Sampat Sadashiv Borate, Pune V. Income-tax Officer, Ward - 8(5), Pune

ITA 1005/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4910 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N ASHOK BABU
• Section: 54B

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, P UNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NO.1004/PUN/2018 / ASSESSMENT YEAR : 2009-10 DILIP SADASHIV BORATE, GAT NO.284, NAGESHWAR NAGAR, MOSHI, PUNE-412 105 PAN : AMPPB9085K .... / APPELLANT ! / V/S. THE INCOME TAX OFFICER, WARD 8(5), PUNE. / RESPONDENT / ITA NO. 1005/PUN/2018 / ASSESSMENT YEAR : 2009-10 SAMPAT SADASHIV BORATE, AT POST MOST, NAGESHWAR NAGAR, PUNE-NASHIK ROAD, HAVELI, PUNE-412 105 PAN : AKWPB7826P ....... / APPELLANT ! / V/S. THE INCOME TAX OFFICER, WARD 8(5), PUNE. / RESPONDENT ASSESSEE BY : SHRI PRATIK NAVLAKHA REVENUE BY : SHRI N. ASHOK BABU / DATE OF HEARING : 07.02.2019 / DATE OF PRONOUNCEMENT : 08.02.2019 2 ITA NOS. 1004 & 1005/PUN/2018 A.Y.2009-10 ' / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THESE TWO APPEALS PREFERRED BY THE DIFFERENT ASSESSEES EMANATES FROM THE ORDER OF LD. CIT(APPEALS)-13, PUNE DATED 21.03.2018 FOR THE ASSESSMENT YEAR 2009-10 AS PER GROUNDS OF APPEAL ON RECORD. 2. AT THE OUTSET, WE NOTICE THAT THERE IS A DELAY OF 04 DAYS FOR FILING THE APPEAL. THAT WITH REGARD TO THIS DELAY, THE LD. AR OF THE A SSESSEE FILED CONDONATION PETITION ALONG WITH AFFIDAVIT STATING REASONS FOR SUCH DELAY IN FILING THE APPEAL BEFORE US. WE HAVE PERUSED THE CONDONAT ION PETITION AND THE AFFIDAVIT ALONG WITH REASONS FOR DELAY. WE ARE CONVINCED WITH THE JUSTIFICATION RENDERED BY THE ASSESSEE THROUGH THESE DOCUMENTS. W E CONDONE THE DELAY AND PROCEED TO HEAR THE APPEAL ON MERITS. 3. THE LD. AR OF THE ASSESSEE AT THE TIME OF HEARING APP RISED THE BENCH THAT THE FACTS AND ISSUES IN BOTH THE CASES ARE SIMILAR. HENCE, THESE CASES WERE HEARD TOGETHER. SINCE THE FACTS COMMON, ISSUES SIMILAR , THEY ARE DISPOSED OF VIDE THIS CONSOLIDATED ORDER. WE WOULD TAKE ITA NO.1004/PUN/2018 AS LEAD CASE. 4. THE SOLITARY GRIEVANCE IN BOTH THESE APPEALS OF THE RE SPECTIVE ASSESSEES IS THAT THE ASSESSING OFFICER DISALLOWED THE DEDUCTION CLAIMED BY ASSESSEE U/S.54B OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). THE LD. CIT(APPEALS) ON THE OTHER HAND, HAS OBSERVED THA T APPLICATION U/S. 54B OF THE ACT IS NOT RELEVANT SINCE AS PER HIS OBS ERVATION, THE NEW 3 ITA NOS. 1004 & 1005/PUN/2018 A.Y.2009-10 AGRICULTURAL LAND WAS PURCHASED BY THE ASSESSEE PRIOR TO THE SALE OF OLD LAND, THEREBY MAKING THE ASSESSEE INELIGIBLE FOR CLAIMING DEDUCTIO N U/S.54B OF THE ACT. THEREFORE, ON DIFFERENT FOOTINGS AND REASONING, THE FINDIN GS OF THE REVENUE AUTHORITIES WERE THAT THE ASSESSEE WAS NOT EN TITLED FOR CLAIMING DEDUCTION U/S.54B OF THE ACT. 5. AT THE TIME OF HEARING, THE LD. AR VEHEMENTLY ARGUED THAT THEY HAVE SUBMITTED ALL THE RELEVANT DOCUMENTARY EVIDENCES BEFORE THE ASSESSING OFFICER TO JUSTIFY THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/ S.54B OF THE ACT. THEY HAVE SUBMITTED THE EVIDENCE TO STATE THAT THE LAND WHIC H WAS SOLD WAS AGRICULTURAL LAND AND THAT TWO YEARS PRIOR TO THE SALE O F SUCH LAND AND THE AGRICULTURAL ACTIVITIES WERE BEING CARRIED OUT AND EVEN THE LAND WHICH WAS PURCHASED SUBSEQUENTLY OUT OF THE SALE PROCEEDS OF TH E FIRST LAND THAT WAS ALSO AGRICULTURAL LAND. IN SPITE OF THESE EVIDENCES PROVIDED TO THE ASSESSING OFFICER, THE CLAIM OF DEDUCTION WAS SUMMARILY DISMISSED AND AS SESSMENT WAS COMPLETED. THE LD. AR FURTHER SUBMITTED THAT THE LD. CIT (APPEALS) PRIMA FACIE OBSERVED THAT THE ASSESSEE WAS NOT ENTITLED FOR DE DUCTION U/S.54B OF THE ACT SINCE THE ASSESSEE PURCHASED NEW AGRICULTURAL LAND P RIOR TO SALE OF OLD LAND MEANING THEREBY THE NEW LAND WAS PURCHASED NOT FRO M SALE PROCEEDS/CONSIDERATION RECEIVED FROM OLD LAND AND THEREFOR E, DEDUCTION U/S.54B OF THE ACT WAS NOT ALLOWABLE. 6. THE LD. AR FURTHER SUBMITTED THAT IN ABSENCE OF ANY FA CTUAL VERIFICATION AND SPECIFIC FINDINGS, THE REVENUE AUTHORITIES HAVE REJECTED ALL THE EVIDENCES SUBMITTED BEFORE THEM AND HAVE CAUSE GRAVE INJUSTICE FOR NOT ALLOWING DEDUCTION U/S.54B OF THE ACT AS CLAIMED BY THE ASSESSEE. 4 ITA NOS. 1004 & 1005/PUN/2018 A.Y.2009-10 7. THE LD. DR , PER CONTRA, HAS PLACED RELIANCE ON THE OR DERS OF THE SUB- ORDINATE AUTHORITIES. 8. WE HAVE PERUSED THE CASE RECORD AND HEARD THE RIV AL CONTENTIONS. WE HAVE ALSO ANALYZED THE FACTS AND CIRCUMSTANCES IN THIS C ASE. THE ISSUE BEFORE US, IS ENTIRELY ON FACTUAL PARAMETERS WHEN ON ONE HAND, T HE ASSESSEE CLAIMS THAT HE IS ENTITLED FOR DEDUCTION U/S.54B OF THE ACT AND H AS FURNISHED VARIOUS DOCUMENTARY EVIDENCES LIKE COPY OF SALE DEED, PURCHASE DE ED, BANK STATEMENT, COPY OF AGREEMENT OF LAND PURCHASED, 7/12 EXT RACT SHOWING THAT THE AGRICULTURAL ACTIVITIES HAVE BEEN CARRIED IN THE LAND DU RING TWO YEARS IMMEDIATELY PRECEDING THE DATE OF SALE. THESE FACTS ARE N OT DISPUTED BEFORE US. THE ASSESSING OFFICER ON THE OTHER HAND, AS EVIDENT IN HIS ORDER, DOES NOT AGREE THAT THE AGRICULTURAL ACTIVITIES WERE CONDUCTED IN T HE LAND AND THAT LAND WAS AGRICULTURAL LAND SINCE NO BILLS/RECEIPTS WERE PRODUCED BY THE ASSESSEE. SIMILARLY, THE LD. CIT(APPEALS) OBSERVED THAT DEDUCTION U/S. 54B OF THE ACT IS NOT ALLOWABLE AS PER REASONS RECORDED IN HIS ORDER. THAT NONE OF THE REVENUE AUTHORITIES HAVE BROUGHT OUT ANY FACTUAL DETAILS OR ANALYSIS OF THE EVIDENCES FURNISHED BEFORE THE M SO AS TO PRONOUNCE WHETHER THOSE EVIDENCES FURNISHED BY THE ASSESSEE WERE CORRECT OR NOT AND WHETHER THE VALIDITY AND CORRECTNESS OF THOSE EVIDENCES COULD BE RELIED UPON. NOTHING HAS BEEN STATED EITHER BY THE ASSESSING OFFICER OR BY THE LD. CIT(APPEALS), REGARDING THE EXAMINATION OF THESE EVIDENCES FURNISHED VIS--VIS THE CLAIM OF DEDUCTION U/S.54B OF THE ACT BY THE ASSESSEE. 9. IN VIEW OF THE MATTER, WE SET ASIDE THE ORDER OF LD. CIT(APPEALS) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DETAILED FACTUAL 5 ITA NOS. 1004 & 1005/PUN/2018 A.Y.2009-10 VERIFICATION AND READJUDIATION AFTER PROVIDING REASONABLE OPP ORTUNITY OF HEARING TO THE ASSESSEE. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO.1004/ PUN/2018 IS ALLOWED FOR STATISTICAL PURPOSES. 11. THAT WITH SIMILAR FACTS AND COMMON ISSUES IN ITA NO.1005 /PUN/2018, OUR DECISION IN ITA NO.1004/PUN/2018 SHALL APPLY HEREIN ALS O AS PER THE AFORESAID DIRECTIONS/OBSERVATIONS. 12. IN THE COMBINED RESULT, BOTH THE APPEALS OF THE ASS ESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 08 TH DAY OF FEBRUARY, 2019. SD/- SD/- D. KARUNAKARA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 08 TH FEBRUARY, 2019. SB '#$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-13, PUNE. 4. THE PR. CIT-5, PUNE. 5. '#$ %%&' , ( &' , - )*+ , / DR, ITAT, SMC BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 6 ITA NOS. 1004 & 1005/PUN/2018 A.Y.2009-10 DATE 1 DRAFT DICTATED ON 0 7 .0 2 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 07 .0 2 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER