Income Tax Appellate Tribunal - Pune
Shri Anil Kisanlal Marda,, Pune vs Assessee on 21 November, 2013
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCHES "B", PUNE
BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER
AND SHRI G.S. PANNU, ACCOUNTANT MEMBER
SA No. 206/PN/2013
(Arising out of ITA No.1763/PN/2013)
(Assessment Year : 2009-10)
Shri Anil Kisanlal Marda
F-304, Vrundavan Apartments,
Model Colony, Shivajinagar,
Pune - 411 016.
PAN : ABKPM9882D .... Appellant
Vs.
Income Tax Officer,
Ward 3(1), Pune. .... Respondent
Appellant by : Mr. Sunil Ganoo
Respondent by : Mr. S. P. Walimbe
Date of hearing : 21-11-2013
Date of pronouncement : 22-11-2013
ORDER
PER G. S. PANNU, AM
By way of the present petition, assessee has prayed for a stay on the recovery of outstanding demand of Rs.55,85,000/- out of the total demand raised of Rs.1,11,17,910/- as the result of an assessment made u/s 143(3) of the Income Tax Act, 1961 (in short "the Act") for assessment year 2009-10.
2. In brief, the facts are that assessee is an individual who filed a return of income declaring a total income of Rs.87,06,746/- and the assessment finalized u/s 143(3) of the Act on 30-12-2011 the total income has been assessed at Rs.3,13,63,270/-. The major additions made in the assessment and which have also been upheld by the CIT(A) are :- (i) Rs.1,50,00,000/- claimed to be gift received from the father has not been accepted as genuine and has been assessed as unexplained cash credit; (ii) capital gains on sale of land declared by the assessee at Rs.2,95,941/- was rejected and the income 2 SA No. 206/PN/2013 on sale and purchase of land was assessed as business income. The claim of the assessee for set-off of brought forward business loss of Rs.79,56,734/- was also not allowed. For the aforesaid major reasons the assessment finalized u/s 143(3) of the Act resulted in raising of a total tax demand of Rs.1,11,70,910/-. Presently, the appeal of the assessee against the assessment is pending before the Tribunal as the CIT(A) has affirmed the action of the Assessing Officer.
3. At the time of hearing of the said application, the learned counsel pointed out that on the aspect of considering the gift received from the father as unexplained, the CIT(A) has not admitted the additional evidence in the shape of affidavit of the brother of assessee and therefore the gift has been treated as 'unexplained' for unjustifiable reasons. It is, further, pointed out that assessee has raised an additional ground before the CIT(A) relating to the character of receipt of Rs.1,50,00,000/- received in the course of Real Estate activity which was erroneously offered by the assessee as income under the head 'income from other sources' in the return filed but the same is in the nature of liquidated damages not liable to tax. The learned counsel pointed out that on both the above issues, the CIT(A) unjustly shut-out the case of the assessee and the assessee has a good prima-facie case before the Tribunal. Further, it was pointed out that out of the total demand of Rs.1,11,70,910/- assessee has already deposited Rs.55,85,455/- and for the balance of demand the bank fixed deposits of the assessee amounting to Rs.55,85,000/- are lying attached and thus the interest of the Revenue is protected to that extent. The learned counsel pointed out that the assessee be granted a stay on the recovery of the balance of the outstanding demand till the disposal of appeal by the Tribunal and in so far as the attachment of the bank fixed deposits is concerned the same be continued till such time.
4. On the other hand, the learned Departmental Representative appearing for the Revenue pointed out that the assessee has been unsuccessful before 3 SA No. 206/PN/2013 the CIT(A) and that the addition was made by the Assessing Officer on justified grounds and therefore the application of the assessee seeking stay on the recovery of the demand is not justified.
5. We have carefully considered the rival submissions. Though the merit of the issues in dispute is liable to be considered only at the time of hearing of the appeal, but so far it is necessary to dispose-off the present petition is concerned, we have considered the same. It is also emerging that almost 50% of the tax demand has been paid by the assessee and for the balance amount, the Assessing Officer has attached the bank FDRs with Pandharpur Urban Co-operative Bank Ltd. Considering the entirety of circumstances, we deem it fit and proper to order as under :-
(i) that the appeal of the assessee pending with the Tribunal be posted for hearing on an out-of-turn basis on 20-01-2014;
(ii) that apart from continuing with the attachment of the bank FDRs, the Assessing Officer shall not pursue or initiate any further coercive measures to recover the outstanding demand till 6 months from the date of this order or the disposal of appeal pending before the Tribunal, whichever is earlier.
6. Accordingly, the captioned stay application of the assessee is partly allowed.
Order pronounced in the open Court on 22 nd November, 2013.
Sd/- Sd/-
(SHAILENDRA KUMAR YADAV) (G. S. PANNU)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Pune, Dated: 22 nd November, 2013
Sujeet
4 SA No. 206/PN/2013
Copy of the order is forwarded to: -
1) The Assessee;
2) The Department;
3) The CIT(A)-II, Pune;
4) The CIT-II, Pune;
5) The DR, "B" Bench, I.T.A.T., Pune;
6) Guard File.
By Order
//True Copy//
Sr. Private Secretary
I.T.A.T., Pune