Smt. Jyotsna P. Prajapti, L/H of Shri Prakash S. Prajapati, Surat V. The Income Tax Officer, Ward-2(3)(4), Surat

ITA 1473/AHD/2016

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0590 (ITAT-SURAT)
• Duration Of Justice: 6 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-08-2022
• Assessment Year: 2008-2009
• Appeal Filed On: 01-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SAPNESH SHETH
• Keywords: Unexplained investment; Cost of acquisition
• Section: 143(3); 69B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./ITA No. 1473/AHD/2016 Ǔनधा[रणवष[/Assessment Year: (2008-09) (Physical Court Hearing) Jyotsna P. Prajapati, L/H of Shri Prakash S. Prajapati, D-9, Bhagyalaxmi Society, Dumas Road, Piplod, Surat. Vs. The ITO, Ward-2(3)(4), Surat. (Appellant) (Respondent) èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AKOPP3340G Assessee by Shri Sapnesh Sheth, CA Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 25/08/2022 Date of Pronouncement 17/10/2022 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the Assessee, pertaining to Assessment Year (AY) 2008-09, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)-1, [in short “the ld. CIT(A)”], in Appeal No. CAS-I/TFR- 6.174/380/12-13 dated 28.03.2016, which in turn arises out of an assessment order passed by the Assessing Officer under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 31.12.2010. 2. The grounds of appeal raised by the assessee are as follows: “1. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) has erred in partly confirming the action of assessing Officer by sustaining addition to the extent of Rs.60,61,587/- as unexplained investment. 2. It is therefore prayed that above addition made by assessing officer being partly confirmed by Commissioner of Income-tax (Appeals) may please be deleted. 3. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal.” Page | 2 ITA 1473/AHD/2016/AY.2008-09 Jyotsna P. Prajapti 3. Succinct facts are that assessee filed his return of income for assessment year 2008-09 on 30.09.2008 showing total income at Rs.2,77,988/-. The assessee’s case was selected for scrutiny. During assessment proceedings, on verification of AIR information, the assessing officer observed that assessee has purchased an immovable property for Rs.2,23,08,900/- jointly with other co-owner. It was also observed that so purchased property, was located at plot no. 1, 2, 3, 4 & 5 of R.S. No. 172B, Moje Majura Gate, Dist - Surat. Assessing Officer has observed that above transaction was not found recorded in regular books of accounts of assessee in the sense that no details in respect of sale or purchase of said property were given in return of income filed by the assessee. Assessee has merely shown (STCG) capital gain of Rs.1,61,195/- (50% share) in part B-TI of return of income and no details in respect of purchase and sale of said property has been mentioned. The assessee has stated that during the course of assessment proceedings assessee furnished details of capital gain showing total sale value at Rs. 60,71,194/- against which deduction for purchase cost has been made at Rs.57,48,804/-. Thus assessee has shown short term capital gain of Rs.3,22,390/- and by dividing it between 2 co-owners, the assessee has shown capital gain at Rs.1,61,195/- pertaining to his share 50%. Assessing officer observed that assessee has shown purchase cost at Rs.57,48,804/- as Joint owner thereby his share (50%) worked out as Rs.28,74,402/-. Taking into consideration the AIR information, the assessing officer vide letter dated 24.12.2010 asked assessee to show cause as to why the transaction in said property (for his share of 50%) to the tune of Rs. 82,80,048/- (1,11,54,450 - 28,74,402) should not be treated as unexplained investment. In reply filed by the assessee, vide letter dated 28.12.2010 it was contended that assessee has shown income by considering value of land which was sold during the year and remaining value of land was shown as investment in land. It was further explained by him that data reflected in AIR is total purchase value of land but in computation assessee has shown only the cost attributable to value of land sold during the year. However, the assessing officer rejected assessee's explanation basis of her finding given in para 4.4 of assessment order. It has been observed by the AO that assessee should have shown full value of consideration while filing return of income and on this basis the difference amount of Page | 3 ITA 1473/AHD/2016/AY.2008-09 Jyotsna P. Prajapti Rs.82,80,048/- was worked out and treated as unexplained investment under section 69B of the I.T. Act. 4. Aggrieved by the order of Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A), who has confirmed the action of the Assessing Officer. 5. Aggrieved by the order of ld. CIT(A), the assessee is in appeal before us. 6. At the outset, Ld. Counsel for the assessee submitted that in assessee’s co- owner case, Shri Ghemarbhai Hirabhai Desai (in ITA No.957/AHD/2012 for AY.2008-09) vide order dated 03.07.2012, the Tribunal has remitted the issue back to the file of the ld. CIT(A) for statistical purposes. The Ld. Counsel contended that since assessee is also co-owner, therefore similar treatment may be given to the assessee and therefore appeal of the assessee may be remitted to the file of the Assessing Officer. 7. On the other hand, Learned Departmental Representative (Ld. DR) for the Revenue submitted that the matter may be remitted back to the file of the ld. CIT(A) instead of Assessing Officer, as assessee’s co-owner case was also remitted back to the file of Ld. CIT(A) for fresh adjudication. 8. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. We note that in assessee’s case, the primary facts have not been examined, therefore it would be appropriate to remit the issue back to the file of the Assessing Officer with the direction that the Assessing Officer may pass an appropriate order in accordance with the decision in the case of assessee’s co-owner in the appellate proceedings. We note that Co-ordinate Bench of ITAT, Ahmedabad in the case of Ghemarbhai Hirabhai Deasi (supra), order dated 03.07.2012, the Co-ordinate Bench has remitted the issue back to the file of the ld. CIT(A) observing as follows: “2. At the time of hearing none appeared on behalf of the assessee. Further, on perusing the order of the learned CIT(A) it revealed that the order passed by the learned CIT(A) was ex-parte since the assessee was not present at the time of hearing and the notice Page | 4 ITA 1473/AHD/2016/AY.2008-09 Jyotsna P. Prajapti sent by the revenue was returned un-served by the postal authorities. On perusal of the facts we find that the learned CIT(A) sustained an addition of Rs.1,11,54,450/- u/s 69B of the Act treating the investment made in land as unexplained. In the interest of justice, we are of the considered view that sufficient opportunity needs to be given to the assessee even if the assessee shows lack of interest to pursue the case before confirming such a huge addition of Rs.1,11,54,450/-. In the present case, we find that the assessee has been very lethargic in pursuing his appeal. However, taking a lenient view, we hereby remit back the matter to the file of the learned CIT(A) so as to provide on more opportunity to the assessee to present his case. We also direct the assessee to cooperate with the revenue in its proceedings for speedy disposal of the case. The assessee shall restrain from seeking unnecessary adjournment. 3. In the result, appeal of the assessee is allowed for statistical purpose.” 9. In the light of the above judgment of the Co-ordinate Bench, we are of the view that assessee’s case should also be remitted back to the lower authorities for adjudication as per the outcome of assessee’s co-owner case. Therefore, we remit the issue back to the file of the Assessing Officer with the direction to adjudicate the issue as per the outcome of the appellate proceedings in the case of assessee’s co- owner, Shri Ghemarbhai Hirabhai Desai (supra) and adjudicate the issue in accordance with law. For statistical purposes, the appeal filed by the assessee is allowed. 10. In the result, appeal filed by assessee is allowed for statistical purposes. Order is pronounced on 17/10/2022 by placing the result on the Notice Board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 17/10/2022 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat