Pradeep Dayanand Mhatre, Raigad V. Income-tax Officer,

ITA 388/PUN/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9256 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-07-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 06-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Cost of acquisition; Valuation report

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . . . . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO. 388/PUN/2015 / ASSESSMENT YEAR : 2011-12 SHRI PRADEEP DAYANAND MHATRE, VILLAGE FUNDE, POST BOKADVIRA, TALUKA URAN, DIST. RAIGAD 400 702 PAN : AJXPM43128F . / APPELLANT V/S ITO, WARD - 4, PANVEL . / RESPONDENT ASSESSEE BY : SHRI KIRIT SHETH REVENUE BY : SHRI ACHAL SHARMA / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF THE CIT(A)-2, THANE DATED 02-02-2015 RELATING TO ASSESSMENT YEAR 2011-12. 2. BRIEFLY STATED RELEVANT FACTS ARE THAT THE ASSES SEE IS A SENIOR AUTOMOBILE OPERATOR WORKING WITH FIRM JNPT. ASSE SSEE SOLD LAND ADMEASURING 474.98 SQ. MTRS ALLOTTED TO HIM BY CIDC O UNDER THE DRAW NO.2 CARRIED OUT BY CIDCO ON 21-02-2004. THE LAND WAS S OLD BY THE ASSESSEE FOR A CONSIDERATION OF RS.78,00,000/-. / DATE OF HEARING :03.07.2017 / DATE OF PRONOUNCEMENT: 03.07.2017 2 ITA NO.388/PUN/2015 3. BEFORE US, LD. COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE GROUNDS AND SUBMITTED THAT THE ASSESSEE HAD 4 PARCE LS OF LAND AND THE SAME WERE ACQUIRED BY THE GOVERNMENT UNDER THE LAND ACQU ISITION ACT, 1894 AGAINST THE AWARD OF COMPENSATION. SUBSEQUENT, THE GOVERNMENT GRANTED PART OF THE DEVELOPED LAND TO THE ASSESSEE AGAINST THE LAND ACQUIRED BY THE GOVERNMENT. THE DEVELOPED LAND WAS LEASED OUT TO T HE ASSESSEE AGAINST THE LEASE PAYMENT AMOUNTING TO RS.14,250/- VIDE THE AG REEMENT DATED 28-09-2010. THE SAID DATE IS CONSIDERED AS DATE OF ACQUISITION OF THE DEVELOPED LAND BY THE AO IN THE ASSESSMENT. THE SA ID DEVELOPED LAND WAS LEASED OUT TO THE DEVELOPER FOR A CASH CONSIDERATIO N OF RS.78,21,000/- VIDE TRIPARTITE AGREEMENT DATED 11-10-2010 AMONGST THE A SSESSEE, CIDCO AND THE BUILDER. IN THE ASSESSMENT PROCEEDINGS, AGAINST TH E ASSESSEES CLAIM IN THE RETURN, AO TREATED THE BALANCE AMOUNT OF RS.78,06,7 50/- (RS.78,21,000/- - RS.14.250/-) AS SHORT TERM CAPITAL GAINS IN THE AS SESSMENT. THE ASSESSEE FURNISHED VARIOUS DOCUMENTS TO SUBSTANTIATE ITS CLA IM THAT THE SAID DEVELOPED LAND CONSTITUTES AGRICULTURAL LAND AND THE PROCEEDS RECEIVED BY THE ASSESSEE IT OUTSIDE THE SCOPE OF CAPITAL GAIN TAX. IN THE LIGH T OF THE ABOVE AND OTHER ADVERSE CONCLUSIONS OF THE AO AND THE CIT(A) THE AS SESSEE FILED THE PRESENT APPEAL BEFORE US. 4. AT THE OUTSET, AFTER EXPLAINING THE ABOVE BRIEF FACTS OF THE CASE, LD. COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO T HE VARIOUS ADDITIONAL EVIDENCES WHICH ARE PAGE NUMBERED 203 TO 277 OF THE PAPER BOOK AND SUBMITTED THAT THESE PAPERS CONSTITUTES VARIOUS RES OLUTIONS, ORDERS, EXTRACTS FROM THE REVENUE RECORDS, ENGLISH TRANSLATIONS, LET TERS FROM CIDCO, AWARD COPIES OF CASH COMPENSATION, POSSESSION RECEIPTS ET C. AS PER THE LD. COUNSEL, THESE PAPERS WERE PROCURED BY THE ASSESSEE FROM VAR IOUS GOVERNMENT OFFICES TO DEMONSTRATE THAT THE LAND RECEIVED BY THE ASSESS EE AS PART OF THE LAND ACQUISITION, CONSTITUTES AN AGRICULTURAL LAND AND T HE SAME IS OUTSIDE THE SCOPE 3 ITA NO.388/PUN/2015 OF THE TAXABLE CAPITAL GAINS. HE FAIRLY SUBMITTED THAT THE SAID DOCUMENTS BEING BROUGHT TO THE RECORDS FOR THE FIRST TIME, TH EY ARE REQUIRED TO BE COMMENTED UPON BY THE AO CONSIDERING THE PRINCIPLES OF NATURAL JUSTICE. FURTHER, REFERRING TO THE AOS DECISION TO CONSIDER THE SAID AMOUNT OF RS.14,250/- AS COST OF ACQUISITION OF THE DEVELOPED LAND, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SAID LAND IS TOO LOW AN D THE LAND WITH THAT VALUE CAN NEVER BE CONSIDERED AT RS.78,21,000/- IN A SPAN OF NOT IN A MONTH. THEREFORE, THERE IS REQUIREMENT FOR REFERRING THE M ATTER TO THE DVO FOR DETERMINING THE COST OF ACQUISITION. FOR ALL THESE PURPOSES, HE SUBMITTED THAT ALL THE ISSUES RAISED BY THE ASSESSEE IN THE APPEAL BY WAY OF GROUNDS OF APPEAL ARE REQUIRED TO BE REMANDED TO THE FILE OF T HE AO FOR FRESH CONSIDERATION AND DECISION IN THE MATTERS. 5. LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HEAVILY RELIED ON THE ORDERS OF THE AO AND THE CIT(A). 6. ON HEARING BOTH THE SIDES AND ON PERUSING THE AD DITIONAL EVIDENCES FILED BEFORE US, WE ARE OF THE OPINION THAT THESE D OCUMENTS WOULD HELP THE AUTHORITIES TO DECIDE THE ACTUAL NATURE OF THE LAND IN QUESTION. WE ALSO FIND THAT THE COST OF ACQUISITION OR FULL VALUE CONSIDER ATION AT RS.14,250/- OR AT RS.78,21,000/- IN A MONTHS TIME, PRIMA FACIE LOOKS , ABSURD ON THE FACTS OF THE CASE AND IT REQUIRES A RE-LOOK BY THE AO. AO MAY H AVE TO DECIDE THE SAID FIGURES IN THE LIGHT OF THE VALUATION REPORTS OR TH E STAMP DUTY RECORDS ETC., AS THE CASE MAY BE. IF THE ASSESSEE DESIRES, AO MAY C ONSIDER REFERRING THE LAND TO THE DVO FOR AN EXPERT OPINION AFTER GRANTING REA SONABLE OPPORTUNITY TO THE ASSESSEE. CONSIDERING THE ABOVE, WE ARE OF THE VIE W THAT COUNSELS REQUEST FOR REMANDING OF THE GROUNDS RAISED BEFORE US TO TH E FILE OF THE AO BE FAVOURABLY CONSIDERED. THEREFORE, WE ARE OF THE VI EW THAT ALL THE GROUNDS AND THE ADDITIONAL EVIDENCES SHOULD BE REMANDED TO THE AOS FILE. AO IS REQUIRED 4 ITA NO.388/PUN/2015 TO GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE ACCORDING TO THE SET PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY , ALL THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 03 RD DAY OF JULY, 2017. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE; DATED : 03 RD JULY, 2017. / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // //TRUE COPY// /ASSISTANT REGISTRAR , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A) - 2, THANE 4. THE CIT - 2, THANE 5 . DR, ITAT, A BENCH PUNE; 6 . / GUARD FILE.