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Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI
Before: SHRI G.S.PANNUShri Ajit Kumar S.Jain
The captioned appeal filed by the assessee pertaining to assessment year 2010-11 is directed against an order passed by CIT(A)-32, Mumbai dated 30/09/2014, which in turn arises out of an order passed by the Assessing Officer under section 143(3) of the Income Tax Act, 1961 (in short ‘the Act’) dated 30/03/2013. In this appeal, assessee has raised the following Grounds of appeal:-
1. Under the facts and circumstances of the case the Commissioner of Income Tax (Appeal)-32, Mumbai has erred in passing the order Ex parte.
2. Under the facts and circumstances of the case the Commissioner of Income Tax (Appeal)-32, Mumbai has erred in passing the order without properly appreciation the facts of the case.
(Assessment Year : 2010-11) 3. Under the facts and circumstances of the case the Commissioner of Income Tax (Appeal)-32, Mumbai has erred in confirming the treatment of capital gain as Short Term Capital Gain instead of Long Term Capital Gain claimed by the assessee.
4. Under the facts and circumstances of the case the Commissioner of Income Tax (Appeal)-32, Mumbai has erred in confirming the computation of capital gain at Rs. 20 lacs by adopting cost of acquisition at Rs. Nil.
5. Under the facts and circumstances of the case the Commissioner of Income Tax (Appeal)-32, Mumbai has erred in confirming the addition of Rs. 13 lacs in respect of interest paid on loan and Rs. 3 lacs in respect of Legal & Professional charges claimed by assessee u/s 57 of IT Act, 1961.
At the outset, the Ld. Representative for the assessee pointed out that assessee would be satisfied if the matter is restored back to the file of Assessing Officer for examination of various issues afresh because at the stage of assessment as well as before the CIT(Appeals), assessee could not produce the relevant documents due to unintended reasons. It was pointed out that the CIT(Appeals) has even dismissed the appeal of the assessee ex-parte. Ld. Representative for the assessee explained that the major addition is on account of long term capital gain earned by the assessee on the sale of property, which has been assessed by the lower authorities as short term capital gain and the entire sale consideration has been brought to tax and no benefit has been allowed on account of cost of acquisition, etc. It was pointed out that no deduction on account of cost of acquisition was allowed by the lower authorities in the absence of the original purchase deed, which assessee could not produce at the relevant point of time. In this context, he has drawn my attention to the Item Nos. 3 to 8 of the Paper Book, wherein is placed the following documents:-
(Assessment Year : 2010-11) Sr.No. Particulars Page Nos. 3 Allotment Cum possession letter dated 30 01.05.2006 in respect of Flat No.1 and one open parking place No.2 in Heena Madhu Park Co-opertive Housing Society Ltd. ,Khar(W), Mumbai. 4 Bank statement of Bharat Co. Op. Bank Ltd 31 showing payment to Shri Madhukar on 12.05.2006 of Ajit S. Jain 5. Agreement (Sale Deed) purchased by the 32-55 appellant dated 31st October, 2006 (Open Parking Place No.1A under stilt) for Rs.1,00,000/- Sale deed dated 31st October, 2006 of 6. 56-80 Purchase of Flat No.1 and Open Parking Place under stilt No2 of Rs.15,00,000/- 7. Agreement of Purchase flat No.3 in Earth 81-114 Konark dated03.11.2009 8. Bank Statement for the period September 115 2008 Ld. Representative for the assessee pointed out that the aforesaid documents are now available with the assessee and, therefore, requested that the matter be sent back to the file of Assessing Officer so that appropriate determination of taxable income is carried out in accordance with law.
On the other hand, Ld. Departmental Representative has not seriously opposed the plea of the assessee for remanding the matter back to the file of the Assessing Officer for assessment afresh on the stated issue of determination of capital gain on sale of property on account of disallowance of expenses while computing income under the head ‘income from house property’.
I have heard the rival submissions. Ostensibly, the appellant has sold the property during the year under consideration and entire sale consideration has been assessed to tax primarily on the ground that relevant purchase deed, etc. was not on record so as to evidence the (Assessment Year : 2010-11) cost of acquisition or the date of acquisition. In the interest of justice and fair play, it would be appropriate that the matter goes back to the file of Assessing Officer to consider the evidences now sought to be placed by the assessee in support of return of income filed, whereby the property sold is stated to have been acquired in earlier years for a consideration of Rs.15.00 lacs. Be that as it may, the Assessing Officer shall consider the material and submissions which the assessee may put-forth in support of his plea and thereafter, rework the income as per law.
Further, with regard to the disallowance of expenses under the head ‘income from other sources’, herein also the assessee explained that the expenses namely, bank interest paid on loan, legal and professional charges, etc. have been disallowed for want of appropriate material. On this point also, Ld. Representative for the assessee has referred to the fresh evidence in the form of bank statement, etc. in support of his plea. This matter is also directed to be revisited by the Assessing Officer in accordance with law. Thus, without going into the merits of the grounds raised
, the order of the CIT(A) is set-aside and the issue is restored to the file of the Assessing Officer for reassessment in accordance with law.
6. In the result, appeal of the assessee is partly allowed, as above. Order pronounced in the open court on 29/06/2016