Shri Sunderdas Jetwani, Indore V. THE ITO Circle 2(1), Indore

ITA 275/IND/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4377 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-10-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 12-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B J BORICHA
• Assessee Lawyers: PREETI PATWA CAS; MANISH VAID
• Section: 143(3); 54F

Judgement Text

SUNDERDAS JETHWANI ITA NO.275/IND/2017 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.275/IND/2017 ASSESSMENT YEAR: 2008-09 REVENUE BY SHRI B.J. BORICHA ASSESSEE BY SHRI MANISH VAID & MS. PREETI PATWA, CAS DATE OF HEARING 25 . 10 . 2018 DATE OF PRONOUNCEMENT 31 .10 .2018 O R D E R PER MANISH BORAD, AM. THIS APPEAL OF ASSESSEE PERTAINING TO A.Y. 2012-13 IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS-I), INDORE (IN SHORT CIT(A)), DATED 28.12.2016 WHICH IS ARISING OUT OF THE ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(HER EINAFTER CALLED AS THE ACT) FRAMED ON 24.12.2010 BY ITO-2(1), IND ORE. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF AP PEAL; M/S. SUNDERDAS JETHWANI, C/O NEW KANGAN STORES, 160, ADA BAZAR, INDORE VS. THE INCOME TAX OFFICER , CIRCLE-2(1), INDORE ( APPELLANT ) (RESPONDENT ) PAN NO. A BSPJ0017B SUNDERDAS JETHWANI ITA NO.275/IND/2017 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE ORDE R PASSED BY LEARNED CIT(A)-I, INDORE IS CONTRARY TO THE FACTS A ND ALSO PROVISIONS OF THE INCOME TAX ACT 1961 AND IT IS UNJ USTIFIED, BAD IN LAW, AND DESERVES TO BE QUASHED IN RESPECT OF TH E ADDITION OF RS.3981388/- AS STCG. 2. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE LEARNED CIT(A)-I, INDORE ERRED IN MAINTAINING ADDITION OF R S.3981388/- ON STCG AGAINST RS.55612/- AS LTCG DECLARE IN RETUR N OF INCOME. LTCG OF RS.55612/- DECLARE BY THE ASSESSEE MAY PLEASE MAINTAINED 3. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE R ECORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL. THE RETURN OF INCOM E WAS FILED ON 18.05.2009 IN WHICH INCOME OF RS.2,07,510/- WAS DE CLARED. THE RETURN ASSESSED U/S 143(3) AND INCOME ASSESSED AT RS.42,33,290/- 4. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE LD .CIT(A) AND SUCCEEDED. SUBSEQUENTLY THE DEPARTMENT FILED AN AP PEAL BEFORE THE TRIBUNAL. THE TRIBUNAL VIDE I.T.A NO.486/IND/2013 ORDER DATED 27.08.2015 SET ASIDE THE ORDER TO THE FILE OF CIT( A). THE LD.CIT(A) ALLOWED THE ADDITION OF RS.44,388/- AND MAINTAINED THE ADDITION OF RS.3981888/- AS SHORT TERM CAPITAL GAIN AGAINST THE LONG TERM CAPITAL GAIN OF RS.55,612/-. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L. SUNDERDAS JETHWANI ITA NO.275/IND/2017 3 6. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT LD.CIT(A) DID NOT ACCEPT THE ASSESSEES CLAIM OF LO NG TERM CAPITAL GAIN FROM SALE OF IMMOVEABLE PROPERTY BECAUSE THE O RIGINAL AGREEMENT DATED 8.1.2004 WAS NOT AVAILABLE ON RECOR D FOR EXAMINATION WHICH COULD HAVE PROVED THAT THE POSSES SION WAS HANDED OVER ON 8.1.2004 AND GAIN FROM SALE OF THE A LLEGED IMMOVABLE PROPERTY IN JANUARY, 2008 IS TO BE TAXED AS LONG TERM CAPITAL GAIN. HE FURTHER SUBMITTED THAT THE NAMES O F THE SELLER AND PURCHASER ARE MENTIONED ON THE BACK SIDE OF THE AGR EEMENT AND THE ORIGINAL DOCUMENT WAS NOT ON RECORD AND BOTH THE LO WER AUTHORITIES COULD NOT VERIFY THIS FACT. THE ORIGINAL RECORD HA S NOW BEEN PROCURED AND THE SAME CAN BE SHOWN TO THE LD.CIT(A) FOR NECESSARY EXAMINATION AND DECIDE ACCORDINGLY. 7. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE RAISE D NO OBJECTION IF THE ISSUE IS SET ASIDE TO THE FILE OF LD.CIT(A) FOR FRESH EXAMINATION INCLUDING THE VERIFICATION OF THE AGREE MENT DATED 8.1.2004. SUNDERDAS JETHWANI ITA NO.275/IND/2017 4 8. WE HAVE HEARD RIVAL CONTENTION AND PERUSED THE R ECORD PLACED BEFORE US. SOLE GRIEVANCE OF THE ASSESSEE IS AGAIN ST THE FINDING OF THE LOWER AUTHORITIES OF MAKING THE ADDITION FOR SH ORT TERM CAPITAL GAIN OF RS.39,81,388/- AS AGAINST THE LONG TERM CAP ITAL GAIN DECLARED BY THE ASSESSEE AT RS.55,612/- FROM SALE OF IMMOVEABLE PROPERTY. WE FIND THAT THE ASSESSEE CLAIMED TO HAV E PURCHASED THE IMMOVEABLE PROPERTY ON 8.1.2004 BY AN AGREEMENT ON THE STAMP PAPER OF RS.100 AND THE PURCHASE CONSIDERATION PAID AT RS.3,05,000/-. THIS PROPERTY WAS SOLD IN JANUARY, 2008 AT RS.84,00,000/-. ASSESSEE SHOWED THE GAIN UNDER THE HEAD LONG TERM CAPITAL GAIN AND ALSO CLAIMED THE BENEFIT OF S ECTION 54F OF THE ACT FOR PURCHASE OF RESIDENTIAL HOUSE. AFTER E NTERING INTO THE AGREEMENT DATED 8.1.2004 THE PURCHASE DEED WAS FINA LLY REGISTERED ON 23.03.2006. BOTH THE LOWER AUTHORITIES COULD NO T LAY THEIR HANDS ON THE ORIGINAL DOCUMENT OF AGREEMENT DATED 8 .1.2004 WHICH COULD HAVE PROVED THAT THE NAME OF THE PARTIES TO T HE AGREEMENT INCLUDES THE NAME OF THE ASSESSEE AND THE PURCHASE OF THE IMMOVEABLE PROPERTY SHOULD HAVE BEEN RECKONED FROM 8.1.2004 AS THE PAYMENT FOR PURCHASE CONSIDERATION WAS MADE AND POSSESSION SUNDERDAS JETHWANI ITA NO.275/IND/2017 5 WAS ALLEGED TO HAVE BEEN TAKEN. BOTH THE LOWER AUT HORITIES COULD ONLY GATHER THE INFORMATION FROM THE PURCHASE DEED REGISTERED DT. 23.6.2006 WHICH PROVED THE PURCHASE OF THE IMMOVEAB LE PROPERTY WHICH WAS THEREAFTER SOLD ON 23.01.2008. IF THE DA TE OF PURCHASE IS TAKEN AS 23.3.06 THEN THE GAIN RISING FROM THE SALE OF IMMOVEABLE PROPERTY WILL COME UNDER THE CATEGORY OF SHORT TERM CAPITAL GAIN WHICH WILL DEBAR THE ASSESSEE FROM CLAIMING ANY BEN EFIT U/S 54F OF THE ACT. HOWEVER THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE IS THAT THE ACTUAL DATE OF PURCHASE IS 8.1.2004 AND IF THIS IS TAKEN AS THE PURCHASE DATE THEN THE ALLEGED GAIN WILL BE COVERED UNDER THE HEAD LONG TERM CAPITAL GAIN. IT WAS CONTENDED BEFO RE US BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ORIGINAL SALE AGREEMENT DATED 8.1.2004 HAS NOW BEEN PROCURED AND THE SAME MAY BE SENT FOR VERIFICATION BEFORE THE LD.CIT(A) FOR AFRESH EXAMI NATION OF THIS ISSUE SO AS TO SATISFY ABOUT THE DATE OF PURCHASE OF THE IMMOVEABLE PROPERTY. NO OBJECTION WAS RAISED BY THE LD. DEPAR TMENTAL REPRESENTATIVE IF THE ISSUE IS SET ASIDE TO THE FIL E OF LD.CIT(A). WE THEREFORE IN THE INTEREST OF JUSTICE AND ALSO IN AL L FAIRNESS SET ASIDE THE ISSUE RAISED IN THIS APPEAL TO THE FILE OF LD.C IT(A) FOR AFRESH SUNDERDAS JETHWANI ITA NO.275/IND/2017 6 ADJUDICATION SO AS TO EXAMINE THE GENUINENESS OF TH E ALLEGED SALE AGREEMENT DATED 8.1.2004 WHICH COULD PROVE THAT THE ASSESSEE WAS A PARTY TO THIS AGREEMENT AND THE NECESSARY CONDITI ONS OF TRANSFER OF PROPERTY AS PROVIDED IN SECTION 2(47) OF THE ACT HAVE BEEN COMPLIED. NEEDLESS TO MENTION THAT PROPER OPPORTUN ITY SHOULD BE PROVIDED TO THE ASSESSEE FOR FILING NECESSARY DOCUM ENTS AND SUBMISSIONS. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 31.10.20 18. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 31 OCTOBER, 2018 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER ASSTT.REGISTRAR,I.T.A.T., INDORE