GAD LOGISTIC I P.LTD, MUMBAI V. DCIT CEN CIR 1, THANE

ITA 3128/MUM/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3658 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 01-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset
• Section: 271(1)(c); 143(3); 54B; 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI RAM LAL NEGI, JM I.T.A. NO.3128/MUM/2017 (ASSESSMENT YEAR: 2007-08) I.T.A. NO.3129/MUM/2017 (ASSESSMENT YEAR: 2007-08) I.T.A. NO.96/MUM/2017 (ASSESSMENT YEAR: 2012-13) GAD LOGISTIC (I) PVT. LTD., 101, 103, SUGAR MARKET, PD MELLO ROAD, MASJID, MUMBAI-400009. VS. DCIT CENTRAL CIRCLE-1 & ACIT CIRCLE-4 THANE. PAN NO. : AABCG2816N ( APPELLANT ) .. ( RESPONDENT ) DATE OF HEARING: 11/03/2021 DATE OF PRONOUNCEMENT: 31/05/2021 O R D E R PER RAM LAL NEGI, JM: THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAIN ST THE TWO ORDERS DATED 02.01.2017 PERTAINING TO THE ASSESSMEN T YEAR 2007-08 AND ONE ORDER DATED 03.10.2018 PERTAINING TO THE A SSESSMENT YEAR ASSESSEE BY: NONE REVENUE BY: SHRI T.KIPGEN (CIT-DR) ITA NO S.3128, 3129 M 17 & 96 M 2019 GAD LOGISTIC (I) PVT. LTD. 2 2012-13, PASSED BY THE LD. COMMISSIONER OF INCOME T AX (APPEALS)-3, THANE [FOR SHORT THE CIT(A)], WHEREBY THE LD. CIT (A) HAS DISMISSED THE APPEALS FILED BY THE ASSESSEE AGAINST THE ASSES SMENT ORDERS PASSED UNDER SECTION 143(3) R.W.S.153(B)(B) AND 143(3) R.W .S. 153(A)(A) R.W.S. 254 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) FOR THE ASSESSMENT YEAR 2007-08 AND THE ASSESSMENT ORDER PA SSED U/S 143(3) OF THE ACT FOR THE ASSESSMENT YEAR 2012-13. 2. VIDE APPEAL NO. 3128/M/2017 APPEAL, THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER DATED 02.01.2017 PASS ED BY THE LD. CIT(A) ON THE FOLLOWING GROUNDS: 1) IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX(A) ERRED IN CONFIRMING THE ADDITIONS OF LTCG OF RS. 3,12,41,269/- (RS. 3,03,37,833+ RS. 9,03,436) IN RESPECT PLOT NO. (A) AND (B) AND STCG OF RS. 19,00,000/- IN RESPECT OF PLOT NO. (B) OF LAND SOLD EVEN THOUGH THE SAME WAS AGRICULTURAL LAND. (AS PER CHART ENCLOSED) 2) IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX(A) ERRED IN CONFIRMING THE ADDITION OF RS 1,81,00,000/ - ON ACCOUNT OF LTCG BEING PROFIT ON SALE OF AGRICULTURAL LAND BY NOT APPRECIATING VARIOUS EVIDENCES PRODUCED TO PROVE THE FACT THAT THE LAND UNDER QUESTION WAS NOT A CAPITAL ASSET U/S 2(14) AN D ALSO OVERLOOKING THE FACT THAT THE APPELLANT WAS ELIGIBLE FOR EXEMPTION U/S 54B IN RESPECT OF REINVESTMENT OF SALES PROCEEDS MADE INTO ANOTHER AGRICULTURAL LAND. (AS PER CHART ENCLOSED) . ITA NO S.3128, 3129 M 17 & 96 M 2019 GAD LOGISTIC (I) PVT. LTD. 3 3) IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX(A) ERRED IN CONFIRMING THE ADDITION OF RS 19,00,000/- ON ACCOUNT OF STCG BEING PROFIT ON SALE OF AGRICULTURAL LAND BY NOT APPRECIATING VARIOUS EVIDENCES PRODUCED TO PROVE THE FACT THAT THE LAND UNDER QUESTION WAS NOT A CAPITAL ASSET U/S 2(14). ( AS PER CHART ENCLOSED) [B] RELIEF PRAYED: THE APPELLANT THEREFORE PRAYS AS FOLLOWS, 1. TO DELETE THE ADDITION OF RS. 3,12,41,269/- ON ACCOUNT OF LTCG AND RS. 19,00,000/- ON ACCOUNT OF STCG. 2. TO DELETE THE ADDITION OF RS. 1,81,00,000/- BEIN G WRONGLY TREATED AS LTCG OR ALTERNATIVELY GRANT EXEMPTION U/S 54B. 3. TO DELETE THE ADDITION OF RS. 19,00,000/- BEING WRONGLY TREATED AS STCG. 3. SIMILARLY, VIDE APPEAL ITA NO. 3129/MUM/2017, TH E ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) ON THE FOLLOWING GROUNDS: 1) IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED ASSESSING OFFICER ERRED IN DISALLOWING DEDUCTION CLAIMED U/S 80IA(4) IN RESPECT OF BUSINESS OF CONTAINER/FREIGHT STATION AN D THEREBY ASSESSING THE TOTAL INCOME OF RS 6,32,33,570/- WITHOUT APPRECIATING THE EVIDENCES FILED BY THE APPELLANT AS PER THE DIRECTION OF THE ITAT. 2) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) ITA NO S.3128, 3129 M 17 & 96 M 2019 GAD LOGISTIC (I) PVT. LTD. 4 ERRED IN CONFIRMING THE ABOVE SAID DISALLOWANCE BY WRONGLY INTERPRETING THE EVIDENCES FILED BY THE APPELLANT. 3) THE ASSESSING OFFICER WRONGLY CHARGING INTEREST U/S 234. [B] RELIEF PRAYED: THE APPELLANT THEREFORE PRAYS AS FOLLOWS, 1. TO ALLOW DEDUCTION CLAIMED U/S 80IA(4) BY THE APPELLANT. 2. TO DELETE THE INTEREST WRONGLY CHARGED U/S 234. 4. FURTHER, VIDE APPEAL ITA NO. 96/MUM/2019, THE AS SESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) BY ON THE FOLLOWING GROUNDS: 1) IN THE FACTS AND THE CIRCUMSTANCES OF LAW, THE ASSESSING OFFICER ERRED IN DISALLOWING AGRICULTURAL INCOME OF RS. 6,27,700/- OF THE APPELLANT. 2) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED A.O. ERRED IN LEVYING PENALTY U/S 271(1)(C) AND CHARGING INTEREST U/S 234. 3) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN CONFIRMING THE ABOVE ADDITIONS EX-PARTE BECAUSE THE APPELLANT WAS BUSY WITH OTHER MATTERS. [B) RELIEF PRAYED: THE APPELLANT THEREFORE PRAYS AS FOLLOWS, 1. TO DELETE THE DISALLOWANCE OF RS. 6,27,700/- AS AGRICULTURAL INCOME. ITA NO S.3128, 3129 M 17 & 96 M 2019 GAD LOGISTIC (I) PVT. LTD. 5 2. TO DELETE THE PENALTY LEVIED U/S 271(L)(C) AND INTEREST CHARGED U/S 234. 5. THESE APPEALS WERE FIXED FOR HEARING ON 11.03.20 21. ON THE SAID DATE, WHEN THE CASES WERE CALLED FOR HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. THE LD. DEPARTMENTAL REPRESENTATIV E (DR) INFORMED THE BENCH THAT THE ASSESSEE HAS OPTED TO SETTLE THE DISPUTE INVOLVED IN ALL THE THREE APPEALS UNDER VIVAD SE VISHWAS ACT, 2 020. 6. THE LD. DR FURTHER SUBMITTED THAT THE DEPARTMENT HAS NO OBJECTION IN CASE THE APPEALS OF THE ASSESSEE ARE D ISMISSED AS WITHDRAWN. 7. SINCE, THE ASSESSEE HAS OPTED TO SETTLE ITS DISP UTE INVOLVED IN ALL THREE APPEALS UNDER THE PROVISIONS OF THE VIVAD SE VISHWAS ACT,2020, WE DISMISS THESE APPEALS AS WITHDRAWN. HOWEVER, THE ASSESSEE IS AT LIBERTY TO MOVE MISCELLANEOUS APPLICATIONS FOR REST ORATION OF THESE APPEALS FOR HEARING ON MERITS IN CASE THE DISPUTES ARE NOT SETTLED UNDER THE PROVISIONS OF THE SAID ACT. IN THE RESULT, THESE APPEALS ARE DISMISSED AS WITH DRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 31.05.2021 UNDER RULE 34 OF THE ITAT RULES. SD/- SD/- (SHAMIM YAHYA) (RAMLAL NEGI) ACCOUNTANT MEMBER JUDICIAL M EMBER MUMBAI; DATED : 31/05 /2021 ITA NO S.3128, 3129 M 17 & 96 M 2019 GAD LOGISTIC (I) PVT. LTD. 6 SK, PS COPY OF THE ORDER FO RWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4 . / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT, MUMBAI