUN SEL PRAYED FOR ADMITTING THE APPEAL CONDONING THE DELAY 2 3. AFTER HEARING BOTH THE PARTIES AND CONSIDERING THE CO NTENTS OF THE AFFIDAVIT FILED BY THE ASSESSEE, I AM OF THE OPINION THAT THE APPEAL IS REQUIRED TO BE ADMITTED FOR ADJUDICATION CONSIDERING THE SMALLNESS OF THE DELAY AND THE REASONABLE CAUSE SPECIFIED IN THE AFFIDAVIT. 4. GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER : ON FACTS AND IN LAW, 1. THE LD.CIT(A) ERRED IN CONFIRMING THE ADDITION MADE BY THE AO OF RS.3,08,000/- AS INCOME FROM SALE OF LAND WITHOUT A PPRECIATING THE FACTS OF THE CASE. 2. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 5. BRIEFLY STATED RELEVANT FACTS ARE THAT THE ASSESSEE I S AN INDIVIDUAL AND WORKING AS A MARKING EXECUTIVE. ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.9,27,845/-. THE RE IS A DISPUTE ABOUT THE TAXABILITY OF INCOME FROM SALE OF LAND AND ALSO THE INTEREST INCOME. DURING THE COURSE OF ASSESSMENT PROCE EDINGS, THE AO FOUND THAT THE ASSESSEE RECEIVED A SUM OF RS.3,68,010/- FR OM VIMLA CHANDRAKANT IN CONNECTION WITH THE TRANSACTION OF SALE OF LAND. THE DETAILS WERE CALLED FOR IN SUPPORT OF THE SAME. IN SUPPORT, THE ASSESS EE FILED A SALE DEED ALONG WITH 7/12 EXTRACT EVIDENCING THE SA LE OF LAND (GUT NO.69) SITUATED AT BALWAD, TALUKA VELHE, DIST. PUNE. THE PURCHASE VALUE OF THE LAND IS SAID TO BE RS.60,000/- AS ON 12-05- 2008. ASSESSEE CLAIMED EXEMPT OF CAPITAL GAINS AND HELD TH AT THE SAME CONSTITUTES AS AN AGRICULTURAL LAND LOCATED IN REMOTE AREA OF BALWAD. AS PER THE 7/12 EXTRACT, THERE WAS AN ENTRY REGARDING GROWING OF RICE IN THE SAID LAND. HOWEVER, ASSESSEE DID NOT FILE SUPPORTING DOCUMENTS BEFORE THE AO. THUS, THERE IS NO P ROOF WHATSOEVER FURNISHED BY THE ASSESSEE EVIDENCING THE EAR NING OF AGRICULTURAL INCOME FROM THE SAID LAND. THEREFORE, AO INVOKE D THE 3 PROVISIONS OF SUB-CLAUSE (III)(B) OF SECTION 2(14) OF THE ACT AND CONSIDERED THE SAME AS A NON-AGRICULTURAL LAND BEFORE TAX ING THE CAPITAL GAINS, I.E. RS.3,68,000 RS.60,000 = RS.3,08,000/- . 6. DURING THE FIRST APPELLATE PROCEEDINGS, ESSENTIALLY FOR WA NT OF EVIDENCES REGARDING THE AGRICULTURAL NATURE OF THE LAND AN D THE LOCATION OF THE LAND BEYOND MUNICIPAL LIMITS AND ALSO FOR WANT OF WRITTEN SUBMISSIONS, THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON THIS ISSUE. RELEVANT LINES FROM PARA NO.6 OF THE ORDER O F CIT(A) ARE RELEVANT AND THE SAME ARE EXTRACTED AS UNDER : 6.HOWEVER, THE ASSESSEE DID NOT PROVIDE A NY EVIDENCE TO SHOW THAT THE LAND WAS SITUATED OUTSIDE THE MUNICIPAL LIMITS AND HE DID NOT PROVIDE ANY EVIDENCE WHICH WOULD IND ICATE THAT THE LAND WAS INDEED UNDER CULTIVATION IN THE YEARS PRIOR TO ITS SALE. THE ASSESSEE HAS ALSO NOT MADE ANY WRITTEN SUBMISSIONS WHICH WOULD ENABLE ME TO MAKE ANY ENQUIRY OR TO THE REMAND OF T HE PROCEEDINGS. UNDER THE CIRCUMSTANCES, I HOLD THAT THE ADDITION M ADE BY THE ASSESSING OFFICER DOES NOT SUFFER FROM ANY INCONGRU ITY OR INFIRMITY AND THEREFORE, THE SAME IS SUSTAINED. GROUND NOS. 2 & 3 ARE DISMISSED. 7. BEFORE ME, LD. COUNSEL FOR THE ASSESSEE FILED THE PAPER BOOK AND PRAYED FOR GRANT OF ANOTHER OPPORTUNITY BEFORE THE AO FOR FILING THE REQUISITE EVIDENCES IN CONNECTION WITH THE AGRICULTURAL LAND SOLD BY THE ASSESSEE UNDER CONSIDERATION. INFORMING THE LOCATION OF T HE LAND AS WELL AS THE ENTRIES IN THE 7/12 EXTRACT, LD. COUNSEL FOR TH E ASSESSEE SUBMITTED THAT THE OFFICERS HAVE ERRED IN NOT APPRECIATING THE ENTRIES MADE BY THE REVENUE AUTHORITIES. THEREFORE, LD. COUNSEL S UBMITTED THAT, IF AN OPPORTUNITY IS GRANTED, THE ASSESSEE CAN DEMO NSTRATE BEFORE THE AUTHORITIES REGARDING THE CORRECTNESS OF THE ENTRIES AND THE NATURE OF THE LAND BEING AGRICULTURAL ONE WITH REQUISITE EVIDENCES. 8. ON HEARING BOTH THE PARTIES, I FIND THIS IS A FIT CASE FOR REMANDING THE ISSUE TO THE FILE OF AO FOR FRESH EXAMINATION OF EVIDENCES ON THIS PARTICULAR ISSUE RELATING TO AGRICULTURAL N ATURE OF THE 4 LAND SOLD BY THE ASSESSEE. AO SHALL EXAMINE CONDITION SPE CIFIED IN THE SAID PROVISIONS AND ALSO TO EXAMINE THE LOCATION OF THE LAND AND APPLICABILITY OF THE PROVISIONS OF SECTION 2(14) OF THE ACT. A SSESSEE IS ALSO DIRECTED TO FILE THE NECESSARY EVIDENCES BEFORE THE AO AND DEMONSTRATE THAT THE LAND SOLD BY THE ASSESSEE CONSTI TUTES AN AGRICULTURAL LAND FROM THE POINT OF VIEW OF TAXATION. WITH TH ESE DIRECTIONS, THE ISSUE IS REMITTED BACK TO THE FILE OF AO FOR FR ESH ADJUDICATION. AO SHALL GRANT REASONABLE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE IN ACCORDANCE WITH SET PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 13 TH DAY OF MARCH, 2018. SD/- (D.KARUNAKARA RAO) / ACCOUNTANT MEMBER / PUNE; DATED : 13 TH MARCH, 2018. SATISH / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A)-2, AURANGABAD 4. / THE CIT-2, AURANGABAD 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// //TRUE COPY// SENIOR PRI VATE SECRETARY , / ITAT, PUNE