Shri Dilip Jandev Giram, Beed v. ITO, Nashik

ITA 1453/PUN/2012 | 2005-2006
Pronouncement Date: 29-10-2013 | Result: Allowed

Appeal Details

RSA Number 145324514 RSA 2012
Assessee PAN AOYPG6736M
Bench Pune
Appeal Number ITA 1453/PUN/2012
Duration Of Justice 1 year(s) 3 month(s) 26 day(s)
Appellant Shri Dilip Jandev Giram, Beed
Respondent ITO, Nashik
Appeal Type Income Tax Appeal
Pronouncement Date 29-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 29-10-2013
Assessment Year 2005-2006
Appeal Filed On 03-07-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES A PUNE BEFORE SHRI G.S. PANNU ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR JUDICIAL MEMBER ITA NO. 1453/PN/2012 (ASSESSMENT YEAR : 2005-06) SHRI DILIP JANDEV GIRAM GIRAM NIVAS PANGRI ROAD VASANT WADI BEED. PAN : AOYPG6736M . APPELLANT VS. INCOME TAX OFFICER C.I.B. NASHIK. . RESPONDENT APPELLANT BY : SHRI M. K. KULKARNI RESPONDENT BY : SHRI P. L. PATHADE DATE OF HEARING : 29-10-2013 DATE OF PRONOUNCEMENT : 29-10-2013 ORDER PER G. S. PANNU AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AURANGABAD DA TED 31.03.2009 WHICH IN TURN HAS ARISEN FROM AN ORDER DATED 28.12.2007 PASSED BY THE ASSESSING OFFICER UNDER SECTION 144 OF THE INCOME-TAX ACT 1 961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2005-06. 2. AT THE OUTSET THE LEARNED COUNSEL FOR THE ASSES SEE SUBMITTED THAT THERE WAS A DELAY IN FILING OF THE APPEAL BEFORE THE TRIB UNAL BY 730 DAYS. IT WAS CANVASSED THAT THE DELAY WAS UNINTENTIONAL AND FOR THE REASONS BEYOND THE CONTROL OF THE ASSESSEE AND IN SUPPORT AFFIDAVIT O F THE APPELLANT DATED 28.10.2013 CONTAINING THE FOLLOWING AVERMENTS IS PL ACED ON RECORD :- 1. I DILIP JANDEV GIRAM AGE ABOUT 50 RESIDE NT OF GIRAM NIWAS PANGRI ROAD VASANT WADI BEED DIST.BEED RESIDING IN AGR ICULTURAL FARM 5 KMS AWAY FROM BEED A TWO ROOM TENEMENT OCCUPATION AGR ICULTURIST WITH NO OTHER SOURCE OF INCOME EXCEPT AGRICULTURAL INCOME DO HER EBY SOLEMNLY AFFIRM AND STATE AS UNDER: ITA NO. 1453/PN/2012 A.Y. 2005-06 2. I ALONG WITH 11 OTHER FAMILY MEMBERS BEING CLOSE RELATIVES HAD SOLD AGRICULTURAL LAND FOR A CONSIDERATION OF RS. 20 00 000/- (RS. TWENTY LAKHS ONLY) OUT OF WHICH THE SALES PROCEEDS TO MY SHARE WAS RS. 1 60 000/- (ONE LAKH SIXTY THOUSAND ONLY) AS MENTIONED IN THE SALE DEED AT SR. NO. 11. THE AMOUNT WAS RECEIVED BY CH.NO. 13722 DRAWN ON GANRAJ NAGARI SAHAKARI BANK LTD. BEED. THE OTHER OWNERS ALSO RECEIVED THEIR SHARE OF CONSIDERATION AS MENTIONED IN THE SALE DEED. 3. THE A. 0. ON THE BASIS OF AIR FURNISHED UND ER S. 285BA A NOTICE UNDER S. 142(1) WAS ISSUED TO THE ASSESSEE CALLING HIM TO FILE THE RETURN OF INCOME. THE ASSESSEE BEING FARMER-AGRICULTURIST COMPL ETELY IGNORANT ABOUT THE INCOME-TAX LAW COULD NOT RESPOND TO THE NOTICES AND AS A RESULT THE A. 0. PASSED EXPARTE ASSESSMENT UNDER S. 144 OF THE ACT O N A TOTAL INCOME OF RS.20 00 000/- (RS. TWENTY LAKHS ONLY) WHICH WAS IN FACT THE TOTAL CONSIDERATION PAID TO 12 PERSONS AS PER SALE DEED V IDE ORDER DT. 28-12-2007. 4. I SUBMIT THAT MAY SHARE IN THE CONSIDERATI ON DUE TO THE SALE OF LAND BY 12 PERSONS WAS RS. 1 60 000/- (RS. ONE LAKH SIXTY T HOUSAND ONLY) BUT THE SAME TAKEN FOR COMPUTATION OF CAPITAL GAIN (LONG TE RM) OF RS. 20 00 000/- (RS. TWENTY LAKHS ONLY) WHICH I NEVER EARNED. 5. THE ASSESSEE ON RECEIVING THE ASSESSMENT OR DER APPOINTED SHRI VIVEK JOSHI OF AURANGBAD THE CHARTERED ACCOUNTANT TO FI LE APPEAL BEFORE CIT(A) AURANGABAD AND REPRESENT HIS CASE. THE LD. CIT(A) DECIDED THE APPEAL EXPARTE AS THE CHARTERED ACCOUNTANT DID NOT APPE AR BEFORE THE CIT(A) AND AS A RESULT THE APPEAL WAS DISMISSED FOR WANT OF PR OSECUTION. THE APPEAL WAS ALSO DISMISSED AS TIME BARRED AS IT WAS FILED LATE HOLDING THAT ASSESSEE ALSO COULD NOT FILE LETTER TO CONDONE THE DELAY. 6. THE RECORD SHOWS THAT THE APPLICATION FOR C ONDONTION OF DELAY WERE FILED ON 10-6-2008 AND 21-7-2008 DULY ACKNOWLEDGED BY THE OFFICE OF THE CIT(A) AURANGABAD BUT CN~(A) DISMISSED THE APPEAL VIDE HIS APPEAL ORDER DT. 31-3- 2009 WITHOUT TAKING INTO CONSIDERATION THE SAID APP LICATIONS FOR CONDONATION OF DELAY. 7. THAT MY APPEAL FILED BEFORE LD. CIT (A)-AURANGABAD WAS DISMISSED ON TWO COUNTS VIZ (A) THE FILING OF THE A PPEAL WAS DELAYED AND NO REQUEST WAS MADE FOR CONDONATION OF DELAY AND NOBOD Y ATTENDED ON MY BEHALF TO REPRESENT ME IN THE APPEAL PROCEEDINGS. B UT I SUBMIT THAT I HAD ALREADY SUBMITTED TWO APPLICATIONS WITH A REQUEST T O CONDONE THE DELAY. 8. I FURTHER SUBMIT THAT AFTER MY APPEAL WAS D ECIDED BY LD. CIT(A) VIDE ORDER DT. 31-03-2009 I WAS WITHOUT ANY ADVOCATE/CA TO ADVICE ME IN THE MATTER. 9. I HAD WRITTEN A LETTER (IN MARATHI) TO THE THEN CA SHRI VIVEK JOSHI TO MAKE FURTHER ARRANGEMENTS IN THE MATTER (LETTER DT. 21-5-2009). BUT HE DID NOT HELP ME AS PROBABLY I WAS NOT ABLE TO PAY HIS FEES. I AM FINANCIALLY VERY UNSOUND TO PAY THE COUNSEL FEES AS MY ONLY SOURCE O F INCOME IS 'AGRICULTURE'. 10. IT IS A FACT THAT I WAS ALSO NOT ABLE TO F ILE MY APPEAL BEFORE THIS HON'BLE TRIBUNAL AFTER MY APPEAL WAS REJECTED BY COMMISSION ER (APPEALS) AURANAGABAD AS I HAD NO ARRANGEMENT TO PAY THE APPE AL FEES OF RS. 10 000/- (RS. TEN THOUSAND ONLY) WHICH PAYMENT WAS BEYOND MY CAPACITY AND ALSO UNABLE TO PAY COUNSEL'S FEES AT PUNE FOR ENGAGING H IM AS A COUNSEL TO REPRESENT THE APPEAL BEFORE HON'BLE TRIBUNAL. I HAD NO SUFFICIENT FUNDS TO PAY THE SAID FEES. IT BECAME IMPOSSIBLE TO PAY SUCH A L ARGE AMOUNT AND AFTER 21- 5-2009 TILL 03-07-2012 I RAN PILLER TO POST TO COLL ECT THIS AMOUNT FROM MY FRIENDS RELATIVES ETC. BUT WAS NOT ABLE TO COLLECT THE SAID AMOUNT IN ORDER TO PAY THE ITA NO. 1453/PN/2012 A.Y. 2005-06 APPEAL FEES AND COUNSEL FEES AND TO GET MY APPEAL A DMITTED BEFORE HON'BLE TRIBUNAL TO SECURE PROPER JUSTICE. 11. THEN SHRI LOHIYA MY LOCAL CONSULTANT AT BE ED REQUESTED ME TO APPROACH THE COUNSEL AT PUNE TO PREPARE MY APPEAL A ND TO RETURN TO BEED TO MAKE ARRANGEMENTS FOR PAYMENTS. THE BEED DISTRICT A ND PROMINENTLY THE TALUKA PALCES LIKE VASANWADI GEVARI ASTITI-PADUDA WERE REELING UNDER SEVERE DRAUGHT AND IT BECOME IMPOSSIBLE TO COLLECT SUCH A LARGE AMOUNT. BUT IN PUNE MY COUNSEL DID HELP ME AND PAID THE NECESSA RY FEES OF RS 10000/- WITH A VIEW TO DO COMPLETE JUSTICE TO ME. ACCORDING LY AFTER HE PAID THE NECESSARY FEES THE APPEAL CAME TO BE FILED. 12. THE AFFIANT FURTHER SUBMITS THAT THIS WAS THE MAIN REASON FOR DELAYED FILING OF THE APPEAL COUPLED WITH THE FACT THAT AFT ER THE DISPOSAL OF THE FIRST APPEAL BY AURANGABAD CIT(A) ON 31-3-2009 I WAS NOT ABLE TO APPOINT MY COUNSEL TO PLEAD MY CASE FOR I WAS NOT ABLE TO PAY THEIR FEES. IN THE EARLIER AFFIDAVIT I COULD NOT EXPLAIN THIS AS MY COUNSEL AT PUNE PREVENTED ME TO DISCLOSE THE FACT THAT HE HAD PAID MY NECESSARY FEE S. 13. THE ASSESSEE-APPELLANT THEREFORE REQUEST S THIS HON'BLE TRIBUNAL TO CONDONE THE DELAY THAT OCCURRED IN FILING THIS APPE AL AND DO COMPLETE JUSTICE TO ME. 3. WE HAVE PERUSED THE REASONS ADVANCED BY THE ASSE SSEE FOR DELAY IN FILING OF THE PRESENT APPEAL AND FIND THAT THE BONA FIDES OF THE SAME HAVE NOT BEEN ASSAILED BY THE REVENUE WHICH IS HEREBY CONDO NED. 4. IN BRIEF RELEVANT FACTS ARE THAT ASSESSEE IS A N INDIVIDUAL WHO WAS FOUND TO HAVE SOLD A PROPERTY ALONGWITH OTHER 11 CO-OWNER S FOR A TOTAL CONSIDERATION OF RS.20 00 000/-. ON THE BASIS OF INFORMATION CONT AINED IN THE ANNUAL INFORMATION RETURN FURNISHED U/S. 285BA OF THE ACT THE ASSESSING OFFICER CAME TO KNOW ABOUT THE SALE OF PROPERTY. ACCORDINGL Y THE ASSESSING OFFICER ISSUED NOTICE U/S. 142(1) OF THE ACT REQUIRING THE ASSESSEE TO FURNISH DETAILS OF THE PROPERTY SOLD COST OF ACQUISITION OF PROPERTY ETC.. HOWEVER THERE WAS NO RESPONSE FROM THE ASSESSEE AND ACCORDINGLY THE ASSE SSING OFFICER COMPUTED THE CAPITAL GAIN AT RS.20 00 000/- WITHOUT ALLOWING ANY BENEFIT OF THE COST OF ACQUISITION AND THE TOTAL INCOME WAS ASSESSED AT RS .20 00 000/-. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHICH W AS BELATED. THE SAME HAS BEEN DISMISSED BY THE CIT(A) ON THE GROUND THAT THE RE WAS NO REQUEST FOR CONDONATION OF DELAY AND THAT NOBODY ATTENDED ON BE HALF OF THE ASSESSEE IN APPEAL PROCEEDINGS. FOR THE AFORESAID REASONS ASSE SSEE IS IN FURTHER APPEAL BEFORE US. ITA NO. 1453/PN/2012 A.Y. 2005-06 5. BEFORE US THE LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTLY POINTED OUT THAT THE ASSESSMENT MADE BY THE ASSESSING OFFICER I S UNJUST INASMUCH AS THE ENTIRE SALE CONSIDERATION HAS BEEN TAXED AS CAPITA L GAINS. SECONDLY IT IS POINTED OUT THAT IN THE CASES OF OTHER CO-OWNERS OF THE PROPERTY WHOSE ASSESSMENTS HAVE BEEN COMPLETED ON THE BASIS OF THE RELEVANT SALE-DEED THE INCOME HAS BEEN DEDUCED ON THE BASIS OF RESPECTIVE SHARES IN THE TOTAL SALE CONSIDERATION AND IN THAT REGARD REFERRED TO THE OR DER OF THE CIT(A) AURANGABAD IN THE CASE OF ONE GIRAM NANDU JANDEV A COPY OF WHICH HAS BEEN PLACED AT PAGES 6 TO 12 OF THE PAPER BOOK. IT IS ALSO POINTED OUT THAT THE INCOME TAX OFFICER WARD 2(4) BEED HAS FURNISHED A REMAND REPORT TO THE CIT(A) AURANGABAD WHEREIN THE CAPITAL GAINS IN R ESPECT OF 8 CO-OWNERS HAVE BEEN ADMITTED AT RS.2 08 858/- WHICH SHOWS THAT THE ASSESSMENT OF CAPITAL GAINS IN THE HANDS OF THE ASSESSEE WAS UNJUST. ACC ORDINGLY IT IS SUBMITTED THAT THE ASSESSMENT OF CAPITAL GAINS IN THE HANDS OF THE ASSESSEE BE DIRECTED TO BE MADE AT APPROPRIATE AMOUNT. 6. ON THE OTHER HAND THE LEARNED DEPARTMENTAL REPR ESENTATIVE SOUGHT TO POINT OUT THAT THE ASSESSEE HAS NOT APPEARED BEFORE THE LOWER AUTHORITIES AND THE ASSESSMENT WAS FINALIZED ON THE BASIS OF THE IN FORMATION AVAILABLE ON RECORD. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. ADMITTEDLY THE INCOME LIABLE TO BE TAXED IN THE PRESENT CASE IS ON ACCOUNT OF A PROPERTY SOLD BY THE ASSESSEE ALONGWITH THE OTHER CO-OWNERS FOR A TOTAL CONSIDERATION OF RS.20 00 000/-. THE ASSESSING OFFICER HAS COMPUTED THE CAPITAL GAIN AT RS.20 00 000/- WHICH IS OBVIOUSLY ERRONEOUS. THE T OTAL CONSIDERATION AS PER THE SALE-DEED A COPY OF WHICH HAS BEEN PLACED IN T HE PAPER BOOK AT PAGES 13 TO 28 IS RS. 20 00 000/- WHICH ACCRUES TO ALL T HE CO-OWNERS SO HOWEVER THE ASSESSEE HAS BEEN TAXED ON THE ENTIRE SALE CONS IDERATION. THE ASSESSING OFFICER HAS COMPUTED THE CAPITAL GAINS AT THE TOT AL VALUE OF SALE CONSIDERATION AND NOT SUBJECTING IT TO THE SHARE OF THE ASSESSEE AND ALSO WITHOUT ALLOWING ITA NO. 1453/PN/2012 A.Y. 2005-06 ANY RELIEF ON ACCOUNT OF COST OF ACQUISITION THE PR OPERTY. THE REASON FOR THE ASSESSING OFFICER TO DO SO WAS THE ABSENCE OF THE A SSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS. THE ASSESSEE HAS EXPLAINED THE REASONS BEFORE US WHICH ARE A PART OF THE ASSESSEES AFFIDAVIT REPROD UCED ABOVE. BE THAT AS IT MAY IT CLEARLY EMERGES THAT THE IMPUGNED ASSESSMEN T IS UNTENABLE HAVING REGARD TO THE ERRORS MENTIONED ABOVE AND ALSO ON TH E BASIS OF THE STAND OF THE REVENUE IN THE CASES OF OTHER CO-OWNERS AS BROUGHT OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE. THEREFORE WE DEEM IT FI T AND PROPER TO SET-ASIDE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICE R WITH DIRECTION TO RE-WORK THE CAPITAL GAINS IN THE CASE OF THE ASSESSEE IN TERM S OF THE APPLICABLE PROVISIONS OF LAW AFTER ALLOWING THE ASSESSEE A REASONABLE OPP ORTUNITY OF BEING HEARD. NEEDLESS TO SAY THE ASSESSEE SHALL APPEAR BEFORE T HE ASSESSING OFFICER AND SUBMIT THE RELEVANT DETAILS AND MATERIAL IN ORDER T O COMPUTE THE DUE AMOUNT OF CAPITAL GAINS ON ACCOUNT OF THE IMPUGNED SALE OF PROPERTY. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS ABOVE. ABOVE DECISION WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES AT THE CONCLUSION OF THE HEARING O N 29 TH OCTOBER 2013 SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED : 29 TH OCTOBER 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A) AURANGABAD; 4) THE CIT AURANGABAD; 5) THE DR A BENCH I.T.A.T. PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T. PUNE