Shri Avinash Madhavrao Patil,, Nashik v. ACIT, Cent. Cir.-1,, Nashik

ITA 396/PUN/2010 | 2004-2005
Pronouncement Date: 07-02-2012 | Result: Dismissed

Appeal Details

RSA Number 39624514 RSA 2010
Assessee PAN AHFPP9473N
Bench Pune
Appeal Number ITA 396/PUN/2010
Duration Of Justice 1 year(s) 10 month(s) 20 day(s)
Appellant Shri Avinash Madhavrao Patil,, Nashik
Respondent ACIT, Cent. Cir.-1,, Nashik
Appeal Type Income Tax Appeal
Pronouncement Date 07-02-2012
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 07-02-2012
Date Of Final Hearing 02-02-2012
Next Hearing Date 02-02-2012
Assessment Year 2004-2005
Appeal Filed On 17-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI I C SUDHIR JUDICIAL MEMBER AND SHRI G.S. PANNU ACCOUNTANT MEMBER ITA NO. 396/PN/10 (ASSESSMENT YEAR: 2004-05) SHRI AVINASH M PATIL .. APPELLANT SHESHADRI KULKARNI COLONY SHARANPUR RD NASHIK PAN AHFPP 9473N VS. ASSTT. COMMISSIONER OF INCOME-TAX .. RESPONDENT CEN. CIR.1 NASHIK APPELLANT BY : SHRI NIKHIL PATHAK RESPONDENT BY : SHRI S K SINGH DATE OF HEARING : 02.02.20 12 DATE OF PRONOUNCEMENT : 07.02. 2012 ORDER PER G.S. PANNU A.M .: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-I NASHIK DATED 15.4 .2009 WHICH IN TURN HAS ARISEN FROM ORDER DATED 12.03.2006 PASSED BY THE ASSESSING OFFICER UNDER SECTION 153A R.W.S. 143(3) OF THE INCOME-TAX ACT 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2004-05. 2. IN THIS APPEAL THE ONLY ISSUE RAISED BY THE ASSESSEE R ELATES TO AN ADDITION OF RS 3 80 288/- MADE ON ACCOUNT OF CAPITAL GA IN ON SALE OF LAND WHICH WAS FOUND NOT TO HAVE BEEN DECLARED BY THE ASSESSEE IN THE REGULAR RETURN OF INCOME FILED. 3. BEFORE PROCEEDING FURTHER IT IS NOTICED FROM THE R ECORD THAT THE CAPTIONED APPEAL WAS FILED BEFORE THE TRIBUNAL AFTER A DELAY OF 267 DAYS AND IN THIS REGARD THE LEARNED COUNSEL SUBMITTED THAT THE D ELAY IN FILING OF APPEAL WAS INADVERTENT AND FOR BONA FIDE REASONS. IT IS EXPLA INED THAT IN VIEW OF SEARCH IN ASSESSEE AND HIS RELATED GROUP OF CASES A LARGE NUMBER OF ASSESSMENTS WERE MADE AGAINST WHICH APPEALS WERE REQUIRED TO BE FILED. THE APPEALS IN ALL OTHER CASES WERE FILED WITHIN TIME AND I N THE PROCESS OF DURING THIS VOLUMINOUS EXERCISE INADVERTENTLY PRESENT APPEAL W AS LEFT OUT TO BE FILED WITHIN THE STIPULATED DATE; THAT THERE WAS NO MALA FI DE OR NEGLIGENCE ON THE PART OF THE ASSESSEE; AND THAT IT IS A CASE OF A MERE I NADVERTENT MISTAKE. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT OPPOSED TH E BONA FIDES OF THE PLEA MADE OUT BY THE ASSESSEE AND IN THESE CIRCUMSTANCES WE DEEM IT FIT AND PROPER TO CONDONE THE DELAY AND ACCORDINGLY ADMIT THE APPEAL. 4. ON THE MERITS OF THE ISSUE THE RELEVANT FACTS ARE TH AT A SEARCH ACTION UNDER SECTION 132(1) OF THE ACT WAS CARRIED OUT IN THE CASE OF THE ASSESSEE AS WELL AS IN THE AMBA GROUP OF CASES AT NASHIK ON 21.1.200 4. IN THE COURSE OF SEARCH A REGISTERED SALE DEED DATED 25.7.2003 WAS FOUN D WHEREBY THE ASSESSEE HAD SOLD LAND AT SURVEY NO. 147/1B VILHOLI DI ST. NASHIK TO ONE SHRI YOGESH MADHUKAR GADE FOR A STATED CONSIDERATION OF RS 5 00 000/-. THE ASSESSING OFFICER FOUND THAT IN THE REGULAR RETURN OF IN COME FILED FOR THE ASSESSMENT YEAR 2004-05 THE ASSESSEE HAD NEITHER DISCLOSED C APITAL GAIN IN HIS RETURN OF INCOME NOR ANY PROFIT ON SALE OF SUCH LA ND. THE ASSESSEE SUBMITTED BEFORE THE ASSESSING OFFICER THAT THE SAID TRANSA CTION WAS ULTIMATELY CANCELLED AND FURTHER THAT THE SALE DEED DATED 25.7.20 03 WAS EXECUTED AT A VALUE HIGHER THAN THE MARKET VALUE ONLY WITH THE INT ENTION OF ENSURING REASONABLE COMPENSATION FROM CIDCO. IT WAS ALSO EXPLAIN ED THAT THE SAID SALE DEED WAS IN FAVOUR OF A CLOSE RELATIVE YOGESH MADH UKAR GADE. THE ASSESSING OFFICER EXAMINED THE PLEA AS ALSO THE AFFIDAVIT OF SHRI YOGESH MADHUKAR GADE IN WHICH IT WAS CLAIMED THAT THE TRANSACT ION WAS CANCELLED ON 16.2.2004 BY WAY OF A CANCELLATION DEED. THE ASSESSING OF FICER REJECTED THE AFORESAID PLEA BY NOTICING THAT THE SAID CANCELLATION DE ED WAS NOT REGISTERED AND THEREFORE THE GENUINENESS AND AUTHENTICITY OF TH E SAME COULD NOT BE PROVED BY THE ASSESSEE. HE THEREFORE COMPUTED THE LONG TERM CAPITAL GAIN ON THE SAID SALE AT RS 3 80 288/- AND ADDED THE SAME TO TH E RETURNED INCOME. THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS ALSO SUSTAINE D THE ADDITION AGAINST WHICH ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. BEFORE US THE LEARNED COUNSEL FOR THE ASSESSEE HAS R EITERATED THE SUBMISSIONS AS RAISED BEFORE THE LOWER AUTHORITIES TO WHI CH WE HAVE ALREADY ADVERTED TO IN THE RELEVANT PART OF THIS ORDER. 6. HAVING CONSIDERED THE PLEA RAISED BY THE ASSESSEE WE DO NOT FIND ANY REASONS TO INTERFERE WITH THE CONCLUSIONS DRAWN BY THE LO WER AUTHORITIES. IN THIS CASE IT IS EVIDENT THAT A REGISTERED SALE DEED WAS FOUN D DURING SEARCH ACTION WHICH INDICATED SALE OF LAND BY THE ASSESSEE FOR A STATED C ONSIDERATION OF RS 5 00 000/-. THE PLEA OF THE ASSESSEE THAT NO SUCH TRANSAC TION TOOK PLACE BASED ON A CANCELLATION DEED IS UNACCEPTABLE. QUITE CLE ARLY THE SAID CANCELLATION DEED WAS NEITHER REGISTERED AND NOR WAS FOU ND IN THE COURSE OF THE SEARCH BUT HAS BEEN SOUGHT TO BE INTRODUCED ONLY WHEN CONFRONTED DURING THE ASSESSMENT PROCEEDINGS. THE RELIABILITY OF SUCH CANCE LLATION DEED IN OUR VIEW HAS BEEN RIGHTLY REJECTED BY THE LOWER AUTHORITI ES. IN THIS VIEW OF THE MATTER WE THEREFORE FIND NO MERIT IN THE GROUND OF APPEAL RAISED BY THE ASSESSEE WHICH IS ACCORDINGLY DISMISSED. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 7 TH DAY OF FEBRUARY 2012. SD/- SD/- (I C SUDHIR) (G.S . PANNU) JUDICIAL MEMBER ACCOUNTANT MEMB ER PUNE DATED 7 TH FEBRUARY 2012 B COPY TO:- 1) SHRI AVINASH M PATIL NASHIK 2) ACIT CEN.CIR.1 NASHIK 3) THE CIT (A)-I NASHIK 4 THE CIT (CEN) NAGPUR 5) DR B BENCH I.T.A.T. PUNE. 6) GUARD FILE TRUE COPY BY ORDER SR. PS ITAT PUNE