Varun Sahni, Secunderabad V. ITO, Ward 6(4), Hyderabad

ITA 185/HYD/2012

• Counselvise Citation: 18522514 RSA 2012
• Duration Of Justice: 1 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 03-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V SHIV KUMAR
• Keywords: Additional evidence
• Section: 54; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 185/HYD/2012 ASSESSMENT YEAR : 2008-09 VARUN SAHNI HYDERABAD. PAN: APPPS8100K VS. INCOME-TAX OFFICER, WARD - 6(4), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V. SHIV KUMAR REVENUE BY : SHRI SOLGY JOSET KOTTARAM DATE OF HEARING : 12-11-2013 DATE OF PRONOUNCEMENT : 29-11-2013 O R D E R PER B. RAMAKOTAIAH, A.M.: THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER O F CIT(A)- IV, DATED 30-11-2011. THE ASSESSMENT U/S 144 WAS CO MPLETED BY AO DISALLOWING THE CLAIM OF EXPENDITURE WHILE WO RKING OUT CAPITAL GAINS AND ADOPTING THE ENTIRE SALE PRICE WI THOUT CONSIDERING THE EXPENDITURE INCURRED BY ASSESSEE. T HE LD. CIT(A) ALSO DISMISSED THE APPEAL OF ASSESSEE BASED ON THE ORDER OF AO. 2. BEFORE US, IT WAS SUBMITTED AS UNDER WHILE PRAYI NG FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF I TAT RULES, 1963. THE ABOVE NUMBERED APPEAL HAS BEEN FILED BY THE ASS ESSEE. THE ASSESSEE SOLD SHARES OF AN INDIAN COMPANY AND D ERIVED LONG TERM CAPITAL GAIN AND CLAIMED EXEMPTION U/S 54 F. HE COULD NOT ADDUCE EVIDENCE TO THE SATISFACTION OF TH E AO ABOUT 2 ITA NO. 185/HYD/2012 VARUN SAHNI THE CLAIM FOR EXEMPTION. CONSEQUENTLY ASSESSMENT WA S COMPLETED DENYING ALL THE CLAIMS OF EXPENDITURE IN CONNECTION WITH TRANSFER AS WELL AS EXEMPTION CLAIMED. IN APPE AL, THE ASSESSEE SOUGHT RESTORATION OF THE RELIEFS CLAIMED. HOWEVER, THE CIT(A) WHO HELD THAT THE ASSESSEE COULD NOT PRO VE EVEN THE EXISTENCE OF AN APARTMENT ACQUIRED BY THE ASSESSEE NOR COULD THE ASSESSEE ADDUCE EVIDENCE ABOUT DEPOSITS MADE BY THE ASSESSEE UNDER CAPITAL GAINS ACCOUNT SCHEME NOR COU LD THE ASSESSEE SUPPORT THE DEDUCTIONS OF RS. 23,29,596/- AND RS. 4,00,000/- WITH ANY EVIDENCE. THE CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. 2. IN THIS CONNECTION IT IS SUBMITTED THAT THE ASSE SSEE HAS BEEN STAYING OUTSIDE INDIA MOST OF THE TIME IN THE PAST FEW YEARS ON ACCOUNT OF SETTING UP A NEW BUSINESS. THE EVIDENCE RELATING TO ACQUISITION OF NEW PROPERTY BY PAYING P ART CONSIDERATION OF RS. 2 CRORES, THE EVIDENCE REGARDI NG FOR MAKING DEPOSITS OF A PART OF THE SALE CONSIDERATION TO THE EXTENT OF RS. 2,18,67,093/- WITH STATE BANK OF PBB, SP ROA D, SECUNDERABAD AS WELL AS THE EVIDENCE IN SUPPORT OF EXPENDITURE OF RS. 23,29,596/- AND RS. 4,00,000/- COULD NOT BE FILED BEFORE THE CIT(A) DUE TO THE FACT THAT THE RELEVANT DOCUME NTS COULD NOT BE OBTAINED AND DELIVERED TO THE AUTHORIZED REPRESE NTATIVE BY THE ASSESSEE SUFFICIENTLY IN ADVANCE IN VIEW OF HIS STAY OUTSIDE AND INDIA AND THE RESULTANT COMMUNICATION GAP. 3. IT IS HUMBLY SUBMITTED THAT THE ASSESSEES CLAI MS AS REGARDS FACTS STATED IN THE RETURN OF INCOME AS WEL L AS IN THE SUBMISSIONS BEFORE THE INCOME TAX AUTHORITIES ARE F ULLY SUPPORTED BY DOCUMENTARY EVIDENCE. THE ASSESSEE PRA YS THAT THE UNDER MENTIONED DOCUMENTS WHICH CONSTITUTE VITA L EVIDENCE IN SUPPORT OF THE CLAIMS MADE BY THE ASSESSEE ADVAN CE THE CASE OF THE ASSESSEE BUT COULD NOT BE FILED BEFORE THE LOWER AUTHORITIES FOR THE REASONS STATED IN THE PRECEDING PARAGRAPH. THE ASSESSEE HUMBLY PRAYS THAT THE UNDERMENTIONED DOCUMENTS MAY KINDLY BE ADMITTED AS ADDL. EVIDENCE AND TAKEN INTO ACCOUNT WHILE ADJUDICATING THE APPEAL. SL.NO. DESCRIPTION SHEET NOS. 1 COPY OF AGREEMENT OF SALE DATED 30-07- 2008 ENTERED INTO BY THE ASSESSEE FOR PURCHASE OF RESIDENTIAL FLAT FOR A SUM OF RS. 2,67,39,310/- 1 TO 13 2 COPY OF LETTER DATED 10-03-2010 ISSUED BY THE BUILDER INDICATING HANDING OVER POSSESSION OF THE RESIDENTIAL FLAT TO THE ASSESSEE 14 3 COPY OF LETTER DATED 4-3-2011 ISSUED BY STATE BANK OF INDIA EVIDENCING DEPOSIT OF 15 3 ITA NO. 185/HYD/2012 VARUN SAHNI RS. 2,18,67,093/- BY THE ASSESSEE. 4 COPY OF FD RECEIPT DATED 30-07-08 FOR A SUM OF RS. 1,00,00,000/- ISSUED BY THE PBB BRANCH, SBI, SECUNDERABAD. 16 5 COPY OF LETTER DATED 8-09-2011 ISSUED BY M/S IMPRESSARIO ENTERTAINMENT & HOSPITALITY LTD., MUMBAI ALONG WITH COPY OF DEBIT NOTE ISSUED BY THEM. 17 TO 18 6 COPY OF RECEIPT ISSUED BY SAROJ PARAKH, HYDERABAD IN TOKEN OF RECEIPT OF RS. 4,00,000/- BY CHQ. 224279 DATED 31-7- 2008 TOWARDS CONSULTANCY CHARGES ETC. TOWARDS PROCUREMENT OF RESIDENTIAL FLAT FOR THE ASSESSEE. 3. WE HAVE HEARD THE LEARNED COUNSEL AND LD. DR. AF TER CONSIDERING THE PRAYER AND ORDERS OF AO, WE ARE OF THE OPINION THAT ASSESSEE DESERVES AN OPPORTUNITY TO SUPPORT TH E CLAIMS BEFORE AO. FIRST OF ALL, THE ORDER U/S 144 WAS PASS ED WITHOUT GIVING AN OPPORTUNITY TO ASSESSEE. AN ENQUIRY SEEMS TO HAVE BEEN MADE AND ITIS REPORT DATED 29-12-2010 WAS REF ERRED IN THE ORDER PASSED ON 31-12-2010. THERE IS NO OPPORTUNITY GIVEN TO REBUT THE ENQUIRY REPORT OF ITI BEFORE THE CLAIM OF INVESTMENT IN HOUSE. SECONDLY, THE EXPENDITURE MENTIONED BY WAY O F DEBIT NOTE IN SALE INVOICE ITSELF WAS DISALLOWED ON THE REASON THAT IT DID NOT PERTAIN TO THE TRANSACTION. THIS IS ALSO ARBITRARY. FINALLY, EVEN THE LD. CIT(A) HAS HEARD THE CASE ON 10-06-2011, SEEMS TO HAVE ADJOURNED TO 14-09-2011, BUT, PASSED THE ORDER ON 3 0-11-2012, WITHOUT ANY FURTHER OPPORTUNITY AND CONFIRMED THE F INDING OF AO. HE COULD HAVE GIVEN ADEQUATE OPPORTUNITY WHEN THE O RDER OF AO IS U/S 144 OF THE ACT. BE THAT AS IT MAY, WE ARE OF THE OPINION THAT THE ADDITIONAL EVIDENCE WAS FILED BEFORE US REQUIRE EXAMINATION BY AO AND ASSESSEE SHOULD GET DUE OPPORTUNITY TO JU STIFY THE CLAIMS. CONSEQUENTLY, WE SET ASIDE THE ORDERS OF AO AND CIT(A) AND RESTORE THE ASSESSMENT PROCEEDINGS TO THE FILE OF THE AO TO DO IT AS PER LAW AND FACTS, AFTER GIVING DUE AND AD EQUATE 4 ITA NO. 185/HYD/2012 VARUN SAHNI OPPORTUNITY TO ASSESSEE. WE ACCORDINGLY ALLOW THE G ROUND NO. 2. THE REST OF THE GROUNDS ARE NOT ADJUDICATED AS ALL THE ISSUES ARE RESTORED TO THE FILE OF AO. 4. IN THE RESULT, APPEAL OF ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 29 TH NOVEMBER, 2013. SD/- SD/- (SAKTIJIT DEY) (B. RAMAKOTAIAH ) JUDICIAL MEMBER ACCOUNTAN T MEMBER HYDERABAD, DATED: 29 TH NOVEMBER, 2013. KV COPY TO:- 1) VARUN SAHNI, C/O V. SIVA KUMAR, ADVOCATE, PLOT N O. 28, GAYATRI COLONY, TIRUMALAGIRI POST, SECUNDERABAD 500 015. HYDERABAD 29. 2) ITO, WARD - 6(4), HYDERABAD. 3) CIT(A)-IV, HYDERABAD. 4) CIT-III, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T. A.T., HYDERABAD.