AFZAL ABUBAKER MITHA,NAGPUR vs. ITO WARD 4(3), NAGPUR

The Assessee has raised the following grounds of appeal:

On the other hand, Ld.DR supported the order of ld. CIT(A). On the other hand, Ld.DR supported the order of ld. CIT(A). On the other hand, Ld.DR supported the order of ld. CIT(A).

I have heard rival contentions and perused the records placed before me. The I have heard rival contentions and perused the records placed before me. The I have heard rival contentions and perused the records placed before me. The I have heard rival contentions and perused the records placed before me. The assessee is an individual assessee is an individual and declared income of Rs. 1,54,410/ and declared income of Rs. 1,54,410/- in the return filed u/s 139 in the return filed u/s 139 of the Act. Case selected for scrutiny ase selected for scrutiny u/s 143(3) of the Act u/s 143(3) of the Act and assessment concluded on concluded on 21.02.2011 assessing total income at Rs. 86,13,890/ 21.02.2011 assessing total income at Rs. 86,13,890/ 21.02.2011 assessing total income at Rs. 86,13,890/-. Thereafter, the assessee has Thereafter, the assessee has challenged the additions before ld. CIT(A) and fail to succeed. challenged the additions before ld. CIT(A) and fail to succeed. challenged the additions before ld. CIT(A) and fail to succeed. Thereafter the assessee Thereafter the assessee carried the matter before this Tribunal vide order dated 28.12.2016 vide rried the matter before this Tribunal vide order dated 28.12.2016 vide rried the matter before this Tribunal vide order dated 28.12.2016 vide ITA ITA 187/Nag/2014, the appeal of the assessee has been allowed for 187/Nag/2014, the appeal of the assessee has been allowed for 187/Nag/2014, the appeal of the assessee has been allowed for statistical purpose and in purpose and in the decision the Tribunal observes ision the Tribunal observes that the assessee furnished return of income in ITR that the assessee furnished return of income in ITR-2, that the assessee furnished return of income in ITR but he has also claimed that it is engaged in the business of purchase and sale of flat. This but he has also claimed that it is engaged in the business of purchase and sale of flat. This but he has also claimed that it is engaged in the business of purchase and sale of flat. This but he has also claimed that it is engaged in the business of purchase and sale of flat. This Tribunal also observed Tribunal also observed that in the earlier years Revenue evenue Authorities have accepted that accepted that the assessee is engaged in the business of purchase and sale of flat and engaged in the business of purchase and sale of flat and engaged in the business of purchase and sale of flat and therefore cannot therefore cannot make an about-turn urn in not accepting the assessee having carried out the business of not accepting the assessee having carried out the business of not accepting the assessee having carried out the business of purchase and sale of flat of land merely because it has filed the return in ITR purchase and sale of flat of land merely because it has filed the return in ITR purchase and sale of flat of land merely because it has filed the return in ITR-2 which 2 which certainly is not applicable applicable for the assessee engaged in this for the assessee engaged in this business. This Tribunal Tribunal directed the AO to decide the issue afresh. directed the AO to decide the issue afresh.

Now, considering the direction given by this Tribunal ld. AO carried Now, considering the direction given by this Tribunal ld. AO carried Now, considering the direction given by this Tribunal ld. AO carried out out the assessment proceedings u/s 143(3) r.w.s 254 of the Act and concluded the same on assessment proceedings u/s 143(3) r.w.s 254 of the Act and concluded the same on assessment proceedings u/s 143(3) r.w.s 254 of the Act and concluded the same on assessment proceedings u/s 143(3) r.w.s 254 of the Act and concluded the same on 20.12.2017. During the year asses During the year assessee carried out transaction of purchase and sale of three see carried out transaction of purchase and sale of three see carried out transaction of purchase and sale of three immovable properties. immovable properties. With regard to two properties which were sold for two properties which were sold for a consideration a consideration of Rs. 32,00,000 and Rs. 72,00,000/ 32,00,000 and Rs. 72,00,000/-. Ld. AO after duly examining . Ld. AO after duly examining the details accepted the details accepted the assessee’s claim the assessee’s claim and calculated business income business income at loss of Rs. 1,82,860/- and loss of and loss of Rs. 28,280/- from property No. 1 & 2 and there is no dispute to this extent. from property No. 1 & 2 and there is no dispute to this extent. from property No. 1 & 2 and there is no dispute to this extent. The property The property No. 3 admeasuring 2.60 Hr was sold on 17.03.2009 having market value of Rs. 77 lakhs No. 3 admeasuring 2.60 Hr was sold on 17.03.2009 having market value of Rs. 77 lakhs No. 3 admeasuring 2.60 Hr was sold on 17.03.2009 having market value of Rs. 77 lakhs No. 3 admeasuring 2.60 Hr was sold on 17.03.2009 having market value of Rs. 77 lakhs for which assessee paid Rs. 25 laksh in cash to assessee paid Rs. 25 laksh in cash to Smt Sugrabee Abdul Bashir Smt Sugrabee Abdul Bashir and also also incurred expenditure of Rs. 4,23,500/ incurred expenditure of Rs. 4,23,500/-. So far as sale consideration the AO has accepted . So far as sale consideration the AO has accepted . So far as sale consideration the AO has accepted 2 the same but only dispute the same but only disputed source of huge investment of Rs. 29,53,840/ source of huge investment of Rs. 29,53,840/-. Ld. AO . Ld. AO observed in the assessment order that assessee could not explain the source during the the assessment order that assessee could not explain the source during the the assessment order that assessee could not explain the source during the the assessment order that assessee could not explain the source during the course of assessemtn proceedings. It is stated by ld. Counsel for the assessee that alleged course of assessemtn proceedings. It is stated by ld. Counsel for the assessee that alleged course of assessemtn proceedings. It is stated by ld. Counsel for the assessee that alleged course of assessemtn proceedings. It is stated by ld. Counsel for the assessee that alleged investment of Rs.29 29,53,840/- is duly recorded in the books of accounts and even the cash in the books of accounts and even the cash in the books of accounts and even the cash book, bank book and financial statements were filed book, bank book and financial statements were filed book, bank book and financial statements were filed before the first appellate authority authority. However since proper compliance was not made before ld. CIT(A) ld. Counsel for the However since proper compliance was not made before ld. CIT(A) ld. Counsel for the However since proper compliance was not made before ld. CIT(A) ld. Counsel for the However since proper compliance was not made before ld. CIT(A) ld. Counsel for the assessee prayed for one more opportunit assessee prayed for one more opportunity for remitting matter back to the file of ld. JAO y for remitting matter back to the file of ld. JAO y for remitting matter back to the file of ld. JAO for necessary verification and verification and examination. I note e that it is second round proceedings round proceedings before this Tribunal, however considering the prayer by ld. Counsel for the assessee before this Tribunal, however considering the prayer by ld. Counsel for the assessee before this Tribunal, however considering the prayer by ld. Counsel for the assessee and and also observing that proper c also observing that proper compliance could not be made before both the lower ompliance could not be made before both the lower ompliance could not be made before both the lower authorities and also taking into consideration that larger interest of justice should prevail and also taking into consideration that larger interest of justice should prevail and also taking into consideration that larger interest of justice should prevail and also taking into consideration that larger interest of justice should prevail even if the proceedings are prolonged, I restore the issue raised in the grounds of appeal even if the proceedings are prolonged, I restore the issue raised in the grounds of appeal even if the proceedings are prolonged, I restore the issue raised in the grounds of appeal even if the proceedings are prolonged, I restore the issue raised in the grounds of appeal before me relating to alleged unexplained investment of Rs. 29,53,840/ g to alleged unexplained investment of Rs. 29,53,840/ g to alleged unexplained investment of Rs. 29,53,840/- to the file of to the file of Jurisdictional Assessing Officer Jurisdictional Assessing Officer for afresh adjudication and for afresh adjudication and to be decided in accordance accordance with law. Needless to mention that the Needless to mention that the Needless to mention that the ld. JAO shall afford proper shall afford proper opportunity to the assessee. opportunity to the assessee. Further, we direct the assessee to remain Further, we direct the assessee to remain Further, we direct the assessee to remain cooperative in furnishing the details called for by the ld. CIT(A). Finding of cooperative in furnishing the details called for by the ld. CIT(A). Finding of cooperative in furnishing the details called for by the ld. CIT(A). Finding of cooperative in furnishing the details called for by the ld. CIT(A). Finding of ld. CIT(A) is set aside and effective grounds of appeal raised by the assessee ld. CIT(A) is set aside and effective grounds of appeal raised by the assessee ld. CIT(A) is set aside and effective grounds of appeal raised by the assessee ld. CIT(A) is set aside and effective grounds of appeal raised by the assessee are allowed for statistical purposes. are allowed for statistical purposes.

In the result In the result, the appeal filed by the assessee is allowed for statistical , the appeal filed by the assessee is allowed for statistical , the appeal filed by the assessee is allowed for statistical purposes.