Sri Nitin Aravind Shirgurkar., Belgaum V. Joint Commissioner of Income Tax, Range-2, Belgaum., Belgaum

ITA 395/PAN/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93457 (ITAT-PANAJI)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-06-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 11-11-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MEHBOOB ALI KHAN LD
• Assessee Lawyers: P DINESH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, HON'BLE ACCOUNTANT MEMBER ITA NO. 395/PNJ/2014 : (A.Y 2010 - 11) SRI NITIN ARAVIND SHIRGURKAR 17, 2 ND CROSS, RANADE ROAD, HINDWADI, BELGAUM PAN : AGVPS5635G ( APPELLANT) VS. JCIT, RANGE - 2, BELGAUM (RESPONDENT) ASSESSEE BY : P. DINESH, ADV. REVENUE BY : MEHBOOB ALI KHAN, LD. DR DATE OF HEARING : 18/06/2015 DATE OF PRONOUNCEMENT : 18/06/2015 O R D E R PER GEORGE MATHAN : 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), BELGAUM IN ITA NO. 22/BGM/2013 - 14 DT. 5.8.2014 FOR THE A.Y 2010 - 11. SHRI P. DINESH, ADV. REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI MEHBOOB ALI KHAN, LD. DR REPRESENTED ON BEHALF OF THE REVENUE. 2. IT WAS SUBMITTED BY THE LD. AR THAT THE ONLY ISSUE IN THE ASSESSEES APPEAL WAS AGAINST THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION MADE BY THE AO ON AN ESTIMATED BASIS OF THE ALLEGED UNACCOUNTED SALES IN RESPECT OF FLATS SOLD BY THE ASSESSEE. IT WAS THE SUBMISSION THAT THE AO ON THE GROUND THAT THE FLATS HAD BEEN SOLD AT DIFFERENT PER SQUARE FEET RATES TO DIFFERENT PERSONS HAD ESTIMATED THE AVERAGE RATE PER SQUARE FEET AND HAD MADE A N ADDITION REPRESENTING THE ESTIMATED DIFFERENCE BETWEEN THE AVERAGE SELLING RATE AND THE ACTUAL RATE AT WHICH THE ASSESSEE HAD SOLD THE FLATS. IT WAS THE SUBMISSION THAT 2 ITA NO. 395/PNJ/2014 (A.Y : 2010 - 11) THE AO HAD NOT EVEN EXAMINED THE PURCHASERS OF THE FLATS TO VERIFY IF, IN FACT, THER E WAS ANY UNACCOUNTED TRANSACTION. IT WAS THE SUBMISSION THAT THE VARIATION IN THE RATES WAS ON ACCOUNT OF VARIOUS REASONS SUCH AS IF A PURCHASER WAS WILLING TO MAKE THE PAYMENT IMMEDIATELY, THE ASSESSEE HAD GRANTED HIM CERTAIN DISCOUNTS. SIMILARLY, IF TH E PURCHASER WAS PURCHASING A FLAT ON THE HIGHER FLOORS, THE RATES WERE DIFFERENT. IT WAS THE SUBMISSION THAT NEITHER THE AO NOR THE LD. CIT(A) HAD CONSIDERED ANY OF THE SUBMISSIONS OF THE ASSESSEE. IT WAS THE SUBMISSION THAT HE HAD NO OBJECTION IF THE IS SUE WAS RESTORED TO THE FILE OF THE AO FOR RE - ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE HIS CASE. 3. IN REPLY, THE LD. DR DID NOT RAISE ANY SERIOUS OBJECTION TO THE ISSUE BEING RESTORED TO THE FILE OF THE AO. 4. WE H AVE CONSIDERED THE RIVAL SUBMISSIONS. AS THE LD. AR HAS RAISED SUBSTANTIAL ISSUE S IN RESPECT OF ESTIMATION BY AVERAGING THE RATE AT WHICH THE FLATS HAVE BEEN SOLD, AND WHICH WERE NOT BEFORE THE AO, WE ARE OF THE VIEW THAT THE ISSUE IN THIS APPEAL MUST BE RESTORED TO THE FILE OF THE AO FOR RE - ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE HIS CASE AND WE DO SO. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPE N COURT ON 18/06/2015. S D / - (N.K. BILLAIYA) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 1 8 /06/ 201 5 *SSL* 3 ITA NO. 395/PNJ/2014 (A.Y : 2010 - 11) COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 4 ITA NO. 395/PNJ/2014 (A.Y : 2010 - 11) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 18/06/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 1 9 /06/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 1 9 /06/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 1 9 /06/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 1 9 /06/2015 SR.PS 6. DATE OF PRONOUNCEMENT 18/06/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 1 9 /06/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER