Riyazkhan Gauskhan Bagwan, Jalna V. Income-tax Officer, Ward - 2, Jalna

ITA 1772/PUN/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8969 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-02-2020
• Assessment Year: 2009-2010
• Appeal Filed On: 19-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ARISES OUT OF PASSED
• Keywords: Capital asset; Cost of acquisition; Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT . / ITA NO. 1772/PUN/2018 / ASSESSMENT YEAR : 2009-10 MR. RIYAZKHAN GAUSKHAN BAGWAN, H.NO.3-8-1, BHAJI MANDI, JALNA, DIST. JALNA 431 203 MAHARASHTRA PAN : ARVPB6642B VS. ACIT, WARD-2, JALNA (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, AURANGABAD ON 07-09-2018 IN RELATION TO THE ASSESSMENT YEAR 2009-10. 2. THE FIRST GROUND IS AGAINST THE CONFIRMATION OF ADDITION OF RS.7,50,026/-. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESS ING OFFICER (AO) GOT INFORMATION THAT THE GOVT. OF MAHARASHTRA THROUGH LAND ACQUISITION OFFICER, JALNA, HAD ACQUIRED THE APPELLANT BY NONE RESPONDENT BY SHRI S.P. WALIMBE DATE OF HEARING 14-01-2020 DATE OF PRONOUNCEMENT 15-01-2020 ITA NO.1772/PUN/2018 RIYAZKHAN G. BAGWAN 2 LAND, INTER ALIA, OF THE ASSESSEE, FOR THE PURPOSES OF SETTING UP OF INDUSTRIAL ZONE BY THE MAHARASHTRA INDUSTRIAL DEVELOPMEN T CORPORATION (MIDC). THE ASSESSEE WAS PAID COMPENSATION OF RS.8,20,287/- FOR THE ACQUISITION OF HIS LAND. ON PERUSAL OF 7/12 EXTRACT, THE AO OBSERVED THAT THE ASSESSEES LAND WAS BARREN AND WITHIN 8 KMS OF THE MUNICIPAL AREA, JALNA AND HENCE, LIABLE TO BE CONSIDERED AS A `CAPITAL ASSET FOR COMPUTATION OF `CAPITAL GAINS. HE GAVE SEVERAL OPPORTUNITIES TO THE ASSESSEE FOR APPEARING, BUT TO NO AVAIL. IN THE ULTIM ATE ANALYSIS, THE AO COMPUTED LONG TERM CAPITAL GAIN AT RS.7,50,026/- BY REDUCING INDEXED COST OF ACQUISITION OF RS.70,261/- FROM THE AMOUNT OF COMPENSATION AT RS.8,20, 287/- AN APPEAL WAS FILED BY THE ASSESSEE BEFORE THE CIT(A). DESPITE SEVERAL OPPORTUNITIES GIVEN BY THE LD. FIRST APPELLATE AUTHORITY, IT HAS BEEN RECORDED ON PAGES 2 AND 3 OF THE IMPUGNED ORDER, THAT THE ASSESSEE DID NOT TURN UP WHICH LED TO THE CONFIRMATION OF ADDITION. THE ASSESSEE IS AGGRIEVED BEF ORE THE TRIBUNAL BY THE ADDITION SO SUSTAINED IN THE FIRST APPEAL. 4. I HAVE HEARD THE LD. DR AND GONE THROUGH THE RELEVAN T MATERIAL ON RECORD. THERE IS NO APPEARANCE FROM THE SIDE OF ITA NO.1772/PUN/2018 RIYAZKHAN G. BAGWAN 3 THE ASSESSEE DESPITE SEVERAL NOTICES ISSUED BY THE REGISTRY OF THE TRIBUNAL. ACCORDINGLY, I AM PROCEEDING TO DISPOSE OFF THE APPEAL EX PARTE QUA THE ASSESSEE. IT IS SEEN THAT THE ASSESSEE RECEIVED FULL VALUE OF CONSIDERATION AT RS.8,20,287/- ON ACCOUNT OF ACQUISITION OF HIS LAND. THE AO HAS MENTIONED TH AT THE LAND IS SITUATED WITHIN 8 KMS FROM THE MUNICIPAL AREA, JALNA AND AS PER 7/12 EXTRACT IT IS BARREN LAND AND HENCE CAPITAL ASSET. THE AO HAS FURTHER CALCULATED THE INDEXED COST OF ACQUISITION AT RS.70,261/- FOR THE PURPOSES OF COMPUTATION OF CAPITAL GAIN. THERE IS NO MATERIAL ON RECORD TO DEMONSTRATE THAT THE FINDINGS RETURNED BY THE AO, AS APPROVED IN THE FIR ST APPEAL, SUFFER FROM ANY INFIRMITY. IN VIEW OF THE ABOVE, I UPHOLD THE ADDITION ON ACCOUNT OF CALCULATION OF LONG TERM CAPITAL GAIN AT RS.7,50,026/-. THE FIRST GROUND IS, THEREFO RE, DISMISSED. 5. THE SECOND GROUND IS AGAINST THE CONFIRMATION OF ADDITION OF RS.6,56,000/- TOWARDS DEPOSITS IN THE BANK ACCOUNT. THE AO PERUSED THE ASSESSEES BANK ACCOUNT A ND OBSERVED THAT THE ASSESSEE DEPOSITED A SUM OF RS.6,56,00 0/- IN SUCH BANK WITH THE FIRST ENTRY DATED 22-11-2008 FOR RS.1,0 00/- AND THEREAFTER ENTRIES STARTING FROM 17-02-2008 AND CONTINU ING ITA NO.1772/PUN/2018 RIYAZKHAN G. BAGWAN 4 UP TO 12-03-2009 TOTALLING RS.6,55,000/-. IN THE ABSENC E OF THE ASSESSEE FURNISHING ANY EVIDENCE, THE AO MADE ADDITION OF RS.6,56,000/- U/S.69A OF THE ACT, WHICH CAME TO BE AFFIR MED IN THE FIRST APPEAL. 6. I HAVE HEARD THE LD. DR AND GONE THROUGH THE RELEVAN T MATERIAL ON RECORD. IT IS OBSERVED THAT THE ASSESSEE RECE IVED RS.8,20,287/- FROM MIDC ON 26-11-2008, WHICH IS SUBJEC T MATTER OF GROUND NO.1. ALL THE DEPOSITS IN THE BANK ACCOUNT TOTAL UP TO RS.6,56,000/-. BARRING THE FIRST DEPOSIT OF RS.1,000/- ON 22-11-2008, ALL THE FURTHER DEPOSITS OF RS.6,55,000/- ARE AFTER THE DATE OF RECEIPT OF RS.8.20 LA KH FROM MIDC. THE ASSESSEE HAS SUBMITTED BEFORE THE LD. CIT(A), AS HAS BEEN REPRODUCED ON THE LAST PAGE OF THE IMPUGNED OR DER, THAT HE WITHDREW CASH EARLIER FROM HIS BANK ACCOUNT AND THE SAME WAS RE-DEPOSITED. IN VIEW OF THE FACT THAT RS.8.20 LAKH WAS AVAILABLE WITH THE ASSESSEE ON ACCOUNT OF RECEIPT FROM MIDC TOWARDS ACQUISITION OF HIS LAND, THE DEPOSITS MADE IN THE BANK ACCOUNT TO THE TUNE OF RS.6,56,000/- CANNOT BE TREATED ANYTHING OTHER THAN COMING FROM SUCH AMOUNT IN THE HANDS OF ITA NO.1772/PUN/2018 RIYAZKHAN G. BAGWAN 5 THE ASSESSEE. I, THEREFORE, ORDER TO DELETE THE ADDITION OF RS.6,56,000/-. 7. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JANUARY, 2020. SD/- (R.S.SYAL) / VICE PRESIDENT PUNE; DATED : 15 TH JANUARY, 2020 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-1, AURANGABAD 4. THE PR. CIT-1, AURANGABAD 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE ITA NO.1772/PUN/2018 RIYAZKHAN G. BAGWAN 6 DATE 1. DRAFT DICTATED ON 14-01-2020 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 14-01-2020 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. *