Mohite Suryakant Tukaram, Solapur V. Income-tax Officer,

ITA 2452/PUN/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7493 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 18-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Assessee Lawyers: S N DOSHI
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . . . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO. 2452/PUN/2016 / ASSESSMENT YEAR : 2012-13 SHRI MOHITE SURYAKANT TUKARAM, KABADI BLOCK TEMBHURNI ROAD, KURDWADI, TAL. MADHA, DIST. SOLAPUR PAN : ACAPM3901C . / APPELLANT V/S ITO, WARD - 1 (3 ), PANDHARPUR . / RESPONDENT ASSESSEE BY : SHRI S.N. DOSHI REVENUE BY : DR. VIVEK AGGARWAL / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF CIT(A)-7, PUNE DATED 22-07-2015 FOR THE ASSESSMENT YEAR 2012-13 2. ASSESSEE FILED THE CONCISE GROUNDS OF APPEAL BEF ORE US AND THE SAME READ AS UNDER : 1. ON TH E FA C T S AND IN THE CIRCUM S TANCE S OF TH E C A SE LD. C IT (A ) HA S ERR E D IN S U S TAININ G TH E ADDITION OF R S 8 4, 50 , 000/- R E J EC TIN G TH E APP E LL A N T'S CONT E NTION THAT IT RE PR ESE NT S TH E S ALE PRO CEE D S OF AN A G RI C ULTU R AL LAND D UL Y S UPPORT E D B Y TH E SATHE KHAT I.E. LS S AR PA V ATI EX ECUTED ON S TAMP PAP E R O F R S 100 AND DUL Y W ITNES S ED. 2. ON TH E FA C T S AND IN THE C IRCUMSTANCE S OF THE C A SE LD. CIT (A ) HA S FURTH ER ERRED IN NOT APPRE C IATING THE FACTUAL EVIDENCE S PRO V ING THAT TH E A G R EED PUR C HA SE C ONSID E RATION OF TH E L AND HA S B EE N D E PO S IT E D BY TH E PURCHA SERS DIRE CTL Y IN TH E BANK A CCOUNT S O F TH E APPELLA NT UND E R BANK D E P OS IT S LIP S D UL Y FILL E D IN AND S I G N E D B Y TH E PURCHA SE R S ONL Y THAT PR OVES TH E F AC T T HAT LAND I S S OLD FOR R S 85 , 00 , 000/- THOU G H TH E PUR C HA SE R S FO R TH E I R CO N VE NI E N CE GO T TH E FINAL S AL E D EE D S E XECUTED MENTIONIN G TH E PUR C HA SE C ON S ID E RA T ION AT R S 10 , 85,000/-. / DATE OF HEARING : 30.08.2017 / DATE OF PRONOUNCEMENT: 31.08.2017 2 ITA NO.2452/PUN/2016 SHRI MOHITE SURYAKANT TUKARAM 3. ON TH E FACT S AND IN THE CIRCUM S TANCE S OF THE CA SE TH E LD. CIT( A ) HA S E RR ED IN NOT APPR E CIATING THE FACT THAT THE LAND S OLD WA S RURAL A GRICULTURAL LAND AND DO ES N ' T FALL IN THE D E FINITION OF C APITAL A SSE T W ITHIN TH E M E ANIN G OF SE CTION 2(14)(IIIB) OF THE L . T. AC T,1961 . 3. BRIEFLY STATED RELEVANT FACTS ARE THAT THE ASSES SEE FILED THE RETURN OF INCOME DECLARING INCOME OF RS.2,76,830/-. DURING THE ASSE SSMENT, AO NOTICED HUGE CASH DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE WITH SBI AND SANGLI URBAN COOPERATIVE BANK LTD. SANGLI. ACCOUNT NOS. ARE SBI , BRANCH KURUDWADI - 11488960666 AND SANGLI URBAN CO.OPERATIVE BANK LTD. BRANCH KURUDWADI 0340042010004107. AO ANALYSED THE SAID BANK DEPOSI TS AND CONSIDERED THE ASSESSEES EXPLANATION AND HELD AN AMOUNT OF RS.85, 38,870/- IS REQUIRED TO BE ADDED ON ACCOUNT OF DISALLOWANCE OF PEAK CASH CREDI T OF RS.84,50,000/- AND INTEREST INCOME OF RS.88,870/-. 4. AGGRIEVED WITH THE SAME THE ASSESSEE FILED AN AP PEAL BEFORE THE CIT(A) AND THE APPEAL RESULTED IN DISMISSAL OF THE SAME. AGGRIEVED WITH THE SAME, THE ASSESSEE IS IN APPEAL BEFORE US. 5. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE ASSESSEE EXPLAINED THE SOURCES OF THE SAID CASH DEPOSITS. A CCORDING TO HIM, THE IMMOVABLE PROPERTY (LAND) LOCATED AT VILLAGE KURDU, AMBAD AND A PLOT AT BHOSARE (PARA 4 OF CIT(A) ORDER IS OWNED BY HIS ANCESTORS. TO DEMONS TRATE THE ANCESTRAL PROPERTY DETAILS, LD. COUNSEL FOR THE ASSESSEE BROUGHT OUR A TTENTION TO PAGE 1 OF PAPER BOOK, I.E. FREE ENGLISH TRANSLATION OF ADVANCE RECE IPT (ISAR PAWATI) DATED 12-02- 2011 BETWEEN THE ASSESSEE AND THE PURCHASER SHRI RA NJIT DATTATRAY SHINGARE. FURTHER, LD. COUNSEL MENTIONED THAT THE SAID PROPER TY WAS EVENTUALLY NOT PURCHASED BY SHRI RANJIT DATTATRAY SHINGARE BUT BY HIS WIFE SMT. ASHWINI RANJIT SHINGARE, SHRI KANTILAL DATTU HAKKE AND ABBAR KURES HI, SHRI RAJKUMAR GAWADE, SHRI ASHOK TARANGE AND SHRI SANJAY KOYALE, SHRI PUN ADALIK YELE, SHRI BHAGYAWANT TARANGE AND SHRI JAYSINGH JAGTAP (PARA 5.4 OF THE C IT(A)S ORDER-TABLE). 3 ITA NO.2452/PUN/2016 SHRI MOHITE SURYAKANT TUKARAM ACCORDING TO THE LD. COUNSEL FOR THE ASSESSEE, ALL THE RELEVANT DETAILS OF THE BUYERS OF THE PROPERTY WERE DISCLOSED TO THE AO WHO DID NOT FIND NECESSITY OF CONDUCTING OF FURTHER INVESTIGATION INTO THE SOURCE S OF THE FUNDS INVESTED BY THE SAID PARTIES. LD. COUNSEL IS OF THE OPINION THAT T HE MATTER SHOULD BE DECIDED BY THE TRIBUNAL WITHOUT REMANDING TO THE FILE OF THE A O. 6. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE FOR THE REVENUE BROUGHT OUR ATTENTION TO THE RELEVANT FACTS AND SUB MITTED THAT THE ORDER OF THE CIT(A) CONFIRMING THE ADDITIONS MADE BY THE AO DO N OT CALL FOR ANY INTERFERENCE. TALKING ABOUT THE DISCHARGING OF ONUS BY THE ASSESS EE WITH REGARD TO THE DETAILS OF THE BUYERS OF THE PROPERTY, LD. DR FOR THE REVENUE SUBMITTED THAT THE ISAR PAWATI IS IN THE NAME OF SHRI RANJIT DATTATRAY SHINGARE WH O IS ULTIMATELY NOT A BUYER OF THE LAND. REFERRING TO PAGE 4 OF THE PAPER BOOK ( ISAR PAWATI ) LD. DR MENTIONED THAT THE SAID DOCUMENT IS INVALID AS THE RELEVANT F INAL REGISTRATION TOOK PLACE BEYOND THE PERIOD OF SIX MONTHS. HE ALSO NARRATED THE DEFICIENCIES WITH REGARD TO THE VALIDITY OF THE SAID ISAR PAWATI . BRINGING OUR ATTENTION TO THE CONTENTS OF PARA 5.3 OF THE ORDER OF CIT(A), LD. DR FOR THE REVENUE SUBMITTED THAT THE AO SUMMONED ALL THE SIX PARTIES OUT OF WHICH ONLY COUP LE OF BUYERS RESPONDED. ACCORDING TO THE CIT(A), THESE TWO PARTIES MERELY S TATED THE FACT OF GIVING OF RS.4 LAKHS OF CASH AS HAND LOAN WHICH HAS NOT BEEN RETUR NED BY THE ASSESSEE. THERE IS NO WHISPER ABOUT THE PAYMENT OF THE SAME FOR PURCHA SE OF THE LAND, AS ADVOCATED BY THE LD. COUNSEL FOR THE ASSESSEE. REST OF THE 4 PARTIES NEVER RESPONDED TO THE SAID NOTICES. FURTHER, THERE ARE NO DETAILS ABOUT THE MANNER OF APPROPRIATION OF SAID RS.3.5 LAKHS OF CASH ADVANCE PAID BY SHRI RANJ IT DATTATRAY SHINGARE VIDE ISAR PAWATI PLACED AT PAGE 1 OF THE PAPER BOOK. LD. DR WAS ALSO CRITICAL OF THE FACT THAT THE REGISTERED VALUE OF THE LAND IS ONLY RS.10 .85,000/- ON 22-09-2011 WHEREAS THE ASSESSEE RECEIVED HUGE SUM OF RS.88 LAK HS FROM THE SAID SIX PARTIES. 4 ITA NO.2452/PUN/2016 SHRI MOHITE SURYAKANT TUKARAM 7. WE HEARD BOTH THE PARTIES ON THE ISSUES RAISED B EFORE US RELATING TO THE ADDITION OF RS.84,50,000/-, CREDIT WORTHINESS/SOURC ES OF THE FUNDS TO THE BUYERS, GENUINENESS OF THE TRANSACTION AND FINALLY THE NATU RE OF THE LAND IF IT IS IN THE NATURE OF RURAL AGRICULTURAL LAND WHICH ATTRACTS T HE PROVISIONS OF SECTION 2(14)(IIIB) OF THE ACT ETC. WE FIND THE MISSING OF RELEVANT FACTS WHICH ARE REQUIRED FOR ADJUDICATION OF THE GROUNDS RAISED BEFORE THE T RIBUNAL. THERE IS NO INFORMATION AS TO WHETHER THE SAID SIX PARTIES FILE D THE CONFIRMATION LETTERS IN SUPPORT OF THE OWNERSHIP OF THE FUNDS CONTRIBUTED F OR BUYING THE SAID LANDS, I.E. TO THE EXTENT OF THEIR SHARE OF PROPERTY FROM THE ASSE SSEE. THE GENUINENESS OF THE TRANSACTION WERE ALSO NOT PUT TO TEST BY THE AO. F URTHER, WE FIND ASSESSEE FAILED TO FURNISH THE POSTAL ADDRESSES OF ALL THE SIX PART IES AND THEIR PAN NUMBERS ETC., FOR THE PURPOSE OF FACILITATING THE REQUISITE BASIC ENQUIRIES BY THE AO. IT IS NOT DEMONSTRATED IF THEY MAINTAIN THE BANK ACCOUNTS AND THE REQUIREMENT OF PAYMENT OF CASH TO THE ASSESSEE. FURTHER, THERE IS NO JUST IFICATION FOR THE BUYER TO PAY EXCESS CONSIDERATION OVER AND OVER THE REGISTERED V ALUE OF RS.10.85 LAKHS FOR THE ENTIRE PROPERTY. 8. IN OUR OPINION, THE ONUS IS ON THE ASSESSEE TO DISCHARGE ALL THESE ASPECTS, IF NOT OTHER ISSUES RELATED TO THEM. THEREFORE, IN OUR CONSIDERED VIEW, THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS FULFILLED THE INITIAL ONUS CAST ON HIM, IS NOT ACCEPTABLE AND THE REFORE THE SAME IS REJECTED. FURTHER, THERE ARE NO RELEVANT FACTS NECESSARY TO D ETERMINE HOW THE LAND WHICH IS UNDER CONSIDERATION ZONE OF DEVELOPMENT CONSTITUTES RURAL AGRICULTURAL LAND. CIT(A) HAS NOT GIVEN RELEVANT FACTS TO DETERMINE IF THE LAND IN QUESTION CONSTITUTES RURAL AGRICULTURAL LAND. THEREFORE, AS PRONOUNCED IN THE OPEN COURT, WE ARE OF THE OPINION THAT THE MATTER SHOULD REVISIT THE FILE OF AO FOR FRESH ADJUDICATION. AO IS DIRECTED TO DISCUSS ALL THE ARGUMENTS OF THE ASSESS EE BY PASSING A SPEAKING ORDER 5 ITA NO.2452/PUN/2016 SHRI MOHITE SURYAKANT TUKARAM AND AFTER GRANTING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STAT ISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF AUGUST, 2017. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 31 ST AUGUST, 2017. / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT (A) - 7 , PUNE 4 . 5. THE CIT - 7 , PUNE ( , , B BENCH PUNE; 6 . / GUARD FILE.