Suresh Keshav Wani, Aurangabad V. Income-tax Officer, Ward - 1(4), Aurangabad

ITA 782/PUN/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6295 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 02-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH R PARDESHI
• Assessee Lawyers: K SRINIVASAN
• Keywords: Principle of natural justice; Cost of acquisition; Condonation of delay; Set aside; Capital Gains
• Section: 143(3); 142(1); 147; 148; 144

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER . / ITA NO.782/PUN/2018 / ASSESSMENT YEAR : 2005-06 SURESH KESHAV WANI, HIWARKHEDA ROAD, TALUKA KANNAD, DIST. AURANGABAD 431103. PAN : BGZPA2253B. . / APPELLANT V/S THE INCOME TAX OFFICER, WARD 1(4), AURANGABAD. . / RESPONDENT ASSESSEE BY : SHRI K. SRINIVASAN. REVENUE BY : SHRI DINESH R. PARDESHI. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY ASSESSEE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) 1, AURANGABAD DATED 14.09.2016 FOR A.Y. 2005-06. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RE CORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL. IN THIS CASE, ASSESSEE DID NOT FILE THE RETURN OF INCOME FOR A.Y. 2005-06 AND NOT PAID ANY CAPITAL GAIN TAX THOUGH HE SOLD THE LAND AT GUT NO./SURVEY 38 OF MOUZE K ANNAD, TQ. KANNAD, DIST. AURANGABAD AT RS.6,10,000/-. NOTICE U/S 148 OF THE / DATE OF HEARING : 11.09.2019 / DATE OF PRONOUNCEMENT: 09.10.2019 2 ACT WAS ISSUED ON 28.03.2012 AND SERVED ON ASSESSEE. N OTICE U/S 142(1) OF THE ACT WAS ISSUED ON 10.08.2012 ALONG WITH QUEST IONNAIRE. THEREAFTER, CASE WAS SELECTED FOR SCRUTINY AND ASSESSM ENT WAS FRAMED U/S 144 R.W.S. 148 OF THE ACT VIDE ORDER DATED 18.03.20 13 AND THE TOTAL INCOME WAS DETERMINED AT RS.6,10,000/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VID E ORDER DATED 14.09.2016 (IN APPEAL NO.ABD/CIT(A)/175/2013-14/ DAT ED 26.04.2013) DISMISSED THE APPEAL OF ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL AND HAS RAISED THE FOLLOWING GROUNDS : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSING OFFICER ERRED IN LAW IN PASSING ORDER U/S 147 R.W.S. 143(3) AND THE SAME MAY BE QUASHED AS NULL AND VOID AND CIT(A)S ORDER CONF IRMING IT SET ASIDE AS BAD IN LAW.. 2. THE ASSESSING OFFICER ERRED IN I) ASSUMING JURISDICTION U/S 148 OF THE I.T. ACT, 1961 . II) PASSING ASSESSMENT ORDER U/S 143(3) OF THE I.T. ACT , 1961. III) DETERMINING INCOME AT RS.610000/- WITHOUT CONSIDERI NG THE PURCHASE COST AND DEVELOPMENT EXPENSES OF THE A SSET SOLD AND THEREFORE THE SAME MAY BE HELD AS BAD IN L AW AB INITIO. 3. APPELLANT CONTENDS ON MERITS NO ADDITIONS IS WAR RANTED. 3. ALL THE GROUNDS BEING INTER-CONNECTED ARE CONSIDERED TOGETHE R. 4. BEFORE ME, LD.A.R. AT THE OUTSET, SUBMITTED THAT THERE IS DELAY OF 519 DAYS IN FILING THE PRESENT APPEAL. HE SUBMITTED SWORN AFFIDAVIT OF ASSESSEE WHEREIN THE REASONS FOR DELAY IS EXPLAINED AND SUBMITTED THAT THE DELAY IS NOT INTENTIONAL AND THEREFORE PRAYED THAT TH E DELAY OF 519 DAYS BE CONDONED. LD.D.R. DID NOT SERIOUSLY OBJECT TO T HE PRAYER OF CONDONATION. 3 5. ON THE ISSUE OF CONDONATION OF DELAY OF APPEAL, I HAVE G ONE THROUGH THE SWORN AFFIDAVIT FILED BY THE ASSESSEE AND HEA RD THE LD.A.R. AFTER CONSIDERING THE REASONS STATED IN THE AFFIDAVIT, I AM OF THE VIEW THAT THE DELAY IN FILING THE APPEAL HAS BEEN SATISFACTORILY EXPLAINED. IN VIEW OF THESE FACTS, I CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 6. AO ON THE BASIS OF CIB INFORMATION, NOTICED THAT ASSESSE E HAD SOLD LAND AT GUT NO./SURVEY 38 OF MOUZE KANNAD, TQ. KANNA D, DIST. AURANGABAD FOR RS.6,10,000/- ON 08.10.2004. AO NOTICED TH AT DESPITE SERVICE OF NOTICE U/S 142(1) OF THE ACT, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY DETAILS WERE FILED. HE HAS ALSO NOTED TH AT ASSESSEE DID NOT FILE ANY COPY OF PURCHASE AGREEMENT, BILLS/VOUCHERS TO SHOW THE DATE OF ACQUISITION OR COST OF ACQUISITION. AS THE ASSESSEE FAILED TO PROVE THE SOURCES OF INVESTMENTS, AO TREATED THE SAME AS UNEXPLAINED AND ACCORDINGLY MADE ADDITION OF RS.6,10,000/- ON ACCOUNT OF CAPITAL GAIN TAX. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO UPHELD THE ORDER OF AO. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL. 7. BEFORE ME, LD.A.R. SUBMITTED THAT LD.CIT(A) HAS PASSED A N EX- PARTE ORDER AND NOT ON MERITS. LD.A.R. FURTHER SUBMITTED THAT THE TOTAL EXPENSES FOR ACQUISITION OF PROPERTY WAS WORKED OUT TO RS.1,60,000/- AND IF INDEXED COST OF ACQUISITION IS WORKED OUT, THEN THE INDEXED COST OF ACQUISITION WORKS OUT TO RS.5,49,000/- AND THE INDEXED C OST AND EXPENSES WORK OUT TO MORE THAN THE SALE CONSIDERATION AND THEREFORE ASSESSEE WILL NOT BE LIABLE FOR ANY CAPITAL GAINS. HE FURTHER SUBMITTED THAT ASSESSEE COULD NOT APPEAR BEFORE THE LOWER AUTHORITIES AND D ID NOT 4 PRODUCE THE PURCHASE AGREEMENT AND ALSO THE BILLS/VOUCH ERS TO PROVE THE EXPENSES INCURRED FOR THE CONSTRUCTION AND THAT IF GIVEN A CHANCE, ASSESSEE UNDERTAKES TO APPEAR BEFORE LOWER AUTHORITIES AND FURNISH ALL THE REQUIRED DETAILS TO SUBSTANTIATE HIS CASE. HE THERE FORE SUBMITTED THAT ASSESSEE BE GRANTED ONE MORE OPPORTUNITY TO EXP LAIN HIS CASE. LD.D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF AO AND LD.CIT(A) AND OBJECTED TO LD.A.R.S PRAYER FOR 2 ND INNINGS. 8. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO ADDITION OF RS.6,10,000/- ON ACCOUNT OF CAPITAL GAIN TAX. BEFORE ME, IT IS ASSESSEES CONTENTION THAT IF THE INDEXED COST OF ACQUISIT ION AND THE OTHER EXPENSES ARE CONSIDERED THEN THE ASSESSEE WILL NO T BE LIABLE FOR ANY CAPITAL GAINS. I FIND THAT THIS ASPECT HAS NOT BEEN D EALT WITH BY THE LOWER AUTHORITIES AS THEY HAVE PASSED EX-PARTE ORD ERS. I N VIEW OF THE WELL SETTLED PRINCIPLE OF NATURAL JUSTICE THAT SUFFICIENT O PPORTUNITY OF HEARING SHOULD BE AFFORDED TO THE PARTIES AND NO PARTY SHOULD BE CONDEMNED UNHEARD, I AM OF THE VIEW THAT ONE MORE OPPO RTUNITY BE GRANTED TO THE ASSESSEE TO PRESENT HIS CASE BEFORE TH E LOWER AUTHORITIES. I THEREFORE RESTORE THE MATTER BACK TO TH E FILE OF AO TO DECIDE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. NEEDLES S TO STATE THAT AO SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO T HE ASSESSEE. ASSESSEE IS ALSO DIRECTED TO PROMPTLY FURNISH ALL THE DETA ILS CALLED FOR BY THE AUTHORITIES. IN VIEW OF MY DECISION TO RESTORE THE ISSUE TO THE FILE OF AO, I AM NOT ADJUDICATING ON MERITS THE GROUNDS O F THE APPEAL RAISED BY THE ASSESSEE. THUS, THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 9 TH DAY OF OCTOBER, 2019. /- SD/- ( ANIL CHATURVEDI ) / ACCOUNTANT MEMBER PUNE; DATED : 9 TH OCTOBER, 2019. YAMINI #$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-1, AURANGABAD. PR. CIT-1, AURANGABAD. '#$ %%&',) &', *+ / DR, ITAT, SMC PUNE; $-.// GUARD FILE. / BY ORDER // TRUE COPY // 012%3&4 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.