The Asstt. Commissioner of Income Tax, Circle-5(2), Ahmedabad V. Shri Shah Jigen Harshvadan, HUF, Ahmedabad

ITA 596/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1143 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 09-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Keywords: Sale consideration of property below Jantri Value; Audit objection; Tax effect
• Section: 50C

Judgement Text

ITA NO. 596/AHD/2017 ACIT VS. SHRI SHAH JIGEN HARSHVADAN-HUF ASSESSMENT YEAR: 2013-14 PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND MAHAVIR PRASAD JM] ITA NO.596/AHD/2017 ASSESSMENT YEAR: 2013-14 ACIT ..................APPELLANT CIRCLE-5 (2), AHMEDABAD VS. SHRI SHAH JIGEN HARSHVADAN-HUF ............................RESPONDENT A/2, JATAN FLATS, OPP. GAJJAR HALL, GANDHIBAUG SOCIETY, LAW GARDEN, ELLISBRIDGE, AHMEDABAD [PAN : AACHS 6110 D] APPEARANCES BY: LALIT P JAIN, FOR THE APPELLANT PARIN SHAH, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 12.09.2018 DATE OF PRONOUNCING THE ORDER : 17.09.2018 O R D E R PER PRAMOD KUMAR, AM: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 13.12.2016, PASSED BY THE LEARNED CIT(A ), AHMEDABAD-5 FOR THE ASSESSMENT YEAR 2013-14, ON THE FOLLOWING GROUNDS: (1) THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION OF RS.2,17,373/- MADE BY THE A.O. BY NOT ALLOWING INDE XATION IN RESPECT OF SALE OF ABHISHIP SHOP NO.5 WHILE COMPUTING CAPITAL GAIN. (2) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.93,53,061/- MADE UNDER SECTION 50C OF THE IT ACT . 1961, BY CONSIDERING IMPUGNED SALES CONSIDERATION AS PER THE JANTRI VALU E ON THE DATE OF SALE OF AGREEMENT INSTEAD OF ON THE DATE OF REGISTERED SALE DEED IN ACCORDANCE WITH THE SECTION 50C OF THE ACT WITHOUT VERIFYING WHETHER TH E PAYMENT OF RS. 5 LAKH WAS MADE THOROUGH ACCOUNT PAYEE CHEQUE OR DRAFT BY ELEC TRONIC CLEARING SYSTEM THROUGH A BANK A/C ON OR BEFORE DATE OF AGREEMENT O F SALE. 2. AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PRESENT APPEAL OF THE REVENUE NEEDS TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF THE RECENT CBDT CIRCULAR NO.3 OF 2018 DATED 11.07.2018. LEARN ED COUNSEL FOR THE ASSESSEE ALSO SUBMITS THAT IN THE PRESENT CASE THE TAX EFFECT IS RS.19,30,310/-, AS PER THE WORKING ITA NO. 596/AHD/2017 ACIT VS. SHRI SHAH JIGEN HARSHVADAN-HUF ASSESSMENT YEAR: 2013-14 PAGE 2 OF 2 PLACED ON RECORD, WHICH IS BELOW THE PRESCRIBED LIM IT OF RS.20 LACS. THE LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT TH E TAX EFFECT IS LESS THAN THE LIMIT PRESCRIBED BY THE AFORESAID CBDT CIRCULAR. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT PRIMA-FACIE THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF THE RECENT CBDT CIRCULAR NO. 3/2018 IN F.NO.279/ MISC. 142/2007-ITJ (PT) DATED 11 TH JULY, 2018, VIDE WHICH IT HAS BEEN DECIDED BY THE B OARD THAT NO DEPARTMENTAL APPEALS SHOULD BE FILED BEFORE THE TRIBUNAL IF THE TAX EFFE CT BY VIRTUE OF THE COMMISSIONER OF INCOME-TAX (APPEALS)S ORDER IS BELOW RS. 20 LACS. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (10) OF THE INSTRUCTIONS WHEREIN IT HAS B EEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLICABLE, WHERE THE CONSTITUTIONAL VALIDIT Y OF THE PROVISIONS OF AN ACT/RULE IS UNDER CHALLENGE OR WHERE BOARDS ORDER, NOTIFICATIO N, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT OR WHERE THE ADDITION RELATES TO UND ISCLOSED FOREIGN ASSETS/BANK ACCOUNTS ETC. WE FIND THAT THE PRESENT CASE DOES N OT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX EFFECT IS LESS THAN RS.20 LACS. THERE FORE, THE PRESENT APPEAL IS NOT MAINTAINABLE AND HENCE DISMISSED. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 17 TH SEPTEMBER, 2018 SD/- SD/- MAHAVIR PRASAD PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, THE 17 TH DAY OF SEPTEMBER, 2018 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: ................LOW TAX EFFE CT COVERED BY CBDT CIRCULAR..12.09.2018.... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: .. 12.09.2018..... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: 17.09.2018... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: . 17.09.2018.. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : . 17.09.2018. 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER : . 8. DATE OF DESPATCH OF THE ORDER: ......