Shri Prakash Krishnaji Joshi, Pune V. ITO Wd 7[2] Pune, Pune

ITA 721/PUN/2012

• Counselvise Citation: 72124514 RSA 2012
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 11-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Assessee Lawyers: CHETAN PATWARDHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K.PANDA, ACCOUNTANT MEMBER. ITA.NO.721/PN/2012 (ASSTT. YEAR : 2007-08) SHRI PRAKASH KRISHNAJI JOSHI, 1028, RAMA SANSKRITI, SINHAGAD ROAD, PUNE 411030. .. APPELLANT PAN: AAXPJ1554H VS. ITO, WARD-7(2), PUNE. .. RESPONDENT ASSESSEE BY : SHRI CHETAN PATWARDHAN DEPARTMENT BY : MS.ANN KAPTHUAMA DATE OF HEARING : 15.04.2013 DATE OF PRONOUNCEMENT : 25.04.2013 ORDER PER SHAILENDRA KUMAR YADAV, JM : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE ON THE FOLLOWING GROUNDS: 1) ASSESSING OFFICER WAS NOT AT ALL JUSTIFIED BY DENYI NG THE ASSESSEES CLAIM FOR SUBMISSION OF AN AFFIDAVIT IN THE ABSENCE OF VERY OLD RECORDS. 2) ASSESSING OFFICER HAD NOT GIVEN REASONABLE OPPORTUN ITY TO THE ASSESSEE AND PRESS FOR EVIDENCE THAT HE SHOULD PROD UCE RECORDS WITH IN 24 HOURS AND REFUSE TO PRODUCE AN AFFIDAVIT . 3) AND LEARNED CIT(A)-III, HAVE FELL TO CONSIDERED THA T AN AFFIDAVIT IS EVIDENCE IN THE ABSENCE OF VERY OLD RECORDS. 2. IN THIS REGARD, THE STAND OF THE ASSESSEE AS RAI SED IN THE STATEMENT OF FACTS IS THAT THE APPEAL AGAINST THE ORDER DATED 16.12.2009 WAS DULY RECEIVED BY THE ASSESSEE ON 12.01.2010. AT RELEVANT POINT OF TIME, ASSESSEE WAS WORKING WITH STATE BANK OF HYDERABAD. HIS CASE WAS SELECTED UNDER CASS. DURING ASSESSMENT PROCEEDINGS , THE ASSESSING OFFICER MADE ADDITION IN ABSENCE OF DOCUMENTARY EVI DENCE TOWARDS COST OF IMPROVEMENT WHICH WAS OCCURRED ALMOST 25 TO 30 Y EARS AGO. IN ABSENCE OF RECORDS, ASSESSEE FILED AFFIDAVIT THAT B EING RECORD WAS VERY OLD AND NOT TRACEABLE BUT EXPENDITURE WAS MADE. IN THI S SITUATION, THE ASSESSING OFFICER REJECTED THE ASSESSEES CLAIM FOR SUBMISSION OF AN AFFIDAVIT IN THE ABSENCE OF OLD RECORDS AND ADDITIO N WAS MADE. 2 ACCORDINGLY, LONG TERM CAPITAL GAINS COMPUTED BY TH E ASSESSING OFFICER AT RS.2,60,285/- WAS MADE AND SAME HAVE BEEN UPHELD BY THE CIT(A). IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS PURCHASED PROP ERTY IN QUESTION LONG BACK AS LONG AS 25 TO 30 YEARS. IN ABSENCE OF THE RELEVANT RECORDS TO SUBSTANTIATE EXPENDITURE, HE FILED AN AFFIDAVIT. THE CONTENTS OF THE AFFIDAVIT SHOULD NOT BE REJECTED WITHOUT CONFRONTIN G THE CONTENTS OF THE SAME TO THE DEPONENT. EVEN IN ABSENCE OF CLINCHING EVIDENCE, ASSESSEE SHOULD BE PROVIDED OPPORTUNITY FOR GIVING CIRCUMSTA NTIAL EVIDENCE WITH REGARD TO ITS CLAIM, WHICH HAS NOT BEEN DONE IN THI S CASE. IT IS NOT JUSTIFIED. IN THE INTEREST OF JUSTICE, WE SET ASID E THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO THE ASSESSING OFFICER WIT H DIRECTIONS TO DECIDE THE SAME AS PER FACT AND LAW AFTER GIVING DUE OPPOR TUNITY OF HEARING TO THE ASSESSEE AND THE ASSESSEE IS DIRECTED TO COOPER ATE IN THE PROCEEDINGS. 3. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 25 TH DAY OF APRIL, 2013. SD/- SD/- ( R.K.PANDA ) ( SHAILENDRA KUMAR YAD AV ) ACCOUNTANT MEMBER JUDICIAL MEMBER GSPS PUNE, DATED THE 25 TH APRIL, 2013 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE ITO, WARD-7(2), PUNE. 3. THE CIT(A)-III, PUNE. 4. THE CITIV, PUNE 5. THE DR A BENCH, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.