Income Tax Officer,Ward-2,Akola, Akola V. Karanja Taluka Sahakari Ginning & Pressing Prakriya Sanstha Ltd., Akola

ITA 165/NAG/2010

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1628 (ITAT-NAGPUR)
• Duration Of Justice: 5 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 06-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Keywords: Business income; Depreciation; Opportunity of being heard
• Section: 143(3); 147; 148

Judgement Text

1 ITA NO. 165/NAG/2010 & CO NO. 03/NAG/2010 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO. 165/NAG/2010 ASSESSMENT YEAR : 2005 - 06. THE INCOME - TAX OFFICER, KARANJA TALUKA SAHAKARI WARD - 3, AKOLA. VS. GINNING & PRESSSING PRAKRIYA SANSTHA LTD., KARANJ A DIST. WA SHIM. PAN AAAAK 0339F APPELLANT. RESPONDENT. C.O. NO. 03/NAG/2010 (IN ITA NO. 165/NAG/2010) ASSE SSMENT YEAR : 2005 - 06. KARANJA TALUKA SAHAKARI THE INCOME - TAX OFFI8CER, GINNING & PRESSING PRAKRIYA VS. WARD - 3, AKOLA. SANSTHA LTD., KARANJA. CROSS OBJECTOR. RESPONDENT. DEPARTMENT BY : SHRI NARENDRA KANE. ASSESSEE BY : NONE. DATE OF HEARING : 20 - 08 - 2015 DATE OF PRONOUNCEMENT : 30 TH OCT., 2015 O R D E R PER MUKUL K. SHRAWAT, J.M. AN APPEAL HAS BEEN FILED BY THE REVENUE DEPARTMENT AND THE RESPONDENT - ASSESSEE HAS FILED A CROSS OBJECTION BOTH ARISING FROM AN ORDER OF LEARNED CIT(APPEALS) - I, NAGPUR DATED 2 ND JULY, 2010. 2. AT THE OUTSET IT IS WORTH TO MENTION THAT IN THIS CASE NUMBER OF OPPORTUNITIES WERE GIVEN TO THE ASSESSEE AND NOTICE S WERE ISSUED BY THE REVENUE DEPARTMENT BUT REMAINED UNREPRESENTED. EVEN FOR THIS DATE OF HEARING NOTICE 2 ITA NO. 165/NAG/2010 & CO NO. 03/NAG/2010 WAS ISSUED WHICH WAS SERVED ON THE ASS ESSEE AS PER THE A.D. CARD PLACED O N RECORD DULY SERVED ON THE PRESIDENT OF THE SOCIETY. EVEN ON THE DATE OF HEARING I.E. ON 20 TH AUGUST, 2015 NO ONE WAS PRESENT FROM THE SIDE OF THE RESPONDENT - ASSESSEE. THEREFORE, WE HAVE DECIDED TO PROCEED EXPARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED D.R. MR. NARENDRA KANE. 3. REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DIRECTING THE AO TO ACCEPT THE LONG TERM CAPITAL GAIN A T RS.16,51,633/ - AS RETURNED BY ASSESSEE IN ITS RETURN OF INCOME. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) OUGHT TO HAVE DIRECTED THE A.O. TO COMPUTE THE LONG TERM CAPITAL GAIN CHARGEABLE TO TAX AS NPER PROVISIONS OF SEC. 50 B OF THE I.T. ACT, 1961 INSTEAD OF DIRECTING TO ACCEPT THE COMPUTATION OF LONG TERM CAPITAL GAIN AT RS.16,51,633/ - BY ALLOWING DEDUCTION FOR INDEXED COST OF THE ASSETS AT RS.51,21,792/ - WHEN THE LD. CIT(A) HAS GIVEN A CLEAR FINDING TO THE EFFECT THAT THE TRANSFER WAS OF THE ENTIRE UNIT AS A WHOLE AND IT WAS NO POSSIBLE TO BIFURCATE THE SAID CONSIDERATION TO A PARTICULAR ASSETS. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT PROVISIONS OF SEC. 50 WERE NOT ATT RACTED WHEN NO DEPRECIATION HAS BEEN CLAIMED BY THE ASSESSEE OR ALLOWED TO THE ASSESSEE IN THE YEAR OF TRANSFER OF ASSETS THOUGH DEPRECIATION WAS CLAIMED ON SUCH ASSETS IN THE EARLIER YEARS. 4. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT OR DER PASSED U/S 143(3) READ WITH SECTION 147 OF THE I.T. ACT DATED 29 - 12 - 2008 WERE THAT THE ASSESSEE IS A COOPERATIVE SOCIETY AND SOLD A PROPERTY FOR A CONSIDERATIONS OF R S.68,21,111/ - . THE ASSESSEE WAS RUNNING THREE UNITS OF GINNING AND PRESSING . THE UNIT SITUATED AT KARANJA WAS SOLD TO AGRICULTURE PRODEUC E MARKETING COMMITTEE (APMC), KARANJA ON 1 ST MARCH, 2005 FOR THE SAID CONSIDERATION OF RS.68,21,111/ - . AS PER THE SALE DEED, THE PROPERTY CONSISTED OF 2 HECTOR 21R LAND AND FACTORY BUILDING, GODOWN AND FI TTINGS. AS PER ASSESSEE THE CONSIDERATION WAS IN THE NATURE OF LONG TERM CAPITAL GAIN. AS AGAINST THAT, THE AO HAS STATED THAT THE ASSESSEE HAD CLAIMED DEPRECIATION OF RS.57,574/ - , HENCE 3 ITA NO. 165/NAG/2010 & CO NO. 03/NAG/2010 ON THE SAID SALE THE PROVISIONS OF SECTION 50 WOULD BE ATTRACTED. T HE ASSESSEES ARGUMENT WAS THAT THE SAID UNIT WAS CLOSED AND EVEN THE ELECTRIC CONNECTION WAS DISCONNECTED BY MSEB VIDE LETTER DATED 5 TH MARCH, 2001. THE ASSESSEE HAS ALSO INFORMED THAT THE DEPRECIATION WAS WRONGLY CLAIMED. THE FACTORY WAS NOT RUNNING, HE NCE THERE WAS NO QUESTION OF CLAIM OF DEPRECIATION. EVEN NO TAXABLE INCOME WAS EARNED AND NO RETURNS WERE FILED FOR THE ASSESSMENT YEARS 2002 - 03, 2003 - 04 AND 2004 - 05. THE ASSESSEE HAS, THEREFORE, PLEADED THAT IN A SITUATION WHEN THE UNIT WA S SHUT DOWN PER MANENTLY AND NO INCOME - TAX RETURNS WERE FILED AND THE ELECTRICITY WAS DISCONNECTED AND THE DEPRECIATION WAS WRONGLY CLAIMED AS THE ASSESSEE WAS NOT ENTITLED FOR THE DEPRECIATION, HENCE THE PROVISIONS OF SECTION 50 WOULD NOT BE APPLIED. IN SUPPORT, FEW CAS E LAWS HAVE ALSO BEEN MENTIONED AS NOTED IN THE IMPUGNED ASSESSMENT ORDER. THE AO WAS NOT CONVINCED AND IN RESPECT OF THE ISSUE OF DEPRECIATION HE HAS MENTIONED THAT A CONSOLIDATED DEPRECIATION OF THE ENTIRE THREE UNITS WAS DEDUCTED FROM THE BLOCK OF AS SETS. THEREAFTER THE AO HAS BIFURCATED THE CONSIDERATION AND HELD THAT IN RESPECT OF SALE OF LAND THE PROVISIONS OF SECTION 48 FOR LONG TERM CAPITAL GAIN WAS TO BE APPLIED. FURTHER, AS PER THE AO, I N RESPECT OF THE SALE OF FACT ORY AND MACHINERY THE PROVISI ON OF SECTION 50 WAS TO BE APPLIED TO COMPUTE SHORT TERM CAPITAL GAIN. RELIANCE WAS PLACED ON CIT VS. CITI BANK 261 ITR 570 (BOM). FOR THE PURPOSE OF COMPUTATION OF LONG TERM CAPITAL GAIN THE AO HAS ENQUIRED FROM THE SUB - R EGISTRAR THE VALUE OF THE LAND AND ACCORDINGLY INFORMED THAT RS.92,000/ - PER HECTOR WAS