Vijaya Sanjay Balwadkar, Pune V. Income-tax Officer, Ward - 6(2), Pune

ITA 369/PUN/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0218 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-09-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 20-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIJIT HALDAR
• Keywords: Additional evidence; Condonation of delay; Set aside; Capital Gains
• Section: 143(3); 54B; 139(4)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM SL. NO. ITA NO . NAME OF APPELLANT NAME OF RESPONDENT ASST. YEAR 1 369/PUN/2018 V IJAY A SANJAY BALWADKAR, SR. NO.34/2, HISSA NO.240, C/O GAIKWAD CYCLE MART, NARHE DHAYARI ROAD, NARHEGAON, HAVELI, PUNE-411041. PAN: BEJPB5630K ITO, WARD - 6(2), PUNE 2012 - 13 2 370/PUN/2018 BAJIRAO RAMCHANDRA KUTE, SR. NO.48/1, MANAJI NAGAR, BHAU NIWAS BUNGLOW, NEAR GANPATI MANDIR, NARHEGAON, HAVELI, PUNE-411041. PAN: BBCPK7028L ITO, WARD - 6(2), PUNE 2012 - 13 3 371/PUN/2018 SOMNATH BAJIRAO KUTE, SR. NO.48/1, MANAJI NAGAR, BHAU NIWAS BUNGLOW, NEAR GANPATI MANDIR, NARHEGAON, HAVELI, PUNE-411041. PAN: BTBPK4201J ITO, WARD - 6(2), PUNE 2012 - 13 4 372/PUN/2018 LALITA ANIL KUTE, SR. NO.34/2, HISSA NO.240, NARHE DHAYARI ROAD, NARHEGAON, HAVELI, PUNE-411041. PAN: DNCPK9952H ITO, WARD - 6(2), PUNE 2012 - 13 5 373/PUN/2018 NANDA BAJIRAO KUTE, SR. NO.48/1, MANAJI NAGAR, BHAU NIWAS BUNGLOW, NEAR GANPATI MANDIR, NARHEGAON, HAVELI, PUNE-411041. PAN: DIBPK4852A ITO, WARD - 6(2), PUNE 2012 - 13 6 37 4 /PUN/2018 REVATI GORAKH KUTE, SR. NO.34/2, HISSA NO.240, NARHE DHAYARI ROAD, NARHEGAON, HAVELI, PUNE-411041. PAN: DNCPK9954B ITO, WARD - 6(2), PUNE 2012 - 13 7 375/PUN/2018 GORAKH NARAYAN KUTE, SR. NO.34/2, HISSA NO.240, NARHE DHAYARI ROAD, NARHEGAON, HAVELI, PUNE-411041. PAN: GJVPK3318K ITO, WARD - 6(2), PUNE 2012 - 13 8 376/PUN/2018 ANIL NARAYAN KUTE, SR. NO.34/2, HISSA NO.240, NARHE DHAYARI ROAD, NARHEGAON, HAVELI, PUNE-411041. PAN: CJVPK3229B ITO, WARD - 6(2), PUNE 2012 - 13 2 ITA NOS.369 TO 376/PUN/2018 ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : SHRI ABHIJIT HALDAR / DATE OF HEARING : 17.09.2019 / DATE OF PRONOUNCEMENT : 18.09.2019 / ORDER PER BENCH : THERE ARE EIGHT (8) APPEALS UNDER CONSIDERATION INVOLVING EIGHT DIFFERENT ASSESSEES FOR COMMON ASSESSMENT YEAR 2012-13. 2. THE ISSUES RAISED IN THE GROUNDS ARE MOSTLY COMMON IN ALL THE EIGHT APPEALS. FURTHER, THE ASSESSEE ALSO RAISED COMMON ADDITIONAL GROUNDS RELATING TO THE YEAR OF TAXATION OF THE CAPITAL GAINS. 3. THESE APPEALS PERTAIN TO EIGHT FAMILY MEMBERS OF KUTE FAMILY. THE KEY ISSUE INVOLVED IN ALL THESE APPEALS RELATES TO THE COMPUTATION OF CAPITAL GAINS. THE FAMILY MEMBERS TRANSFERRED AN AGRICULTURAL LAND LOCATED AT NARHE, PUNE AND EARNED THE CAPITAL GAINS. 4. BEFORE US, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ALL THE GROUNDS RAISED IN ALL THE EIGHT APPEALS ARE REQUIRED TO BE REMANDED TO THE INCOME TAX AUTHORITIES. THE ASSESSEE ALSO FILED THE ADDITIONAL EVIDENCES IN THIS REGARD. THE ASSESSEE PRAYED FOR ADMISSION OF THE SAID ADDITIONAL EVIDENCES AFTER CONDONING THE DELAY IN FILING OF THE APPEALS AND REQUESTED FOR REMANDING OF ENTIRE SET OF GROUNDS TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. 3 ITA NOS.369 TO 376/PUN/2018 5. FIRST, WE PROCEED TO DECIDE THE PRELIMINARY ISSUE I.E. CONDONATION OF DELAY IN THE FOLLOWING PARAGRAPHS. PRELIMINARY ISSUE A. CONDONATION OF DELAY 6. BEFORE US, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEALS COULD NOT BE FILED IN TIME AND THE SAID APPEALS ARE NOW FILED WITH THE DELAY OF 234 DAYS (ITA NOS.370 TO 376/PUN/2018) AND 78 DAYS (ITA NO.369/PUN/2018) . IN THIS REGARD, LD. COUNSEL FOR THE ASSESSEE FILED THE COMMON WORDED AFFIDAVITS STATING THE REASONS FOR NON-FILING THE APPEALS OF THE ASSESSEE IN TIME. FOR THE SAKE OF COMPLETENESS, THE RELEVANT PARAS OF THE SAID AFFIDAVIT ARE EXTRACTED HEREUNDER :- 1. I AM ENGAGED INTO AGRICULTURAL ACTIVITY AND I AM AN AGRICULTURIST BY BIRTH. I AM EDUCATED TILL 10 TH FAIL. 2. I WAS SUBJECTED TO SCRUTINY PROCEEDING FOR A.Y. 2012-13. ON 27/03/2015 ORDER U/S 143(3) OF ITA, 1961 WAS PASSED BY THE LEARNED ITO, WARD 6(2), PUNE BY REJECTING THE EXEMPTION U/S 54B OF THE ITA, 1961 CLAIMED BY ME. 3. AGAINST THE ORDER OF THE LEARNED A.O., I PREFERRED APPEAL BEFORE THE LEARNED CIT(A), PUNE. BEFORE THE LEARNED CIT(A), I HAD ALSO RAISED SOME ADDITIONAL GROUNDS. 4. THE LEARNED CIT(A)-8, PUNE VIDE ORDER DATED 22/09/2017 DISMISSED MY APPEAL. THE SAID ORDER WAS RECEIVED BY ME ON 05/10/2017. 5. THE LAST DATE OF FILING OF APPEAL BEFORE THE HONORABLE ITAT, PUNE BENCH WAS 04/12/2017. 5. RECENTLY WHILE REVIEWING THE STATUS OF MY PENDING APPEAL, I REALIZED THAT APPEAL FOR THE AY 2012-13 HAVE BEEN DISPOSED OFF BY THE LEARNED CIT(A)-8, PUNE. 4 ITA NOS.369 TO 376/PUN/2018 7. AFTER CRITICAL INQUIRY, IT WAS REALIZED THAT FURTHER APPEAL HAVE BEEN REMAINED TO BE FILED BEFORE THE HONORABLE ITAT PUNE BENCH DUE TO CONFUSION BETWEEN THE COUNSELS. 8. IT WAS UNDERSTOOD THAT REGULAR COUNSEL WAS OF THE VIEW THAT APPEAL IS NOT SUSTAINABLE; HOWEVER THE OTHER COUNSEL WAS OF THE VIEW THAT APPEAL SHOULD BE PREFERRED. AS I AM NOT AWARE OF THE LAW, WAS CONFUSED AS TO FURTHER COURSE OF ACTION. 9. FURTHER AS I AM NOT WELL EDUCATED, FURTHER TIME WAS LOST IN EXPLAINING THE ISSUE TO ME BY THE COUNSELS. 10. AS SOON AS THE MISTAKE WAS REALIZED, I AM FILING THE PRESENT APPEAL. 11. HOWEVER, IN THIS PROCESS, PRECIOUS TIME LIMIT OF FILING OF APPEAL WAS OVER AND A DELAY OF ABOUT 73 DAYS HAS OCCURRED. 12. REALIZATION OF NON-FILING OF APPEAL, THOUGH DUE TO MERE CONFUSION BETWEEN THE COUNSELS WAS A SHOCK AND MATTER OF REGRET FOR ME. I AM DEEPLY APOLOGETIC FOR THE SAID DELAY. 13. THE DELAY WAS BONA-FIDE AND PURELY UNINTENTIONAL AND I REQUEST TO CONDONE THE SAID DELAY. 7. LOOKING SIGHT IN FILING APPEAL IN TIME, LACK OF EDUCATION, LACK OF PROPER COUNSELLING FROM THE ARS ETC ARE THE REASONS FOR THE DELAY IN FILING THE APPEAL LATE. CONSIDERING THE ABOVE REASONS GIVEN BY THE ASSESSEE COMMON IN ALL THE RESPECTIVE AFFIDAVITS, WE FIND, IT IS A FIT CASE FOR CONDONING THE DELAY. AFTER CONDONING THE DELAY, WE PROCEED TO ADJUDICATE ALL THE APPEALS OF THE ASSESSEE IN THE FOLLOWING PARAGRAPHS. B. ADMISSION OF ADDITIONAL EVIDENCES/GROUNDS 8. BEFORE US, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE FILED ADDITIONAL EVIDENCES BY WAY OF PAPER BOOK. BRINGING OUR ATTENTION TO THE SAID ADDITIONAL EVIDENCES PLACED AT PAGES 74 TO 94 OF THE PAPER BOOK I AND PAGES 228 TO 237 OF THE PAPER BOOK III, LD. COUNSEL SUBMITTED THAT THESE ADDITIONAL EVIDENCES/PAPERS TOUCH THE ROOT OF THE MATTER RELATING TO THE QUANTUM OF 5 ITA NOS.369 TO 376/PUN/2018 CAPITAL GAINS ON THE TOTAL CONSIDERATION. ON 13.06.2019, THE ASSESSEE MADE THE FOLLOWING PRAYER WITH REQUEST TO ADMIT THE ADDITIONAL EVIDENCES. FOR THE SAKE OF COMPLETENESS, THE SAME ARE EXTRACTED HEREUNDER :- HEARING FOR THE ABOVE REFERRED APPEAL IS SCHEDULED TODAY. APPELLANT HAS FILED ADDITIONAL EVIDENCE AT PAGE NO. 74 TO 94 OF PAPER BOOK - I AND AT PAGE NO. 228 TO 237 OF PAPER BOOK - III. ADDITIONAL EVIDENCE AT PAGE NO. 74 TO 94 OF PAPER BOOK - I IS MEMORANDUM OF UNDERSTANDING. APPELLANT COULD NOT SUBMIT THE SAME THE I-T AUTHORITIES AS IT WAS EXECUTED ON 15/02/2018. IT IS SUBMITTED THAT MOU WAS EXECUTED SO AS TO CLARIFY AS TO WHETHER THE SHARE OF SISTERS WERE PAID OUT OF CONSIDERATION DECIDED EARLIER OR OVER AND ABOVE THE SAME AND ALSO THE QUANTUM OF CONSIDERATION STILL RECEIVABLE. ADDITIONAL EVIDENCE AT PAGE NO. 228 TO 236 OF PAPER BOOK - III IS SEARCH AND TITLE REPORT OF LAND AT NARHE. APPELLANT IS SUBMITTING THE SEARCH AND TITLE REPORT FOR THE SAKE OF COMPLETENESS AND TO CAPTURE ALL THE RELEVANT EVENTS. ADDITIONAL EVIDENCE AT PAGE NO. 237 OF PAPER BOOK - III IS BUILDING PLAN SANCTIONED BY COLLECTOR, PUNE IN FAVOUR OF M/S. DEVARSHI COMPLEX. APPELLANT COULD NOT SUBMIT THE SAME BEFORE THE I-T AUTHORITIES AS IT COULD NOT BE OBTAINED FROM M/S. DEVARSHI COMPLEX. AS THE ABOVE REFERRED ADDITIONAL EVIDENCES HAS BEARING ON THE APPEAL, APPELLANT REQUESTS THE HONORABLE BENCH TO KINDLY PERMIT APPELLANT TO PRODUCE THE SAME AND ALSO REQUESTS THE HONORABLE