Shyam Bansilal Rajore, Pune V. Assistant Commissioner of Income-tax,

ITA 802/PUN/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9474 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-12-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 22-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUDHANSHU SHEKHAR
• Keywords: Additional evidence; Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 802 /PUN/201 4 / ASSESSMENT YEAR : 20 10 - 11 SHYAM BANSILAL RAJORE, MZSK & ASSOCIATES, CHARTERED ACCOUNTANTS, LEVEL 3, RIVERSIDE BUSINESS BAY, PLOT NO. 84, WELLESLEY ROAD, NEAR RTO, PUNE 411001 PAN : AAZPR9500P ....... / APPELLANT / V S. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 5 , PUNE / RESPONDENT ASSESSEE BY : S HRI NEELESH KHANDELWAL REVENUE BY : S HRI S UDHANSHU SHEKHAR / DATE OF HEARING : 25 - 05 - 2017 / DATE OF PRONOUNCEMENT : 26 - 0 5 - 2017 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - II I , PUNE DATED 21 - 02 - 2014 FOR ASSESSMENT YEAR 2010 - 11. 2 ITA NO . 802/PUN/2014, A.Y. 2010 - 11 2. THE FACTS OF THE CASE AS EMANATING FROM RECORDS ARE: THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 27 - 04 - 2011 DECLARING TOTAL INCOME OF RS.65,96,517/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS AND ACCORDINGLY, NOTICE U/S. 143(2) WAS ISSUED TO THE ASSESSEE ON 03 - 08 - 2012. THE ASSESSEE IN ITS RETURN OF INCOME HAD DECLARED INCOME FROM MEDICAL PROFESSION, CAPITAL GAIN S, AND OTHER SOURCES. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER MADE ADDI TION OF RS.1,60, 34,100/ - UNDER THE HEAD CAPITAL GAINS. AGGRIEVED BY THE ASSESSMENT ORDER DATED 28 - 01 - 2013, THE ASSESSEE PREFERRED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) VIDE IMPUGNED ORDER UPHEL D THE FINDINGS OF ASSESSING OFFICER AND DISMISSED THE APPEAL OF ASSESSEE. NOW, THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL ASSAILING THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN CONFIRMING THE ADDITION. 3. SHRI NEELESH KHANDELWAL AP PEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS CO - OWNER OF LAND COMPRISING IN SURVEY NOS. 17A/1/2 AND 17A/1/3 WANOWARIE, PUNE ADMEASURING 8800 SQ. MTRS. THE ASSESSEE WAS HAVING 1/11 TH SHARE IN THE SAID PROPERTY. THE ASSESSEE ALONG WITH OTHER FAMILY MEMBERS AGREED TO S ELL THE AFORESAID LAND TO M/S. KUMAR BUILDERS FOR A TOTAL CONSIDERATION OF RS. 71 LAKHS . MEMORANDUM OF UNDERSTANDING ( MOU ) WAS EXECUTED ON 18 - 10 - 1985 IN THIS REGARD. DUE TO CONSIDERABLE DELAY ON THE PART OF VENDORS IN COMP LYING WITH THE TERMS AND CONDITIONS OF MOU, THE ASSESSEE ON 24 - 09 - 1990 ENTERED INTO ANOTHER AGREEMENT WITH BUILDER WITH RESPECT TO HIS 1/11 TH SHARE. AS PER THE L A TTER AGREEMENT THE ASSESSEE WAS ENTITLED TO RECEIVE ADDITIONAL CONSIDERATION OF RS.8.00 LAKHS SUBJECT TO ASSESSEE SETTLING THE CLAIMS OF THE TENANTS WITHIN 18 MONTHS AND TO HANDOVER POSSESSION OF PROPERTY WITH CLEAR MARKETABLE 3 ITA NO . 802/PUN/2014, A.Y. 2010 - 11 TITLES AND FREE FROM ALL ENCU MBRANCES. THE FINAL CONVEYANCE DEED OF THE PROPERTY IN FAVOUR OF M/S. KUMAR BUILDERS WAS EXECUTED ON 26 - 05 - 2009. ANOTHER AGREEMENT DATED 17 - 07 - 2009 WAS EXECUTED BETWEEN THE ASSESSEE AND DEVELOPERS. ACCORDING TO THE SAID AGREEMENT , THE ASSESSEE WAS TO DE LIVER VACANT POSSESSION OF THE PREMISES ADMEASURING 4502 SQ. FT. CONSISTING OF 6 ROOMS WHICH WERE IN OCCUPATION OF ASSESSEE AFTER THE EXECUTION OF MOU OF 1985 AND AGREEMENT OF 1990. IN RETURN, THE ASSESSEE RECEIVED 2 SHOPS HAVING BUILT UP AREA OF 4500 SQ. FT. ON THE GROUND FLOOR OF COMMERCIAL COMPLEX FUN - N - SHOP. THE ASSESSEE ARRIVED AT THE SALE CONSIDERATION BY COMPUTING THE COST OF CONSTRUCTION AT RS.2011 PER SQ. FT. FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAINS. AGAINST THE COST OF CONSTRUCTION AR RIVED THUS BY THE ASSESSEE AT RS.90,49,500/ - (RS.2011 X 4500 SQ. FT.) THE ASSESSEE CLAIMED INDEXED COST OF ACQUISITION AT RS.35,64,480/ - AND THEREAFTER ARRIVED AT THE NET CAPITAL GAINS OF RS.54,85,020/ - . THE ASSESSING OFFICER MADE ADDITION OF RS.1,60,34,1 00/ - BEING DIFFERENCE IN COST OF SALE CONSIDERATION AS PER GOVT. VALUATION AT RS.2,50,83,600/ - AND THE VALUATION OF ASSESSEE. THE ASSESSING OFFICER FURTHER MADE ADDITION OF RS.8,00,000/ - IN RESPECT OF ADDITIONAL CONSIDERATION RECEIVED. 4. THE LD. AR OF THE ASSESSEE HAS FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE. THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE ARE CONTAINED IN PAPER BOOK - 2 AND PAPER BOOK - 3 WHICH ARE AS UNDER : SR. NO. PARTICULARS PAGE NO. 1 COPY OF INDEX II FOR SALE OF SHOP/OFFICE ENTERED BY KUMAR BUILDERS WITH THIRD PARTY (VISHAL SAKORE) DTD 29/11/2008. 91 2 COPY OF GENERAL POWER OF ATTORNEY ISSUED IN FAVOUR OF M/S. KUMAR BUILDERS DTD 13/11/1989. 92 - 111 3 COPY OF BANK STATEMENT REFLECTING RECEIPT OF RS.8,00,000/ - FROM M/S. KUMAR BUILDER ON 30/06/2009. 112 4 COPIES OF VOUCHER REFLECTING PAYMENT MADE BY M/S. KUMAR BUILDERS TO RAJORE FAMILY TOWARDS PURCHASE OF PROPERTY. 113 - 116 4 ITA NO . 802/PUN/2014, A.Y. 2010 - 11 PAPER BOOK - 3 SR. NO. PARTICULARS PAGE NO. 4 COPY OF PROCEEDINGS UNDER SECTION 8(4) OF THE ULC ACT, 1976 (AS IS COPY, NOT IN LEGIBLE FORM) 139 - 141 6 COPY OF 7/12 EXTRACT OF LAND SITUATED AT SR. NO. 17A H. NO. 1/2 & 1/3, WANORIE, PUNE IN MARATHI LANGUAGE 146 - 148 5 . SHRI SUDHANSHU SHEKHAR REPRESENTING THE DEPARTMENT VEHEMENTLY SUPPORTED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) AND PRAYED FOR DISMISSING THE APPEAL OF ASSESSEE. 6 . W E HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW . DURING THE COURSE OF ARGUMENTS THE BENCH ENQUIRED FROM BOTH THE SIDES THE FATE OF ASSESSMENTS IN THE CASE OF OTHER SIMILARLY SITUATED CO - OWNERS. THE PROPERTY UNDER QUESTION WAS JOINTLY OWNED BY 11 PERSON S. THE ASSESSEE WAS HAVING 1/11 TH SHARE IN THE SAID PROPERTY. BOTH THE SIDES EXPRESSED THEIR INABILITY TO FURNISH SUCH DETAILS. THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS NOT ON SPEAKING TERMS WITH OTHER FAMILY MEMBERS (CO - OWNERS OF PROPE RTY SOLD) , T HEREFORE, HE IS NOT IN A POSITION TO MAKE A NY STATEMENT AS TO WHETHER SIMILAR ADDITION IS MADE IN THE HANDS OF OTHER CO - OWNERS OR ABOUT THE STATUS OF ASSESSMENTS/APPEALS IN THE CASE OF CO - OWNERS. SIMILARLY, THE LD. DR ALSO EXPRESSED HIS INABIL ITY TO READILY FURNISH THE STATUS REPORT OF ASSESSMENTS MADE IN THE CASE OF OTHER CO - OWNERS. 7 . IN VIEW OF THE FACT THAT INFORMATION REGARDING SIMILAR LY PLACED CO - OWNER S OF THE PROPERTY IS NOT READILY AVAILABLE WITH EITHER OF THE SIDES , WHICH IS VERY VITAL TO HAVE PARITY AND CONSISTENCY ON THE ISSUE, C OUPLED WITH THE FACT THAT THE ASSESSEE HAS FILED SOME DOCUMENTS AS ADDITIONAL EVIDENCES WHICH ARE IMPERATIVE FOR PROPER ADJUDICATION OF THE CASE, WE 5 ITA NO . 802/PUN/2014, A.Y. 2010 - 11 DEEM IT APPROPRIATE TO REMIT THIS FILE BACK TO THE ASSE SSING OFFICER. THE ASSESSING OFFICER SHALL CONSIDER THE DOCUMENTS FILED BY THE ASSESSEE AS ADDITIONAL EVIDENCE AND AFTER CONSIDERING THE FATE OF ASSESSMENTS MADE , IF ANY IN THE CASE OF OTHER CO - OWNERS SHALL DECIDE THE ISSUES RAISED IN THE APPEAL DE NOVO. THE ASSESSING OFFICER WHILE MAKING FRESH ASSESSMENT SHALL GRANT DUE OPPORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDANCE WITH LAW. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON FRIDAY, THE 26 TH DAY OF MAY, 201 7 . SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 26 TH MAY, 2017 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - II I , PUNE 4. / THE CIT - I I I , PUNE 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / ASSISTANT REGISTRAR , , / ITAT, PUNE