VINAYA ABHIJIT GAJENDRAGADKAR,PUNE vs. ITO WARD 2(3), PUNE
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCHES “SMC”, PUNE
BEFORE DR.MANISH BORAD, ACCOUNTANT MEMBER
AND MS. ASTHA CHANDRA, JUDICIAL MEMBER
आयकर अपील सं. / ITA Nos.586 and 585/PUN/2025
Assessment Years : 2012-13 and 2014-15
Vinaya Abhijit Gajendragadkar,
B-2, Kailas Dham,
Aundh Road, Kirkee – 411 020
Pune, Maharashtra
PAN : ARJPG6163C
Vs. Income Tax Officer,
Ward-2(3), Pune
Appellant
Respondent
आदेश / ORDER
PER DR. MANISH BORAD, ACCOUNTANT MEMBER :
The captioned two appeals at the instance of assessee pertaining to assessment years 2012-13 and 2014-15 are directed against the separate orders both dated 14.02.2024 passed by National Faceless Appeal Centre, Delhi u/s.250 of the Income Tax
Act, 1961 (in short ‘the Act’) which inturn are arising out of the respective Assessment orders passed u/s.144 r.w.s.147 of the Act.
The common grievance in both the instant appeals is firstly against the addition made for long term capital gain of Rs.30,61,600/- and Rs.32,62,366/- for A.Yrs. 2012-13 and 2014- 15 and secondly that the addition on similar ground has been made for both the impugned assessment years and thirdly no fair opportunity was granted by ld.CIT(A). Appellant by : Shri Sharad Vaze Revenue by : Shri Akhilesh Srivastava Date of hearing : 21.04.2025 Date of pronouncement : 25.04.2025
ITA Nos.586 and 585/PUN/2025
Vinaya Abhijit Gajendragadkar
2
3. At the outset, Ld. Counsel for the assessee submitted that the transaction in question is regarding the sale of immovable property held by the assessee and other 16 co-owners. It was submitted that the Joint Development Agreement was entered on 29.05.2007 and advance was paid through cash and cheque modes. Thereafter, Confirmation Deed was firstly entered on 30.11.2010 and then Revised Joint Development Agreement was entered on 09.02.2011 and possession given in the month of July
2011. He also submitted that on 29.09.2013 the Conveyance
Deed was finally executed after the completion of Joint
Development Agreement. The consideration received by the assessee and other co-owners was Rs.4,65,23,384/- whereas the value adopted by the Stamp Valuation Authority for calculating the stamp duty was Rs.7.19 crore He further stated that firstly the valuation of the property for the purposes of stamp duty should be adopted as prevailing on the date of entering the Joint
Development Agreement on 25.05.2007 when the advance was paid through Banking Channel. Secondly, it was contended that the taxability of the transaction could be examined for the year
A.Y. 2012-13 but not for A.Y. 2014-15. However, Ld. AO has made addition on the very same ground of calculating the long term capital gain on the alleged transaction for A.Y. 2012-13 as well as A.Y. 2014-15. He also referred to the paper book for both the impugned years placed on record running into 96 pages containing all the necessary details.
On the other hand, ld. Departmental Representative supported the orders of the lower authorities.
We have heard the rival contentions and perused the record placed before us. Ld. AO has made addition for long term capital
ITA Nos.586 and 585/PUN/2025
Vinaya Abhijit Gajendragadkar
3
gain at Rs.30,61,600/- and Rs.32,62,366/- for A.Yrs. 2012-13
and 2014-15. Both these additions have been made by way of calculating the long term capital gain from the very same transaction wherein the assessee along with other 16 co-owners entered into Development Agreement with Om Ved Turnkey
Project Developers on 29.05.2007 for the sale of immovable property situated at Village Mouje Charholi, Taluka Haveli,
District
Pune.
Sale agreement was revised vide
Joint
Development Agreement dated 09.02.2011 (possession given in the month of July, 2011) for consideration of Rs.4,65,23,384/- but the stamp duty was calculated on the Fair Market Value of the property at Rs.7.91 crore. Details of the documents and payments received by the assessee and other co-owners is as under :
A.
Chronology of Events :
Sr.
Event
Date
Remark
1
Token Advance
01/02/2007
Cash as Visar Pavati
2
Token Advance
25/05/2007
Token against Development
Agreement
3
Joint Development
Agreement (JDA)
29/05/2007
JDA executed for Rs.500.00
lakhs. One Tenant in the Court
4
Confirmation Deed
30/11/2010
Executed after
Court settlement of the dispute
5
Revised JDA
09/02/2011
Price revised to Rs.465.23
with the liability of litigant tenant
6
Possession
July 2011
Possession after receipt of total consideration
7
Conveyance
29/09/2013
Conveyance executed after completion of JDA. Stamp duty value Rs.791.28 lakhs
B.
Detail of Sale Consideration :
Sr.
Date
Total
Payment
Assessee’s share
Cheque
Number for Assessee
1
01/02/2007
3,33,000
6,937
By cash
2
25/05/2007
6,67,000
13,875
Ch.No.032014
ITA Nos.586 and 585/PUN/2025
Vinaya Abhijit Gajendragadkar
4
3
18/10/2010
1,00,00,000
4,16,567
Ch.No.032081
4
18/02/2011
13,80,846
58,026
Ch.No.032228
5
15/04/2011
1,13,80,846
4,74,202
Ch.No.032221
6
03/06/2011
1,13,80,846
4,74,202
Ch.No.032235
7
30/07/2011
1,13,80,846
4,74,202
Ch.No.032233
Total Rs.
4,65,23,384
19,11,074
From perusal of the above details, we firstly notice for entering into Development Agreement, advance in cash was received on 01.02.2007 and through banking channel vide Cheque bearing No.032014 on 25.05.2007. Therefore, in view of 2nd proviso to section 56(2)(vii)(b) of the Act for the purposes of stamp duty valuation, Fair Market Value as on 25.05.2007 should have been considered by Ld. AO for calculating long term capital gain for the year when the consideration is received and possession is passed on. We further notice that the AO has made the addition for the very same transaction for A.Y. 2012-13 and A.Y. 2014-15. The reason for such addition for A.Y. 2012-13 was the possession given by the assessee and other co-owners in July, 2011 and the reason for making addition for A.Y. 2014-15 is because the Conveyance Deed was executed on 29.09.2013. We however are of the view that ld. AO should have examined the transaction of long term capital from the alleged sale of immovable property by the assessee and other co-owners while calculating the income for A.Y. 2012-13 only and ld. AO grossly erred in making the addition for the very same transaction for A.Y. 2014-15. 7. We therefore set-aside the impugned order for A.Y. 2014-15 and delete the impugned addition made by Ld. AO.
So far as appeal for A.Y. 2012-13 is concerned, we notice that the impugned order is exparte and ld.CIT(A) has not passed a speaking order. Hon’ble Bombay High Court in the case of PCIT
ITA Nos.586 and 585/PUN/2025
(Bombay) has held that ld.CIT(A)/NFAC is obliged to dispose of the appeal on merits even in an exparte order. In view thereof and considering the submissions of the assessee, we deem it proper to restore the issue on merits to the file of ld.CIT(A) for necessary adjudication to be carried out in light of our observations (supra) about application of both the provisos to section 56(2)(vii)(b) of the Act and calculation of Fair Market Value of the immovable property in question as on 25.05.2007 for calculating the Long
Term Capital Gain. Ld.CIT(A) shall pass a speaking order as contemplated u/s.250(6) of the Act. Needless to say, the assessee will be given reasonable opportunity of hearing. Assessee is further directed to remain vigilant and not to take adjournment unless otherwise required for reasonable cause, failing which the ld.CIT(A) shall be free to proceed in accordance with law.
Findings of ld.CIT(A) is set aside and effective grounds of appeal raised by the assessee on merits in the instant appeal for A.Y.
2012-13 are allowed for statistical purposes.
In the result, the appeal of the assessee for A.Y. 2014-15 is allowed and appeal for A.Y. 2012-13 is allowed for statistical purposes.
Order pronounced on this 25th day of April, 2025. (ASTHA CHANDRA) (MANISH BORAD)
JUDICIAL MEMBER ACCOUNTANT MEMBER
पुणे / Pune; दनांक / Dated : 25th April, 2025. Satish
ITA Nos.586 and 585/PUN/2025
Vinaya Abhijit Gajendragadkar
आदेश क ितिलिप अ ेिषत / Copy of the Order forwarded to :
अपीलाथ / The Appellant. 2. यथ / The Respondent. 3. The Pr. CIT concerned. 4. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, “SMC” बच, पुणे / DR, ITAT, “SMC” Bench, Pune.
गाड फ़ाइल / Guard File. आदेशानुसार / BY ORDER,
//// Senior Private Secretary
आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.