Shri Devendra G. Pasale, Baroda V. The Deputy Commissioner of Income Tax, Central Circle-5, Baroda

ITSSA 215/AHD/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4069 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 11-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 15-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 143(3); 153A; 201; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER DEVENDRA G. PASALE, UPENDRACHARYA ASHRAM COMPOUND, OPP: JALARAM HIGH SCHOOL, KARELIBAUG, BARODA - 390018 PAN: AGTPP8714B (APPELLANT) VS THE D CIT, CIRCLE - 5 , BARODA (RESPONDENT) REVENUE BY : S H RI ANSHU PRAKASH , CI T - D . R. ASSESSEE BY: SHRI MUKUND BAKSHI, A.R. DATE OF HEARING : 28 - 01 - 2 019 DATE OF PRONOUNCEMENT : 11 - 03 - 2 019 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEM BER : - THIS ASSESSEE S APPEAL FOR A.Y. 2005 - 06 , ARI SES FROM ORDER OF THE CIT(A) - 1, VADODARA DATED 10 - 05 - 2 016 , IN PROCEEDINGS UNDER SECTION 153A RWS 143(3) RWS 254 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE SOLITARY GROUND OF APPEAL OF THE A SSESSEE IS AGAINST THE DECISION OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS. 10 , 43 , 860/ - MADE BY THE ASSESSING OFFICER IN RESPECT OF PROFIT ON SALE OF LAND AT BAPOD. I T (SS) A NO . 215 / A HD/20 17 A SSESSMENT YEAR 200 5 - 06 I.T (SS) .A NO. 215 /AHD/20 17 A.Y. 2005 - 06 PAGE NO DEVENDRA G. PASALE VS. D CIT 2 3. IN THIS CASE, THERE WAS A DELAY OF 266 DAYS FOR FILING OF APPEAL BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A). THE ASSESSEE HAS FILED PRAYER FOR CONDONATION OF DELAY IN FILING OF APPEAL VIDE SUBMISSION DATED 12 TH M AY, 2017. THE ASSESSEE HAS SUBMITTED THAT LD. CIT(A) HAS DISMISSED THE GROUND OF APPEAL RAISED IN THIS APPEAL VIDE ORD ER DATED 10 TH MAY, 2016 WHICH WAS RECEIVED ON 28 TH JUNE, 2016 ON THE GROUND THAT ASSESSEE HAS NOT MADE DETAILED SUBMISSION. THE ASSESSEE HAS FURTHER SUBMITTED THAT AGAINST THE AFORESAID OBSERVATION OF THE LD. CIT(A), HE HAS FILED AN APPLICATION U/S. 154 D ATED 12 TH AUGUST, 2016 STATING THAT ASSESSEE HAS MADE DETAILED SUBMISSION AND THERE WAS A MISTAKE APPARENT FROM RECORD AND MADE PRAYER FOR RECTIFICATION OF THE ORDER OF LD. CIT(A). HOWEVER, LD. CIT(A) HAS NOT RECTIFIED THE ORDER AND REJECTED THE APPLICATI ON FILED BY THE ASSESSEE VIDE ORDER DATED 27 TH FEB, 2017. THEREFORE, THE ASSESSEE HAS SUBMITTED THAT TH ERE WAS DELAY IN FILING THE INSTANT APPEAL. WE HAVE HEARD THE RIVAL CONTENTION AND CONSIDER ING THE FACTS REPORTED IN THE SUBMISSION OF THE ASSESSEE , WE ARE OF THE VIEW THAT THER E WAS SUFFICIENT CAUSE OF DELAY FOR NOT FILING THIS APPEAL IN TIME BECAUSE OF THE CIRCUMSTANCES AS NARRATED ABOVE IN THIS ORDER, THEREFORE, THE DELAY IN FILING THE APPEAL IS CONDONED. 4. THE FACT IN BRIEF IS THAT THE ASSESSING O FFICER HAS MADE ASSESSMENT U/S. 153A R.W.S. 143(3) R.W.S. 254 OF THE ACT ON 27 TH MARCH, 2014. THE ASSESSING OFFICER HAS MADE ADDITION OF RS . 10 , 43 , 860/ - ON ACCOUNT OF PROFIT ON SALE OF LAND AT BOPAD FOR THE YEAR UNDER CONSIDERATION . THE ASSESSING OFFICE R HELD THAT ASSESSEE HAS BEEN FOLLOWING MERCAN TILE METHOD OF ACCOUNTING AND THE TRANSACT ION ON THE SALE OF LAND WAS TO BE COMPLE TED IN THE YEAR IN WHICH THE I.T (SS) .A NO. 215 /AHD/20 17 A.Y. 2005 - 06 PAGE NO DEVENDRA G. PASALE VS. D CIT 3 SAL E DEED WAS MADE AND NOT THE YEAR IN WHICH LAST INSTALLMENT OF PAYMENT WAS RECEIVED . 5. A GGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS NOT MADE ANY SUBMISSION REGARDING THIS ADDITION DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND DURING T HE COURSE OF APPELLATE PROCEEDINGS . 6. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED THE MATERIAL ON RECORD CAREFULLY. THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 10,43,860/ - ON THE GROUND OF PROFIT ON SALE OF BAPOD LAND FOR THE YEAR UNDER CONSIDERAT ION. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEEE WAS FOLLOWING MERCANTILE METHOD OF ACCOUNTING THEREFORE THE TRANSACTION OF SALE OF THE LAND CONSIDERED TO BE COMPLETED IN THE YEAR IN WHICH THE SALE DEED WAS MADE AND NOT THE YEAR IN WHICH THE LAST INSTALLMENT OF PAYMENT RECEIVED. THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE ON THE FOLLOWING GROUND : - 5.2. DURING THE COURSE OF THE CURRENT APPELLATE PROCEEDINGS, THE APPELLANT HAS NOT MADE ANY SUBMISSION REGARDING THIS ADDITION MADE BY THE AO DURING THE COURSE OF THE ORIGINAL ASSESSMENT AS WELL AS THE CURRENT ASSESSMENT PROCEEDINGS AND THE DECISION GIVEN BY THE CIT(A) - IV, AHEMDABAD IN THE APPEAL FILED AGAINST THE ORIGINAL ASSESSMENT ORDER. UNDER SUCH CIRCUMSTANCES, THE ADDITION MADE BY THE AO IS UPHELD AND THIS GROUND OF APPEAL IS DISMISSED. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE LD. COUNSEL HAS SUBMITTED A PAPER BOOK CONTAINING 33 PAGES DEMONSTRATING THE PARTICULAR INFORMATION FILED DURING THE COURSE OF ASSESSMENT PROCEEDING S AND APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) IN RESPECT OF PROFIT ON SALE OF BAPOD LAND OF RS. 10,43,860/ - . WITH THE ASSISTANCE OF LD. REPRESENTATIVES, WE HAVE GONE THROUGH THE AFORESAID SUBMISSION OF THE ASSESSEE WHICH DESCRIBE S THAT I.T (SS) .A NO. 215 /AHD/20 17 A.Y. 2005 - 06 PAGE NO DEVENDRA G. PASALE VS. D CIT 4 ASSESSEE BEING A DEALER IN LAND, THE INCOME ACCRUES OR ARISES TO HIM ONLY WHEN THE LEGAL TITTLE IN THE PROPERTY IS PASSED TO THE PURCHASER . THE ASSESSEE HAS ALSO GIVEN THE BREAK - UP OF INCOME OFFERED IN THE DIFFERENT ASSESSMENT YEARS IN THE AFORESAID SUBMISSION. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES, WE CONSIDER THAT THE FOREGOING SUBMISSION HAS NOT BEEN CONSIDERED WHILE ADJUDICATING THE IMPUGNED ISSUE BY THE LD. CIT(A), THEREFORE, WE RESTORE THIS MATTER TO THE FILE OF LD. CIT(A) FOR RE - ADJUDICATING AFRESH A FTER CONSIDERING THE AFORESAID SUBMISSION FILED BY THE ASSESSEE. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCE D IN THE OPEN C OURT ON 1 1 - 03 - 201 9 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 11 /03 /2019 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. RE VENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,