Shri Ghanshyam Babaldas Patel, Ahmedabad V. The ACIT Central Circle-1(2), Ahmedabad

ITSSA 64/AHD/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2919 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 16 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-07-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 20-08-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, AHMEDABAD BEFORE SHRI PRAMOD M. JAGTAP, VICE PRESIDENT & Ms. MADHUMITA ROY, JUDICIAL MEMBER आयकर अपील (एस.एस.) सं./I. T(SS). A. No. 64/Ahd/20 20 ( नधा रण वष / A ss es sment Year : 2014-15) Sh r i G ha ns hy am B a ba ld as P at e l 12 0, A s h i sh N a g a r So c ie t y, Me gh a ni N ag ar , A h me da ba d - 3 8 0 0 1 6 बनाम/ Vs . A C I T C e ntr al C ir c le – 1 ( 2) , A - 3 0 4, 3 r d Flo o r , Aa yk ar B h av a n, A s h r a m R o a d, A h m e da b ad -3 80 0 0 9 थायी लेखा सं./जीआइआर सं./P A N/ G I R N o . : A G C P P7 2 3 3 J (अपीलाथ /Appellant) . . ( यथ / Respondent) अपीलाथ ओर से /Appellant by : Shri Rupesh R. Shah, AR यथ क ओर से/Respondent by : Shri Vijay Kumar Jaiswal, CIT. D.R. स ु नवाई क तार"ख / D a t e o f H e a r i ng 11/07/2022 घोषणा क तार"ख /D a t e o f P ro n o u nc e me n t 07/09/2022 O R D E R PER Ms. MADHUMITA ROY - JM: The instant appeal filed by the assessee is directed against the order dated 07.02.2019 passed by the learned Commissioner of Income Tax (Appeals) – 2, Ahmedabad arising out of the order dated 28.03.2016 passed by the ACIT, Central Circle 2(4), Ahmedabad under section 143(3) r.w.s. 153B(1)(b) of the Income Tax Act, 1961 (hereinafter referred as to ‘the Act’) for Assessment Year 2016-17, IT(SS)A No. 64/Ahd/2020 (Shri Ghanshyam Babaldas Patel vs. ACIT) Asst.Year.– 2014-15 - 2 - whereby and whereunder the addition to the tune of Rs.53,29,393/- on capital gain has been confirmed. 2. There is a delay of 356 days in preferring the instant appeal. An affidavit affirmed by the appellant has been filed before us in support of delay wherefrom it appears that there is a communication gap between the assessee and his CA followed by complete lock down due to Covid-19 pandemic. Hence, keeping in view of this particular aspect of the matter, we find that the explanation rendered by the assessee in support of delay in preferring the appeals seems to be genuine and hence, the delay is condoned. 3. We have heard the parties and perused the relevant materials available on record. 4. The brief facts leading to the case is this that the assessee sold a property on 01.04.2013 for consideration of Rs.57,00,000/- and received three cheques of Rs.25 lakhs, Rs.25 Lakhs & Rs.7 Lakhs drawn on ICICI Bank. However, the purchaser was not in a position to pay the amount due to his financial crisis and consequently the assessee did not receive any payment and/or any consideration from the said parties. In support of the contention, the bank statement of the said party, namely, Shri Jaman Becharbhai Makadia was duly furnished before the Learned AO. However, the AO completed the assessment by making an addition of Rs.57 Lakhs on account of capital gain receipt, which was, in turn, confirmed by the Learned CIT(A). 5. Before the Ld. CIT(A) further cancellation deed dated 21.12.2017 executed before the Sub-Registrar, Ahmedabad was submitted which demonstrates neither effective sale transaction took place between the parties nor any possession of property was given by the appellant and therefore, no question of disclosure of any IT(SS)A No. 64/Ahd/2020 (Shri Ghanshyam Babaldas Patel vs. ACIT) Asst.Year.– 2014-15 - 3 - capital gain in the return of income arose, which was wrongly added by the authorities below as the case made out by the assessee. 6. It is settled position of law that the question of capital gain receipt arises only upon handing over physical possession nd payment made thereon and failure thereto would not fulfill the criteria in fixing capital gain. In that view of the matter, since neither the possession of the land in question was handed over to Shri Jaman Becharbhai Makadia by the appellant nor the consideration stipulated in the sale deed was received by the assessee, the addition made on account of capital gain deserves to be deleted. Hence, the same is deleted. 7. In the result, assessee’s appeal is allowed. This Order pronounced in Open Court on 07/09/2020 Sd/- Sd/- (P. M. JAGTA P) (MADHUMITA ROY) VICE PRESIDENT JUDICIAL MEMBER Ahmedabad; Dated 07/09/2020 True Copy S. K. SINHA आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं(धत आयकर आय ु *त / Concerned CIT 4. आयकर आय ु *त(अपील) / The CIT(A)- 5. +वभागीय .त.न(ध, आयकर अपील"य अ(धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड4 फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील$य अ%धकरण, अहमदाबाद / ITAT, Ahmedabad