THE VALUE OF THE LAND. THE SAID RATE WAS APPLIED ON THE SALE CONSIDERATION AND THE VALUE OF THE LAND WAS SEGREGATED BY THE AO AT RS.2,03,320/ - . AFTER THE SAID SEGREGATION THE LONG TERM CAPITAL GAIN W AS COMPUTED AS UNDER : THE LAND WHICH IS SOLD WAS PURCHASED BY THE ASSESSEE ON 31 - 01 - 1970 FOR RS.7370/ - . TO COMPUTE LTCG ON LAND THE VALUE OF LAND AS ON 01 - 04 - 1981 IS REQUIRED. THE SUB - REGISTRAR, KARANJA PROVIDED THE VALUE OF LAND AS ON 01 - 04 - 1981 @ RS.4 0,000/ - PER HECT. INSTEAD OF 01 - 04 - 1981, AS PREVIOUS TO 1989 THERE WAS NO PROCEDURE OF GOVT. VALUATION. IN THE 4 ITA NO. 165/NAG/2010 & CO NO. 03/NAG/2010 CIRCUMSTANCES I HAVE TAKEN THE VALUE AS ON 01 - 04 - 1981 @ RS.40,000/ - PER HECTOR. TOTAL SALE CONSIDERATION OF LAND RS.2,03,320 LESS VAL UE AS ON 01 - 041981 @ RS.40,000 PER HECT. 40000 X 2.21 HECT. = 88400 X 480 100 RS. 4,24,320 LONG TERM CAPITAL LOSS RS. 2,21,000 (IN VIEW OF PROVISIONS U/S 80 LOSS OF LTCG IS NOT TO BE C/F AS RETURN OF INCOME WAS NOT FILED U/S 139(1). 4.1 FOR THE PURPOSE OF COMPUTING THE SHORT - T ERM CAPITAL GAIN AS PER THE PROVISIONS OF SECTION 50 OF I.T. ACT, THE SAME WAS COMPUTED BY THE AO AS UNDE R: AS PER PROVISIONS OF SEC. 50 OF THE I.T. ACT SHORT TERM CAPITAL GAIN ON DEPRECIABLE ASSETS IS COMPUTED AS UNDER : TOTAL SALES CONSIDERATI ON AS PER SALE DEED RS.68,21,11 LESS : SALE CONSIDERATION OF LAND CONSIDERED IN LTCG RS. 2,03,320 SALE CONSIDERATION IN RESPECT OF DEPRECIATED ASSETS RS. 66,17,791 LESS: W.D.V. OF THE ASSETS AS ON 01 - 04 - 2005 RS. 5,88,345 (AS PER BOOKS & STATEMENT FILED BY ASSESSEE) W.D.V. AS ON 01 - 04 - 2005 CONSIDERED FOR CALCULATION OF STCG, AS THE FACSDTORIES WERE SHUT DOWN W.E.F. MARCH,2005 SHORT TERM CAPITAL GAIN RS. 60,29,446 LESS: EXPENSES PERTAINING TO SALE OF ASSETS RS. 84,638 (ADVT. 24580 + MEASUREMENT EXP.5,500+VALUATION FEE 17,606+GRAMPANCHYAT TAX 37.152) ___________ NET SHORT TERM CAPITAL GAIN RS.59,44,608 5 ITA NO. 165/NAG/2010 & CO NO. 03/NAG/2010 5. BEFORE THE LEARNED CIT(APPEALS) IT WAS VEHEMENTLY PLEADED T HAT THE ENTIRE UNIT WAS SOLD AND THE AO WAS NOT CORRECT IN BIFURCATING THE CONSIDE RATION. ACCEPTING THE CONTENTION OF THE ASSESSEE, LEARNED CIT(APPEALS) HAS COMMENTED AS FOLLOWS : IT IS MANDATORY THAT THE ABOVE THREE CONDITIONS MUST BE SATISFIED FOR APPLYING THE PROVISIONS OF SECTION 50 OF THE ACT. IT IS ALSO CLEAR THAT THE SECTION WILL APPLY TO THE CASES WHERE THE ASSESSEE HAS BEEN ALLOWED DEPRECIATION OR A DEDUCTION HAS BEEN GRANTED ON ACCOUNT OF DEPRECIATION. SINCE IN THE CASE OF THE ASSESSEE NO DEPRECIATION HAS BEEN ALLOWED TO THE ASSESSEE, AS THE ASSESSEE WITHDREW THE CLAIM OF D EPRECIATION FOR THE YEAR UNDER CONSIDERATION AND NO RETURNS WERE FILED FOR EARLIER YEARS THREE YEARS DUE TO HEAVY LOSSES, THE PROVISIONS OF SECTION 50 OF THE ACT WILL NOT ATTRACT TO THE FACTS OF THE PRESENT CASE. IT IS CLEAR THAT THE CONDITION LAID DOWN I N (B) ABOVE HAS NOT BEEN FULFILLED IN THIS CASE AND, THEREFORE, THE AO IS NOT JUSTIFIED IN APPLYING THE PROVISIONS OF SECTION 50 OF THE ACT. 5.1 AFTER EXAMINING FEW CASE LAWS ON THE ISSUE OF ITEMIZATION OF ASSETS , LEARNED CIT(APPEALS) HAS FINALLY HELD THAT THE TRANSACTION WAS IN THE NATURE OF SLUMP SALE, HENCE PROVISION OF SECTION 50 WAS NOT APPLICABLE. BY REFERRING THE DECISION OF PREMIER AUTOMOBILES LTD. 129 TAXMAN 289 (BOM.) AND THE DECISION OF RAKA FOOD PRODUCTS 277 ITR 261 (MAD.), LEARNED CIT(APPEA LS) HAS FINALLY HELD AS UNDER : THIS DECISION SQUARELY APPLIES TO THE FACTS OF THE PRESENT CASE. IN THE PRESENT CASE ALSO, THE LAND FORMS PART OF ASSES OF THE KARANJA UNIT AND FROM THE SALE DEED AS WELL AS FROM TENDER FORM SUBMITTED BY THE PURCHASER, IT IS CLEAR THAT THE TRANSFER WAS OF THE ENTIRE UNIT AS A WHOLE. THUS RELYING ON THE DECISION OF THE HONBLE MADRAS HIGH COURT, I AM OF THE CONSIDERED OPINION THAT IT WAS NOT POSSIBLE TO BIFURCATE THE SALE CONSIDERATION TO A PARTICULAR ASSET. UNDER SUCH CIRC UMSTANCES, I AM OF THE OPINION THAT THE ENTIRE GAINS TO BE TREATED AS LONG - TERM CAPITAL GAINS. SECTION 50 OF THE ACT IS ONLY APPLIED WHEN DEPRECIABLE ASSETS ALONE ARE TRANSFERRED. IN THE PRESENT CASE, THE LAND FORMS PART OF ASSETS WHICH WERE SOLD AND SINCE LAND IS NOT A DEPRECIABLE ASSET AND SINCE DEPRECIABLE ASSETS ALONE ARE NOT TRANSFERRED, THE PROVISIONS OF SECTION 50 OF THE ACT CANNOT BE APPLIED IN THE PRESENT CASE. 6 ITA NO. 165/NAG/2010 & CO NO. 03/NAG/2010 6. AFTER HEARING THE SUBMISSIONS OF LEARNED D.R., WE ARE OF THE CONSIDERED OPINION THA T THE AO HAS PRESUMED THE VALUE OF THE LAND BY A REVERSE CALCULATION WHICH WAS NOT A CORRECT APPROACH SPECIALLY WHEN THE UNIT AS A WHOLE WAS TRANSFERRED. IF THE CONSIDERATION IN THE SALE DEED COULD NOT BE BIFURCATED OR ITEM - WISE DETAILS ARE NOT MENTIONED I N THE SALE DEED THEN IN SUCH SITUATION IT IS NOT JUSTIFIABLE ON THE PART OF THE AO TO SEGREGATE THE TOTAL CONSIDERATION, THAT TOO ON A PRESUMPTION THAT THE LAND WOULD HAVE BEEN SOLD ON AN ASSUMED PRICE. AFTER CAREFUL READING OF CERTAIN CASE LAWS AS DISCUS SED BY LEARNED CIT(APPEALS), WE ARE OF THE CONSIDERED OPINION THAT THE FINDING ON FACTS AS MENTIONED BY LEARNED CIT(APPEALS) THAT ON PERUSAL OF THE SALE DEED THERE WAS NO MENTION OF ITEM IZED SALE OF THE PROPERTY, TAKEN A CORRECT VIEW TO REVERSE THE FINDI NG OF THE AO. RESULTANTLY ALL THE GROUNDS RAISED BY THE REVENUE ARE HEREBY DISMISSED. 6.1 IT IS ALSO WORTH TO MENTION THAT THE ALTERNATIVE PLEA HAS BEEN RAISED THAT THE CAPITAL GAIN WAS TO BE CHARGED U/S 50B OF I.T. ACT IF THE LEARNED CIT(APPEALS) WAS OF THE OPINION THAT IT WAS A CASE OF SLUMP SALE. IN OUR CONSIDERED OPINION, PROFIT ARISING FROM SLUMP SALE IS ALSO CHARGEABLE TO TAX AS CAPITAL GAIN WHICH HAS BEEN CONSIDERED BY LEARNED CIT(APPEALS) AND, THEREFORE, WE FIND NO FALLACY IN THE SAID JUDGMENT. EV EN THIS ALTERNAT E PLEA IS HEREBY DISMISSED. THUS THE REVENUES APPEAL IS DISMISSED. 7. AS PER CROSS OBJECTION FILED BY THE ASSESSEE, FOLLOWING GROUNDS HAVE BEEN RAISED : 1. THAT IN VIEW OF FACTS & CIRCUMSTANCES THE LEARNED CIT(A) ERRED IN ENHANCING THE INC OME WITHOUT GIVING OPPORTUNITY OF BEING HEARD. 2. THAT IN VIEW OF FACTS & CIRCUMSTANCES THE LEARNED CIT(A) ERRED IN NOT ALLOWING SET OFF BUSINESS LOSS AGAINST THE LONG TERM CAPITAL GAIN. 8. WHILE DECIDING THE ISSUE OF SET OFF OF LOSS, LEARNED CIT(APPEALS) HAS HELD AS UNDER : 7 ITA NO. 165/NAG/2010 & CO NO. 03/NAG/2010 HOWEVER, IN THIS CASE IT IS SEEN THAT IN THE ASSESSMENT ORDER THE AO HAS ALLOWED BUSINESS LOSS OF RS. 1329962/ - TO BE SET OFF AGAINST THE SHORT TERM CAPITAL GAIN, WHICH IS AS PER PARA 13 OF THE ASSESSMENT ORDER OF THE AO. THIS FINDIN G OF THE AO REGARDING THE SET OFF OF THE BUSINESS LOSS AGAINST THE INCOME OF CAPITAL GAIN IS SNOT CORRECT. THIS IS BECAUSE THE AO IN THE ASSESSMENT ORDER AT PARA 1 & 2 HAS MENTIONED THAT THE RETURN FOR AY 2005 - 06 HAS BEEN FILED IN RESPONSE TO THE NOTICE U/ S 148 OF THE ACT ISSUED ON DT. 24 - 03 - 2008 AND THE APPELLANT HAS FILED THE RETURN OF INCOME ONLY ON 31 - 03 - 2008, WHICH IS BEYOND THE TIME PERIOD PRESCRIBED U/S 139(1) OF THE ACT. APART FROM THAT AT PARA 4 OF THE ASSESSMENT ORDER THE APPELLANT HAS ADMITTED T HAT THE KARANJA FACTORY HAS BEEN CLOSED W.E.F. 05 - 03 - 2001 DUE TO DISCONNECTION OF THE ELECTRIC SUPPLY. BESIDES THE FACTORY UNIT AT KHAMGAON AND UMBARDA BAZAR WERE ALSO CLOSED W.E.F. 21 - 02 - 2002 AND 06 - 04 - 2002 RESPECTIVELY. BECAUSE OF THESE FACTORS THE APPELLANT HAS NOT FILED THE RETURN FOR AY 2002 - 03, 2003 - 04 & 2004 - 05. THUS IN THE LIGHT OF THE ABOV E FACTS IT IS SEEN THAT THE THREE UNITS OF THE APPELLANT WERE SHUT DOWN PRIOR TO AY 2003 - 04 AND AY 2004 - 05. THESE FACTGS WERE ADMITTED BY THE APPELLANT IN HIS WRITTEN SUBMISSION, AS WELL AS THESE FACTS HAVE BEEN INCORPORATED BY THE AO IN HIS ASSESSMENT OR DER. BESIDES THE JT. CIT, AKOLA RANGE, AKOLA IN HIS FORWARDING LETTER OF THE REMAND REPORTS VIDE LETTER DT. 04 - 06 - 2009 AND DT. 07 - 08 - 2009 RESPECTIVELY HAS GIVEN THE FINDING THAT ON EXAMINATION OF THE INCOME AND EXPENDITURE ACCOUNT FILED IN THE RETURN OF IN COME HE HAS NOTICED THAT THERE IS NO BUSINESS ACTIVITY AT ALL DURING THE RELEVANT FINANCIAL YEAR AND NO SALE CONSIDERATION AS WELL AS PURCHASES HAVE BEEN SHOWN IN THE ACCOUNT WHICH LED HIM TO CONCLUDE THAT NO BUSINESS ACTIVITY HAS BEEN CARRIED OUT DURING THE RELEVANT FINANCIAL YEAR. THEREFORE CONSIDERING ALL THE ABOVE FACTGS AND CONSIDERING THE FACT THAT THE RETURN FOR THE AYS 2002 - 03, 2003 - 04 & 2004 - 05 HAVE NOT BEEN FILED ON 31 - 03 - 2008 IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT, THAT TOO BEYOND THE TIME LIMITATION PRESCRIBED U/S 139(1) OF THE ACT, I AM OF THE CONSIDERED OPINION THAT THE BUSINESS LOSS AS CLAIMED BY THE APPELLANT CAN NOT BE ALLOWED IN THIS CASE. THEREFORE THE FINDING OF THE AO REGARDING THE SET OFF OF THE BUSINESS LOSS AGAINST THE CAPITAL GAIN IS FOUND TO BE NOT JUSTIFIED. ACCORDINGLY THE BUSINESS LOSS OF RS. 13,29,962/ - IS HEREBY NOT ALLOWED AND THE SET OFF GIVEN BY THE AO AGAINST THE INCOME OF CAPITAL GAIN IS ALSO HEREBY WITHDRAWN. THE AO IS DIRECTED TO RECOMPUTED THE INCOME AS PER THE DI RECTIONS GIVEN HERE ABOVE. 9. THE ONLY GRIEVANCE RAISED BEFORE US AS PER THE GROUNDS OF THE CROSS OBJECTOR IS THAT BY SUCH DIRECTIONS THERE WAS AN ENHANCEMENT IN THE ASSESSED INCOME WHICH WAS NOT PERMISSIBLE WHEN THE ASSESSEE WAS NOT PROVIDED AN 8 ITA NO. 165/NAG/2010 & CO NO. 03/NAG/2010 OPPORTUNI TY OF HEARING BY LEARNED CIT(APPEALS). PECULIAR FACT OF THIS CASE IS THAT THE LEARNED CIT(APPEALS) HAS CALLED FOR THE REMAND REPORT AND THEREUPON INVITED THE REJOINDER BY THE ASSESSEE. THIS FACT IS APPEARING ON PARA 10 OF THE ORDER OF LEARNED CIT(APPEALS) . WE HAVE ALSO NOTED THAT THE ASSESSEE HAD MADE SUBMISSIONS AND COUNTER SUBMISSIONS AS MENTIONED IN PARA 11 IN THE ORDER. THOSE SUBMISSIONS AND COUNTER SUBMISSIONS CONTAINED ALL THE ISSUES DEALT WITH BY THE LEARNED CIT(APPEALS). THEREFORE, IT WAS NOT PROP ER FOR THE CROSS OBJECTOR TO RAISE THAT AN OPPORTUNITY BEFORE ENHANCEMENT WAS NOT PROVIDED BY THE LEARNED CIT(APPEALS). EVEN WE FIND NO FALLACY IN THE DIRECTIONS OF LEARNED CIT(APPEALS) THAT THE AO WAS NOT JUSTIFIED IN SETTING OFF OF THE BUSINESS LOSS AGAI NST THE CAPITAL GAIN SPECIALLY WHEN A VIEW HAS BEEN TAKEN HEREIN ABOVE THAT THE PROVISIONS OF SECTION 50 WOULD NOT APPLY ON THE SALE CONSIDERATION. THEREFORE, IT IS NOT AN ISSUE OF ENHANCEMENT BUT SIMPLY A MATTER OF CONSEQUENTIAL DIRECTIONS SO AS TO OVERCO ME ANY AMBIGUITY. RESULTANTLY WE FIND NO FORCE IN THE G R OUNDS OF THE CROSS OBJECTOR AND THE SAME ARE DISMISSED. 10. IN THE RESULT, REVENUES APPEAL AS WELL AS CROSS OBJECTION BY THE ASSESSEE, BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COUR T ON THIS 30 TH DAY OF OCT., 2015. SD/ - SD/ - ( SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER. JUDICIAL MEMBER NAGPUR, DATED: 30 TH OCT., 2015. 9 ITA NO. 165/NAG/2010 & CO NO. 03/NAG/2010 COPY FORWARDED TO : 1. KARANJA TALUKA SAHAKARI GINNING & PRESSING PRAKRIYA SANSTHA LTD., KARANJA, DIST. WASHIM. 2. I.T.O., KHAMGAON. 3. C.I.T., CONCERNED 4. CIT(APPEALS) - I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR.