Mr. Pravin Kikubhai Patel, Vapi V. The ACIT., Cent.Circle-2, Surat

ITSSA 11/AHD/2005

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7570 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 26-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 26-04-2012
• Assessment Year: misc
• Appeal Filed On: 24-01-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D P GUPTA
• Assessee Lawyers: S N DIVATIA
• Keywords: Opportunity of being heard
• Section: 54B; 32; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBE R I.T.A.(SS) NO.11/AHD/2005 BLOCK PERIOD 1.4.1996 TO 17.7.2002 MR. PRAVIN KIKUBHAI PATEL APPELLANT VS. ACIT CENT. CIR.-2, SURAT RESPONDENT APPELLANT BY : SHRI S.N. DIVATIA, A.R. RESPONDENT BY : SHRI D.P. GUPTA, CIT-DR ---------------- DATE OF HEARING : 26.04.2012 DATE OF PRONOUNCEMENT : 26.04.2012 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF LD . CIT(A)- II, AHMEDABAD DATED 08.12.2004. THE ASSESSEE HAS TAKEN SEVEN GROUNDS, HOWEVER, AT THE TIME OF HEARING ONLY FOLLOWI NG GROUNDS WERE PRESSED:- A. ADDITION OF RS.61,90,912/- AS UNDISCLOSED INCOME . WITHOUT PREJUDICE TO ABOVE, THE LD. CIT(A) F AILED TO APPRECIATE THAT THE LAND BELONG TO FATHER AND THE A PPELLANT HAS SOLD THE SAID LAND AS A POWER OF ATTORNEY HOLDER AN D NOT AS A ITA (SS) NO.11/AHD/2005 , BLOCK PERIOD 1.4.96 TO 17.7.2002 2 OWNER HENCE THE SALE CONSIDERATION CAN NOT BE ASSES SED AS UNDISCLOSED INCOME OF THE APPELLANT. THE LD. CIT(A) FAILED TO APPRECIATE THAT THE FATHE R HAS SHOWN THE SALE CONSIDERATION IN HIS INDIVIDUAL RETU RN, HENCE THE SALE CONSIDERATION CANNOT BE ASSESSED AS UNDISCLOSE D INCOME OF THE APPELLANT. B. ENTIRE SALE CONSIDERATION CAN NOT BE ASSESSED. WITHOUT PREJUDICE TO ABOVE THE LD. CIT(A) FAILED T O APPRECIATE THAT THE ENTIRE SALE CONSIDERATION CAN N OT BE ASSESSED AS UNDISCLOSED INCOME OF THE APPELLANT. THE APPELLA NT IS ENTITLED TO COST OF INDEX AS ON 1-4-81 HENCE ASSESSING ENTIRE C ONSIDERATION AS INCOME IS BAD IN LAW. C. WITHOUT PREJUDICE TO ABOVE THE LD. CIT(A) ERRED IN NOT ALLOWING THE CLAIM OF RS.17,01,101/- U/S 54B WITHOU T DISCUSSING THE SAME. 2. BRIEF FACTS OF THE CASE ARE THAT A SEARCH U/S 1 32 OF THE INCOME TAX ACT WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE ON 17 TH JULY, 2002. THE ASSESSEE IS AN INDIVIDUAL AND HIS MAIN SOURCE OF INCOME WAS FROM AGRICULTURE. THE ASSESSEE DOES N OT MAINTAIN REGULAR BOOKS OF ACCOUNTS. DURING THE SEARCH ONE D IARY WAS FOUND AND SAME WAS SEIZED BY THE INVESTIGATION WING. THE STATEMENT OF THE ASSESSEE WAS ALSO RECORDED ON 17 TH JULY, 2002 AND 16 TH SEPTEMBER, 2002 BY ADIT (INV). A NOTICE U/S 158BC WA S ISSUED BY A.O. ON 3 RD FEBRUARY, 2003. IN RESPONSE THE ASSESSEE FILED BLOCK RETURN ON 21 ST JANUARY, 2004 DECLARING UNDISCLOSED INCOME AT NIL. AFTER CONSIDERING THE SEIZED MATERIAL AND THE EXPLANATION OFFERED BY THE ASSESSEE THE A.O. DETERMINED UNDISCLOS ED INCOME OF ASSESSEE OF RS.63,50,930/- WHICH CONSISTED OF (A) U NACCOUNTED ITA (SS) NO.11/AHD/2005 , BLOCK PERIOD 1.4.96 TO 17.7.2002 3 SALE CONSIDERATION OF LAND MEASURING 29764 SQ.FT. AT RS.208 PER SQ.FT. I.E. RS.61,90,912/- AND (B) UNACCOUNTED RENTAL I NCOME OF RS.1,60,020/- VIDE ORDER DATED 30 TH JULY, 2004. THE ENTIRE SALE PRICE HAS BEEN TREATED BY THE A.O. AS INCOME FROM OT HER SOURCE AND EXEMPTION U/S 54B OF THE ACT WAS ALSO DENIED. 3. AGGRIEVED BY THIS ORDER OF THE A.O. ASSESSEE WE NT IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE L D. CIT(A) CONFIRMED THE ORDER OF THE A.O. FURTHER, AGGRIEVED NOW THE ASSESSEE IS IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING LD. COUNSEL OF THE ASSESS EE SUBMITTED THAT THE CIT(A) HAS UPHELD THE ORDER OF T HE A.O. WITHOUT TAKING INTO CONSIDERATION THE EVIDENCE PRODUCED BEF ORE HIM AND WITHOUT PASSING A SPEAKING ORDER ON THE ISSUE RAISE D BY THE ASSESSEE BEFORE HIM. IN SUPPORT OF THIS SUBMISSION HE PLACED RELIANCE ON THE PAPER BOOK FILED BEFORE US TO STATE THAT ALL THESE DOCUMENTS/EVIDENCES WERE FILED BEFORE THE LD. CIT(A ) BUT HE, WITHOUT CONSIDERING THEM, HAS GIVEN VERDICT IN FAVOU R OF THE REVENUE AND AGAINST THE ASSESSEE. HE, THEREFORE, PR AYED THAT MATTER MAY KINDLY BE RESTORED TO THE FILE OF LD. CIT (A) FOR PASSING A FRESH SPEAKING ORDER AFTER TAKING INTO CONSIDERAT ION THE EVIDENCE PRODUCED BY THE ASSESSEE IN SUPPORT OF HIS GROUNDS OF APPEAL ITA (SS) NO.11/AHD/2005 , BLOCK PERIOD 1.4.96 TO 17.7.2002 4 BEFORE HIM. LD. D.R. DID NOT SERIOUSLY OPPOSE THIS S UBMISSION OF LD. COUNSEL OF THE ASSESSEE. THEREFORE, THE MATTER IS RESTORED BACK TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION BY PASSING A SPEAKING ORDER AFTER TAKING INTO CONSIDERATION THE EVIDENCES /DOCUMENTS FILED BY THE ASSESSEE IN SUPPORT OF HIS GROUNDS BEFORE HI M AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE ASSESSEE APPEAL IS ALLOWED FO R STATISTICAL PURPOSE. THIS ORDER PRONOUNCED IN OPEN COURT ON 26/04/2012 . SD/- SD/- (A.K. GARODIA) ( D.K. TYAGI) ACCOUNTANT MEMBER JUD ICIAL MEMBER TRUE COPY N.K. CHAUDHARY, SR. P.S. - 26/04/2012 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. !' / CONCERNED CIT 4. !' - / CIT (A) 5. #$% , & , / DR, ITAT, AHMEDABAD 6. %'( )* / GUARD FILE. BY ORDER/ , + / , & ,