ITO,WARD-4(4), Nagpur V. SHRI RAKESH ASHOK SELARKA, Nagpur

ITA 364/NAG/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3099 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 14-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Tax effect

Judgement Text

1 ITA NO. 364/NAG/2013 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. 36 4 /NAG/2013 ASSESSMENT YEAR : 2008 - 09 THE INCOME - TAX OFFICER, SHRI RAKESH ASHOK SELARKA, WARD - 4(4), NAGPUR. VS. NAGPUR. PAN ABNPS8472N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NARENDRA KANE. RESPONDENT : SHRI S.C. THAKAR. DATE OF HEARING : 13 - 01 - 2016 DATE OF PRONOUNCEMENT : 26 TH FEBRUARY, 2016. O R D E R PER MUKUL K. SHRAWAT, J.M. THIS IS AN APPEAL FILED BY THE REVENUE ARISING FROM THE ORDER OF LEARNED CIT(APPEALS) - II, NAGPUR DATED 18 - 07 - 2013 AND THE GROUND RAISED BY THE REVENUE IS REPRODUCED BELOW : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF CAPITAL GAIN ON SALE OF LAND OF RS.7,31,920/ - WITHOUT CONSIDERING THE FACT THAT ASSESSEE IS NOT EARNING AGRICULTURAL INCOME FROM LAND ALSO THE SOLE INTENTION OF THE ASSESSEE IS TO EARN PROFIT ON SALE OF LAND AS THE GROUP IS ENGAGED IN PURCHASE AND SALE OF LANDS AND THE SAID AGRICULTURAL LAND IS SITUATED IN COMMERCIAL VIABLE AREA. 2. WHETHER ON THE FACTS AND CIR CUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN DELETING THE ADDITION OF RS.8,25,000/ - PAID TO SELLERS OF LAND OVER AND ABOVE THE AMOUNT MENTIONED IN SALE DEED WITHOUT CONSIDERING THE CIRCUMSTANTIAL EVIDENCES THAT SELLERS ACCEPTED AT IN 2 ITA NO. 364/NAG/2013 THEIR ORIGIN AL STATEMENTS AND ALSO CASH WAS FOUND DEPOSITED IN THE BANK ACCOUNT OF THE SELLERS. 2. AT THE OUTSET WE HAVE BEEN INFORMED THAT THE TAX EFFECT IN THIS APPEAL OF THE REVENUE IS LESS THAN RS.10 LAKHS. THIS APPEARS TO BE CORRECT BECAUSE THE TAX DEMANDED AS PE R THE INFORMATION AVAILABLE ON RECORD WAS ONLY RS. 9,23,200 / - . ON THIS AMOUNT ADMITTEDLY THE TAX INVOLVED WAS STATED TO BE LESS THAN RS.10 LAKHS. 3. ON THIS ISSUE NOW CBDTS CIRCULAR NO. 21/2015 DATED 10 - 12 - 2015 HAS BEEN BROUGHT TO OUR NOTICE. IN THE SAID CIRCULAR IT HAS BEEN SPECIFIED THAT THE CIRCULAR WOULD HAVE RETROSPECTIVE EFFECT AND THE REVENUE WOULD NOT PRESS AND WOULD WITHDRAW SUCH APPEALS. THERE ARE CERTAIN EXCEPTIONS MENTIONED IN THE SAID CIRCULAR. LEARNED D.R. COULD NOT POINT OUT THAT ANY OF TH ESE CASES ATTRACT THE EXCEPTIONS PROVIDED IN THE SAID CIRCULAR. IN THESE CIRCUMSTANCES, IN THE LIGHT OF THE ABOVE SAID CBDT CIRCULAR, THIS APPEAL IS DISMISSED ON ACCOUNT OF TAX EFFECT IN LIMINE. 3. IN THE RESULT, THIS APPEAL FILED BY THE REVENUE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF FEBRUARY, 2016. SD/ - SD/ - (SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER NAGPUR, DATED: 26 TH FEBRUARY, 2016. 3 ITA NO. 364/NAG/2013 COPY FORWARDED TO : 1. SHRI RAKESH ASHOK SELARKA 179, KRISHSNAKUNJ, QUETA COLONY, NAGPUR - 44008. 2. I.T.O., WARD - 4(4), NAGPUR. 3. COMMISSIONER OF INCOME - TAX - ,NAGPUR. 4. CIT(APPEALS) - II, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER WAKODE. ASSISTANT REGISTRAR, ITAT, NAGPUR