Shri Jayendrabhai M.Desai, Ahmedabad V. The ACIT.,Cent.Circle-2(4), Ahmedabad

ITSSA 425/AHD/2011

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3567 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 20-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Assessee Lawyers: P M MEHTA
• Keywords: Capital asset; Principle of natural justice; Additional evidence
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER IT(SS)A NO. 425/AHD/2011 (ASSESSMENT YEAR: 2008- 09) JAYENDRABHAI M. DESAI D-602, GAURAV TOWER, PRABHAT CHOWK, GHATLODIA, AHMEDABAD APPE LLANT VS. ACIT, CENTRAL CIRCLE 2(4), AHMEDABAD RESPONDENT PAN: AOFPD0660Q /BY ASSESSEE : SHRI P. M. MEHTA, A.R. /BY REVENUE : SHRI V. K. SINGH, SR. D.R. /DATE OF HEARING : 24.01.2018 /DATE OF PRONOUNCEMENT : 30.01.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2008-09 ARISES AGAINST THE CIT(A)-III, AHMEDABADS ORDER DATED 20.05.2011, IN CASE NO. CIT(A)- III/177/ACIT/ CC-2(4)/10-11, PARTLY AFFIRMING ASSES SING OFFICERS ACTION MAKING ON MONEY ADDITION OF RS.38.87LACS TO THE TUNE OF RS .4.40LACS, IN PROCEEDINGS U/S. 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. IT(SS)A NO. 425/AHD/11 [JAYENDRABHAI M. DESAI VS. A CIT] A.Y. 2008-09 - 2 - 2. RELEVANT FACTS INVOLVED IN THE INSTANT APPEAL PE RTAINING TO THE ABOVE SOLE SUBSTANTIVE GROUND ARE IN A VERY NARROW COMPASS. T HE INSTANT LIS HAS EMANATED FROM A SEARCH ACTION DATED 23.05.2008 CARRIED OUT I N M/S. ADI AVIRAT GROUP. THE SAME LEAD TO SEIZURE OF INCRIMINATING EVIDENCE AT P AGE NOS. 72 & 73 OF ANNEXURE AS-5 FROM RESIDENCE OF ONE SHRI PARESH B. PATEL ALL EGEDLY INDICATING ACTUAL SALE PRICE OF RS.48.69LACS INSTEAD OF THE ONE DECLARED T O THE TUNE OF RS.9,82,000/- INDICATING THE DIFFERENCE IN QUESTION OF RS.38,87,0 00/-. THE ASSESSING OFFICER PROPOSED TO ADD THIS SUM IN ASSESSEES CASE AFTER A LLEGING THAT HE ACTED AS THE LAND BROKER BETWEEN CONCERNED VENDORS AND VENDEES. THE ASSESSEE APPEARS TO HAVE DECLINED THE SAME IN HIS REPLY. HIS CASE WAS THAT THERE WAS NO ON MONEY PAID IN THE SALE DEED IN QUESTION. HE FURTHER PLEADED IGNORANC E THEREBY STATING THAT THE VENDEES HAD THEMSELVES PAID THE ACTUAL SALE PRICE TO THE VE NDORS CONCERNED. THE ASSESSING OFFICER REJECTED ALL THESE PLEADINGS IN ASSESSMENT ORDER DATED 31.12.2010 AFTER CONCLUDING THAT THE ABOVE MATERIAL SUFFICIENTLY IND ICATED THE ASSESSEE TO HAVE RETAINED THE CASH COMPONENT IN QUESTION FORMING SUB JECT MATTER OF ADDITION AMOUNT TO RS.38.87LACS. THE CIT(A) CONFIRMS THE SAME IN H IS LOWER APPELLATE FINDINGS. 3. HEARD RIVAL SUBMISSIONS. CASE FILE REVEALS THAT THE ASSESSEE ALSO PREFERRED HIS APPLICATION FOR ADDITIONAL EVIDENCE PLEADING THEREI N THAT THE LAND IN QUESTION IN ANOTHER CASE BEYOND 8KMS. FROM NEAREST MUNICIPAL LI MITS. RELEVANT CERTIFICATE AS WELL AS PANCHAYAT DOCUMENT ALONGWITH THE NECESSARY SITE PLAN FORM PART OF RECORD. IT FURTHER TRANSPIRES THAT THE ASSESSEE HAD VEHEMEN TLY CONTENDED BEFORE THE CIT(A) THAT THE ASSESSING OFFICER DID NOT PROVIDE HIM THE RELEVANT INCRIMINATING EVIDENCE DURING THE COURSE OF ASSESSMENT. THE SAME HAS ALSO GONE UNREBUTTED IN THE LOWER APPELLATE ORDER UNDER CHALLENGE. WE THEREFORE FIND THAT THE INSTANT CASE INVOLVES VIOLATION OF PRINCIPLE JUSTICE IN ASSESSMENT AS WEL L AS LOWER APPELLATE PROCEEDINGS. COUPLED WITH THIS, THE ASSESSEES ABOVE-STATED ADDI TIONAL EVIDENCE DEMONSTRATING THE LAND IN QUESTION TO BE NOT A CAPITAL ASSET SINC E SITUATED BEYOND 8KMS. DISTANCE FROM MUNICIPAL LIMITS ALSO NEEDS TO BE FACTUALLY VE RIFIED. WE AFFORDED AMPLE OPPORTUNITY TO LEARNED DEPARTMENTAL REPRESENTATIVE TO CONTROVERT THE FACT THAT THE AUTHORITIES BELOW DID NOT PROVIDE THE RELEVANT INCR IMINATING MATERIAL TO THE ASSESSEE. IT(SS)A NO. 425/AHD/11 [JAYENDRABHAI M. DESAI VS. A CIT] A.Y. 2008-09 - 3 - HE FAILS TO DISPUTE THE SAME. WE ACCORDINGLY ARE O F THE VIEW THAT PRINCIPLE OF NATURAL JUSTICE WOULD BE MET IN CASE THE INSTANT AP PEAL IS RESTORED BACK TO THE ASSESSING OFFICER FOR AFRESH ADJUDICATION AS PER LA W AFTER AFFORDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 4. THIS ASSESSEES APPEAL IS THEREFORE ACCEPTED FOR STATISTICAL PURPOSES. [PRONOUNCED IN THE OPEN COURT ON THIS THE 30 TH DAY OF JANUARY, 2018.] SD/- SD/- ( PRADIP KUMAR KEDIA ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 30/01/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0