AMITKUMAR M AGARWAL, MUMBAI v. ITO 24(1)(3), MUMBAI

ITA 4553/MUM/2010 | 2006-2007
Pronouncement Date: 27-07-2011 | Result: Partly Allowed

Appeal Details

RSA Number 455319914 RSA 2010
Assessee PAN AABPA4019N
Bench Mumbai
Appeal Number ITA 4553/MUM/2010
Duration Of Justice 1 year(s) 1 month(s) 25 day(s)
Appellant AMITKUMAR M AGARWAL, MUMBAI
Respondent ITO 24(1)(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 27-07-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 27-07-2011
Assessment Year 2006-2007
Appeal Filed On 02-06-2010
Judgment Text
1 ITA 4553 /M/2010 AMITKUMAR M. AGARWAL. IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A BEFORE SHRI D.K. AGARWAL J.M. AND SHRI R.K. PANDA A.M. ITA NO. 4553/MUM/2010 ASSESSMENT YEAR 2006-07 AMITKUMAR M. AGARWAL J-18 ANSA INDUSTRIAL ESTATE SAKI VIHAR ROAD SAKI NAKA ANDHERI (E) MUMBAI 400072. PAN AABPA4019N VS. ITO 24(1)(3) C-13 5 TH FLOOR PRATYAKSHAKAR BHAVAN BANDRA (E) MUMBAI 400051. APPELLANT RESPONDENT APPELLANT BY SHRI PANKAJ TOPRANI RESPONDENT BY SHRI P.K.B. MENON DATE OF HEARING 27.7.2011 DATE OF PRONOUNCEMENT 27.7.2011 ORDER PER R.K. PANDA A.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DT. 02.02.2010 OF CIT(A)- 34 MUMBAI RELATING TO A.Y. 2006-07. 2. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE THEY ALL RELATE TO THE DISALLOWANCE OF ` 3 56 500/- CLAIMED BY THE ASSESSEE ON ACCOUNT OF V ARIOUS EXPENSES TOWARDS COST OF IMPROVEMENT OF THE PLOT OF LAND ON WHICH SHORT TERMS CAPITAL GAIN HAS BEEN CLAIMED . 3. FACTS OF THE CASE IN BRIEF ARE THAT THE A.O. DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS NOTED FROM THE CAPITAL ACCOU NT OF THE ASSESSEE THAT THE 2 ITA 4553 /M/2010 AMITKUMAR M. AGARWAL. ASSESSEE HAS SHOWN SHORT TERM CAPITAL GAIN OF ` 31 000/- ON SALE OF A PLOT AT CHANDIGARH. HE NOTED THAT THE ASSESSEE HAD PURCHAS ED THIS LAND ON 5.12.2003 ALONG WITH FIVE OTHER MEMBERS AT A COST O F ` 7 56 000/-. THUS THE ASSESSEES SHARE OF ` 125000/- IS HIS PURCHASE PRICE. THE ASSESSEE HAD SOLD HALF OF THIS PLOT IN A.Y. 2005-06. THE REMAINING H ALF I.E. LAND AT COST OF ` 62 500/- WAS SOLD IN THE IMPUGNED ASSESSMENT YEAR. THE SALE CONSIDERATION OF THE PLOT OF LAND IS ` 4 50 000/- AND THE COST OF THE LAND IS ` 62 500/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE A.O. ASKE D THE ASSESSEE TO SUBMIT THE DETAILS REGARDING THE COST OF ACQUISITION. THE ASSESSEE SUBMITTED THAT THE SAID LAND WAS SOLD AFTER LEVELING AND BUILDING A BO UNDARY WALL WHICH COST HIM ` 3 56 500/-. HENCE THE COST OF THE LAND PLUS THE CO ST OF IMPROVEMENT WORKED OUT TO BE ` 4 19 000/-. ON BEING ASKED BY THE A.O. TO PRODUCE THE COST OF IMPROVEMENT THE ASSESSEE SUBMITTED COPIES OF SOME PURCHASE BILLS OF SAND STEEL AND CEMENT WITHOUT ANY DELIVERY CHALLAN NOR L ORRY RECEIPT OR ANY OTHER TRANSPORTATION RECEIPTS. THE ASSESSEE HAS NOT SHOW N ANY EXPENSES TOWARDS LABOUR CHARGES. ACCORDING TO THE A.O. WITHOUT LABOU R CHARGE IMPROVEMENT OF THE LAND IS NOT POSSIBLE. NOT BEING SATISFIED WITH THE EVIDENCES PRODUCED BEFORE HIM THE A.O. DISALLOWED THE VARIOUS EXPENSES. AFTE R DEDUCTING THE COST PRICE OF LAND ` 62 500/- FROM THE SALE CONSIDERATION OF LAND ` 4 50 000/- THE A.O. DETERMINED THE SHORT TERM CAPITAL GAIN AT ` 3 87 500/- AS AGAINST ` 31000/- DECLARED BY THE ASSESSEE. IN APPEAL THE LD. CIT(A) UPHELD THE ACTION OF THE A.O. 3.1 AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A) TH E ASSESSEE IS IN APPEAL BEFORE US. 4. THE LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING DREW THE ATTENTION OF THE BENCH TO THE VARIOUS EXPENSES CLAI MED BY THE ASSESSEE WHICH ARE AT PAGE 3 OF THE PAPER BOOK. HE SUBMITTED THAT THE EXPENSES ARE DULY SUPPORTED BY BILLS AND VOUCHES. DURING THE COURSE O F HEARING THE LD. COUNSEL FOR THE ASSESSEE FILED ADDITIONAL EVIDENCE IN THE S HAPE OF AN AGREEMENT DT. 3 ITA 4553 /M/2010 AMITKUMAR M. AGARWAL. 7.10.2005 TO SHOW THAT THERE WAS HALF CONSTRUCTED B UILDING ON THE ABOVE PLOT AND REQUESTED THE SAME TO BE ADMITTED AS ADDITIONAL EVIDENCE U/S 29 OF THE APPELLATE TRIBUNAL RULES. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE THE MATTER MAY BE RESTORED TO THE FILE OF THE A.O. AND THE ASSESSEE BE GIVEN AN OPPORTUNITY TO SUBSTANTIATE ITS CLAIM. 5. THE LD. D.R. ON THE OTHER HAND WHILE SUPPORTIN G THE ORDER OF THE LD. CIT(A) SUBMITTED THAT DESPITE ENOUGH OPPORTUNITIES GIVEN THE ASSESSEE COULD NOT PRODUCE SATISFACTORY EVIDENCE FOR THE EXPENSES OF ` 3 56 500/-. HE ALSO OBJECTED TO THE ADMISSION OF THE ADDITIONAL EVIDENC E. 6. AFTER CONSIDERING THE RIVAL ARGUMENTS MADE BY BO TH THE PARTIES AND CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE W E ADMIT THE ADDITIONAL EVIDENCE FILED BY THE LD. COUNSEL FOR THE ASSESSEE DURING TH E COURSE OF HEARING SINCE THIS GOES TO THE ROOT OF THE MATTER. HOWEVER THE ABOVE AGREEMENT WAS NOT EXAMINED BY EITHER OF THE LOWER AUTHORITIES WE IN THE INTEREST OF JUSTICE DEEM IT PROPER TO RESTORE THE MATTER TO THE FILE OF A.O. WITH A DIRECTION TO DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVIN G DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPENING COURT AT THE TIME O F HEARING I.E. ON 27.07.2011. SD/- SD/- (D.K. AGARWAL) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED 27.07.2011. 4 ITA 4553 /M/2010 AMITKUMAR M. AGARWAL. RK COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 34 MUMBAI 4. THE CIT- 24. MUMBAI 5. THE DR BENCH A 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI 5 ITA 4553 /M/2010 AMITKUMAR M. AGARWAL. DATE INITIALS 1 DRAFT DICTATED ON 27.7.11 SR. PS 2 DRAFT PLACED BEFORE THE AUTHOR 27.7.11 SR. PS 3 DRAFT PLACED BEFORE THE SECOND MEMBER 4 APPROVED DRAFT COMES TO THE SR. PS SR. PS 5 KEPT FOR PRONOUNCEMENT ON SR. PS 6 FILE SENT TO THE BENCH CLERK SR. PS 7 DATE ON WHICH FILE GOES TO THE HEAD CLERK 8 DATE ON WHICH FILE GOES TO THE AR 9 DATE OF DISPATCH OF ORDER