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Income Tax Appellate Tribunal, PUNE BENCH “SMC”, PUNE – VIRTUAL COURT
Before: SHRI R.S. SYAL
PER R.S. SYAL, VP :
This appeal by the assessee is directed against the order passed by the CIT(A)-1, Aurangabad on 24-03-2017 in relation to the assessment year 2004-05.
This appeal is time barred by 1168 days. The assessee has filed a condonation petition giving reasons for the delay. The said reasons have been perused and found to be satisfactory. The delay is, therefore, condoned and the appeal is admitted for hearing.
2 ITA No. 525/PUN/2020 Deepak Kundanmal Rathi
The only issue raised in this appeal is against the
confirmation of addition to the extent of Rs.10,50,000/- and its
further enhancement to Rs.23,21,000/- by the ld. CIT(A).
Briefly stated, the facts of the case are that the assessee
did not file his return for the year under consideration. The
Assessing Officer (AO) issued notice u/s.148 by observing that
there was some land transaction dated 25-07-206 under which
the assessee and Mr. Shivratan Motilal Rathi purchased a piece
of land at Survey No.4076, Municipal Property No.1-28-76,
Mantha Road, Jalna from Rashesham Ramnarayan Rathi (GPA
holder). The AO further observed in the reasons that total
payment of Rs.21.00 lakh was made towards the aforesaid land
purchase, with the assessee’s share at Rs.10,50,000/-, which
was not disclosed. The assessee did not attend the assessment
proceedings which led to the passing of the assessment order
u/s.144 r.w.s.147 of the Income-tax Act, 1961 (hereinafter also
called ‘the Act’) making addition of Rs.10,50,000/-. The ld.
CIT(A) dismissed the assessee’s appeal and made further
enhancement by noticing that there was certain other cash
deposits totaling up to Rs.23,21,200/- in the assessee’s bank
account maintained with Jalna Merchants Cooperative Bank.
3 ITA No. 525/PUN/2020 Deepak Kundanmal Rathi
At the very outset, the ld. Counsel for the assessee
submitted that the AO initiated reassessment proceedings on the
basis of the property allegedly purchased by the assessee and
Mr. Shivratan Motilal Rathi. He took me through the order passed by the Tribunal on 11-03-2019 in the case of Mr. Shivratan Motilal Rathi Vs. ITO in ITA Nos. 730 to
733/PUN/2016 in which the matter has been restored. It was
prayed that a similar direction be given.
I have heard both the sides through Virtual Court and
gone through the relevant material on record. It is an admitted
position that the AO started the proceedings u/s.148 by
observing that the assessee along with Mr. Shivratan Motilal
Rathi made investment to the tune of Rs.21.00lakh which was
not disclosed by them. The Tribunal in the aforesaid order in
the case of Mr. Shivratan Motilal Rathi has examined this issue
in para 9 and observed as under :
“9. We have heard the rival contentions and perused the record. The assessment for assessment year 2004-05 was reopened under section 147 of the Act by the Assessing Officer after recording reasons for reopening the assessment, that the assessee in his individual capacity had made investment in purchase of property to the extent of 50%. The basis for recording the aforesaid reasons was the document executed in the name of assessee, wherein he along with one Shri Deepak Kundanmal Rathi had purchased the property at Jalna, for which total consideration of ₹ 21 lakhs was paid. The said consideration of ₹ 21 lakhs was paid out of bank account of Shri Deepak Kundanmal Rathi. The assessee has time and again stressed that the said property does not belong to him
4 ITA No. 525/PUN/2020 Deepak Kundanmal Rathi
but is the asset of HUF and other 50% is owned by Jugalkishore Kundanmal Rathi (HUF). The assessee has filed on record sufficient evidence to establish its case in this regard. Merely because the document was recorded in the individual names does not change the status of its holding by HUF. We are of the view that this aspect of acquisition of land by HUF and thereafter on completion of construction on the aforesaid land, the profits being offered by respective HUFs needs deliberation by the Assessing Officer. Accordingly, we remit this issue back to the file of Assessing Officer, who shall decide the issue after affording reasonable opportunity of hearing to the assessee. Even the assessee is directed to co-operate and furnish the complete information before the Assessing Officer with supporting evidence in order to establish its case. The Assessing Officer shall decide the issue in accordance with law. Hence, the grounds of appeal raised by assessee are allowed for statistical purposes.”
Since the facts and circumstances of the instant appeal are admittedly mutatis mutandis similar to those in the case of
Mr. Shivratan Motilal Rathi, respectfully following the
precedent, I set aside the impugned order and send this matter
back to the file of AO for deciding this issue in conformity with
the view taken by him in the case of Mr. Shivratan Motilal
Rathi pursuant to the Tribunal order.
In the result, the appeal is allowed for statistical purposes.
Order pronounced in the Open Court on 29th January,
2021.
Sd/- (R.S.SYAL) उपा�य�/ VICE PRESIDENT उपा�य� उपा�य� उपा�य�
पुणे Pune; �दनांक Dated : 29th January, 2021 Satish
5 ITA No. 525/PUN/2020 Deepak Kundanmal Rathi
आदेश क� क� क� �ितिलिप क� �ितिलिप �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत अ�ेिषत / Copy of the Order is forwarded to : अ�ेिषत आदेश आदेश आदेश अपीलाथ� / The Appellant; 1. ��यथ� / The Respondent; 2. आयकर आयु�(अपील) / 3. The CIT (Appeals)-1, Aurangabad 4. The Pr. CIT-1, Aurangabad िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, पुणे “SMC” / 5. DR ‘SMC’, ITAT, Pune; गाड� फाईल / Guard file. 6. // True copy // आदेशा आदेशा आदेशानुसार आदेशा नुसार नुसार/ BY ORDER, नुसार
// True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune
Date 1. Draft dictated on 29-01-2021 Sr.PS 2. Draft placed before author 29-01-2021 Sr.PS 3. Draft proposed & placed -- JM before the second member 4. Draft discussed/approved -- JM by Second Member. 5. Approved Draft comes to Sr.PS the Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *