Smt. Vrushalidevi Y.Mahadik, Ahmedabad V. The Income tax Officer, Ward-2(5), Baroda

ITA 2849/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0666 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 29-08-2016
• Assessment Year: 2001-2002
• Appeal Filed On: 04-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P S CHOUDHARY
• Assessee Lawyers: ANIL R SHAH
• Keywords: Cost of acquisition
• Section: 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.2849/AHD/2013 / ASSTT. YEAR: 2001-2002 SMT.VRUSHALIDEVI Y MAHADIK C/O. GAYATRI R. GAEKWAD MADHAVBAUG OPP: ONGC GATE MAKARPURA, BARODA. PAN : AICPM 0240 L VS ITO, WARD-2(5) BARODA. ./ ITA.NO.2850/AHD/2013 / ASSTT. YEAR: 2001-2002 SMT. URVASHIDEVI P. CHAUHAN C/O. GAYATRI R. GAEKWAD MADHAVBAUG OPP: ONGC GATE MAKARPURA, BARODA. PAN : AEDPC 8028 D VS ITO, WARD-2(5) BARODA. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI ANIL R. SHAH, AR REVENUE BY : SHRI P.S. CHOUDHARY, DR / DATE OF HEARING : 29/08/2016 / DATE OF PRONOUNCEMENT: 01/09/2016 $%/ O R D E R PRESENT TWO APPEALS ARE DIRECTED AT THE INSTANCE OF THE ASSESSEES AGAINST COMMON ORDER OF THE LD.CIT(A)-II, BARODA DATED 27.9 .2013 PASSED FOR THE ASSTT.YEAR 2001-02 ON THE RESPECTIVE APPEALS OF THE APPELLANTS. ITA NO.2849 AND 2850/AHD/2013 2 2. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, I HAVE GONE THROUGH THE RECORD CAREFULLY. IT EMERGES OUT FROM THE RECORD T HAT BOTH THE APPELLANTS HAVE SOLD A PIECE OF LAND, IN WHICH THEY WERE HAVING 1/3 RD SHARE EACH. THEY HAVE FILED THEIR RETURNS OF INCOME AND COMPUTED CAPITAL GAIN. ACCORDING TO THEM, THE LAND WAS SOLD AT THE RATE OF RS.240/- PER SQ.FE ET. THEY HAVE COMPUTED THE CAPITAL GAIN BY ADOPTING COST OF ACQUISITION AS ON 1.4.1981 AT THE RATE OF RS.60/- PER SQ.FEET. DISPUTE WITH REGARD TO THE CO MPUTATION OF CAPITAL GAIN TRAVELLED UPTO THE TRIBUNAL IN ITA NOS.2612 AND 263 2/AHD/2007. APPEALS OF THE ASSESSEES HAVE BEEN DECIDED BY THE TRIBUNAL VID E ORDER DATED 1.10.2010. THE TRIBUNAL HAS OBSERVED THAT VALUE FOR THE PURPOS E OF COST OF ACQUISITION AS ON 1.4.1981 SHOULD BE ADOPTED AT THE RATE OF RS.14. 40 PER SQ.FEET AS ADOPTED BY THE AO. THE LD.AO HAS COMPUTED THE CAPITAL GAIN ACCORDINGLY. THE ASSESSEES FILED APPLICATION UNDER SECTIONS 154 R.W. S. 45 AND 2(14)(III) OF THE INCOME TAX ACT BEFORE THE AO. THE ASSESSEES CONTEN DED THAT SINCE THE LAND WAS AN AGRICULTURE LAND AND THIS FACT WAS REITERATE D BY THE TRIBUNAL IN ITS OBSERVATION AT NUMBER OF PLACES, THEREFORE, ASSESSE E SHOULD NOT BE SUBJECT TO ANY CAPITAL GAIN, BECAUSE THE LAND BEING AGRICULTUR E LAND WAS EXEMPT FROM CAPITAL GAIN TAX. THIS APPLICATION OF THE ASSESSEE HAS BEEN DISMISSED BY THE LD.AO IN EACH CASE OF THE APPELLANTS. AGGRIEVED WI TH THAT ORDER, THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A) WHO HAS DISMISSED THEIR APPEAL BY WAY OF IMPUGNED ORDER. 3. I HAVE DULY CONSIDERED CONTENTIONS OF THE LD.COU NSEL FOR THE ASSESSEE. I DO NOT FIND ANY MERIT IN THESE APPEALS, BECAUSE, TH ERE IS NO APPARENT ERROR IN THE ORDER OF THE AO. THE LD.CIT(A) HAS RIGHTLY OBS ERVED THAT THE TRIBUNAL HAS NOT REMITTED ANY ISSUE TO THE AO FOR FRESH CONSIDER ATION. THE AO WHILE GIVING EFFECT TO THE TRIBUNALS ORDER WAS ACTING AS AN EXECUTING COURT. HE CANNOT GO BEYOND THE DECREE. NO SUCH CHALLENGE WAS MADE BY THE ASSESSEE IN ITA NO.2849 AND 2850/AHD/2013 3 THE ORIGINAL PROCEEDING EITHER BEFORE THE AO OR U PTO THE LEVEL OF THE TRIBUNAL. THIS IS ALTOGETHER A FRESH PLEA TAKEN IN AN APPLICATION UNDER SECTION 154 OF THE ACT. THE PLEA COULD BE ENTERTAINED IF I T RELATES TO ANY APPARENT ERROR WHICH HAS BEEN COMMITTED BY THE AO. IT IS AN ISSUE WHICH WILL GIVE A DIFFERENT COLOUR TO THE WHOLE CONTROVERSY. THIS TY PE OF ISSUE CANNOT BE ENTERTAINED AFTER CULMINATION OF THE PROCEEDINGS UP TO THE LEVEL OF TRIBUNAL. IN VIEW OF THE ABOVE DISCUSSION, BOTH THE APPEALS ARE DISMISSED. 4. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEES ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 1 ST SEPTEMBER, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/09/2016