TAO BUILDERS & DEVELOPES P. LTD, MUMBAI V. DCIT 3(*2), MUMBAI

ITA 8454/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83499 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 06-08-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 03-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M MURALI
• Assessee Lawyers: K SHIVARAM
• Keywords: Capital asset; Business income; Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI N.K.BILLAIYA, AM, AND SHRI SANJAY GARG, JM ./ I.T.A. NO. 8454/MUM/2010 ( / ASSESSMENT YEAR: 2006-07) T AO BUILDERS & DEVELOPERS PVT. LTD. 142,ATLANTA BUILDING, NARIMAN POINT, MUMBAI-400021 / VS. DY. CIT - 3(3), MUMBAI ./ PAN : AAACT3547N ( / APPELLANT) .. ( / RESPONDENT ) / ASSESSEE BY: SHRI K.SHIVARAM / RESPONDENT BY : SHRI M.MURALI / DATE OF HEARING : 06/08/2014 / DATE OF PRONOUNCEMENT : 06/08/2014 !' / O R D E R PER N.K.BILLAIYA, AM: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF THE LD. CIT(A)-7, MUMBAI, DATED 15/09/2010 PERTAINING TO A. Y. 2006-07. THE GRIEVANCES OF THE ASSESSEE READ AS UNDER: I. THE CIT(A) ERRED IN NOT CONSIDERING THE ADDITIONAL EVIDENCES FILED, WITHOUT GIVING ANY REASONS, AND SUFFICIENT OPPORTUNITY, FOR THE SA ME. II. THE LD. CIT(A) ERRED IN TREATING THE INCOME FROM SA LE OF SURRENDER OF LAND RIGHTS AS INCOME FROM BUSINESS AND PROFESSION, INSTEAD OF LON G CAPITAL GAINS AS PER THE RETURN OF INCOME. III. THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT T HE ASSESSEE HAD ADVANCED MONEY TO THE DIRECTORS OF KHYBER PROPERTIES & INVESTMENT PVT. LTD. TO ACQUIRE SHARES, WHICH WAS FINALLY SETTLED BY GIVING RIGHT OVER A P ROPERTY. HENCE, INCOME ON SALE OF SUCH RIGHT, IS A CAPITAL GAIN AND NOT A BUSINESS IN COME. IV. THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT T HE CONSIDERATION IS RECEIVED ONLY ON RELINQUISHMENT OF THE RIGHT IN THE PROPERTY AND SUCH RIGHT IS AN CAPITAL ASSET AND NOT A BUSINESS ASSET. V. THE LD. CIT(A) ERRED IN TREATING INTEREST INCOME OF RS.1,05,000/- BROKERAGE AND COMMISSION INCOME OF 37,500/-, INCOME FROM BILL OF EXCHANGE OF RS.35,75,000/- AND INCOME FROM LEASE RENTALS OF RS.15,00,000/-, UNDER THE HEAD INCOME FROM OTHER SOURCES INSTEAD OF BUSINESS INCOME AS PER THE RE TURN OF INCOME. ITA NO.8454/MUM/2010 TAO BUILDERS & DEVELOPERS P. LTD. 2 2. AT THE VERY OUTSET, THE COUNSEL FOR THE ASSESSEE STATED THAT THE LD. CIT(A) HAS NOT CONSIDERED THE SUBMISSIONS OF THE AS SESSEE ALONG WITH THE DOCUMENTARY EVIDENCES FILED BEFORE HIM. 3. A PERUSAL OF THE ORDER OF THE CIT(A) SHOWS THAT THERE IS NO REFERENCE TO THE WRITTEN SUBMISSION MADE BY THE ASSESSEE AND ALSO THERE IS NO REFERENCE TO THE DOCUMENTARY EVIDENCES FILED BEFORE THE LD. CIT(A) AS ADDITIONAL EVIDENCE. MATERIAL PLACED BEFORE US SHO WS THAT THE ASSESSEE HAD FILED ADDITIONAL EVIDENCE FROM PAGE 47 TO 361 O F THE PAPER BOOK. BEFORE US, THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT STATING THAT THE LD. CIT(A) DID NOT TAKE THE ADDITIONAL EVIDENCE ON RECORD AND RETURNED THE DOCUMENTS TO THE DIRECTOR. THERE IS ALSO NO REASON GIVEN BY THE CIT(A) FOR REJECTING THESE ADDITIONAL EVIDENCE. 4. IN OUR CONSIDERED OPINION, IN THE INTEREST OF JU STICE AND FAIR PLAY, THE ISSUE BEFORE US NEED TO BE ADJUDICATED BY THE CIT(A ) ON THE BASIS OF DOCUMENTARY EVIDENCES SOUGHT TO BE FILED BY THE ASS ESSEE BEFORE THE CIT(A). WE THEREFORE RESTORE THIS ISSUE TO THE FIL ES OF THE CIT(A). THE CIT(A) IS DIRECTED TO CONSIDER THE SUBMISSIONS AND THE DOC UMENTARY EVIDENCES FILED BY THE ASSESSEE AFTER GIVING A REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE 5. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 06/08/2 014 !' # $ % &! 06/08/2014 , ' ( SD/- (SANJAY GARG) SD/- (N.K.BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER $ ) MUMBAI; &! /DATED : 6 TH AUGUST, 2014. F{X~{TA F{X~{TA F{X~{TA F{X~{TA P.S. P.S. P.S. P.S. ITA NO.8454/MUM/2010 TAO BUILDERS & DEVELOPERS P. LTD. 3 ' # $%&' ('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT- , MUMBAI. 4. * / CIT(A)- , MUMBAI 5. +,' --./ , ./ , $ ) / DR, ITAT, MUMBAI 6. '01 2 / GUARD FILE. ' ) / BY ORDER, + - //TRUE COPY// * / )+ , (DY./ASSTT. REGISTRAR) , $ ) / ITAT, MUMBAI