The Income Tax Officer, Ward-5(2)(5), Ahmedabad V. Smt. Kavita V. Adani, Ahmedabad

ITA 18/AHD/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 1719 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 06-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Revision of order; Tax effect; Set aside
• Section: 63; 143(3); 2(14)

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “A” BENCH Before: Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member Th e ITO, Ward-5(2 )(5), Ah medabad (Appellant) Vs S mt. Kavita V. Adan i Ah med abad, PAN: ADRP A6 552F (Resp ondent) Asses see b y : Shri Biren Shah, A. R. Revenue by : Shri S udhendu Das, Sr. D. R. Date of hearing : 18-05 -2 022 Date of pronouncement : 20-05 -2 022 आदेश/ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:- This is an appeal filed by the Revenue against the order of the ld. Commissioner of Income Tax (Appeals)-5, Ahmedabad in Appeal No. CIT(A)-5/ITO. Wd.5(2)(5)/10783/2017-18 vide order dated 10/10/2018 passed for the assessment year 2012-13. 2. The Revenue has raised the following grounds of appeal:- ITA No. 18/Ahd/2019 Assessment Year 2012-13 I.T.A No. 18/Ahd/2019 A.Y. 2012-13 Page No. ITO vs. Smt. Kavita V. Adani 2 “1. Whether on the facts of the case and in view of the Section 63 of Bombay Tenancy and Agricultural Land Act, 1948 and also as per Indian Contract Act, 1872 the agreement between the assessee and vendee M/s R.Y. Infrastructure Pvt. Ltd dated 27/3/2007 and 4/5/2007 is valid? 2. Whether any immovable property value exceeding Rs. 100/- can be transferred by way of delivery of possession without registration and based on an invalid/unlawful agreement within the provisions of section 2(47) of the Income Tax Act, 1961. 3. Whether the agreements dated 27/3/2007 and 4/5/2007 on facts of the case can give rise to an actionable claim for handing over possession of impugned agricultural land in favour of the vendee i.e. M/s R.Y, Infrastructure Pvt. Ltd.? 4. Whether in view of agreements dated 27/3/2007 and 4/5/2007 being held invalid, the doctrine of part performance as per section 53A of T.P. Act, 1882, read with section 2(47) of the Income tax Act, 1961 can be invoked? 5. Whether the gain offered for tax unlawfully by the assessee on transfer of agricultural land not being a capital asset in A.Y. 2008-09 as claimed, will act as estoppels for the revenue to assess capital gains in A.Y. 2012-13 on the basis of registration of the agreement after the impugned land has ceased to be agricultural land and became a capital assets as per provision of section 2(14) of the Income Tax Act, 1961. 6. Whether the CIT(A) is correct in law to decide the issue of taxability of capital gain in the instant year when the AO has not examined the issue on merits and Pr.CIT has set-aside the assessment to be referred afresh after proper enquiry and did not give any specific direction to the AO regarding taxability of capital gain. 7. Whether the CIT(A) has erred in law and on facts in considering the order passed by the AO u/s 143(3) r.w.s. 263 dated 29.12.2017 I.T.A No. 18/Ahd/2019 A.Y. 2012-13 Page No. ITO vs. Smt. Kavita V. Adani 3 as infructuous as the matter is sub- judice before the Hon'ble High Court. 8. On the facts and circumstances, the leard CIT(A) ought to have upheld the order of the AO. 9. It is, therefore, prayed that the order of the ld. CIT(A) may be set aside and that of the order of the Assessing Officer be restored to the above extent. 10. This appeal is filed as tax effect in the case is Rs. 1,09,54,443/- which is above the monetary limit specified in the Board's Circular No. 3/2018 dated 11.7.2018.” 3. The brief facts of the case are that assessment u/s.143(3) of the Act was completed on 26.02.2015 accepting the return of income filed by the assessee. Thereafter the Pr. CIT-5, Ahmedabad set-aside the said order vide order u/s.263 dated 30.03.2017 holding that the assessment passed vide order dated 26.02.2015 was erroneous and prejudicial to the interest of revenue on certain issues. In consequence to the above order passed u/s 263 of the Act order, assessment u/s. 143(3) r.w.s. 263 of the Act was passed dated 29.12.2017, making addition of Long Term Capital Gain on land amounting to Rs. 5,31,76,905/-. Meanwhile, the assessee had preferred an appeal before the Hon'ble ITAT against the order u/s.263 of the Act passed by the Pr. CIT-5, Ahmedabad dated 30.03.2017, which was allowed by the Hon'ble ITAT vide order in ITA No. l284/AHD/2017 dated 23.01.2018 and ITAT quashed the order u/s.263 of the Act with the following observations: "24. Considering the facts in totality, in the light of the judicial decisions discussed hereinabove vis-a-vis the facts of the case in I.T.A No. 18/Ahd/2019 A.Y. 2012-13 Page No. ITO vs. Smt. Kavita V. Adani 4 hand, in our understanding of the law, the assessment order is neither erroneous nor prejudicial to the interest of the revenue. We, therefore, set-aside the impugned order passed by the Principal CIT u/s.263 of the Act and restore that of the A.O. passed u/s. 143(3) of the Act. 25. Appeal filed by the Assessee is accordingly allowed. " 3.1 The assessee also filed appeal against the order u/s 143(3) r.w.s 163 of the Act passed by Ld. Assessing Officer dated 29.12.2017, which was allowed by Ld. CIT(A) in light of the decision by Hon'ble ITAT vide order in ITA No. l284/AHD/2017 dated 23.01.2018 quashing the order passed by Ld. Pr. CIT u/s 263 of the Act dated 30.03.2017. The Ld. CIT(A), while allowing the assessee’s appeal observed as under: The Hon'ble ITAT in its order has clearly held that the action of the Pr.CIT in invoking the provisions of section 263 as befitting in the facts of the case and the action of the Pr.CIT under section 263 is thus bad in law. Considering the order of the Hon'ble ITAT, the order passed by the A.O. u/s.143(3) r.w.s. 263 dtd. 29.12.2017 does not survive and the same becomes infructuous. Thus, the grounds of appeal are allowed. 4. The Revenue is in appeal before us against the aforesaid order passed by Ld. CIT(A) dated 10/10/2018, allowing the assessee’s appeal in light of the order of Hon'ble ITAT vide order in ITA No. l284/AHD/2017 dated 23.01.2018 quashing the order passed by Ld. Pr. CIT u/s 263 of the Act dated 30.03.2017. I.T.A No. 18/Ahd/2019 A.Y. 2012-13 Page No. ITO vs. Smt. Kavita V. Adani 5 5. We have perused the material on record and in light of the decision Hon'ble ITAT vide order in ITA No. l284/AHD/2017 dated 23.01.2018 quashing the order passed by Ld. Pr. CIT u/s 263 of the Act dated 30.03.2017, we are of the considered view that there is no infirmity in the order passed by Ld. CIT(A) and the Ld. CIT(A) has not erred in facts and in law in allowing the assessee’s appeal. 6. Accordingly, the appeal of the Revenue is dismissed. Order pronounced in the open court on 20-05-2022 Sd/- Sd/- (WASEEM AHMED) (SIDDHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 20/05/2022 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/ आदेश से, उप/सहायक पंजीकार आयकर अपील य अ धकरण, अहमदाबाद