Shri Deepakbhai C. Parikh, Vadodara, V. The Income Tax Officer, Ward-4(1)(5), Vadodara,

ITA 2894/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4535 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 21-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANIL R SHAH
• Keywords: Set aside
• Section: 54F; 263

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ I.T.A. NO.2894/AHD/2017 ( / ASSESSMENT YEAR : 2011-12) SHRI DEEPAKBHAI C.PARIKH A/25, DURGA NAGAR SOCIETY BEHIND TUBE COMPANY BESIDE ANUPAM SOCIETY OLD PADRA ROAD VADODARA 390 015` / VS. THE INCOME TAX OFFICER WARD-4(1)(5) BARODA-390 007 ./ ./ PAN/GIR NO. : ABFPP 5284 R ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI ANIL R. SHAH, AR / RESPONDENT BY : SHRI ANAND KUMAR, SR.DR ! / DATE OF HEARING 26/08/2019 '#$% ! / DATE OF PRONOUNCEMENT 27/08/2019 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORDER OF LD.COMMISSIONER OF INCOME TAX(APPEALS)-4, VADODARA [CIT(A) IN SHORT] DATED 30/08/2017 PASSED FOR ASSESSMENT YEAR (AY) 2011-12. ITA NO.2894 /AH D/2017 DEEPAKBHAI C.PARIKH VS. ITO ASST.YEAR 2011-12 - 2 - 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL: 1. THE CIT(A) HAS ERRED BOTH IN LAW AND IN FACT IN CONFIRMING CALCULATION OF COST OF LAND AND CAPITAL GAIN AS WORKED OUT BY I.T. O. YOUR APPELLANT SUBMITS THAT THE LTO HAS ERRED IN NO T CONSIDERING THE ADDITIONAL COST INCURRED BY THE APPELLANT TOWARDS N .A. CHARGES, REVENUE TAX, N.A. EXPENSES ETC. OF RS.5,68,857/- WHICH ARE DIREC TLY AND INTIMATELY CONNECTED WITH THE COST OF LAND SOLD, RESULTING INT O CAPITAL GAINS. 2. THE CIT(A) IS ALSO ERRED IN NOT ALLOWING RS.29,6 4,751/- U/S. 54F AS CLAIMED BY YOUR APPELLANT.LT IS SUBMITTED THAT THE FULL PRO OF WITH REGARD TO THE CLAIM FOR RELIEF U/S.54F WAS PRODUCED BEFORE THE ASSESSING OF FICER AS WELL AS C1T(A) AND THE CLAIM BEING AS PER LAW SUPPORTED BY EVIDENC ES THE CIT(A) OUGHT TO HAVE ALLOWED THE DEDUCTION AS CLAIMED BY THE APPELL ANT. 3. (A) THE CIT(A) ALSO ERRED IN CONFIRMING APPLICABILITY OF SEC.68 AND THEREBY TREATING RS.60,000/- AS CASH CREDIT U/S.68 OF THE ACT. ON FACTS OF THE CASE AS PER PROVISIONS OF LAW U/S.6 8 IS NOT ATTRACTED BEING CREDIT IN THE BANK ACCOUNT AND BANK PASSBOOK DOES N OT TANTAMOUNT AS BOOKS OF ACCOUNT AND THEREFORE THE AMOUNT IS NOT LIABLE T O BE ADDED U/S.68. (B) WITHOUT PREJUDICE TO ABOVE (I) YOUR APPELLANT SUBMITS THAT HE HAS PROVED THE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF BOTH THE DEPOSITORS A ND THEREFORE THE AMOUNT IS NOT LIABLE TO BE ADDED. (II) FURTHER THE ITO HAVING INVOKED PROVISIONS OF SEC.269SS IT IS SUBMITTED THAT SEC,68 CANNOT BE PUT IN SERVICE. IT IS THEREFORE SUBMITTED THAT RELIEF CLAIMED ABOVE BE ALLOWED AND THE ORDER OF THE ASSESSING OFFICER BE MODIFIED ACCORDINGLY. YOUR APPELLANT RESERVES RIGHT TO ADD, ALTER, AMEND TO WITHDRAW ANY OR ALL GROUND OF APPEAL. ITA NO.2894 /AH D/2017 DEEPAKBHAI C.PARIKH VS. ITO ASST.YEAR 2011-12 - 3 - 3. AT THE OUTSET, LD.COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE ORDER APPEALED AGAINST HAS BECOME NULLITY AS THE ORIGINAL ORDER PASSED U/S.263 OF THE INCOME TAX ACT, 1961 HAS BEEN SET ASIDE BY T HE TRIBUNAL. THEREFORE, ANY ORDER PASSED IN PURSUANCE OF THE DIR ECTION IN THE ORDER PASSED U/S.263 WOULD NOT SURVIVE. LD.COUNSEL FO R THE ASSESSEE HAS DREW OUR ATTENTION TOWARDS TRIBUNAL ORDER DATED 26/06/20 19 PASSED IN ITA NO.2117/AHD/2016 FOR AY 2011-12. THE TRIBUNAL WAS PLEASED TO SET ASIDE THE ORDER OF THE LD.CIT BY OBSERVING AS UNDER :- 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORDS. AT THE OUTSET, WE NOTE THAT T HE ASSESSEE HAS NOT APPEARED BEFORE THE LD.CIT U/S 263 OF THE ACT DESPI TE VARIOUS NOTICES WERE ISSUED UPON HIM. AS SUCH, THE SCHEME OF THE AC T REQUIRES THE ASSESSEE TO PLACE HIS POINTS OF CONTENTION BEFORE T HE APPROPRIATE AUTHORITIES. IN THE CASE ON HAND, THE ASSESSEE DID NOT APPEAR BEFORE THE LD. CIT. THEREFORE THE ORDER WAS PASSED EX PARTE BY THE LD.CIT BASED ON THE RECORDS AVAILABLE BEFORE HIM. 8.1 CONSIDERING THE NEGLIGENT/ DILLY-DALLYING APPRO ACH OF THE ASSESSEE IN PURSUING THE MATTER BEFORE THE LD. CIT AND THE DELAY IN FILING THE APPEAL BEFORE US, WE ARE INCLINED TO LEVY THE C OST OVER THE ASSESSEE FOR RS. 5000/- ON ACCOUNT OF HIS NEGLIGENT BEHAVIOR IN PURSUING THE MATTER BEFORE THE LD. CIT. ACCORDINGLY, THE ASSESSE E IS DIRECTED TO DEPOSIT A TOTAL SUM OF RS. 5,000/- (RUPEES FIVE THO USAND) ONLY IN THE PRIME MINISTER RELIEF FUND. 8.2 WE FURTHER NOTE THAT THE ASSESSEE IN THE INSTAN T CASE IS REQUIRED TO PLACE HIS POINTS OF CONTENTIONS BEFORE THE LD.CI T. THEREFORE IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THE I SSUE TO THE FILE OF THE LD.CIT FOR FRESH ADJUDICATION AS PER THE PROVISION OF LAW. ITA NO.2894 /AH D/2017 DEEPAKBHAI C.PARIKH VS. ITO ASST.YEAR 2011-12 - 4 - 8.3 IT IS ALSO PERTINENT TO NOTE THAT THE ASSESSEE SHALL CO-OPERATE TO THE LD.CIT AND SHALL ATTEND THE HEARING AS AND WHEN REQUIRED. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. THESE FACTS ARE NOT CONTRADICTED BY THE REVENUE . THEREFORE, WE HEREBY QUASH THE IMPUGNED ASSESSMENT ORDER AND APPE AL OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON 27 TH AUGUST-2019 AT AHMEDABAD. SD/- SD/- ( WASEEM AHMED) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 27/ 08 /2019 (!.., .*../ T.C. NAIR, SR. PS !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. +,- . / CONCERNED CIT 4. . ( ) / THE CIT(A)-4, VADODARA 5. 123 * *,- , ! ,-% , + / DR, ITAT, AHMEDABAD 6. 356 7 / GUARD FILE. / BY ORDER, 1 * //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD