DHANJAY N SHINDE, MUMBAI V. ITO 22(2)(1), NAVI MUMBAI

ITA 7689/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3728 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 03-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 27-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Opportunity of being heard; Principle of natural justice; Additional evidence; Cost of acquisition
• Section: 50C; 69

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI . . , , !' #$, % , & BEFORE SHRI B.R.BASKARAN, AM AND SHRI AMARJIT SINGH , JM / I.T.A. NO.7689/M/12 ( % ' (' / ASSESSMENT YEAR: 2009-10) SHRI DHANANJAY N. SHINDE C-103, RAMBHA TOWER, GANGA WADI, LBS MARG, GHATKOPAR (WEST), MUMBAI - 400086 / VS. INCOME TAX OFFICER WARD 22(2)(1) 4 TH FLOOR, TOWER NO.6, VASHI RAILWAY STATION BUILDING, VASHI, NAVI MUMBAI - 400703 ./ ./ PAN/GIR NO. : ARJPS3800N ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 08.09.2015 !' /DATE OF PRONOUNCEMENT: 11.03.2016 #$ / O R D E R PER AMARJIT SINGH, JM: THIS IS AN APPEAL AGAINST THE ORDER DATED 29.10.20 12 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) 33, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE ASSESS MENT YEAR 2009-10. ASSESSEE BY: SHRI AJAY R. SINGH DEPARTMENT BY: SHRI K. B. SHUKLA ITA NO.7689/M/12 A.Y. 2009-10 2 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE WAS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 09.11.2009 DECLARING TOTAL INCOME AT RS.1,23,004/-. THE RETURN WAS PROCESSED U/S. 143(1 ) OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT). SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES U/S. 143(2) AND 1 42(1) OF THE ACT WERE ISSUED WHICH WERE SERVED UPON THE ASSESSEE. I N PURSUANCE OF NOTICES SHRI SANTOSH RANE APPEARED AND REPRESENTED THE MATER OF THE ASSESSEE. IN THE RELEVANT ASSESSMENT YEAR ASSESSEE HAS SOLD LAND TO THE TUNE OF RS.1,16,63,000/-. ASSESSEE PURCHASED THE S AID PROPERTY IN OCTOBER, 1986 TO THE TUNE OF RS.9,50,000/- WHEREAS AS PER THE PURCHASE AGREEMENT, THE COST OF PROPERTY WAS SHOWN AT RS.80,000/-. THEREAFTER THE ASSESSEE SHOWN THE SALE OF PROPERTY TO THE TUNE OF RS.41,00,000/- BUT THE AGREEMENT SPEAKS ABOUT THE V ALUE OF THE PROPERTY TO THE TUNE OF RS.1,16,63,000/-. THE FIGU RES MENTIONED IN THE AGREEMENT WERE TAKEN AND THE ASSESSMENT WAS MADE U/ S. 50C OF THE ACT. ACCORDINGLY THE SALE OF THE PROPERTY IN QUEST ION WAS TAKEN TO THE TUNE OF RS.1,16,63,000/- AND THEREAFTER THE COST OF ACQUISITION AND THE TOTAL LONG TERM CAPITAL GAIN WAS ASSESSED TO THE TU NE OF RS.1,11,30,429/-. IN THE SAID RELEVANT ASSESSMENT YEAR AN AMOUNT OF RS.50,000/- WAS FOUND TO BE CREDITED IN THE BANK AC COUNTS OF THE ASSESSEE ON 24.04.2008 AND AN AMOUNT OF RS.2,00,000 /- ON 21.10.2008. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE BUT NOTHING WAS EXPLAINED THEREFORE AN AMOUNT OF RS.2,50,000/- WAS TREATED AS UNEXPLAINED INVESTMENTS U/S. 69 OF THE ACT. TOTAL INCOME OF THE ITA NO.7689/M/12 A.Y. 2009-10 3 ASSESSEE WAS ASSESSED TO THE TUNE OF RS.1,15,03,430 /-. FEELING AGGRIEVED THE ASSESSEE FILED THE APPEAL BEFORE LEAR NED CIT(A) WHERE LEARNED CIT(A) ALSO DISMISSED THE APPEAL THEREFORE THE ASSESSEE IS BEFORE US. 3. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEAR NED REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECOR D CAREFULLY. THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF ORDER O F ASSESSING OFFICER PASSED BY LEARNED CIT(A) ON THE POINT OF AD DITION U/S. 50C OF THE ACT AND ON THE POINT OF UNEXPLAINED INVESTMENT U/S. 69 OF THE ACT. THE LEARNED REPRESENTATIVE OF THE ASSESSEE DID NOT PREFER THE ARGUMENTS ON MERIT HOWEVER MOVED AN APPLICATION FOR PRODUCING THE ADDITIONAL EVIDENCE. THE CONTENTION OF THE ASSESSE E IS THAT THE ASSESSEE IS OF 72 YEARS OF AGE AND SUFFERING FROM V ARIOUS DISEASES. IT IS CONTENTED THAT HE WAS PURELY MISREPRESENTED BY T HE PLEADER THEREFORE HE WANTED TO ADDUCE ADDITIONAL EVIDENCE I N SUPPORT OF HIS RESPECTIVE CLAIM. IT IS SPECIFICALLY ASSERTED THAT HIS CONTENTION ON ADDITIONAL EVIDENCE WAS REJECTED BY THE LEARNED CIT (A) ON THE GROUND THAT THE FORMAL APPLICATION U/S. 46A WAS NOT FILED. THE ASSESSEE WANTED TO ADDUCE ADDITIONAL EVIDENCE WITH REGARD TO THE VALUATION OF HIS PROPERTY. ASSESSEE ALSO WANTED TO ADDUCE THE L ETTERS OF MUMBAI MUNICIPAL CORPORATION WITH REGARD TO THE MARKET VAL UE OF THE PLOT. ASSESSEE ALSO WANTED TO ADDUCE THE ADDITIONAL EVIDE NCE IN SUPPORT OF HIS CLAIM TO IMPROVEMENT IN COST OF PLOT TO THE TUN E OF RS.8,70,000/- ITA NO.7689/M/12 A.Y. 2009-10 4 AND UNEXPLAINED INVESTMENT OF RS.2,00,000/-. IT IS APPARENT ON RECORD THAT ASSESSEE IS AN INDIVIDUAL AND HAS NOT BEEN REP RESENTED PROPERLY. THE DOCUMENTS PRODUCE BEFORE THE LEARNED CIT(A) WAS NOT CONSIDERED ON ACCOUNT OF NON-FILING OF FORMAL APPLICATION U/S. 46A OF THE ACT. IN VIEW OF THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ADDITIONAL EVIDENCE WHICH THE ASSESSEE WANTED TO BRING ON RECO RD IS NECESSARY TO ADJUDICATE THE CASE PROPERLY THEREFORE, WE ALLOW TH E PRESENT APPLICATION AND RESTORE THE FILE TO THE ASSESSING O FFICER TO PASS ORDER AFRESH AFTER DUE GIVING AN OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE IN THE INTEREST OF NATURAL JUSTICE. IN VIEW OF THE SA ID CIRCUMSTANCES GIVING FINDING ON THE ISSUES RAISED BY THE ASSESSEE WOULD BE THE FUTILE EXERCISE AS THESE ISSUES ARE GOING TO BE RECONSIDER AFRESH IN THE LIGHT OF EVIDENCE ADDUCIBLE BY ASSESSEE. THEREFORE, WE R ESTORE THE PRESENT FILE BEFORE THE ASSESSING OFFICER TO CONSIDER THE C LAIM OF THE ASSESSEE IN VIEW OF THE EVIDENCE ADDUCIBLE BY THE ASSESSEE B Y GIVING HIM AN OPPORTUNITY OF BEING HEARD IN THE INTEREST OF JUSTI CE THE PRESENT APPEAL IS HEREBY ALLOWED ACCORDINGLY. 4. ACCORDINGLY, APPEAL OF THE ASSESSEE IS HEREBY AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH MARCH, 2016 SD/- SD/- (B.R.BASKARAN) (AMARJIT SINGH) # / ACCOUNTANT MEMBER %& # /JUDICIAL MEMBER ' ( MUMBAI; )# DATED : 11 TH MARCH , 2016 MP MP MP MP ITA NO.7689/M/12 A.Y. 2009-10 5 * + ,%'#- .-(' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. -./ &&01 , 01' , ' ( / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. * / BY ORDER, - & //TRUE COPY// //$ ! (DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI