Ravindra Joma Bhagat, Raigad V. ITO, Panvel

ITA 1445/PUN/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4353 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 29-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH VERMA
• Keywords: Capital asset; Business income; Opportunity of being heard; Principle of natural justice; Cost of acquisition; Revised return
• Section: 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K. PANDA, ACCOUNTANT MEMBER. ITA.NOS.1445/PN/2012 (ASSESSMENT YEAR 2009-10) RAVINDRA JOMA BHAGAT, 9, MAULI CHHAYA NO.6, SECTOR 19, NEW PANVEL, RAIGAD .. APPELLANT PAN NO. ACQPB 9592E VS. ITO, WARD-1, PANVEL .. RESPONDENT ASSESSEE BY : SRI SHARAD SHAH REVENUE BY : SRI MUKESH VERMA DATE OF HEARING : 10-04-2013 DATE OF PRONOUNCEMENT : 14-05-2013 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 12-03-2012 OF THE CIT(A)-I, THANE RELATING TO ASSES SMENT YEARS 2009-10. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND IS ENGAGED IN THE BUSINESS OF TRADING IN LAND BESIDES DERIVING INCOME FROM HOUSE PROPERTY AND AGRICULTURAL INCOME. A SURVEY U /S.133A OF THE INCOME TAX ACT WAS CARRIED OUT AT THE ASSESSEES BUSINESS PREMISES ON 26-02-2010. DURING THE COURSE OF SURVEY, STATEMENT OF SRI NEELA KANTH JOMA BHAGAT, BROTHER OF THE ASSESSEE WAS RECORDED ON OATH SINCE THE ASSESSEE WAS NOT AVAILABLE. ON THE DATE OF SURVEY ACTION, SOME LOOS E PAPERS AND DOCUMENTS WERE FOUND WHICH WERE IMPOUNDED. IN RESPONSE TO SU MMONS U/S.131 OF THE INCOME TAX ACT, 1961 THE ASSESSEE ATTENDED BEFORE T HE ASSESSING OFFICER ON 02-03-2010 AND HIS STATEMENT WAS RECORDED. POST SURVEY ENQUIRIES REVEALED THAT ASSESSEE WAS HAVING A NUMBER OF BANK ACCOUNTS IN DIFFERENT BANKS WHICH WERE NOT DISCLOSED IN HIS RETURN FILED. THEREAFTER, THE ASSESSEE 2 FILED HIS RETURN OF INCOME FOR A.Y. 2009-10 AND 201 0-11 ON 16-08-2010 DECLARING INCOME OF RS.2,77,35,954/- FOR A.Y. 2009- 10 AND RS.3,04,28,180/- FOR A.Y. 2010-11. 2.1 THE ASSESSING OFFICER NOTED FROM THE INCOME AND EXPENDITURE ACCOUNT AND BALANCE SHEET SUBMITTED BY THE ASSESSEE THAT THE INCOME OVER EXPENDITURE ARE SHOWN AT RS.7,78,95,408/- FOR A.Y. 2009-10 AND RS.3,91,77,213/- FOR A.Y. 2010-11. HE NOTED THAT AS PER POST SURVEY ENQUIRY THE ASSESSEE HAS SOLD LAND AT SURVEY NOS.89 , 93, 94, 95 AND 97 AT SOMATHANE VILLAGE, TAL. PANVEL, DIST. RAIGAD AND HA S MAINTAINED VARIOUS BANK ACCOUNTS IN DIFFERENT BRANCHES AT VASHI & NAVI MUMBAI WHEREIN SALE CONSIDERATION OF MORE THAN RS.10 CRORES HAVE BEEN C REDITED. IN ORDER TO VERIFY THE DISTANCE OF SAID LAND FROM PANVEL MUNICI PAL CORPORATION, THE ASSESSING OFFICER ISSUED SUMMONS U/S.131 TO THE SUB DIVISIONAL ENGINEER, PANVEL WHOSE STATEMENT WAS RECORDED. DURING THE ST ATEMENT, THE SUB- DIVISIONAL ENGINEER CONFIRMED THAT THE SAID LAND IS ONLY 6.5 KMS AWAY FROM THE OUTER LIMIT OF PANVEL MUNICIPAL CORPORATION. F URTHER, VIDE HIS LETTER DATED 19-03-2010 THE SAID SUB-DIVISIONAL ENGINEER S PECIFICALLY STATED THAT THE LAND IN QUESTION WAS LOCATED WITHIN 8 KMS FROM OUTER LIMIT OF PANVEL MUNICIPAL CORPORATION. 3. DESPITE GIVING REPEATED OPPORTUNITIES BY THE ASS ESSING OFFICER TO FURNISH THE DETAILS OF EXPENSES ETC. ALONG WITH BOO KS OF ACCOUNTS, BILLS AND VOUCHERS AND OTHER EVIDENCES FOR HIS VERIFICATION T HE ASSESSEE DID NOT PRODUCE THE SAME. THEREFORE, THE ASSESSING OFFICER GAVE FINAL OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WHO SUBMITTED A LETT ER DATED 18-03-2011 STATING THAT THIS IS A CASE OF CAPITAL GAIN AND THA T HE HAS FILED THE REVISED E- 3 RETURN FOR THE RELEVANT ASSESSMENT YEAR AND REQUEST ED THE AO TO TREAT THE EARLIER RETURN AS WITHDRAWN OR CANCELLED. IT WAS F URTHER SUBMITTED THAT THE ASSESSEE IS NOT MAINTAINING ANY BOOKS OF ACCOUNTS S INCE HE IS NOT IN TRADING OR ANY BUSINESS ACTIVITY. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE DIRECT AND INDIRE CT EXPENSES DEBITED TO THE INCOME AND EXPENDITURE ACCOUNT WITH SUPPORTING DOCU MENTS/EVIDENCES FOR F.Y. 2008-09 RELEVANT TO A.Y. 2009-10. IN ORDER TO SUBSTANTIATE THE COST OF ACQUISITION OF LAND DEBITED TO INCOME AND EXPENDITU RE ACCOUNT THE ASSESSING OFFICER REQUESTED THE ASSESSEE TO SUBMIT THE DETAILS OF PURCHASE OF LAND ALONG WITH DOCUMENTARY EVIDENCE. IN RESPON SE TO THE SAME THE ASSESSEE SUBMITTED YEAR-WISE SALE CONSIDERATION AS PER REVISED E-RETURN WHICH IS AS UNDER : THE ASSESSEE IN HIS STATEMENT CLAIMED TOTAL EXPENSE S OF RS.17,67,80,425/- INCURRED ON ACCOUNT OF SALE OF LAND AGAINST TOTAL S ALE CONSIDERATION OF RS.27,95,65,425/-. THE ASSESSING OFFICER NOTED THA T FOR THE A.Y. 2010-11 THE EXPENSES INCURRED FOR LAND WAS RS.33,72,125/- A ND THE ASSESSEE HAS CLAIMED BALANCE EXPENSES OF RS.17,34,08,300/- FOR T HE A.Y. 2009-10. 5. IN RESPONSE TO THE QUERRY RAISED BY THE ASSESSIN G OFFICER, THE ASSESSEE SUBMITTED A COPY OF IRREVOCABLE POWER OF A TTORNEY DATED 14-07- 2006 TAKEN FROM MRS. BELA D. GODHA ALONG WITH COPY OF SATHEKARAR F.Y. A.Y. AMOUNT 2008-09 2009-10 27,42,52,500/- 2009-10 2010-11 53,12,500/- 27,95,65,000/- 4 (AGREEMENT FOR SALE) DATED 25-03-2002 FOR AGRICULTU RAL LAND ADMEASURING 32 ACRES AT VILLAGE SOMATHANE ON 25-03-2011. IT WAS E XPLAINED THAT THE ASSESSEE IS THE OWNER OF THE SAID LAND WHICH WAS AC QUIRED/PURCHASED BY HIM IN THE YEAR 2002 AS PER SATHEKARAR (AGREEMENT FOR SALE). THUS, HE BECAME THE POWER OF ATTORNEY HOLDER AND ACCORDINGLY ENTERE D INTO SALE CONSIDERATION OF THE SAID LAND WITH VARIOUS PARTIES IN A CAPACITY OF POWER OF ATTORNEY HOLDER. IT WAS SUBMITTED THAT THE ASSESSEE ENTERED INTO SALE AGREEMENT WITH DIFFERENT PARTIES AND SUBSEQUENTLY AFTER CANCELLATI ON WITH THE SAME PARTY THE SAID LAND WAS FINALLY SOLD TO MR.NEMICHAND J. MEHTA AND OTHERS FOR A SALE CONSIDERATION OF RS.27,95,65,000/- DURING THE F.Y. 2008-09. IT WAS REQUESTED TO CONSIDER THE SAID LAND TRANSACTIONS UN DER THE HEAD LONG TERM CAPITAL GAIN AS PER REVISED E-RETURN FILED ON 17-0 3-2011 INSTEAD OF BUSINESS INCOME AS SHOWN IN THE ORIGINAL RETURN F ILED ON 16-08-2010. IN REPLY TO THE QUERY RAISED BY THE ASSESSING OFFICER THE ASSESSEE STATED THAT THE COST OF ACQUISITION OF THE LAND IS RS.2,84,00,0 00/- AND THE TOTAL EXPENSES INCURRED ARE RS.17,67,80,425/- UNDER DIFFERENT HEAD S ON ACCOUNT OF SALE OF LAND. 6. THE ASSESSING OFFICER NOTED FROM THE VARIOUS SUB MISSIONS BY THE ASSESSEE THAT THE ASSESSEE HAD PURCHASED THE SAID L AND FOR THE PURPOSE OF BUSINESS OF SALE OF LAND TO ONE OR MORE PERSONS AND EARNED PROFIT. HE OBSERVED THAT THE ASSESSEE HAD ENTERED INTO SALE AG REEMENT/DEED FOR PART OF SAID LAND WITH DIFFERENT PARTIES VIZ., MAHALAXMI DE VELOPER AND OTHERS WHICH COULD NOT BE MATERIALISED AND RESULTED INTO CANCELL ATION OF THE SAME. FINALLY, THE ENTIRE PLOT OF LAND OF 32.89 ACRES HAV E BEEN SOLD OUT TO MR. NEMICHAND J. MEHTA AND OTHERS FOR A CONSIDERATION O F RS.27,95,65,000/-. THE ABOVE AMOUNT INCLUDES ADDITIONAL CONSIDERATION OF RS.11,51,15,000/- 5 RECEIVED BY ASSESSEE AS RE-IMBURSEMENT OF PAYMENTS MADE TO VARIOUS PARTIES FOR APPROACH ROAD, SETTLEMENT OF DISPUTE ET C. THEREFORE, THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT THE A SSESSEE INCURRED DEVELOPMENT EXPENDITURE TO ENHANCE THE PRICE OF LAN D WHICH CONFIRMED THE NATURE OF TRADE INVOLVED IN THE SAID LAND TRANSACTI ON. HE, THEREFORE, CAME TO THE CONCLUSION THAT THE ASSESSEE WAS ENGAGED IN BUS INESS OF LAND TRADING WHICH IS AN ADVENTURE IN THE NATURE OF TRADE AS PER SECTION 28(I) OF THE INCOME TAX ACT. RELYING ON VARIOUS DECISIONS THE A SSESSING OFFICER CONSIDERED THE ENTIRE SALE CONSIDERATION AS BUSINES S INCOME OF ASSESSEE. SINCE THE ASSESSEE HAS OFFERED SALE CONSIDERATION T O TAX IN 2 A.YS. I.E. 2009- 10 AND 2010-11, HE BIFURCATED THE ADDITIONAL SALE C ONSIDERATION REIMBURSED TO ASSESSEE IN THE SAME RATIO OF SALE CONSIDERATION I.E. RS.11,29,27,500/- FOR A.Y. 2009-10 AND RS.21,87,500/- FOR A.Y. 2010-11. SINCE THE PURCHASER OF LAND HAS CERTIFIED THAT RS.11,29,27,800/- HAS BEEN REIMBURSED TO ASSESSEE ON ACCOUNT OF PAYMENT MADE TO VARIOUS PARTIES THE ASSE SSING OFFICER ALLOWED THE SAME. HOWEVER, IN ABSENCE OF SUPPORTING DETAIL S THE ASSESSING OFFICER DISALLOWED THE BALANCE EXPENDITURE OF RS.5,20,80,00 /-. THE ASSESSING OFFICER ACCORDINGLY MADE ADDITION OF RS.16,13,25,00 0/- TO THE TOTAL INCOME OF THE ASSESSEE UNDER THE HEAD BUSINESS INCOME. 7. BEFORE CIT(A) THE ASSESSEE SUBMITTED THAT THE OR IGINAL RETURN FILED BY THE ASSESSEE ON 16-08-2010 DECLARING HIS INCOME FRO M SOLITARY/ISOLATED SALE OF AGRICULTURAL LAND TO ONE PURCHASER/PARTY AS NORM AL INCOME. THE RETURN WAS FILED IN RESPONSE TO NOTICE U/S.142(1). SUBSEQ UENTLY, THE ASSESSEE FILED THE REVISED RETURN ON 17-03-2011. THEREFORE, THE R EVISED RETURN FILED BY THE ASSESSEE COULD NOT HAVE BEEN IGNORED BY THE ASSESSI NG OFFICER. SO FAR AS THE MERIT OF THE CASE IS CONCERNED, IT WAS SUBMITTE D THAT THE ASSESSING 6 OFFICER DID NOT BOTHER TO CALL UPON THE ASSESSEE TO MAKE SUBMISSION AND HENCE HE HAS VIOLATED THE PRINCIPLES OF NATURAL JUS TICE. IT WAS SUBMITTED THAT THE PAYMENT TO THE LAND OWNER AT RS. 84 LAKHS HAS N OT BEEN ALLOWED BY THE ASSESSING OFFICER BY MISTAKE WHICH NEEDS TO BE ALLO WED. 8. HOWEVER, THE LD.CIT(A) WAS ALSO NOT CONVINCED WI TH THE EXPLANATION GIVEN BY THE ASSESSEE AND UPHELD THE ACTION OF THE ASSESSING OFFICER BY HOLDING AS UNDER : 4. I HAVE CAREFULLY CONSIDERED THE FACTS ON RECORD AND THE SUBMISSION OF THE APPELLANT. I FIND THAT THE ORIGINAL RETURN OF INCOM E WAS FILED BY THE APPELLANT ON 16/08/2010 SHOWING PROFITS AND GAINS OF BUSINESS OR PROFESSION FROM THE LAND TRANSACTIONS AT RS.2,75,61,526/- . THIS RETURN OF I NCOME HAS BEEN FILED AFTER THE DUE DATE SPECIFIED U/S. 139(1) OF THE ACT AND HENCE THE REVISED RETURN FILED ON 17/03/2011 WAS NOT A VALID RETURN BECAUSE A REVISED RETURN CAN ONLY BE FILED IF THE ORIGINAL RETURN HAS BEEN FILED IN TIME U/S. 139(1) OF THE ACT. THUS, THE ARGUMENTS OF THE APPELLANT IN THIS REGARD ARE AGAINST THE LAW AND HENCE ARE REJECTED. ACCORDINGLY, THE REVISED RETURN OF INCOME IS NON-EST IN THE EYES OF LAW. 4.1 ON PERUSAL OF COPY OF ORIGINAL RETURN OF INCOME , IT IS NOTICED THAT THE APPELLANT HAD DISCLOSED INCOME FROM HOUSE PROPERTY AT RS. 2,74,428/- AND PROFIT & GAINS OF BUSINESS OR PROFESSION AT RS.2,75,61,526 /- TOTALLING TO RS.2,77,35,950/- AFTER CLAIMING DEDUCTION OF RS.1,0 0,000/- U/S. 80C. THUS, REVISED RETURN OF INCOME BEING INVALID RETURN, THE INCOME FROM SALE OF LAND IN QUESTION REMAINS BUSINESS INCOME EVEN AS PER APPELL ANT'S OWN ADMISSION AND RECORD. FURTHER, I FIND THAT THE LAND IN QUESTION W AS NOT ACTUALLY TRANSFERRED IN THE NAME OF APPELLANT. IN FACT, THE APPELLANT HAD A CQUIRED ONLY CERTAIN RIGHTS IN LAND VIDE AN AGREEMENT TO SALE DT.22.03.2002. THIS AGREEMENT IS ALSO NOT REGISTERED. IMMEDIATELY AFTER THIS AGREEMENT, THE A PPELLANT HAS TRIED TO FIND OUT THE SUITABLE BUYERS AND ALSO AGREED TO SELL THE SAM E TO MAHALAXMI DEVELOPERS & OTHERS. HOWEVER, THIS DEAL WAS CANCELLED AS PER APP ELLANT'S OWN VERSION. FINALLY, THE LAND HAS BEEN SOLD TO SHRI. NEMICHAND J. MEHTA & OTHERS AND THE APPELLANT HAS BEEN SHOWN AS VENDOR APPOINTED BY SMT . BELA DHARMA GODHA AS IRREVOCABLE POWER OF ATTORNEY HOLDER VIDE A DOCUMEN T DT. 14.07.2006. IT IS ALSO NOTICED THAT THE PURCHASER HAS DIRECTLY PAID RS.2,8 4,00,000/- TO SMT. BELA D. GODHA CONSIDERATION FOR HER RIGHTS IN THE LAND. THEREFORE, I HOLD THAT THE APPELLANT WAS NOT THE ABSOLUTE OWNER OF THE LAND IN QUESTION. 4.2 FROM THE DOCUMENTS FURNISHED DURING THE CO URSE OF APPELLATE PROCEEDINGS, IT IS NOTICED THAT THE APPELLANT ENJOYS TERM LOAN O F RS. 20 LAKH AND CASH CREDIT OF RS.1.50 LAKH FROM UNION BANK OF INDIA, PANVEL BRANC H, PANVEL VIDE LETTER DATED 15.03.2004. IT IS VERY RELEVANT TO POINT OUT HERE T HAT TERM LOAN AND CASH CREDIT FACILITIES ARE ALWAYS TAKEN FOR THE PURPOSES OF BUS INESS OR PROFESSION AND APPELLANT HAS NOT DISCLOSED ANY INCOME FROM BUSINES S OR PROFESSION IN THE RETURN OF INCOME EXCEPT FOR PROFITS AND GAINS OF BUSINESS OR PROFESSION FROM SALE OF LAND IN QUESTION. MOST IMPORTANTLY, VIDE A LETTER D ATED 15/05/2008 PRIOR TO THE SALE OF LANDS (BETWEEN JUNE 2008 TO OCTOBER, 2008), SHRI. NEMICHAND 3. MEHTA REQUIRED THE APPELLANT TO GET THE TITLE CLEARED, AN D PERMISSION FROM THE GOVT. FOR LAND UNDER 32G AND PROVIDE APPROACH ROAD FROM THE R OAD, LEVEL THE SURFACE AND 7 DEVELOP THE LAND SO AS TO MAKE IT USABLE. THE APPEL LANT HAS ALSO ACCORDINGLY ACTED UPON AND CLAIMED AN EXPENDITURE OF RS.11,51,15,000/ - AS CERTIFIED BY THE PURCHASER FOR SUCH WORK OF DEVELOPMENT OF LAND. ADM ITTEDLY, THE APPELLANT HAS ALSO RECEIVED ADDITIONAL COMPENSATION AT RS.35 LAKH S PER ACRE FROM THE PURCHASER FOR DEVELOPMENTAL WORK. 4.3 THUS, IN VIEW OF THE ABOVE MENTIONED FACTS AND CIRCUMSTANCES, IT IS CRYSTAL CLEAR THAT THE LAND IN QUESTION WAS ALWAYS MEANT FOR DEVELOPMENT AND NOT FOR AGRICULTURAL PURPOSES AND ACCORDINGLY, THE SAME HAS BEEN SOLD BY THE APPELLANT FOR AND ON BEHALF OF SELF AND MRS. BELA D . GODHA. THE EXPENSES ON ACCOUNT OF DEVELOPMENTAL WORK, TO THE EXTENT OF VERIFIABLE ONE , HAVE ALSO BEEN ALLOWED BY THE ASSESSING OFFICER. THEREFORE, I HOLD THAT THE TRANSACTIONS OF PURCHASE AND SALE OF LAND AFTER DEVELOPMENT, ARE IN THE NATURE OF BUSINESS AND ACCORDINGLY, ACTION OF A.O IN ASSESSING THE PROFITS AS INCOME FROM BUSINESS IS UPHELD. HENCE, THE APPELLANT FAILS IN RESPECT OF GROUNDS NO. 1 TO 7. 5. REGARDING CLAIM OF FURTHER EXPENSES, VIDE GROUN D NO. 9, I FIND THAT THE A.O HAS ALLOWED THE EXPENSES WHICH ARE VERIFIABLE. THUS, NO FURTHER CLAIM WILL BE ADMISSIBLE MERELY BECAUSE THE PAYMENT HAS BEEN MADE . THE EXPENSES ARE ADMISSIBLE ONLY IF THEY ARE ACTUALLY INCURRED AND T HAT TOO WHOLLY AND EXCLUSIVELY FOR THE PURPOSES OF BUSINESS. IN THE ABSENCE OF ANY CON CRETE EVIDENCES, NO FURTHER CLAIM OF EXPENSES IS ALLOWABLE. THUS, ACTIO N OF A.O. IS CONFIRMED IN THIS REGARD AND GROUND NO. 9 IS, ACCORDINGLY, DISMISSED. 6. SINCE THE PAYMENT TO SMT. BELA D. GODHA IS DIRE CTLY MADE BY THE PURCHASER SHRI. NEMICHAND J. MEHTA & OTHERS, THE AP PELLANT IS NOT ENTITLED TO ANY CLAIM OF EXPENSES ON THIS ACCOUNT. ACCORDINGLY, GROUND NO. 11 IS DISMISSED. 7. REGARDING CLAIM U/S. 54F, IT IS NOTICED THAT NO SUCH CLAIM WAS MADE IN THE ORIGINAL RETURN WHICH WAS ONLY A VALID RETURN. FURTHER, SINCE INCOME FROM SALE OF LAND HAS BEEN HELD TO BE A BUSINESS INCOME, NO SUCH CLAIM IS ADMISSIBLE AS PER LAW. HENCE, THE APPELLANT FAILS, ON GROUND N O. 8. 8. AS REGARDS VIOLATION OF PRINCIPLES OF NATURAL J USTICE, I FIND THAT THE A.O HAS CONDUCTED SURVEY U/S.133A, EXAMINED THE MATERIA L, CARRIED OUT POST SURVEY ENQUIRIES AND THEN ONLY THE RETURN OF INCOME HAS BEEN FILED. FURTHER, VARIOUS OPPORTUNITIES OF BEING HEARD AS DETAILED IN PARA 9 ASSESSMENT ORDER HAVE BEEN PROVIDED TO THE APPELLANT BY THE A.O. DUR ING APPELLATE PROCEEDINGS ALSO, THE A.R. OF THE APPELLANT HAS BEEN GIVEN SUFF ICIENT OPPORTUNITIES OF HEARING. THUS, PRINCIPLES OF NATURAL JUSTICE HAVE B EEN DULY OBSERVED AND HENCE GROUND NO.10 IN THIS REGARD IS UNWARRANTED AND IS D ISMISSED. 9. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSE SSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING CONCISE GROUNDS OF APP EAL : 1. THE LEARNED A.O. ERRED AND LEARNED CIT(A) ERR ED IN CONFIRMING THAT THE REVISED RETURN FILED BY THE ASSESSEE IS NO N-EST. 2. THE LEARNED A.O. ERRED AND LEARNED CIT(A) ERRE D IN CONFIRMING THE ASSESSMENT WHICH IS NOT BASED ON DULY FILED REVISED RETURN AND THEREFORE, THE ASSESSMENT BE QUASHED AND INCOME BE ACCEPTED AS PER REVISED RETURN DULY FILED. 8 3. THE LEARNED A.O. ERRED AND LEARNED CIT(A) ERRE D IN CONFIRMING THE ASSESSMENT OF SALE OF PROPERTY AS BUSINESS INCOME B Y APPLYING THE PRINCIPLE OF ADVENTURE IN THE NATURE OF TRADE. 4. THE LEARNED A.O. ERRED IN NOT GIVING REASONABL E OPPORTUNITY TO THE ASSESSEE, WHILE RELYING ON EVIDENCES SUBMITTED BY T HIRD PARTIES AND THUS HE FAILED ON THE PRINCIPLE OF NATURAL JUSTICE AND THER EFORE THE ASSESSMENT BE DECLARED NULL. 5. THE LEARNED A.O. ERRED IN NOT APPRECIATING TH E FACT THAT THE RELEVANT CAPITAL ASSET IS AN AGRICULTURE LAND BEYOND 8 K.M. BY ROAD AND THEREFORE THE SAME SHOULD NOT BE CHARGED TO TAX AT ALL. 6. THE LEARNED A.O. ERRED IN NOT ACCEPTING THE IN COME AS PER THE RETURN OF INCOME FILED BY THE ASSESSEE. 7. THE APPELLANT CRAVES ITS RIGHT TO ADD TO OR A LTER THE GROUNDS OF APPEAL AT ANY TIME BEFORE OR DURING THE COURSE OF HEARING OF THE CASE. 10. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT THE ASSESSEE HAD FILED THE RETURN ON 16-08-2010 IN RESP ONSE TO NOTICE U/S.142(1) OF THE INCOME TAX ACT. REFERRING TO PAGE NO. 3 OF THE PAPER BOOK THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO THE NOTICE ISSUED BY THE ASSESSING OFFICER U/S.142(1) OF THE INCOME T AX ACT ON 03-03-2010. REFERRING TO PROVISIONS OF SECTION 139(5) HE SUBMIT TED THAT IF ANY PERSON HAVING FURNISHED A RETURN IN PURSUANCE OF A NOTICE U/S.142(1) OF THE ACT DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THERE IN HE MAY FURNISH A REVISED RETURN AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION O F THE ASSESSMENT, WHICHEVER IS EARLIER. HE SUBMITTED THAT SINCE THE ASSESSEE, IN THE INSTANT CASE, HAS FILED THE RETURN IN RESPONSE TO NOTICE U /S.142(1), THEREFORE, THE LD. CIT(A) WAS NOT JUSTIFIED IN HOLDING THAT THE REVISE D RETURN FILED BY THE ASSESSEE IS NON-EST. 10.1 RELYING ON A NUMBER OF DECISIONS HE SUBMITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ACTION OF THE AO HOLDING THAT THE ISOLATED 9 TRANSACTION OF LAND AMOUNTS TO ADVENTURE IN NATURE OF TRADE AND NOT CAPITAL GAIN AS CLAIMED BY THE ASSESSEE. HE SUBMITTED THAT SUFFICIENT OPPORTUNITY HAS NOT BEEN GRANTED TO THE ASSESSEE TO EXPLAIN THE VARIOUS EXPENSES CLAIMED AND REQUESTED THAT ONE MORE OPPORTUNITY MAY BE GIVE N TO THE ASSESSEE TO SUBSTANTIATE WITH EVIDENCE TO THE SATISFACTION OF T HE ASSESSING OFFICER REGARDING THE VARIOUS EXPENSES CLAIMED IN THE INCOM E AND EXPENDITURE ACCOUNT. 11. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND WHILE SUPPORTING THE ORDER OF THE ASSESSING OFFICER AND C IT(A) SUBMITTED THAT DESPITE SUFFICIENT OPPORTUNITIES GRANTED BY THE ASS ESSING OFFICER, THE ASSESSEE NEVER PRODUCED THE REQUISITE DETAILS. HE SUBMITTED THAT THE ASSESSEE IN THE INSTANT CASE HAS SYSTEMATICALLY ENT ERED INTO TRANSACTIONS FOR TRANSFER OF LAND WHICH IS NOTHING BUT AN ADVENTURE IN NATURE OF TRADE AND THE SAME CANNOT BE CONSIDERED AS INCOME FROM CAPITAL GA IN. FURTHER, THE ASSESSEE WAS ONLY A POWER OF ATTORNEY HOLDER AND NO T THE OWNER OF THE LAND, THEREFORE, THERE IS NO QUESTION OF ANY CAPITAL GAIN AS CLAIMED BY THE ASSESSEE. 12. SO FAR AS THE QUESTION OF CONSIDERING THE REVIS ED RETURN AS NON-EST OR A PROPER RETURN HE SUBMITTED THAT THE LD. CIT(A) HAS NOT CONSIDERED THE SAME IN THE LIGHT OF THE PROVISIONS OF SECTION 139(5). HE ACCORDINGLY SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE LD. CIT(A) OR THE ASSESSING OFFICER. 13. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER 10 BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS RELIED ON BY BOTH THE SIDES. WE FIND THE ASSESSEE IN THE INSTANT CASE HAS FILED HIS RETURN OF INCOME ON 16-08-2010 D ECLARING TOTAL INCOME OF RS.2,77,35,954/-. WE FURTHER FIND FROM PAGE 3 OF T HE PAPER BOOK THAT THE ASSESSING OFFICER IN THE INSTANT CASE HAS ISSUED NO TICE U/S.142(1) OF THE INCOME TAX ACT TO THE ASSESSEE ON 03-03-2010. AS P ER THE PROVISIONS OF SECTION 139(5) IF AN ASSESSEE, WHO HAS FILED A RETU RN IN RESPONSE TO NOTICE U/S.142(1), DISCOVERS ANY OMISSION OR ANY WRONG STA TEMENT THEREIN HE MAY FURNISH A REVISED RETURN AT ANY TIME BEFORE THE EXP IRY OF 1 YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE COMPLETIO N OF THE ASSESSMENT, WHICHEVER IS EARLIER. HOWEVER, WE FIND THE LD. CIT (A) HAS NOT CONSIDERED THE PROVISIONS OF SECTION 139(5) WHILE HOLDING THE REVISED RETURN FILED BY THE ASSESSEE AS NON-EST. EVEN THE ASSESSING OFFICE R IS ALSO SILENT ON THIS ISSUE. WE, THEREFORE, ARE OF THE CONSIDERED OPINIO N THAT THE REVISED RETURN FILED BY THE ASSESSEE IS NOT NON-EST AND THE ASSESS ING OFFICER SHOULD HAVE CONSIDERED THE REVISED RETURN FILED BY THE ASSESSEE BEFORE COMPLETING THE ASSESSMENT. WE, THEREFORE, DEEM IT PROPER TO RESTO RE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO CONSIDER THE REVISED RETURN AND COMPLETE THE ASSESSMENT IN ACCORDANCE WITH LAW AFTE R GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE AS SESSING OFFICER IS ALSO DIRECTED TO GIVE ONE MORE OPPORTUNITY TO THE ASSESS EE TO SUBSTANTIATE WITH EVIDENCE TO HIS SATISFACTION REGARDING THE VARIOUS EXPENSES CLAIMED IN THE INCOME AND EXPENDITURE ACCOUNT FOR WHICH DETAILS CO ULD NOT BE FURNISHED. SINCE WE ARE RESTORING THE ISSUE TO THE FILE OF THE ASSESSING OFFICER, THEREFORE, WE REFRAIN OURSELVES FROM ADJUDICATING T HE OTHER ISSUES RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. 11 14. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN ON THIS THE 14 TH DAY OF MAY 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE, DATED THE 14 TH MAY 2013. COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-I, THANE 4. THE CIT-II, THANE 5. THE DR A BENCH, PUNE. 6. GUARD FILE BY ORDER // TRUE COPY // PRIVATE SECRETARY, INCOME TAX APPELLATE T RIBUNAL, PUNE.