VISHAL KALYANI GALA, THANE V. ITO WD 3(4), THANE

ITA 1528/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9726 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 13-03-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: TUFERI AHMED KHANDR
• Keywords: Additional evidence; Tax effect

Judgement Text

, , , , INCOME-TAX APPELLATE TRIBUNAL FBENCH M UMBAI , , BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & RAVISH SOOD, JUDICIAL MEMBER ./I.T.A./1528/MUM/2015 , /ASSESSMENT YEAR: 2011-12 VISHAL KALYANJI GALA A-605, LAXMI COMPLEX POKHRAN ROAD NO.1, VARTAK NAGAR, THANE-400 606. PAN:AATPG 9334 N VS. INCOME TAX OFFICER, WARD 3(4) ROOM NO.9, B-WING, 6TH FLOOR, AHER IT PARK WAGLE ESTATE, ROAD NO.16Z, THANE-WEST- 400 604. ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY: SHRI TUFERI AHMED KHAN-DR ASSESSEE BY: SHRI PARAS SAVLA/MS. KEERTHIGA SHARMA-AR / DATE OF HEARING: 31/08/2017 / DATE OF PRONOUNCEMENT: 13/09/2017 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER, DATED 27/01/2015, OF THE CIT (A) 2,THANE THE ASSESSEE HAS FILED THE PRESENT APPEAL.ASSESSEE, AN INDIVIDUA L, FILED HIS RETURN OF INCOME ON 27/09/2011,DECLARING TOTAL INCOME OF RS. 11.80 L AKHS. THE ASSESSING OFFICER (AO) COMPLETED THE ASSESSMENT, U/S.143 (3) OF THE A CT,ON 20/02/2014,DETERMINING HIS INCOME AT RS. 63.86 LAKH S. 2. DURING THE COURSE OF HEARING BEFORE US,THE AUTHORIS ED REPRESENTATIVE(AR) STATED THAT CONSIDERING THE LOW TAX EFFECT OF THE A MOUNT INVOLVED,THE ASSESSEE WAS NOT INTERESTED IN PRESSING GOA-3. HENCE, SAME S TANDS DISMISSED AS NOT PRESSED. 3. VIDE HIS APPLICATION, DATED 11/05/2017, THE ASSESSE E HAD MADE A REQUEST FOR ADMISSION OF ADDITIONAL EVIDENCES.IN THE APPLICATIO N THE ASSESSEE HAD STATED THAT HE HAD FURNISHED ALL THE DETAILS,CALLED FOR BY THE AO, DURING THE ASSESSMENT 1528/M/15;VISHAL KALYANJI GALA 2 PROCEEDINGS ON 9/01/2014 AND 28/01/2014, THAT THE A O DID NOT ASK FOR ANY OTHER DETAILS/EXPLANATION, THAT ONLY AFTER RECEIPT OF THE ASSESSMENT ORDER, HE CAME TO KNOW THAT GAINS ARISING FROM SALE OF AGRICULTURAL L AND WAS TAXED AS STCG ON THE GROUND THAT NO AGRICULTURAL ACTIVITIES WERE UNDERTA KEN, THAT DURING THE APPELLATE PROCEEDINGS HE HAD FILED THE EVIDENCES WHICH WERE CALLED FROM HIS NATIVE PLACE, THAT THE ASSESSEE WAS ABLE TO PROVE THAT THERE WAS DISPUTE RELATING TO THE PLOT OF LAND, THAT ALL THE DOCUMENTS SUBMITTED BY HIM WERE REJECTED BY THE FIRST APPELLATE AUTHORITY (FAA) WITHOUT CONSIDERING THEM, THAT THE DOCUMENTS FILED BEFORE HIM WERE CRUCIAL AND WERE GERMANE TO THE ISS UE AT HAND. REFERRING TO THE PROVISIONS OF RULE, 29 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963 HE REQUESTED THAT ADDITIONAL EVIDENCES PRODUCED BEFORE US SHOULD BE TAKEN ON RECORD AS SAME WOULD GO TO THE ROOT OF THE ISSUE. H E ALSO RELIED UPON THE JUDGMENT OF HONBLE BOMBAY HIGH COURT, DELIVERED IN THE CASE OF PRABHAVATI SHAH (231 ITR 1). 4. BEFORE US,THE AR STATED THAT ADDITIONAL EVIDENCES W ERE CRUCIAL TO DECIDE THE ISSUE, THAT THE FAA HAD NOT TAKEN NOTE OF THE SAME. THE DEPARTMENTAL REPRESENTATIVE (DR) LEFT THE ISSUE OF ADMISSION OF ADDITIONAL EVIDENCES TO THE BENCH. 5. WE HAVE PERUSED THE APPLICATION MADE BY THE ASSESSE E UNDER RULE 29 OF THE ITAT RULES AND THE DOCUMENTS SUBMITTED ALONG WITH I T. FACTS OF THE CASE ARE THAT DURING THE ASSESSMENT PROCEEDINGS, THE AO FOUN D THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAD SOLD IMMOVABLE PROPE RTY SITUATED AT VILLAGE MASKA, DISTRICT KUTCH, GUJARAT FOR A TOTAL CONSIDER ATION OF RS. 1.50 CRORE, THAT HE HAD NOT OFFERED ANY PROFIT FOR TAXATION OUT OF THE TRANSACTION IN THE RETURN FILED BY HIM. HE BROUGHT THE FACT TO THE NOTICE OF THE AR OF THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS.THE AR FILED DETAI LS OF SHORT-TERM CAPITAL GAINS (STC G) AMOUNTING TO RS. 51.59 LAKHS ON SALE OF ONE THIRD SHARE OF THE 1528/M/15;VISHAL KALYANJI GALA 3 IMMOVABLE PROPERTY SOLD BY THE ASSESSEE.IT WAS CLAI MED THAT PROFIT EARNED ON SALE OF PLOT OF LAND WAS EXEMPT AS THE SALE WAS OF AGRICULTURAL LAND. THE AO WAS NOT SATISFIED WITH THE EXPLANATION FILED BY THE ASS ESSEE AND ISSUED A SHOW CAUSE NOTICE IN THAT REGARD AFTER CONSIDERING THE AVAILAB LE MATERIAL, HE HELD THAT PLOT OF LAND SOLD BY THE ASSESSEE WAS NOT AGRICULTURAL AND ON THE DATE OF SALE, THAT THE SURPLUS REALISED BY THE ASSESSEE WAS LIABLE TO BE T AXED AS STCG. HE MADE AN ADDITION OF RS.51,59,347/-TO THE TOTAL INCOME OF TH E ASSESSEE. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREFERRED AN APPEAL B EFORE THE FAA AND MADE ELABORATE SUBMISSIONS BEFORE HIM. THE ASSESSEE ALSO FILED ADDITIONAL EVIDENCES BEFORE THE FAA.BUT,SAME WERE REJECTED WITHOUT PASSI NG ANY REASONED ORDER.WE ALSO FIND THAT THE FAA HAS NOT COMMENTED UPON THE A DDITIONAL EVIDENCES,NOR DID HE CALL FOR A REMAND REPORT FROM THE AO IN THAT REGARD.IN OUR OPINION,HE SHOULD HAVE DEALT WITH THE ADDITIONAL EVIDENCES AS PER RULE 46A OF THE INCOME TAX RULES,1962. 5.1. IN OUR OPINION EVIDENCES PRODUCED BEFORE US SHOULD HAVE BEEN CONSIDERED BEFORE DECIDING THE APPEAL. THEREFORE, FOLLOWING TH E JUDGMENT OF PRABHAVATI SHAH (SUPRA), WE HOLD THAT IN THE INTEREST OF JUSTI CE, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE FAA FOR FRESH ADJU DICATION. HE IS DIRECTED TO ADMIT THE ADDITIONAL EVIDENCES FILED BEFORE US AND DECIDE THE APPEAL AFRESH. HE WOULD AFFORD A REASONABLE OPPORTUNE OF HEARING TO T HE ASSESSEE. EFFECTIVE GROUND OF APPEAL(GOA-1&2) ARE DECIDED IN FAVOUR OF THE ASSESSEE, IN PART. AS A RESULT, APPEAL FILED BY THE ASSESSEE, STANDS P ARTLY ALLOWED. . ORDER PRONOUNCED IN THE OPEN COU RT ON 13 TH SEPTEMBER, 2017. 13 , 2017 SD/- SD/- ( (( ( /RAVISH SOOD) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED : 13.09 .2017. JV.SR.PS. 1528/M/15;VISHAL KALYANJI GALA 4 / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR BENCH, ITAT, MUMBAI / , , . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.