SHRI SURJI RAMJI GADA, MUMBAI V. INCOME TAX OFFICER WARD-16(2)(4), MUMBAI

ITA 6139/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3341 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 29-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKTHAR H ANSARI
• Section: 143(3); 12; 2; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI R.C. SHARMA , ACCOUNTANT MEMBER ./ I.T.A. NO. 6139 / MUM /201 8 ( / ASSESSMENT YEAR S : 20 11 - 1 2 ) SHRI SURJI RAMJI GADA FLAT NO. 35, 2 ND FLOOR, DEV BHUVAN BUILDING GAZDAR STREET, JSS ROAD, CHIRA BAZAR, MUMBAI. / VS. ITO 16(2)(4) ROOM NO. 2017, 2 ND FLOOR, MATRU MANDIR, GRANT ROAD. ./ ./ PAN/GIR NO. : AABPG3526C ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI S.L. JAIN, AR / RESPONDENT BY : SHRI AKTHAR H ANSARI , DR / DATE OF HEARING 06 /11 /2019 / DATE OF PRONOUNCEMENT 13 /11 /2019 / O R D E R PER R.C. SHARMA (AM) : THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER OF THE CIT(A) FOR THE A.Y 2011 - 12, IN THE MATER ORDER PASSED U/S 143(3) OF THE ACT. IN THIS APPEAL THE ASSESSEE IS AGGRIEVED FOR NOT CONSIDERING THE IMPROVEMENT COST INCURRED BY THE ASSESSEE IN RESPECT OF SHOP NO.1 ON GROUND FLOOR OF BUILDING. ITA NO S . 6139 /MUM/2018. SHRI SURJI RAMJI GADA , MUMBAI . - 2 - 2. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND FOUND THAT DURING THE RELEVANT ASSESSMENT YEAR ASSESSEE SHRI SURJI RAMJI GAD JOINTLY WITH HIS TWO BROTHERS SHRI HANSRAJ RAMJI GAD AND SHRI HEMCHAND RAMJI GADA ALL THREE CO - OWNERS HAD SOLD THE IMMOVABLE PROPERTY BEING SHOP NO.1 ON GROUND FLOOR OF BUILDING KNOWN AS CH ANDALOK - A SITUATED AT 97, NEPEANSEA ROAD, MUMBAI - 400 006 FOR TOTAL CONSIDERATION OF RS. 69,00,000/ - . A S PER THE AGREEMENT OF SALE DATED 22.12.2010 EACH HAVING EQUAL SHARE RECEIVED RS. 23,00,000/ - AS HIS SHARE IN SALE TRANSACTION OF JOINT OWNERSHIP PROPERTY . THE SHOP PREMISES WAS ORIGINALLY PURCHASED BY SHRI RAMJI KARSAN GADA, FATHER OF ASSESSEE FOR CONSIDERATION OF RS. 50,000/ - VIDE AGREEMENT OF SALE DATED 27.11.1978. COST INDEX IS EFFECTIVE FROM THE BEGINNING OF 1 ST APRIL 1981. AS FATHER OF ASSESSEE PUR CHASED SHOP DURING THE YEAR 1978 THE PREVAILING MARKET ITA NO S . 6139 /MUM/2018. SHRI SURJI RAMJI GADA , MUMBAI . - 3 - PRICE OF 1 ST APRIL 1981 WAS TAKEN AS BASE PRICE FOR COMPUTING CAPITAL GAIN. 3. I ALSO FOUND THAT DURING THE F.Y 1990 - 91 STRUCATUAL REPAIRING OF SHOP PREMISES, FURNITURE, FIXTURES AND CONTRACT WAS GIVEN TO M/S. PATEL CONTRACTOR AT AGREED COST OF RS. 11,90,000/ - TOWARDS IMPROVEMENT, RENOVATION OF SHOP. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAS SUBMITTED DETAIL COST OF IMPROVEMENT AND BILL OF PERSON WHO HAS CARRIED OUT SAID IMPROVEMEN T. THE A.O DID SEND A LETTER TO SAID CONTRACTOR FOR CONFIRMING THE JOB WORK. BUT INSTEAD OF ASKING DETAIL REGARDING SHOP AT CHANDRALOK BUILDING AT NEPEANSEA ROAD THE ASSESSING OFFICER INQUIRED HIM ABOUT SHOP AT MALAD (W). SO THE OWNER OF M/S. PATEL CONT RACTOR DID NOT GIVE REPLY. THE A.O DID NOT ACCEPT THE ASSESSEES CONTENTIONS AND ACCORDINGLY DID NOT GIVE ANY BENEFIT OF THE IMPROVEMENT COST SO INCURRED. ITA NO S . 6139 /MUM/2018. SHRI SURJI RAMJI GADA , MUMBAI . - 4 - BEFORE US, THE ASSESSEE HAS FILED A COPY OF BILL RAISED BY PATEL CONTRACTORS AMOUNTING TO RS. 11,90 ,000/ - . I FOUND THAT A.O HAS WRONGLY SENT ENQUIRY LETTER WITH RESPECT TO THE PREMISES AT MALWA BEACH, MALAD (W), MUMBAI, WHICH WAS NOT THE PROPERTY IN THE INSTANT CASE. ACCORDINGLY THERE IS NO MERIT FOR DECLINE OF ASSESSEES CLAIM WITHOUT MAKING PROPER E NQUIRY. IN ALL FAIRNESS I RESTORE THE MATTER BACK TO THE FILE OF THE A.O FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 13/ 11 /201 9 SD/ - ( R.C. SHARMA ) ACCOUNTANT MEMBER MUMBAI, DATED 13 /11 /20 1 9 KRK, PS ITA NO S . 6139 /MUM/2018. SHRI SURJI RAMJI GADA , MUMBAI . - 5 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) 4. ( ) / CONCERNED CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// 1 . / ( ASST. REGISTRAR) , / ITAT, MUMBAI 2 . OTHER