VISHAVAMBHAR DAYAL MAHIPAL,GUJARAT vs. ITO, HISAR

These two appeals are filed by the assessee against the orders dated 25/4/2011 & 24/4/2012 passed by CIT(A), Rohtak for Assessment Year 2007- 08 & 2009-10 respectively.

The grounds of appeal are as follows:

The Learned Income Tax Officer was not right in law on the facts of the case while making additions of 3614400/- on account of Short term Capital Gain.

The Ld. AR submitted that for Assessment Year 2007-08, the details of cash credit are available with the assessee as well as there is certain additional evidence which the assessee will be filing before the Assessing Officer as relates to depreciation. The Ld. AR submitted that the assessee has claimed depreciation on Rolling Mill at Rs. 2,40,592/-. The Ld. AR submitted that for both the issues contested in the present appeal, the assessee is ready to produce all the relevant documents before the Assessing Officer. Therefore, the Ld. AR requested to remand the matter a fresh before the Assessing Officer. The Ld. AR further submitted that for Assessment Year 2009-10, the issue of short term capital gain has to be seen by the Assessing Officer in light of the additional evidence which has been obtained by the assessee at this juncture.

The Ld. DR submitted that the A.O as well as the CIT(A) has categorically dismissed the claim of depreciation as there was no manufacturing activity in Assessment Year 2007-08. While asking about the details of manufacturing activities, the Ld. AR and Ld. DR could not point out the specific Assessment Year in which manufacturing activity was started.

We have heard both the parties and perused the assessment order as well as CIT (A)’s order for both the Assessment Years under consideration. The Assessing Officer has not pointed out in his assessment order that as to how manufacturing activities during this particular year was not carried out by the assessee. In-fact Assessing Officer has not confronted the assessee about the same. The facts related to depreciation were not clearly coming from both the orders of the Assessing Officer as well as CIT (A). For the issue related to account of deposits received from the two parties, the assessee has received certain documents at this juncture. Therefore, it is appropriate to remand back this matter before the Assessing Officer to verify the claim of depreciation as well as the disallowance on account of deposits received from two parties. For the Assessment Year 2008-09 the short term capital gain which was added by the Assessing Officer was not clearly set out in the assessment order as well as in the order of the CIT (A). Whether, the assessee sold the entire plot of land with plant and machinery for Rs. 45 lacs though the said plot was purchased by the assessee’s wife for consideration of Rs.8.20 lacs vide registration dated 4/1/2006, is not clear from the Assessment Order as well as from the order of the CIT(A). Thus, it is necessary to give the clear findings as to how the short term capital gain obtained by the assessee is justified or not by the lower authority. Therefore, the matter is remanded back to the Assessing Officer for . Needless to say, the assessee be given opportunity of hearing before the Assessing Officer for both the Assessment Years.

In result, both the appeals are partly allowed for statistical purposes.