LAXMIKANT R PATKAR, MUMBAI V. ITO 11(2)(4), MUMBAI

ITA 5026/MUM/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9295 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-12-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 06-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI , BEFORE SHRI R.K.GUPTA , J M ITA NO. 5026 / MUM/ 20 1 2 ( ASSESSMENT Y EAR : 200 8 - 20 0 9 ) SHRI LAXMIKANT R. PATKAR, 19, BELL BUILDING, SIR P.M.ROAD, FORT, MUMBAI - 400 001 VS. ITO 1 1 (2)( 4 ) , MUMBAI PAN/GIR NO. : A ACPP 6525 H ( APPELLANT ) .. ( RESPONDENT ) /A SS ESSEE BY : MR. SATISH R. MODY /RE VENUE BY : MR. RAKESH RANJAN DATE OF HEARING : 10 TH DEC ., 2012 DATE OF PRONOUNCEMENT : 12 TH DEC. ,2012 O R D E R THIS IS AN APPEAL P REFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 21 - 6 - 2012 OF LEANED CIT(A) - 3 , MUMBAI RELA TING TO THE ASSESSMENT YEAR 200 8 - 0 9 . 2 . THE ONLY ISSUE IN THE APPEAL OF THE ASSESSEE IS AGAINST CONFIRMING THE ADDITION OF RS. 1,75,000/ - . 3 . BRIEF FACTS IN THIS REG ARD ARE THAT D URING THE ASSESSMENT, THE ASSESSING OFFICER NOT ICED THAT THE ASSESSEE HAS RECEIVED ADVANCE OF ITA NO. 5026 /20 1 2 2 RS. 1,75,000/ - AGAINST SALE OF PLOT . IT WAS EXPLAINED BEFORE THE AO THAT THIS ADVANCE PERTAINS PRIOR TO 1979 AS THE ASSESSEE SOLD A PIECE OF PLOT IN THE YEAR 1970. THE PAYMENT OF THIS PLOT WAS RECEIVED IN SUBSEQUENT FIVE YEARS I.E. BETWEEN THE ASSESSMENT YEARS 1971 - 72 & 1978 - 79 FROM M/S DELUXE BUILDERS PARTNERSHIP FIRM TO WHOM THE PLOT WAS SOLD IN 1970. THE CAPITAL GAIN WAS LIABLE TO BE SHOWN IN 1970 B UT THE SAME WAS NOT SHOWN AS NO SALE - DEED WAS EXECUTED IN THAT YEAR, THEREFORE, THE SAME WAS APPEARING IN THE BALANCESHEET SINCE THEN AS ADVANCE AGAINST SALE OF PROPERTY. 4 . THE ASSESSING OFFICER ASKED THE ASSESSEE AS TO WHY THIS SHOULD NOT BE TAXED I N THE YEAR UNDER CONSIDERATION. THEN IT WAS STATED THAT THE SAME HAS ALREADY BEEN OFFERED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2010 - 2011. COPIES OF THE RETURN AND OTHER DETAILS WERE ALSO FILED SHOWING THAT THE SAME HAS BEEN SHOWN AS CAPITAL GAIN. THE AS SESSING OFFICER DID NOT ACCEPT THE EXPLANATION AS IN HIS VIEW THE AMOUNT SHOULD HAVE BEEN OFFERED FOR TAXATION IN EARLIER YEAR AND WHEN IT DETECTED THAT THE SAME HAS NOT BEEN OFFERED THEN THE ASSESSEE SHOWN THE SAME IN THE ASSESSMENT YEAR 2010 - 2011. ACCORD INGLY, HE WAS OF THE VIEW THAT TAX LIABILITY IN THE YEAR UNDER CONSIDERATION IS MORE THAN AS COMPARED TO ASSESSMENT YEAR 2010 - 11 AND ASSESSED THE AMOUNT OF RS. 1,75,000/ - IN THE YEAR UNDER CONSIDERATION. ONE MORE REASON GIVEN BY THE ASSESSING OFFICER THAT S INCE THE ASSESSEE IS NOT ABLE TO PROVE THAT THE SAME PLOT OF LAND WAS SOLD IN 1970, WHICH WAS OFFERED FOR TAXATION IN 2010 - 11 , A S PER THE RETURN IT WAS SHOWN THAT A ITA NO. 5026 /20 1 2 3 PLOT HAS BEEN SOLD DURING THE ASSESSMENT YEAR 2010 - 11. ACCORDINGLY, IT WAS HELD BY THE AO T HAT THIS IS A DIFFERENT SALE OF PLOT SHOWN BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2010 - 11 AND, THEREFORE, THE SAME WAS ADDED IN THE YEAR UNDER CONSIDERATION I.E. ASSESSMENT YEAR 2008 - 09. 5 . LEARNED CIT(A) HAS ALSO CONFIRMED THE ACTION OF THE ASSESSING OF FICER. 6 . AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, I AM OF THE VIEW THAT THE ASSESSING OFFICER AND THE LEARNED CIT(A) WERE NOT JUSTIFIED IN TAXING THE AMOUNT OF RS. 1,75,000/ - DURING THE YEAR UNDER CONSIDERATION. IT IS CLEAR TH AT NO SALE OF PLOT WAS MADE DURING THE YEAR UNDER CONSIDERATION. THEY HAVE ADMITTED THAT THE PLOT OF LAND WAS SOLD IN 1970 , T HEN HOW IT CAN BE TAXED IN THE YEAR UNDER CONSIDER ATION I.E. ASSESSMENT YEAR 2008 - 09 . THIS IS ALSO A MATTER OF FACT THAT THE SUM OF RS. 1,75,000/ - WAS SHOWN AS ADVANCE AGAINST SALE OF PLOT SOLD IN THE YEAR 1970, THEREFORE, IF ANY CAPITAL GAIN ARISES THAT IS IN THE YEAR 1970 AND NOT IN THE YEAR UNDER CONSIDERATION. THE ASSESSEE IS PREPARING BALANCESHEET YEAR AFTER YEAR AND THIS AMOUNT O F RS. 1,75,000/ - IS APPEARING IN THE BALANCE SHEET. THEREFORE, IN MY CONSIDERED VIEW, THIS CANNOT BE TAXED IN THE YEAR UNDER CONSIDERATION. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, I HOLD THAT THE AMOUNT CANNOT BE TAXED IN THE YEAR UNDER CO NSIDERATION. ACCORDINGLY, I DELETE THE ADDITION OF RS. 1,75,000/ - . ITA NO. 5026 /20 1 2 4 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF DEC. 2012. 2012 SD/ - ( ) ( R.K.GUPT A ) / JUDICIAL MEMBER MUMBAI ; DATED : 12 /12 / 2012 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) - X, MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI