M/s. Caktus Properties (P) Ltd, New Delhi v. ITO, New Delhi

ITA 4376/DEL/2009 | 2002-2003
Pronouncement Date: 23-04-2010 | Result: Allowed

Appeal Details

RSA Number 437620114 RSA 2009
Assessee PAN AAACC5473C
Bench Delhi
Appeal Number ITA 4376/DEL/2009
Duration Of Justice 5 month(s) 6 day(s)
Appellant M/s. Caktus Properties (P) Ltd, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 23-04-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 23-04-2010
Date Of Final Hearing 23-02-2010
Next Hearing Date 23-02-2010
Assessment Year 2002-2003
Appeal Filed On 16-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : B : NEW DELHI BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NO.4376/DEL/2009 ASSESSMENT YEAR : 2002-03 M/S CAKTUS PROPERTIES (P) LTD. C/O PAWAN SALDI (ADVOCATE) D-125 SANGAM APARTMENT PLOT NO.23 DELHI 110 085. PAN : AAACC5473C VS. INCOME TAX OFFICER WARD 3(2) NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S. KRISHNAN & SHRI PAWAN SALDI ADVOCATES REVENUE BY : SHRI.MANISH GUPTA ORDER PER R.C. SHARMA: ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE CIT (A) DATED 16.09.2009 FOR ASSESSMENT YEAR 2002-0 3 IN THE MATTER OF EX PARTE ORDER PASSED BY THE ASSESSING OFFICER U/S 144 OF TH E IT ACT. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. THE FACTS IN BRIEF ARE THAT THE ASSESSEE FILED RETURN OF INCOME AT A L OSS OF RS.1 37 370/-. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE WAS ISSUED U/S 143(2). THE ASSESSING OFFICER STATED THAT NOBODY APPEARED ON BEHALF OF TH E ASSESSEE IN SPITE OF ISSUE OF NOTICE. ACCORDINGLY HE FRAMED ASSESSMENT U/S 144 WHEREIN ADDITION OF RS.26 60 989/- WAS MADE IN RESPECT OF LOSS SUFFERED UNDER THE HEAD LONG TERM CAPITAL GAINS. FROM THE RECORD WE FOUND THAT IN T HE COMPUTATION OF INCOME THE ASSESSEE HAS CLAIMED INCOME OF RS.1 64 611/- FROM P ROFIT AND SALE OF LAND. AS ITA NO.4376/DEL/2009 2 PER THE STATEMENT OF TAXABLE INCOME FILED ALONG WIT H THE RETURN THE LAND WAS SOLD FOR RS.55 75 750/- COST PRICE OF WHICH HAS BEEN SH OWN AT RS.54 11 139/-. AFTER INDEXING THE COST OF ACQUISITION LOSS OF RS.26 60 989/- WAS CLAIMED WHICH WAS DISALLOWED BY THE ASSESSING OFFICER ON THE PLEA THA T THE ASSESSEE FAILED TO BRING ON RECORD ANY EVIDENCE FOR SALE AND PURCHASE OF LAN D. THE ADDITION WAS CONFIRMED BY THE CIT (A). 3. WE HAVE GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW AND FOUND THAT IN THE BALANCE SHEET FILED FOR EARLIER YEARS THE AS SESSEE HAD ALREADY DISCLOSED THIS COST OF LAND IN THE AUDITED BALANCE SHEET AND IN THE BALANCE SHEET FOR THE YEAR UNDER CONSIDERATION AFTER REDUCING THE COST O F LAND SOLD THE BALANCE AMOUNT OF LAND WAS SHOWN. THE ASSESSEE ALSO PLACED BEFORE US THE SALE DEED IN RESPECT OF SALE OF THE LAND. THUS WE FOUND THA T BEFORE THE ASSESSING OFFICER THE LAND WAS DULY DISCLOSED AS HAVING BEEN POSSESSE D BY THE ASSESSEE FOR WHICH THE ASSESSEE HAS CLAIMED INDEXATION AND THE L OSS WAS CLAIMED ACCORDINGLY. SINCE THE SALE DEED OF THE LAND WAS N OT PLACED BEFORE THE LOWER AUTHORITY KEEPING IN VIEW THE EX PARTE ORDER OF TH E ASSESSING OFFICER WE RESTORE THIS MATTER BACK TO THE FILE OF ASSESSING OFFICER F OR DECIDING AFRESH AND THE ASSESSEE IS DIRECTED TO FILE COPY OF SALE DEED WITH THE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH. 4. IN THE EX PARTE ORDER THE ASSESSING OFFICER HAD ALSO DISALLOWED AN EXPENDITURE OF RS.1 70 745/- WHICH WAS INCURRED FOR THE PURPOSE OF BUSINESS. AN ADDITION OF RS.20 LACS WAS ALSO MADE ON ACCOUNT OF CASH CREDIT FOR NON-OBTAINING OF CONFIRMATION FROM THE DIRECTORS OF THE COMPANY. THE CONTENTION OF THE ASSESSEE WAS THAT NO NEW LOAN WAS TAKEN DURING THE YEAR AND THE LOAN OF RS.20 LAC WAS ALREADY TAKEN IN THE EARLIER YEAR AND THE S AME WAS DULY REFLECTED IN THE AUDITED BALANCE SHEET FILED ALONG WITH THE RETURN. WE HAVE VERIFIED THE AUDITED BALANCE SHEET PLACED ON RECORD WHICH WAS ALSO BEFO RE THE ASSESSING OFFICER AND FOUND THAT THE ASSESSEE HAD ALREADY SHOWN LOAN OF RS.20 LAC FROM THE DIRECTORS IN THE BALANCE SHEET FOR THE YEAR 2001. THE SAME LOAN OF RS.20 LAC ITA NO.4376/DEL/2009 3 CONTINUED TO BE REMAINED OUTSTANDING AS AT THE END OF 31 ST MARCH 2002 MEANING THEREBY THERE IS NO CHANGE IN THE FIGURE OF LOAN AND NO NEW LOAN HAS BEEN TAKEN BY THE ASSESSEE DURING THE YEAR UNDER CO NSIDERATION. HOWEVER AT THE VERY SAME TIME SINCE THE ASSESSEE HAS NOT FURN ISHED CONFIRMATION FROM THE DIRECTORS AS AT THE END OF THE YEAR TO SUBSTANTIATE THE STATUS OF LOAN AS AT END OF THE YEAR AND THE CLAIM THAT THERE IS NO TRANSACTION IN BETWEEN THE MATTER IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR DECIDING AFRESH. WHILE FRAMING THE ASSESSMENT THE ASSESSING OFFICER IS ALSO TO RE CONSIDER THE EXPENDITURE OF RS.1 70 745/- CLAIMED BY THE ASSESSEE AS HAVING BEE N INCURRED IN THE NORMAL COURSE OF BUSINESS. THE ASSESSING OFFICER IS TO DE CIDE AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. KEEPING IN VIEW THE A SSESSEES PAST BEHAVIOUR BEFORE THE ASSESSING OFFICER WE DIRECT THE ASSESSE E TO APPEAR BEFORE THE ASSESSING OFFICER WITHIN TWO MONTHS FROM THE DATE O F RECEIPT OF THIS ORDER OF THE TRIBUNAL WITHOUT WAITING FOR ANY NOTICE FROM THE A SSESSING OFFICER. THE ASSESSEE IS FURTHER DIRECTED TO FURNISH ALL THE DOC UMENTS BEFORE THE ASSESSING OFFICER AND TO COOPERATE WITH HIM FOR COMPLETION OF THE ASSESSMENT. WE DIRECT ACCORDINGLY. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. . THE ORDER PRONOUNCED IN THE OPEN COURT ON 23.04.20 10. SD/- SD/- [RAJPAL YADAV] [R.C. SHARMA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 23.04.2010. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES