Shantaram V. Tapkir, Pune V. Income-tax Officer, Ward - 8(4), Pune

ITA 1521/PUN/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9058 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 16-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Application of stay; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , , . ! , ' , # BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO, AM $ / ITA NO.1521/PUN/2017 % & & / ASSESSMENT YEAR : 2011-12 SHRI SHANTARAM V. TAPKIR, NEAR SANDVIK COLONY, DIGHI ROAD, NEAR SANT TUKA RAM NAGAR, BHOSARI, PUNE-411 039. PAN : ABYPT9032G ....... / APPELLANT '% / V/S. THE INCOME TAX OFFICER, WARD-8(4), PUNE. / RESPONDENT S.A. NO. 23/PUN/2018 ( ARISING OUT OF ITA NO. 1521/PUN/2017 ) % & & / ASSESSMENT YEAR : 2011-12 SHRI SHANTARAM V TAPKIR, NEAR SANDVIK COLONY, DIGHI ROAD, NEAR SANT TUKA RAM NAGAR, BHOSARI, PUNE-411 039. PAN : ABYPT9032G .. /APPLICANT '% / V/S. THE INCOME TAX OFFICER, WARD-8(4), PUNE. / RESPONDENT ASSESSEE BY : SHRI S. N. DOSHI REVENUE BY : SHRI AJAY MODI, JCIT 2 ITA NO.1521/PUN/2017 S.A. NO.23/PUN/2018 A.Y.2011-12 / DATE OF HEARING : 20.03.2018 / DATE OF PRONOUNCEMENT : 27.03.2018 ( / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL FILED BY ASSESSEE IS DIRECTED AGAINST THE ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS)-9, PUNE DATED 10.03.2017 FOR ASSESSMENT YE AR 2011-12. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS IN APPEAL: 1 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.1,00,00,000/- ON ACCO UNT OF LONG TERM CAPITAL GAIN AROSE ON TRANSFER OF OWNERSHIP OF ADVERSARY POSSESS ION WITH RESPECT TO THE AGRICULTURAL LAND SOLD DURING THE YEAR. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND WITHOUT PREJUDICE TO GROUND NO.1 THE LONG TERM CAPITAL GAIN AROSE ON AGR ICULTURAL LAND SOLD BY THE APPELLANT IS OTHERWISE ALSO NOT TAXABLE SINCE THE S AID AMOUNT IS UTILIZED FOR PURCHASE OF AGRICULTURAL LANDS WITHIN THE STIPULATE D PERIOD U/S.54B OF THE I. T. ACT 1961. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED IN SUSTAINING THE FOLLOWING ADDITIONS-: I. CASH DEPOSITS IN VARIOUS BANKS TOTALING TO RS.1,17, 87,010/-, THE SOURCE FOR WHICH IS EXPLAINABLE AND WITHOUT PREJUDI CE THE ADDITION IF WARRANTED COULD HAVE BEEN OF THE PEAK DEPOSITS. II. TIME DEPOSIT MADE IN COSMOS CO-OP BANK LTD. OF RS. 75,00,000/-, THE SOURCE OF WHICH STANDS EXPLAINED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF INVESTMENT MADE IN PURCH ASE OF AGRICULTURAL LANDS TOTALING TO RS.1,02,24,000/- OVERLOOKING THE FACT T HAT SOURCES STAND EXPLAINED. 5. THE ABOVE GROUNDS OF APPEAL MAY KINDLY BE ALLOWE D TO BE AMENDED, ALTERED, MODIFIED ETC. IN THE INTEREST OF NATURAL JUSTICE . 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT TH E ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF BUILDERS AND DEVELOPERS. THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME RS.2,79,419/-. IN THE ASSESSME NT PROCEEDINGS, THE 3 ITA NO.1521/PUN/2017 S.A. NO.23/PUN/2018 A.Y.2011-12 ASSESSING OFFICER ASSESSED INCOME OF RS.3,97,90,500/-. THE ASS ESSING OFFICER MADE ADDITION OF RS.1,00,00,000/- ON ACCOUNT OF LONG TERM CAPITAL GAIN, RS.1,17,87,010/- ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS, RS.75,00,000/- ON ACCOUNT OF UNEXPLAINED TERM DEPOSITS IN THE BANK ACCOUNTS AND RS.1,0 2,24,000/- ON ACCOUNT OF PURCHASE OF IMMOVABLE PROPERTIES. DURING THE FIRST APPELLA TE PROCEEDINGS, ALL THESE ISSUES WERE AGITATED BY THE ASSESSEE AND APPEAL OF THE ASSESSEE WAS DISMISSED. THE COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ADDITIONS MADE BY THE ASSESSING OFFICER. 4. AGGRIEVED WITH THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE IS IN APPEAL BEFORE US. 5. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE BROU GHT OUR ATTENTION TO HIS PRAYER DATED 20.03.2018 AND BROUGHT OUR ATTENTION TO T HE ENCLOSED VARIOUS DOCUMENTS (I.E. SALE DEED DATED 25.01.2011, DEED OF ACQUIRING ADVERSARY RIGHTS DATED 25.01.2011, PURCHASE DEED DATED 16.03.2011 AND SALE DEED DATED 16.12.2010 ETC) AND INFORMED THE SAME CONSTITUTES OF ADDITI ONAL EVIDENCES. THE LD. AR PRAYED FOR ADMITTING THE SAME AND REMANDING THE PAPE RS AND THE ISSUES RAISED IN THE GROUND OF APPEAL TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICAT ION. 6. PER CONTRA, LD. DR OPPOSED THE ABOVE PRELIMINARY ISSUE DUTIFULLY. 7. ON HEARING BOTH THE PARTIES ON PRELIMINARY ISSUE, WE EXAMIN E THE PRAYER MADE BY ASSESSEE IN THIS REGARD AND THE SAME IS EXTRACTED HEREIN BE LOW: IN ACCORDANCE WITH THE RULE 29 OF INCOME TAX (APPEL LATE TRIBUNAL) RULES, 1963 THE APPELLANT PRODUCES ADDITIONAL EVIDENCES ENCLOSE D HEREWITH AS ENUMERATED BELOW : I. SUIT FILED BEFORE THE HON'BLE CIVIL JUDGE, PUNE FOR ACQUIRING ADVERSARY POSSESSION- FLAG NO. 1 4 ITA NO.1521/PUN/2017 S.A. NO.23/PUN/2018 A.Y.2011-12 II. SALE DEED DATED 25.01.2011 OF AGRICULTURAL LAND AS CONSENTING PARTY-FLAG NO. 2 III. DEED ENTERED FOR ACQUISITION OF ADVERSARY POSS ESSION IN RESPECT OF LAND AT HAVELI, PUNE DATED 25.01.2011. FLAG NO. 3 IV. PURCHASE DEED OF LAND AT PARNER DATED 16.03.201 1- FLAG NO. 4 V. SALE DEED DATED 16.12.2010 OF LAND ACQUIRED UNDE R ADVERSARY PASSION- FLAG NO. 5 THESE EVIDENCES COULD NOT BE FILED BEFORE THE LOWER AUTHORITIES FOR THE REASONS STATED IN AFFIDAVIT FILED BEFORE THE HON'BLE TRIBUN AL DURING THE STAY PROCEEDINGS. COPY ENCLOSED HEREWITH. THESE ADDITIONAL EVIDENCES GO TO THE ROOT OF THE IS SUE INVOLVED IN THE APPEAL AND THEREFORE, IT IS PRAYED THAT THE SAME BE ACCEPTED A ND ADJUDICATED ON MERIT. WE FIND THESE DOCUMENTS FILED BY ASSESSEE ARE REQUIRED FO R ADJUDICATION OF THE ISSUES AS THEY GO TO THE ROOT OF THE MATTER. HENCE, TH E SAME ARE ADMITTED. ACCORDINGLY, ALL THE ISSUES RAISED IN APPEAL ARE REMITTED B ACK TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER CONSIDERING THE SAID ADD ITIONAL EVIDENCES. THUS, WE DIRECT THE ASSESSING OFFICER TO ADJUDICATE THE ISSUE AFR ESH AFTER GRANTING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE I N ACCORDANCE WITH SET PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, GROUNDS RAISED IN APPEAL BY ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . S.A. NO.23/PUN/2018 ( A.Y. 2011-12) 8. IN THE PRECEDING PARAGRAPHS OF THIS ORDER, WE HAVE DIS CUSSED THE ISSUES AND THE ADDITIONS MADE BY THE ASSESSING OFFICER. THE ASSESSIN G OFFICER ISSUED THE DEMAND NOTICE U/S.156 OF THE ACT ASKING ASSESSEE TO PAY DEMAND OF RS.1,93,49,638/-. THE ASSESSEE FILED STAY APPLICATION BEFORE US REQU ESTING TO STAY OF ENTIRE DEMAND. IN THIS REGARD, IN THE LIGHT OF THE PRAYER FOR ADMITTING OF ADDITIONAL EVIDENCES AND CONSEQUENTIAL REMAND OF THE ISSUE, BOTH TH E PARTIES SUBMITTED THAT STAY APPLICATION COULD BE HEARD ALONG WITH MAIN APPEAL I.E. ITA NO.1521/PUN/2017. ACCORDINGLY, THE APPEAL CAME UP FOR ADJUDICAT ION TODAY. 5 ITA NO.1521/PUN/2017 S.A. NO.23/PUN/2018 A.Y.2011-12 9. AS PER DISCUSSION GIVEN IN THE AFOREMENTIONED PARAGRAP HS UP TO PARA 7, WE HAVE DECIDED TO ADMIT THE ADDITIONAL EVIDENCES AND TO RE MAND ALL THE ISSUES RAISED IN THE APPEAL ON MERITS TO THE FILE OF ASSESSING OFFICER FOR FR ESH ADJUDICATION. CONSIDERING THE SAME, WE ARE OF THE OPINION THAT ADJUDICA TION OF STAY APPLICATION BECOMES MERELY AN ACADEMIC EXERCISE IN VIEW OF OUR DECIS ION OF SETTING ASIDE THE ENTIRE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL). THUS, STAY APPLICATION MOVED BY THE APPLICANT IS DISMISSED. 10. TO SUM UP, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATIS TICAL PURPOSES AND STAY APPLICATION MOVED BY THE APPLICANT IS DISMISSED. ORDER PRONOUNCED ON 27 TH DAY OF MARCH, 2018. SD/- SD/- ( / SUSHMA CHOWLA ) ( . ! / D. KARUNAKARA RAO ) ! / JUDICIAL MEMBER ! / ACCOUNTANT MEMBER / PUNE; '# / DATED : 27 TH MARCH, 2018. SB ()*+,-.-+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS)-9, PUNE. 4. THE PR.CIT-5, PUNE. 5. &'( )* , )* , +,- , / DR, ITAT, A BENCH, PUNE. 6. (./ 01 / GUARD FILE. // TRUE COPY// 2 / BY ORDER, 3 )- /PRIVATE SECRETARY )* , / ITAT, PUNE.