Shri Chandrakant M.Patel, Anand V. The Income tax Officer,Ward-1, Anand

ITA 3422/AHD/2009

• Counselvise Citation: 342220514 RSA 2009
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 29-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M G PATEL
• Keywords: Set aside
• Section: 271(1)(c)

Judgement Text

-1- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'B' BEFORE SHRI G C GUPTA VICE-PRESIDENT AND SHRI A K GARODIA, ACCOUNTANT MEMBER ITA NO.3422/AHD/2009 (ASSESSMENT YEAR:-2006-07) SHRI CHANDRAKANT M PATEL PROP. OF ROSHNI GAS SERVICE, 44A, YOGI PARK, GREED ROAD, ANAND V/S THE INCOME-TAX OFFICER, WARD-1, ANAND PAN: ADOPP 7328 M [APPELLANT] [RESPONDENT] ASSESSEE BY :- SHRI M G PATEL, AR REVENUE BY:- SHRI SAMIR TEKRIWAL, SR. DR DATE OF HEARING:- 17-11-2011 DATE OF PRONOUNCEMENT:- 02-12-2011 O R D E R PER G C GUPTA, VICE-PRESIDENT : THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2006-07 IS DIRECTE D AGAINST THE ORDER OF THE CIT(A). THE ONLY GROUND OF APPEAL OF THE ASSESSEE IS AS UNDER:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -IV, BARODA HAS ERRED IN LAW AND ON FACTS OF THE CASE BY CONFIRMING THE PENALTY OF RS.1,22,740/- LEVIED U/S 271(1)(C) OF TH E INCOME TAX ACT, 1961 BY THE ASSESSING OFFICER. 2 THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED TH AT THE ASSESSEE HAS SOLD AGRICULTURAL LAND WHICH WAS OUTSI DE THE MUNICIPAL LIMITS OF THE TOWN KARAMSAD AND THAT WA S EXEMPT UNDER THE PROVISIONS OF THE INCOME-TAX ACT. HE SUB MITTED THAT 2 PENALTY PROCEEDINGS ARE INDEPENDENT TO ASSESSMENT P ROCEEDINGS AND THIS PLEA OF THE ASSESSEE THAT IT WAS NOT LIABL E TO CAPITAL GAINS TAX BEING LEGAL IN NATURE, COULD BE RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL. 3 THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THIS P LEA THAT THE AGRICULTURAL LAND WAS OUTSIDE THE MUNICIPAL LIMITS AND WAS EXEMPT FROM LEVY OF CAPITAL GAINS TAX WAS NEVER RAI SED IN THE ASSESSMENT PROCEEDINGS OR EVEN IN THE PENALTY PROCE EDINGS BEFORE THE AO OR IN APPEAL BEFORE THE CIT(A). HE RELIED O N THE ORDER OF THE AO AND THE CIT(A). 3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT THE ASSESSEE HAS DECLARED CAPITAL GAINS AT NIL IN RES PECT OF TRANSFER OF AGRICULTURAL LAND SITUATED AT KARAMSAD IN ITS CO MPUTATION OF INCOME FILED ALONG WITH THE RETURN OF INCOME. AT T HE TIME OF ASSESSMENT THE AO DETERMINED AN AMOUNT OF ` .4,09,155/- AS INCOME UNDER THE HEAD CAPITAL GAINS. THE ASSESSE E HAD NOT PREFERRED ANY APPEAL AGAINST THE ASSESSMENT ORDER. THE PLEA RAISED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS TRANSFERRED THE AGRICULTURAL LAND WHICH WAS OUT SIDE THE MUNICIPAL LIMITS OF KARAMSAD AND, THEREFORE, EXEM PT FROM THE LEVY OF CAPITAL GAINS TAX, WAS NOT RAISED BY THE AS SESSEE DURING THE ASSESSMENT PROCEEDINGS OR DURING THE PENALTY PR OCEEDINGS BEFORE THE AO OR CIT(A). THIS PLEA OF THE ASSESSEE BEING LEGAL IN NATURE COULD WELL BE RAISED FOR THE FIRST TIME B EFORE THE TRIBUNAL. IT IS SETTLED LAW THAT THE ASSESSMENT PR OCEEDINGS AND 3 PENALTY PROCEEDINGS ARE INDEPENDENT IN NATURE. HOW EVER, SINCE THE PLEA THAT THE TRANSACTION OF TRANSFER OF AGRICU LTURAL LAND SITUATED AT KARAMSAD WAS EXEMPT FROM CAPITAL GAIN S TAX BEING OUTSIDE THE MUNICIPAL LIMITS OF KARAMSAD, WAS NOT RAISED BEFORE THE AO OR THE CIT(A), WE CONSIDER IT JUSTIFI ED TO SET ASIDE THE ORDER OF THE AUTHORITIES BELOW TO THE FILE OF T HE AO WITH THE DIRECTION TO DECIDE THE ISSUE OF LEVY OF PENALTY U/ S 271(1)(C) OF THE ACT DE NOVO IN ACCORDANCE WITH LAW AFTER ADJUDI CATING THE PLEA OF THE ASSESSEE THAT IT WAS EXEMPT FROM LEVY O F CAPITAL GAINS TAX AND AFTER AFFORDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE DIRECT ACCORDINGLY. 4 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT TODAY ON 02-12-2011 SD/- SD/- (A K GARODIA) ACCOUNTANT MEMBER (G C GUPTA) VICE-PRESIDENT DATE : 02-12-2011 COPY OF THE ORDER FORWARDED TO: 1. SHRI CHANDRAKANT M PATEL PROP. OF ROSHNI GAS SER VICE, 44A, YOGI PARK, GREED ROAD, ANAND 2. THE INCOME-TAX OFFICER, WARD-1, ANAND 3. CIT CONCERNED 4. CIT(A)-IV, BARODA 5. DR, ITAT, AHMEDABAD BENCH-B, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR I TAT, AHMEDABAD