KUMAR RASIKLAL MEHTA, MUMBAI V. ASST CIT 16(2), MUMBAI

ITA 2679/MUM/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3423 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-12-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 08-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V S JADHAVDR
• Assessee Lawyers: R K SINHA
• Keywords: Capital asset
• Section: 2(14)

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.2679/MUM/2015 ASSESSMENT YEAR: 2010-11 SHRI KUMAR RASIKLAL MEHTA, 602/603, PRASAD CHEMBERS, OPERA HOUSE, MUMBAI-400004 / VS. ASST. COMMISSIONER OF INCOME TAX-16(2), MUMBAI / ASSESSEE / REVENUE P.A. NO. AAOPM3805D $ % & / ASSESSEE BY SHRI R.K.SINHA $ % & / REVENUE BY SHRI V.S. JADHAV-DR / DATE OF HEARING 21/01/2016 & / DATE OF ORDER: 01/02/2016 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 12/01/2015 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI, THE ONLY GROUND RAISED IN THIS APPEAL PERTA INS TO REJECTING THE CLAIM OF CAPITAL GAIN, ARISING OUT OF , SALE OF AGRICULTURAL LAND WHICH IS NOT A CAPITAL ASSET AS P ER SECTION 2(14) OF THE INCOME TAX ACT, 1961 (HEREINAF TER THE ITA NO.2679/MUM/2015 KUMAR RASIKLAL MEHTA 2 ACT), AND FURTHER REFUSING TO ENTERTAIN THE GROUND TAKEN FOR SUCH CLAIM THAT THE SAME IS EXEMPT FROM TAXATIO N. 2. DURING HEARING OF THIS APPEAL, THE LD. COUNSEL FOR THE ASSESSEE, SHRI R.K. SINHA, ADVANCED ARGUMEN TS WHICH IS IDENTICAL TO THE GROUND RAISED BY RAISING A QUESTION WHETHER THE ASSESSEE CAN TAKE A GROUND FOR TAXABILITY OF CAPITAL GAIN BEFORE THE LD. COMMISSIO NER OF INCOME TAX (APPEALS), WHICH WAS DENIED TO THE ASSES SEE BY FURTHER CONTENDING THAT THE LAND IS SITUATED BEY OND THE PRESCRIBED LIMIT OF MUNICIPALITY/PANCHAYAT SAMITI. 2.1. ON THE OTHER HAND, THE LD. DR, SHRI V.S. JADHAV, THOUGH DEFENDED THE CONCLUSION ARRIVED AT I N THE IMPUGNED ORDER BUT ADDED THAT THE CASE REQUIRES REL OOK BY THE LD. ASSESSING OFFICER. 2.2. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL FILED RETURN OF INCOME ON 02/10/2010 DECLARING TOTAL INCOME OF RS.2,32,700/-, WHICH WAS PROCESSED U/S 143(1) OF TH E ACT. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY, THEREFORE, REQUISITE NOTICE WAS ISSUED TO THE ASSE SSEE AND THE SAME WAS RESPONDED. THE ASSESSEE SUBMITTED THE REQUISITE DETAILS WHICH WERE CHECKED BY THE LD. AS SESSING OFFICER. WHILE DOING SO, IT WAS OBSERVED THAT THE A SSESSEE HAS CLAIMED LONG TERM CAPITAL GAIN OF RS.9,14,998/- ON SALE OF AGRICULTURAL LAND WHICH WAS CLAIMED EXEMPT U/S ITA NO.2679/MUM/2015 KUMAR RASIKLAL MEHTA 3 2(14) OF THE ACT. THE ASSESSEE WAS ASKED TO FURNIS H THE DETAILS OF SALE OF SUCH LAND AND FURTHER AS TO WHY THE SAME SHOULD NOT BE TREATED AS TAXABLE INCOME. AS PER THE REVENUE, THE ASSESSEE VIDE LETTER DATED 05/03/2013 WITHDREW THE CLAIM AND OFFERED THE SALE PROCEEDS FO R TAXATION. THE AMOUNT OF RS.9,14,998/- WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE AND THUS THE INCOME WA S REVISED TO RS.11,47,698/-. 2.3. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE CHALLENGED THE ADDITION OF CAPITAL GAIN AND ALSO THAT THE ASSESSEE HAS WRONGLY CALCULATED THE GAINS. HOWEVER, AS PER THE ASSESSEE, THE SAID GROUND WAS NOT ALLOWED TO BE AGI TATED. IT IS ALSO NOTED THAT WHETHER THE LAND WAS SITUATED BEYOND THE PRESCRIBED LIMIT FROM THE MUNICIPALITY O R THE TALUKA PANCHAYAT IS ALSO NOT ASCERTAINABLE FROM FAC TS, EVEN THE ISSUE HAS NOT BEEN LOOKED INTO FROM THIS A NGLE BY THE LD. ASSESSING OFFICER OR THE LD. COMMISSIONER O F INCOME TAX (APPEALS). EVEN THE ASSESSEE ONLY BEFORE THIS TRIBUNAL HAS RAISED THIS ISSUE, THEREFORE, IN ALL F AIRNESS, I AM OF THE VIEW, THAT THE WHOLE ISSUE REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. ASSESSING O FFICER, THEREFORE, THIS APPEAL IS REMANDED BACK TO THE FILE OF THE LD. ASSESSING OFFICER. THE ASSESSEE IS DIRECTED TO FURNISH THE FACTS/NECESSARY EVIDENCE, TO SUBSTANTIATE HIS C LAIM, ALONG WITH THE EXACT LOCATION OF THE LAND, PERIOD O F HOLDING ITA NO.2679/MUM/2015 KUMAR RASIKLAL MEHTA 4 OF SUCH LAND WITH THE ASSESSEE OR ANY OTHER ATTENDA NT FACTS/EVIDENCE BEFORE THE LD. ASSESSING OFFICER. TH E LD. ASSESSING OFFICER IS DIRECTED TO EXAMINE THE CLAIM OF THE ASSESSEE AND AFTER PROVIDING DUE OPPORTUNITY OF BEI NG HEARD, DECIDE THE CASE IN ACCORDANCE WITH LAW, THUS , THE APPEAL OF THE ASSESSEE ALLOWED FOR STATISTICAL PURP OSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 21/01/2016. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 01/02/2016 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. %& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) 1 , / DR, ITAT, MUMBAI 6. /2 3 / GUARD FILE. & / BY ORDER, (- ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI