Smt. Savitaben R. Patel, Ahmedabad V. The Income Tax Officer, Ward-7(2), Ahmedabad

ITA 1934/AHD/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1223 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 19-11-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 30-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LALA PHILIPS
• Assessee Lawyers: K C THAKER
• Keywords: Gift; Capital receipt
• Section: 142(1); 139(5); 148; 56; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE S/SHRI RAJPAL YADAV, JM, & MANISH BORAD, A M. ITA NO.1932 /AHD/2015 ASST. YEAR: 2010-11 ITA NO.1933/AHD/2015 ASST. YEAR: 2010-11 ITA NO.1934/AHD/2015 ASST. YEAR 2010-11 MAHESHKUMAR R. PATEL, 1- SAUMITREY SOCIETY, JODHPUR GAM, SATELLITE, AHMEDABAD- 380015. VS. INCOME-TAX OFFICER, WARD - 7(2), AHMEDABAD. APPELLANTS RESPONDENT PAN ACKPP-6958-J SMT. BELABEN M. PATEL, 1- SAUMITREY SOCIETY, JODHPUR GAM, SATELLITE, AHMEDABAD- 380015. VS. INCOME-TAX OFFICER, WARD - 7(2), AHMEDABAD. APPELLANTS RESPONDENT PAN ABWPT-5528-K SMT. SAVITABEN R. PATEL, 1- SAUMITREY SOCIETY, JODHPUR GAM, SATELLITE, AHMEDABAD- 380015. VS. INCOME-TAX OFFICER, WARD - 7(2), AHMEDABAD. APPELLANTS RESPONDENT PAN BWFPP-5796-J APPELLANTS BY SHRI K. C. THAKER, AR RESPONDENT BY SHRI LALA PHILIPS, SR.DR DATE OF HEARING:19/11/2015 DATE OF PRONOUNCEMENT: 26/11/2015 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER. ITA NO.1932 TO 1934/AHD/2015 ASST. YEAR 2010-11 2 ALL THESE THREE APPEALS ARE DIRECTED AGAINST SEPAR ATE ORDERS OF CIT(A)-3, AHMEDABAD, IN APPEAL NOS.CIT(A)-3/ITO/3(3 )/206/14-15, CIT(A)-3/ITO/3(3)(1)/207/14-15 & CIT(A)-3/ITO/3(3)( 5)/208/14-15 DATED 9 TH APRIL, 2015. ASSESSMENTS WERE FRAMED U/S 144 R.W.S . 147 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) FOR ASST. YEAR 2010-11, ON 9.1.2014. SINCE ALL THESE THREE A PPEALS PERTAIN TO THE SAME GROUP OF ASSESSEES AND THE ISSUES ARE COMM ON IN ALL THESE APPEALS, THESE ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE WILL TAKE UP ITA NO.1932/AHD/2015, ASST . YEAR 2010- 11. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE A SSESSEE FILED HIS RETURN OF INCOME FOR ASST. YEAR 2010-11 ON 15.04.20 10 DECLARING INCOME AT RS.1,81,610/-. RETURN WAS DULY PROCESSED U/S 143(1) OF THE ACT. THEREAFTER THE CASE WAS REOPENED UNDER SECTION 147 OF THE ACT AND NOTICE U/S 148 WAS ISSUED ON 3.4.2013 WHICH WAS DULY SERVED UPON THE ASSESSEE. THEREAFTER NOTICE U/S 142(1) WAS ISSUED AND ASSESSMENT WAS FRAMED U/S 144 R.W.S.147 OF THE ACT AFTER MAKING ADDITION OF RS.11,37,697/- INCOME OF ASSESSEE WAS A SSESSED AT RS.13,19,310/-. ADDITION OF RS.11,37,697/- WAS MADE ON ACCOUNT OF FOLLOWING :- (1) ADDITION OF RS.5,00,000/- RECEIVED BY THE ASSES SEE AS A CONFIRMING PARTY TO THE SALE-DEED BY TREATING IT AS INCOME FROM OTHER SOURCES. ITA NO.1932 TO 1934/AHD/2015 ASST. YEAR 2010-11 3 (2) RS.6,37,697/- AS UNDISCLOSED INCOME FROM CAPITA L GAIN FROM SALE OF HOUSE PROPERTY. 3. IN REGARD TO ADDITION OF LONG TERM CAPITAL GAIN AS UNDISCLOSED INCOME AT RS.6,37,697/- IT IS PERTINENT TO MENTION HERE THAT ASSESSEE FILED RETURN U/S 148 R.W.S. 139(4) OF THE ACT ON 1. 11.2013 INCORPORATING THE CAPITAL GAIN ARISING FROM SALE OF HOUSE PROPERT Y AND PAID TAXES ACCORDINGLY BUT THE CONTENTION OF THE ASSESSEE THAT THE RETURN FILED ON 1.11.2013 IS A VALID RETURN U/S 148 R.W.S. 139(4) BUT WAS NOT FOUND IN ACCORDANCE WITH LAW BY THE ASSESSING OFFICER AND, T HEREFORE, NO COGNIZANCE WAS GIVEN TO THE RETURN FILED ON 1.11.20 13 AND DUE TO THIS REASON INCOME FROM CAPITAL GAIN AT RS.6,37,697/- WH ICH WAS HITHERTO DISCLOSED BY THE ASSESSEE IN ITS RETURN OF INCOME O N 1.11.2013 WAS TREATED AS UNDISCLOSED INCOME AND ADDED TO THE TOTA L INCOME OF THE ASSESSEE. 4. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE LD. CI T(A) ON FOLLOWING GROUNDS :- 1) THE LD. AO HAS ERRED IN LAW AND ON FACTS IN ASSE SSING THE RECEIPTS OF RS.5,00,000/- IGNORING THE SUBMISSIONS MADE BEFORE HIM. 2) THE LD. AO HAS FURTHER ERRED IN LAW AND ON FACTS IN INGNORING THE RETURN FILED U/S 148 OF THE ACT ON 1.11.2013. 3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. AO OUGHT NOT HAVE ADDED THE RECEIPT OF RS.5,00,000/ - TO THE INCOME RETURNED AND OUGHT NOT HAVE IGNORED THE RETU RN FILED U/S 148 OF THE ACT ON 1.11.2013. ITA NO.1932 TO 1934/AHD/2015 ASST. YEAR 2010-11 4 HOWEVER, THE CIT(A) SUSTAINED THE ORDER OF ASSESSIN G OFFICER AND DISMISSED THE APPEAL OF ASSESS. 5. AGGRIEVED, ASSESSEE IS NOW IN FURTHER APPEAL BEF ORE THE TRIBUNAL ON FOLLOWING GROUNDS :- (1) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE RECEIPT OF RS.5 LACS IS ASSESSABLE AS INCOME FROM O THER SOURCES AND IN CONFIRMING THE ADDITION THEREOF. (2) THE LD. CIT(A) HAS FURTHER ERRED IN LAW AND ON FACTS IN HOLDING THAT THE RETURN FILED ON 1.11.2013 IN RESPONSE TO N OTICE ISSUED U/S 144 OF THE ACT ON 3.4.2013 WAS NOT A VALID RETU RN U/S 148 OF THE ACT DECLARING CAPITAL GAIN VOLUNTARILY AD IN GO OD FAITH WITHOUT ANY INQUIRY. (3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) OUGHT TO HAVE DELETED THE ADDITION O F RS.5 LACS TREATED AND OUGHT TO HAVE QUASHED THE ASSESSMENT U/ S 144 AS THE RETURN FILED U/S 148 OF THE ACT WAS A VALID RET URN FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT. (4) IT IS THEREFORE PRAYED THAT THE ADDITION OF RS. 5 LACS MAY BE DELETED AND THE ASSESSMENT MADE U/S 144 MAY BE QUAS HED. (5) YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER OR AM END ANY GROUND OF APPEAL AT THE TIME OF HEARING. 6. FIRST WE TAKE UP THE GROUND WHEREIN LD. CIT(A) H AS ERRED IN LAW AND ON FACTS IN HOLDING THAT RECEIPT OF RS.5 LACS I S ASSESSABLE AS INCOME FROM OTHER SOURCES. LD. AR OF THE ASSESSEE H AS SUBMITTED THAT THERE WAS AGRICULTURAL LAND AT BLOCK NOS.105,1 06 AND 114 AT VILLAGE BOPAL, TAL. DASKROI, DIST. AHMEDABAD, WHICH WAS OWNED BY FATHER OF ASSESSEE NAMELY SHRI RANCHODBHAI K. PATEL . A WILL WAS MADE ON 22.5.2001 BY RANCHODBHAI K. PATEL. JUST B EFORE HIS DEATH ITA NO.1932 TO 1934/AHD/2015 ASST. YEAR 2010-11 5 ON 25.5.2001. THROUGH THIS WILL RANCHODBHAI K. PA TEL GAVE AGRICULTURAL LAND BEARING NO.S 106 114 AT VILLAGE B OPAL, TAL. DASKROI, DIST. AHMEDABAD, TO MR. NILESH GUNVANTRAY UPADHYAY (WHO IS SON OF MR. GUNVANTRAY UPADHYAY, WHO WAS A VERY GOOD FRIEND OF RANCHODBHAI K. PATEL) AND THE ENTRY OF THIS WIL HAS BEEN MADE IN THE REGISTER OF RIGHTS IN FORM NO.6 UNDER ENTRY NO. 5301 DATED 4.6.2001 REGARDING SUCCESSORS AND THE ENTRY IS CONF IRMED ON 31.07.2001. 7. FAMILY OF LATE RANCHODBHAI K. PATEL COMPRISED OF HIS WIFE, SAVITABEN R. PATEL, SON MAHESHKUMAR R. PATEL AND DA UGHTER BELABEN M. PATEL. 8. AS PER THE WILL AFTER THE DEATH OF RANCHODBHAI K . PATEL, MR. NILESHBHAI G. UPADHYAY BECAME THE OWNER OF BLOCK NS .106 & 114 AT VILLAGE BOPAL AND IN ORDER TO FURTHER LEGALLY INTAC T HIS RIGHT ON THE REFERRED LAND AS PER WILL, MR. NILESHBHAI G. UPADHY AY GOT REGISTERED THE LAND IN HIS NAME BY MAKING A SALE DEED REGISTER ED ON 6.1.2007 IN HIS FAVOUR AGAINST THE TOTAL CONSIDERATION OF RS.7, 13,250/- WHICH WAS GIVEN IN TOTAL TO SAVITABEN R. PATEL, BELABEN M. PA TEL AND MAHESHKUMAR R. PATEL WHO AGAINST THIS CONSIDERATION GAVE ALL THE RIGHTS OF THE VENDOR TO THE PURCHASING PARTY I.E. M R. NILESH G. UPADHYAY. 9. FURTHER ON 18.1.2010 MR. NILESH G. UPADHYAY SOLD THE LAND IN QUESTION TO MR. UMANG H. THAKAR FOR A TOTAL CONSIDE RATION OF RS.1,67,65,000/-. IN THIS SALE DEED THE THREE APPEL LANTS NAMELY ITA NO.1932 TO 1934/AHD/2015 ASST. YEAR 2010-11 6 SAVITABEN R. PATEL, MAHESHKUMAR R. PATEL AND BELABE N PATEL RECEIVED RS.5 LACS EACH FROM UMANGLAL H. THAKAR FOR BEING CONFIRMING PARTIES IN THE SALE DEED. THIS AMOUNT OF RS.5 LACS EACH RECEIVED BY THE THREE APPELLANTS WAS PART OF TOTAL SALE CONSIDERATION OF RS.1,67,65,000/-. THE REASON DUE TO WHICH UMANDL AL H. THAKAR PAID TO THE CONFIRMING PARTIES WAS THAT HE FELT THA T IN ORDER TO ELIMINATE ANY CHANCE OF DISPUTE BY THE HEIR(S) OF RANCHOD K. PATEL AS TO THE WILL AND OUT OF SUCH UNWARRANTED WORRIES IT IS BETT ER TO MAKE THE LEGAL HEIRS OF RANCHOD K. PATEL AS CONFIRMING PARTI ES AND, THEREFORE, PAID RS.5 LACS EACH TO THEM. 10. LD. AR SUBMITTED THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN TREATING THIS RECEIPT OF RS. 5 LACS AS INCOME FROM OTHER SOURCES FOR THE SIMPLE REASON THAT THE RECEIPT IS NOT EVEN AN INCOM E. THE RECEIPT IS JUST A WINDFALL RECEIPT OF CAPITAL A/C. IT WOULD NO T ATTRACT THE PROVISIONS OF CAPITAL GAIN AS THE APPELLANT HAS NOT TRANSFERRE D ANYTHING TO ANY BODY. THE BUYER OF THE PROPERTY WAS UNDULY WORRIED AS TO THE HEIRS OF RANCHOD K. PATEL RAISING SOME DISPUTE IN FUTURE AND PAID THEM TOWARD OF ANY CHANCE OF DISPUTE AFFECTING THE TITLE OF THE BUYER. THE POSSIBILITY OF ANY SUCH DISPUTE WAS NOT THERE IN VI EW OF ANY OTHER DOCUMENT WHICH WAS EXECUTED BY THE CONFIRMING PARTI ES ON 6.1.2007 IN FAVOUR OF NILESH G. UPADHYAY VENDER OF THE PROPE RTY. IN VIEW OF THIS FACTUAL AND LEGAL POSITION THAT THE APPELLANT HAS R ECEIVED IS FOR NOTHING BUT TRULY WINDFALL RECEIPT. IT IS, THEREFO RE, NOT COVERED BY THE TERM INCOME REFERRED IN THE PROVISIONS OF SECTION 5 OF THE ACT AND, THEREFORE, WRONGLY ASSESSED BY THE ASSESSING OFFICE R AS INCOME FROM OTHER SOURCES. ITA NO.1932 TO 1934/AHD/2015 ASST. YEAR 2010-11 7 11. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORD ERS OF LOWER AUTHORITIES. 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE INVOLVED IS THAT ASSESSEES FA THER GIFTED SOME LAND (BLOCK NO.106 & 114 AT VILLAGE BOPAL, DIST. AH MEDABAD) THROUGH HIS WILL TO A NON-FAMILY MEMBER NAMELY NILESH G. UP ADHYAY OUT OF HIS LOVE AND AFFECTIONS. NILESH G. UPADHYAY FURTHER GOT PREPARED A SALE DEED OF LAND GIFTED TO HIM BY RANCHOD K. PATEL AND IN THIS SALE DEED THE LEGAL HEIRS OF RANCHOD K. PATEL WERE THE V ENDORS (CONFIRMING PARTIES). THESE CONFIRMING PARTIES INCL UDING THE APPELLANT I.E MAHESHKUMAR R. PATEL, SAVITABEN R. PATEL AND BE LABEN PATEL RECEIVED A TOTAL CONSIDERATION OF RS.7,13,250/- AGA INST WHICH THEY LOST THEIR RIGHT, TITLE OR INTEREST IN THE PROPERTY REFE RRED IN THE WILL MADE BY RANCHOD K. PATEL. FURTHER MR. NILESH G. UPADHYAY SOLD THE LAND IN QUESTION TO MR. UMANG H. THAKAR FOR A TOTAL CONSIDE RATION OF RS.1,67,65,000/-. THE THREE APPELLANTS AGAIN RECEIV ED RS.5 LACS EACH FOR BEING CONFIRMING PARTIES TO THE SALE DEED ENTER ED BETWEEN NILESH G. UPADHYAY AND UMANG H. THAKAR. NOW THE QUESTION I S WHETHER THIS AMOUNT OF RS.5 LACS RECEIVED BY EACH CONFIRMIN G PARTIES IS TAXABLE INCOME OR TAX FREE CAPITAL RECEIPT. THE LD. AR HAS FORCED HIS ARGUMENT ON THE BASIS THAT AS THE APPELLANT ASSESSE ES HAVE ALREADY LOST THEIR RIGHT, TITLE OR INTEREST IN THE PROPERTY IN THE DOCUMENT REGISTERED ON 6.1.2007 FOR WHICH THEY RECEIVED A TO TAL CONSIDERATION OF RS.7,13,250/-, THEREFORE, THEY HAD NOTHING TO TRANS FER TO MR. UMANG ITA NO.1932 TO 1934/AHD/2015 ASST. YEAR 2010-11 8 H. THAKAR AND WHAT THEY RECEIVED FROM UMANG H. THAK AR WAS NOT AN INCOME BUT A CAPITAL RECEIPT WITHOUT ANY CONSIDERAT ION. 13. CIT(A) HAS CONFIRMED THE VIEW TAKEN BY THE ASSE SSING OFFICER BY DISCUSSING THE FOLLOWING IN HIS ORDER :- 5.0 SINCE ALL THE THREE GROUNDS TAKEN BY THE ASSES SEE ARE INTER RELATED, THEY ARE BEING TAKEN UP TOGETHER FOR THE S AKE OF CONVENIENCE. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE I N THE LIGHT OF THE SUBMISSIONS MADE BY THE APPELLANT AND THE FINDING O F THE ASSESSING OFFICER RECORDED IN THE ASSESSMENT ORDER. IT IS A F ACT THAT THE APPELLANT HAS RECEIVED THE AMOUNT OF RS.5,00,000/- DURING THE YEAR UNDER CONSIDERATION. IT IS ALSO A FACT THAT THE SAM E HAS BEEN RECEIVED BY THE APPELLANT BY VIRTUE OF HIS BEING A CONFIRMIN G PARTY IN THE SAID SALE DEED. THUS THE APPELLANTS CONTENTION THAT THI S AMOUNT IS IN THE NATURE OF A CASUAL RECEIPT AND A WINDFALL AND IS NO T IN THE NATURE OF INCOME IS NOT CORRECT AND NOT ACCEPTABLE. SECTION 5 OF THE INCOME-TAX ACT WHICH LAYS DOWN THE SCOPE OF TOTAL INCOME IS VE RY CLEAR IN THIS REGARD. THE SAME IS REPRODUCED AS UNDER :- 5. (1) SUBJECT TO THE PROVISIONS OF THIS ACT, THE TOT AL INCOME OF ANY PREVIOUS YEAR OF A PERSON WHO IS A RESIDENT INCLUDES ALL INCOME FROM W HATEVER SOURCE DERIVED WHICH ( A ) IS RECEIVED OR IS DEEMED TO BE RECEIVED IN INDIA IN SUCH YEAR BY OR ON BEHALF OF SUCH PERSON ; OR ( B ) ACCRUES OR ARISES OR IS DEEMED TO ACCRUE OR ARIS E TO HIM IN INDIA DURING SUCH YEAR ; OR ( C ) ACCRUES OR ARISES TO HIM OUTSIDE INDIA DURING SU CH YEAR : ITA NO.1932 TO 1934/AHD/2015 ASST. YEAR 2010-11 9 THUS THE AMOUNT OF RS.5,00,000/- UNDISPUTEDLY RECEI VED BY THE APPELLANT IS CLEARLY IN THE NATURE OF INCOME. FURTH ER UNDER THE INCOME- TAX ACT, INCOME OF EVERY KIND WHICH IS NOT TO BE EX CLUDED FROM THE TOTAL INCOME IS CHARGEABLE TO TAX UNDER THE HEAD I NCOME FROM OTHER SOURCES IF IT IS NOT CHARGEABLE TO TAX UNDER ANY O F THE OTHER HEADS OF INCOME. THUS IN MY VIEW THE DECISION OF THE AO TO T REAT RS.5,00,000/- AS THE APPELLANTS INCOME FROM OTHER SOURCES WAS BA SED ON PROPER FACTS AND LAW, AND IS ACCORDINGLY UPHELD. 14. THE VIEW TAKEN BY THE CIT(A) CAN FURTHER BE EXA MINED BY THE PROVISIONS OF SECTION 56 WHICH DEALS WITH THE INCOM E FROM OTHER SOURCES. IN PAST FEW YEARS THERE HAVE BEEN PHENOMEN AL AMENDMENTS IN THE PROVISIONS OF SECTION 56 DUE TO W HICH VARIOUS TYPES OF RECEIPTS WHICH WERE HITHERTO NOT COVERED U P IN THE PROVISIONS OF THE ACT AS INCOME HAVE BEEN BROUGHT IN UNDER THE TAX AMBIT. ONE SUCH AMENDMENT WAS INSERTED BY FINANCE ACT 2009 W.E .F. 1.10.2009 WHICH REFERS TO ANY SUM OF MONEY EXCEEDING RS.50,00 0/- WHICH IS RECEIVED WITHOUT CONSIDERATION BY ANY INDIVIDUAL OR HUF FAMILY FROM ANY PERSON, BUT NOT INCLUDING RELATIVES AS DEFINED IN THE PROVISO TO SECTION 56(2)VII) THE WHOLE OF SUCH SUM SHALL BE CH ARGEABLE TO INCOME-TAX AS INCOME FROM OTHER SOURCES. 15. IN THE CASE OF ASSESSEE ALSO SIMILAR SITUATION HAS ARISEN WHEREIN ON ONE HAND, HE HAS ALREADY LOST HIS RIGHT, TITLE OR INTEREST IN THE PROPERTY BY RECEIVING THE CONSIDERATION OF RS.7 ,13,250/- ALONG WITH HIS OTHER FAMILY MEMBERS. AGAIN THE ASSESSEE A PPELLANT GOT READY TO BE A CONFIRMING PARTY WITH A MOTIVE OF REC EIVING RS.5 LACS ITA NO.1932 TO 1934/AHD/2015 ASST. YEAR 2010-11 10 EVEN WHEN HE HAS ALREADY RECEIVED A PART OF CONSIDE RATION BEFORE. CERTAINLY THERE WAS AN INTENTION OF EARNING AND THI S SUM OF RS.5 LACS HAS BEEN RECEIVED BY THE ASSESSEE FROM A PERSON WHO IS NOT A RELATIVE UNDER SECTION 56(2)(VII) WITHOUT ANY CONSI DERATION AND THIS SUM OF MONEY IS EXCEEDING RS.50,000/- AND, THEREFOR E, THE SUM OF RS.5,00,000/- RECEIVED BY ASSESSEE WAS RIGHTLY TREA TED AS INCOME FROM OTHER SOURCES BY THE ASSESSING OFFICER AND, TH EREFORE, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF CIT( A). ACCORDINGLY, WE UPHOLD THE SAME AND THIS GROUND OF THE ASSESSEE IS DISMISSED. 16. THE SECOND & THIRD GROUNDS TAKEN BY THE ASSESSE E ARE THAT LD. CIT(A) HAS FURTHER ERRED ON GROUND IN HOLDING THAT THE RETURN FILED ON 1.11.2013 IN RESPONSE TO NOTICE UNDER SECTION 148 O F THE ACT ON 3.4.2013 WAS NOT A VALID RETURN UNDER SECTION 144 O F THE ACT. 17. THE LD. CIT(A) HAS SUSTAINED THE VIEW TAKEN BY THE ASSESSING OFFICER WHEREIN NO COGNIZANCE WAS GIVEN TO THE RETU RN FILED BY THE ASSESSEE ON 1.11.2013 BY OBSERVING AS UNDER :- AS REGARDS THE APPELLANTS GROUND THAT THE RETURN OF INCOME FILED BY HIM U/S 148 OF THE ACT ON 1.11.2013 WAS NOT CONSIDE RED BY THE AO, I FIND THAT THIS ISSUE HAS BEEN DISCUSSED IN DETAIL A ND IN CLEAR TERMS BY THE AO IN PARA 3.3 OF THE ASSESSMENT ORDER. THE FAC TS ARE THAT THE AO ISSUED NOTICE U/S 148 ON 3.4.2013 GIVING THE APPELL ANT 30 DAYS TIME TO FILE HIS RETURN OF INCOME. THE APPELLANT DID NOT FILE HIS RETURN OF INCOME WITHIN THE TIME ALLOWED. A PERUSAL OF THE AS SESSMENT ORDER SHOWS THAT THE APPELLANT SUBMITTED VIDE A LETTER DA TED 20.12.2013 THAT ITA NO.1932 TO 1934/AHD/2015 ASST. YEAR 2010-11 11 HE HAD FILED THE RETURN OF INCOME U/S 148 RWS 139(4 ) ON 1.11.2013. IT IS SEEN FROM THE ASSESSMENT ORDER THAT THE AUTHORIZ ED REPRESENTATIVE OF THE APPELLANT ATTENDED THE ASSESSMENT PROCEEDING S IN RESPONSE TO THE NOTICE ISSUED U/S 148 AND 142(1) AND SUBMITTED DETALS AS AND WHEN CALLED FOR BY THE AO. THIS ISSUE WAS NEVER RAI SED BEFORE THE AO DURING ASSESSMENT PROCEEDINGS, EXCEPT VIDE THE APPE LLANTS LETTER DATED 20.12.2013. AS HAS BEEN DISCUSSED BY THE AO A T LENGTH IN THE ASSESSMENT ORDER, THE RETURN FILED BY THE APPELLANT WAS NOT A VALID RETURN SINCE THE CONDITIONS PRESCRIBED U/S 139(4) W AS NOT MET BY THE APPELLANT. 18. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE REASON FOR RAISING THIS GROUND BY AS SESSEE IS THAT ASSESSEE FORGOT TO DISCLOSE INCOME FROM CAPITAL GAI N AT RS.6,37,697/- IN HIS REGULAR RETURN OF INCOME FILED ON 15.4.2010. THEREAFTER ON THE BASIS OF SOME INFORMATION THE CASE WAS REOPENED U/S 147 OF THE I.T. ACT AND NOTICE U/S 148 WAS SERVED ON THE ASSESSEE O N 3.4.2013 WHICH GAVE 30 DAYS TIME TO THE ASSESSEE TO FILE A R ETURN OF INCOME IN PURSUANCE OF NOTICE U/S 148. BUT THE RETURN OF INCO ME IN PURSUANCE OF NOTICE UNDER SECTION 148 WAS FILED BY THE ASSESSEE ON 1.11.2013 I.E. ABOUT AFTER 7 MONTHS OF NOTICE U/S 148. THE ASSESSE E HAS SHOWN THE CAPITAL GAIN INCOME OF RS..6,37,697/- IN THIS RETUR N FILED ON 1.11.2013 AND PAID TAXES ACCORDINGLY. BUT IN ORDER TO SAVE HI MSELF FROM THE PROVISIONS OF PENALTY U/S 271(1)(C) SEEMS TO BE TRY ING TO TAKE SHELTER WITH THE SUBMISSIONS THAT THERE WAS NO INFORMATION RELATING TO CAPITAL GAIN WITH THE ASSESSING OFFICER AND ASSESSEE HIMSEL F HAS DISCLOSED ITA NO.1932 TO 1934/AHD/2015 ASST. YEAR 2010-11 12 THIS INCOME IN THE RETURN FILED ON 1.11.2013 AND, T HEREFORE, THERE IS NO CONCEALMENT OF INCOME BY HIM. 19. WE DO NOT FIND ANY FORCE IN THE ARGUMENTS OF LD . AR FOR THE VERY REASON THAT ORIGINAL RETURN FOR ASST. YEAR 2010-11 WAS FILED BY ASSESSEE ON 15.4.2010 AND HE WAS HAVING SUFFICIENT OPPORTUNITY UNDER THE PROVISIONS OF SECTION 139(5) TO REVISE TH E RETURN AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR TO THE RELEVANT ASSES SMENT YEAR, OR BEFORE THE COMPLETION OF ASSESSMENT WHICHEVER IS EA RLIER. IN THE CASE OF ASSESSEE, ASSESSEE COULD HAVE EASILY REVISED THE RETURN BEFORE 31 ST MARCH, 2012 BEING ONE YEAR FROM THE END OF ASSESSM ENT YEAR 2010-11 BUT NO SUCH RETURN WAS FILED BY THE ASSESSE E. FURTHER WHEN NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE ON 3 RD APRIL, 2013 HE WAS REQUIRED TO SUBMIT THE RETURN OF INCOME IN RESPONSE TO NOTICE U/S 148 OF THE ACT WITHIN 30 DAYS OF RECEIPT OF NOTICE BUT HERE AGAIN ASSESSEE DID NOT FILE ANY RETURN WITHIN 30 DAYS RATHER FILED THE RETURN ON 1.11.2013. THEREFORE, THERE WAS NO MISTAKE ON THE P ART OF ASSESSING OFFICER OF NOT GIVING COGNIZANCE TO THE RETURN OF I NCOME FILED BY THE ASSESSEE ON 1.11.2013 AND BY NOT TREATING IT AS RET URN FILED U/S 148 R.W.S. 139(4) OF THE ACT. IN VIEW OF THE ABOVE DISC USSION, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDING OF LD . CIT(A) AND WE UPHOLD THE SAME. THESE GROUNDS ARE ALSO DISMISSED. 20. GROUND NOS. 4 & 5 ARE OF GENERAL NATURE WHICH D O NOT REQUIRE ANY ADJUDICATION. ITA NO.1932 TO 1934/AHD/2015 ASST. YEAR 2010-11 13 21. SINCE THE ISSUES AND FACTS INVOLVED IN APPEAL N OS. 1933/AHD/2015 & 1934/AHD/2015 ARE IDENTICAL, APPLYI NG OUR DECISION IN ITA NO.1932/AHD/2015 FOR AY 2010-11, THE SAME AR E DISMISSED. 22. IN THE RESULT, ALL THE THREE APPEALS ARE DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH NOV. 2015 SD/- (RAJPAL YADAV) JUDICIAL MEMBER SD/- (MANISH BORAD) ACCOUNTANT MEMBER DATED : 26/11/2015 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD ITA NO.1932 TO 1934/AHD/2015 ASST. YEAR 2010-11 14 1. DATE OF DICTATION: 23/11/2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 24/11/2015 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 26/11/15 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: