AJIT KUMAR S. JAIN, MUMBAI V. ITO 21(1)(1), MUMBAI

ITA 7127/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3025 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 28-11-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Cost of acquisition
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER ITA NO. 7127/MUM/2014 (ASSESSMENT YEAR : 2010-11) SHRI AJIT KUMAR S.JAIN 29/C, SHYAM KAMAL, AGARWAL MARKET, VILE PARLE (E),MUMBAI 400 057 PAN:ACZPJ 3359G ... APPELL ANT VS. THE I.T.O. 21(1)(1) MUMBAI 400 007 .... RESPONDENT APPELLANT BY : SHRI RAJESH S. SHAH RESPONDENT BY : SHRI SANTOSH MANKOSKAR DATE OF HEARING : 21/06/2016 DATE OF PRONOUNCEMENT : 29/06/2016 ORDER THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERT AINING TO ASSESSMENT YEAR 2010-11 IS DIRECTED AGAINST AN OR DER PASSED BY CIT(A)-32, MUMBAI DATED 30/09/2014, WHICH IN TURN A RISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 30 /03/2013. IN THIS APPEAL, ASSESSEE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL:- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E COMMISSIONER OF INCOME TAX (APPEAL)-32, MUMBAI HAS ERRED IN PASS ING THE ORDER EX PARTE. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E COMMISSIONER OF INCOME TAX (APPEAL)-32, MUMBAI HAS ERRED IN PASS ING THE ORDER WITHOUT PROPERLY APPRECIATION THE FACTS OF THE CASE . 2 ITA NO. 7127/MUM/2014 (ASSESSMENT YEAR : 2010-11) 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE COMMISSIONER OF INCOME TAX (APPEAL)-32, MUMBAI HAS ERRED IN CONF IRMING THE TREATMENT OF CAPITAL GAIN AS SHORT TERM CAPITAL GAI N INSTEAD OF LONG TERM CAPITAL GAIN CLAIMED BY THE ASSESSEE. 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE COMMISSIONER OF INCOME TAX (APPEAL)-32, MUMBAI HAS ERRED IN CONF IRMING THE COMPUTATION OF CAPITAL GAIN AT RS. 20 LACS BY ADOPT ING COST OF ACQUISITION AT RS. NIL. 5. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE COMMISSIONER OF INCOME TAX (APPEAL)-32, MUMBAI HAS ERRED IN CONF IRMING THE ADDITION OF RS. 13 LACS IN RESPECT OF INTEREST PAID ON LOAN AND RS. 3 LACS IN RESPECT OF LEGAL & PROFESSIONAL CHARGES CLA IMED BY ASSESSEE U/S 57 OF IT ACT, 1961. 2. AT THE OUTSET, THE LD. REPRESENTATIVE FOR THE AS SESSEE POINTED OUT THAT ASSESSEE WOULD BE SATISFIED IF THE MATTER IS R ESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR EXAMINATION OF VARIOUS ISS UES AFRESH BECAUSE AT THE STAGE OF ASSESSMENT AS WELL AS BEFORE THE CIT(A PPEALS), ASSESSEE COULD NOT PRODUCE THE RELEVANT DOCUMENTS DUE TO UNI NTENDED REASONS. IT WAS POINTED OUT THAT THE CIT(APPEALS) HAS EVEN D ISMISSED THE APPEAL OF THE ASSESSEE EX-PARTE. LD. REPRESENTATIVE FOR T HE ASSESSEE EXPLAINED THAT THE MAJOR ADDITION IS ON ACCOUNT OF LONG TERM CAPITAL GAIN EARNED BY THE ASSESSEE ON THE SALE OF PROPERTY, WHICH HAS BEEN ASSESSED BY THE LOWER AUTHORITIES AS SHORT TERM CAPITAL GAIN AN D THE ENTIRE SALE CONSIDERATION HAS BEEN BROUGHT TO TAX AND NO BENEFI T HAS BEEN ALLOWED ON ACCOUNT OF COST OF ACQUISITION, ETC. IT WAS POI NTED OUT THAT NO DEDUCTION ON ACCOUNT OF COST OF ACQUISITION WAS ALL OWED BY THE LOWER AUTHORITIES IN THE ABSENCE OF THE ORIGINAL PURCHASE DEED, WHICH ASSESSEE COULD NOT PRODUCE AT THE RELEVANT POINT OF TIME. I N THIS CONTEXT, HE HAS DRAWN MY ATTENTION TO THE ITEM NOS. 3 TO 8 OF THE P APER BOOK, WHEREIN IS PLACED THE FOLLOWING DOCUMENTS:- 3 ITA NO. 7127/MUM/2014 (ASSESSMENT YEAR : 2010-11) SR.NO. PARTICULARS PAGE NOS. 3 ALLOTMENT CUM POSSESSION LETTER DATED 01.05.2006 IN RESPECT OF FLAT NO.1 AND ONE OPEN PARKING PLACE NO.2 IN HEENA MADHU PARK CO-OPERTIVE HOUSING SOCIETY LTD. ,KHAR(W), MUMBAI. 30 4 BANK STATEMENT OF BHARAT CO. OP. BANK LTD SHOWING PAYMENT TO SHRI MADHUKAR ON 12.05.2006 OF AJIT S. JAIN 31 5. AGREEMENT (SALE DEED) PURCHASED BY THE APPELLANT DATED 31 ST OCTOBER, 2006 (OPEN PARKING PLACE NO.1A UNDER STILT) FOR RS.1,00,000/- 32 - 55 6. SALE DEED DATED 31 ST OCTOBER, 2006 OF PURCHASE OF FLAT NO.1 AND OPEN PARKING PLACE UNDER STILT NO2 OF RS.15,00,000/- 56 - 80 7. AGREEMENT OF PURCHASE FLAT NO.3 IN EARTH KONARK DATED03.11.2009 81 - 114 8. BANK STATEMENT FOR THE PERIOD SEPTEMBER 2008 115 LD. REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THA T THE AFORESAID DOCUMENTS ARE NOW AVAILABLE WITH THE ASSESSEE AND, THEREFORE, REQUESTED THAT THE MATTER BE SENT BACK TO THE FILE OF ASSESSING OFFICER SO THAT APPROPRIATE DETERMINATION OF TAXABLE INCOME IS CARRIED OUT IN ACCORDANCE WITH LAW. 3. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE HAS NOT SERIOUSLY OPPOSED THE PLEA OF THE ASSESSEE FOR REMA NDING THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR ASSES SMENT AFRESH ON THE STATED ISSUE OF DETERMINATION OF CAPITAL GAIN ON SA LE OF PROPERTY ON ACCOUNT OF DISALLOWANCE OF EXPENSES WHILE COMPUTING INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 4. I HAVE HEARD THE RIVAL SUBMISSIONS. OSTENSIBLY, THE APPELLANT HAS SOLD THE PROPERTY DURING THE YEAR UNDER CONSIDERATI ON AND ENTIRE SALE CONSIDERATION HAS BEEN ASSESSED TO TAX PRIMARILY ON THE GROUND THAT RELEVANT PURCHASE DEED, ETC. WAS NOT ON RECORD SO A S TO EVIDENCE THE 4 ITA NO. 7127/MUM/2014 (ASSESSMENT YEAR : 2010-11) COST OF ACQUISITION OR THE DATE OF ACQUISITION. IN THE INTEREST OF JUSTICE AND FAIR PLAY, IT WOULD BE APPROPRIATE THAT THE MAT TER GOES BACK TO THE FILE OF ASSESSING OFFICER TO CONSIDER THE EVIDENCES NOW SOUGHT TO BE PLACED BY THE ASSESSEE IN SUPPORT OF RETURN OF INCO ME FILED, WHEREBY THE PROPERTY SOLD IS STATED TO HAVE BEEN ACQUIRED I N EARLIER YEARS FOR A CONSIDERATION OF RS.15.00 LACS. BE THAT AS IT MAY, THE ASSESSING OFFICER SHALL CONSIDER THE MATERIAL AND SUBMISSIONS WHICH T HE ASSESSEE MAY PUT-FORTH IN SUPPORT OF HIS PLEA AND THEREAFTER, RE WORK THE INCOME AS PER LAW. 5. FURTHER, WITH REGARD TO THE DISALLOWANCE OF EXPE NSES UNDER THE HEAD INCOME FROM OTHER SOURCES, HEREIN ALSO THE ASSESSEE EXPLAINED THAT THE EXPENSES NAMELY, BANK INTEREST PAID ON LOA N, LEGAL AND PROFESSIONAL CHARGES, ETC. HAVE BEEN DISALLOWED FO R WANT OF APPROPRIATE MATERIAL. ON THIS POINT ALSO, LD. REPR ESENTATIVE FOR THE ASSESSEE HAS REFERRED TO THE FRESH EVIDENCE IN THE FORM OF BANK STATEMENT, ETC. IN SUPPORT OF HIS PLEA. THIS MATTE R IS ALSO DIRECTED TO BE REVISITED BY THE ASSESSING OFFICER IN ACCORDANCE WI TH LAW. THUS, WITHOUT GOING INTO THE MERITS OF THE GROUNDS RAISED, THE OR DER OF THE CIT(A) IS SET-ASIDE AND THE ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR REASSESSMENT IN ACCORDANCE WITH LAW. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 29/06/2016 SD/- (G.S. PANNU) ACCOU NTANT MEMBER MUMBAI, DATED 29 /06/2016 VM , SR. PS 5 ITA NO. 7127/MUM/2014 (ASSESSMENT YEAR : 2010-11) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI