Sharad Namdeo Gawade, Pune V. Income-tax Officer, Ward - 9(2), Pune

ITA 1436/PUN/2018

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 7111 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 11-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “SMC”, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT आयकर अपील सं. / ITA No.1436/PUN/2018 नधा रण वष / Assessment Year : 2013-14 Sharad Namdeo Gawade, Gawade Nagar, Link Road, Chinchwad, Pune 411 033 PAN : AAYPG3067F Vs. ITO, Ward-9(2), Pune (Appellant) (Respondent) आदेश / ORDER PER R.S.SYAL, VP : This appeal by the assessee arises out of the order passed by the CIT(A)-13, Pune on 18-07-2018 in relation to the assessment year 2013-14. 2. The only issue raised in this appeal is against the confirmation of the addition of Rs.24.00 lakh made by the Assessing Officer (AO). 3. Tersely stated, the facts of the case are that a survey was conducted at the assessee’s business premises on 03-10-2012, in which the assessee offered an income of Rs.24.00 lakh from the sale of TDR. The return of income was filed declaring income of Rs.11,67,150/-. Since the offered income of Rs.24.00 lakh was not shown distinctly, the Assessing Officer (AO) made an addition of the Appellant by None Respondent by Shri M.G. Jasnani Date of hearing 10-03-2022 Date of pronouncement 10-03-2022 ITA No. 1436/PUN/2018 Sharad Namdeo Gawade 2 equal sum by rejecting the assessee’s contention of having offered Rs.24.00 lakh as part of total contract receipts. The ld. CIT(A) affirmed the same, against which the assessee has approached the Tribunal. 4. I have heard the ld. DR and gone through the relevant material on record. There is no appearance from the side of the assessee despite notice. It can be seen from the impugned order that the assessee offered income of Rs.24.00 lakh from sale of TDR and eventually filed the return declaring income of Rs.11,67,150/-. The case of the assesee is that the said sum of Rs.24.00 lakh was included in the total business contract receipts of Rs.36,51,980/-. Since there was loss of Rs.20,32,975/- from the contract business, the net income offered by the assessee covered full amount of income offered towards sale of TDR at Rs.24.00 lakh. The assessee also supported the contention of loss from the contract business by submitting that he undertook retention wall construction on the Pavna river side, during the relevant year which was made in the summer season and the construction collapsed in June, 2012. As a result of that, he had to re- construct the collapsed retention wall at his own cost, without receiving any corresponding receipts for the second time. This contention made before the authorities as found recorded on page 3 of ITA No. 1436/PUN/2018 Sharad Namdeo Gawade 3 the impugned order, has not been controverted by any plausible reasoning except for not relying on the same. Simply because the assessee wrongly included the sum of Rs.24.00 lakh in the contract receipts, after offering it during the course of survey, it cannot be said that the assessee did not offer such an income. Going with the position as it stands, it emerges that the assessee incurred business loss and earned capital gain of Rs.24.00 lakh. It is after the set off of business loss against the capital gain from sale of TDR, that the net income was offered. Section 71(2) of the Act permits set off of losses under any head of income other than capital gain against the income under the head `Capital gains’. In that view of the matter, the assessee’s contention cannot be rejected. I, therefore, overturn the impugned order and order to delete the addition made and sustained by the authorities below. 5. In the result, the appeal is allowed. Order pronounced in the Open Court on 10 th March, 2022. Sd/- (R.S.SYAL) उपा य / VICE PRESIDENT प ु णे Pune; दनांक Dated : 10 th March, 2022 Satish ITA No. 1436/PUN/2018 Sharad Namdeo Gawade 4 आदेश क त ल प अ े षत / Copy of the Order is forwarded to : 1. अपीलाथ / The Appellant; 2. यथ / The Respondent; 3. The CIT(A)-13, Pune 4. 5. The Pr.CIT-5, Pune वभागीय त न ध, आयकर अपील!य अ धकरण, प ु णे “SMC” / DR ‘SMC’, ITAT, Pune; 6. गाड फाईल / Guard file. आदेशान ु सार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune Date 1. Draft dictated on 10-03-2022 Sr.PS 2. Draft placed before author 10-03-2022 Sr.PS 3. Draft proposed & placed before the second member -- JM 4. Draft discussed/approved by Second Member. -- JM 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *