Shri Hitesh Bhupendrabhai Patel, Anand V. The ACIT, Anand Circle, Anand

ITSSA 11/AHD/2014

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3327 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 07-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R I PATEL
• Assessee Lawyers: A L THAKKAR
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Business income; Opportunity of being heard; Additional evidence
• Section: 143(3); 50C; 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI S. S. GODARA, JUDICIAL MEMBER) IT(SS)A. NO: 11/AHD/2014 (ASSESSMENT YEAR: 2009-10) SHRI HITESH BHUPENDRABHAI PATEL, 5, PATEL COLONY, NR. PIONEER SCHOOL, ANAND-388001 V/S THE ACIT, ANAND CIRCLE, ANAND. (APPELLANT) (RESPONDENT) PAN: AEPPP4893R APPELLANT BY : SHRI A. L. THAKKAR, AR RESPONDENT BY : SHRI R. I. PATEL, CIT/D.R. ( )/ ORDER DATE OF HEARING : 25 -07-201 7 DATE OF PRONOUNCEMENT : 27-07-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)- IV, BARODA DATED 21.10.2013 PERTAINING TO A.Y. 2009 -10. IT(SS)A NO. 11/AHD/2014 . A.Y. 2009-10 2 2. THE GRIEVANCE OF THE ASSESSEE IS TWOFOLD. FIRSTLY, THE ASSESSEE IS AGGRIEVED BY THE ADDITION OF RS. 2,70,400/- MADE U/S. 50C OF THE ACT AND SECONDLY, THE ASSESSEE IS FURTHER AGGRIEVED BY THE ADDITION OF RS. 3,35,9 00/- MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN LAND. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT SEARC H AND SEIZURE OPERATION U/S. 132 OF THE ACT WAS CARRIED OUT ON 10.09.2009. PURSU ANT TO THE SEARCH OPERATION, A NOTICE U/S. 153A OF THE ACT WAS ISSUED ON 16.11.2 011 WHICH WAS SERVED UPON THE ASSESSEE ON 18.11.2011. IN RESPONSE TO THE NOTI CE U/S. 153A, RETURN OF INCOME WAS FILED ON 08.12.2011. ACCORDINGLY, STATUT ORY NOTICES WERE ISSUED AND SERVED UPON THE ASSESSEE AND THE ASSESSMENT ORDER W AS FRAMED U/S. 153A R.W.S. 143(3) OF THE ACT VIDE ORDER DATED 30.12.2011. 4. THE LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY STATED THAT THE ASSESSEE WAS NOT GIVEN SUFFICIENT OPPORTUNITY TO FURNISH RELATED/REL EVANT DOCUMENTARY EVIDENCES DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS AND THE FIRST APPELLATE AUTHORITY DECLINE TO ENTERTAIN THE ADMISSION OF THE ADDITIONAL EVIDENCES. IT IS THE SAY OF THE LD. COUNSEL THAT THE ASSESSEE WAS PR EVENTED BY REASONABLE AND SUFFICIENT CAUSE FOR NOT FURNISHING THE DOCUMENTARY EVIDENCES BEFORE THE LOWER AUTHORITIES. 5. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE FAC TUAL MATRIX AT THE TIME OF THE ASSESSMENT PROCEEDINGS, IN OUR CONSIDERED OPINI ON, THE TIME TAKEN FROM THE DATE OF FILING OF THE RETURN OF THE COMPLETION OF T HE ASSESSMENT WAS ONLY 22 DAYS AND ONE OF THE CO-OWNER OF THE PROPERTY NAMELY SHRI RAJESH PATEL IS AN NRI AND WAS NOT EASILY ACCESSIBLE ON ACCOUNT OF GEO GRAPHICAL DISTANCES. IT(SS)A NO. 11/AHD/2014 . A.Y. 2009-10 3 6. CONSIDERING THAT THE ASSESSEE HAD REASONABLE AND SU FFICIENT CAUSE FOR NOT FURNISHING THE RELEVANT DOCUMENTARY EVIDENCES BEFOR E THE ASSESSING OFFICER, THE FIRST APPELLATE AUTHORITY SHOULD HAVE ENTERTAIN ED THE ADDITIONAL EVIDENCES. 7. IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE ADMIT THE ADDITIONAL EVIDENCES AND RESTORE THE ISSUE TO THE FILES OF THE A.O. THE ASSE SSEE IS DIRECTED TO FURNISH THE DOCUMENTARY EVIDENCES BEFORE THE ASSESSING OFFICER AND THE A.O. IS DIRECTED TO DECIDE THE ISSUE AFRESH IN THE LIGHT OF THE DOCU MENTARY EVIDENCES AND AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. 8. SINCE, WE HAVE RESTORED THE ISSUE TO THE FILES OF T HE A.O., IT WOULD BE BETTER FOR THE A.O. TO CONSIDER THE OBJECTION OF THE ASSESSEE RELATING TO THE TREATMENT OF BUSINESS INCOME AS SHORT TERM CAPITAL GAINS. SINCE, THE NATURE OF BUSINESS OF THE ASSESSEE HAS BEEN ACCEPTED TO BE THAT OF A LAND DEV ELOPER AND A BROKER, THE A.O. IS DIRECTED TO CONSIDER THIS ISSUE BEFORE APPL YING THE PROVISIONS OF SECTION 50C OF THE ACT. 9. WITH THE ABOVE DIRECTIONS, WE SET ASIDE THE ISSUE T O THE FILES OF THE A.O. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 27 - 07- 201 7 SD/- SD/- (S. S. GODARA) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 27/07/2017 IT(SS)A NO. 11/AHD/2014 . A.Y. 2009-10 4 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD