ACIT, UDAIPUR V. Smt. Mohan Devi Doshi, UDAIPUR

ITA 422/JODH/2014

• Counselvise Citation: 42223314 RSA 2014
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 06-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MAURYA
• Assessee Lawyers: ANUP BHATIA
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.C. GUPTA G.C. GUPTA G.C. GUPTA G.C. GUPTA, , , , HONBLE HONBLE HONBLE HONBLE VICE VICE VICE VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI R.C. SHARMA R.C. SHARMA R.C. SHARMA R.C. SHARMA, , , , HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 422/JODH/2014 422/JODH/2014 422/JODH/2014 422/JODH/2014 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2008 2008 2008 2008 - -- - 09 0909 09 ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -2 22 2, ,, , UDAIPUR. UDAIPUR. UDAIPUR. UDAIPUR. VS. VS. VS. VS. SMT. MOHAN DEVI DOSHI, SMT. MOHAN DEVI DOSHI, SMT. MOHAN DEVI DOSHI, SMT. MOHAN DEVI DOSHI, 15, BHATT JI KI BARI, 15, BHATT JI KI BARI, 15, BHATT JI KI BARI, 15, BHATT JI KI BARI, UDAIPUR. UDAIPUR. UDAIPUR. UDAIPUR. PAN : AAZPD7821M. PAN : AAZPD7821M. PAN : AAZPD7821M. PAN : AAZPD7821M. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.L. MAURYA, D.R. RESPONDENT BY : SHRI ANUP BHATIA, CA. DATE OF HEARING : 04.09.2015 04.09.2015 04.09.2015 04.09.2015 DATE OF PRONOUNCEMENT: 04.09.2015 04.09.2015 04.09.2015 04.09.2015 ORDER ORDER ORDER ORDER PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT : :: : THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 2008-09 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A), UDAIP UR DATED 28 TH MAY, 2014. 2. THE ONLY GROUND OF APPEAL OF THE REVENUE IS AS U NDER:- ON THE FACTS AND IN THE PRESENT CIRCUMSTANCES OF T HE CASE, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDIT ION MADE BY THE AO TREATING THE BUSINESS INCOME UNDER T HE HEAD CAPITAL GAIN WITHOUT APPRECIATING THE FACTS TH AT THE ASSESSEE WAS NOT ENGAGED IN TRADING OF LAND AS IS EVIDENCED FROM THE PERUSAL OF BALANCE SHEETS OF PREVIOUS YEARS AS WELL AS SUBSEQUENT YEARS AND ITA-422/JODH/2014 2 THEREFORE THE ASSESSING OFFICER HAS RIGHTLY COMPUTE D THE INCOME FROM CAPITAL GAIN ON SALE OF LAND INSTEA D OF BUSINESS INCOME. 3. LEARNED DR HAS RELIED ON THE ORDER OF THE ASSESS ING OFFICER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E PERUSED THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT( A). WE FIND THAT THE ASSESSEE HAS SOLD THE PROPERTY WHICH SHE HAS PURCHA SED ON 19 TH OCTOBER, 2006 AND THE PROFIT ON SUCH SALE WAS DECLA RED IN THE RETURN OF INCOME FILED UNDER THE HEAD INCOME FROM BUSINESS TR EATING THE SAID PROPERTY AS STOCK IN TRADE, WHEREAS THE ASSESSING O FFICER TREATED THE SAID PROPERTY AS ASSET. THE CASE OF THE ASSESSING OFFICER WAS THAT THE PROPERTY WAS SHOWN AS ASSET BY THE ASSESSEE IN TH E BALANCE SHEET. THE CIT(A) HAS GIVEN A FINDING THAT THESE OBSERVATI ONS OF THE ASSESSING OFFICER DO NOT APPEAR TO BE CORRECT BECAUSE ON GOIN G THROUGH THE COPY OF THE BALANCE SHEET FILED FOR THE YEAR ENDING 31.0 3.2007, IT IS SEEN THAT THE ASSESSEE HAS SHOWN TWO PROPERTIES PURCHASE D ON 13.04.2006 AND 19.10.2006 AS ON 01.04.2007 AND THE ASSESSEE HA S SOLD ONE PROPERTY OUT OF THESE TWO AND ONE PROPERTY STILL RE MAINS AS STOCK IN TRADE. LEARNED CIT(A) HAS RECORDED THAT THE ASSES SING OFFICER COULD NOT LAY DOWN ANY CONDITION THAT THE ASSESSEE HAS TO SHOW ALL THE PROPERTIES AS STOCK IN TRADE FOR TREATING THE PROPE RTY SOLD AS STOCK IN TRADE BECAUSE IT IS FOR THE ASSESSEE TO DECIDE WHIC H PROPERTY IS TO BE CONSIDERED AS STOCK IN TRADE FOR TRADING PURPOSE AN D FOR INVESTMENT PURPOSE. THESE FINDINGS OF THE LEARNED CIT(A) COUL D NOT BE CONTROVERTED ON BEHALF OF THE REVENUE. IN THESE FA CTS OF THE CASE, SINCE THE FINDING OF THE LEARNED CIT(A) IS THAT THE ASSESSEE HAS SHOWN THE PROPERTY IN QUESTION AS STOCK IN TRADE, WE HOLD THAT THERE IS NO ITA-422/JODH/2014 3 MISTAKE IN THE ORDER OF THE LEARNED CIT(A), WHICH I S ACCORDINGLY CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE I S DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 4 TH SEPTEMBER, 2015. SD/- SD/- ( (( ( R.C. SHARMA R.C. SHARMA R.C. SHARMA R.C. SHARMA ) )) ) (G. (G. (G. (G. C. GUPTA C. GUPTA C. GUPTA C. GUPTA ) )) ) ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -2, UDAIPUR. 2, UDAIPUR. 2, UDAIPUR. 2, UDAIPUR. 2. RESPONDENT : SMT. MOHAN DEVI DOSHI, SMT. MOHAN DEVI DOSHI, SMT. MOHAN DEVI DOSHI, SMT. MOHAN DEVI DOSHI, 15, BHATT JI KI BARI, UDAIPUR. 15, BHATT JI KI BARI, UDAIPUR. 15, BHATT JI KI BARI, UDAIPUR. 15, BHATT JI KI BARI, UDAIPUR. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR