SHRI DEEPAKBHAI C. PARIKH,,VADODARA vs. THE INCOME TAX OFFICER, WARD-4(1)(5),, VADODARA,

आदेश / O R D E R

PER SHRI KUL BHARAT, JUDICIAL MEMBER :

Deepakbhai C.Parikh vs. ITO Asst.Year – 2011-12 - 2 - 2. The assessee has raised the following grounds of appeal:

1. The CIT(A) has erred both in Law and in Fact in confirming calculation of cost of Land and Capital Gain as worked out by I.T.O. Your Appellant submits that the LTO has erred in not considering the additional cost incurred by the Appellant towards N.A. charges, Revenue Tax, N.A. Expenses etc. of Rs.5,68,857/- which are directly and intimately connected with the Cost of Land sold, resulting into capital gains.

2. The CIT(A) is also erred in not allowing Rs.29,64,751/- u/s. 54F as claimed by your Appellant.lt is submitted that the full proof with regard to the claim for relief U/S.54F was produced before the Assessing Officer as well as C1T(A) and the claim being as per Law supported by evidences the CIT(A) ought to have allowed the deduction as claimed by the Appellant.

3. (a) The CIT(A) also erred in confirming applicability of sec.68 and thereby treating Rs.60,000/- as Cash Credit u/s.68 of the Act.

On facts of the case as per provisions of Law u/s.68 is not attracted being credit in the Bank Account and Bank Passbook does not tantamount as Books of Account and therefore the amount is not liable to be added u/s.68. (b) Without prejudice to above (i) Your Appellant submits that he has proved the Identity, Credit Worthiness and genuineness of both the depositors and therefore the amount is not liable to be added. (ii) Further the ITO having invoked Provisions of sec.269SS it is submitted that sec,68 cannot be put in service. It is therefore submitted that relief claimed above be allowed and the order of the Assessing Officer be modified accordingly.

Your Appellant reserves right to add, alter, amend to withdraw any or all Ground of Appeal.

Deepakbhai C.Parikh vs. ITO Asst.Year – 2011-12 - 3 - 3. At the outset, ld.counsel for the assessee submitted that the order appealed against has become nullity as the original order passed u/s.263 of the Income Tax Act, 1961 has been set aside by the Tribunal. Therefore, any order passed in pursuance of the direction in the order passed u/s.263 would not survive. Ld.counsel for the assessee has drew our attention towards Tribunal order dated 26/06/2019 passed in for AY 2011-12. The Tribunal was pleased to set aside the order of the Ld.CIT by observing as under:-

“8. We have heard the rival contentions and perused the materials available on records. At the outset, we note that the assessee has not appeared before the Ld.CIT u/s 263 of the Act despite various notices were issued upon him. As such, the scheme of the Act requires the assessee to place his points of contention before the appropriate authorities. In the case on hand, the assessee did not appear before the ld. CIT. Therefore the order was passed ex parte by the ld.CIT based on the records available before him. 8.1 Considering the negligent/ dilly-dallying approach of the assessee in pursuing the matter before the ld. CIT and the delay in filing the appeal before us, we are inclined to levy the cost over the assessee for Rs. 5000/- on account of his negligent behavior in pursuing the matter before the ld. CIT. Accordingly, the assessee is directed to deposit a total sum of Rs. 5,000/- (Rupees five thousand) only in the Prime Minister Relief Fund. 8.2 We further note that the assessee in the instant case is required to place his points of contentions before the Ld.CIT. Therefore in the interest of justice and fair play, we restore the issue to the file of the Ld.CIT for fresh adjudication as per the provision of law.

Deepakbhai C.Parikh vs. ITO Asst.Year – 2011-12 - 4 - 8.3 It is also pertinent to note that the assessee shall co-operate to the Ld.CIT and shall attend the hearing as and when required. Hence the ground of appeal of the assessee is allowed for statistical purposes.”