Sri. KAUNTEY M. TANNA, MUMBAI V. ITO - 25(3)(2), MUMBAI

ITA 1650/MUM/2007

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4188 (ITAT-MUMBAI)
• Duration Of Justice: 8 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-07-2015
• Assessment Year: 1998-1999
• Appeal Filed On: 21-02-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G N MAKWANA
• Keywords: Opportunity of being heard
• Section: 142(1)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI .. , , , BEFORE, SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.1650/MUM/2007 ASSESSMENT YEAR:1998-99 SHRI KAUNTEY M TANNNA, 107/108, SUPER SHOPPING COMPLEX, FIRST FLOOR, BAJAJ CROSS ROAD, KANDIVALI (W), MUMBAI-400067 / VS. ITO-25(3)(2), C-11, PRATYAKSHKAR BHAVAN, 3 RD FLOOR, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400051 ( !'#$ /ASSESSEE) ( % / REVENUE) PAN. NO. AABPT4176H ITA NOS.1651 & 1652/MUM/2007 ASSESSMENT YEARS:1996-97 AND 1998-99 SHRI PATHIK M. TANNA, 107/108, SUPER SHOPPING COMPLEX, FIRST FLOOR, BAJAJ CROSS ROAD, KANDIVALI (W), MUMBAI-400067 / VS. ITO-25(3)(2), C-11, PRATYAKSHKAR BHAVAN, 3 RD FLOOR, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400051 ( !'#$ /ASSESSEE) ( % / REVENUE) PAN. NO.AABPT4305L !'#$ / ASSESSEE BY SHRI PRAMOD KUMAR PARIDA % / REVENUE BY SHRI G.N. MAKWANA ITA NO.1650 TO 1652/MUM/2007 2 & %'($) / DATE OF HEARING : 04/02/2016 ($) / DATE OF ORDER: 04/02/2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) ALL THESE THREE APPEALS ARE BY DIFFERENT ASSESSEE S, WHO ARE CLOSE RELATIVES, AGGRIEVED BY THE IMPUGNED ORDE RS ALL DATED 13/12/2006 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI, CONSIDERING THE ENTIRE CAPITAL GAIN TAX IN THE HANDS OF ELDER BROTHER OF OTHER CO-OWNERS, IGNORING THE EXPLANATION/EVIDENCE FURNISHED BY THE ASSESSEE AND FURTHER IGNORING THE GOVERNMENT RECORD, MENTIONING THE NAME S OF ALL THE CO-OWNERS. 2. DURING HEARING OF THESE APPEALS, SHRI PRAMOD KUMAR PARIDA, ADVANCED ARGUMENTS, WHICH IS IDENTICA L TO THE GROUND RAISED BY CLAIMING THAT THE ISSUES INVOLVED IN ALL THE APPEALS ARE IDENTICAL AND THE LD. FIRST APPELLATE A UTHORITY, WHILE COMING TO A PARTICULAR CONCLUSION IGNORED THE FACT THAT THE PROPERTY IN HAND WAS SOLD AND THE ENTIRE CAPITA L GAIN WAS KEPT BY THE ELDER BROTHER AS THE MATTER WAS YET TO BE SETTLED AND PENDING IN THE COURT. IT WAS PLEADED THAT THE P ROOF OF OWNERSHIP OF LAND, MENTIONING THE NAMES OF ALL THE TWENTY CO-OWNERS, INCLUDING THE ASSESSEE, WAS IGNORED. IT WAS ALSO PLEADED THAT PROPER OPPORTUNITY WAS NOT PROVIDED AN D PARTICULAR DECISION WAS TAKEN ON THE BASIS OF PARTI AL REMAND REPORT, SUBMITTED BY THE ASSESSING OFFICER. IT WAS ALSO ITA NO.1650 TO 1652/MUM/2007 3 ASSERTED THAT THE ASSESSEE CAN PRODUCE ALL THE CO-O WNERS BEFORE THE ASSESSING OFFICER OR BEFORE THE LD. COMM ISSIONER OF INCOME TAX (APPEALS) AS MAY BE DIRECTED BY THE BENC H. ON THE OTHER HAND, THE LD. DR, SHRI G.K. MAKWANA, DEFE NDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDERS BY CON TENDING THAT THE ADDITION WAS RIGHTLY MADE AS THE ASSESSEE NEITHER PRODUCE THE PROOF OF JOINT OWNERSHIP OF THE PROPERT Y AND THE ENTIRE GAIN KEPT BY THE ELDER BROTHER HIMSELF. IN R EPLY, THE LD. COUNSEL FOR THE ASSESSEE EXPLAINED THAT THE ELDER B ROTHER WAS HOLDER OF POWER OF ATTORNEY ON BEHALF OF OTHER NINE TEEN CO- OWNERS. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE SHRI KAUNTYE M TANNA DECLARED INCOME OF RS.79,415/-, ON 02/11/1998, WHICH WAS PROCESSED U/S 143(1)(A) ON 08/01/1999. IN RESPONSE TO NOTICES ISS UED U/S 143(2) AND 142(1) OF THE ACT, THE ASSESSEE ATTENDED THE PROCEEDINGS AND FILED THE DETAILS. FROM THE DETAILS OF MR. PATHIK M. TANNA, ELDER BROTHER OF THE ASSESSEE, WHO IS ALSO ASSESSED IN THE CHARGE OF THE PRESENT ASSESSING OFF ICER, IT WAS FOUND THAT FOR ASSESSMENT YEAR 1998-99, A PROPE RTY SITUATED IN NASHIK WAS SOLD FOR RS.45 LAKH VIDE AGR EEMENT DATED 14/01/1998. THIS PROPERTY, MEASURING 3 HECTAR ES 60 R WAS PURCHASES ALONG WITH NINETEEN CO-OWNERS, INCLUD ING THE ASSESSEE ON 09/10/1987 FOR A CONSIDERATION OF RS.7, 04,700/- , THE PRESENT ASSESSEE CONTRIBUTED RS.70,000/- TOWA RDS ITA NO.1650 TO 1652/MUM/2007 4 PURCHASE PRICE, WHICH IS 10% OF THE TOTAL PURCHASE CONSIDERATION. IN THE CASE OF PATHIK M. TANNA, THE ASSESSING OFFICER HELD THAT THE REAL LAND OWNERS OF THE PROPE RTY ARE THE PRESENT ASSESSEE (10%) AND MR. PATHIK M. TANNA (90% ) ONLY AND THE REMAINING EIGHTEEN CO-OWNERS LENT THEIR NAM ES WITHOUT CONTRIBUTING A PENNY TOWARDS A PURCHASE CONSIDERATION. BY TAKING IDENTICAL VIEW, THE ADDITI ON WAS MADE IN THE HANDS OF THREE ASSESSEES. THE ASSESSEES FELT AGGRIEVED AND FILED APPEAL BEFORE THE LD. COMMISSIO NER OF INCOME TAX (APPEALS), WHEREIN, THE STAND TAKEN IN T HE ASSESSMENT ORDER WAS AFFIRMED. THE ASSESSEES ARE IN FURTHER APPEAL BEFORE THIS TRIBUNAL. 2.2. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, WE NOTE THAT THE FACTUM OF POWER OF ATTORNEY ON BEHALF OF ALL THE NINETEEN MEMBERS I NCLUDING THE ASSESSEE WAS EXECUTED IN FAVOUR OF MR. PATHIK M . TANNA, ON 26/09/1987. THE PHYSICAL POSSESSION WAS ALSO GIV EN TO THE PURCHASERS DURING THE PREVIOUS YEAR RELEVANT TO A.Y. 1998-99, AS PER CLAUSE 4.1 (PAGE-10) OF THE AGREEME NT DATED 14/01/1998 (WRITTEN IN MARATHI). DURING HEARING, T HE LD. COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO A DOCUMENT (PAGE 87 OF THE PAPER BOOK) CONTAINING THE NAMES OF ALL THE CO-OWNERS, WHICH IS DULY CERTIFIED BY THE TLATHI/ ITA NO.1650 TO 1652/MUM/2007 5 GRAMADHIKARI, NASHIK. THIS DOCUMENT WAS DECLARED B Y THE ASSESSING OFFICER TO BE MANAGED BY THE ASSESSEES AN D ITS AUTHENTICITY WAS NOT ACCEPTED. WE ARE OF THE VIEW T HAT IF THE LD. ASSESSING OFFICER WAS NOT SATISFIED WITH THE CL AIMED CO- OWNERSHIP OF THE PROPERTY, HE WAS EXPECTED TO GET A REPORT FROM THE REVENUE OFFICER/TEHSILDAR OR AS THE CASE M AY BE. HOWEVER, IT WAS NOT DONE SO. WHETHER THE REMAINING CO- OWNERS HAVE CONTRIBUTED OR NOT IN PURCHASING THE PR OPERTY BUT IF THEY ARE CO-OWNERS, CERTAINLY, THEY HAVE THE IR VESTED RIGHTS IN THE PROPERTY, UNLESS AND UNTIL CONTRARY I S PROVED BY THE LD. ASSESSING OFFICER. IT IS ALSO NOTED THAT TH E CONCLUSION IN THE IMPUGNED ORDER WAS ARRIVED AT MERELY ON THE BASIS OF PARTIAL REMAND REPORT. TOTALITY OF FACTS, CLEARLY I NDICATES THAT THE WHOLE ISSUES REQUIRES RECONSIDERATION AT THE LE VEL OF THE LD. ASSESSING OFFICER AND REMANDED BACK TO THE FILE OF THE LD. ASSESSING OFFICER. IN VIEW OF THE FACTUAL MATRIX, THE ASSESSEES ARE DIRECTED TO PRODUCE ALL THE CO-OWNERS ALONG WIT H REVENUE RECORD (JUSTIFYING THE CO-OWNERSHIP OF THE PROPERTY ) BEFORE THE LD. ASSESSING OFFICER. THE LD. ASSESSING OFFICER IS DIRECTED TO EXAMINE THE RELEVANT RECORD OF THE PROPERTY AND, IF SO DESIRED, ALL THE CO-OWNERS OF THE PROPERTY AND THEN DECIDE I N ACCORDANCE WITH LAW. SINCE, THE FACTS AND THE ISSUE S ARE GERMANE OUT OF THE SAME TRANSACTIONS; THEREFORE, AL L THE APPEALS ARE REMANDED BACK. THE ASSESSEES BE GIVEN OPPORTUNITY OF BEING HEARD AND WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF THEIR CLAIMS. THUS, THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NO.1650 TO 1652/MUM/2007 6 FINALLY, THE APPEALS OF THE ASSESSEES ARE ALLOWED F OR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN TH E PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 04/02/2016. SD/- SD/- ( G.S. PANNU ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER & ' MUMBAI; + DATED : 04/02/2016 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. , -. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 11 & 2$ ( , ) / THE CIT, MUMBAI. 4. 11 & 2$ / CIT(A)- , MUMBAI 5. 4%5/$! , 1, ),!6 , & ' / DR, ITAT, MUMBAI 6. 7'8' / GUARD FILE. / BY ORDER, 04$/$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , & ' / ITAT, MUMBAI