Smt. Gitaben Chandulal Prajapati, Ahmedabad V. The ACIT, Circle-7, Ahmedabad

ITA 2379/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9564 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-01-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 04-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PF JAIN
• Keywords: Capital asset
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBE R AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA NO. 2379/AHD/2013 (ASSESSMENT YEAR:2006-07) SMT. GITABEN CHANDULAL PRAJAPATI A/2, NANDBAUGH SHOPPING CENTRE, BHIMJIPURA, NAVA VADAJ, AHMEDABAD - 380013 APPELLANT VS. A.C.I.T., CIRCLE - 7, AHMEDABAD RESPONDENT PAN: ABVPP8912C /BY ASSESSEE : SHRI P. F. JAIN, A.R. /BY REVENUE : SHRI JAMES KURIAN, SR. D.R. /DATE OF HEARING : 05.01.2017 /DATE OF PRONOUNCEMENT : 06.01.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2006-07 ARISES AGAINST THE CIT(A)-XIV, AHMEDABADS ORDER DATED 20.08.2013, IN APPEAL NO. CIT(A) XIV/AC CIR.7/132/2012-13 IN PROCEEDINGS UNDER SECTI ON 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. THE ASSESSEES TWO FOLDED SUBSTANTIVE GROUND CHA LLENGE VALIDITY OF REOPENING FOLLOWED BY CORRECTNESS OF THE IMPUGNED L ONG TERM CAPITAL GAINS ADDITION ARISING FROM SALE OF LAND AMOUNTING TO RS. 62,15,820/-. ITA NO. 2379/AHD/2013 (SMT. GITABEN C. PRAJAPATI VS . ACIT) A.Y. 2006-07 - 2 - 3. LEARNED COUNSEL REPRESENTING ASSESSEE STATES AT THE OUTSET THAT THE ASSESSING OFFICER HAS ISSUED SECTION 148 NOTICE DAT ED 26.03.2012 IN FURTHERANCE TO A SEARCH DATED 08.12.2009 CONDUCTED IN ASSESSEES FAMILY MEMBERS CASES REVEALING THEM TO HAVE SOLD THEIR LAN DS SITUATED IN SURVEY NO.494 & 509, VILLAGE BHADAJ. SHRI JAIN THEN INVIT ES OUR ATTENTION TO REASONS OF REOPENING DATED 23.03.2012 STATING THAT THE ASSE SSEE HAD SOLD HER JOINTLY OWNED LAND IN BLOCK NOS.500 & 510 OF THE VERY VILL AGE FOR A TOTAL AMOUNT OF RS.62,14,322/- AND DID NOT FILE ANY RETURN. LEARNE D COUNSEL INVITES OUR ATTENTION TO ASSESSING OFFICERS ORDER DATED 26.10. 2012 MAKING THE IMPUGNED LONG TERM CAPITAL GAINS ADDITION AS UPHELD IN THE L OWER APPELLATE PROCEEDINGS. 4. THE ASSESSEE CONTINUES HER SUBMISSIONS IN THE CO URSE OF HEARING BEFORE US. SHE TAKES US TO THE LOWER APPELLATE ORDER DISM ISSING HER APPEAL MAINLY ON THE GROUND THAT NEITHER SHE OBJECTED TO THE REOPENI NG NOR IS THERE ANY LOCUS FOR HER TO FILE THE INSTANT APPEAL SINCE HER RETURN ED INCOME IN FURTHERANCE TO SECTION 148 NOTICE STOOD ACCEPTED FOLLOWED BY PAYME NT OF TAXES. THE ASSESSEE THEN PLACES ON RECORD A CO-ORDINATE BENCH S ORDER COPY DATED 23.06.2016 PASSED IN CASE OF ABOVE PRAJAPATI GROUP OF CASES REMITTING THE ISSUE BACK TO THE CIT(A) TO ADJUDICATE THE ISSUE AS TO WHETHER THE ABOVE LAND SOLD IN VILLAGE BHADAJ WAS A CAPITAL ASSET U/S.2(14 )(III) OR NOT. SHE SEEKS SIMILAR DIRECTIONS FROM US AS WELL. 5. SHRI JAMES KURIAN (LD. SENIOR DEPARTMENTAL REPRE SENTATIVE) STRONGLY ARGUES THAT THERE IS NO LOCUS FOR THE ASSESSEE LEFT ANY MORE AS SHE HAS ALREADY PAID THE TAXES IN QUESTION WELL BEFORE SECTION 148 PROCEEDINGS. WE FIND THIS ARGUMENT TO BE NOT ACCEPTABLE. WE NOTICE THAT A C O-ORDINATE BENCH OF THIS TRIBUNAL IN ACIT VS. SATYANARAYAN AGARWAL 255 ITR ( AT) 69 (KOLKATA) HOLDS THAT AN ADMISSION MADE IN THE RETURN IS NOT BINDING IN CASE AN ASSESSEE SEEKS TO CHANGE OR MODIFY HIS OR HER STAND. LEARNED CO-O RDINATE BENCH IS OF THE VIEW THAT AN ASSESSEE CAN ALWAYS SEEK TO PROVE THAT THE INCOME DECLARED ITA NO. 2379/AHD/2013 (SMT. GITABEN C. PRAJAPATI VS . ACIT) A.Y. 2006-07 - 3 - EARLIER WAS NOT TAXABLE. WE DRAW SUPPORT THEREFROM TO REJECT REVENUES ABOVE CONTENTION OF NON MAINTAINABILITY OF THE INST ANT ASSESSEES APPEAL. WE THEREFORE REMIT THE ASSESSEES LATTER SUBSTANTIVE G ROUND AS WELL BACK TO THE CIT(A) TO DECIDE AFRESH AS TO WHETHER HER LAND SOLD WAS A CAPITAL ASSET OR NOT U/S.2(14)(III) OF THE ACT IN TUNE WITH THE OTHER GR OUP CASES (SUPRA). IT IS MADE CLEAR THAT THE ASSESSEE WOULD BE AT LIBERTY TO PLAC E ON RECORD ALL THE RELEVANT DETAILS IN ORDER TO PROVE THE FACT THAT HER LAND SO LD WAS AGRICULTURAL NOT FORMING A CAPITAL ASSET UNDER THE ABOVE STATUTORY P ROVISION. IT WOULD BE APPRECIATED IF THE LD. CIT(A) DECIDES ALL THESE GRO UP CASES TOGETHER. 6. THE ASSESSEES APPEAL IS ACCEPTED FOR STATISTICA L PURPOSES. [PRONOUNCED IN THE OPEN COURT ON THIS THE 06 TH DAY OF JANUARY, 2017.] SD/- SD/- ( AMARJIT SINGH ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 06/01/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )* + ,--. . /0 / DR, ITAT, AHMEDABAD 1 + 23 / GUARD FILE. BY ORDER / . // . /0