Shri Navghanbhai Aalabhai Bharwad, Ahmedabad V. The Income Tax Officer, Ward-7(1), Ahmedabad

ITA 1764/AHD/2014

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8642 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-01-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 10-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND SR DR

Judgement Text

, , , , B, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.1764/AHD/2014 [ASSTT.YEAR : 2010-2011] SHRI NAVGHANBHAI AALABHAI BHARWAD 274/1, MANDVA VALO VAS HEBATPUR, TAL: DASCROI DIST. AHMEDABAD. PAN : ANXPB 4194 L /VS. ITO, WARD-7(1) AHMEDABAD. ( (( ( -. -. -. -. / APPELLANT) ( (( ( /0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 ) / ASSESSEE BY : SHRI HARDIK VORA, AR + 2 3 ) / REVENUE BY : SHRI ROOPCHAND, SR.DR 5 2 &(* / DATE OF HEARING : 7 TH JANUARY, 2015 678 2 &(* / DATE OF PRONOUNCEMENT : 02-02-2015 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSTT.YEAR 2010-2011 IS DIRECTED AGAINST THE OR DER OF THE CIT(A). 2. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE AS UNDER: 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LD.CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF RS.23,62,847/- ON ACCOUNT OF COST O F IMPROVEMENT OF SALE OF LAND OF CHHARODI WHILE CALCULATING SHORT TERM CAPITAL GAIN. ITA NO.1764/AHD/2014 -2- 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LD.CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF RS.10,00,000/- ON ACCOUNT OF PAYMEN T MADE TO CONFIRMING PARTIES ON SALE OF LAND OF BAKROL. 3. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.1,87,17,337/- ON ACCOUNT OF PAYMENT MADE BY PURC HASER OF PROPERTY TO CONFIRMING PARTIES ON SALE OF LAND OF B AKROL BADRABAD. 4. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.22,84,359/- ON ACCOUNT OF PAYMENT MADE BY PURCHA SER OF PROPERTY TO CONFIRMING PARTIES ON SALE OF LAND OF B AKROL. 5. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.1,09,90,200/- AS SHORT TERM CAPITAL GAIN BY TREA TING TRANSACTION OF DEVELOPMENT AGREEMENT ON SALE TRANSA CTION OF OGNAJ LAND AT SURVEY NO.330. 6. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.24,47,000/- AS SHORT TERM CAPITAL GAIN BY TREATI NG TRANSACTION OF DEVELOPMENT AGREEMENT AS SALE TRANSACTION OF TRA GAD LAND AT SURVEY NO.43. 7. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.90,57,500/- AS SHORT TERM CAPITAL GAIN BY TREATI NG TRANSACTION OF DEVELOPMENT AGREEMENT AS SALE TRANSACTION OF CHH ARODI LAND AT BLOCK NO.186. 8. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.40,41,100/- AS SHORT TE5RM CAPITAL GAIN BY TREAT ING TRANSACTION OF DEVELOPMENT AGREEMENT AS SALE TRANSACTION OF TRA GAD LAND AT SURVEY NO.128/2. THE ASSESSEE HAS REQUESTED FOR ADMISSION OF ADDITIO NAL GROUNDS OF APPEAL AS UNDER: ITA NO.1764/AHD/2014 -3- 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LD.CIT(A) HAS ERRED IN DECIDING AP PEAL EX PARTE. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, ONE MORE OPPORTUNITY MAY PLEASE BE GIV EN TO ASSESSEE TO REPRESENT HIS CASE BEFORE CIT(A). 3. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LD.CIT(A) HAS ERRED IN DECIDING AP PEAL WITHOUT GIVING REASONING FOR THE DECISION TAKEN BY HIM. 3. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTS ET SUBMITTED THAT THE CIT(A) HAS PASSED EX PARTE APPELLATE ORDER DUE TO NON-ATTENDANCE ON BEHALF OF THE ASSESSEE ON THE DATE OF HEARING BEFOR E HIM. HE SUBMITTED THAT THE ASSESSEE HAS FILED AN AFFIDAVIT EXPLAINING REAS ON FOR DEFAULT IN NOT APPEARING BEFORE THE CIT(A). HE SUBMITTED THAT ALL THE PAPERS WERE FORWARDED TO THE CHARTERED ACCOUNTANT OF THE ASSESS EE, BUT FOR UNKNOWN REASON HE DID NOT ATTEND THE HEARING BEFORE THE CIT (A). IN THESE CIRCUMSTANCES, THE ASSESSEE APPOINTED A NEW CHARTER ED ACCOUNTANT FOR FUTURE COMPLIANCE OF THE INCOME TAX WORKS. THE LEA RNED COUNSEL FOR THE ASSESSEE REQUESTED FOR ONE MORE OPPORTUNITY TO THE ASSESSEE IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE. THE LEARNED D R HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE . HE SUBMITTED THAT DUE OPPORTUNITY OF HEARING WAS GRANTED BY THE CIT(A) TO THE ASSESSEE. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED TH E ORDERS OF THE AO AND THE CIT(A), AND ALSO CONTENTS OF THE AFFIDAV IT FILED BY THE ASSESSEE. WE FIND THAT IN THE FACTS OF THE CASE, WHEREIN, DUE TO NON-COOPERATION OF THE CA, THE ASSESSEE HAS TO APPOINT A NEW CHARTERED ACCOUNTANT FOR ALL FUTURE COMPLIANCE IN INCOME-TAX MATTERS, IT SHALL B E IN THE INTEREST OF JUSTICE TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSE SSEE TO REPRESENT ITS CASE BEFORE THE CIT(A). ACCORDINGLY, THE ORDER OF THE C IT(A) IS RESTORED TO HIS ITA NO.1764/AHD/2014 -4- FILE WITH DIRECTION TO PASS DE NOVO APPELLATE ORDER IN ACCORDANCE WITH LAW AFTER ALLOWING DUE OPPORTUNITY OF HEARING TO BOTH T HE PARTIES. HOWEVER, WE FIND THAT THE ASSESSEE WAS ALSO NOT VIGILANT IN PUR SUING ITS MATTER BEFORE THE CIT(A), AS THE CIT(A) HAS ALLOWED SIX OPPORTUNITIES OF HEARING TO THE ASSESSEE, WHICH REMAINED UNATTENDED AND THE ASSESSE E WAS DUTY BOUND TO TAKE NECESSARY STEPS TO COMPLY WITH THE NOTICE OF H EARING BEFORE THE CIT(A). IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT IT SHALL BE APPROPRIATE TO IMPOSE COST OF RS.10,000/- (RUPEES T EN THOUSAND) ON THE ASSESSEE WITH DIRECTION TO PAY THE SAME IN FAVOUR O F THE DEPARTMENT BY 13 TH JANUARY, 2015. THE ASSESSEE IS ALSO DIRECTED TO CO OPERATE WITH THE CIT(A) AND APPEAR BEFORE HIM SUO MOTO WITHIN A PERIOD OF 60 DAYS FROM THE RECEIPT OF THIS ORDER TO SECURE A DATE OF HEARING B EFORE HIM. WE DIRECT ACCORDINGLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD