Nutan Sandesh Bankar,, Pune v. Income-tax Officer, Ward - 8(4),, Pune

ITA 941/PUN/2018 | 2012-2013
Pronouncement Date: 15-11-2019 | Result: Allowed

Appeal Details

RSA Number 94124514 RSA 2018
Assessee PAN ARAPB9311N
Bench Pune
Appeal Number ITA 941/PUN/2018
Duration Of Justice 1 year(s) 5 month(s) 20 day(s)
Appellant Nutan Sandesh Bankar,, Pune
Respondent Income-tax Officer, Ward - 8(4),, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 15-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 15-11-2019
Date Of Final Hearing 04-09-2019
Next Hearing Date 04-09-2019
Last Hearing Date 04-09-2019
First Hearing Date 22-01-2019
Assessment Year 2012-2013
Appeal Filed On 25-05-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC PUNE BEFORE SHRI R.S. SYAL VICE PRESIDENT . . . / ITA NO. 937/PUN/2018 / ASSESSMENT YEAR : 2012-13 MR. MANIK VISHNU BANKAR BANKAR WASTI MOSHI PUNE 412 105 PAN : ARAPB9311N VS. ITO WARD-8(4) PUNE APPELLANT RESPONDENT . / ITA NO. 938/PUN/2018 / ASSESSMENT YEAR : 2012-13 MR. KRUSHNA MANIK BANKAR BANKAR WASTI MOSHI PUNE 412 105 PAN : AQZPB5348K VS. ITO WARD-8(4) PUNE APPELLANT RESPONDENT . / ITA NO. 939/PUN/2018 / ASSESSMENT YEAR : 2012-13 MRS. KOMAL KRUSHNA BANKAR BANKAR WASTI MOSHI PUNE 412 105 PAN : BBXPB0579G VS. ITO WARD-8(4) PUNE APPELLANT RESPONDENT . / ITA NO. 940/PUN/2018 / ASSESSMENT YEAR : 2012-13 MRS. NANDA POPAT BANKAR BANKAR WASTI MOSHI PUNE 412 105 PAN : BACPB1615H VS. ITO WARD-8(4) PUNE APPELLANT RESPONDENT ITA NOS.937 TO 942/PUN/2018 MANIK V. BANKAR & ORS. 2 . / ITA NO. 941/PUN/2018 / ASSESSMENT YEAR : 2012-13 MRS. NUTAN SANDESH BANKAR BANKAR WASTI MOSHI PUNE 412 105 PAN : AZYPB0245M VS. ITO WARD-8(4) PUNE APPELLANT RESPONDENT . / ITA NO. 942/PUN/2018 / ASSESSMENT YEAR : 2012-13 MRS. SRADDHA MANGESH BANKAR BANKAR WASTI MOSHI PUNE 412 105 PAN : BCJPB0745F VS. ITO WARD-8(4) PUNE APPELLANT RESPONDENT / ORDER PER R.S.SYAL VP : THIS BATCH OF SIX APPEALS HAVING COMMON ISSUES RELATE TO THE ASSESSMENT YEAR 2012-13. ALL THE APPELLANTS ARE CO-OWN ERS OF THE PROPERTY TRANSFERRED AND HAVE SIMILAR GROUNDS. I AM THEREFORE PROCEEDINGS TO DISPOSE THEM OFF BY THIS CONSOLIDA TED ORDER FOR THE SAKE OF CONVENIENCE. APPELLANT BY SHRI ABHAY AVCHAT RESPONDENT BY SHRI ABHIJIT CHAUDHURI DATE OF HEARING 15-11-2019 DATE OF PRONOUNCEMENT 15-11-2019 ITA NOS.937 TO 942/PUN/2018 MANIK V. BANKAR & ORS. 3 2. THE LD. AR HAS TAKEN AN ADDITIONAL GROUND CHALLENGING TH E INITIATION OF RE-ASSESSMENT PROCEEDINGS. THE SAME BEING A LE GAL GROUND NOT REQUIRING EXAMINATION OF FRESH FACTS IS HEREBY ADMITTED FOR DISPOSAL ON MERITS. 3. BRIEFLY STATED THE FACTS AS RECORDED IN THE ASSESSMENT ORDER OF KRUSHNA MANIK BANKAR (ITA NO.938/PUN/2018) ARE THAT A SURVEY ACTION U/S.133A OF THE INCOME-TAX ACT 1961 (HEREINAFTER CALLED THE ACT) WAS CONDUCTED IN THE CASE OF M/S. PHARANDE PROMOTERS & BUILDERS ON 29-07-2013 DURING THE COURSE OF WHICH IT TRANSPIRED THAT THEY PURCHASED A PARTICULA R PIECE OF LAND FOR A CONSIDERATION OF RS.2.55 CRORE. SUCH LAND WAS HELD BY ALL THE ASSESSEES IN THE INSTANT BATCH OF APPEA LS. SHRI KRUSHNA MANIK BANKAR AS PER PAGE 1 OF THE ASSESS MENT ORDER RECEIVED HIS SHARE CONSIDERATION AT RS.31.50 LAKH BY CHEQUE AND THE SAME WAS NOT OFFERED FOR COMPUTATION OF CAPITAL GAIN IN THE RETURN FOR THE A.Y. 2012-13. THE ASSESSING O FFICER (AO) INITIATED THE REASSESSMENT AND COMPLETED THE SAME BY COMPUTING LONG TERM CAPITAL GAIN AT RS.30 69 930/- WHICH CAME TO BE COUNTENANCED IN THE FIRST APPEAL. THE ASSESSEE IS AGGRIEVED BY THE CONFIRMATION OF SUCH ADDITION. ITA NOS.937 TO 942/PUN/2018 MANIK V. BANKAR & ORS. 4 4. I HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE RELEV ANT MATERIAL ON RECORD. TAKING UP THE ADDITIONAL GROUND AGAINST TH E INITIATION OF RE-ASSESSMENT PROCEEDINGS IT IS FOUND FROM PAGE 1 OF THE ASSESSMENT ORDER THAT THE AO HAS RECORDED AS UND ER : A SURVEY ACTION U/S.133A OF INCOME TAX ACT 1961 WAS CONDUCTED IN THE CASE OF M/S. PHARANDE PROMOTERS & BUILDERS DATED 29.0.2013. DURING THE COURSE OF SURVEY PROCEEDINGS IT WAS NOTICED THAT M/S. PHARANDE PROMOTERS & BUILDERS HAD PURCHASED LAND AT PLOT NO.729 & 733 LOCATED AT BORHADEWADI MOSHI AT A CONSIDERATION OF RS.2 55 00 000/- DATED 12.10.2011. ON PERUSAL OF THE 7/12 EXTRACT AND PURCHASE AGREEMENT DATED 12.10.2011 OF THE SAID LAND IT WAS NOTICED THAT KRISHNA MANIK BANKAR IS ONE OF THE OWNER OF SAID PLOT AND HE HAS RECEIVED HIS SHARE CONSIDERATION OF RS.31 50 000/- BY CHEQUE. HE H AS NOT OFFERED ANY CAPITAL GAINS INCOME ARISING OUT OF THE SALE OF ABOVE SAID LAND TO M/S. PHARANDE PROMOTERS & DEVELOPERS FOR THE PURPOSE OF TAXATION FOR F.Y.2011-12 RELEVANT TO A.Y. 2012-13. 5. ON GOING THROUGH THE ABOVE EXTRACTION IT IS MANIFESTED THAT THE AO INITIATED RE-ASSESSMENT PROCEEDINGS ON THE GROUND THAT THOUGH THE ASSESSEE RECEIVED HIS SHARE OF CONSIDERATIO N AT RS.31.50 LAKH BY CHEQUE BUT DID NOT OFFER ANY CAPITAL GAIN ARISING OUT OF SALE FOR THE ABOVE SAID LAND TO M/S. PHARANDE PROMOTERS & BUILDERS FOR THE PURPOSE OF TAXATION IN HIS RETU RN FOR A.Y. 2012-13. THE LD. AR INVITED MY ATTENTION TOWARDS TH E ITA NOS.937 TO 942/PUN/2018 MANIK V. BANKAR & ORS. 5 ORIGINAL RETURN FILED FOR THE A.Y. 2012-13 A COPY OF WHICH IS AVAILABLE FROM PAGE 50 ONWARDS OF THE PAPER BOOK. PAGE 52 OF THE PAPER BOOK WHICH IS CONTINUATION OF THE INCOME-TAX RETUR N DISCERNS THAT THE ASSESSEE DID DECLARE FULL VALUE OF CONSIDE RATION AT RS.31.50 LAKH AND AFTER CLAIMING DEDUCTIONS U/S.54 54B ETC. COMPUTED LONG TERM CAPITAL GAIN AT RS.1.80 000/-. THIS IS H OW THE ASSESSEE FILED RETURN WITH TOTAL INCOME AT RS.1 80 000/- ARISING FROM THE TRANSFER OF PROPERTY IN QUESTION. ON AN EXAMINATION OF THE ABOVE EXTRACTION FROM THE ASSESSMENT ORDE R VIS-A-VIS THE COPY OF INCOME-TAX RETURN FILED BY THE ASSESS EE ON 31-07-2012 U/S.139(1) OF THE ACT IT TURNS OUT THAT THAT THE ASSESSEE DID DECLARE HIS SHARE OF CONSIDERATION AT RS.31.5 0 LAKH AND ALSO OFFERED CAPITAL GAIN ARISING OUT OF SALE OF THE ABO VE SAID LAND TO M/S. PHARANDE PROMOTERS & BUILDERS FOR THE PURPOSES OF TAXATION. ON A SPECIFIC QUERY THE LD. AR COU LD NOT PLACE ON RECORD A COPY OF THE REASONS LEADING TO THE INITIATIO N OF RE-ASSESSMENT PROCEEDINGS. EX-FACIE IT APPEARS FROM PA GE 1 OF THE ASSESSMENT ORDER THAT THE AO INITIATED RE-ASSESSMENT PROCEEDINGS ONLY ON THE GROUND THAT THE ASSESSEE DID NOT O FFER ANY CAPITAL GAIN ARISING FROM SALE OF THE ABOVE SAID LAND WHICH ITA NOS.937 TO 942/PUN/2018 MANIK V. BANKAR & ORS. 6 ON FACTUAL NARRATION DISCUSSED ABOVE DOES NOT APPEAR TO S TAND. SINCE THE LEGALITY OF INITIATION OF RE-ASSESSMENT PROCEEDINGS HA S BEEN CHALLENGED FOR THE FIRST TIME BEFORE THE TRIBUNAL I CO NSIDER IT EXPEDIENT TO SEND THE MATTER BACK TO THE LD. CIT(A) FOR DISPOSAL OF THE GROUND RAISED BEFORE THE TRIBUNAL FOR THE F IRST TIME CHALLENGING THE INITIATION OF RE-ASSESSMENT PROCEEDINGS. IN SUCH AN EXAMINATION HE WILL TAKE INTO CONSIDERATION THE REAS ONS FOR RE-ASSESSMENT. IF THE REASONS ARE SIMILAR TO THE EX TRACTION MADE ABOVE THEN OBVIOUSLY THE RE-ASSESSMENT PROCEEDINGS CANNOT STAND. IN CASE THERE ARE CERTAIN OTHER REASONS ALS O OR CERTAIN OTHER ASPECTS OF THE COMPUTATION OF CAPITAL GAIN THEN THE LD. CIT(A) WILL DECIDE THE ISSUE AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. FACTS OF ALL OTHER FIVE APPEALS ARE MUTATIS MUTANDIS SIMILAR TO THOSE OF KRUSHNA MANIK BANKAR DISCUSSED ABOVE. IN A LL THE FIVE APPEALS ASSESSEES HAVE RAISED SIMILAR ADDITIONAL GROU ND CHALLENGING THE INITIATION OF RE-ASSESSMENT PROCEEDINGS. THE LD. AR SUBMITTED THAT ALL THE OTHER FIVE ASSESSEES FILED RETURNS U/S 139(1) OF THE ACT DECLARING THE TRANSACTION AND ALSO COMPUTED THE LONG TERM CAPITAL GAIN. IN VIEW OF OUR ABOVE DECISION IN THE ITA NOS.937 TO 942/PUN/2018 MANIK V. BANKAR & ORS. 7 CASE OF KRUSHNA MANIK BANKAR I SET-ASIDE THE IMPUGNED ORDERS AND REMIT THE MATTER TO THE FILE OF LD. CIT(A) FOR DEALING WI TH THE GROUND TAKEN BEFORE THE TRIBUNAL FOR THE FIRST TIME AGAIN ST THE INITIATION OF RE-ASSESSMENT PROCEEDINGS AND THEREAFTER DEALING WITH APPEAL AS PER LAW. 7. IN THE RESULT ALL THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH NOVEMBER 2019. SD/- (R.S.SYAL) / VICE PRESIDENT PUNE; DATED : 15 TH NOVEMBER 2019 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-8 PUNE 4. THE PR.CIT- 5 PUNE 5. SMC / DR SMC ITAT PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY / ITAT PUNE ITA NOS.937 TO 942/PUN/2018 MANIK V. BANKAR & ORS. 8 DATE 1. DRAFT DICTATED ON 15-11-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 15-11-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -- JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -- JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *