Shri Thakorji Mandir Bagumara Trust, Surat V. The ACIT, Circle-6, Surat

ITA 2247/AHD/2014

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 1981 (ITAT-SURAT)
• Duration Of Justice: 4 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-07-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 06-08-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SRINIVAS T BIDARI
• Assessee Lawyers: RASESH SHAH
• Keywords: Capital asset
• Section: 147; 154; 11; 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT , , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . / ITA NO.2247/AHD/2014/SRT / ASSESSMENT YEAR: 2010-11 SHRI THAKORJI M ANDIR BAGUMARA TRUST MORARBHAI P. PATEL, AT & POST-BALUMARA, TAL. PALSANA, SURAT. [PAN: AACTS 8041F] VS. ASST. COMMISSIONER OF INCOME TAX, CIRCLE-6, SURAT. ( ' / APPELLANT) ( #$' /RESPONDENT) / ASSESSEE BY : SHRI RASESH SHAH, C.A /REVENUE BY : SHRI SRINIVAS T. BIDARI, CIT-DR /DATE OF HEARING : 26-10-2018 / DATE OF PRONOUNCEMENT : 26-10-2018 / ORDER PER C.M. GARG, JUDICIAL MEMBER: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, SURAT (CIT (A) FOR SHORT) DATED 23.05.2014 FOR THE ASSESSMENT YEAR (A.Y) 2010-11. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS FOLLO WS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE ID. C ERRED IN CONFIRMING THE FINDING OF ASSESSING OFFICER THAT ASSESSEE HAS NOT BEER CERTIFICATE OF R EGISTRATION U/S 12A/12AA OF THE I.T ACT, 1961. 2 ITA NO.2247/AHD/2014/SRT (A.Y: 2010-11) SHRI THAKORJI MANDIR BAGUMARA TRUST MORARBHAI P. PA TEL 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE ID. C ERRED IN CONFIRMING THE ACTION O F ASSESSING OFFICER IN NOT GRANTING EXEMPTION U/S 11 THE I.T AC T, 1961 AND THEREBY ERRED IN CONFIRMING THE ADDITION OF RS. 1,1 1,28,800/ ASSESSING OFFICER. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE ID. 1 ERRED IN NOT ACCEPTING THE CLAIM OF ASSESSEE THAT THE INCOME FROM SALE OF AGRICULTURE INCOME FROM LONG TERM CAPITAL GAIN AND THEREBY ERRED IN NOT GRANTING VARIOUS APPL ICABLE TO LONG TERM CAPITAL ASSETS LIKE INDEXATION, LOWER RATE OF DEDUCTION ETC. 4. IT IS THEREFORE PRAYED THAT THE ABOVE ADDITIONS MADE BY ASSESSING OFFICER AND CI LEARNED COMMISSIONER OF IN COME-TAX (APPEALS) MAY PLEASE BE DELETED. 3. THE LD. ASSESSEES REPRESENTATIVE (AR) SUBMITTED THAT THE ASSESSEE DOES NOT WANT TO PRESS GROUNDS NO.1 & 2 HE NCE, THE SAME ARE DISMISSED AS NOT PRESSED. WE HAVE HEARD THE ARGUME NTS OF BOTH SIDES ON GROUND NO.3 & 4 OF THE ASSESSEE AND CAREFULLY PE RUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE TRIBUNAL. THE LD. AR SUBMITTED THAT IN THE PRESENT CASE THE ASSESSMENT ORDER WAS PASSED ON 18.03.2013 U/S. 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE A CT') BY MAKING ADDITION OF AMOUNT OF RS. 1,11,28,800/- ON ACCOUNT OF SAID A PART AMOUNT U/S. 11(1)(D) OF THE ACT. HE FURTHER SUBMITTED THAT SUB SEQUENTLY THE CASE WAS REOPENED AND ASSESSMENT ORDER WAS FRAMED U/S. 143(3 ) R/W S. 147 OF THE ACT ON 22.12.2017, WHEREIN ONLY ADDITION OF RS. 68, 977/- WAS MADE AS PER PARA 8 & 8.1 ON ACCOUNT OF CAPITAL GAIN BY ACCE PTING THE WORKING OF ASSESSEE ON CAPITAL GAIN VIDE DATED 21.12.2017 AND THE ADDITION MADE BY THE AO IN THE EARLIER ASSESSMENT ORDER OF RS. 1,11, 28,000/- WAS REDUCED 3 ITA NO.2247/AHD/2014/SRT (A.Y: 2010-11) SHRI THAKORJI MANDIR BAGUMARA TRUST MORARBHAI P. PA TEL TO RS. 68,977/- WITHOUT DISPUTING THE WORKING SUBMI TTED BY THE ASSESSEE. THE LD. AR VEHEMENTLY SUBMITTED THAT BUT IN THE SUB SEQUENT REASSESSMENT ORDER FRAMED U/S. 147 OF THE ACT, THE AO PICKED UP THE ROUND OFF AMOUNT OF RS.1,14,53,510/- (RETURNED INCO ME OF RS. 3,24,712/- AND ADDITION OF RS. 1,11,28,800/-) FOR COMPUTING TO TAL TAXABLE INCOME OF THE ASSESSEE PERHAPS BY MISTAKE. THE LD. AR SUBMITT ED THAT THE RETURNED INCOME OF THE ASSESSEE WAS RS. 3,24,712/- WHICH WAS TO BE ADDED BY RS. 68,977/- BUT THE AO WRONGLY AGAIN ADDED THE AMOUNT OF ADDITION MADE IN THE EARLIER ASSESSMENT ORDER, WHICH WAS REDUCED TO RS. 68,977/- THEREFORE, THE AO MAY KINGLY BE DIRECTED TO RECOMPU TED THE TAXABLE INCOME ACCORDINGLY. 4. THE LD. DR FIRST OF ALL SUBMITTED THAT THE MISTA KE IN COMPUTATION IS APPARENT, WHICH MAY BE RECTIFIED BY THE AO ON THE A PPLICATION OF THE ASSESSEE U/S. 154 OF THE ACT AND NO APPEAL IS REQUI RED TO BE FILED BEFORE THE TRIBUNAL. FURTHER, THE LD. DR IN ALL FAIRNESS, SUBMITTED THAT IF THE AO IS DIRECTED TO RE-COMPUTE OR RECALCULATE THE TAXABLE I NCOME OF THE ASSESSEE FOR AY 2010-11 KEEPING IN VIEW HIS FINDINGS RECORDE D IN REASSESSMENT ORDER DATED 22.12.2017 THEN, THE DEPARTMENT HAS NO SERIOUS OBJECTION TO THAT. 5. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSI ONS, WE ARE OF THE VIEW THAT IN THE REASSESSMENT ORDER DATED 22.12.201 7 PASSED U/S. 143(3) 4 ITA NO.2247/AHD/2014/SRT (A.Y: 2010-11) SHRI THAKORJI MANDIR BAGUMARA TRUST MORARBHAI P. PA TEL R/W. S. 147 OF THE ACT, THE AO ACCEPTED WORKING OF THE ASSESSEE PERTAINING TO LONG TERM CAPITAL GAIN AND ACCEPTED T HAT AFTER ALLOWING INDEX COST THE LONG TERM CAPITAL GAIN WAS RS. 68,977/- BU T WHILE COMPUTING THE TOTAL TAXABLE INCOME, THE AO ADDED AMOUNT OF RS. 1, 14,53,510/- WHICH INCLUDES AMOUNT OF ADDITION OF RS. 1,11,28,800/- ON ACCOUNT OF LONG TERM CAPITAL GAIN, WHICH WAS REDUCED TO RS. 68,977/-IN T HE SUBSEQUENT REASSESSMENT ORDER THEREFORE, THE AO IS DIRECTED TO RE COMPUTE/RECALCULATE THE TAXABLE INCOME OF THE ASSES SEE BY SUBTRACTING THE AMOUNT OF RS. 1,11,28,800/- OTHERWISE, IF THIS AMOUNT IS ALLOWED TO BE ADDED TO THE INCOME OF THE ASSESSEE IN THE REASSESS MENT ORDER THAT WOULD AMOUNT TO DOUBLE AND UNJUSTIFIED ADDITION. C ONSEQUENTLY, GROUND NO.3 OF THE ASSESSEE IS ALLOWED AND THE AO IS DIREC TED TO RE- COMPUTE/RECALCULATE TAXABLE INCOME OF THE ASSESSEE IN THE MANNER AS DIRECTED ABOVE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 6 TH OCTOBER, 2018. / SURAT ; DATED : 26 TH OCTOBER, 2018 / EDN # & / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT ; 3. % ( ) / THE CONCERNED CIT(A); 4. THE CONCERNED PRL. CIT; 5. , , / DR, ITAT, SURAT; 6. / GUARD FILE . SD/ - SD/ - ( ) ( O.P.MEENA ) / ACCOUNTANT MEMBER ( ) (C.M.GARG) /JUDICIAL MEMBER