SHEILA R. MAHTANI, MUMBAI v. ACIT 19(3), MUMBAI

ITSSA 23/MUM/2010 | misc
Pronouncement Date: 15-07-2011 | Result: Allowed

Appeal Details

RSA Number 2319916 RSA 2010
Assessee PAN AHTPM2868G
Bench Mumbai
Appeal Number ITSSA 23/MUM/2010
Duration Of Justice 1 year(s) 3 month(s) 29 day(s)
Appellant SHEILA R. MAHTANI, MUMBAI
Respondent ACIT 19(3), MUMBAI
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 15-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted F
Tribunal Order Date 15-07-2011
Date Of Final Hearing 03-05-2011
Next Hearing Date 03-05-2011
Assessment Year misc
Appeal Filed On 17-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F BEFORE SHRI R.V. EASWAR PRESIDENT AND SHRI R.K. PANDA ACCOUNTANT MEMBER. IT (SS) A NO. 23 /MUM / 10 (BLOCK PERIOD : 1.4.1995 TO 9.1.2002) SMT. SHEILA R. MAHTANI 405 MONALISA 1 ST ROAD BANDRA (W) MUMBAI- 400050. P.A. NO.AHTPM 2868 G VS. ASSTT. COMMISSIONER OF INCOME TAX -19(3) PIRAMAL CHAMBERS 4 TH FLOOR LALBAUG MUMBAI-400 013. APPELLANT . RESPONDENT. APPELLANT BY : SHRI MANISH SANGH VI RESPONDENT BY : SHRI A.P. SINGH O R D E R PER SHRI R.K. PANDA : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER DATED 29.1.2010 OF THE CIT(A)-21 MUMBAI RELATING TO THE BLOCK PER IOD 1.4.1995 TO 9.1.2002. 2. THIS IS THE SECOND ROUND OF LITIGATION BEFORE THE TRIBUNA L. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE IS AN INDIVIDUAL AN D WIFE OF SHRI RAJU MAHTANI WHO IS ENGAGED IN THE BUSINESS OF JEWELLERY. A SEA RCH ACTION UNDER SECTION 132 OF THE ACT WAS CARRIED OUT BY THE DEPARTME NT ON 9.1.2002 AT THE BUSINESS AND RESIDENTIAL PREMISES OF SHRI RAJU MAHTANI AND THE ASSESSEE BEING HIS WIFE WAS ALSO COVERED IN THE SEARCH. BLOCK ASSES SMENT UNDER SECTION 158BC R.W.S. 143(3) OF THE ACT WAS COMPLETED AT A N UNDISCLOSED INCOME OF RS.7 98 390/- MAKING AN ADDITION OF RS.3 10 980/- ON ACCOUNT OF IT(SS)A NO.23/MUM/10 - 2 - CASH PAYMENT FOR PURCHASE OF FLAT. THE ASSESSEE FILED APPE AL AGAINST THE AFORESAID ADDITION BEFORE THE CIT(A) WHO VIDE HIS ORDER DATE D 17.5.2004 DECIDED THE APPEAL OF THE ASSESSEE CONFIRMING THE ADDITION TO THE EXTENT OF RS.2 98 390/-. THE ASSESSEE FILED FURTHER APPEAL BEFORE THE TRIBUNAL. THE TRIBUNAL VIDE ITS ORDER DATED IT(SS)420/MUM/04 DATED 7.8.20 07 SET ASIDE THE ISSUE OF ADDITION OF RS.3 10 980/- AND RESTORED THE MAT TER BACK TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH. 3. SUBSEQUENT TO THE ORDER OF THE TRIBUNAL THE ASSESS ING OFFICER ASKED THE ASSESSEE TO PROVIDE THE FOLLOWING DOCUMENTS:- I) DATE OF BOOKING OF FLAT II) AMOUNT PAID AT THE TIME OF BOOKING III) THE SOURCE OF PAYMENT OF BOOKING OF THE FLAT IV) WHETHER ANY AGREEMENT WAS ENTERED INTO WITH THE BUILDER OR DEVELOPER WHILE BOOKING THE FLAT. IF SO A COPY OF SUCH AGREEMENT V) WHILE CANCELING THE BOOKING OF THE FLAT WHETHER ANY AGREEME NT TO THAT EFFECT WAS MADE. IF SO A COPY OF SUCH AGREEMENT AND VI) WHETHER THE POSSESSION OF THE FLAT WAS TAKEN. IF SO A C OPY OF POSSESSION LETTER GIVEN BY THE BUILDER AND DEVELOPER. 3.1 IN RESPONSE TO THE SAME THE ASSESSEE FILED AN AFFIDAV IT DT.18.11.2008 ACCORDING TO WHICH THE ASSESSEE DURING THE FINANCIAL YEAR 1994-95 HAD BOOKED A FLAT AT HAMLET IN PUNE CITY FOR A TOTAL CONSIDERAT ION OF RS.5 47 500/-. AT THE TIME OF BOOKING OF THE FLAT SHE HAD PA ID THE BOOKING AMOUNT OF RS.75 000/- BY CHEQUE AND THEREAFTER DURING FIN ANCIAL YEAR 1995-96 SHE HAD MADE FURTHER PAYMENT OF RS.1.00 LAC BY C HEQUE. SHE HAD NOT ENTERED INTO ANY AGREEMENT FOR BOOKING OF THE SAID FLA T AND THE BUILDER IT(SS)A NO.23/MUM/10 - 3 - HAD ISSUED AN ALLOTMENT LETTER AT THE TIME OF BOOKING OF T HE FLAT. IT WAS SUBMITTED THAT SHE HAD SURRENDERED THE SAID FLAT TO THE DEVELOPER AND ON SURRENDER OF THE SAID FLAT SHE RECEIVED A SUM OF RS.3 10 98 0/- OVER AND ABOVE THE INITIAL PAYMENT OF RS.1 75 000/-. THE DEVELOPERS HA D ASKED HER TO SURRENDER THE ORIGINAL LETTER OF ALLOTMENT TO EFFECT THE SAID TRANSACTION. THE ASSESSEE SUBMITTED THAT SHE HAD HANDED OVER THE SAID ALLOTMENT LETTER AND IS ALSO NOT HAVING ANY COPY OF THE SAME. THE ASSESSEE FU RTHER SUBMITTED THAT SINCE CONSIDERABLE TIME HAS PASSED SHE IS NOT IN TOU CH WITH THE DEVELOPERS NITRON GOYAL OF PUNE AND IS ALSO NOT AWARE OF THEIR LAST KNOWN ADDRESS. 3.2 HOWEVER THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE ON THE GROUND THAT THE ASSESSE E DID NOT PRODUCE ANY DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE CLAIM. HE NOTE D FROM THE SEIZED LOOSE PAPER THAT FLAT NO.A-2/303 IS BOOKED IN THE NAME OF SHRI RAJU K. MAHTANI ASSESSEES HUSBAND AND FLAT NO.A-2/304 WAS BOOK ED IN THE NAME OF THE ASSESSEE HERSELF. ACCORDING TO THE A.O. AN AMOUNT O F RS.3 10 980/- WAS PAID IN CASH FOR FLAT NO.A-2/304 WHICH WAS ADJUSTED AG AINST FLAT NO.A2/303. SINCE THE ORIGINAL PAYMENT OF CASH WAS MADE FOR FLAT NO.A2/304 THE ASSESSING OFFICER TREATED THE AMOUNT OF RS .3 10 980/- AS UNDISCLOSED INCOME OF THE ASSESSEE. IT(SS)A NO.23/MUM/10 - 4 - 4. BEFORE THE CIT(A) THE ASSESSEE MADE DETAILED ARGUMENT S AND CITED A FEW CASE DECISIONS. HOWEVER THE CIT(A) WAS ALSO NOT SATISFIE D WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND UPHELD THE ACTION OF THE ASSESSING OFFICER BY HOLDING AS UNDER : I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER THE SUBMISSIONS MADE ON THE BEHALF OF THE APPELLANT. I H AVE ALSO CONSIDERED THE CASE LAWS RELIED BY THE APPELLANT. TH E ASSESSING OFFICER HAS HELD IN THE ASSESSMENT ORDER THAT FOR FLA T NO.A2/304 CASH OF RS.3 10 980/- WAS PAID WHICH WAS ADJUSTED AGAIN ST FLAT NO.A2/303. AS REGARDS TO THE CONTENTION OF THE APPELL ANT THAT SHE HAD RECEIVED RS.3 10 980/- IN CASH ON SURRENDER OF THE SAID FLAT THE ASSESSING OFFICER HAS HELD THAT THE APPELLANT HAS NO T PRODUCED ANY DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE AFORESAID C LAIM. IN THIS CONNECTION IT IS PERTINENT TO NOTE THAT THE WHOLE ISS UE IS REVOLVING AROUND THE NOTINGS ON THE SEIZED PAPER BEING LOOSE P APER 2 OF ANNEXURE A-1 SEIZED FROM THE RESIDENCE OF THE APPELLA NT. I HAVE CAREFULLY GONE THROUGH THE NOTINGS ON THE COPY OF THE SEIZED PAPER MARKED AS ANNEXURE-A FORMING PART OF THE ASSESSMENT ORDER DT.31.1.2004 PASSED BY ACIT CIR.5 MUMBAI. THE NOTINGS O N THE SAID PAPER READS AS UNDER : MR. RAJU K. MAHTANI HAMLET A-2/303 RS.5 47 500 AGREEMENT VALUE OF FLAT A-2/303 -RS. 75 000/- RECEIVED BY CHEQUE FOR FLAT A-2/303 RS.4 72 500/- -RS.1 75 000/- RECEIVED CHEQUE OF FLAT A-2/304(ADJUSTED) RS.2 97 500/- + 25 000/- MSEB + 13 000/- OTHER CHARGES + 54 750/- ONE TIME MAIN DEPOSIT RS.3 90 250/- -RS.3 10 980/- CASH PART OF FLAT A-2/304 ADJUSTED IT(SS)A NO.23/MUM/10 - 5 - TO BE TAKEN FROM MR. MAHTANI. BAL.AMT. RS.79 270/- ============= HAMLET A-2/304 MRS. SHEILA R. MAHTANI 1095 SQ.FT. OF FLAT A-2/304 X 300 --------- AGREEMENT VALUE RS.3 28 500/- RS.5 47 500/- - RS.17 520/- 2% BROKERAGE -RS.1 75 000/- ----- ------------------- -RS.3 72 500/- RS.3 10 980/- ADJUST AGAINST FLAT A-2/303 THE NOTINGS ON THE PAGE NO.2 APPEARED TO BE BOOKING OF 2 F LATS I.E. FLAT NO.A-2/303 IN THE NAME OF SHRI RAJU MAHTANI AN D FLAT A- 2/304 IN THE NAME OF SMT. SHEILA R. MAHTANI IN THE BU ILDING NAMED HAMLET AS EXPLAINED BY THE APPELLANT. THE EXPLANATIO N OF THE APPELLANT THAT THE BOOKING OF FLAT NO.A-2/304 IN HER N AME WAS SUBSEQUENTLY CANCELLED AND PAYMENT WORTH RS.1 75 000/- M ADE BY HER AT THE TIME OF BOOKING THE FLAT NO.A-2/304 WAS ADJ USTED BY THE BUILDER AGAINST THE CONSIDERATION VALUE OF FLAT NO.A-2/3 03 OF SHRI RAJU MAHTANI ALSO APPEARED TO BE CORRECT ON THE BASI S OF THE NOTINGS ON THE SAID PAPER. IT IS SEEN THAT NOTINGS ON LOWER RIGHT SIDE PORTION OF THE SEIZED PAPER SHOWED 1095 SQ.FT. OF FLAT NO. A-2/ 304 WHICH IS MULTIPLIED BY RS.300/- AND RESULTANT FIGURE OF RS.3 28 5 00/- IS WRITTEN THEREAFTER FROM WHICH BROKERAGE @ 2% WORTH R S.17 520/- IS DEDUCTED AND THE BALANCE WORTH RS.3 10 980/- IS ADJUSTE D AGAINST FLAT NO.A-2/303 OF SHRI RAJU MAHTANI. KEEPING IN MIND THE NATURE OF SUCH NOTINGS THE EXPLANATION OF THE APPELLANT THA T NET PROFIT AFTER ADJUSTING BROKERAGE EARNED ON CANCELLATION OF THE BO OKING TO THE EXTENT OF RS.3 10 980/- WAS ORIGINALLY ADJUSTED BY THE B UILDER AGAINST THE FLAT NO.A-2/303 OF SHRI RAJU MAHTANI AND S UBSEQUENTLY ON MAKING ALL PAYMENTS BY SHRI RAJU MAHTANI TO THE B UILDER IN RESPECT OF FLAT NO.A-2/303 THE BUILDER HAS REFUNDED TH E AMOUNT OF NET PROFIT WORTH RS.3 10 980/- TO THE APPELLANT APPEARS TO BE LOGICAL AND RATIONAL. THE NOTINGS SHOWS PROFIT EARNED @ RS.300 /- PER SQ.FT. IT(SS)A NO.23/MUM/10 - 6 - ON CANCELLATION OF THE FLAT NO.A-2/304 WHICH IS EVIDEN T FROM THE FACT THAT BROKERAGE @ 2% WAS DEDUCTED FROM THE AMOUNT OF RS.3 28 500/- BEING PROFIT EARNED BY THE APPELLANT ON CA NCELLATION OF FLAT NO.A-2/304. THE NOTINGS ON THE SEIZED PAPER SHOWS THAT NET PROFIT EARNED WORTH RS.3 10 980/- WAS ADJUSTED AGAINST THE AGREEMENT VALUE OF SHRI RAJU MAHTANI BUT THE CLAIM OF THE LD. AR THAT THE SAME MIGHT HAVE BEEN RECEIVED BACK BY THE ASSESSEE AFTER MAKING FULL PAYMENT BY SHRI RAJU MAHTANI AND THE MON EY SO RECEIVED BACK BY THE ASSESSEE MIGHT HAVE BEEN UTILI ZED BY HER IN PURCHASE OF JEWELLERY AND FOR HOUSEHOLD EXPENSES REMA INED UNSUBSTANTIATED. THE APPELLANT COULD NOT BRING ANY EVI DENCE ON RECORD TO SUBSTANTIATE HER EXPLANATION. IN THE ABSEN CE OF ANY COGNIZANT EVIDENCE THE ARGUMENT OF THE LD. AR REMAINE D UNPROVED AND THEREFORE IT CANNOT BE ACCEPTED. IT WILL ALSO NOT BE OUT OF PLACE TO MENTION THAT THE APPELLANT DID NOT FILE ANY DOCUME NTARY EVIDENCE/DETAILS BEFORE THE ASSESSING OFFICER IN COM PLIANCE OF THE DIRECTIONS OF THE TRIBUNAL DURING THE ASSESSMENT PRO CEEDINGS. THE CASE LAWS CITED BY THE APPELLANT ARE FOUND TO BE DIST INGUISHABLE AS THE NOTINGS ON THE SEIZED PAPER ARE VERY CLEAR AND UNAMBIG UOUS. IN VIEW OF THE ABOVE I HEREBY CONFIRM THE ADDITION OF RS.3 10 980/- MADE BY THE ASSESSING OFFICER. HOWEVER CO NSIDERING THE FACT THAT THE APPELLANT HAD SHOWN MISCELLANEOUS I NCOME OF RS.2 12 590/- OUT OF WHICH A SUM OF RS.2 00 000/- WAS OFFE RED ON ACCOUNT OF LOW WITHDRAWALS IN THE COURSE OF ASSESSME NT PROCEEDINGS THERE REMAINED UNADJUSTED MISCELLANEOUS INCOME OF RS.12 590/-. IN THE FAIRNESS OF LAW I ALLOW SET OFF OF RS .12 590/- AGAINST THIS INCOME AND CONFIRMED THE ADDITION TO TH E EXTENT OF RS.2 98 390/- (I.E. RS.3 10 980 - RS.12 590/-). THIS GROUND OF APPEAL IS PARTLY ALLOWED. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS :- 1.(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.3 10 980/- MADE BY THE ASSESSING OFFICER TO THE UNDISCLOSED INCOME OF THE APPELLANT ON ACCOUNT OF ALLEGED CASH PAYMENT MADE FOR PURCHASE OF FLAT. IT(SS)A NO.23/MUM/10 - 7 - (B) ALTERNATIVELY THE AMOUNT RECEIVED ON CANCELLATION OF THE BOOKING OF THE FLAT MADE IN THE PAST OUGHT TO H AVE BEEN CONSIDERED AS LONG TERM CAPITAL GAINS AFTER ALLOWING THE BENEFIT OF INDEXATION. (C) IN REACHING TO THE CONCLUSION AND CONFIRMING SUCH ADDITION THE LD. CIT(A) OMITTED TO CONSIDER RELEVANT FACTORS CONSIDERATIONS PRINCIPLES AND EVIDENCES WHIL E HE WAS OVERWHELMED INFLUENCED AND PREJUDICED BY IRRELEVANT CONSIDERATIONS AND FACTORS. 2. THE LEARNED CIT(A) ERRED IN CONFIRMING THE LEVY OF SURCHARGE ON THE TAX COMPUTED U/S.113 OF THE INCOME TAX ACT 1961. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT SURCHARGE ON TAX U/S.113 OF THE INCOME TAX ACT 1961 CANNOT BE LEVIED IN CASE OF SEARCH CONDUCTED ON OR BEFORE 1.6.2002. 3. THE LEARNED CIT(A) ERRED IN HOLDING THAT CHARGING OF INTEREST U/S. 158BFA(1) OF THE INCOME TAX ACT 1961 IS CONSEQUENTIAL IN NATURE. THE APPELLANT DENIES HER LIABILITY FOR SUCH INTEREST. 4. THE LEARNED CIT(A) ERRED IN HOLDING THAT INITIATION O F PENALTY PROCEEDINGS U/S.158BFA(2) OF THE INCOME TAX ACT 1961 IS CONSEQUENTIAL IN NATURE. THE APPELLANT DENIES HER LIABILITY FOR SUCH PENALTY. 6. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING TO THE DOCUMENT MARKED AS ANNEXURE A (COPY OF WHICH IS PLACED IN THE PAPE R BOOK PAGE 17) DREW THE ATTENTION OF THE BENCH TO THE NOTING ACCORDING TO WHICH THE AGREEMENT VALUE OF THE FLAT A-2/304 IS RS.5 47 500. AGAINST THE SAME THE ASSESSEE HAS MADE PAYMENT OF RS.1 75 000. REFERRING TO P AGE NOS.25 TO 27 OF THE PAPER BOOK HE DREW THE ATTENTION OF THE BENCH TO THE FOLLOWING OBSERVATIONS OF THE CIT(A) APPEARING AT PAGE 9 OF THE OR DER DT.17.5.2004 KEEPING IN MIND THE NATURE OF SUCH NOTINGS THE EXPLANATIO N OF THE ASSESSEE THAT NET PROFIT AFTER ADJUSTING BROKERAGE EARNED ON CANCELLATION OF BOOKING TO IT(SS)A NO.23/MUM/10 - 8 - THE EXTENT OF RS.3 10 980 WAS ORIGINALLY ADJUSTED BY THE B UILDER AGAINST FLAT NO.A-2/303 OF SRI RAJA MAHTANI AND SUBSEQUENTLY ON MAKIN G ALL PAYMENTS BY SRI RAJA MAHTNI TO THE BUILDER IN RESPECT OF FLAT NO.A- 2/303 THE BUILDER HAS REFUNDED THE AMOUNT OF NET PROFIT WORTH RS.3 10 980 TO THE ASSESSEE IS LOGICAL AND RATIONAL. HE SUBMITTED THAT SIMILAR OBSERVATION HAS BEEN GIVEN BY THE CIT(A) IN HIS ORDER DT. 29.1.2010 AND THE REVENUE H AS NOT GONE IN APPEAL AGAINST THE ABOVE OBSERVATIONS OF THE CIT(A). 7. REFERRING TO THE PAGE 9 OF THE PAPER BOOK THE LEARNED COUNSEL FOR THE ASSESSEE MADE AN ALTERNATE SUBMISSION THAT AT THE MOST ONLY THE CAPITAL GAINS COULD HAVE BEEN BROUGHT TO TAX. ACCORDING TO HIM THE LONG TERM CAPITAL GAIN COMES TO RS.236 ONLY AS PER THE FOLLOWING DETAILS : 1. COST IN F.Y. 1994 - 95 RS.5 47 500 2. BOOKING CANCE LLED IN F.Y. 2000 - 01 CONSIDERATION RS.8 76 000 3. PROFIT RS.3 28 500 4. BROKERAGE RS.17 520 5. INDEXED COST 5 47 500 /259 X 406 RS.8 58 243 6. LONG TERM CAPITAL GAIN (2 - 5 - 4) RS . 236 8. WITHOUT PREJUDICE TO THE ABOVE HE SUBMITTED THAT BO OKING OF FLAT WAS MADE PRIOR TO THE BLOCK PERIOD THE MONEY WAS PAID DURING F.Y. 1994-95 WHICH IS PRIOR TO THE BEGINNING OF THE BLOCK PERIOD I.E. 1.4.19 95 TO 9.1.2002 THEREFORE NO AMOUNT COULD HAVE BEEN BROUGHT TO TAX AS UNDISCLOSED INCOME DURING THE BLOCK PERIOD. IT(SS)A NO.23/MUM/10 - 9 - 9. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND STRONGLY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED THAT THE SEIZED DOCUMENT CLEARLY SHOWS THE ADJUSTMENT OF RS.3 10 980 AGAINST FLAT NO.A-2-303 . THERE IS NO DISPUTE TO THE PAYMENT OF RS.3 10 980 BY CASH BY TH E ASSESSEE FOR PURCHASE OF FLAT NO.A-3-204 WHICH WAS ADJUSTED AGAINST F LAT NO.A-3-202. THEREFORE EITHER THIS AMOUNT WAS PAID BY THE ASSESSEE IN CASH OR RECEIVED IN CASH. AS REGARDS THE ARGUMENT OF THE LEARNED COUNSE L FOR THE ASSESSEE THAT AT THE MOST CAPITAL GAIN ONLY CAN BE TAXED THE LEA RNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT IN ABSENCE OF COMPLETE DET AILS DESPITE THE DIRECTION OF THE TRIBUNAL THE ASSESSEE DID NOT GIVE FULL DET AILS OF PAYMENT. THEREFORE IT IS NOT POSSIBLE FOR CALCULATION OF INDEXATION. AC CORDING TO HIM THERE SHOULD BE SOME DOCUMENTARY EVIDENCE FOR THE PURP OSE OF COMPUTATION OF CAPITAL GAIN U/S.48 OF THE INCOME TAX ACT 1961. 10. THE LEARNED COUNSEL FOR THE ASSESSEE IN HIS REJOINDE R REFERRING TO THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF L. S OHANLAL GUPTA VS. CIT REPORTED IN 33 ITR 786 SUBMITTED THAT THE AFFIDA VIT FILED BY THE ASSESSEE HAS TO BE ACCEPTED AND SHOULD NOT HAVE BEEN REJECTED. EVEN OTHERWISE ALSO COMPUTATION OF CAPITAL GAIN IS NOT A PROBLEM SINCE AS PER THE SEIZED DOCUMENT THE AGREEMENT VALUE IS RS.5 47 500 WHICH IS NOT IN DISPUTE. THE CANCELLATION OF THE BOOKING DURING F.Y. 2000-0 1 IS ALSO NOT IN DISPUTE. THEREFORE CONSIDERING THAT THE ASSESSEE RECEIV ED RS.8 76 000 BEING FULL PAYMENT INCLUDING PROFIT OF RS.3 10 980/- AS ARGUED BY THE IT(SS)A NO.23/MUM/10 - 10 - REVENUE AND AFTER DEDUCTING THE BROKERAGE AS PER THE SEIZED DOCUMENT THE LONG TERM CAPITAL GAIN COMES TO ONLY RS.236 WHICH AT BES T CAN BE BROUGHT TO TAX. 11. AFTER CONSIDERING THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND ON PERUSAL OF THE ORDERS OF THE A.O. AND THE CIT(A) AND THE P APER BOOK FILED BY THE ASSESSEE WE FIND THE ALTERNATE CONTENTION OF THE AS SESSEE THAT ONLY CAPITAL GAIN COULD BE BROUGHT TO TAX IS ACCEPTABLE. WE FIND THE TRIBUNAL WHILE RESTORING THE MATTER TO THE FILE OF THE ASSESSING OFFICE R INTER ALIA HAS ALSO GIVEN A DIRECTION TO THE ASSESSING OFFICER TO CONSIDER THE CONTENTION OF THE ASSESSEE THAT THE RECEIPT OF RS.3 10 980 SHOULD BE A CCEPTED UNDER THE HEAD LONG TERM CAPITAL GAIN AFTER ALLOWING THE BENEFIT O F INDEXATION. WE FIND DESPITE THIS SPECIFIC DIRECTION GIVEN BY THE TRIBUNAL THE ASSESSING OFFICER DID NOT ADJUDICATE ON THIS ISSUE ALTHOUGH THE ASSES SEE HAD STATED BEFORE HIM THAT AN AMOUNT OF RS.75 000 WAS PAID DURING F.Y. 1994-95 AND ANOTHER AMOUNT OF RS.1 LAC WAS PAID DURING F.Y. 1995-96. I T HAS ALSO BEEN MENTIONED BEFORE THE ASSESSING OFFICER THAT DURING 2000-01 THE ASSESSEE HAS SURRENDERED TO THE DEVELOPER THE SAID FLAT AND ON S URRENDER THE ASSESSEE HAD RECEIVED A SUM OF RS.3 10 980. THE ABOVE D ETAILS COULD HAVE BEEN UTILIZED BY THE ASSESSING OFFICER FOR CALCULATION OF CAPITAL GAIN. WE FIND IN ABSENCE OF ANY SPECIFIC GROUND BEFORE HIM THE CIT(A) DID NOT ADJUDICATE ON THIS ISSUE. IT(SS)A NO.23/MUM/10 - 11 - 12. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE A.O. WITH THE DIRECTION TO DECIDE THE ISSUE FROM THE ANGLE OF CAPITAL GAIN AS PER THE DIRECTION OF THE TRIBUNAL EARLIER AND WHICH THE A.O. HAS FAILED TO DO. NEEDLESS TO SAY THE A.O. SHALL GIVE DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE ISSUE AS PER LAW. WE HOLD AND D IRECT ACCORDINGLY. GROUND OF APPEAL NO. 1 IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. 13. GROUND NO.2 BY THE ASSESSEE RELATS TO LEVY OF SURC HARGE ON THE TAX COMPUTED U/S.113 OF THE INCOME TAX ACT. 13.1 BOTH THE PARTIES FAIRLY AGREED THAT THIS GROUND IS COVERED IN FAVOUR OF THE REVENUE BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. SURESH N. GUPTA REPORTED IN 166 TAXMAN 313 (SC). A CCORDINGLY THIS GROUND BY THE ASSESSEE IS DISMISSED. 14. GROUND NO.3 RELATES TO CHARGING OF INTEREST U/S.158BF A(1) OF THE INCOME TAX ACT. 14.1 AFTER HEARING BOTH SIDES WE FIND THIS GROUND IS CONSEQ UENTIAL IN NATURE. ACCORDINGLY THE SAME IS DISMISSED. 15. GROUND NO.4 RELATES TO INITIATION OF PENALTY PROCEEDING S U/S.158BF(2) OF THE INCOME TAX ACT. IN OUR OPINION THIS GROUND IS PRE MATURE AT THIS STAGE. ACCORDINGLY THIS GROUND OF APPEAL IS DISMISSED. IT(SS)A NO.23/MUM/10 - 12 - 16. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 17.7.2011. SD/- SD/- (R.V. EASWAR) (R.K. PANDA) PRESIDENT ACCOUNTANT MEMBER MUMBAI DT. 15 TH JULY 2011. *GPR TRUE COPY COPY TO : 1. THE ASSESSEE. 2. THE ASSESSING OFFICER. 3. CIT(APPEALS) 4. CIT 5. DEPARTMENTAL REPRESENTATIVE ITAT MUMBAI. 6. GUARD FILE. BY ORDER DY./ASST.REGISTRAR ITAT MUMBAI IT(SS)A NO.23/MUM/10 - 13 - DATE INITIAL OF SR.P.S. 1. DRAFT DICTATED ON 6.7 .2011 12.7.11 2. DRAFT PLACED BEFORE AUTHOR 7.7.2011 12.7.11 3. DRAFT PROPOSED & PLACED BEFORE SECOND MEMBER 4. DRAFT DISCUSSED & APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO BEN CH CLERK 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO A.R. 10 . DATE OF DISPATCH OF ORDER.