Shaikh Javed Shaik Ibrahim, Jalna V. Income-tax Officer,

ITA 805/PUN/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4090 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-02-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 01-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJEEV GHEI
• Keywords: Deemed to accrue or arise in india; Additional evidence; Cost of acquisition; Reasonable cause; Fair market value
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI VIKAS AWASTHY, JM . / ITA NO . 805 /P U N/201 5 / ASSESSMENT YEAR : 20 08 - 09 MR. SHAIKH JAVED SHAIKH IBRAHIM, L/H. OF LATE MR. SHAIKH IBRAHIM ABDUL WAHED SHAIKH, BEHIND SARGAM DHABA, RING ROAD, KHARPUDI ROAD, JALNA 431203 PAN : CGQPS2139L ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 1(3), JALNA / RESPONDENT ASSESSEE BY : S HRI M.K. KULKARNI REVENUE BY : S HRI SANJEEV GHEI / DATE OF HEARING : 05 - 02 - 2019 / DATE OF PRONOUNCEMENT : 07 - 02 - 2019 / ORDER PER VIKAS AWASTHY, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 1, AURANGABAD DATED 31 - 03 - 2015 FOR THE ASSESSMENT YEAR 2008 - 09. 2 ITA NO .805/PUN/2015, A.Y. 2008 - 09 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE : THE FATHER OF THE ASSESSEE SHAIKH ABRAHIM ABDUL WAHED HAD SOLD ANCESTR AL AGRICULTURAL LAND COMPRISING IN SURVEY NO. 270, MANTHA BYE - PASS, JALNA ADMEASURING 1 HECTOR 10 R FOR A CONSIDERATION OF RS.15,00,000/ - VIDE SALE DEED NO. 1669/2007 DATED 08 - 05 - 2007. THE SAID LAND FALLS WITHIN THE MUNICIPAL LIMITS OF JALNA. THE FATHER OF THE ASSESSEE DIED ON 26 - 05 - 2012. NEITHER THE FATHER OF ASSESSEE NOR HIS LEGAL HEIRS INCLUDING THE PRESENT ASSESSEE FILED ANY RETURN OF INCOME DISCLOSING CAPITAL GAIN ON SALE OF LAND. CONSEQUENTLY, NOTICE U/S. 148 O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT ) WAS ISSUED TO THE ASSESSEE. THE ASSESSEE IN RESPONSE TO SAID NOTICE FILED RETURN OF INCOME DISCLOSING LONG TERM CAPITAL GAIN OF RS.2,83,337/ - . THE ASSESSING OFFICER IN ASSESSMENT PROCEEDINGS DID NOT AGREE WITH THE LONG TERM CAPITAL GAIN DISC LOSED BY THE ASSESSEE AND DETERMINED LONG TERM CAPITAL GAIN AT RS.88,68,120/ - . AGGRIEVED BY THE ASSESSMENT ORDER DATED 19 - 03 - 2013 PASSED U/S. 143(3) R.W.S. 147 OF THE ACT, THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) INTER A LIA CHALLENGING LONG TERM CAPITAL GAIN COMPUTED BY THE ASSESSING OFFICER. THE COMMISSIONER OF INCOME TAX (APPEALS) GRANTED PART RELIEF TO THE ASSESSEE BY RE DETERMINING THE COST OF ACQUISITION OF LAND AT RS.1,10,000/ - AS ON 01 - 04 - 1981 . THE ASSESSING OFFIC ER HAD HELD THE FAIR MARKET VALUE OF THE LAND AS ON 01 - 04 - 1981 AT RS. 8 8 ,000/ - AS AGAINST RS. 15,35,000/ - ADOPTED BY THE ASSESSEE. STILL AGGRIEVED , THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL ASSAILING THE ORDER OF COMMISSIONER OF INCOME TAX (AP PEALS) ON FOLLOWING GROUNDS : 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(APPEALS) HAS ERRED IN CONSIDERING THE ASSESSEE AS ONLY LEGAL HEIR OF DECEASED WHERE AS OTHER SIX LEGAL HEIRS INCLUDING FIRST LEGAL HEIR I.E. WIFE OF THE DECEASED BEING ALIVE. 3 ITA NO .805/PUN/2015, A.Y. 2008 - 09 2. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(APPEALS) HAS ERRED IN IGNORING THE JURISDICTION OF ASSESSING OFFICER PASSING THE ORDER UNDER SECTION 143(3)R.W.S147. 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(APPEALS) HAS ERRED IN SUSTAINING THE DISALLOWANCES OF RS.6,91,113/ - MADE BY THE LEARNED AO, TOWARDS COST OF IMPROVEMENT. 4. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT (APPEALS) HAS ERRED IN - ADDING THE DEEMED INCOME IN THE HANDS OF LEGAL HEIR WHEREAS AS PER MOHAMMADIAN LAW ONE HAS NO RIGHT IN ANCESTRAL PROPERTY UNTIL AND UNLESS IT IS BEQUEATHED BY HIS PREDECESSOR WHO IN TURN CAN ONLY BECOME THE OWNER AFTER SOMETHING REMAINS IN RESIDUE. 5. T HE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, SUBSTITUTE, MODIFY THE ABOVE GROUNDS OF APPEAL, IF NECESSARY ON THE BASIS OF WRITTEN SUBMISSIONS AND PERSONAL PRESENTATION TO BE MADE AT THE TIME OF HEARING. 3. SHRI M.K. KULKARNI APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS RAISING ADDITIONAL GROUND AND FILING ADDITIONAL EVIDENCE TO CONTEND THAT THE ACQUISITION VALUE OF THE LAND WAS NIL. THE LD. COUNSEL SUBMITTED THAT THE LAND WAS CONFERRED ON THE GRANDFATHER OF THE ASSESSEE THROU GH SANAD . S INCE , THE LAND WAS INAAM LAND THERE IS NO COST OF ACQUISITION OF LAND. THE LD. COUNSEL FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE SUPPORTED BY AN AFFIDAVIT. THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE COULD NOT PLACED SANAD DOC UMENTS ON RECORD AS THE SAME WERE NOT TRACEABLE AT THE TIME OF PROCEEDINGS BEFORE AUTHORITIES BELOW . A FTER THE DEATH OF THE FATHER OF THE ASSESSEE , T HE ASSESSEE HAD NO CLUE AND DOCUMENTARY EVIDENCE TO SHOW THAT THE LAND IN QUESTION IS IN A AM LAND. NOW, THE ASSESSEE HAS BEEN ABLE TO LOCATE DOCUMENTS TO SHOW THAT THE LAND WAS CONFERRED ON THE ANCEST ORS OF ASSESSEE AS SANAD FOR DISTINGUISH ED SERVICES. THE LD. COUNSEL REFERRED TO COPY OF SANAD FROM INDIAN SOLDIERS BOARD DATED 22 ND JULY, 1939 AN D COPY OF SANAD CONFERRING TILE OF KHAN SAHIB DATED 1 ST JANUARY, 1932 ON SUBADAR - MAJOR SHAIKH DADE HAYAT AT PAGES 10 AN D 11, RESPECTIVELY OF THE PAPER BOOK. THE LD. COUNSEL 4 ITA NO .805/PUN/2015, A.Y. 2008 - 09 SUBMITTED THAT THE ADDITIONAL DOCUMENTS ARE ESSENTIAL FOR CONSIDERATION AS THEY HA VE SUBSTANTIAL BEARING ON COMPUTATION OF LONG TERM CAPITAL GAIN TAX LIABILITY. 4. SHRI SANJEEV GHEI REPRESENTING THE DEPARTMENT DEFENDED THE IMPUGNED ORDER. THE LD. DR VEHEMENTLY OPPOSED THE ADMISSION OF ADDITIONAL EVIDENCE. THE LD. DR SUBMITTE D THAT THE ASSESSEE HA D SUFFICIENT OPPORTUNITY TO FURNISH ALL THE DOCUMENTS IN SUPPORT OF HIS CONTENTIONS. NOW, THE ASSESSEE IS MAKING A NEW CASE BY CLAIMING COST OF ACQUISITION OF LAND AS NIL. 5. BOTH SIDES HEARD. ORDERS OF THE AUTHORITIES BELOW PE RUSED. THE ASSESSEE HAS FILED ADDITIONAL EVIDENCE AND ADDITIONAL GROUND OF APPEAL. THE ADDITIONAL EVIDENCE S FILED BY THE ASSESSEE ARE : I . COPY OF SANAD FROM INDIAN SOLDIERS BOARD. II . COPY OF SANAD CONFERRING TITLE OF KHAN SAHIB ON THE GRANDFATHER OF THE ASSE SSEE. THE ADDITIONAL GROUND OF APPEAL RAISED BY THE ASSESSEE READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. A.O. WAS NOT JUSTIFIED AND LD. CIT(A) IN CONFIRMING THE CAPITAL GAIN IN THE HANDS OF L/H OF THE DECEASED IN THE ABSENCE OF ANY COST OF ACQUISITION AS IT WAS RECEIVED BY ANCESTRALS OF THE DECEASED AS INAM FOR GOOD WORK DONE AS 'SUBHEDAR' IN THE SERVICE OF THE THEN NIZAM RULERS. THE EVIDENCE IS SUBMITTED. 6. THE ASSESSEE HAS FILED AFFIDAVIT CITING REASONS FOR NOT FILING THE ABOVE SAID SANAD DOCUMENTS BEFORE THE AUTHORITIES BELOW. AFTER PERUSAL OF THE AFFIDAVIT WE ARE SATISFIED THAT THE ASSESSEE HAD REASONABLE CAUSE FOR NOT FURNISHING THE SAID DOCUMENTS BEFORE THE ASSESSING OFFICER OR THE COM MISSIONER OF INCOME TAX (APPEALS). THEREFORE, THE ADDITIONAL 5 ITA NO .805/PUN/2015, A.Y. 2008 - 09 DOCUMENTS AS MENTIONED ABOVE ARE ADMITTED AS ADDITIONAL EVIDENCE. HOWEVER, VERACITY OF THE ADDITIONAL DOCUMENTS FILED BY THE ASSESSEE NEEDS VERIFICATION. IF THE ADDITIONAL DOCUMENTS ARE FOUND TO BE GENUINE THEY WOULD CHANGE THE ENTIRE MATRIX OF CASE . THEREFORE, WE ARE OF CONSIDERED VIEW THAT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE ALONG WITH ADDITIONAL DOCUMENTARY EVIDENCES NEEDS VISIT TO THE FILE OF ASSESSING OFFICER. THE ASSESSING OFFI CER SHALL VERIFY THE GENUINENESS OF DOCUMENTS FILED AS ADDITIONAL EVIDENCE. IF THE CLAIM OF ASSESSEE IS FOUND TO BE GENUINE THE ASSESSING OFFICER SHALL RECOMPUTE CAPITAL GAINS AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDANC E WITH LAW. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THURSDAY, THE 07 TH DAY OF FEBRUARY, 201 9 . SD/ - SD/ - ( R.S. SYAL ) (VIKAS AWASTHY) VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 07 TH FEBRUARY, 2019 . RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 1, AURANGABAD 4. THE PR. COMMISSIONER OF INCOME TAX - 1, AURANGABAD 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / / / / TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE