Shri Rajeshkumar C. Patel, Ahmedabad V. The Income Tax Officer, Ward-9(1), Now Ward-1(3)(4), Ahmedabad

ITA 564/AHD/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8258 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 04-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A C SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI S. S. GODARA, JUDICIAL MEMBER ) ITA. NOS: 564 & 565/AHD/2016 S.P. NOS. 126 & 127/AHD/2017 (ASSESSMENT YEAR: 2009-10) RAJESHKUMAR C. PATEL, 109, SHANKER NIVAS, USMANPURA GAM, AHMEDABAD-380014 RAJESHKUMAR C. PATEL, 109, SHANKER NIVAS, USMANPURA GAM, AHMEDABAD-380014 V/S V/S THE I.T.O., WARD-1(3)(4), AHMEDABAD THE I.T.O., WARD-1(3)(4), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AERPP0105J APPELLANT BY : SHRI A.C. SHAH, AR RESPONDENT BY : SHRI MUDIT NAGPAL, SR. D.R. ( )/ ORDER DATE OF HEARING : 01-11-201 7 DATE OF PRONOUNCEMENT : 14 -11-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NOS. 564 & 565/AHD/2016 & S.P. NOS. 126 & 127/AHD/2017 . A.Y. 2009-10 2 1. ITA NO. 564/AHD/2016 IS APPEAL BY THE ASSESSEE PREF ERRED AGAINST THE ORDER OF THE LD. CIT(A)-10, AHMEDABAD DATED 01.02.2016 PERTA INING TO A.Y. 2009-10 AND WITH ITA NO. 565/AHD/2016, THE ASSESSEE HAS CHALLEN GED THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT WHICH WAS CONFIRMED BY TH E LD. CIT(A)-10, AHMEDABAD VIDE ORDER DATED 02.02.2016 FOR A.Y. 2009-10. WE WI LL FIRST TAKE UP IN ITA NO. 564/AHD/2016. 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE ASSES SEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ASSESSMENT BY WHICH THE SHO RT TERM CAPITAL GAIN ON SALE OF AGRICULTURE LAND IS INCLUDED IN TOTAL INCOM E FOR THE YEAR UNDER CONSIDERATION. 3. THE MAIN CONTENTION OF THE ASSESSEE IS THAT THE SHO RT TERM CAPITAL GAIN RELATES TO A.Y. 2008-09 AND NOT A.Y. 2009-10, SINCE THE SAL E DEED WAS EXECUTED ON 31.03.2008 AND THE STAMP DUTY WAS PAID ON 29.03.200 8. 4. A PERUSAL OF THE ORDERS OF THE AUTHORITIES BELOW S HOWS THAT THE ASSESSEE HAD PURCHASED A LAND SITUATED AT SOLA, TALUKA: DASKROI ADMEASURING 4047 SQ. MT. ON 23.02.2007. THE SAME LAND WAS SOLD ON 27.05.208 AT RS. 68,79,900/-. THE A.O. FOUND THAT THE ASSESSEE HAS NOT FILED HIS RETU RN OF INCOME DECLARING THE CAPITAL GAIN OF RS. 65,99,900/- ARISING OUT OF THE SALE OF SAID LAND. THE A.O. TREATED THE INCOME ON ACCOUNT OF CAPITAL GAINS FOR THE YEAR UNDER CONSIDERATION. ITA NOS. 564 & 565/AHD/2016 & S.P. NOS. 126 & 127/AHD/2017 . A.Y. 2009-10 3 5. WE FIND THAT THE SALE DEED WAS EXECUTED ON 31.03.20 08 AND THE STAMP DUTY WAS PAID ON 29.03.2008. THE ASSESSEE HAD HANDED OVE R THE POSSESSION OF THE PROPERTY TO THE PURCHASERS AND HAS RECEIVED A SUM O F RS. 30 LAKHS ON 14.03.2008. SINCE THE POSSESSION OF THE PROPERTY WA S HANDED OVER BY THE ASSESSEE TO THE PURCHASERS AND HAS RECEIVED A SUBST ANTIAL AMOUNT TOWARDS SALE CONSIDERATION TRANSFER UNDER THE PROVISIONS OF SECT ION 2(47) OF THE ACT FOR CAPITAL GAINS TAX LIABILITY HAS TAKEN PLACE. THIS M EANS THAT THE SALE TRANSACTION PERTAINS TO F.Y. 2007-08 RELEVANT TO A.Y. 2008-09. MERELY BECAUSE THE SALE DEED WAS REGISTERED ON 23.05.2008 WOULD NOT MAKE TH E TRANSACTION FALL IN F.Y. 2008-09 RELEVANT TO A.Y. 2009-10. 6. ON THE GIVEN FACTS OF THE CASE, IN OUR CONSIDERED O PINION, THE CAPITAL GAINS TAX LIABILITY PERTAINS TO A.Y. 2008-09 AND THE SAME CAN NOT BE TAXED IN A.Y. 2009-10. THEREFORE, TAXING THE SHORT TERM CAPITAL GAINS TAX LIABILITY IN A.Y. 2009-10 IS BAD IN LAW AND AGAINST THE FACTS OF THE CASE, THE S AME HAS TO BE CONSIDERED IN A.Y. 2008-09. WITH THESE OBSERVATIONS, WE DIRECT TH E A.O. TO DELETE THE CAPITAL GAINS FROM THE TOTAL INCOME FOR THE YEAR UNDER CONS IDERATION. APPEAL FILED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. ITA NO. 565/AHD/2016 FOR A.Y. 2009-10 7. SINCE, WE HAVE DELETED THE ADDITIONS IN ITA NO. 564 /AHD/2016 (SUPRA), THERE REMAINS NOTHING FOR THE LEVY OF PENALTY U/S. 271(1) (C) OF THE ACT. WE ACCORDINGLY DIRECT THE A.O. TO DELETE THE PENALTY S O LEVIED. ITA NOS. 564 & 565/AHD/2016 & S.P. NOS. 126 & 127/AHD/2017 . A.Y. 2009-10 4 S.P. NOS. 126 & 127/AHD/2017 FOR A.Y. 2009-10 8. SINCE THE QUANTUM ADDITION STAND DECIDED, THESE STA Y PETITIONS BECOMES OTIOSE AND NEEDS NO SEPARATE ADJUDICATION. ORDER PRONOUNCED IN OPEN COURT ON 14 - 11- 2 017. SD/- SD/- (S.S. GODARA) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY A CCOUNTANT MEMBER AHMEDABAD: DATED: 14/11/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AH MEDABAD