I.T.O. 11(3)-4, MUMBAI V. VASANTLAL R. MANIAR, MUMBAI

ITA 4532/MUM/2012

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3289 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 02-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 04-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AIRIJU JAIKUMAR
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Depreciation; Opportunity of being heard; Principle of natural justice; Additional evidence; Cost of acquisition; Fair market value; Benefit of exemption
• Section: 143(3); 50C

Judgement Text

F BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 4532 /MUM/2012 ( / ASSESSMENT YEAR : 2008-09) INCOME TAX OFFICER 11(3)-4, ROOM NO. 447, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. / V. SHRI VASANTLAL R. MANIAR, BHANDARKAR HOUSE, 193-A, L TILAK ROAD, VAZIRA NAKA, BORIVALI (W), MUMBAI- 400 091. ./ PAN : AABPM6309H ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO. 4508 /MUM/2012 ( / ASSESSMENT YEAR : 2008-09) SHRI VASANTLAL R. MANIAR, 704,RAJVAIBHAV TOWER, MAHAVEER NAGAR, DAHANUKARWADI, KANDIVALI WEST, MUMBAI-400 067 / V. INCOME TAX OFFICER 11(3)-4, ROOM NO. 447, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. ./ PAN : AABPM6309H ( / APPELLANT ) .. ( / RESPONDENT ) REVENUE BY SHRI AIRIJU JAIKUMAR ASSESSEE BY : SHRI VIPUL JOSHI / DATE OF HEARING : 11-01-2016 / DATE OF PRONOUNCEMENT : 29-01-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THESE CROSS APPEALS BY THE REVENUE AND THE ASSESSEE ARE DIRECTED AGAINST THE ORDERS OF THE LEARNED COMMISSIONER OF I NCOME TAX(APPEALS)- 2, MUMBAI (HEREINAFTER CALLED THE CIT(A)) DATED 30-4 -2012 PERTAINING TO THE ITA 4508/MUM/12 & 4532/MUM/12 2 ASSESSMENT YEAR 2008-09. THESE APPEALS ARE HEARD TO GETHER AND DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AN D BREVITY. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN THE MEMO OF APPEAL FILED WITH THE TRIBUNAL:- 1. BREACH OF THE PRINCIPLES OF NATURAL JUSTICE 1.1. THE COMMISSIONER OF INCOME - TAX (APPEALS) - 2, MUMBAI ['LD. CIT (A)'], ERRED IN FRAMING THE APPELLATE ORDER WIT HOUT AFFORDING REASONABLE AND FAIR OPPORTUNITY OF BEING HEARD TO T HE APPELLANT. 1.2 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRC UMSTANCES OF THE CASE, AND IN LAW, THE APPELLATE ORDER IS REQUIRED T O BE HELD AS BAD IN LAW ON ACCOUNT OF BREACH OF THE PRINCIPLES OF NA TURAL JUSTICE. 2.1 THE ID. CIT (A) ERRED IN CONFIRMING THE ACTION OF THE A.O. IN COMPUTING CAPITAL GAIN TAX LIABILITY ARISING ON ACC OUNT OF THE GODOWN, OWNED AND USED BY A PARTNERSHIP FIRM, IN TH E HANDS OF THE APPELLANT. 2.2 WHILE DOING SO, THE CI'T (A) ERRED IN: (I) BASING HIS ACTION ONLY ON SURMISES, SUSPICION A ND CONJECTURE; (II) TAKING INTO ACCOUNT IRRELEVANT AND EXTRANEOUS CONSIDERATIONS; AND (III) IGNORING RELEVANT MATERIAL AND CONSIDERATIONS AS SUBMITTED BY THE APPELLANT. 