LAXMIBEN MANJI PATEL,MUMBAI vs. ITO WD 2, THANE

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ITA 1239/MUM/2017Status: DisposedITAT Mumbai14 September 2021AY 2010-114 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal restored the issue back to the Assessing Officer for fresh adjudication. The AO is to consider the factual position, including the suit filed for cancellation of sale deeds, and provide a hearing to the assessee.

What were the facts?

The assessee along with co-owners sold land but did not reflect capital gains. The AO computed business income on the sale of land and added it to the assessee's income, which was confirmed by the CIT(A). The assessee claimed the land was transferred by fraud without consideration and filed a suit for cancellation.

What were the issues?

Whether the AO correctly treated the sale of land as business income without considering the assessee's claim of fraudulent transfer and pending litigation for cancellation of sale deeds.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 147

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “A” BENCH, MUMBAI

Before: HON’BLE SHRI MAHAVIR SINGH, VP & HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM

For Appellant: Shri Bimlendu Bhushan – Ld AR
For Respondent: Shri Brajendra Kumar- Ld. Sr. DR

O R D E R Manoj Kumar Aggarwal (Accountant Member) 1. Aforesaid appeal by assessee for Assessment Year (AY) 2010-11 arises out of the common order of learned Commissioner of Income-Tax (Appeals)-2, Thane [CIT(A)], dated 29/12/2016 in the matter of assessment framed by Ld. Assessing Officer (AO) u/s 143(3) r.w.s 147 on 30/03/2016. The impugned order is common order for AYs 2010-11 in respect to 4 assessees i.e. (i)Laxmiben Manji Patel (assessee); (ii) Manji Bhanji Patel; (iii) Narottam Manji Patel; (iv) Vanita Manji Patel.

2.

During the course of hearing, both the representatives converged on the point that the matter may be restored back to the file of Ld. AO with similar directions as given by the coordinate bench of Pune Tribunal in dated 21/02/2020 passed in case of other co-owner for AY 2010-11 as well as in the case of assessee for AY 2011-12. The copy of the order has been placed on record.

3.

The perusal of case records would show that the assessee along with other co-owners sold certain pieces of land during the year but no capital gain was reflected in the return of income. The Ld. AO computed Business income of Rs.165.52 Lacs on sale of land and added the same to the income of the assessee. The Ld. CIT(A), vide common order dated 29/12/2016, following appellate order of one co-owner namely Narottam Patel for AY 2011-12, confirmed the stand of Ld. AO. Aggrieved, the assessee is in further appeal before us. 4. We find that impugned order, in the case of one of the co-owner i.e. Manji Bhanji Patel, came up for challenge by the assessee before Pune Tribunal vide ITA No.1242/Mum/2017 & ors. Common order dated 21/02/2020. During hearing, it was submitted that the assessee had not transferred any piece of land willingly but the transferee companies got the land transferred in their name by fraud and misguiding the assessee. The assessee did not receive any consideration and filed suit before court for revocation and cancellation of the sale agreements / deeds. After considering the same, the bench held as under: - 9. We have heard the rival contentions and perused the material available on record. The issue raised in the present appeal is with respect to the alleged profit received on sale of land. It is the assessee’s contention that the assessee has never received any sale consideration and has filed Suit before the Court of Alibaug for revocation and cancellation of the sale agreement/deeds. In the revenue records, the name of the original owner has also been registered which is evident from the copy of revenue records which is placed by the Assessee in the paper book. We find

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