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Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-19, Mumbai, [in short CIT(A)] in appeal No. CIT(A)-19/IT.88/17(3)(1)/09-10 dated 21-02-2012. The Assessment was framed by the Income Tax Officer, Ward-17, 17(3)(1), Mumbai (in short ITO) for the assessment year 2001-02 vide order dated 31-12-2009 under section 143(3) read with section 253 of the Income Tax Act, 1961(hereinafter ‘the Act’).
2. The only issue in this appeal of assessee is against the order of CIT(A) confirming the action of the AO in treating the sale of co- ownership property and profit arising out of same declared by assessee
(A.Y. 2001-02) as capital gain and treated by the AO as income from other sources. For this assessee has raised following grounds: -
“1. On the facts and in the circumstances of the case the learned Commissioner of Income tax (Appeals) 19. Mumbai, erred in confirming the order of Assessing Officer in respect of sale of co- ownership property amounting to Rs. 3,11,108/-, as 'income from other source' instead of loss of Rs. 76,925/- under the head 'long term capital gains'.
On the facts and in the circumstances of the case, the said learned Commissioner of Income tax has also erred in confirming the order of the Assessing Officer without properly going into the facts and assessment order and treating the 'long tern) capital gain' of Rs. 3,11,108/- as 'income from other sources'
3. On the facts and in the circumstances of the ease, the said learned Commissioner of' Income tax has also erred in confirming the order of the Assessing Officer without appreciating the fact that the appellant had submitted vide letter no. T7/IT/41/2009-10 dated June 30. 2009 the confirmation of MIs. S.A. Enterprises dated December 18,2008, wherein they have confirmed that they have purchased the property from the co- owners and till dale they have not executed conveyance deed and they are in possession of the property and paid the amount of Rs. 70.00,000/- to the co-mner giving date-wise details of cheques.
4. On the facts and in the circumstances of the case, the said learned Commissioner of Income tax has also erred in confirming the order of the (A.Y. 2001-02) Assessing Officer without appreciating the fact that the appellant had submitted xerox copies of bank statements of the appellant vide letter dated December 23,2009 and stated in the assessment order.
5. On the facts and in the circumstances of the case, the said learned Commissioner of Income tax has also erred in confirming the order of the Assessing Officer without seeking any information at the time of hearing and thus the said order is with conjectures and surmises.'”
At the outset, it is noticed that despite specific notices were issued nobody is present from the assessee’s side. After hearing the learned Sr. Departmental Representative, we find that the assessee before the CIT(A) produce only Xerox copies of letter address to Bhaskar H. Trivedi and others dated 18-12-2008, from S.A. Enterprises stating that they have purchased property for which they have executed the conveyance date. It was claimed that there is possession of the property and they have paid a sum of ₹ 70 lacs. But the assessee before the CIT(A) failed to produce any details and CIT(A) recorded this in his order at Para 7 which reads as under: -
“7. I have gone through the grounds of appeal, statement of facts, assessment order. At the time of appellate proceedings, the assessee produced a Xerox copy of the letter addressed to Bhaskar H. Trivedi & Others dated Dec. 18 2008, from S.A. enterprises stating that they have purchased the property for which they have yet to execute the conveyance deed. However, they are in possession of the property as they have paid Rs. 70 lacs for the said property. They had given the details for (A.Y. 2001-02) the said cheque given by them. On going through the copy of this letter it is seen that a person who has signed the letter is not clear. Secondly in whose bank a/c this money is deposited that also is not clear. The details of only the cheque issued by S.A. Enterprises is furnished. The details of cheque deposited and whether it was realized or not is not given. The assessee has not produced the bank a/c in which the so called cheque received form S.A. builder is deposited. In response to the summons issued by the A.O. that the purchaser has not attended. Neither the purchaser nor the assessee has produced such record which would substantiate its claim that the sale was actually affected neither at the time of assessment nor at the time of appellate proceedings. In the written submission filed by the appellant also no new facts have been brought to light. The CIT(A)- XXVII has also held in his order No. CIT(A)XXVIJ/JTO 17(3)(1)/IT 411/05-06, dated 19.12.06 that the property is not properly reflected in the wealth tax return. At the time of current appellate proceedings also the assessee has not produced anything to show that the property is correctly reflected in the wealth tax return. The assessee in his written submission has only relied on the case law in which he had relied at the time of earlier appellate proceedings stating that the income should be considered under capital gains. The appellant has not brought out the facts clearly either at the assessment stage or at the current appellate stage on why this amount
(A.Y. 2001-02) should be treated under capital gains. Nor it has furnished complete details in view of the direction of the ITAT of where the consideration received by cheque has gone. It has only stated that S.A. Builders has paid by cheque but nowhere it has been stated that cheque has been drawn in whose name, in which a/c it has been deposited and how this consideration has been received by the appellant. In view of the non-production of the complete facts by the appellant the case law on which the appellant has relied becomes redundant.”
We find that the assessee is unable to give details before CIT(A) and in absence of the same he proceeded to decide the issue of the same. In the interest of natural justice and the facts of the case that nothing was produced before the CIT(A), we set aside the order of CIT(A) and remand the matter back to the file to allow one more opportunity for explaining the entire case and assessee also to give evidences to support his claim. Accordingly, the order of CIT(A) is set aside and matter is remanded back to his file for fresh adjudication. The appeal of the assessee is allowed for statistical purposes.
In the result, the appeal of Assessee is allowed for statistical purposes.
Order pronounced in the open court on 23-11-2017.