NASIR PATEL, THANE V. ITO 24(3)(1) [OLD 20(2)(3)], MUMBAI

ITA 2827/MUM/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5973 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 18-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ABDUL HAKEEM M
• Keywords: Capital Gains
• Section: 143(3); 147; 148

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE HONBLE SH. B. R. BASKARAN , AM & HONBLE SH. SANDEEP GOSAIN, JM ./ I.T.A. NO . 2827 /MUM/2016 ( / ASSESSMENT YEAR: 2009 - 10 ) NASIR IMAMUDDIN PATEL, 348, ABID PATEL HOUSE, HOUSE KASHMIRA, THANE - 401104. / VS. ITO 24(3)(1), PIRAMAL CHAMBERS LALBAUG, AREL, MUMBAI - 400 012. ./ ./ PAN NO. A OCPP2481G ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENTBY : SHRI ABDUL HAKEEM M , D R / DATE OF HEARING : 05.11 .2018 / DATE OF PRONOUNCEMENT : 28.12.2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT (APPEAL) 36 , MUMBAI DATED 03.01 .16 F OR AY 20 09 - 10 . 2 I.T.A. NO. 2827 /MUM/201 6 NASIR IMAMUDDIN PATEL 2. AT THE VERY OUTSET, IT IS NOTICED THAT NOBODY HAD APPEARED WHEN THE CASE WAS CALLED OUT. FROM THE RECORDS, WE NOTICED THAT EVEN ON THE LAST DATE OF HEARING NO BODY WAS A PPEARED EVEN IN SPITE OF THE FACT THAT NOTICES WERE ISSUED TIME AND AGAIN UPON THE ASSESSEE THROUGH RPAD. EVEN TODAY, NOBODY HAS APPEARED OR NO APPLICATION FOR ADJOURNMENT WAS MOVED. ON THE OTHER HAND L D. DR IS PRESENT IN THE COURT AND IS READY WITH ARGUME NTS. THEREFORE WE HAVE DECIDED TO PROCEED WITH THE HEARING OF THE CASE EX - PA RTE WITH THE ASSISTANCE OF THE L D. DR AND THE MATERIAL PLACED ON RECORD. 3. THE BRIEF FACTS OF THE CASE ARE THAT AS PER AIR INFORMATION, DURING THE FY 2008 - 09 RELEVANT TO AY 2009 - 10, THE ASSESSEE HAS ENTERED INTO AN TRANSACTION IN RESPECT OF SALE OF IMMOVABLE PROPERTY AMOUNTING TO RS. 86,56,400/ - . HOWEVER, AS THE SAID TRANSACTION WAS NOT REFLECTED IN THE RETURN OF INCOME FOR AY 2009 - 10, THE ASSESSMENT WAS REOPENED U/S 147 OF THE AC T AND NOTICE U/S 148 WAS ISSUED ON 25.03.13 AND DULY SERVED TO THE ASSESSEE. ASSESSMENT U/S 143(3) R.W.S 147 OF THE ACT WAS 3 I.T.A. NO. 2827 /MUM/201 6 NASIR IMAMUDDIN PATEL COMPLETED BY THE AO ON 28.02.14 DETERMINING TOTAL INCOME AT RS. 1,51,89,520/ - . AGGRIEVED BY THE ORDER OF AO, ASSESSEE PREFERRED AP PEAL BEFORE LD. CIT(A) AND LD. CIT(A) AFTER CONSIDERING THE CASE OF BOTH THE PARTIES, DISMISSED THE APPEAL OF THE ASSESS EE . NOW BEFORE US, THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL . 4 . ALL THE GROUNDS RAISED BY THE ASSESSEE ARE INTER CONNECTED AND INTER RELATED AND RELATES TO CHA LLENGING THE ORDER OF LD. CIT(A) IN UPHOLDING THE ADDITIONS MADE BY AO ON ACCOUNT OF LONG TERM CAPITAL GAINS, THEREFORE WE THOUGHT IT FIT TO DISPOSE OF THE SAME BY THIS COMMON ORDER. 