DURESH KUMAR H. SINGH, NAVI MUMBAI V. ITO 22(3)(1), MUMBAI

ITA 4658/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7798 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 07-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMBIT MISHRA
• Keywords: Principle of natural justice
• Section: 2(14); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH J,MUM BAI BEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.4658/MUM/2016 (ASSESSMENT YEAR- 2010-11) DURGESH KUMAR H. SINGH C/O M/S SUPER CONSTRUCTION CO., GROUND FLOOR, MANGALMURTI BUILDING, PLOT NO. 17, SECTOR-30, SANPADA, NAVI MUMBAI-400705. PAN: AYYPS1084N VS. ITO 22(3)(1), MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MANI JAIN (AR) REVENUE BY : SHRI SAMBIT MISHRA (DR) DATE OF HEARING : 16.02.2017 DATE OF PRONOUNCEMENT : 15.03.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY ASSESSEE U/S 253 OF THE INCOME-TAX A CT (THE ACT) IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS) [FOR SHORT THE CIT(A)] 26, MUMBAI DATED 29.04.2016 FOR ASSESSMENT YEAR (AY) 2010-11. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT' S CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFI RMING THE ACTION OF LD. ASSESSING OFFICER IN HOLDING THE PROFIT OF RS.10,38 ,660/- ARISING OUT OF THE SALE OF AGRICULTURE LAND IS TAXABLE UNDER THE HEAD' INCOME FROM CAPITAL GAINS' WITHOUT APPRECIATING THE FACT THAT PROVISION S OF SECTION 45 ARE NEITHER APPLICABLE NOR ATTRACTED AS PER PARA 3- 3.10 OF THE IMPUGNED ASSESSMENT ORDER. 2. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT' S CASE AND IN LAW THE LD COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFI RMING THE ACTION OF LD. A.O. IN MAKING AN ADDITION OF RS.1,12,830/- AS ALLE GED UNEXPLAINED AGRICULTURAL INCOME BY INVOKING THE PROVISIONS OF S ECTION 68 OF THE INCOME TAX ACT, 1961 AS PER PARA 4 OF THE IMPUGNED ASSESSM ENT ORDER. ITA NO.46 58/M/2016 DURGESH KUMAR H. SINGH. 2 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR RELEVANT AY ON 20.10.2010. THE ASSESSMENT WAS COMPLETED U/S 143 (3) OF THE ACT ON 25.03.2013. THE ASSESSING OFFICER (AO) WHILE PASSIN G THE ASSESSMENT ORDER BESIDES OTHER ADDITION AND DISALLOWANCE TREATED THE LONG TERM CAPITAL GAIN (LTCG) ON SALE ON AGRICULTURAL LAND AS TAXABLE. AND THE AGRICULTURAL INCOME OF RS.1,12,830/- WAS TREATED AS UNEXPLAINED CASH CRED IT U/S 68 OF THE ACT. ON APPEAL BEFORE THE LD. CIT(A) BOTH THE TREATMENT/DISALLOWAN CE WAS SUSTAINED. FURTHER, AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE. T HE LD. AR OF THE ASSESSEE ARGUED THAT THE AO PASSED THE ASSESSMENT ORDER WITH OUT GIVING PROPER AND SUFFICIENT OPPORTUNITY. THE FIRST APPELLATE AUTHORI TY (FAA) ALSO PASSED THE ORDER WITHOUT GIVING AN OPPORTUNITY TO EXPLAIN THE FACT O F THE CASE. THE LD. AR OF THE ASSESSEE ARGUED THAT SINCE THE AUTHORITIES BELOW VI OLATED THE PRINCIPLE OF NATURAL JUSTICE, THUS HE MAY BE GIVEN OPPORTUNITY TO EXPLAI N HIS FACTS BEFORE THE AUTHORITIES BELOW. ON THE OTHER HAND, LD. DR FOR TH E REVENUE SUPPORTED THE ORDER OF AUTHORITIES BELOW AND ARGUED THAT THE ASSESSEE H AS NOT PARTICIPATED IN THE PROCEEDING DESPITE GIVING SUFFICIENT AND PROPER OPP ORTUNITY BY THE AO AS WELL AS BY THE FAA. 4. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND GONE THROUGH THE ORDER OF AUTHORITIES BELOW. DURING THE ASSESSMENT PROCEED ING, THE AO NOTICED THAT ASSESSEE HAS SOLD THE SHARE IN LAND BEING A PART OF SURVEY NO. 187/1 AND SURVEY NO. 25/42 OF VILLAGE WAJE, PANVEL, NAVI MUMBAI. THE ASS ESSEE HAS CLAIMED CAPITAL GAIN OF RS. 10,38,660/- ON SALE OF THESE TWO PIECE OF LAND. THE ASSESSEE CLAIMED EXEMPTION U/S 2(14) OF THE ACT. THE AO ASKED THE AS SESSEE TO SUBSTANTIATE HIS CLAIM VIDE NOTICE DATED 14.03.2014. AS NO DETAILS W ERE FURNISHED BEFORE THE AO BY THE ASSESSEE, THE AO PROCEEDED TO MAKE THE ASSES SMENT KEEPING IN VIEW THAT THE MATTER WAS GETTING TIME BARRED ON 31.03.2013. T HE AO ON THE BASIS OF ITA NO.46 58/M/2016 DURGESH KUMAR H. SINGH. 3 INFORMATION AVAILABLE ON WEBSITE OF VIKIMAPIA.ORG FORMED HIS OPINION THAT DISTANCE OF WAJE VILLAGE FROM THE MUNICIPAL LIMIT O F PANVEL IS LESS THAN 8 KM. AND IN ABSENCE OF ANY OTHER INFORMATION THE SALE CONSID ERATION OF RS. 10,38,660/- WAS TREATED AS TAXABLE LTCG. SIMILARLY ABOUT AGRICULTU RAL INCOME OF RS. 1,12,830/-, THE AO HOLD THAT NO DETAILS OF INCOME WERE FURNISHE D BY ASSESSEE, IN ABSENCE OF ANY EVIDENCE THE INCOME WAS TREATED AS CASH CREDIT U/S 68 OF THE ACT. THE LD. CIT (A) PASSED THE EX-PARTE ORDER AND CONSIDERED ONLY T HE WRITTEN SUBMISSION DATED 06.11.2015. ON PERUSAL OF FACTS WE FIND THAT NEITHE R THE AO NOR THE LD. CIT(A) AFFORDED SUFFICIENT AND FAIR OPPORTUNITY OF HEARING TO THE ASSESSEE TO SUBSTANTIATE HIS CLAIM. THUS, KEEPING IN VIEW THE PRINCIPLE OF N ATURAL JUSTICE, WE RESTORE BOTH THE GROUNDS OF APPEAL TO THE FILE OF AO TO DECIDE B OTH THE ISSUES AFRESH AFTER GIVING SUFFICIENT AND ADEQUATE OPPORTUNITY TO THE A SSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FILE ALL INFORMATION AND EVIDENCE IN SU PPORT OF HIS CLAIM BEFORE THE AO. WITH THESE OBSERVATIONS, BOTH THE GROUNDS OF APPEAL RAISED BY ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15 TH MARCH, 2017. SD/- SD/- (D.KARUNAKARA RAO) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 15/03/2017 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/