ATMARAM GOPINATH PATIL, MUMBAI V. ITO 25(1)(2), MUMBAI

ITA 3296/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8150 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 10-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTALDR
• Keywords: Sale consideration of property below Jantri Value; Revised return
• Section: 54B; 50C; 54F; 142(1)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO.3296/MUM/2016 ASSESSMENT YEAR: 2011-12 ATMARAM GOPINATH PATIL, 4, BHAYANDARKAR SADANGHARTAN PADA, SANT MIRABAI ROAD, NEWAR W.E. HIGHWAY, DAHISAR (E), MUMBAI-400068 / VS. INCOME TAX OFFICER-25(1)(2), C-11 BUILDING, PRATYAKSHAKAR BHAVAN, B.K.C. BANDRA(EAST), MUMBAI-400051 ( /ASSESSEE) ( ! / REVENUE) PAN. NO. AIQPP1002M / ASSESSEE BY NONE ! / REVENUE BY SHRI RAJAT MITTAL-DR ' !# $ % / DATE OF HEAR ING : 21/12/2017 $ % / DATE OF ORDER: 21/12/2017 ATMARAM GOPINATH PATIL ITA NO.3296/MUM/2016 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 25/02/2016 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED IN THE APPEAL PERTAINS TO CA PITAL GAINS AT RS.1,83,36,546/- AS AGAINST THE RETURNED C APITAL GAINS INCOME OF RS.92,08,555/-. THE GRIEVANCE OF T HE ASSESSEE IS THAT FULL AND PROPER OPPORTUNITY OF BEI NG HEARD WAS NOT PROVIDED TO THE ASSESSEE. 2. DURING HEARING, NONE WAS PRESENT FOR THE ASSESSEE, IN SPITE OF ISSUANCE OF REGISTERED AD NOT ICE ON 28/11/2017 FOR TODAY I.E. 21/12/2017. THIS APPEAL W AS FILED BY THE ASSESSEE ON 10/05/2016, THEREFORE, IT CANNOT BE KEPT PENDING INDEFINITELY. THE ASSESSEE NEITHER PRESENTED HIMSELF NOR MOVED ADJOURNED PETITION. THU S, WE HAVE NO OPTION BUT TO PROCEED EX-PARTE, QUA THE ASS ESSEE AND TEND TO DISPOSE OF THIS APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. SHRI RAJAT MITTAL, LD. DR, CON TENDED THAT SECTION 50C OF THE ACT WAS RIGHTLY INVOKED. ATMARAM GOPINATH PATIL ITA NO.3296/MUM/2016 3 2.1. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS AN AGRICULTURIST AN D THE MAIN SOURCE OF INCOME WAS AGRICULTURE AND ALSO INCOME FR OM OTHER SOURCES, BANK INTEREST AND INTEREST FROM FIXED DEPOSITS. THE ASSESSEE SOLD AGRICULTURE LAND TO M/S OSTWAL BUILDERS LTD. AND M/S GUJARAT REALTORS. THE ASSESSE E DECLARED TOTAL INCOME OF RS.2,19,170/- IN HIS RETUR N FILED ON 03/10/2011, WHICH WAS PROCESSED U/S 143(1) OF TH E ACT. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRU TINY, THEREFORE, NOTICE U/S 143(2) WAS SERVED UPON THE AS SESSEE. THE ASSESSEE FILED REVISED RETURN ON 28/02/2013, DE CLARING THE SAME INCOME, WHICH WAS ORIGINALLY DECLARED. AGA IN NOTICE U/S 142(1) WAS ISSUED TO THE ASSESSEE TO WHI CH THE ASSESSEE ATTENDED THE PROCEEDINGS FROM TIME TO TIME AND FURNISHED THE DETAILS AS CALLED BY THE LD. ASSESSIN G OFFICER. THE ASSESSEE EARNED LONG TERM CAPITAL GAIN OF RS.92,08,555/- (RS.66,44,750 + RS.25,63,805) FROM S ALE OF ANCESTRAL AGRICULTURE LAND SITUATION NAVGHAR, TO TH E AFORESAID BUILDERS. AGAINST THE CAPITAL GAIN OF RS.92,08,555/-, THE ASSESSEE CLAIMED DEDUCTION U/S 54B ATMARAM GOPINATH PATIL ITA NO.3296/MUM/2016 4 