5 . WE HAVE HEARD LD. DR AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. WE FIND THAT LD. CIT(A) HAS DEALT WITH THE ABO VE GROUND RAISED BY THE ASSESSEE IN PARA NO. 3 TO5 OF ITS DETAILED ORDER AND A FTER H AVING GONE THROUGH THE ORDERS PASSED BY REVENUE AUTHORITIES, WE FIND FROM THE RECORDS THAT LD. CIT(A) AFTER 4 I.T.A. NO. 2827 /MUM/201 6 NASIR IMAMUDDIN PATEL APPRECIATING THE ENTIRE FACTS HAD CORRECTLY CONCLUDED THAT THE ASSESSEE HAD INFACT PURCHASED THE PROPERTY IN QUESTION IN 1995 . WHEREAS ON THE CONTRA RY, THE ASSESSEE HAD TAKEN A CONTRARY STAND BEFORE THE REVENUE AUTHORITIES THAT PROPERTY WAS PURCHASED BY THE DEVENDRA R. GOYAL AS KARTA AND MANAGER OF M/S DEVENDRA R. GOYAL (HUF) IN HIS NAME AS BENAMI. FROM THE RECORDS, WE FIND THAT AT NO STAGE, IT WAS DISPUTED BY THE ASSESSEE AT ANY FORUM THAT THE PROPERTY IN QUESTION HAS BEEN PURCHASED IN HIS NAME BY THE SAID DEVENDRA R. GOYAL AS BENAMI. THE LD. CIT(A) AFTER APPRECIATING THE FACTS HAD ALSO RIGHTLY CONCLUDED THAT POWER OF ATTORNEY WAS ALSO EXECUTED BY THE ASSESSEE UNDER HIS OWN SIGNATURES IN THE NAME OF SAID DEVENDRA R. GOYAL IN FEB 2007. CONSEQUENTLY, CONVEYANCE DEED WAS ALSO EXECUTED IN THE NAME OF ASSESSEE THROUGH THE SAID DEVENDRA R. GOYAL ON 26.06.08. THE ASSESSEE HAD ALSO SIGNED DEED OF CONFIRM ATION EXECUTED BETWEEN THE ASSESSEE AND THE VENDEE I.E ASHOK DEVENDRA GOYAL ON 14.10.10, WHEREIN ALSO IT HAS CATEGORICALLY BEEN MENTIONED THAT THE ASSESSEE HAD TRANSFERRED, ASSIGNED AND SOLD ALL HIS RIGHTS TO ASHOK DEVENDRA GOYAL . THE ASSESSEE RIGHT FROM T HE DATE OF PURCHASE I.E. YEAR 1995 TILL THE DATE OF CONFIRMATION I.E. YEAR 2010 5 I.T.A. NO. 2827 /MUM/201 6 NASIR IMAMUDDIN PATEL HAD NEVER PROTESTED BY ANY MEANS THAT PROPERTY HAD BEEN PURCHASED OR SOLD IN HIS NAME AS BENAMI OF SOMEONE ELSE. THEREFORE IN SUCH CIRCUMSTANCES, CONSIDERING ALL THE ABOVE FA CT, WE ARE ALSO OF THE VIEW THAT LD. CIT(A) HAS PASSED A WELL REASONED ORDER BASED ON FACT. 6. MOREOVER, N O NEW FACTS O R CONTRARY JUDGMENTS HAVE B EEN BROUGHT ON RECORD I N ORDER TO CONTROVERT OR REBUT THE FINDINGS SO RECORDED BY LD . CIT(A). THEREFORE, THERE ARE NO REASON S FOR US TO INTERFERE INTO OR DEVIATE FROM THE FINDINGS SO RECORDED BY THE LD.CIT(A). HENCE , WE ARE OF THE CONSIDERED VIEW THAT THE FINDINGS SO RECORDED BY THE LD. CIT (A) ARE JUDICIOUS AND ARE WE LL REASONED. RESULTANTLY, THIS GROUND RAI SED BY THE ASSESSEE STANDS DISMISSED . 7 . IN THE NET RESULT , THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH DEC 2018 ( B. R. BASKARAN ) ( SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 28 . 12 .201 8 SR.PS . DHANANJAY 6 I.T.A. NO. 2827 /MUM/201 6 NASIR IMAMUDDIN PATEL / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI