Hamid Kadeer Shaikh, Nandurbar V. Income-tax Officer , Ward -3, Dhule

ITA 1738/PUN/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3654 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 14-01-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 18-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARISES OUT OF PASSED
• Keywords: Fair market value; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT . / ITA NO.1738/PUN/2017 / ASSESSMENT YEAR : 2013-14 HAMID KADEER SHAIKH, CTS NO.168, MUSALMAN MOHALLA, NAVAPUR, DIST. NANDURBAR 42518 PAN : DFYPS8211B VS. ITO, WARD -3, DHULE (APPELLANT) (RESPONDENT) / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSE D BY THE CIT(A)-1, NASHIK ON 17-05-2017 IN RELATION TO THE ASSESSMENT YEAR 2013-14. 2. THE ONLY GROUND RAISED IN THIS APPEAL IS AGAINST THE CONFIRMATION OF ADDITION OF RS.14,47,875/-. APPELLANT BY SHRI SUNIL GANOO RESPONDENT BY SHRI RAJESH GAWLI DATE OF HEARING 19-02-2019 DATE OF PRONOUNCEMENT 20-02-2019 ITA NO.1738/PUN/2017 HAMID KADEER SHAIKH 2 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT A TAX EVA SION PETITION (TEP) WAS RECEIVED AT THE INCOME-TAX OFFICE LEVELLING CERTAIN ALLEGATIONS AGAINST THE ASSESSEE. NOTICE U/S.148 WAS ISSUED REQUESTING THE ASSESSEE TO FILE HIS RETURN. A RETURN WAS FILED. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, VALUA TION OF THE ASSESSEES IMMOVABLE PROPERTY, I.E. RESIDENTIAL HOU SE BUILDING AT NAVAPUR, WAS REFERRED TO THE VALUATION OFFICER, THANE, REQUESTING HIM TO DETERMINE ITS FAIR MARKET VALUE. T HE ASSESSEE FILED A LETTER WITH THE AFFIDAVIT MADE BY MR. RAUF HAMID SHAIKH, NAVAPUR AND MR. AMIN HAMID SHAIKH, NAVAPUR STATING THAT THE SONS CONSTRUCTED FIRST AND SECOND FLOORS OF THE BUILDING AT NAVAPUR. IN THE ABSENCE OF TH E ASSESSEE SUBMITTING ANY PROOF REGARDING CONSTRUCTION EXPENSES, BILLS, VOUCHERS ETC., IN THE NAME OF THE ASSESSE E OR HIS SONS, THE AO OPINED THAT THE ACTUAL LANDHOLDER WAS THE ASSESSEE AND NOT HIS SONS AND THE ENTIRE INVESTMENT WAS MADE BY THE ASSESSEE ALONE. SINCE THE VALUATION REPORT WAS NOT RECEIVED AND THE ASSESSMENT WAS GETTING TIME BARRED, THE AO FINALISED THE ASSESSMENT BY NOTICING THAT THE ASSESSEE DID NOT HAVE ANY EXPLANATION TO OFFER REGARDING INVESTMENT IN THE CONSTRUCTION OF RESIDENTIAL DOUBLE-STORIED BUILDING. ON THE ITA NO.1738/PUN/2017 HAMID KADEER SHAIKH 3 BASIS OF CERTAIN CERTIFICATE ISSUED BY SUNIL V. PATIL, PLAN ASSOCIATES, NAVAPUR, REGARDING COST OF CONSTRUCTION OF GR OUND FLOOR AT RS.4,82,625/-, THE AO HELD THAT THE ASSESSEE MADE EQUAL INVESTMENT FOR THE FIRST AND SECOND FLOORS ALSO AT RS.4,82,625/- EACH. THAT IS HOW, HE MADE AN ADDITION OF RS.14,47,875/-, WHICH CAME TO BE APPROVED IN THE FIRST A PPEAL. 4. HAVING HEARD BOTH THE SIDES AND PERUSED THE RELEVANT MATERIAL ON RECORD, IT IS NOTICED THAT THE ASSESSEE CLAIMED TO HAVE OBTAINED BANK LOAN OF RS.2.50 LAKH. HOWEVER, A CO PY OF BANK ACCOUNT WAS NOT PRODUCED BEFORE THE AO. THE ASS ESSEE FURTHER MADE OUT A CASE THAT HIS SONS CONTRIBUTED A SUM OF RS.5,10,000/- EACH FOR CONSTRUCTION OF FIRST AND SECOND FLOORS RESPECTIVELY AT NAVAPUR BUILDING. THE LD. AR SUBMITTED THAT BOTH HIS SONS FILED RETURNS OF INCOME FOR THE A.Y. 2014-15 BEFORE THE AO ISSUED NOTICE U/S.148 OF THE ACT. THIS WAS COUNTERED BY THE LD. DR WHO SUBMITTED THAT ANTI CORRUPTION BRANCH (ACB) HAD TAKEN ACTION AGAINST THE ASSESSEE. IT WA S ONLY PURSUANT TO SUCH ACTION THAT THE ASSESSEES SONS PROCE EDED TO FILE THE RETURNS, DECLARING INVESTMENT IN CONSTRUCTION WITH A VIEW TO GIVE SOURCE FOR CONSTRUCTION OF THE PROPERTY. THE LD. ITA NO.1738/PUN/2017 HAMID KADEER SHAIKH 4 AR SUBMITTED THAT ACB TOOK ACTION AGAINST THE ASSESSEE BUT NO CONVICTION WAS DONE BY ANY COURT PURSUANT TO THAT AND TH E PROCEEDINGS HAVE BEEN CONCLUDED. ON A SPECIFIC QUERY, HE FAILED TO POINT OUT ANY MATERIAL TO SUBSTANTIATE HIS SUBMISSION. IN THE GIVEN FACTS AND CIRCUMSTANCES, IT IS FOUND THAT THERE ARE SEVERAL VIRGIN ISSUES, AS HIGHLIGHTED ABOVE, WHICH HAVE NO T BEEN DISCUSSED IN THE ASSESSMENT ORDER. IN MY CONSIDER ED OPINION, THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THE IMPUGNED ORDER IS SET-ASIDE AND THE MATTER IS RESTORED TO THE FILE OF AO. I ORDER ACCORDINGLY AND DIRECT HIM TO DECIDE THE ISSUE AFRESH. NEEDLESS TO SAY, THE ASSESSEE WILL BE GIVEN REASONABLE OPPORTUNITY OF HEARING. THE ASSESSEE WILL ALSO BE AT LIBERTY TO LEAD ANY FRESH EVIDENCE TO STRENGTHEN HIS CLAIM IN TH E DE NOVO PROCEEDINGS. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH FEBRUARY, 2019. SD/- (R.S.SYAL) / VICE PRESIDENT PUNE; DATED : 20 TH FEBRUARY, 2019 ITA NO.1738/PUN/2017 HAMID KADEER SHAIKH 5 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-1, NASHIK. 4. THE PR. CIT-1,NASHIK 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 19-02-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 20-02-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *