ANAND SHAMRAO MANJALKAR, PUNE V. ITO, Ward-3(2), PUNE

ITA 2009/PUN/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2624 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 16-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Set aside; Capital Gains
• Section: 142(1); 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, P UNE (THROUGH VIRTUAL COURT) BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT(KZ) . / ITA NO.2009/PUN/2019 / ASSESSMENT YEAR : 2011-12 ANAND SHAMRAO MANJALKAR, FLAT NO.1/4, ARUN HOUSING CO-OP SOCIETY, CHATURSHRUNGI ROAD, MODEL COLONY, SHIVAJINAGAR, PUNE 411016. PAN : ABOPM0471G. ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD-3(2), PUNE. / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE. REVENUE BY : SHRI SUDHENDU DAS. / DATE OF HEARING : 25.11.2020 / DATE OF PRONOUNCEMENT : 26.11.2020 / ORDER PER P.M. JAGTAP, VP : 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 3, PUNE DATED 07.10 .2019 WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE BY TREATING THE SAME AS BARRED BY LIMITATION. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL. AS PER THE INFORMATION RECEIVED BY THE ASSESSING OFFICER, THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION HAD SOLD A LAND JOINTLY OWNED BY HIM AT MAU JE CHOVISWADI FOR A TOTAL CONSIDERATION OF RS.87,00,000/- AS AGAINST THE VALUE DETERMINED FOR THE 2 ITA NO.2009/PUN/2019 PURPOSE OF STAMP DUTY AT RS.1,57,06,000/-. SINCE THE RETU RN OF INCOME FOR THE YEAR UNDER CONSIDERATION DISCLOSING THE CAPITAL GAINS ARISING FROM THE SAID SALE OF LAND WAS NOT FILED BY THE ASSESSEE, NOTICE U/S 148 OF T HE ACT WAS ISSUED BY THE ASSESSING OFFICER TO THE ASSESSEE ON 17.03.2016. THE SAID NOTICE ISSUED BY THE ASSESSING OFFICER U/S 148 OF THE ACT AS WELL AS THE S UBSEQUENT NOTICES ISSUED BY HIM U/S 142(1) OF THE ACT REMAINED UN-COMPILED WIT H BY THE ASSESSEE. THE ASSESSING OFFICER THEREFORE WAS LEFT WITH NO OPTION BUT TO COMPLETE THE ASSESSMENT EX-PARTE TO THE BEST OF HIS JU DGMENT ON THE BASIS OF MATERIAL AVAILABLE ON THE RECORD. IN THE ASSESSMENT SO COMPLETED U/S 144 R.W.S 147 OF THE ACT VIDE ORDER DATED 20.12.2016, THE LONG TERM CAPITAL GAINS ARISING FROM SALE OF HIS SHARE OF LAND AS CHARGEABLE IN THE H ANDS OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.49 ,64,540/- BY INVOKING THE PROVISIONS OF SEC.50C OF THE ACT. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER U/S 144 R.W.S 147 OF THE ACT, THE APPEAL WAS PREFERRED BY THE ASSESSEE BEFOR E THE LD.CIT(A). THERE WAS HOWEVER DELAY OF 189 DAYS ON THE PART OF ASSESSEE IN FILING THE SAID APPEAL AND SINCE THE LD.CIT(A) WAS NOT SATISFIED THAT THE SAID DE LAY WAS CAUSED BY SUFFICIENT CAUSE, HE DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE BY TREATING THE SAME AS BARRED BY LIMITATION. AGGRIEVED BY THE ORDER OF LD.CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND ALSO PE RUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED ON BEHALF OF THE ASSESSEE BEFORE LD.CIT(A) AS WELL AS BEFORE THE TRIBUNAL, THE ORDER PASSED BY THE ASSESSING OFFICER U/S 144 R.W.S 147 OF THE ACT WAS NEVER RECEIVED B Y THE ASSESSEE AND ONLY WHEN THE ASSESSING OFFICER INITIATED ACTION FOR RECOVER Y OF THE DEMAND RAISED AGAINST THE ASSESSEE, THEN THE ASSESSEE CAME T O KNOW ABOUT THE ORDER 3 ITA NO.2009/PUN/2019 PASSED BY THE ASSESSING OFFICER U/S 144 R.W.S. 147 OF THE ACT AND IMMEDIATELY FILED THE APPEAL AGAINST THE SAID ORDER BEFORE THE LD.CIT(A). KEEPING IN VIEW THIS SUBMISSION MADE ON BEHALF OF THE ASSESSEE, I AM SATIS FIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY OF 189 DAYS ON THE PART O F THE ASSESSEE IN FILING THE APPEAL BEFORE THE LD.CIT(A). IT IS WELL SETTLED THAT TH E EXPRESSION SUFFICIENT CAUSE IS TO BE CONSIDERED LIBERALLY IN ORDER TO ADVANCE THE SUBSTANTIAL CAUSE OF JUSTICE AND NOT TO DEPRIVE THE ASSESSEE FROM MAKING OU T A CASE LEGITIMATELY ON MERIT. MOREOVER, AS POINTED OUT BY THE LEARNED COUNSEL FO R THE ASSESSEE AT THE TIME OF HEARING BEFORE THE TRIBUNAL, THE APPEAL OF THE CO-O WNER OF THE SAME LAND INVOLVING A SIMILAR ISSUE RELATING TO THE COMPUTATION OF LONG TERM CAPITAL GAINS IS PENDING BEFORE THE LD.CIT(A) AND IT WOULD BE FAIR AN D PROPER THAT BOTH THE APPEALS INVOLVING A SIMILAR ISSUE BE DISPOSED OF BY THE LD.CIT(A) SIMULTANEOUSLY. KEEPING IN VIEW ALL THESE FACTS OF THE CASE, I SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD.CIT(A) AND REMIT THE MA TTER BACK TO HIM WITH A DIRECTION TO DISPOSE OF THE APPEAL OF THE ASSESSEE ON MERIT AFTER CONDONING THE DELAY ON THE PART OF THE ASSESSEE IN FILING T HE SAID APPEAL AND AFTER GIVING THE ASSESSEE A PROPER AND SUFFICIENT OPPORTUNITY OF BEING H EARD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED A S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 26 TH DAY OF NOVEMBER, 2020. SD/- ( P.M. JAGTAP ) VICE PRESIDENT / PUNE; / DATED : 26 TH NOVEMBER, 2020. YAMINI 4 ITA NO.2009/PUN/2019 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-3, PUNE. 4. THE PR.CIT-2, PUNE. 5 . , , / DR, ITAT, SMC PUNE; 6. ! / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.