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TMI Blog2013 (6) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiries revealed that assessee was having a number of bank accounts in different banks which were not disclosed in his return filed. Thereafter, the assessee filed his return of income for A.Y. 2009-10 and 2010-11 on 16-08-2010 declaring income of Rs.2,77,35,954/- for A.Y. 2009-10 and Rs.3,04,28,180/- for A.Y. 2010-11. 2.1 The Assessing Officer noted from the Income and Expenditure account and balance sheet submitted by the assessee that the income over expenditure are shown at Rs.7,78,95,408/- for A.Y. 2009-10 and Rs.3,91,77,213/- for A.Y. 2010-11. He noted that as per post survey enquiry the assessee has sold land at Survey Nos.89, 93, 94, 95 and 97 at Somathane village, Tal. Panvel, Dist. Raigad and has maintained various bank accounts in different branches at Vashi & Navi Mumbai wherein sale consideration of more than Rs.10 Crores have been credited. In order to verify the distance of said land from Panvel Municipal Corporation, the Assessing Officer issued summons u/s.131 to the Sub Divisional Engineer, Panvel whose statement was recorded. During the statement, the Sub- Divisional Engineer confirmed that the said land is only 6.5 kms away from the outer limit of Panvel Mun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by him in the year 2002 as per "Sathekarar" (agreement for sale). Thus, he became the power of attorney holder and accordingly entered into sale consideration of the said land with various parties in a capacity of power of attorney holder. It was submitted that the assessee entered into sale agreement with different parties and subsequently after cancellation with the same party the said land was finally sold to Mr.Nemichand J. Mehta and others for a sale consideration of Rs.27,95,65,000/- during the F.Y. 2008-09. It was requested to consider the said land transactions under the head "Long Term Capital Gain" as per revised e-return filed on 17-03-2011 instead of "Business Income" as shown in the original return filed on 16-08-2010. In reply to the query raised by the Assessing Officer the assessee stated that the cost of acquisition of the land is Rs.2,84,00,000/- and the total expenses incurred are Rs.17,67,80,425/- under different heads on account of sale of land. 6. The Assessing Officer noted from the various submissions by the assessee that the assessee had purchased the said land for the purpose of business of sale of land to one or more persons and earned profit. He obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e he has violated the principles of natural justice. It was submitted that the payment to the land owner at Rs. 84 lakhs has not been allowed by the Assessing Officer by mistake which needs to be allowed. 8. However, the Ld.CIT(A) was also not convinced with the explanation given by the assessee and upheld the action of the Assessing Officer by holding as under :- "4. I have carefully considered the facts on record and the submission of the appellant. I find that the original return of income was filed by the appellant on 16/08/2010 showing profits and gains of business or profession from the land transactions at Rs.2,75,61,526/- . This return of income has been filed after the due date specified u/s. 139(1) of the Act and hence the revised return filed on 17/03/2011 was not a valid return because a revised return can only be filed if the original return has been filed in time u/s. 139(1) of the Act. Thus, the arguments of the appellant in this regard are against the law and hence are rejected. Accordingly, the revised return of income is non-est in the eyes of law. 4.1 On perusal of copy of original return of income, it is noticed that the appellant had disclosed income from Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Rs.35 lakhs per acre from the purchaser for developmental work. 4.3 Thus, in view of the above mentioned facts and circumstances, it is crystal clear that the land in question was always meant for development and not for agricultural purposes and accordingly, the same has been sold by the appellant for and on behalf of self and Mrs. Bela D. Godha. The expenses on account of developmental work, to the extent of verifiable one, have also been allowed by the Assessing Officer. Therefore, I hold that the transactions of purchase and sale of land after development, are in the nature of Business and accordingly, action of A.O in assessing the profits as income from Business is upheld. Hence, the appellant fails in respect of Grounds No. 1 to 7. 5. Regarding claim of further expenses, vide ground No. 9, I find that the A.O has allowed the expenses which are verifiable. Thus, no further claim will be admissible merely because the payment has been made. The expenses are admissible only if they are actually incurred and that too wholly and exclusively for the purposes of business. In the absence of any concrete evidences, no further claim of expenses is allowable. Thus, action of A.O. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t craves its right to add to or alter the Grounds of Appeal at any time before or during the course of hearing of the case." 10. The Ld. Counsel for the assessee at the outset submitted that the assessee had filed the return on 16-08-2010 in response to notice u/s.142(1) of the Income Tax Act. Referring to page No. 3 of the Paper Book the ld. Counsel for the assessee drew the attention of the Bench to the notice issued by the Assessing Officer u/s.142(1) of the Income Tax Act on 03-03-2010. Referring to provisions of section 139(5) he submitted that if any person having furnished a return in pursuance of a notice u/s.142(1) of the Act discovers any omission or any wrong statement therein he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier. He submitted that since the assessee, in the instant case, has filed the return in response to notice u/s.142(1), therefore, the Ld. CIT(A) was not justified in holding that the revised return filed by the assessee is non-est. 10.1 Relying on a number of decisions he submitted that the Ld. CIT(A) was not justified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind the Ld. CIT(A) has not considered the provisions of section 139(5) while holding the revised return filed by the assessee as non-est. Even the Assessing Officer is also silent on this issue. We, therefore, are of the considered opinion that the revised return filed by the assessee is not non-est and the Assessing Officer should have considered the revised return filed by the assessee before completing the assessment. We, therefore, deem it proper to restore the issue to the file of the Assessing Officer 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. The Assessing Officer is also directed to give one more opportunity to the assessee to substantiate with evidence to his satisfaction regarding the various expenses claimed in the Income and Expenditure account for which details could not be furnished. Since we are restoring the issue to the file of the Assessing Officer, therefore, we refrain ourselves from adjudicating the other issues raised by the assessee in the grounds of appeal. 14. In the result, the appeal filed by the assessee is allowed for statistical purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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