Atmaram Gopinath Patil Mumbai v. Ito 25 1 2 Mumbai

In The Income Tax Appellate Tribunal Mumbai Benches C Mumbai Before Shri Joginder Singh Judicial Member And Shri Ramit Kochar Accountant Member Ita No 3296 Mum 2016 Assessment Year 2011 12 Atmaram Gopinath Patil 4 Bhayandarkar Sadanghartan Pada Sant Mirabai Road Newar W E Highway Dahisar E Mumbai 400068 Vs Income Tax Officer 25 1 2 C 11 Building Pratyakshakar Bhavan B K C Bandra East Mumbai 400051 Assessee Revenue Pan No Aiqpp 1002 M Assessee By None Revenue By Shri Rajat Mittal Dr Date Of Hear Ing 21 12 2017 Date Of Order 21 12 2017 Atmaram Gopinath Patil Ita No 3296 Mum 2016 2 O R D E R Per Joginder Singh Judicial Member The Assessee Is Aggrieved By The Impugned Order Da Ted 25 02 2016 Of The Ld First Appellate Authority Mu Mbai The Only Ground Raised In The Appeal Pertains To Ca Pital Gains At Rs 1 83 36 546 As Against The Returned C Apital Gains Income Of Rs 92 08 555 The Grievance Of T He Assessee Is That Full And Proper Opportunity Of Bei Ng Heard Was Not Provided To The Assessee 2 During Hearing None Was Present For The Assessee In Spite Of Issuance Of Registered Ad Not Ice On 28 11 2017 For Today I E 21 12 2017 This Appeal W As Filed By The Assessee On 10 05 2016 Therefore It Cannot Be Kept Pending Indefinitely The Assessee Neither Presented Himself Nor Moved Adjourned Petition Thu S We Have No Option But To Proceed Ex Parte Qua The Ass Essee And Tend To Dispose Of This Appeal On The Basis Of Material Available On Record Shri Rajat Mittal Ld Dr Con Tended That Section 50 C Of The Act Was Rightly Invoked Atmaram Gopinath Patil Ita No 3296 Mum 2016 3 2 1 We Have Considered The Submissions Of Ld Dr And Perused The Material Available On Record The Facts In Brief Are That The Assessee Is An Agriculturist An D The Main Source Of Income Was Agriculture And Also Income Fr Om Other Sources Bank Interest And Interest From Fixed Deposits The Assessee Sold Agriculture Land To M S Ostwal Builders Ltd And M S Gujarat Realtors The Assesse E Declared Total Income Of Rs 2 19 170 In His Retur N Filed On 03 10 2011 Which Was Processed U S 143 1 Of Th E Act The Case Of The Assessee Was Selected For Scru Tiny Therefore Notice U S 143 2 Was Served Upon The As Sessee The Assessee Filed Revised Return On 28 02 2013 De Claring The Same Income Which Was Originally Declared Aga In Notice U S 142 1 Was Issued To The Assessee To Whi Ch The Assessee Attended The Proceedings From Time To Time And Furnished The Details As Called By The Ld Assessin G Officer The Assessee Earned Long Term Capital Gain Of Rs 92 08 555 Rs 66 44 750 Rs 25 63 805 From S Ale Of Ancestral Agriculture Land Situation Navghar To Th E Aforesaid Builders Against The Capital Gain Of Rs 92 08 555 The Assessee Claimed Deduction U S 54 B Atmaram Gopinath Patil Ita No 3296 Mum 2016 4 And 54 F Of The Act And The Income Was Claimed To Be Nil On Such Capital Gain From The Sale Of Agriculture Land The Ld Assessing Officer Invoked Section 50 C Of The Act An D Recomputed Capital Gains Chargeable To Tax It Is T He Say Of The Ld Counsel Before The Authorities Below That T He Co Owners Were Having 25 Share Each Thus The Assess Ee Received Rs 68 75 000 As His Share The Claim Of The Assessee Is That The Land Sold To M S Ostwal Builde Rs Ltd Was Reserved For Playground For Public And As Such M S Ostwal Builders Ltd By An Agreement For Sale Cum Development Were Entitled To Get Tdr From The Munic Ipal Corporation But Did Not Get The Possession Of The L And The Assessee Also Claimed That He Paid Brokerage And Le Gal Charges To The Brokers Advocates Amounting To Rs 4 50 000 Thus Being The 1 4 Th Share Rs 1 12 500 Was To Be Deducted From His Share Of Long Term Capi Tal Gain The Plea Of The Assessee In The Grounds Of Th E Appeal Is That Proper Opportunity Was Not Provided To The Assessee And The Matter Was Not Considered In A Justified Ma Nner We Have Also Perused The Statement Of Facts Availab Le On Record And The Grievance Raised By The Assessee In His Atmaram Gopinath Patil Ita No 3296 Mum 2016 5 Grounds And Contention Raised Before Right From Assessment Stage Till The Stage Of Tribunal And We Are Also Of The View That The Assessee Deserve One More Oppo Rtunity To Explain The Factual Matrix The Assessee Has Al So Claimed That Investment Was Made U S 54 B And 54 F Of The Act And Some Legal Expenses Were Incurred Without Going Into Much Deliberation We Direct The Assessing Off Icer To Examine The Case Of The Assessee Afresh And Decide In Accordance With Law The Assessee Be Given Opportu Nity Of Being Heard And To Furnish Necessary Evidence If A Ny To Substantiate His Claim If The Ld Assessing Offic Er So Desires He May Examine Shri Kuldeep Ostwal For Clarification In Respect Of Agreement Dated 09 11 2 014 And Any Other Person Related To The Transaction The Ld Assessing Officer Is Also Directed To Examine The C Laim Of The Assessee With Respect To Investments Qualified U S 54 B And 54 F Of The Act And Other Related Expenses We C Larify That All The Contentions And Issues Are Kept Open B Y Us While Remanding The Matter Back To The File Of The Ld Assessing Officer For Denovo Determination The App Eal Of The Assessee Is Allowed For Statistical Purposes On Ly Atmaram Gopinath Patil Ita No 3296 Mum 2016 6 Finally The Appeal Of The Assessee Is Allowed For Statistical Purposes This Order Was Pronounced In The Open Court In The Presence Of Ld Dr At The Conclusion Of The Hearing On 21 12 2017 Sd Sd Ramit Kochar Joginder Singh Accountant Member Judicial Member Mumbai Dated 21 12 2017 F X T P S Copy Of The Order Forwarded To 1 The Appellant 2 The Respondent 3 0 The Cit Mumbai 4 0 Cit A Mumbai 5 2 3 4 Dr Itat Mumbai 6 5 6 Guard File By Order 2 True Copy Dy Asstt Registrar Itat Mumbai