KRUSHNA MANIK BANKAR,,PUNE vs. INCOME-TAX OFFICER, WARD - 8(4),, PUNE

PER R.S.SYAL, VP :

This batch of six appeals having common issues relate to the assessment year 2012-13. All the appellants are co-owners

of the property transferred and have similar grounds. I am,

therefore, proceedings to dispose them off by this consolidated order for the sake of convenience.

3 ITA Nos.937 to 942/PUN/2018 Manik V. Bankar & ors.,

initiation of re-assessment proceedings. The same being a legal

ground not requiring examination of fresh facts, is hereby

admitted for disposal on merits.

order of Krushna Manik Bankar (ITA No.938/PUN/2018) are

that a survey action u/s.133A of the Income-tax Act, 1961

(hereinafter called ‘the Act’) was conducted in the case of M/s.

Pharande Promoters & Builders on 29-07-2013, during the

course of which it transpired that they purchased a particular

piece of land for a consideration of Rs.2.55 crore. Such land

was held by all the assessees in the instant batch of appeals.

Shri Krushna Manik Bankar, as per page 1 of the assessment

order, received his share consideration at Rs.31.50 lakh by

cheque and the same was not offered for computation of capital

gain in the return for the A.Y. 2012-13. The Assessing Officer

(AO) initiated the reassessment and completed the same by

computing long term capital gain at Rs.30,69,930/-, which

came to be countenanced in the first appeal. The assessee is

aggrieved by the confirmation of such addition.

4 ITA Nos.937 to 942/PUN/2018 Manik V. Bankar & ors.,

material on record. Taking up the additional ground against the

initiation of re-assessment proceedings, it is found from page 1

of the assessment order that the AO has recorded as under :

“A survey action u/s.133A of Income Tax Act, 1961, was conducted in the case of M/s. Pharande Promoters & Builders dated 29.0.2013. During the course of survey proceedings, it was noticed that M/s. Pharande Promoters & Builders had purchased land at Plot No.729 & 733, located at Borhadewadi, Moshi at a consideration of Rs.2,55,00,000/- dated 12.10.2011. On perusal of the 7/12 extract and purchase agreement dated 12.10.2011 of the said land, it was noticed that Krishna Manik Bankar is one of the owner of said plot and he has received his share consideration of Rs.31,50,000/- by cheque. He has not offered any capital gains income arising out of the sale of above said land to M/s. Pharande Promoters & Developers for the purpose of taxation for F.Y.2011-12 relevant to A.Y. 2012-13.”

that the AO initiated re-assessment proceedings on the ground

that though the assessee received his share of consideration at

Rs.31.50 lakh by cheque but did not offer any capital gain

arising out of sale for the above said land to M/s. Pharande

Promoters & Builders for the purpose of taxation in his return

for A.Y. 2012-13. The ld. AR invited my attention towards the

5 ITA Nos.937 to 942/PUN/2018 Manik V. Bankar & ors.,

original return filed for the A.Y. 2012-13, a copy of which is

available from page 50 onwards of the paper book. Page 52 of

the paper book, which is continuation of the income-tax return,

discerns that the assessee did declare full value of consideration

at Rs.31.50 lakh and after claiming deductions u/s.54, 54B, etc.

computed long term capital gain at Rs.1.80,000/-. This is how,

the assessee filed return with total income at Rs.1,80,000/-

arising from the transfer of property in question. On an

examination of the above extraction from the assessment order

vis-a-vis the copy of income-tax return filed by the assessee on

31-07-2012 u/s.139(1) of the Act, it turns out that that the

assessee did declare his share of consideration at Rs.31.50 lakh

and also offered capital gain arising out of sale of the above

said land to M/s. Pharande Promoters & Builders for the

purposes of taxation. On a specific query, the ld. AR could not

place on record a copy of the reasons leading to the initiation of

re-assessment proceedings. Ex-facie, it appears from page 1 of

the assessment order that the AO initiated re-assessment

proceedings only on the ground that the assessee did not offer

any capital gain arising from sale of the above said land, which,

6 ITA Nos.937 to 942/PUN/2018 Manik V. Bankar & ors.,

on factual narration discussed above, does not appear to stand.

Since the legality of initiation of re-assessment proceedings has

been challenged for the first time before the Tribunal, I consider

it expedient to send the matter back to the ld. CIT(A) for

disposal of the ground raised before the Tribunal for the first

time challenging the initiation of re-assessment proceedings. In

such an examination, he will take into consideration the reasons

for re-assessment. If the reasons are similar to the extraction

made above, then obviously the re-assessment proceedings

cannot stand. In case there are certain other reasons also or

certain other aspects of the computation of capital gain, then the

ld. CIT(A) will decide the issue as per law after allowing a

reasonable opportunity of hearing to the assessee.

to those of Krushna Manik Bankar discussed above. In all the

five appeals, assessees have raised similar additional ground

challenging the initiation of re-assessment proceedings. The ld.

AR submitted that all the other five assessees filed returns u/s

139(1) of the Act declaring the transaction and also computed

the long term capital gain. In view of our above decision in the

7 ITA Nos.937 to 942/PUN/2018 Manik V. Bankar & ors.,

case of Krushna Manik Bankar, I set-aside the impugned orders

and remit the matter to the file of ld. CIT(A) for dealing with

the ground taken before the Tribunal for the first time against

the initiation of re-assessment proceedings and thereafter

dealing with appeal as per law.

purposes.

Order pronounced in the Open Court on 15th November, 2019. Sd/- (R.S.SYAL) उपा�य� उपा�य�/ VICE PRESIDENT उपा�य� उपा�य� पुणे Pune; �दनांक Dated : 15th November, 2019 सतीश 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 1. अपीलाथ� / The Appellant; ��यथ� / The Respondent; 2. आयकर आयु�(अपील) / 3. The CIT (Appeals)-8, Pune 4. The Pr.CIT- 5, Pune िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, पुणे “SMC” / 5. DR ‘SMC’, ITAT, Pune; गाड� फाईल / Guard file. 6. // True copy // आदेशानुसार आदेशानुसार आदेशानुसार/ BY ORDER, आदेशानुसार

// True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune

ITA Nos.937 to 942/PUN/2018 Manik V. Bankar & ors.,

Date 1. Draft dictated on 15-11-2019 Sr.PS 2. Draft placed before author 15-11-2019 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. *