Shri Sushilkumar S Nadkarni, Pune V. Income-tax Officer, Pune

ITA 826/PUN/2010

• Counselvise Citation: 82624514 RSA 2010
• Duration Of Justice: 3 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 15-07-2013
• Assessment Year: 2000-2001
• Appeal Filed On: 31-05-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Search and seizure; Loose papers; Opportunity of being heard
• Section: 143(3); 153A; 147; 131; 54; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 826/PN/2010 (ASSESSMENT YEAR : 2000-01) SHRI SUSHILKUMAR S NADKARNI, A-19, SPRING FLOWERS, PANCHWATI, OFF. PASHAN ROAD, PUNE 411 008. PAN : ACPPN8139E . APPELLANT VS. INCOME TAX OFFICER, WARD 4(6), PUNE. . RESPONDENT APPELLANT BY : SHRI SUNIL PATHAK RESPONDENT BY : SHRI A. K. MODI DATE OF HEARING : 11-10-2013 DATE OF PRONOUNCEMENT : 29-11-2013 ORDER PER G. S. PANNU, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, PUNE DATED 30.03.2010 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 04.12.2007 PAS SED BY THE ASSESSING OFFICER, U/S 143(3) R.W.S. 148 OF THE INCOME-TAX AC T, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2000-01. 2. IN THIS APPEAL, THE SUM AND SUBSTANCE OF THE DIS PUTE RAISED BY THE ASSESSEE REVOLVES AROUND AN ADDITION OF RS.25,52,00 0/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNACCOUNTED CONSIDE RATION RECEIVED FROM ONE M/S. MOTTA CONSTRUCTION PVT. LTD. ON ACCOUNT OF SAL E OF LAND AT MATUNGA, MUMBAI. 3. IN BRIEF, THE FACTS ARE THAT ASSESSEE ALONGWITH ANOTHER CO-OWNER HAD TRANSFERRED A PROPERTY AT MATUNGA, MUMBAI IN FAVOUR OF M/S. MOTTA ITA NO. 826/PN/2010 A.Y. 2000-01 CONSTRUCTION PVT. LTD. IN TERMS OF AN AGREEMENT DAT ED 23.12.1999 FOR A STATED CONSIDERATION OF RS.49,50,000/-. THE SHARE OF THE ASSESSEE WAS 50%, WHICH AMOUNTED TO RS.24,75,000/-. A SEARCH AND SEIZURE A CTION U/S 132(1) OF THE ACT WAS CONDUCTED AT VARIOUS PREMISES CONNECTED WIT H A VIJAY GROUP OF CASES IN MUMBAI, AND IN THE COURSE OF WHICH, THE PREMISES AT 1, TARLIKA, GROUND FLOOR, PLOT NO. 216, SIR BALCHANDRA ROAD, MATUNGA, MUMBAI400019 WAS ALSO SEARCHED, WHICH WAS ALSO THE OFFICE OF ONE M/S. N.M . ASSOCIATES, CHARTERED ACCOUNTANTS. FROM SUCH PREMISES, VARIOUS DOCUMENTS AND LOOSE PAPERS BELONGING TO M/S. MOTTA CONSTRUCTION PVT. LTD. WERE FOUND AND SEIZED. SHRI KIRAN H. SHAH, DIRECTOR OF M/S. MOTTA CONSTRUCTION PVT. LTD. WAS EXAMINED BY THE INCOME-TAX AUTHORITIES AT MUMBAI ON 14.10.2005 WITH RESPECT TO THE MATERIAL SO SEIZED. ONE OF THE NOTE-BOOKS SEIZED W AS CONTAINING DETAILS OF PAYMENTS IN CASH OF RS.1,04,50,000/- TO THE ASSESSE E AND THE OTHER CO-OWNER IN RELATION TO THE PROPERTY AT MATUNGA, MUMBAI. TH E SAID INFORMATION, ALONGWITH THE NOTE-BOOK REFLECTING PAYMENTS TO NADK ARNIS, AND ALSO A COPY OF THE STATEMENT OF SHRI KIRAN H. SHAH RECORDED U/S 13 1 OF THE ACT DATED 14.10.2005 WERE RECEIVED BY THE ASSESSING OFFICER O F THE ASSESSEE BEFORE US FROM THE REVENUE AUTHORITIES OF MUMBAI. ON THE BAS IS OF THE AFORESAID INFORMATION AND MATERIAL, ASSESSING OFFICER FORMED A BELIEF THAT ASSESSEE HAD RECEIVED UNACCOUNTED CONSIDERATION OF RS.52,25,000/ - (I.E. 50% SHARE OF RS.1,04,50,000/-) AGAINST THE SALE OF PROPERTY AT M ATUNGA, MUMBAI. ACCORDINGLY, A NOTICE U/S 148 OF THE ACT DATED 27.0 3.2007 WAS ISSUED ON THE GROUND THAT AFORESAID INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. IN RESPONSE, ASSESSEE FURNISHED A RETURN OF INCOME DEC LARING TOTAL INCOME OF RS.50,890/- ON 24.04.2007. IN THE SAID RETURN OF I NCOME, INCOME ON ACCOUNT OF CAPITAL GAIN FROM THE SALE OF PROPERTY AT MATUNG A, MUMBAI WAS DECLARED BY CONSIDERING THE TOTAL CONSIDERATION AT RS.24,75,000 /- (I.E. 50% SHARE OF RS.49,50,000/-) IN TERMS OF THE STATED CONSIDERATIO N CONTAINED IN THE AGREEMENT DATED 23.12.1999 BY WAY OF WHICH THE PROP ERTY WAS TRANSFERRED TO M/S. MOTTA CONSTRUCTION PVT. LTD.. THE ASSESSING O FFICER REQUIRED THE ITA NO. 826/PN/2010 A.Y. 2000-01 ASSESSEE TO EXPLAIN AS TO WHY NOT A FURTHER SUM OF RS.52,25,000/- (I.E. 50% SHARE OF RS.1,04,50,000/-) BE ALSO CONSIDERED AS CO NSIDERATION RECEIVED AGAINST SALE OF PROPERTY WHICH WAS HITHERTO NOT DEC LARED BY THE ASSESSEE BUT THE SAME WAS FOUND TO HAVE BEEN PAID ON THE BASIS O F THE MATERIAL ON RECORD. IN THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE C LAIMED THAT HE HAD NOT RECEIVED ANY CONSIDERATION IN CASH AS STATED BY SHR I KIRAN H. SHAH IN HIS STATEMENT DATED 14.10.2005. THE PLEA OF THE ASSESS EE WAS NOT FOUND ACCEPTABLE IN THE ABSENCE OF ANY EVIDENCE AND THERE FORE, THE CAPITAL GAIN WAS COMPUTED BY CONSIDERING TOTAL CONSIDERATION AT RS.7 7,00,000/- (I.E. RS.24,75,000/- PLUS RS.52,25,000/-) AS AGAINST THE CONSIDERATION OF RS.24,75,000/- ONLY CONSIDERED BY THE ASSESSEE IN T HE RETURN FILED. ACCORDINGLY, THE INCOME FROM CAPITAL GAIN ON SALE O F PROPERTY AT MATUNGA, MUMBAI WAS ASSESSED AT RS.31,13,088/- AFTER ALLOWIN G THE EXEMPTION U/S 54 OF THE ACT, AS CLAIMED BY THE ASSESSEE. 4. THE ASSESSEE UNSUCCESSFULLY CARRIED THE MATTER I N APPEAL BEFORE THE CIT(A), AND ACCORDINGLY HE IS IN APPEAL BEFORE THE TRIBUNAL. 5. IN THE ABOVE BACKGROUND, THE FIRST ISSUE RAISED BY THE ASSESSEE IS THAT THE ASSESSING OFFICER WAS NOT COMPETENT TO ISSUE NO TICE U/S 148 OF THE ACT ON THE BASIS OF THE MATERIAL BEFORE HIM BECAUSE THE CA SE FELL WITHIN THE EXCLUSIVE JURISDICTION OF ASSESSMENT U/S 153C OF THE ACT RELA TING TO ASSESSMENT OF INCOME OF ANY PERSON OTHER THAN THE PERSON SEARCHED U/S 132(1) OF THE ACT. ACCORDING TO THE LEARNED COUNSEL, THE MATERIAL FOUN D IN THE COURSE OF SEARCH AT MUMBAI WAS PASSED ON TO THE ASSESSING OFFICER OF TH E ASSESSEE AND THEREFORE, ON THAT BASIS THE ASSESSING OFFICER OUGH T TO HAVE INITIATED PROCEEDINGS OF ASSESSMENT BY ISSUING NOTICE U/S 153 C OF THE ACT AND NOT U/S 148 OF THE ACT. THE LEARNED COUNSEL HAS FURTHER EM PHASIZED THAT THE SECTION 148 AND SECTION 153C R.W.S. 153A OF THE ACT OPERATE IN DIFFERENT FIELDS, A PROPOSITION WHICH HAS BEEN UPHELD BY THE HONBLE MA DHYA PRADESH HIGH ITA NO. 826/PN/2010 A.Y. 2000-01 COURT IN THE CASE OF RAMBALLABH GUPTA VS. ACIT, (20 07) 288 ITR 347 (MP). IN SUPPORT OF HIS ARGUMENT, THE LEARNED COUNSEL REFERR ED TO THE FOLLOWING EXPRESSION CONTAINED IN SECTION 153C OF THE ACT NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153 TO SAY THAT THE ASSESSING OFFICER HAS NO JURISDICT ION TO ISSUE NOTICE FOR RE-ASSESSMENT IN THE PRESENT CASE U/S 14 8 OF THE ACT SINCE SECTIONS 153C OR 153A OF THE ACT, AS THE CASE MAY BE, DEAL E XCLUSIVELY WITH ASSESSMENTS CONSEQUENT TO A SEARCH U/S 132 OF THE A CT OR A REQUISITION U/S 132A OF THE ACT RESPECTIVELY. 6. ON THE OTHER HAND, THE LEARNED CIT(DR) POINTED O UT THAT THE TEST LAID DOWN IN SECTION 153C OF THE ACT NAMELY, MONEY, BULL ION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THING OR BOOKS OF ACCOUNT OR D OCUMENTS SEIZED IN THE COURSE OF SEARCH SHOULD BELONG TO THE ASSESSEE, I S NOT FULFILLED IN THE PRESENT CASE INASMUCH THE NOTE-BOOK AND THE LOOSE PAPERS RE COVERED DURING THE COURSE OF SEARCH PROCEEDINGS AT MUMBAI BELONGED TO M/S MOTTA CONSTRUCTION LTD. AND DID NOT BELONG TO THE ASSESSEE; AND, THE S EIZED MATERIAL ONLY CONTAINED INFORMATION IN RELATION TO ESCAPEMENT OF INCOME IN THE HANDS OF THE ASSESSEE, WHICH FORMED THE BASIS FOR ISSUING NOTICE U/S 147/148 OF THE ACT. ON THE BASIS OF THE INFORMATION AND THE RECORDINGS IN THE NOTE BOOK OF M/S MOTTA CONSTRUCTION PVT. LTD., IT WAS REVEALED THAT ASSESSEE RECEIVED CONSIDERATION FOR SALE OF PROPERTY WHICH WAS OVER A ND ABOVE THE AMOUNT STATED IN THE AGREEMENT DATED 23.12.1998. THEREFOR E, THE INITIATION OF IMPUGNED ASSESSMENT PROCEEDINGS BY ISSUANCE OF NOTI CE U/S 148 OF THE ACT WAS JUSTIFIED. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. THE FIRST AND FOREMOST ISSUE RAISED BY THE ASSESSEE IS TO THE EFF ECT THAT INITIATION OF ASSESSMENT PROCEEDINGS BY ISSUANCE OF NOTICE U/S 14 8 OF THE ACT IS BAD IN LAW, AND THUS THE ASSESSMENT ORDER PASSED BE DECLARED NU LL AND VOID. THE ITA NO. 826/PN/2010 A.Y. 2000-01 AFORESAID PLEA IS BASED ON AN ARGUMENT TO THE EFFEC T THAT THE CORRECT JURISDICTION FOR THE ASSESSING OFFICER TO MAKE THE RE-ASSESSMENT WAS U/S 153C OF THE ACT AND THEREFORE THE ISSUANCE OF NOTICE U/S 148 OF THE ACT TO EFFECTUATE THE RE-ASSESSMENT IN THE PRESENT CASE IS NOT VALID. IN OUR CONSIDERED OPINION, THE ARGUMENT OF THE ASSESSEE IS QUITE MISPLACED BEC AUSE IN ORDER TO TEST THE VALIDITY OF INITIATION OF PROCEEDINGS BY ISSUANCE O F NOTICE U/S 148 OF THE ACT IN THE PRESENT CASE WHAT IS REQUIRED TO BE EXAMINED IS AS TO WHETHER OR NOT THE NECESSARY INGREDIENTS PRESCRIBED IN SECTION 148 OF THE ACT ARE SATISFIED. WE ARE CONSCIOUS THAT THE ARGUMENT ADVANCED BY THE LEA RNED COUNSEL IS FOUNDED ON AN OBSERVATION OF THE HONBLE MADHYA PRADESH HIG H COURT IN THE CASE OF RAMBALLABH GUPTA (SUPRA). WE WOULD DEAL WITH THE A RGUMENT OF THE LEARNED COUNSEL A LITTLE LATER IN OUR ORDER, BUT FOR THE PR ESENT, WE MAY PROCEED TO EXAMINE AS TO WHETHER THE NECESSARY INGREDIENTS PRE SCRIBED IN SECTION 148 OF THE ACT ARE SATISFIED IN THE PRESENT CASE SO AS TO TEST THE VALIDITY OF THE RE- ASSESSMENT PROCEEDINGS INITIATED BY THE ASSESSING O FFICER TO ASSESS THE ESCAPED INCOME. 8. OSTENSIBLY, THE MATERIAL AND THE INFORMATION WHI CH HAS BEEN RECEIVED BY THE ASSESSING OFFICER FROM HIS COUNTERPARTS IN M UMBAI JUSTIFIES A PRIME- FACIE BELIEF THAT AN INCOME CHARGEABLE TO TAX HAS E SCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT TO THE EXTENT OF THE SALE CONSIDERATION PAID IN CASH TO THE ASSESSEE OVER AND ABOVE WHAT HA S BEEN STATED IN THE SALE AGREEMENT DATED 23.12.1999 WITH RESPECT TO THE SALE OF PROPERTY AT MATUNGA, MUMBAI. IN FACT, IN THE COURSE OF HEARING BEFORE U S, NO PARTICULAR ARGUMENT HAS BEEN RAISED TO THE EFFECT THAT THE INGREDIENTS PRESCRIBED IN SECTION 148 OF THE ACT HAVE NOT BEEN FULFILLED IN THE PRESENT CASE . THEREFORE, IN OUR VIEW, WE FIND NO REASONS TO INVALIDATE THE INITIATION OF RE- ASSESSMENT PROCEEDINGS IN THE PRESENT CASE BY ISSUANCE OF NOTICE U/S 148 OF THE A CT. ITA NO. 826/PN/2010 A.Y. 2000-01 9. NOW, WE MAY ADDRESS THE PLEA OF THE ASSESSEE BAS ED ON THE JUDGMENT OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CAS E OF RAMBALLABH GUPTA (SUPRA). IN THE CASE BEFORE THE HONBLE MADHYA PRA DESH HIGH COURT, A SEARCH WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE, AND CONSEQUENTIALLY NOTICES FOR RE-ASSESSMENT FOR THE SIX YEAR PERIOD I.E. FOR THE ASSESSMENT YEARS 1998- 99 TO 2003-04 WERE ISSUED U/S 153A(1)(A) OF THE ACT . A NOTICE U/S 148 OF THE ACT WAS ALSO ISSUED FOR RE-ASSESSMENT FOR ASSESSMEN T YEAR 1997-98, AS ASSESSING OFFICER WAS OF THE OPINION THAT CERTAIN I NCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. THE ISSUANCE OF NOTICE U/S 148 OF THE ACT FOR ASSESSMENT YEAR 1997-98 WAS CHALLENGED BY WAY OF A WRIT PETITION BEFORE THE HONBLE HIGH COURT CONTENDING THAT IN CASE OF A SEA RCH, THE RE-ASSESSMENT SHOULD ONLY BE MADE FOR PREVIOUS SIX YEARS AS PER T HE REQUIREMENTS OF SECTION 153A OF THE ACT AND IN SUCH CASES OF ASSESSMENT, SE CTION 148 OF THE ACT HAS NO APPLICATION BY VIRTUE OF THE OVER-RIDING EFFECT CONTAINED IN SECTION 153A OF THE ACT. THE HONBLE HIGH COURT DID SAY THAT SECTI ON 148 AND SECTION 153A OF THE ACT OPERATE IN DIFFERENT FIELDS AND SPHERES, AN D IT OPINED THAT IN RESPECT OF THOSE SIX ASSESSMENT YEARS, THE JURISDICTION WOULD EXCLUSIVELY FALL IN SECTION 153A OF THE ACT AND NOT U/S 148 OF THE ACT. THE AS SESSMENT YEAR BEFORE THE HONBLE HIGH COURT WAS OSTENSIBLY PRIOR TO THE SIX ASSESSMENT YEARS REFERRED TO IN SECTION 153A OF THE ACT. FOR THE AFORESAID R EASON NOW THE PLEA OF THE ASSESSEE BEFORE US IS THAT THE IMPUGNED ASSESSMENT YEAR IS WITHIN THE SIX YEARS MENTIONED IN SECTION 153A(1)(B) OF THE ACT AN D THEREFORE, THE IMPUGNED NOTICE OF RE-ASSESSMENT COULD NOT BE ISSUED U/S 148 OF THE ACT. 10. IN OUR CONSIDERED OPINION, THE HONBLE MADHYA P RADESH HIGH COURT WAS CONSIDERING THE CASE OF AN ASSESSEE WHO WAS PUT TO SEARCH U/S 132 OF THE ACT AND THEREFORE IT FELL DIRECTLY IN THE REALM OF SECT ION 153A OF THE ACT, WHEREAS THE CASE BEFORE US IS OF AN ASSESSEE WHO HAS NOT BE EN SEARCHED AND THEREFORE IF AT ALL, IT HAS TO BE ASSESSED U/S 153A OF THE ACT, THE ONLY ROUTE AVAILABLE IS THROUGH THE MECHANISM OF SECTION 153C OF THE ACT. THE BASIS OF ITA NO. 826/PN/2010 A.Y. 2000-01 INVOKING SECTION 153A OF THE ACT IN THE CASE OF A P ERSON SEARCHED AND IN THE CASE OF ANY ANOTHER PERSON ARE FOUNDED ON DIFFERENT PRESCRIPTIONS. IN THE CASE OF THE FORMER, INVOKING OF SECTION 153A OF THE ACT IS SATISFIED ON INITIATION OF A SEARCH U/S 132 OF THE ACT OR REQUISITION U/S 132A O F THE ACT WHEREAS, IN THE CASE OF ANY OTHER PERSON I.E. A PERSON WHO IS NOT P UT TO SEARCH U/S 132(1) OF THE ACT OR A REQUISITION U/S 132A OF THE ACT, THE R EQUIREMENTS CONTAINED IN SECTION 153C OF THE ACT HAVE TO BE SATISFIED SO AS TO ENABLE THE ASSESSING OFFICER TO MAKE AN ASSESSMENT OR RE-ASSESSMENT U/S 153A OF THE ACT. THEREFORE, THE AFORESAID DISTINCTION HAS TO BE KEPT IN MIND BEFORE APPRECIATING THE IMPORT OF THE OBSERVATIONS MADE BY THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF RAMBALLABH GUPTA (SUPRA). THE ASSESSEE BEFORE THE HONBLE HIGH COURT WAS PUT TO SEARCH WHEREAS THE AS SESSEE BEFORE US HAS NOT BEEN PUT TO ANY SEARCH ACTION. HENCE, WE ARE UNABL E TO HOLD THAT THE RATIO OF THE JUDGMENT OF THE HONBLE MADHYA PRADESH HIGH COU RT IN THE CASE OF RAMBALLABH GUPTA (SUPRA) HELPS THE CASE OF THE ASSE SSEE TO DEMONSTRATE THE INVALIDITY OF THE INITIATION OF RE-ASSESSMENT PROCE EDINGS BY ISSUANCE OF NOTICE U/S 148 OF THE ACT IN THE PRESENT CASE. 11. APART FROM THE AFORESAID, THE OTHER PLEA OF THE ASSESSEE IS WITH REGARD TO THE QUANTUM OF ADDITION MADE BY THE ASSESSING OF FICER ON ACCOUNT OF UNACCOUNTED CONSIDERATION. ON THIS ASPECT, THE LEA RNED COUNSEL SUBMITTED THAT EVEN IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD POINTED OUT THROUGH A LETTER DATED 03.12.2007 THAT THE STAT EMENT BY SHRI KIRAN H. SHAH, DIRECTOR OF M/S MOTTA CONSTRUCTION PVT. LTD. HAS BEEN RETRACTED AND THAT THE POSITION BE ASCERTAINED FROM THE ASSESSING OFFI CER AT MUMBAI IN THE CASE OF THE BUYER. BEFORE US, IT IS FURTHER POINTED OUT THAT THE STATEMENT OF SHRI KIRAN H. SHAH, DIRECTOR OF THE BUYER COMPANY HAS BE EN USED AGAINST THE ASSESSEE WITHOUT PROVIDING ANY OPPORTUNITY OF CROSS -EXAMINING THE PERSON. AT THE TIME OF HEARING, THE ASSESSEE ALSO FURNISHED AN ASSESSMENT ORDER OF M/S. MOTTA CONSTRUCTION PVT. LTD. FOR ASSESSMENT YEAR 20 00-01 PASSED U/S 143A(II) ITA NO. 826/PN/2010 A.Y. 2000-01 R.W.S. 153A OF THE ACT DATED 04.05.2007 WHEREIN THE CORRESPONDING EXPENDITURE ON ACCOUNT OF UNEXPLAINED PAYMENT TO TH E ASSESSEE HAS BEEN ASSESSED AND DETERMINED AT MUCH LESS THAN THE AMOUN T OF RS. 1,04,50,000/-, CONSIDERED IN THE HANDS OF THE ASSESSEE AND THE CO- OWNER AS UNACCOUNTED RECEIPT FROM THE BUYER, M/S MOTTA CONSTRUCTION PVT. LTD.. 12. ON THIS ASPECT, WE FIND AMPLE JUSTIFICATION FOR THE PLEA SET-UP BY THE ASSESSEE. THERE CANNOT BE A DISPUTE TO THE PROPOSI TION THAT THE ADDITION IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNACCOUNTED CON SIDERATION AGAINST SALE OF MATUNGA PROPERTY SHOULD CORRESPOND TO WHAT IS CO NSIDERED IN THE HANDS OF THE BUYER I.E. M/S. MOTTA CONSTRUCTION PVT. LTD. AS CONSIDERATION PAID TO THE ASSESSEE. THE COPY OF THE ASSESSMENT ORDER DATED 0 4.05.2007 (SUPRA) IN THE CASE OF M/S MOTTA CONSTRUCTION PVT. LTD. FOR ASSESS MENT YEAR 2000-01 DOES INDICATE A DIFFERENCE IN THE AMOUNT ASSESSED AS UNE XPLAINED COST/EXPENDITURE AND THE UNACCOUNTED CONSIDERATION THAT HAS BEEN ASS ESSED IN THE HANDS OF THE ASSESSEE BEFORE US. THEREFORE, WE DEEM IT FIT AND PROPER TO SET-ASIDE THIS ASPECT BACK TO THE FILE OF THE ASSESSING OFFICER WH O SHALL RE-COMPUTE THE INCOME FROM SALE OF MATUNGA PROPERTY IN CONFORMITY WITH THE AMOUNT OF SALE CONSIDERATION CONSIDERED IN THE HANDS OF THE BUYER I.E. M/S. MOTTA CONSTRUCTION PVT. LTD. . NEEDLESS TO SAY, WHILE CARRYING OUT THE AFORESAID EXERCISE, THE ASSESSING OFFICER SHALL ALLOW THE ASS ESSEE A REASONABLE OPPORTUNITY OF BEING HEARD AND ONLY THEREAFTER HE S HALL RE-DETERMINE THE TOTAL INCOME AS PER LAW. 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH NOVEMBER, 2013. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED : 29 TH NOVEMBER, 2013 SUJEET ITA NO. 826/PN/2010 A.Y. 2000-01 COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, PUNE; 4) THE CIT-II, PUNE; 5) THE DR, B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE