Lataben Shivlal Mistry, Vadodara V. The Income Tax Officer, Ward-5(1), Vadodara

ITA 3333/AHD/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 3991 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 13-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR ./ I.T.A. NO. 3333/AHD/2016 ( ASSESSMENT YEAR : 2011-12) LATABEN SHIVLAL MISTRY PROP. RENOWN ENGINEERING IND WATER TANK, VADODARA - 390017 / VS. INCOME TAX OFFICER WARD 5(1), 504, AAYAKAR BHAVAN, RACE COURSE, B/H. GUJARAT GAJRAWADI, VADODARA - 390007 ./ ./ PAN/GIR NO. : ABFPM5134R ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI MANISH SHAH, A.R. / RESPONDENT BY : SHRI MUDIT NAGPAL, SR. D.R. DATE OF HEARING 18/10/2018 !'# / DATE OF PRONOUNCEMENT 01/11/2018 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS)-3, VADODARA (CIT(A) IN SHORT), DATED 02 .09.2016 ARISING IN THE ASSESSMENT ORDER DATED 24.12.2013 PASSED BY THE ASSESSING ITA NO.3333/AHD/16 [LATABEN S. MISTRY VS. ITO] A.Y. 2011-12 - 2 - OFFICER (AO) UNDER S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CONCERNING ASSESSMENT YEAR 2011-12. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE RE ADS AS UNDER:- 1. THE LEARNED C.I.T.(APPEALS) ERRED IN LAW AND O N FACTS IN NOT ADMITTING THE ADDITION CLAIM OF RS.6,57,590/- IN RESPECT OF COST OF IMPROVEMENT OF LAND. 1.1 THE LEARNED C.I.T.(APPEALS) OUGHT TO HAVE CONSI DER THE ADDITIONAL EVIDENCE FILED AT APPELLATE STAGE AT THESE EVIDENCES WERE IN NATURE OF CONTEMPORARY EVIDENCE. 3. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED AR FOR THE ASSESSEE REFERRED TO THE PARA NO.4 & 12.1 OF THE OR DER OF THE CIT(A) AND SUBMITTED THAT IT WAS ALL ALONG THE CASE OF THE ASSESSEE THAT IT HAS INCURRED CERTAIN COST TOWARDS IMPROVEMENT OF LA ND FOR WHICH ADDITIONAL EVIDENCES WERE PLACED BEFORE THE CIT(A). THE LEARNED AR REFERRED TO THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PRUTHVI BROKERS & SHAREHOLDERS (P.) LTD. [2012] 349 ITR 336 (BOM) AND SUBMITTED THAT THE APPELLATE AUTH ORITY WAS UNDER DUTY TO CORRECTLY DETERMINE THE TAXABLE INCOME HAVI NG REGARD TO THE DOCUMENTARY EVIDENCES AND COULD NOT HAVE SHUNNED TH E TANGIBLE EVIDENCES AND DENYING THE COST OF IMPROVEMENT. 4. WITH THE ASSISTANCE OF THE LEARNED AR FOR THE AS SESSEE, WE NOTE THAT ASSESSEE HAS NOT CLAIMED CERTAIN COSTS TOWARDS IMPROVEMENT OF LAND IN THE RETURN OF INCOME OR BEFORE THE AO. IT IS WELL SETTLED THAT ITA NO.3333/AHD/16 [LATABEN S. MISTRY VS. ITO] A.Y. 2011-12 - 3 - INCOME IS REQUIRED TO BE ASSESSED IN ACCORDANCE WIT H THE TAXING STATUTE. THE APPELLATE AUTHORITY NEED NOT CONFINE ITSELF ONLY TO THE MATERIAL ON RECORD AT THE TIME OF ASSESSMENT. THE CIT(A) AS WELL AS THE TRIBUNAL HAS THE POWER TO MAKE SUCH INQUIRIES A S IT THINKS FIT. THE TAXING AUTHORITIES ARE UNDER DUTY TO ENSURE THA T NO TAX WHICH IS NOT LEGITIMATELY DUE FROM THE ASSESSEE GETS COLLECT ED OWING TO MISTAKE ON THE PART OF THE ASSESSEE. THE REVENUE I S UNDER DUTY AND OBLIGATION TO ACT IN A FAIR AND NON-PARTITION MANNE R. THE POWERS AVAILABLE TO THE AO CANNOT BE EXERCISED IN A MANNER WHICH IS MOST BENEFICIAL TO THE REVENUE AND CONSEQUENTLY MOST ADV ERTS TO THE ASSESSEE BY TAKING ADVANTAGE OF THE IGNORANCE OR MI STAKE ON THE PART OF THE ASSESSEE. THE ASSESSEE HAVING NOT CLAIMED T HE COST OF IMPROVEMENT ELIGIBLE TO IT UNDER LAW WILL NOT OPERA TE AS ESTOPPEL WHEN RELEVANT FACTS ARE AVAILABLE ON RECORD. THE A FORESAID VIEW FINDS SUPPORT FROM PLETHORA OF DECISIONS INCLUDING JUDGMENT OF HONBLE BOMBAY HIGH COURT IN CASE OF PRUTHVI BROKER S (SUPRA). A PERUSAL OF THE ORDER OF THE CIT(A) DOES SUGGEST THA T ASSESSEE HAD FILED CERTAIN EVIDENCES DETAILING COST OF CONSTRUCT ION OF COMPOUND WALLS AND OTHER COST OF CONSTRUCTION IN THE NATURE OF IMPROVEMENT. THIS BEING SO, WE SET ASIDE THE ACTION OF THE CIT(A ) IN NOT ADMITTING THE ADDITIONAL EVIDENCES AND RESTORE THE ISSUE BACK TO THE FILE OF THE AO FOR DE NOVO VERIFICATION OF CLAIM AND COMPUTATION OF CAPITAL ITA NO.3333/AHD/16 [LATABEN S. MISTRY VS. ITO] A.Y. 2011-12 - 4 - GAINS HAVING REGARD TO THE COST OF IMPROVEMENT OF L AND. THE AO SHALL PROVIDE REQUISITE OPPORTUNITY WHILE DETERMINI NG THE ISSUE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 01/11/2018 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 01/11/201 8