The Income Tax Officer, Ward-2(5), Panaji., Panaji V. Shri Amarnarsinh Pratap Pail., Goa

ITA 239/PAN/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1385 (ITAT-PANAJI)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-09-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 20-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAMESH S MUTAGAR LD
• Assessee Lawyers: PANKAJ A SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI, HON'BLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 239/PNJ/2015 : (A.Y 2011 - 12) INCOME TAX OFFICER, WARD - 2(5), PANAJI, GOA. (APPELLANT) VS. AMARSINH PRATAP PATIL C/O. M/S. SHARAYU AUTOMOBILES, DIV. OF MORESHWAR TRADING CO. PVT. LTD., N.H. 17, KESARVAL CORTALIM, GOA (RESPONDENT) PAN : AEBPP8083P ASSESSEE BY : PANKAJ A. SHAH, CA REVENUE BY : RAMESH S. MUTAGAR, LD. DR DATE OF HEARING : 08/09/2015 DATE OF PRONOUNCEMENT : 08/09/2015 O R D E R PER GEORGE MATHAN : 1. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A), PANAJI - 1 IN ITA NO. 263/MRG/13 - 14 DT. 12.2.2015 FOR THE A.Y 2011 - 12. SHRI RAMESH S. MUTAGAR, LD. DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI PANKAJ A. SHAH, CA REPRESENTED ON BEHALF OF THE ASSESSEE. 2. IT WAS SUBMITTED BY THE LD. DR THAT THE ASSESSEE IS AN INDIVIDUAL WHO IS HAVING SALARY AND PROFESSIONAL INCOME. IN THE COURSE OF THE ASSESSMENT IT WAS NOTICED THAT THE ASSESSEE HAD SOLD A LAND AT MULASHI (PAUND) PUNE, MAHARASHTRA. IT WAS THE SUBMISSION THAT THE DETAILS OF PURCHASE OF THE LAND AND THE SALE OF THE SAME WAS CALLED FOR. THE ASSESSEE DID NOT PROVIDE ANY OF THE DETAILS. THE LD. DR DREW OUR ATTENTION TO PAGE 3 OF THE ASSESSMENT ORDER TO SUBMIT THAT NONE OF THE DETAILS WERE PRODUCED THOUGH NOTICES HAD BEEN 2 ITA NO. 239/PNJ/2015 (A.Y : 2011 - 12) ISSUED AS EARLY AS AUGUST, 2013 AND THE ASSESSMENT WAS COMPLETED ONLY IN DECEMBER, 2013. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD CLAIMED THAT THE LAND SOLD WAS AN AGRICULTURAL LAND , WHICH WAS ALSO NOT SUBSTANTIATED. IT WAS THE SUBMISSION THAT CONSEQUENTLY THE AO HAD BROUGHT THE SALE OF THE SAID PROPERTY TO TAX UNDER THE HEAD CAPITAL GAINS. IT WAS THE SUBMISSION THAT ON APPEAL, THE LD. CIT(A) HAD DELETED THE ADDITION BY HOLDING THAT THE LAND SOLD WAS BEYOND 8 KMS. FROM THE PUNE MUNICIPAL CORPORATION MUNICIPAL LIMITS. THIS IS ALSO ONL Y ON THE PERSONAL KNOWLEDGE OF THE LD. CIT(A) AND NOT BASED ON ANY DOCUMENTARY EVIDENCE. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE REVERSED. 3. IN REPLY, THE LD. AR SUBMITTED THAT THE PROPERTY SOLD WAS BEYOND 8 KMS. FROM THE NEAREST MUNICIPAL LIMITS AND THE EXTRACT OF 7/12 SHOWED THE PROPERTY TO BE AN AGRICULTURAL PROPERTY. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE UPHELD. ON A SPECIFIC QUERY AS TO THE DETAILS OF THE LAND PURCHASED AND THE AREA OF THE LAND SOLD, THE LD. AR SUBMITTED THAT HE DID NOT HAVE ALL THE DETAILS AVAILABLE WITH HIM. IT WAS FURTHER SUBMISSION THAT THE LD. CIT(A) HAD ALSO CONSIDERED THE GOOGLE MAP FOR THE PURPOSE OF DELETING THE ADDITION. IT WAS THE SUBMISSION THAT THE ORD ER OF THE LD. CIT(A) WAS LIABLE TO BE CONFIRMED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMITTEDLY, THE FACTS IN THE PRESENT CASE ARE NOT CLEAR. THE ASSESSEE SEEMS TO HAVE PURCHASED NEARLY 3 HECT A R E 5.9 ARES ON 19.8.2006 AND IT IS CLAIMED THAT ONL Y A PART OF THIS LAND IS SOLD. THE ASSESSEE HAS ALSO PURCHASED SUBSTANTIAL LANDS ON 21.8.2006 AND 22.8.2006. THE PRICE AT WHICH THE SAID LANDS HAVE BEEN PURCHASED THOUGH CLAIMED TO BE AROUND RS. 9 LACS, NO PURCHASE DOCUMENTS OR DETAILS HAVE BEEN PRODUCED BEFORE US. A PERUSAL OF THE ASSESSMENT ORDER AT PAGE 4 TALKS OF A 3 ITA NO. 239/PNJ/2015 (A.Y : 2011 - 12) PLAIN LETTER DT.15.9.2013 SIGNED BY ONE SHRI SRINIWAS PAWAR WHEREIN HE TALKS OF PROVIDING AN INTEREST - FREE LOAN OF RS. 8,75,000/ - TO THE ASSESSEE IN AUGUST, 2006 AND THAT THE ASSESSEE HAD RE - PAID RS. 91,18,750/ - BETWEEN 7.12.2010 AND 15.2.2011 . HOWEVER, THE SALE CONSIDERATION RECORDED IS RS. 86,72,350/ - . THERE IS NO DOCUMENTARY EVIDENCE PRODUCED, NOR OUR ATTENTION DRAWN TO SHOW THAT THE PROPERTY SOLD WAS BEYOND THE 8 KMS. LIMIT PRESCRIBED IN SEC. 2(1A) OF THE ACT. THE LETTER WHICH IS SAID TO HAVE BEEN ISSUED BY THE TALATI FROM VILLAGE ASADE, TALUKA MULSI, PUNE ONLY SAYS THAT THE LAND SITUATED IN HECTOR NO. 358/11 AND 361/13 IS NOT COMING IN THE MUNICIPAL LIMIT. IT DOES NOT TAL K ANYWHERE THAT THE LAND SOLD WAS BEYOND 8 KMS. FROM THE MUNICIPAL LIMITS. FURTHER, THE LAND WHICH HAS BEEN SOLD BY THE ASSESSEE IS NOT IN HECTARE NO. 358/11 AND 361/13 BUT IS PART OF SURVEY NO. 65/14, 96/7, 96/6, 96/4, 96/3 AND 77/1. THIS IS EVIDENT FRO M THE CHART AT PAGE 3 OF THE ORDER OF THE LD. CIT(A). THUS, IT BECOMES CLEAR THAT ALL THE FACTS HAVE NOT BEEN BROUGHT OUT CLEARLY. THAT THE LAND IS AN AGRICULTURAL LAND AS PER THE ABSTRACT IN 7/12 IS ALSO UNVERIFIABLE INSOFAR AS THE SAME HAS NOT BEEN PRO DUCED BEFORE US. IN THESE CIRCUMSTANCES, THE ISSUES IN THIS APPEAL ARE RESTORED TO THE FILE OF THE AO FOR RE - ADJUDICATION AFTER ASSIMILATING ALL THE NECESSARY FACTS AND AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE HIS CASE. 5. IN TH E RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08/09/2015. SD/ - (N.S. SAINI) ACCOUNTANT MEMBER SD/ - ( GEORGE M ATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 08/09/ 201 5 *SSL* 4 ITA NO. 239/PNJ/2015 (A.Y : 2011 - 12) COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 5 ITA NO. 239/PNJ/2015 (A.Y : 2011 - 12) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 08/09/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 08/09/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 09 /09/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 09/09/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 09/09/2015 SR.PS 6. DATE OF PRONOUNCEMENT 08/09/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 09/09/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER