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Income Tax Appellate Tribunal, “A” BENCH, PUNE
आदेश / ORDER
PER D. KARUNAKARA RAO, AM :
This appeal filed by assessee is directed against the order of Commissioner of
Income Tax (Appeals)-9, Pune dated 10.03.2017 for assessment year 2011-12.
The assessee has raised following grounds in appeal:
“1. On the facts and in the circumstances of the case the ld. CIT(A) has erred in sustaining the addition of Rs.1,00,00,000/- on account of long term capital gain arose on transfer of ownership of adversary possession with respect to the agricultural land sold during the year. 2. On the facts and in the circumstances of the case and without prejudice to ground No.1 the long term capital gain arose on agricultural land sold by the appellant is otherwise also not taxable since the said amount is utilized for purchase of agricultural lands within the stipulated period u/s.54B of the I. T. Act 1961. 3. On the facts and in the circumstances of the case the ld. CIT(A) has erred in sustaining the following additions-: i. Cash deposits in various banks totaling to Rs.1,17,87,010/-, the source for which is explainable and without prejudice the addition if warranted could have been of the peak deposits. ii. Time deposit made in Cosmos Co-op Bank Ltd. of Rs. 75,00,000/-, the source of which stands explained.
On the facts and in the circumstances of the case the ld. CIT(A) has erred in sustaining the addition of investment made in purchase of agricultural lands totaling to Rs.1,02,24,000/- overlooking the fact that sources stand explained. 5. The above grounds of appeal may kindly be allowed to be amended, altered, modified etc. in the interest of natural justice.”
Briefly stated relevant facts of the case are that the assessee is an individual
and engaged in the business of builders and developers. The assessee filed return of
income declaring total income Rs.2,79,419/-. In the assessment proceedings, the
3 ITA No.1521/PUN/2017 S.A. No.23/PUN/2018 A.Y.2011-12
Assessing Officer assessed income of Rs.3,97,90,500/-. The Assessing Officer made
addition of Rs.1,00,00,000/- on account of long term capital gain, Rs.1,17,87,010/-
on account of unexplained cash deposits, Rs.75,00,000/- on account of
unexplained term deposits in the bank accounts and Rs.1,02,24,000/- on account
of purchase of immovable properties. During the First Appellate proceedings, all
these issues were agitated by the assessee and appeal of the assessee was
dismissed. The Commissioner of Income Tax (Appeals) confirmed the additions
made by the Assessing Officer.
Aggrieved with the order of Commissioner of Income Tax (Appeals), the
assessee is in appeal before us.
At the outset, the Ld. Counsel for the assessee brought our attention to his
prayer dated 20.03.2018 and brought our attention to the enclosed various
documents (i.e. sale deed dated 25.01.2011, deed of acquiring adversary rights
dated 25.01.2011, purchase deed dated 16.03.2011 and sale deed dated
16.12.2010 etc) and informed the same constitutes of additional evidences. The Ld.
AR prayed for admitting the same and remanding the papers and the issues raised
in the ground of appeal to the file of Assessing Officer for fresh adjudication.
Per contra, Ld. DR opposed the above preliminary issue dutifully.
On hearing both the parties on preliminary issue, we examine the prayer
made by assessee in this regard and the same is extracted herein below:
“In accordance with the Rule 29 of Income Tax (Appellate Tribunal) Rules, 1963 the appellant produces additional evidences enclosed herewith as enumerated below : i. Suit filed before the Hon'ble Civil Judge, Pune for acquiring adversary possession- Flag No. 1
4 ITA No.1521/PUN/2017 S.A. No.23/PUN/2018 A.Y.2011-12
ii. Sale Deed dated 25.01.2011 of agricultural land as consenting party-Flag No. 2 iii. Deed entered for acquisition of adversary possession in respect of land at Haveli, Pune dated 25.01.2011. Flag No. 3 iv. Purchase Deed of land at Parner dated 16.03.2011- Flag No. 4 v. Sale Deed dated 16.12.2010 of land acquired under adversary passion- Flag No. 5 These evidences could not be filed before the lower authorities for the reasons stated in affidavit filed before the Hon'ble Tribunal during the stay proceedings. Copy enclosed herewith. These additional evidences go to the root of the issue involved in the appeal and therefore, it is prayed that the same be accepted and adjudicated on merit.”
We find these documents filed by assessee are required for adjudication of the
issues as they go to the root of the matter. Hence, the same are admitted.
Accordingly, all the issues raised in appeal are remitted back to the file of Assessing
Officer for fresh adjudication after considering the said additional evidences. Thus,
we direct the Assessing Officer to adjudicate the issue afresh after granting
reasonable opportunity of being heard to the assessee in accordance with set
principles of natural justice. Accordingly, grounds raised in appeal by assessee
are allowed for statistical purposes.
S.A. No.23/PUN/2018 ( A.Y. 2011-12)
In the preceding paragraphs of this order, we have discussed the issues and
the additions made by the Assessing Officer. The Assessing Officer issued the
demand notice u/s.156 of the Act asking assessee to pay demand of
Rs.1,93,49,638/-. The assessee filed Stay Application before us requesting to stay of
entire demand. In this regard, in the light of the prayer for admitting of additional
evidences and consequential remand of the issue, both the parties submitted that
Stay Application could be heard along with main appeal i.e. ITA
No.1521/PUN/2017. Accordingly, the appeal came up for adjudication today.
5 ITA No.1521/PUN/2017 S.A. No.23/PUN/2018 A.Y.2011-12
As per discussion given in the aforementioned paragraphs up to para 7, we have decided to admit the additional evidences and to remand all the issues raised in the appeal on merits to the file of Assessing Officer for fresh adjudication. Considering the same, we are of the opinion that adjudication of stay application becomes merely an academic exercise in view of our decision of setting aside the entire order of Commissioner of Income Tax (Appeal). Thus, stay application moved by the applicant is dismissed.
To sum up, appeal of the assessee is allowed for statistical purposes and stay application moved by the applicant is dismissed.
Order pronounced on 27th day of March, 2018.
Sd/- Sd/- (सुषमा चावला / Sushma Chowla ) (डी.क�णाकरा राव/D. Karunakara Rao) �या�यक सद�य /JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER पुणे / Pune; �दनांक / Dated : 27th March, 2018. SB आदेश क� ��त�ल�प अ�े�षत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT (Appeals)-9, Pune. 4. The Pr.CIT-5, Pune. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “ए” ब�च, 5. पुणे / DR, ITAT, “A” Bench, Pune. गाड� फ़ाइल / Guard File. 6.
// True Copy// आदेशानुसार / BY ORDER,
�नजी स�चव /Private Secretary आयकर अपील�य अ�धकरण, पुणे / ITAT, Pune.