Shri Abhay B.PatelL/h of Late Bhupendra Patel, Ahmedabad V. The Income tax Officer,Ward-10(2), Ahmedabad

ITA 2464/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0268 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 05-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: S N SOPARKAR
• Keywords: Additional evidence; Reasonable cause
• Section: 143(3)

Judgement Text

ITA NO 2464/ AHD/2012. . ASSESSMENT Y EAR 2009- 10 . 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T. A. NO.2464/AHD/2012 (ASSESSMENT YE AR: 2009-10) LATE SHRI BHUPENDRA PATEL. LEGAL HEIR SHRI ABHAY B.PATEL, 1 MILAN PARK SOCIETY, SWASTIKCHAR RASTA, NAVFRANGPURA, AHMEDABAD-380 009 (APPELLANT) VS. INCOME TAX OFFICER, WARD 10(2), NARAYAN CHAMBER, NEAR EHRUBRIDGE, OFF ASHRAMROAD, AHMEDABAD. (RESPONDENT) PAN: AHUPP0717A APPELLANT BY : MR.S.N.SOPARKAR, SR. ADV. RESPONDENT BY : MR. RAHULKUMAR, SR.D.R. ( )/ ORDER DATE OF HEARING : 1-1-2013 DATE OF PRONOUNCEMENT :15- 2 -2013 PER: SHRI ANIL CHATURVEDI, A.M. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST ORDER OF LD. CIT (A) -XVI, AHMEDABAD DATED 10-9-2012 FOR THE ASSESSMENT YEAR 2009-10. ITA NO 2464/ AHD/2012. . ASSESSMENT Y EAR 2009- 10 . 2 2. THE FACTS CULLED OUT FROM THE ORDERS OF THE LOWE R AUTHORITIES ARE AS UNDER. 3. THE ASSESSEE FILED THE RETURN OF INCOME ON 24-7- 2009 DECLARING TOTAL INCOME AT RS. 83,620/-. THE CASE WAS SELECTED FOR S CRUTINY AND THEREAFTER THE A.O. VIDE ORDER PASSED U/S. 143(3) DATED 14-12- 2011 DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.30,80,190 AFTER MAKING ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAIN ON TRANSFER OF PR OPERTY OF RS.26,96,570/-. AGGRIEVED BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFORE CIT (A). CIT (A) VIDE ORDER DATED 10-9-2012 DISMISSED THE AP PEAL OF THE ASSESSEE. AGAINST THE ORDER OF CIT (A) THE ASSESSEE IS NOW IN APPEAL BEFORE US. THE GROUNDS RAISED BY ASSESSEE READS AS UNDER:- 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CON FIRMING ACTION OF A.O. IN MAKING ADDITION OF RS.29,96,570/- ON ACCOUN T OF LONG TERM CAPITAL GAINS. BOTH THE LOWER AUTHORITIES ERRED IN NOT APPRECIATING THE DOCUMENTARY EVIDENCE ON RECORD THAT THE APPELLANT H AD NO LEGAL RIGHT OR INTEREST IN THE PROPERTY SOLD DUE TO RELINQUISHM ENT BY WAY OF A DISCLAIMER DULY NOTARIZED. LD. CIT (A) OUGHT TO HAV E DELETED ADDITION MADE ON ACCOUNT OF LONG TERM CAPITAL GAINS WHEN NO SUCH GAIN ACCRUED TO THE APPELLANT. 2. LD. CIT (A) ERRED IN LAW AND O FACTS IN CONFIRMI NG ACTION OF A.O. IN MAKING THE ADDITION IN ABSENCE OF ANY SALE CONSI DERATION RECEIVED BY THE APPELLANT BUT SIMPLY ON THE BASIS OF INCLUSI ON OF HIS NAME IN THE SALE DOCUMENT IGNORING THE SUBMISSIONS, EXPLANA TIONS AND EVIDENCES ON RECORD. BOTH THE LOWER AUTHORITIES FA ILED TO APPRECIATE JUDICIAL RATIO LAID DOWN BY THE APEX COURT THAT FOR THE PURPOSE OF COMPUTING CAPITAL GAINS U/S. 48 OF THE ACT, CONSIDE RATION MUST BE RECEIVED. LD. CIT (A) OUGHT QUASHED ORDER OF A.O. W HEN THERE IS NO SALE CONSIDERATION RECEIVED BY THE APPELLANT. ITA NO 2464/ AHD/2012. . ASSESSMENT Y EAR 2009- 10 . 3 3. LD. CIT (A) ERRED IN LAW AND ON FACTS IN CONFIRM ING ACTION OF ASSESSING OFFICER IGNORING SUBMISSIONS THAT THE SAM E ASSESSING OFFICER ASSESSED SHARE OF THE APPELLANT ALSO IN THE HANDS OF SON WHO RECEIVED ON RELINQUISHMENT OF THE RIGHT BY THE APPE LLANT. LD. CIT (A) OUGHT TO HAVE DELETED ADDITION MADE SINCE IT AMOUNT S TO DOUBLE TAXATION WHICH IS NOT PERMISSIBLE UNDER PROVISIONS OF LAW. 4. THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN REJ ECTING APPLICATION MADE UNDER RULE 46A OF THE ACT TO PLACE ADDITIONAL EVIDENCE ON RECORD BY THE APPELLANT. LD. CIT (A) FURTHER ERRED IN NOT APPRECIATING THE FACT THAT THE DEED OF CLARIFICATION-CUM-RECTIFI CATION, A VITAL AND IMPORTANT DOCUMENT CRUCIAL FOR ADJUDICATING THE CON TROVERSY REQUESTED FOR ADMISSION UNDER RULE 46A WAS EXECUTED BEFORE THE DATE OF RECEIPT OF ORDER. LD. CIT (A) OUGHT TO HAVE ADMITTED THE ADDITIONAL EVIDENCE TO APPRECIATE THE ISSUE. 5. LEVY OF INTEREST UNDER SECTION 234A/B/C OF THE A CT IS NOT JUSTIFIED. 6. INITIATION OF PENALTY U/S. 271(1)(C) OF THE ACT IS NOT JUSTIFIED. 4. OUT OF THE VARIOUS GROUNDS OF APPEAL BEFORE US O NE OF THE GROUND RAISED BY ASSESSEE IS THAT THE CIT (A) HAS ERRED IN NOT ADMITTING THE ADDITIONAL EVIDENCE SOUGHT TO BE RAISED UNDER RULE 46A OF THE INCOME TAX RULES, 1962. 5. BEFORE US THE LD. A.R. SUBMITTED THAT ONE OF TH E IMPORTANT DOCUMENTS FOR ADJUDICATING THE CONTROVERSY VIZ. THE DEED OF RELINQUISHMENT WAS SUBMITTED BEFORE THE CIT (A) AS ADDITIONAL EVID ENCE. THE LD. A.R. SUBMITTED THAT THE AFORESAID DOCUMENT WAS AN IMPORT ANT DOCUMENT THAT SHOULD HAVE BEEN CONSIDERED BEFORE ADJUDICATING THE ISSUE. CIT (A) IGNORED THE DEED. HE THEREFORE SUBMITTED THAT THE M ATTER BE EXAMINED AFTER ITA NO 2464/ AHD/2012. . ASSESSMENT Y EAR 2009- 10 . 4 CONSIDERING THE DEED. THE LD. D.R. ON THE OTHER HAN D OPPOSED THE ADMISSION OF ADDITIONAL EVIDENCE. 6. WE HAVE HEARD THE RIVAL, SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND FROM THE ORDER OF CIT (A) THAT CIT (A) DID NOT TAKE THE COGNIZANCE OF THE RELINQUISHMENT DEED. CIT (A) DID NOT AGREE WITH THE ADDITIONAL EVIDENCE BY HOLDING AS UNDER:- 2.9. A PERUSAL OF THE ABOVE CLEARLY SHOWS THAT APP ELLANTS CASE DO NOT FALL IN ANY OF THE CONDITIONS LAID DOWN UNDER T HE SAID PROVISION. IN THE INSTANT CASE THERE ARE CLEAR EVIDENCE TO INDICA TE THAT THE DOCUMENT UNDER CONSIDERATION BEING THE RECTIFICATIO N DEED WAS CREATED AFTER PASSING OF THE ASSESSMENT ORDER. THUS , THE APPELLANT CANNOT CLAIM THAT IT WAS PREVENTED BY EVEN AN IOTA OF ANY REASONABLE CAUSES TO FILE THE SAID DEED BEFORE THE A.O. IT IS NOT THE CASE WHERE THE APPELLANT WAS IN POSSESSION OF CERTAIN EVIDENCE S AND WHICH WERE REQUIRED BY THE A.O. AND WHICH COULD NOT BE PRODUCE D BECAUSE OF CONTEMPORARY FACTORS. THERE IS NO DISPUTE THAT RULE 46A PERMITS INTRODUCTION OF ADDITIONAL EVIDENCES WHICH AN ASSES SEE WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE TO PRE SENT BEFORE THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS. T HE SETTLED PRINCIPLE HOWEVER IS, THAT SUCH EVIDENCE OUGHT TO H AVE EXISTED AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDINGS. TO DECIDE THE CASE, AN A.O. IS REQUIRED TO CONSIDER EVIDENCES WHICH WERE IN EXI STENCE TILL THE TIME OF PASSING OF THE ORDER. IN CASE, FOR CERTAIN JUSTI FIABLE REASONS, THE SAID EVIDENCE COULD NOT BE PRODUCED BY THE ASSESSEE , THE ASSESSEE CAN EXERCISE THE OPTION OF REQUESTING FOR ADMISSION OF SUCH EVIDENCES DURING THE APPELLATE PROCEEDINGS. IN THE INSTANT CA SE, THE SAME HAS NOT BEEN THE CASE. THE EVIDENCE UNDER CONSIDERATION IS CREATED AFTER THE PASSING OF THE ASSESSMENT ORDER I.E. ON 16-12-2 011.EVEN THE ASSESSEE HAS HIMSELF ADMITTED THAT THE SAID EVIDENC E COMPRISING A RECTIFICATION DEED WAS CREATED ON16-12-2011 ITSELF. WITHOUT PREJUDICE TO THE ARGUMENT THAT THE EVIDENCE UNDER CONSIDERATI ON IS INADMISSIBLE PER SE, ON ACCOUNT OF HAVING BEEN CREATED AFTER THE CONCLUSION OF ASSESSMENT, IT IS SEEN THAT EVEN THE SAID EVIDENCE, COMPRISING THE RECTIFICATION DEED, DOES NOT HAVE ANY SIGNATURE OF THE APPELLANT. ITA NO 2464/ AHD/2012. . ASSESSMENT Y EAR 2009- 10 . 5 ACTUALLY, THE APPELLANT AT THE TIME OF SAID RECTIFI CATION DEED I.E. 16-12- 2011, HAD UNFORTUNATELY DIED. THUS, THE SO CALLED E VIDENCE IS NOT EVEN CREATED BY THE APPELLANT BUT IS CREATED BY HIS SON. THE EVIDENCE UNDER CONSIDERATION WAS CREATED AFTER THE PASSAGE O F THE ASSESSMENT ORDER AND THAT TOO BY A THIRD PARTY AND HENCE THE S AME BY NO STRETCH OF IMAGINATION FALLS UNDER ANY OF THE CATEGORIES SP ECIFIED IN RULE 46A. 7. IN THE PRESENT CASE WE FEEL THAT THOUGH THE DEED HAS BEEN CREATED AFTER PASSING OF ASSESSMENT ORDER, BUT WE ARE OF TH E VIEW THAT TO MEET THE ENDS OF JUSTICE ONE MORE OPPORTUNITY BE GRANTED TO ASSESSEE TO REPRESENT THE CASE BEFORE THE CIT (A). WE THEREFORE REMIT BA CK THE ISSUES INVOLVED IN THIS APPEAL TO THE FILE OF CIT (A) FOR DECIDING THE ISSUE AFRESH AFTER CONSIDERING THE RELINQUISHMENT DEED AND OTHER MATER IAL AS DEEMED FIT AND AFTER GIVING SUFFICIENT AND REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 8. SINCE THE MATTER HAS BEEN REMITTED TO CIT (A) WE HAVE NOT ADJUDICATED OTHER GROUNDS RAISED IN APPEAL. ITA NO 2464/ AHD/2012. . ASSESSMENT Y EAR 2009- 10 . 6 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 15 - 2- 2013. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) XVI, AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD 1.DATE OF DICTATION 1 - 1 -2013 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 14 / 1 / 2013 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 29 - 1 -2013. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT - -2013 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2013 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2013. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER