DCIT 17(1), MUMBAI V. PAYARIBEN K. JAIN, MUMBAI

ITA 4638/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70931 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 02-09-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 09-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A C TEJPAL
• Assessee Lawyers: V S AIYAR
• Keywords: Revised return
• Section: 2(14); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH , MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI R AJENDRA SINGH, A M TA N O. 4392 / MUM / 20 1 1 ( ASSESSMENT YEAR : 200 7 - 08 ) PYARIBAI K JAIN, 73, AHMED BLDG., GUN POWDER ROAD, MAZAGAON, MUMBAI - 10. VS. ADL. CIT 17(1), MUMBAI - 12 ( APPELLANT ) .. ( RESPONDENT ) AND TA NO.4 638 /MUM/2011 ( ASSESSMENT YEAR :2007 - 08) ADL. CIT 17(1), MUMBAI - 12 VS. PYARIBAI K JAIN, 73, AHMED BLDG., GUN POWDER ROAD, MAZAGAON, MUMBAI - 10 PAN/GIR NO. : A CMPJ 6562 C ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : MR. V.S.AIYAR /REVENUE BY : MR. A.C . TEJPAL DATE OF HEARING : 2 ND S E PTEMBER , 201 3 DATE OF PRONOUNCEMENT : 4 TH SEPTEMBER , 2013 O R D E R P ER SHRI R.K.G UPTA, JM : THIS COMMON ORDER SHALL GOVERN THE DISPOSAL OF TWO APPEALS, WHICH HAVE BEEN FILED BY THE ASSESSEE AS WELL AS BY THE DEPARTMENT AGAINST THE ORDER OF LEARNED CIT(A) , MUMBAI FOR ASSESSMENT YEAR 2007 - 08 . 2 . GROUNDS NO. 1, 2, 5 & 7, IN THE APPE AL OF THE ASSESSEE HAVE NOT BEEN PRESSED, THEREFORE, THEY ARE DISMISSED AS NOT PRESSED. 3 . GROUNDS NO. 3 & 4 RELATES TO NOT APPRECIATING THE FACT THAT THE RATIO IN GOETZE IS LIMITED TO THE ISSUE OF THE POWERS OF THE AO. GROUND NO. 6 IS CONSEQUENTIAL TO THE GROUNDS NO. 3 & 4 . GROUND NO. 8 RELATES TO TREATING THE DIFFERENCE BETWEEN THE TOTAL CONSIDERATION AND VALUE I TA NO S . 4392 & 4638 /1 1 2 ADOPTED BY THE REGISTERING AUTHORITIES FOR STAMP DUTY PURPOSES AS SHORT TERM CAPITAL GAINS. 4 . THE DEPARTMENT IN ITS APPEAL IS OBJECTING IN HOLDING THAT AGRICULTURAL INCOME HOLD BY THE ASSESSEE COVERED UNDER SECTION 2(14) (III) AND, THEREFORE, NOT LIABLE FOR CAPITAL GAIN. 5 . SINCE COMMON ISSUES ARE INVOLVED IN BOTH THE CASES, THEREFORE, FOR THE SAKE OF CONVENIENCE, BOTH THE CASES HAVE BEEN HEARD AND DISPOSED OF BY THIS CONSOLIDATED ORDER. 6 . IN RESPECT TO GROUND I.E. THE RATIO OF GOETZE INDIA LTD., IS LIMITED TO THE ISSUE OF POWERS OF THE AO, IT WAS SUBMITTED THAT THE ASSESSEE HAS RAISED A LEGAL GROUND BEFORE THE CIT(A) THAT THE COMPENSATION RECEIVED FOR ACQUISITION OF AGRICULTURAL LAND HELD BY THE FATHER OF THE ASSESSEE IS EXEMPT. IT WAS FURTHER SUBMITTED THAT THOUGH THE LEARNED CIT(A ) HAS HELD THAT THE AGRICULTURAL GAIN IS NOT TAXABLE IN VIEW OF THE SECTION 2(14)(III) . HOWEVER, THIS GROUND WAS NOT R AISED BEFORE THE AO, THEREFORE, THE DECISION OF THE HON BLE APEX COURT IN THE CASE OF GOETZE INDIA LTD., REPORTED IN 284 ITR 323 , IS NOT ALLOWABLE AS THE ASSESSEE SHOULD HAVE FILED REVISED RETURN BEFORE THE AO. IT WAS ARGUED THAT IT IS PURELY A LEGAL GROUN D AND SHOULD HAVE BEEN ADMITTED BY THE LEARNED CIT(A) . IT WAS FURTHER SUBMITTED THAT IN CASE OF GOETZE INDIA LTD. (SUPRA) , THE HON BLE SUPREME COURT ITSELF HAS HELD THAT THE LEGAL ISSUES CAN BE RAISED BEFORE THE APPELLATE AUTHORITY. IT WAS ALSO SUBMITTED I N VARIOUS SUBSEQUENT JUDGMENTS IT HAS BEEN HELD THAT IF A LEGAL ISSUE IS I TA NO S . 4392 & 4638 /1 1 3 RAISED BEFORE THE APPELLATE AUTHORITY, THEN IT IS TO BE ADMITTED. ACCORDINGLY, IT WAS SUBMITTED THAT THE LEGAL GROUND SHOULD HAVE BEEN ACCEPTED BY THE LEARNED CIT(A) . 7 . ON THE OTHER HAND, LEARNED DR PLACED RELIANCE ON THE ORDER OF CIT(A ) , HOWEVER, IT WAS SUBMITTED THAT IF IT IS ADMITTED THEN THE MATTER SHOULD BE SENT BACK TO THE FILE OF THE CIT(A) TO DECIDE THE ISSUE AFRESH. 8. LEARNED COUNSEL OF THE ASSESSEE HAS NOT OBJECTED TO T HE ABOVE CONTENTION OF THE LEARNED DR . 9. AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE DESERVES TO SUCCEED ON THE LEGAL ISSUE. 10. THIS IS UNDISPUTED FACT THAT IF THE LEGAL GROUND HAS BEEN RAISED IN THE APPELLATE PROCEEDING, THAT HAS TO BE ADMITTED AS HELD BY THE HON BLE SUPREME COURT IN THE CASE OF NTPC LTD. WE FURTHER NOTED THAT EVEN IN THE CASE OF GOETZE INDIA LTD. (SUPRA) , THE HON BLE SUPREME COURT HAS ITSELF HELD THAT THE AO CANNOT ALLOW THE CLAIM WI THOUT FILING REVISED RETURN, HOWEVER, BEFORE APPELLATE AUTHORITY THE ASSESSEE CAN RAISE AFRESH. IN VIEW OF THESE FACTS AND CIRCUMSTANCES OF THE CASE, WE HOLD THAT THE ASSESSEE WAS RIGHT IN RAISING THE LEGAL ISSUE BEFORE THE CIT(A) AND HE SHOULD HAVE ADMITT ED. ACCORDINGLY, WE DIRECT THE CIT(A) TO ADMIT THE ISSUE RAISED BEFORE HIM. SINCE WE HAVE ALLOWED THE LEGAL GROUND IN FAVOUR OF THE ASSESSEE, THEREFORE, WE ARE OF THE VIEW THAT THE I TA NO S . 4392 & 4638 /1 1 4 ENTIRE MATTER SHOULD GO BACK TO THE FILE OF THE LEARNED CIT(A) TO PASS A FR ESH IN RESPECT TO THE ISSUE ON MERIT. ACCORDINGLY, THE APPEAL OF THE DEPARTMENT AS WELL AS THE ISSUES INVOLVED IN THE APPEAL OF THE ASSESSEE ARE SET ASIDE TO THE FILE OF THE LEARNED CIT(A) . 1 1 . RESULTANTLY , APPEAL OF THE ASSESSEE IS ALLOWED IN PART AND PARTLY FOR STATISTICAL PURPOSES AND THE APPEAL OF THE DEPARTMENT IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 4 TH DAY OF SEPT . 201 3 . SD/ - ( ) ( R AJENDRA SINGH ) SD/ - ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 04 / 09/2013 /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE C I T(A) , MUMBAI . 4. / C I T 5. / DR, ITAT, MUMBAI . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( /ASSTT. REGISTRAR) / ITAT, MUMBAI