The ITO, Ward-13(3), Ahmedabad V. Shri Jagjivan M. Gosai, Gandhinagar

ITA 1452/AHD/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8081 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 21-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Audit objection; Tax effect
• Section: 50C

Judgement Text

SMC-ITA NO. 1452/ AHD/ 2015 ITO VS. SHRI JAGJIVAN M GOSAI ASSESSMENT YEAR: 2005-06 PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD [ BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ] ITA NO.1452/AHD/2015 ASSESSMENT YEAR: 2005-06 INCOME-TAX OFFICER ...............APPELLAN T WARD- 7(1)(3), AHMEDABAD VS. JAGJIVAN M GOSAI ............................R ESPONDENT PLOT NO.255/1, SECTOR 7/A, GANDHINAGAR [PAN : ABYPG 6195 K] APPEARANCES BY: VK SINGH FOR THE APPELLANT MK PATEL FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 18.06.2018 DATE OF PRONOUNCING THE ORDER : 18.06.2018 O R D E R THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS), GANDHINAGAR D ATED 27.02.2015 PASSED FOR ASSESSMENT YEAR 2005-06. 2. THE EFFECTIVE GROUNDS RAISED BY THE REVENUE IN I TS APPEAL READ AS UNDER:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSEE ALONG WITH OTHER CO-OWNERS HAVE TRANSFERRED 32 PLOTS TO T HE SOCIETY IN THE AY 2004-05 WHEN NEITHER THE ASSESSEE HAS TRANSFERRED THE POSSE SSION OF LAND TO THE SOCIETY NOR RECEIVED THE FULL SALE CONSIDERATION. 2. THE LD. CIT(A) HAS ERRED IN DISREGARDING THE FAC T THAT THE PLOTS WERE TRANSFERRED TO THE INDIVIDUALS BY SEPARATE DEEDS EXECUTED IN AY 2005-06 AND PAYMENTS WERE RECEIVED IN AY 2005-06. 3. THE LD. CIT(A) FAILED TO APPRECIATE THAT DURING THE ASSESSMENT PROCEEDINGS FOR AY 2004-05, VIDE LETTER DATED 25.11.2011, THE ASSES SEE HIMSELF STATED THAT SINCE THE FULL SALE CONSIDERATION WAS NOT RECEIVED UPTO 3 1.03.2004, THE POINT OF WORKING OF CAPITAL GAIN DOES NOT ARISE AS THE REST OF THE S ALE CONSIDERATION WAS RECEIVED IN SUBSEQUENT YEARS. SMC-ITA NO. 1452/ AHD/ 2015 ITO VS. SHRI JAGJIVAN M GOSAI ASSESSMENT YEAR: 2005-06 PAGE 2 OF 2 4. THE LD. CIT(A) HAS ALSO ERRED IN HOLDING IN PARA 5.4(F) THAT PROVISIONS OF SECTION 50C OF THE ACT ARE NOT APPLICABLE IN THE CASE OF AS SESSEE, AS THE PLOTS WERE TRANSFERRED BY THE ASSESSEE DIRECTLY TO THE INDIVID UAL BUYERS. 3. AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PRESENT APPEAL OF THE REVENUE NEEDS TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF THE CBDT CIRCULAR NO.21 OF 2015 DATED 10.12.2015. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT THE TAX EFFECT IS LESS THAN THE LIMIT PRESCRIBED BY THE AFORESAID CBDT CIRCULAR. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL PLACED BEFORE ME. I FIND THAT PRIMA-FACIE THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 21/2015 IN F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBER 2015, VIDE WHICH IT HAS BEEN PROVIDED THAT IF THE TAX EFF ECT BY VIRTUE OF THE COMMISSIONER OF INCOME-TAX (APPEALS)S ORDER IS BELOW RS.10,00,000/ -, THEN THAT ORDER WOULD NOT BE CHALLENGED BEFORE THE TRIBUNAL IN FURTHER APPEAL. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIONS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLICABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUASHED BY IMPUGNED ORDER OR ADDITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION R ELATES TO UNDISCLOSED FOREIGN ASSETS/BANK ACCOUNTS, ETC. I FIND THAT THE PRESENT CASE DOES NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX IS LESS THAN RS.10,00,000/-. T HEREFORE, THE PRESENT APPEAL IS NOT MAINTAINABLE AND HENCE DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED IN LIMINE . PRONOUNCED IN THE OPEN COURT TODAY ON THE 18 TH DAY OF JUNE, 2018. SD/- PRAMOD KUMAR (ACCOUNTANT MEMBER) AHMEDABAD, THE 18 TH DAY OF JUNE, 2018 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD