Kruti Lalitkumar Jain,, Pune v. Deputy Commissioner of Income-tax, Circle - 7,, Pune

ITA 338/PUN/2018 | 2013-2014
Pronouncement Date: 26-03-2021 | Result: Partly Allowed

Appeal Details

RSA Number 33824514 RSA 2018
Assessee PAN AFXPU2261C
Bench Pune
Appeal Number ITA 338/PUN/2018
Duration Of Justice 3 year(s) 1 month(s) 14 day(s)
Appellant Kruti Lalitkumar Jain,, Pune
Respondent Deputy Commissioner of Income-tax, Circle - 7,, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 26-03-2021
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 26-03-2021
Last Hearing Date 25-03-2021
First Hearing Date 25-03-2021
Assessment Year 2013-2014
Appeal Filed On 12-02-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO AM AND SHRI PARTHA SARATHI CHAUDHURY JM . / ITA NO.338/PUN/2018 / ASSESSMENT YEAR : 2013-14 KRUTI LALITKUMAR JAIN 10 TH FLOOR KUMAR BUSINESS CENTRE (KBC) OPP. PUNE CENTRAL BUND GARDEN ROAD PUNE-411001. PAN : AFXPU2261C ....... / APPELLANT / V/S. DCIT CIRCLE-7 PUNE. / RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI S. P. WALIMBE / DATE OF HEARING : 25.03.2021 / DATE OF PRONOUNCEMENT : 26.03.2021 / ORDER PER INTURI RAMA RAO AM: THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 5 PUNE (CIT(A) FOR SHORT) DATED 26.10.2017 FOR THE ASSESSMENT YEAR 2013-14. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE APPELLANT IS AN INDIVIDUAL AND DERIVING INCOME UNDER THE HEAD SALARIES CAPITAL GAINS AND INCOME FROM OTHER SOURCES. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2013-14 WAS FILED ON 30.07.2013 DECLARING TOTAL INCOME OF RS.71 48 938/-. AGAINST THE 2 ITA NO.338/PUN/2018 SAID RETURN OF INCOME THE ASSESSMENT WAS COMPLETED BY THE DY. COMMISSIONER OF INCOME TAX CIRCLE-7 PUNE (THE ASSESSING OFFICER) VIDE ORDER DATED 11.03.2016 PASSED U/S 143(3) OF THE INCOME TAX ACT 1961 (THE ACT) AT A TOTAL INCOME OF RS.4 05 01 938/-. WHILE DOING SO THE ASSESSING OFFICER ASSESSED THE GAINS ARISING ON SALE OF LAND SITUATED AT SURVEY NO.150 VILLAGE- CHAROLI BK AS A BUSINESS PROFITS AS AGAINST THE CLAIM THAT IT SHOULD BE ASSESSED AS LONG TERM CAPITAL GAINS. THE ASSESSING OFFICER TREATED THE LAND SOLD FOR A CONSIDERATION OF RS.9 60 00 000/- AS STOCK IN TRADE AND ACCORDINGLY ASSESSED TO CAPITAL GAINS. THE ASSESSING OFFICER TAKING INTO CONSIDERATION THE FACT THAT THE LAND WAS PURCHASED WITH BORROWED FUNDS AND LANDS WERE NEVER SHOWN IN WEALTH TAX RETURN AND EVEN IN THE EARLIER YEAR ALSO THE ASSESSEE SOLD THE OPEN LAND SITUATED AT SURVEY NO.36 YEOLEWADI PUNE HAD TO COME CONCLUSION THAT LAND IN QUESTION IS STOCK IN TRADE ACCORDINGLY ASSESSED TO BE AS BUSINESS PROFITS. 3. BEING AGGRIEVED BY THE ASSESSMENT ORDER AN APPEAL WAS PREFERRED BEFORE THE LD. CIT(A) CHALLENGING THE ACTION OF THE ASSESSING OFFICER TREATING THE LAND SOLD AS STOCK IN TRADE. IT WAS SUBMITTED BEFORE THE LD. CIT(A) THAT THE LAND WAS HELD FOR THE PERIOD OF 5 YEARS AND IT CANNOT BE TREATED AS STOCK IN TRADE. HOWEVER IT APPEARS THAT HE HAD NOT RESPONDED TO THE HEARING NOTICE ISSUED BY THE LD. CIT(A) ON SEVERAL OCCASIONS. THEREFORE THE LD. CIT(A) WAS CONSTRAINED TO PASS AN EX-PARTE ORDER AND DISMISSED THE APPEAL FOR NON- PROSECUTION IN LIMINE PLACING RELIANCE ON THE FOLLOWING DECISIONS :- (I) M/S. CHEMIPOL VS. UNION OF INDIA & ORS. CENTRAL EXCISE APPEAL NO.62 OF 2009 DT. 17.09.2009 (BOM.); 3 ITA NO.338/PUN/2018 (II) CIT VS. S. CHENIAPPA MUDALIAR AIR 1969 SC 1068 (SC); (III) SUNDERLAL MANNALAL VS. NANDRAMDAS DWARKADAS AIR 1958 (SC); (IV) CIT VS. M/S. MULTIPLAN INDIA PVT. LTD. 38 ITD 320 (DEL.); (V) CIT VS. B. N. BHATTACHARGEE & ANR. 118 ITR 461 (SC). 4. BEING AGGRIEVED THE APPELLANT IS BEFORE US IN THE PRESENT APPEAL. 5. EVEN BEFORE US WHEN THE MATTER WAS CALLED ON THE APPELLANT HAD MOVED AN ADJOURNMENT PETITION. THE SAME WAS REJECTED AND WE PROCEEDED TO DISPOSE THE CASE AFTER HEARING THE LD. SR. DR. 6. ON PERUSAL OF THE IMPUGNED ORDER IT IS EVIDENT THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL IN LIMINE FOR NON-PROSECUTION. NOW THE LAW IS SETTLED TO THE EXTENT THAT EVEN THE LD. CIT(A) IS BOUND TO DISPOSE OF THE APPEAL ON MERIT EVEN IN THE CASE OF EX-PARTE ORDERS. THE SETTLED POSITIONS OF LAW MANDATES THE CIT(A) TO DISPOSE OF THE APPEAL BY ADJUDICATING THE ISSUE RAISED IN APPEAL ON MERITS. 7. IN THE CIRCUMSTANCES WE ARE OF THE CONSIDERED OPINION THAT THE LD. CIT(A) SHOULD GO INTO TO THE MERITS OF THE ISSUE IN APPEAL AND DISPOSE THE APPEAL. SINCE THE LD. CIT(A) HAD NOT DISPOSED OF THE MATTER ON MERITS WE REMAND THE MATTER TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION BASED ON THE MATERIAL ON RECORD ON MERIT. 4 ITA NO.338/PUN/2018 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 26 TH DAY OF MARCH 2021. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (INTURI RAMA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 26 TH MARCH 2021. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-5 PUNE. 4. THE PR. CIT-4 PUNE. 5. / DR ITAT A BENCH PUNE. 6. / GUARD FILE. / BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY / ITAT PUNE.