AND 54F OF THE ACT AND THE INCOME WAS CLAIMED TO BE NIL ON SUCH CAPITAL GAIN FROM THE SALE OF AGRICULTURE LAND . THE LD. ASSESSING OFFICER INVOKED SECTION 50C OF THE ACT AN D RECOMPUTED CAPITAL GAINS CHARGEABLE TO TAX. IT IS T HE SAY OF THE LD. COUNSEL BEFORE THE AUTHORITIES BELOW THAT T HE CO- OWNERS WERE HAVING 25% SHARE EACH, THUS, THE ASSESS EE RECEIVED RS.68,75,000/- AS HIS SHARE. THE CLAIM OF THE ASSESSEE IS THAT THE LAND SOLD TO M/S OSTWAL BUILDE RS LTD. WAS RESERVED FOR PLAYGROUND FOR PUBLIC AND AS SUCH M/S OSTWAL BUILDERS LTD. BY AN AGREEMENT FOR SALE CUM DEVELOPMENT WERE ENTITLED TO GET TDR FROM THE MUNIC IPAL CORPORATION BUT DID NOT GET THE POSSESSION OF THE L AND. THE ASSESSEE ALSO CLAIMED THAT HE PAID BROKERAGE AND LE GAL CHARGES TO THE BROKERS/ADVOCATES AMOUNTING TO RS.4,50,000/-, THUS, BEING THE 1/4 TH SHARE RS.1,12,500/- WAS TO BE DEDUCTED FROM HIS SHARE OF LONG TERM CAPI TAL GAIN. THE PLEA OF THE ASSESSEE IN THE GROUNDS OF TH E APPEAL IS THAT PROPER OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE AND THE MATTER WAS NOT CONSIDERED IN A JUSTIFIED MA NNER. WE HAVE ALSO PERUSED THE STATEMENT OF FACTS AVAILAB LE ON RECORD AND THE GRIEVANCE RAISED BY THE ASSESSEE IN HIS ATMARAM GOPINATH PATIL ITA NO.3296/MUM/2016 5 GROUNDS AND CONTENTION RAISED BEFORE RIGHT FROM ASSESSMENT STAGE TILL THE STAGE OF TRIBUNAL AND WE ARE ALSO OF THE VIEW THAT THE ASSESSEE DESERVE ONE MORE OPPO RTUNITY TO EXPLAIN THE FACTUAL MATRIX. THE ASSESSEE HAS AL SO CLAIMED THAT INVESTMENT WAS MADE U/S 54B AND 54F OF THE ACT AND SOME LEGAL EXPENSES WERE INCURRED. WITHOUT GOING INTO MUCH DELIBERATION, WE DIRECT THE ASSESSING OFF ICER TO EXAMINE THE CASE OF THE ASSESSEE AFRESH AND DECIDE IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTU NITY OF BEING HEARD AND TO FURNISH NECESSARY EVIDENCE, IF A NY, TO SUBSTANTIATE HIS CLAIM. IF THE LD. ASSESSING OFFIC ER SO DESIRES, HE MAY EXAMINE SHRI KULDEEP OSTWAL FOR CLARIFICATION IN RESPECT OF AGREEMENT DATED 09/11/2 014 AND ANY OTHER PERSON RELATED TO THE TRANSACTION. THE LD . ASSESSING OFFICER IS ALSO DIRECTED TO EXAMINE THE C LAIM OF THE ASSESSEE WITH RESPECT TO INVESTMENTS QUALIFIED U/S 54B AND 54F OF THE ACT AND OTHER RELATED EXPENSES. WE C LARIFY THAT ALL THE CONTENTIONS AND ISSUES ARE KEPT OPEN B Y US WHILE REMANDING THE MATTER BACK TO THE FILE OF THE LD. ASSESSING OFFICER FOR DENOVO DETERMINATION. THE APP EAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ON LY. ATMARAM GOPINATH PATIL ITA NO.3296/MUM/2016 6 FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 21/12/2017. SD/- SD/- ( RAMIT KOCHAR ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER ' # MUMBAI; ' DATED : 21/12/2017 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. )*+, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. / / ' 0 ( )* ) / THE CIT, MUMBAI. 4. / / ' 0 / CIT(A)- , MUMBAI 5. 2!3 - , / )*% ) 4 , ' # / DR, ITAT, MUMBAI 6. 5 6# / GUARD FILE. / BY ORDER, .2* - //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ' # / ITAT, MUMBAI