SHRI SUNDERDAS JETWANI,INDORE vs. THE ITO CIRCLE 2(1), INDORE

PER MANISH BORAD, AM.

This appeal of Assessee pertaining to A.Y. 2012-13 is directed

against the order of Ld. Commissioner of Income Tax(Appeals-I),

Indore (in short ‘CIT(A)’), dated 28.12.2016 which is arising out of

the order u/s 143(3) of the Income Tax Act 1961(hereinafter called

as the ‘Act’) framed on 24.12.2010 by ITO-2(1), Indore.

Sunderdas Jethwani ITA No.275/Ind/2017

“1. On the facts and circumstances of the case order passed by learned CIT(A)-I, Indore is contrary to the facts and also provisions of the Income Tax Act 1961 and it is unjustified, bad in law, and deserves to be quashed in respect of the addition of Rs.3981388/- as STCG. 2. On the fact and in the circumstances of the case learned CIT(A)-I, Indore erred in maintaining addition of Rs.3981388/- on STCG against Rs.55612/- as LTCG declare in return of income. LTCG of Rs.55612/- declare by the assessee may please maintained” 3. Brief facts of the case as culled out from the records are that

the assessee is an individual. The return of income was filed on

18.05.2009 in which Income of Rs.2,07,510/- was declared. The

return assessed u/s 143(3) and income assessed at Rs.42,33,290/-

succeeded. Subsequently the Department filed an appeal before the

Tribunal. The Tribunal vide I.T.A No.486/Ind/2013 order dated

27.08.2015 set aside the order to the file of CIT(A). The Ld.CIT(A)

allowed the addition of Rs.44,388/- and maintained the addition of

Rs.3981888/- as Short Term Capital Gain against the Long Term

Capital Gain of Rs.55,612/-.

Sunderdas Jethwani ITA No.275/Ind/2017

Ld.CIT(A) did not accept the assessee’s claim of Long Term Capital

Gain from sale of immoveable property because the original

agreement dated 8.1.2004 was not available on record for

examination which could have proved that the possession was

handed over on 8.1.2004 and gain from sale of the alleged

immovable property in January, 2008 is to be taxed as Long Term

Capital Gain. He further submitted that the names of the seller and

purchaser are mentioned on the back side of the agreement and the

original document was not on record and both the lower authorities

could not verify this fact. The original record has now been

procured and the same can be shown to the Ld.CIT(A) for necessary

examination and decide accordingly.

objection if the issue is set aside to the file of Ld.CIT(A) for fresh

examination including the verification of the agreement dated

8.1.2004.

Sunderdas Jethwani ITA No.275/Ind/2017

before us. Sole grievance of the assessee is against the finding of

the lower authorities of making the addition for Short Term Capital

Gain of Rs.39,81,388/- as against the Long Term Capital Gain

declared by the assessee at Rs.55,612/- from sale of immoveable

property. We find that the assessee claimed to have purchased the

immoveable property on 8.1.2004 by an agreement on the stamp

paper of Rs.100 and the purchase consideration paid at

Rs.3,05,000/-. This property was sold in January, 2008 at

Rs.84,00,000/-. Assessee showed the gain under the head Long

Term Capital Gain and also claimed the benefit of Section 54F of

the Act for purchase of residential house. After entering into the

agreement dated 8.1.2004 the purchase deed was finally registered

on 23.03.2006. Both the lower authorities could not lay their

hands on the original document of agreement dated 8.1.2004 which

could have proved that the name of the parties to the agreement

includes the name of the assessee and the purchase of the

immoveable property should have been reckoned from 8.1.2004 as

the payment for purchase consideration was made and possession

Sunderdas Jethwani ITA No.275/Ind/2017

was alleged to have been taken. Both the lower authorities could

only gather the information from the purchase deed registered dt.

23.6.2006 which proved the purchase of the immoveable property

which was thereafter sold on 23.01.2008. If the date of purchase is

taken as 23.3.06 then the gain rising from the sale of immoveable

property will come under the category of Short Term Capital Gain

which will debar the assessee from claiming any benefit u/s 54F of

the Act. However the contention of the Ld. Counsel for the assessee

is that the actual date of purchase is 8.1.2004 and if this is taken

as the purchase date then the alleged gain will be covered under the

head Long Term Capital Gain. It was contended before us by the

Ld. Counsel for the assessee that the original sale agreement dated

8.1.2004 has now been procured and the same may be sent for

verification before the Ld.CIT(A) for afresh examination of this issue

so as to satisfy about the date of purchase of the immoveable

property. No objection was raised by the Ld. Departmental

Representative if the issue is set aside to the file of Ld.CIT(A). We

therefore in the interest of justice and also in all fairness set aside

the issue raised in this appeal to the file of Ld.CIT(A) for afresh

Sunderdas Jethwani ITA No.275/Ind/2017

adjudication so as to examine the genuineness of the alleged sale

agreement dated 8.1.2004 which could prove that the assessee was

a party to this agreement and the necessary conditions of transfer

of property as provided in Section 2(47) of the Act have been

complied. Needless to mention that proper opportunity should be

provided to the assessee for filing necessary documents and

submissions.

The order pronounced in the open Court on 31.10.2018.

Sd/- Sd/-

( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER �दनांक /Dated : 31 October, 2018 /Dev

Copy to: The Appellant/Respondent/CIT concerned/CIT(A) concerned/ DR, ITAT, Indore/Guard file. By order Asstt.Registrar,I.T.A.T., Indore