BENCH TO ACCEPT THE SAME. 9. FURTHER, JUSTIFYING THE IMPORTANCE OF THE SAID ADDITIONAL EVIDENCES AND THE RELEVANCE OF THE SAME, LD. COUNSEL FOR THE ASSESSEE FILED THE FOLLOWING SUPPORTING SUPPLEMENTARY SYNOPSIS PRAYING FOR REMANDING THE ALL THE ISSUES TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION :- SUPPLEMENTARY SYNOPSIS THE ABOVE REFERRED APPEAL BELONGS TO ONE OF THE EIGHT (8) FAMILY MEMBERS OF THE KUTE FAMILY, WHICH ARE FIXED FOR HEARING TODAY. KEY ISSUE INVOLVED IN ALL THE APPEALS IS COMPUTATION OF CAPITAL GAIN RELATED TO SALE OF AGRICULTURAL LAND AT VILLAGE NARHE (NEAR PUNE). APPELLANT, WITH UTMOST RESPECT TO THE HONOURABLE BENCH HAS TO SUBMIT AND PLEAD THAT, ALL THE GROUNDS OF APPEAL NEED TO BE RECONSIDERED BY THE I-T AUTHORITIES CONSIDERING FOLLOWING REASONS. ADDITIONAL EVIDENCE - APPELLANT, TILL DATE HAS SUBMITTED FOUR (4) PAPER-BOOKS WHICH, INCLUDES SOME PAPERS, MARKED AS ADDITIONAL EVIDENCES AT THE END OF INDEX OF EACH PAPER- BOOK. THE ADDITIONAL EVIDENCES ARE AS FOLLOWS - 6 ITA NOS.369 TO 376/PUN/2018 A) MOU DATED 15/02/18 [SIGNED AND REGISTERED AFTER CIT(A) ORDER] B) TITLE REPORT OF THE LAND AT NARHE - FOR CLARIFYING ANTECEDENTS OF LAND C) SANCTIONED BUILDING PLAN DATED 05/02/13 - FOR JUSTIFYING AY 13-14 AS A TAXABLE YEAR THE MOU STATED AT (A) ABOVE HAS A DIRECT IMPACT ON GROUND NO. 2 & 3 RAISED VIDE FORM 36. OTHER ADDITIONAL EVIDENCES HAVE A BEARING ON VARIOUS OTHER GROUNDS OF APPEAL. AS SUCH, THE GROUNDS DESERVE RECONSIDERATION BY THE LEARNED AO. ADDITIONAL GROUND - APPELLANT HAS RAISED AN ADDITIONAL GROUND (GROUND NO. 7) SUBMITTED VIDE FORWARDING LETTER DATED 08/01/2019. NOW, THE TOTAL / COLLECTIVE CONSIDERATION, EMANATING FROM THE SALE OF NARHE LAND, AND ARISING TO THE VARIOUS KUTE FAMILY MEMBERS AMOUNTS, RS. 14.18 CR (IN TOTALITY). OUT OF THE SAME, A CONSIDERATION OF RS. 4.68 CR WAS REALISED IN AY 2012-13 ITSELF. BUT THE BALANCE CONSIDERATION OF RS. 9.50 CR DID NOT ARISE TO THE APPELLANT'S KUTE FAMILY MEMBERS. AS PER THE SALE-DEED OF THE NARHE LAND (PAGE-NO. 177-195 OF PAPER- BOOK-IV), THE CONSIDERATION OF RS. 9.50 CR WAS DEPENDENT ON FOLLOWING THREE (3) EVENTS TAKING PLACE. A) ENTRIES OF THE NEW BUYER IN LAND RECORDS B) PASSING OF THE BUILDING PLAN FOR CONSTRUCTION C) ALLOWABILITY OF 20 FEET ROAD AS PER FACTS, ALL THESE THREE EVENTS TOOK PLACE ONLY AFTER 1/4/2012 I.E. AY 2013- 14 AND ONWARDS. AS SUCH, EQUIVALENT CONSIDERATION OF RS. 9.50 CR DID NOT ARISE IN AY 2012-13. AS THESE FACTS COULD NOT BE DEMONSTRATED BEFORE THE I-T AUTHORITIES, THE SAID ISSUE, RAISED VIDE GROUND NO. 7 AND GROUND NO.1 ALSO DESERVES RECONSIDERATION BY THE LEARNED AO. OTHER GROUNDS - VARIOUS OTHER GROUNDS HAVE A BEARING OF THE CONTENTIONS RAISED ABOVE. AS SUCH, THESE OTHER GROUNDS MAY ALSO PLEASE BE SET ASIDE TO THE LEARNED A.O. FOR RECONSIDERATION. CHART OF GROUNDS OF APPEAL APPELLANT IS ALSO SUBMITTING A CHART OF GROUNDS OF APPEAL RELATING TO EIGHT (8) KUTE FAMILY MEMBERS APPEALS ALONG WITH THIS SUPPLEMENTARY SYNOPSIS. EARLIER SUBMISSIONS APPELLANT ALSO REQUESTS THAT HONOURABLE ITAT BENCH TO CONSIDER THE EARLIER SYNOPSIS GIVEN AT PAGE NO.221 TO PAGE NO.224 OF PAPER BOOK- III AND THE EVENTS CHART GIVEN AT PAGE NO.225-227 OF PAPER BOOK-III. 10. FURTHER, JUSTIFYING THE GIVEN NEXUS OF THESE APPEALS, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE ARE FOUR MAIN ISSUES RAISED BY THE ASSESSEES COMMONLY IN ALL THE EIGHT APPEALS AND THE SUMMARY OF THE SAID GROUNDS/ISSUES OF ALL THE EIGHT APPEALS ARE EXTRACTED HEREUNDER :- 7 ITA NOS.369 TO 376/PUN/2018 (I) CAPITAL GAIN FOR ONLY THOSE RECEIPTS WHICH WERE RECEIVED TILL FILING THE ROI U/S 139(4) OF THE ITA, 1961. (II) DEDUCTION U/S 48(I) OF THE ITA, 1961 FOR PAYMENTS MADE TO SISTERS FOR RELEASE OF THEIR RIGHTS. (III) EXEMPTION U/S 54B OF THE ITA, 1961 FOR PURCHASE OF NEW AGRICULTURAL LAND. (IV) CAPITAL GAIN FOR ONLY THOSE RECEIPTS WHICH WERE RECEIVED IN A.Y. 2012-13. 11. IT IS THE SUBMISSION OF THE LD. AR THAT THE SAID ISSUES ARE ONE WAY OR OTHER, ARE QUANTITATIVELY ADJUDICATED IF THEY ARE REMANDED TO THE FILE OF THE ASSESSING OFFICER. FURTHER, IT IS THE CASE OF THE AR THAT THE ISSUES ARE INTERCONNECTED, ADDITIONAL GROUNDS ARE COMMON, ADDITIONAL EVIDENCES FURNISHED BEFORE US ARE ALSO RELEVANCE FOR ADJUDICATION OF ALL THE FOUR ISSUES (EXTRACTED ABOVE). 12. LD. DR OBJECTED TO ALL THE SAID PRELIMINARY ISSUES I.E. CONDONATION OF DELAY, ADMISSION OF ADDITIONAL EVIDENCES AND GROUNDS DUTIFULLY. 13. ON HEARING BOTH THE PARTIES AND ONGOING THROUGH THE SAID ADDITIONAL EVIDENCES AND ALSO PERUSING ALL THE RESPECTIVE ORDERS OF THE REVENUE AUTHORITIES, WE ARE OF THE OPINION THAT THE ENTIRE GAMUT OF REGULAR GROUNDS, ADDITIONAL GROUNDS AND THE ADDITIONAL EVIDENCES, AFTER ADMISSION, SHOULD BE REMANDED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. THUS, WITHOUT GOING INTO THE MERITS OF ANY OF THE ADDITIONS, THE RELEVANT GROUNDS AS WELL AS ADDITIONAL GROUNDS RAISED BY THE ASSESSEES IN ALL THE RESPECTIVE EIGHT APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. 8 ITA NOS.369 TO 376/PUN/2018 14. IN THE RESULT, ALL THE EIGHT APPEALS OF THE RESPECTIVE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 18 TH DAY OF SEPTEMBER, 2019. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 18 TH SEPTEMBER, 2019 SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-4, PUNE. 4. THE PR. CCIT, PUNE. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.