IN INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER &SHRI AMARJIT SINGH, ACCOUNTANT MEMBER I.T.A. No. 2750/Ahd/2014 (Assessment Year: 2010-11) Bhudarbhai M Prajapati ITO 31, Jawaharnagar Societ y, Ward-3(1), Vs. Near Abhilash Char Rasta, Aaykar Bhavan, Race Course Circle, New Sama Road, Baroda- 390007 Baroda- 390008 PAN/GIR No.: ACPPP2671P (Appellant) (Respondent) Appellant by Shri M. K. Patel, AR Respondent by Shri Lalit P. Jain, Sr. DR Date of Hearing 24/07/2019 Date of Pronouncement 16/09/2019 ORDER PER AMARJIT SINGH - AM This appeal filed by Assessee for A.Y. 2010-11, arise from order of CIT(A)-II, Baroda dated 05.08.2014, in proceedings under section 143(3) of Income Tax Act, 1961; in short Act . 2. grounds of appeal raised by assessee are read as under:- 1. order of Learned Commissioner of Income Tax (Appeals) is against law and facts of case. 2. Learned Commissioner of Income Tax (Appeals)-II, Baroda erred in confirming order of Assessing Officer assessing appellant on total income of Rs. 66,94,242/- u/s. 143(3) of I T Act, 1961. ITA No. 2750/Ahd/2014 [Bhudarbhai M Prajapati vs. ITO] A.Y. 2010-11 2 3. Learned Commissioner of Income Tax erred in summarily holding that appellant has not rebutted findings of assessing officer with any reliable evidence. 4. Learned Commissioner of Income Tax, erred in not deciding upon following alternative grounds of appeal raised by appellant. a. Ground No. vi) Learned Assessing Officer erred in holding that Appellant is not entitled to deduction for Rs. 42,29,500/- paid by purchaser in government account for converting land from under new condition to under old condition. b. Ground No. vii) Learned Assessing Officer erred in not allowing deduction u/s 54B of Income Tax Act, 1961 in respect of agricultural land purchased by Appellant within time limit prescribed u/s. 54B. 5. Learned Commissioner of Income Tax (Appeals)-II, erred in not properly appreciating facts of case and submissions made on behalf of appellant. 6. It is prayed that addition of Rs. 64,35,862/- on account of long term capital gain be deleted. 3. fact in brief is that return of income declaring income of Rs. 2,58,380/- was filed on 28.10.2010. AO has finalized assessment u/s. 143(3) of Act, on 01.03.2013 and determined total income at Rs. 66,94,242/- after making addition on account of long term capital gain of Rs. 64,35,862/-. fact pertained to addition made is that there was AIR information articulating that assessee has sold immovable property for consideration of Rs. 57,29,500/- on 27.08.2009 and this transaction was not reflected in return of income. During assessment assessee was show-caused for not showing any transaction of capital gain on sale of said property. On verification of detail submitted by assessee, it was discerned to AO that immovable property was in name of Shri Surendrabhai Jashbhai Amin and Shri Jitendra Jashbhai Amin. This owners of immovable property have executed irrevocable power of attorney in favour of assessee on 15.06.1998. immovable property bearing R.S. No. 477 has been sold by assessee as Power of Attorney holder for consideration of Rs. 57,29,500/- vide sale deed executed on 27.08.2009. sale ITA No. 2750/Ahd/2014 [Bhudarbhai M Prajapati vs. ITO] A.Y. 2010-11 3 value of property as per stamp duty paid was to amount of Rs. 84,95,000/. assessee contended that he had sold said land as Power of Attorney holder of land on behalf of owners Shri Surendra Jashbhai Amin and Shri Jitendra Jashbhai Amin both residing at village Sama, District Vadodara. AO has not agreed with contention of assessee and observed that assessee has taken over full ownership of land by irrevocable Power of Attorney executed on 15.07.1998. AO has also observed that assessee has executed sale deed in capacity of Power of Attorney holder and there was no signature or approval of land owner on sale seed and buyer of property have also confirmed in their statement that they have purchased aforesaid immovable property from assessee. Consequently, AO has made addition of Rs. 64,35,862/- as long term capital gain earned on sale of aforesaid property as per provision of Sec. 50C (1) of Act in hand of assessee. AO has also stated that assessee will not get any benefit u/s. 54B of Act as land which was sold on 27.08.2009 having R.S. No. 477 was not being used for agriculture purpose and also held that assessee will not get benefit on deduction of sale consideration of premium paid for change from new condition to old condition amounting to Rs. 42,29,500/- as payment has been made by purchaser directly to Government account. 4. Aggrieved assessee has filed appeal before Ld. CIT(A). Ld. CIT(A) has dismissed appeal of assessee retreating finding of AO. 5. During course of appellate proceeding before us Ld. Counsel has furnished Paper Book comprising details and copies of documents filed before AO and CIT(A) at time of hearing. Ld. Counsel has contended that Ld. CIT(A) has simply dismissed appeal of assessee by retreating finding of AO without considering submission and detail furnished by assessee against addition made by AO. He has further stated that Ld. CIT(A) has not passed speaking order while adjudicating appeal of assessee. relevant decision of Ld. CIT(A) is reproduced as under:- ITA No. 2750/Ahd/2014 [Bhudarbhai M Prajapati vs. ITO] A.Y. 2010-11 4 3.2.3. During appellate proceedings before me, findings of Assessing Officer have not been rebutted with any reliable evidence. appellant has not been able to demonstrate as to how so called owners hae shown income in their hands. Even wife of assessee Smt. Hansa Bhudarbhai Prajapati has received sum of Rs. 15,00,000/- on 27.08.2009 as part of sale consideration in whose name assessee had made one banakhat on 28.08.1998. This has not been disputed by appellant. However, on verification of Return of income of Smt. Hansa Bhudarbhai Prajapati for A.Y. 2010-11, it is seen that she has not offered this amount of Rs. 15,00,000/- for tax in view of detailed facts mentioned in para 3.2.2 above, contention of assessee is not acceptable and addition made by Assessing Officer is confirmed. 6. On other hand, Ld. DR has supported order of lower authorities. 7. We have heard both sides and perused material on record. issue in appeal filed by assessee is pertained to addition of Rs. 64,35,862/- of long term capital gain on sale of agricultural land by assessee acting under Power of Attorney granted by owner of agricultural land. Ld. Counsel has brought to our notice that at time of assessment proceeding and appellate proceeding assessee has explained that he has exclusively exercised power on behalf of land owner and he has not been conferred any right of ownership to sold property and entire sale consideration was paid in to State Bank of India by purchasers on behalf of sellers for conversion of land for new condition to old condition and no part of consideration was paid to assessee in any manner. assessee has also submitted copy of order of Collector of Vadodara on application made by both land owner for depositing minimum amount of Rs. 42,29,500/- placed at Page No. 39 and 40 of Paper Book. assessee has also furnished before Ld. CIT(A) copy of index from sub-Register Office showing name of person who have sold property as well as name of person who have purchased property and same was also placed in Paper Book. Ld. Counsel has also submitted that lower authorities have not considered supporting evidences that sold land was also being used for agriculture purpose and on assumption basis alternative claim of assessee for deduction u/s. 54B was denied. ITA No. 2750/Ahd/2014 [Bhudarbhai M Prajapati vs. ITO] A.Y. 2010-11 5 In light of above facts and circumstances we observe that Ld. CIT(A) has not adjudicated case of assessee by passing speaking order. It is clear from above facts that all issues and material furnished by assessee during course of appellate proceeding before Ld. CIT(A) has not been considered by Ld. CIT(A) while adjudicating appeal of assessee. provision of Sec. 250(6) of Act which require that while disposing appeal of assessee order of CIT(A) shall be in writing and shall state points for determination decision thereon and raising further decision. In light of above facts and circumstances we restore this appeal to file of Ld. CIT(A) for deciding fresh after by passing speaking order after considering relevant detail and information furnished by assessee. Therefore, appeal of assessee is allowed for statistical purpose. 8. In result, appeal of assessee is allowed for statistical purpose. This Order pronounced in Open Court on 16/09/2019 Sd/- Sd/- (MAHAVIR PRASAD) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad Dated 16/09/2019 TANMAY TRUE COPY Copy of Order Forwarded to 1. Revenue 2 Assessee 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order Bhudarbhai M Prajapati v. ITO, Ward-3(1), Baroda