DAMODAR M. ASATKAR, Nagpur V. CIT-I, Nagpur

ITA 243/NAG/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1566 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 28-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Assessee Lawyers: R K GANERIWALA
• Keywords: Business income
• Section: 263

Judgement Text

1 ITA NO. 243/NAG/2014 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. 243/NAG/2014 ASSESSMENT YEAR : 2009 - 10. DAMODAR M. ASATKAR, COMMISSIONER OF INCOME - TAX - I, NAGPUR. VS. NAGPUR. PAN AANPA7804M APPELLANT. RESPONDENT. AP PELLANT BY : SHRI R.K. GANERIWALA. RESPONDENT BY : SHRI A.R. NINAWE.. DATE OF HEARING : 24 - 11 - 2015. DATE OF PRONOUNCEMENT : 4 TH DEC., 2015. O R D E R PER SHRI SHAMIN YAHYA, A.M . THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX - I, NAGPUR DATED 14 - 03 - 2014 PASSED U/S 263 OF THE I.T. ACT FOR ASSESSMENT YEAR 2009 - 10. 2. IN THIS CASE LEARNED CIT NOTED THAT THE ASSESSEE HAS SOLD TWO PIECES OF AGRICULTURAL LAND AND HAS EARNED PROFIT ON THE SALE. THE LAND SALE WAS TREATED AS SALE OF AGRICULTURAL LAND WHICH WAS ACCEPTED BY THE AO. HOWEVER, LEARNED CIT WAS OF THE OPINION THAT BOTH THE PLOTS HAVE BEEN SOLD WITHIN A SHORT PERIOD OF ONE YEAR. HENCE LEARNED CIT WAS OF THE OPINION THAT THE TRANSACTION WAS IN THE NATURE OF ADVENTURE IN THE NATURE OF TRADE. LEARNED CIT REJECTED THE CONTENTION THAT THE AO HAS MADE ENQUIRY ABOUT THE LANDS AND THE SALE THEREOF. HE HELD THAT THE AO JUST OBTAINED DETAILS OF THE LAND AND THAT HE DID NOT GO INTO THE ASPECT THAT THE ASSESSEE HAS PURCHASED AND SOLD THEM WITHIN A SHORT PERIOD TO EARN 2 ITA NO. 243/NAG/2014 PROFITS. LEARNED CIT WAS OF THE OPINION THAT THE LAND SHOULD HAVE BEEN PUT TO AGRICULTURAL USE FOR REASONABLE SPAN OF TIME. HENCE LE ARNED CIT OPINED THAT THE AO HAS PASSED AN ORDER WITHOUT APPLICATION OF MIND. HE FURTHER OBSERVED THAT IN ASSESSMENT YEAR 2010 - 11 IT WAS HELD BY THE AO THAT THE ASSESSEE WAS TRADING IN PLOTS OF LAND AND ACCORDINGLY THE INCOME FROM SALE OF LAND WAS TREATED AS BUSINESS INCOME. HENCE LEARNED CIT SET ASIDE THE ORDER TO VERIFY THE NATURE OF PROFIT EARNED BY THE ASSESSEE FROM THE SALE OF LAND. 3. AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LEARNED COUNSEL OF THE ASSESSEE CONTENDED THAT OBSERVATION OF THE LEARNED CIT THAT IN ASSESSMENT YEAR 2010 - 11 THE AO HAD HELD THAT THE ASSESSEE WAS TRADING IN PLOTS OF LAND WAS FACTUALLY ABSOLUTELY INCORRECT. LEARNED COUNSEL SUBMITTED THAT NO LAND SALE WAS SUBMITTED IN THE RETURN OF INCOME FOR ASSESSMENT YEAR 2010 - 11 AND NO SUCH ASSESSMENT ORDER WAS PASSED BY THE AO. THIS SUBMISSION OF THE LEARNED COUNSEL OF THE ASSESSEE WAS CONFRONTED TO THE LEARNED D.R., AND HE WAS ALLOWED TIME TO GO THROUGH THE AS SESSMENT RECORDS. LEARNED D.R. FAILED TO PRODUCE ANY DOCUMENTS WHICH SUPPORTED THE LEARNED CITS FINDING THAT IN ASSESSMENT YEAR 2010 - 11 THE ASSESSEE WAS HELD TO BE TRADING IN PLOTS OF LAND. HENCE ADMITTEDLY LEARNED CIT HAS USED IRRELEVANT MATERIAL TO PA SS AN ORDER U/S 263 OF THE I.T. ACT. FURTHER MORE THE AO HAS OBTAINED THE LAND DETAILS AND HENCE IT CANNOT BE SAID THAT THE AO HAS NOT MADE ANY APPLICATION OF MIND ON THE NATURE OF SALE OF AGRICULTURAL LAND. UNDER THESE CIRCUMSTANCES, IN OUR CONSIDERED OPI NION, THE ASSUMPTION OF JURISDICTION BY THE LEARNED CIT IS BAD IN LAW. ACCORDINGLY WE QUASH THE ORDER PASSED BY THE LEARNED CIT U/S 263 OF THE I.T. ACT. 3 ITA NO. 243/NAG/2014 5. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 4 TH DAY OF DEC., 2015. SD/ - SD/ - (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. NAGPUR, DATE D: 4 TH DEC., 2015. COPY FORWARDED TO : 1. SHRI DAMODAR S. ASATKAR, 103, DEEP APARTMENT, WARDHA ROAD, SOMALWADA, NAGPUR. 2. I.T.O., WARD - 1(1), NAGPUR. 3. C.I.T. - I, NAGPUR. 4. D.R., ITAT, NAGPUR. 5. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE.