TMI Blog2013 (6) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... nt - thus restore the issue to the file of the AO with a direction to consider the revised return and complete the assessment in accordance with law after giving due opportunity of being heard to the assessee - appeal filed by the assessee is allowed for statistical purposes. - ITA.Nos.1445/PN/2012 - - - Dated:- 14-5-2013 - Shri Shailendra Kumar Yadav And Shri R. K. Panda,JJ. For the Petitioner : Sri Sharad Shah For the Respondent : Sri Mukesh Verma ORDER Per R. K. Panda, AM:- This appeal filed by the assessee is directed against the order dated 12-03-2012 of the CIT(A)-I, Thane relating to Assessment Years 2009-10. 2. Facts of the case, in brief, are that the assessee is an individual and is engaged in the business of trading in land besides deriving income from house property and agricultural income. A survey u/s.133A of the Income Tax Act was carried out at the assessee's business premises on 26-02-2010. During the course of survey, statement of Sri Neelakanth Joma Bhagat, brother of the assessee was recorded on oath since the assessee was not available. On the date of survey action, some loose papers and documents were found which were impounded. In respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enses debited to the Income and Expenditure account with supporting documents/evidences for F.Y. 2008-09 relevant to A.Y. 2009-10. In order to substantiate the cost of acquisition of land debited to Income and Expenditure account the Assessing Officer requested the assessee to submit the details of purchase of land along with documentary evidence. In response to the same the assessee submitted year-wise sale consideration as per revised e-return which is as under :- F.Y. A.Y. Amount 2008-09 2009-10 27,42,52,500/- 2009-10 2010-11 53,12,500/- 27,95,65,000/- The assessee in his statement claimed total expenses of Rs.17,67,80,425/- incurred on account of sale of land against total sale consideration of Rs.27,95,65,425/-. The Assessing Officer noted that for the A.Y. 2010-11 the expenses incurred for land was Rs.33,72,125/- and the assessee has claimed balance expenses of Rs.17,34,08,300/- for the A.Y. 2009-10. 5. In response to the querry raised by the Assessing Officer, the assessee submitted a copy of irrevocable power of attorney dated 14-07- 2006 taken from Mrs. Bela D. Godha alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n various decisions the Assessing Officer considered the entire sale consideration as business income of assessee. Since the assessee has offered sale consideration to tax in 2 A.Ys. i.e. 2009- 10 and 2010-11, he bifurcated the additional sale consideration reimbursed to assessee in the same ratio of sale consideration i.e. Rs.11,29,27,500/- for A.Y. 2009-10 and Rs.21,87,500/- for A.Y. 2010-11. Since the purchaser of land has certified that Rs.11,29,27,800/- has been reimbursed to assessee on account of payment made to various parties the Assessing Officer allowed the same. However, in absence of supporting details the Assessing Officer disallowed the balance expenditure of Rs.5,20,80,00/-. The Assessing Officer accordingly made addition of Rs.16,13,25,000/- to the total income of the assessee under the head "Business Income". 7. Before CIT(A) the assessee submitted that the original return filed by the assessee on 16-08-2010 declaring his income from solitary/isolated sale of agricultural land to one purchaser/party as normal income. The return was filed in response to notice u/s.142(1). Subsequently, the assessee filed the revised return on 17-03-2011. Therefore, the revised re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s irrevocable Power of Attorney Holder vide a document dt. 14.07.2006. It is also noticed that the purchaser has directly paid Rs.2,84,00,000/- to Smt. Bela D. Godha consideration for her rights in the land. Therefore, I hold that the appellant was not the absolute owner of the land in question. 4.2 From the documents furnished during the course of appellate proceedings, it is noticed that the appellant enjoys Term Loan of Rs. 20 lakh and cash credit of Rs.1.50 lakh from Union Bank of India, Panvel Branch, Panvel vide letter dated 15.03.2004. It is very relevant to point out here that Term Loan and cash credit facilities are always taken for the purposes of Business or Profession and appellant has not disclosed any income from Business or Profession in the return of income except for profits and gains of Business or Profession from sale of land in question. Most importantly, vide a letter dated 15/05/2008 prior to the sale of lands (between June 2008 to October, 2008), Shri. Nemichand 3. Mehta required the appellant to get the title cleared, and permission from the Govt. for land under 32G and provide approach road from the road, level the surface and develop the land so as to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late proceedings also, the A.R. of the appellant has been given sufficient opportunities of hearing. Thus, principles of natural justice have been duly observed and hence ground No.10 in this regard is unwarranted and is dismissed." 9. Aggrieved with such order of the CIT(A) the assessee is in appeal before us with the following concise grounds of appeal :- "1. The learned A.O. erred and learned CIT(A) erred in confirming that the revised return filed by the assessee is non-est. 2. The learned A.O. erred and learned CIT(A) erred in confirming the assessment which is not based on duly filed revised return and therefore, the assessment be quashed and Income be accepted as per revised return duly filed. 3. The learned A.O. erred and learned CIT(A) erred in confirming the assessment of sale of property as Business income by applying the principle of adventure in the nature of trade. 4. The learned A.O. erred in not giving reasonable opportunity to the assessee, while relying on evidences submitted by third parties and thus he failed on the principle of natural justice and therefore the assessment be declared null. 5. The learned A.O. erred in not appreciating the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same cannot be considered as income from capital gain. Further, the assessee was only a power of attorney holder and not the owner of the land, therefore, there is no question of any capital gain as claimed by the assessee. 12. So far as the question of considering the revised return as non-est or a proper return he submitted that the Ld. CIT(A) has not considered the same in the light of the provisions of section 139(5). He accordingly submitted that the matter may be restored to the file of the Ld. CIT(A) or the Assessing Officer. 13. We have considered the rival arguments made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions relied on by both the sides. We find the assessee in the instant case has filed his return of income on 16-08-2010 declaring total income of Rs.2,77,35,954/-. We further find from Page 3 of the Paper Book that the Assessing Officer in the instant case has issued notice u/s.142(1) of the Income Tax Act to the assessee on 03-03-2010. As per the provisions of section 139(5) if an assessee, who has filed a return in response to noti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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