2.3 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCU MSTANCES OF THE CASE, AND IN LAW, NO SUCH ADDITION IN THE HANDS OF APPELLANT WAS PERMISSIBLE. WITHOUT PREJUDICE TO THE ABOVE 3.1 THE ID. CIT CA) ERRED IN CONFIRMING THE ACTION OF THE A.O. IN SUBSTITUTING THE STAMP DUTY VALUATION AS THE CONSID ERATION, IN PLACE OF THE AGREED CONSIDERATION, WHILE COMPUTING THE TAX GAIN LIABILITY. ITA 4508/MUM/12 & 4532/MUM/12 3 3.2 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCU MSTANCES OF THE CASE, AND IN LAW, NO SUCH SUBSTITUTION WAS CALLED F OR. WITHOUT FURTHER PREJUDICE TO THE ABOVE 4.1 THE ID. CIT CA) ERRED IN DIRECTING THE A.O. TO MAKE PROTECTIVE ASSESSMENT IN THE HANDS OF THE PARTNERSHIP FIRM SEP ARATELY EVEN IN CASE SOME EVIDENCE IS FOUND THAT THE FIRM WAS THE O WNER OF THE GODOWN. 4.2 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCU MSTANCES OF THE CASE, AND IN LAW, NO SUCH DIRECTION WAS CALLED FOR. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR MODIFY ALL OR ANY THE ABOVE GROUND AT THE TIME OF HEARING. 3. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN THE MEMO OF APPEAL FILED WITH THE TRIBUNAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DIRECTING THAT COST OF ACQUISIT ION OF THE PROPERTY BE TAKEN AS VALUE AS ON 01-04-1981, DULY INDEXED, WITH OUT THERE BEING ANY EVIDENCE ON RECORD TO SHOW THAT THE DATE OF ACQUISI TION WAS PRIOR TO 01- 04-1981. 2. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER REST ORED. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A PARTNER IN A FIRM NAMED M/S DESAI MANIAR & KULKARNI WHO IS ENGAGED IN PROFESSION OF PLUMBING ENGINEER AND CONSULTANTS. DURING THE COUR SE OF ASSESSMENT PROCEEDINGS U/S 143(3) OF INCOME TAX ACT, 1961 (HER EINAFTER CALLED THE ACT) READ WITH SECTION 143(2) OF THE ACT, IT WAS OBSERVE D BY THE LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE A.O.) THAT DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR, THE ASSESSEE HAD SOLD THE PROP ERTY SITUATED AT GODOWN NO. 33, THE MODEL CO-OP. HOUSING SOCIETY LTD. AT 20 , TARDEO ROAD, SAHAKAR NIVAS, MUMBAI 400 034. THE VALUE OF THE PROPERTY AS PER THE VALUATION ITA 4508/MUM/12 & 4532/MUM/12 4 REPORT OF THE VALUER FILED BY THE ASSESSEE IS SHOW N AT RS. 16 LACS, HOWEVER, AS PER THE CASS REPORT, THE VALUE OF THE PROPERTY IS S HOWN AT RS. 44,82,274/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE CONTENDED THAT THERE IS AN AGREEMENT OF TRANSFER DATED 9-7-2007 BE TWEEN VASANTLAL MANIAR I.E. THE ASSESSEE AND PHALGUNI TUSHAR RATHOD FOR RS . 17,12,875/-. THE ASSESSEE CONTENDED THAT THE PROPERTY SOLD IS SITUAT ED AT C.S. NO. 13/733, TARDEO AND NOT C.S. NO. 13/738. THE ASSESSEE SUBM ITTED THAT FOR STAMP DUTY CALCULATION, THE REGISTRAR OF STAMP DUTY HAD V ALUED THE SAID PROPERTY AT CS NO 13/738 FOR RS.44,82,274/-. IN ORDER TO VERIF Y THE CORRECTNESS OF THE DEAL OF THE PROPERTY, ENQUIRY WAS MADE WITH THE JOI NT SUB REGISTRAR AND ACCORDINGLY THE SUB REGISTRAR VIDE LETTER DATED 28- 10-2010 HAS STATED THAT THERE IS NO SUCH TRANSACTION IN THEIR RECORD FOR C. S. 13/733. ON FURTHER REQUEST, THE SUB REGISTRAR ISSUED COPY OF INDEX II OF PROPERTY AT C.S. NO. 13/738 AND VALUED THE PROPERTY AT RS. 44,82,274/- A ND STAMP DUTY WAS CALCULATED AT RS. 2,24,200/- WHICH WAS PAID ON THE SALE OF THE PROPERTY. AS PER THE COPY OF AGREEMENT PRODUCED BEFORE THE A.O. BY THE ASSESSEE SHOWS C.S. NO. AS 13/738, HENCE, THE A.O. DISAGREE WITH T HE SUBMISSION OF THE ASSESSEES CLAIM ABOUT ERROR IN CITY SURVEY NUMBER AND ACCORDINGLY THE FAIR MARKET VALUE OF PROPERTY WAS TAKEN AS RS. 44,82,274 /- AS PER STAMP DUTY VALUATION U/S 50C OF THE ACT. THE ASSESSEE FURTHER CLAIMED THAT THE SAID GODOWN IS OWNED BY THE FIRM M/S DESAI MANIAR & KULK ARNI OF WHICH THE ASSESSEE IS A PARTNER. HOWEVER, NO DOCUMENTARY EVI DENCE WAS FILED TO PROVE THAT THE SAID PROPERTY BELONGS TO THE FIRM AND EVEN THE BALANCE SHEET OF THE SAID FIRM WAS NOT FILED BEFORE THE AO. THE A.O. OBS ERVED THAT THE AGREEMENT IS ENTERED INTO BY VASANTLAL MANIAR I.E. THE ASSESSEE AND PHALGUNI RATHOD IN INDIVIDUAL CAPACITY AND NOT OF THE FIRM AND THE TRA NSACTION AMOUNT HAS BEEN CREDITED IN ASSESSEES BANK ACCOUNT. THE A.O. HELD THAT THE TRANSACTION IS OF ASSESSEE AS AN INDIVIDUAL AND NOT OF THE FIRM, HENC E, THE INCOME FROM TRANSFER OF LONG TERM CAPITAL ASSET IS ESCAPED IN THE RETURN ED INCOME UNDER THE HEAD CAPITAL GAIN, IN THE RETURN OF INCOME FILED BY THE ASSESSEE WITH THE REVENUE. ITA 4508/MUM/12 & 4532/MUM/12 5 THE A.O. ALSO HELD THAT THE ASSESSEE HAS NOT PROVID ED ANY PURCHASE AGREEMENT NOR HE HAS FILED HIS PERSONAL BALANCE SHE ET TO SUBSTANTIATE THE COST OF ACQUISITION. ACCORDINGLY, THE A.O. TREATED THE AMOUNT OF RS. 44,82,274/- AS LONG TERM CAPITAL GAIN AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE VIDE ASSESSMENT ORDERS DATED 21.12.2010 PA SSED BY THE AO U/S 143(3) OF THE ACT. 5. AGGRIEVED BY THE ASSESSMENT ORDERS DATED 21.12.2 010 PASSED U/S 143(3) OF THE ACT BY THE AO, THE ASSESSEE CARRIED THE MATTER IN THE FIRST APPEAL BEFORE THE CIT(A). 6. BEFORE THE CIT(A), THE ASSESSE SUBMITTED THAT TH E GODOWN WAS OWNED BY THE FIRM M/S DESAI MANIAR & KULKARNI AND THE ENTIRE PURCHASE CONSIDERATION WAS PAID BY THE FIRM IN THE YEAR 1973. IT WAS SUBM ITTED BY THE ASSESSEE THAT THE PROPERTY WAS WHOLLY AND EXCLUSIVELY USED FOR TH E BUSINESS OF THE FIRM AND FORMED THE BLOCK OF ASSETS ON WHICH DEPRECIATION WA S ALSO CLAIMED BY THE SAID FIRM AND ALLOWED BY THE REVENUE. THE NAME OF THE AS SESSEE STOOD IN THE RECORDS OF THE SOCIETY ONLY FOR THE SAKE OF CONVENI ENCE AND THE ASSESSEE HELD THE PROPERTY FOR AN ON BEHALF OF THE FIRM M/S DESAI MANIAR & KULKARNI. IT WAS SUBMITTED THAT THE GODOWN WAS ALSO BEEN USED BY THE FIRM RIGHT FROM THE BEGINNING AND THE FIRM M/S DESAI MANIAR & KULKARNI HAS ALREADY OFFERED FOR TAXATION THE SHORT TERM CAPITAL GAIN EARNED ON SALE OF THE SAID GODOWN IN THE ASSESSMENT YEAR 2008-09 BY TAKING THE SALE CONSIDER ATION OF RS. 13,61,130/- AND AFTER TAKING DEDUCTION OF COST OF ACQUISITION A MOUNTING TO RS. 10 LACS. THUS, THE ASSESSEE SUBMITTED THAT NO ADDITION FOR LONG TERM CAPITAL GAIN IS REQUIRED TO BE MADE IN THE HANDS OF THE ASSESSEE. W ITHOUT PREJUDICE TO THE ABOVE, THE ASSESSEE CHALLENGED THAT IF THE CAPITAL GAIN IS TAXABLE IN THE HANDS OF THE ASSESSEE, THE A.O. GROSSLY ERRED IN VALUING THE PROPERTY AT RS. 44,82,274/- U/S 50-C OF THE ACT AND ALSO ERRED IN N OT DEDUCTING THE INDEXED COST OF ACQUISITION FROM THE FULL VALUE OF CONSIDER ATION IN TERMS OF SECTION 48 ITA 4508/MUM/12 & 4532/MUM/12 6 OF THE ACT. THE ASSESSEE ALSO CONTENDED THAT THE A .O. FAILED TO GIVE AN OPPORTUNITY OF PRODUCING ANY OTHER EVIDENCE OF INVE STMENT IN SPECIFIED ASSETS TO CLAIM EXEMPTION U/S 54EC OF THE ACT AND DENIED G RANT OF BENEFIT OF EXEMPTION AS PER THE ACT. THE CIT(A) AFTER EXAMINI NG THE FACTS AND CIRCUMSTANCES OF THE CASE HELD THAT THE ASSESSEE HA S NOT BEEN ABLE TO PROVE SATISFACTORILY THAT THE GODOWN BELONG TO THE FIRM. NO PURCHASE DEED HAS BEEN PRODUCED TO SHOW AS TO HOW THE ASSESSEE HAD BECOME THE OWNER OF THE GODOWN AND ON WHAT DATE IN THE YEAR 1973 AND HOW TH E PAYMENT WAS MADE FOR PURCHASE OF GODOWN. IT WAS OBSERVED THAT THE G ODOWN WAS USED BY THE FIRM FROM 1990, NO PROOF HAS BEEN FURNISHED TO JUST IFY THAT THE FIRM WAS THE OWNER OF THE GODOWN RATHER THAN THE PARTNER OF THE FIRM I.E. THE ASSESSEE. THE CIT(A) FURTHER OBSERVED THAT ALTHOUGH A NOMINAL SHO RT TERM CAPITAL GAIN HAS BEEN OFFERED FOR TAXATION BY THE FIRM M/S DESAI MAN IAR & KULKARNI BUT IT DOES NOT PROVE THAT THE FIRM WAS THE REAL OWNER OF THE G ODOWN IN THE ABSENCE OF ANY PURCHASE DEED. THE CIT(A) ACCORDINGLY HELD VIDE ORDERS DATED 30-04-2012 THAT LONG TERM CAPITAL GAIN MUST BE ASSESSED IN THE HANDS OF THE ASSESSEE ON SUBSTANTIVE BASIS BECAUSE THE ASSESSEE HAS SIGNED T HE SALE DEED OF THIS GODOWN AND DEPOSITED THE SALES CONSIDERATION RECEIV ED ON THE SALE OF HIS GODOWN IN HIS BANK ACCOUNT. IT WAS ALSO HELD BY THE CIT(A) THAT THE INCOME CAN BE ASSESSED PROTECTIVELY IN THE HANDS OF M/S DE SAI MANIAR & KULKARNI AND THE A.O. WILL INTIMATE THE COMPLETE FACTS OF TH E CASE TO THE A.O. OF M/S DESAI MANIAR & KULKARNI SEPARATELY REGARDING DECLAR ATION OF SHORT TERM CAPITAL GAIN IN CASE SOME EVIDENCE IS FOUND LATER O N THAT THE FIRM WAS THE OWNER OF THE GODOWN. THE CIT(A) HELD THAT UNTIL THE N THE ASSESSEE IS LIABLE TO PAY LONG TERM CAPITAL GAIN ON THE SALE OF THE GODOW N. THE CIT(A) DIRECTED THE A.O. TO ASCERTAIN THE COST OF THE GODOWN AS ON 1.4. 1981 AND ALLOW INDEXATION ON THE COST OF ACQUISITION IN ACCORDANCE WITH THE A CT TO THE ASSESSEE AND WORK OUT THE CORRECT LONG TERM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE BY TAKING SALE CONSIDERATION OF RS. 44,82,274/- IN RESPECT OF THE GODOWN. ITA 4508/MUM/12 & 4532/MUM/12 7 7. AGGRIEVED BY THIS DECISION OF THE CIT(A) VIDE OR DERS DATED 30.04.2012, BOTH THE ASSESSEE AS WELL AS THE REVENUE ARE IN APPEAL B EFORE THE TRIBUNAL. 8. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SAID GODOWN BEARING NO. 33 SITUATED AT MODEL CO-OP. HSG. SOC. L TD., 20 TARDEO ROAD, SAHAKAR NIVAS, MUMBAI-400 034 IS OWNED BY THE FIRM M/S DESAI MANIAR & KULKARNI WHICH IS DULY REFLECTED IN THE BOOKS OF AC COUNT OF THE SAID FIRM SINCE 1974 WHEN THE GODOWN WAS ACQUIRED. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE PARTNERSHIP FIRM HAS PAID THE AM OUNT FOR ACQUISITION OF THIS GODOWN AND THE SAME IS DULY REFLECTED IN THE B ALANCE SHEET OF THE SAID FIRM . THE LD. COUNSEL SUBMITTED THAT AFFIDAVITS O F THE ASSESSEE AND SH DEVIDAS Y. KULKARNI, PARTNER OF DESAI, MANIAR AND K ULKARNI BOTH DATED 29.10.2014 HAVE ALSO BEEN FILED BEFORE THE TRIBUNAL TO STATE THAT THE SAID GODOWN IS OWNED BY THE FIRM M/S DESAI MANIAR & KULK ARNI. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE GODOWN WAS SITUA TED AT THE MODEL CO-OP. HSG. SOC. LTD., 20 TARDEO ROAD, SAHAKAR NIVAS, MUMB AI -400 034 AND ONE OF THE CONDITIONS FOR ALLOTMENT OF THE GODOWN WAS THAT IT WILL BE ALLOTTED TO EXISTING MEMBER OF THE SOCIETY.SINCE THE ASSESSEE W AS THE MEMBER OF THE MODEL CO. OP. HOUSING SOCIETY LTD. , IT WAS DECIDED TO APPLY FOR THE ALLOTMENT OF THE GODOWN IN THE NAME OF THE ASSESSEE ALTHOUGH THE PAYMENTS FOR THE ACQUISITION FOR THE SAID GODOWN IN THE YEAR 1973-74 WERE MADE BY THE ASSESSEE OUT OF THE FUNDS RECEIVED FROM THE SAID FI RM M/S DESAI MANIAR & KULKARNI AND OWNERSHIP OF THE SAID GODOWN REST WITH THE SAID FIRM. THE LD. COUNSEL OF THE ASSESSEEE SUBMITTED ADDITIONAL EVIDE NCES BY WAY OF BALANCE SHEET OF THE SAID FIRM M/S DESAI MANIAR & KULKARNI ALONG WITH THEIR ASSESSMENT ORDERS AND ALSO VARIOUS COMMUNICATIONS W ITH THE GOVERNMENT AUTHORITIES/SOCIETY WHEREBY IT WAS CONTENDED BY THE LD. COUNSEL OF THE ASSESSEE THAT SINCE THE ACQUISITION OF THE SAID GOD OWN BY FIRM M/S DESAI MANIAR & KULKARNI, THE SAID FIRM WAS REFLECTED AS T HE OWNER OF THE SAID GODOWN. THE LD. COUNSEL SUBMITTED THAT THE SAID FI RM M/S DESAI MANIAR & ITA 4508/MUM/12 & 4532/MUM/12 8 KULKARNI SHOWED THE CAPITAL GAIN ON THE SALE OF THE SAID GODOWN DURING THE PREVIOUS YEAR AND HAS PAID APPROPRIATE TAXES TO THE REVENUE. 9. THE LD. D.R., ON THE OTHER HAND, RELIED ON THE O RDER OF THE A.O. AND CONTENDED THAT THE LD. CIT(A) ERRED IN ALLOWING THE BENEFIT OF COST OF ACQUISITION OF THE SAID GODOWN ALTHOUGH NO SUCH EVI DENCE WAS FILED IN RESPECT OF THE ACQUISITION OF THE SAID GODOWN PRIOR TO 1-4- 1981. THE LD. DR SUBMITTED THAT ALL THESE ADDITIONAL EVIDENCES FILED BY THE AS SESSEE BEFORE THE TRIBUNAL HAS NOT BEEN VERIFIED BY THE AUTHORITIES BELOW AND SHOULD NOT BE ACCEPTED. 10. WE HAVE CONSIDERED THE RIVAL CONTENTION AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. FROM THE DOCUMENTS AND THE ADD ITIONAL EVIDENCES FILED BY THE ASSESSEE BEFORE THE TRIBUNAL, IT IS CONTENDED B Y THE ASSESSEE THAT THE SAID GODOWN IS OWNED BY M/S DESAI MANIAR & KULKARNI AND REFLECTED IN THEIR BALANCE SHEET AS THE SAID FIRM IS THE OWNER OF THE SAID GODOWN.WE HAVE OBSERVED THAT THE ASSESSEE IS CONTENDING THAT THE S AID FIRM M/S DESAI MANIAR & KULKARNI WAS THE OWNER OF THE SAID GODOWN SINCE ITS ALLOTMENT IN THE TEAR 1973-74 AND CONSIDERATION WAS PAID BY THE SAID FIRM AND NOT BY THE ASSESSEE AND THE INCOME FROM CAPITAL GAIN ON SALE OF THE SAI D GODOWN IS ALREADY OFFERED FOR TAXATION BY THE SAID FIRM M/S DESAI MANIAR & KU LKARNI . ALL THESE ADDITIONAL EVIDENCES WHICH HAS BEEN FILED FOR THE F IRST TIME BEFORE THE TRIBUNAL, IN OUR CONSIDERED VIEW, REQUIRES VERIFICA TION BY THE AUTHORITIES BELOW IN ORDER TO COMPLY WITH PRINCIPLES OF NATURAL JUSTI CE. IN OUR CONSIDERED VIEW, THE INTEREST OF JUSTICE WILL BE BEST SERVED IF THE MATTER IS SET ASIDE TO THE FILE OF A.O. FOR DE-NOVO DETERMINATION OF THE ISSUE WITH RE SPECT TO THE CHARGEABILITY OF CAPITAL GAIN ON SALE OF THE SAID GODOWN IN THE LIGH T OF THE DOCUMENTS/ADDITIONAL EVIDENCE FILED BY THE ASSESSEE . THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE A,O. AND FILE ALL REL EVANT AND NECESSARY EVIDENCES WITH RESPECT TO THE ACQUISITION/SALE OF T HE SAID GODOWN AND THE OWNERSHIP STATUS OF THE GODOWN TO RESOLVE THE CONTR OVERSY WITH RESPECT TO THE ITA 4508/MUM/12 & 4532/MUM/12 9 DETERMINATION OF EXACT DESCRIPTION/LOCATION OF THE SAID PROPERTY AND ITS OWNERSHIP STATUS AS WELL TO ASCERTAIN WHO IS LIABLE TO PAY THE APPROPRIATE TAXES ON THE GAINS ON THE SALE OF THE SAID GODOWN. NEEDLESS TO SAY THAT THE ASSESSEE WILL BE ALLOWED PROPER AND ADEQUATE OPPORT UNITY OF HEARING BY THE AO IN COMPLIANCE WITH PRINCIPLES OF NATURAL JUSTICE IN ACCORDANCE WITH THE LAW AND THE ASSESSEE WILL BE ALLOWED TO FILE ALL NECESS ARY RELEVANT EVIDENCES IN SUPPORT OF HIS CONTENTIONS. WE ORDER ACCORDINGLY. 11. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE E AS WELL AS REVENUE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JANUARY, 2016. # $% &' 29-01-2016 ( ) SD/- SD/ (SAKTIJIT DEY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 29-01-2016 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI H BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI