Avdhut Vinayak Vaidya, Baroda V. The Income tax Officer,Ward-2(1), Baroda

ITA 675/AHD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57367 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-03-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 03-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: C I SHAH
• Keywords: Additional evidence
• Section: 54

Judgement Text

-1- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'A' BEFORE SHRI D K TYAGI JUDICIAL MEMBER AND SHRI A MOHAN ALANKAMONY - AM ITA NO.675/AHD/2010 (ASSESSMENT YEAR:-2005-06) SHRI AVDHUT VINAYAK VAIDYA, 372/1, GIDC, MAKARPURA, BARODA V/S THE INCOME-TAX OFFICER, WARD-2(1), BARODA PAN: ABBPV 7358 L [APPELLANT] [RESPONDENT] ASSESSEE BY :- SHRI C I SHAH, AR REVENUE BY:- SHRI DINESH SINGH, SR. DR DATE OF HEARING:- 27-03-2012 DATE OF PRONOUNCEMENT:- 27-03-2012 O R D E R PER D K TYAGI (JM) :- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST AN ORDER DATED 30-12-2009 PASSED BY THE LEA RNED COMMISSIONER OF INCOME-TAX (APPEALS)-II, BARODA [HE REINAFTER REFERRED TO AS THE LEARNED CIT(A)] FOR ASSESSMENT YEAR (AY) 2005-06. THE ONLY EFFECTIVE GROUND RAISED BY THE AS SESSEE IN THIS APPEAL READS AS UNDER:- THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)- II HAS ERRED IN CONFIRMING THE STAND TAKEN BY THE LEARNED AO OF MAK ING THE ADDITION TO THE DECLARED RETURNED INCOME, THE SUM OF RS.8,19 ,899/- U/S 50 OF THE INCOME-TAX ACT, WHEN THE ASSESSEE HAS IN FACT INCUR RED LONG TERM CAPITAL GAIN ON TRANSFER OF LEASING RIGHTS ON THE G IDC LEASE HOLD LAND, TREATING THE SAME DEPRECIABLE ASSET UNDER SEC TION 50 OF THE INCOME-TAX ACT AND ADDED TO THE RETURNED INCOME. 2 2 2 THE FACTS IN BRIEF AS EMERGED FROM THE ASSESSMENT ORDER ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 04- 10-2006 DECLARING INCOME OF RS.45,200/-. THE ASSESSEE HAS SOLD THE PROPERTY PART OF THE FACTORY AND TO (1) SHRI JAYANT ILAL P SOLANKI AND (2) SHRI PANKAJ K ARORA FOR A CONSIDERATION OF RS.3,35,251/- EACH AGGREGATING TO RS.6,70,502/- AND HAS DECLARED THE INCOME UNDER THE HEAD LONG TERM CAPITAL GAINS AT RS.1,64 ,198/-. THE ASSESSEE HAS ALSO CLAIMED EXEMPTION U/S 54 OF THE A CT AMOUNTING TO RS.2,00,010/- AGAINST THIS CAPITAL GAIN ON ACCOU NT OF INVESTMENT IN PROPERTY AT D/103, PRAKRUTI FLATS, MA NJALPUR, BARODA ON 30-08-2005. HOWEVER, ACCORDING TO THE AO, THE PROPERTY IN QUESTION IS A FACTORY LAND, ON WHICH THE ASSESSEE WAS RUNNING THE OWN BUSINESS TILL THE DATE OF SALE. IT WAS THEREFORE CLEAR THAT THE PROPERTY WAS SUBJECT TO CA PITAL GAIN AS DEFINED IN THE PROVISIONS OF SECTION 50 OF THE ACT. THE AO, THEREFORE, HELD THAT THE ASSESSEES CLAIM FOR EXEMP TION U/S 54 IS NOT TENABLE IN VIEW OF THE FACT THAT THE ASSESSEE H AS SOLD THE PROPERTY IN TERMS OF FACTORY LAND AND NOT THE RESID ENTIAL PROPERTY. THE EXEMPTION U/S 54 IS APPLICABLE TO RESIDENTIAL P ROPERTY ONLY. 3 AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A), THE ASSESSEE FILED AN APPEAL BEFORE THE LEARNED CIT(A). THE LEAR NED CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE ON THE G ROUND THAT ALL THE NOTICES ISSUED AND SENT THROUGH SPEED POST WHIC H WERE DULY SERVED UPON THE ASSESSEE, THE ASSESSEE DID NOT CARE TO ATTEND ON THE DATES OF HEARING. 3 3 4 NOW, THE ASSESSEE IS IN APPEAL BEFORE US. AFTER H EARING BOTH THE PARTIES, WE FIND THAT THE LEARNED CIT(A) HAS DE CIDED THIS APPEAL EX-PARTE SIMPLY RELYING ON THE ASSESSMENT OR DER. DURING THE COURSE OF HEARING BEFORE US A PAPER BOOK WAS FI LED BY THE LEARNED COUNSEL OF THE ASSESSEE. CONSIDERING THE SA ME AS ADDITIONAL EVIDENCES AND IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THE MATTER BACK TO THE FILE OF THE LEARN ED CIT(A) WITH THE DIRECTION TO PASS A SPEAKING ORDER AFTER TAKING INTO CONSIDERATION THE ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE BEFORE US, AFTER PROVIDING REASONABLE OPPORTUNITY T O BOTH THE PARTIES. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERAT E WITH THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A). 5 IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTI CAL PURPOSE. ORDER PRONOUNCED IN THE COURT TODAY ON 27-03-2012 SD/- SD/- (A MOHAN ALANKAMONY) ACCOUNTANT MEMBER (D K TYAGI) JUDICIAL MEMBER DATE : 27-03-2012 COPY OF THE ORDER FORWARDED TO: 1. SHRI AVDHUT VINAYAK VAIDYA, 372/1, GIDC, MAKARPU RA, BARODA / C/O C I SHAH & CO., CAS, G-1, NAND COMPLEX , OPP: FACULTY OF TECH. SANKER TEKRI, DANDIA BAZAR, BARODA-390 001 2. THE INCOME-TAX OFFICER, WARD-2(1), BARODA 3. CIT CONCERNED 4 4 4. CIT(A)-II, BARODA 5. DR, ITAT, AHMEDABAD BENCH-A, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD