Shri Govindbhai S. Patel, HUF, Ahmedabad V. The Income Tax Officer, Ward-6(5), Ahmedabad

ITA 60/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8199 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 09-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D S AGRAWAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Additional evidence; Fair market value
• Section: 50C; 234B; 147; 37; 263

Judgement Text

, , ,, ,L LL L- -- -,E ,E,E ,E- -- -LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD OLHE VGEN] YS[ OLHE VGEN] YS[ OLHE VGEN] YS[ OLHE VGEN] YS[KK LNL; KK LNL; KK LNL; KK LNL; , BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ I.T.A. NO.60/AHD/2017 ( / ASSESSMENT YEAR : 2009-10) GOVINDBHAI S. PATEL HUF, 20, KASHI VISHWANATH SOCIETY, RANIP, AHMEDABAD. / VS. THE INCOME TAX OFFICER, WARD 6(5) BLOCK A, 5 TH FLOOR, PRATYAKSHAKAR BHAWAN, AMBAWADI, AHMEDABAD. ./ ./ PAN/GIR NO. : AACHG 2687 K ( / APPELLANT ) .. ( !' / RESPONDENT ) # / APPELLANT BY : SHRI D. S. AGRAWAL, A. R. !' $ # / RESPONDENT BY : SHRI V. K. SINGH, SR. D. R. % &' $ () / DATE OF HEARING 25/05/2018 *+,- $ () / DATE OF PRONOUNCEMENT 08/06/2018 . / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE APPELLATE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-10, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)- 10/ITO-WARD-2(2)(2)/158/16-17 DATED 26/10/2016 ARIS ING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3) OF THE INCOM E TAX ACT, 1961 ITA NO.60/AHD/2017 GOVINDBHAI SOMAB HAI PATEL VS. ITO ASST.YEAR 2009-10 - 2 - (HEREINAFTER REFERRED TO AS 'THE ACT') DATED 27/12 /2011 RELEVANT TO ASSESSMENT YEAR (AY) 2009-10. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER:- THE ORDER OF LD. CIT(A)-10 CONFIRMING THE ORDER OF AO IS BAD IN LAW AS WELL ON FACTS ON THE FOLLOWING GROUNDS: 1. THE LD. CIT(A) HAS ERRED IN CONFIRMING DISALLOWANCE OF LTCG MADE BY AO OF RS.8,60,120/- U/S.50C OF IT ACT ON THE GRO UND OF DIFFERENCE BETWEEN SALE PRICE AND STAMP DUTY VALUATION. 2. THE LD. CIT(A) HAS ERRED IN CONFIRMING INTEREST CHA RGES BY AO U/S.234B & 234C OF INCOME TAX ACT, 1961. 3. THE ASSESSEE CRAVES FOR LIBERTY TO AMEND, MODIFY AN D ADD ANY GROUNDS OF APPEAL OR FURNISH ADDITIONAL EVIDENCES. 3. THE FIRST ISSUE RAISED BY THE ASSESSEE IN THIS A PPEAL IS THAT LEARNED CIT(A) ERRED IN CONFIRMING THE ORDER OF THE AO BY S USTAINING THE DISALLOWANCE OF RS. 8,60,120/- U/S 50C OF THE ACT. 4. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IN TH E PRESENT CASE IS HUF AND DERIVING HIS INCOME FROM BUSINESS AND OTHER SOU RCES. THE ASSESSEE DURING THE YEAR HAD SOLD A LAND BEARING SURVEY NO.7 63 LOCATED AT VILLAGE KARANNAGAR FOR RS. 50,00,000/- DATED 16-07-2008. TH E SHARE OF THE ASSESSEE IN THE PROPERTY WAS 1/5 TH I.E. 20% ONLY. ACCORDINGLY, THE ASSESSEE OFFERED THE LONG-TERM CAPITAL GAIN FOR HIS SHARE OF PROFIT IN ITS INCOME TAX RETURN. ITA NO.60/AHD/2017 GOVINDBHAI SOMAB HAI PATEL VS. ITO ASST.YEAR 2009-10 - 3 - HOWEVER, THE AO DURING THE ASSESSMENT PROCEEDINGS O BSERVED THAT VALUE OF THE PROPERTY FOR STAMP DUTY PURPOSE WAS ASCERTAI NED AT RS.93,00,600/- ONLY. THEREFORE, THE SAME SHOULD BE ADOPTED FOR CAP ITAL GAIN COMPUTATION UNDER THE PROVISION OF SECTION 50C OF THE ACT. ACCO RDINGLY, THE AO WORKED OUT THE SHARE OF THE ASSESSEE IN THE LONG-TE RM CAPITAL GAIN INCOME OF RS. 8,60,120/- BEING 20% OF RS.43,00,600/- (93,0 0,600 50,00,000) AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL TO LEARN ED CIT(A) WHO HAS CONFIRMED THE ORDER OF AO AFTER HAVING RELIANCE ON THE ORDER OF LEARNED CIT(A)-11 IN RESPECT OF OTHER PARTIES. THE RELEVANT EXTRACT OF THE ORDER IS REPRODUCED BELOW: DECISION THE SUBMISSION MADE BY THE APPELLANT HAVE BEEN GONE THROUGH THE AND PLACED ON RECORD. THE MATTER WAS ALSO DISCUSSED AT LENGTH WITH THE AUTHORIZED REPRESENTATIVE OF APPELLANT. THE ASSESSM ENT ORDER PASSED BY THE AO WAS ALSO PERUSED. THE APPELLANT IS HAVING 20% SHARE IN THE IMPUGNED P ROPERTY. THE OTHER 80% SHARE INTEREST IN THIS PROPERTY IS HELD BY OTHE R CO-OWNERS. IN THE CASE OF OTHER CO-OWNERS, LEARNED CIT(A-11), AHMEDAB AD HAD DECIDED THIS ISSUE AGAINST THE APPELLANT ON THE SAME FACTS. IN THE CASE OF SHRI ASHWIN KUMAR G. PATEL (HUF), THE RELEVANT PORTION O F THE CIT(A)S ORDER IS REPRODUCED AS UNDER: I HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. IT IS SEEN THAT THE PROPERTY JOINTLY HELD BY FIVE CO-OWNERS WAS ACT UALLY REGISTERED ON 16-07-2008 I.E. DURING F.Y. 2008-09 F OR WHICH THE FAIR MARKET VALUE FOR REGISTRATION PURPOSE WAS RS.9 3,00,600/-. IF THE APPELLANTS CONTENTION IS THAT IT HAS EXECUTED THE SALE DEED ON 31-03-2008 AND THE STAMP DUTY WAS ALSO PAID ON THE SAME DATE. THE APPELLANTS CONTENTION IS CONSIDERED TO BE CORR ECT THEN THE ITA NO.60/AHD/2017 GOVINDBHAI SOMAB HAI PATEL VS. ITO ASST.YEAR 2009-10 - 4 - STAMP DUTY PAYABLE AS ON 31-03-2008 WOULD BE 4.9% O F RS.50,00,000/- WHICH COMES TO RS.2,45,000/-. HOWEVE R, IT IS SEEN THAT EVEN ON 31-03-2008 THE STAMP DUTY PAID BY THE APPELLANT WAS RS.4,57,000/- WHICH IS 4.9% OF THE FAIR MARKET VALUE (93,00,600) ADOPTED BY THE REGISTRAR FOR F.Y. 2008- 09. THE APPELLANTS CONTENTION THAT THE DOCUMENTS WERE SUBM ITTED IN THE OFFICE OF REGISTRAR ON 31-03-2008 DOES NOT CARRY AN Y VALUE BECAUSE THERE WAS NO DEFAULT ON PART OF THE REGISTR AR IN REGISTERING THE DOCUMENTS. THE DELAY TOOK PLACE ON PART OF THE STAKE HOLDERS I.E. SELLERS (APPELLANT) AND PURCHASE RS, THE VERY FACT THAT APPELLANT HAS CHOSEN TO PAY STAMP DUTY ON THE AMOUNT OF RS.93,00,600/- MAKES IT CLEAR THAT HE WAS AWARE THAT REGISTRATION WOULD BE ACTUALLY DONE IN THE NEXT FIN ANCIAL YEAR I.E 2008-09 AND THEREFORE THE NEW FAIR MARKET VALUE WOU LD BE APPLICABLE FOR REGISTER THE LAND SALE. AT THIS JUNC TURE IT IS RELEVANT TO REPRODUCE THE PROVISIONS OF SECTION 50C OF THE INCOME TAX ACT. (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUING A S A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, IS LESS THAN THE VA LUE ADOPTED OR ASSESSED OR ASSESSABLE BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREINAFTER IN THIS SECTION REFER RED TO AS THE STAMP VALUATION AUTHORITY) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED OR ASSESSABLE SHALL, F OR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VA LUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECT ION (1), WHERE- (A) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICE R THAT THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION. (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY A S ON THE DATE OF TRANSFER. (B) THE VALUE SO ADOPTED OR ASSESSED OR ASSESSABLE BY THE STAMP VALUATION AUTHORITY UNDER SUB-SECTION (1) HAS ITA NO.60/AHD/2017 GOVINDBHAI SOMAB HAI PATEL VS. ITO ASST.YEAR 2009-10 - 5 - NOT BEEN DISPUTED IN ANY APPEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BEFORE ANY OTHER AUTHORITY, COURT OR THE HIGH COURT, THE ASSESSING OFFICER MAY REFER THE VALUATION OF THE CAPITAL ASSET TO A VALUATION OFFIC ER AND WHERE ANY SUCH REFERENCE IS MADE, THE PROVISIONS OF SUB- SECTIONS (2), (3)(4), (5) AND (6) OF SECTION 16A, C LAUSE (I) OF SUB SECTION (1) AND SUB-SECTION (6) AND (7) OF S ECTION 23A, SUB SECTION (5) OF SECTION 24, SECTION 34AA, S ECTION 35 AND SECTION 37 OF THE WEALTH TAX ACT, 1957 (27 O F 1957), SHALL, WITH NECESSARY MODIFICATIONS, APPLY I N RELATION TO SUCH REFERENCE AS THEY APPLY IN RELATIO N TO A REFERENCE MADE BY THE ASSESSING OFFICER UNDER SUB-S ECTION (1) OF SECTION 16A OF THE ACT. EXPLANATION 1- FOR THE PURPOSE OF THIS SECTION, VA LUATION OFFICER SHALL HAVE THE SAME MEANING AS IN CLAUSE ( R) OF SECTION 2 OF THE WEALTH-TAX ACT, 1957 (27 OF 1957). EXPLANATION 2- FOR THE PURPOSE OF THIS SECTION, THE EXPRESSION ASSESSABLE MEANS THE PRICE WHICH THE S TAMP VALUATION AUTHORITY WOULD HAVE, NOTWITHSTANDING ANY THING TO THE CONTRARY CONTAINED IN ANY OTHER LAW FOR THE TIME BEING IN FORCE, ADOPTED OR ASSESSED, IF IT WERE REF ERRED TO SUCH AUTHORITY FOR THE PURPOSES OF THE PAYMENT OF S TAMP DUTY. (3) SUBJECT TO THE PROVISIONS CONTAINED IN SUB-SECT ION (2), WHERE THE VALUE ASCERTAINED UNDER SUB-SECTION (2) EXCEEDS THE VALUE ADOPTED OR ASSESSED OR ASSESSABLE BY SUCH AUTHORITY SHALL BE TAKEN AS THE FULL VALUE F T HE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF T HE TRANSFER. FROM THE PLAIN READING OF THE PROVISIONS IT IS SEEN THAT IT IS A SPECIAL PROVISION FOR FULL VALUE OF CONSIDERAT ION ACCORDING TO WHICH WHEN THE TRANSACTION VALUE IS LESS THAN THE V ALUE ADOPTED BY STAMP VALUATION AUTHORITY THEN SUCH VALUE HAS TO BE TAKEN TO REPLACE THE TRANSACTION VALUE. ITA NO.60/AHD/2017 GOVINDBHAI SOMAB HAI PATEL VS. ITO ASST.YEAR 2009-10 - 6 - THE APPELLANTS CLAIM IS THAT SINCE IT HAD SUBMITTE D THE DOCUMENTS ON 31-03-2007 THEREFORE, THE FAIR MARKET VALUE FOR FINANCIAL YEAR 2007-08 SHOULD BE APPLICABLE AND NOT THE FAIR MARKET VALUE FOR F.Y. 2008-09 IS NOT ACCEPTABLE. IF APPELLANT WANTS TO CONTEND THAT TRANSACTION HAD TAKEN PLACE I N THE F.Y. 2007-08 HE SHOULD HAVE SHOWN THE LONG TERM CAPITAL GAIN ON THE BASIS OF TRANSACTION VALUE IN A.Y. 2008-09. HOW EVER, THE APPELLANT CHOSEN TO DISCLOSE THE L.T.C.G. ONLY IN A .Y. 2009-10. THIS CLEARLY INDICATE THAT THE APPELLANT HIMSELF HA S ACCEPTED THAT THE PROPERTY TRANSACTION HAS BEEN ENTERED INTO DURI NG F.Y. 2008- 09 AND THEREFORE THERE SHOULD NOT BE NO DISPUTE AS TO WHY THE VALUATION FOR EARLIER YEAR SHOULD BE APPLICABLE. TH E APPELLANT HAS RELIED ON THE DECISION OF CIT VS. KISHANCHAND C HETIAR 125 ITR 713 TO CONTEND THAT A COPY OF VALUATION MADE BY THE AO WAS NOT SUPPLIED T HIM. IN THIS REGARD, IT IS SEEN THAT THE STAMP DUTY PAID ON THE DOCUMENT HAS BEEN WORKED OUT ON A VALUE OF RS.93,00,600/- WHICH IS THE VALUE PROVIDED BY THE S TAMP VALUATION AUTHORITY TO THE AO . THE APPELLANT WAS W ELL AWARE OF THIS VALUE AS HE HAD PAID STAMP DUTY ON THE SAME. T HEREFORE, THE APPELLANTS CONTENTION THAT A COPY OF THE VALUATION MADE BY THE AO WAS NOT SUPPLIED TO HIM IS NOT CORRECT. AOS ACT ION IN OBTAINING THE COPY OF VALUATION CAN BE AT THE MOST TREATED AS A PROCESS OF VERIFICATION. THE RATE STATED BY THE STA MP VALUATION AUTHORITY WAS IN LINE WITH THE RATE ADOPTED BY PAYM ENT OF STAMP DUTY BY THE APPELLANT FOR REGISTRATION OF THE DOCUM ENTS. THERE BEING NO DISCREPANCY, THERE WAS NO REQUIREMENT ON P ART OF THE AO TO GIVE THE COPY OF THE VALUATION OBTAINED FROM REGISTRAR TO THE APPELLANT. THE APPELLANT HAS ALSO RELIED ON THE DECISION OF IT AT HYDERABAD BENCH IN THE CASE OF DCIT VS. VENKAT REDD Y (2013) 32 TAXMANN.COM 324 (HYD. TRIB). THE FACTS OF THE CA SE OF ARE DIFFERENT. THE LTCG WAS OFFERED IN THE YEAR OF TRAN SACTIONS WHEREAS IN THE CASE OF APPELLANT THE LTCG HAS BEEN OFFERED FOR TAXATION IN THE YEAR WHEN THE PROPERTY HAS BEEN FIN ALLY REGISTERED. SINCE THE FACTS OF THE CASE ARE SAME AS THAT OF THE OTHER CASES, RESPECTFULLY FOLLOWING THE JUDGMENT OF THE CIT(A), IT IS HELD THAT THE ITA NO.60/AHD/2017 GOVINDBHAI SOMAB HAI PATEL VS. ITO ASST.YEAR 2009-10 - 7 - PROVISION OF SECTION 50C WOULD BE APPLICABLE ON THE DATE ON WHICH WHEN THE SALE AGREEMENT WAS REGISTERED ON 16/07/200 8 AND THEREFORE THE ADDITION MADE BY THE AO IS CONFIRMED. THIS IS I N VIEW OF THE FACT THAT THE APPELLANT HAS RECEIVED THE SALES CONSIDERATION ON AFTER 11-07-2008, EVEN THOUGH, THE POST DATED CHEQUES WERE GIVEN TO T HE APPELLANT IN THE MONTH OF MARCH, 2008. SINCE THE APPELLANT HAS NOT R ECEIVED ANY PAYMENT WHATSOEVER BY 31/03/2008, THE 50C VALUATION HAS TO BE TAKEN WHEN THE SALE DEED IS REGISTERED/PAYMENT IS RECEIVE D BY THE APPELLANT. THE RELIANCE OF THE APPELLANT IN THE CASE OF DHARAM SHIBHAI SOMANI, ACIT, SURAT OF HONBLE ITAT, AHMEDABAD BENC H WOULD NOT BE APPLICABLE TO THE FACTS OF THE CASE, AS THE APPELLA NT HAD NOT RECEIVED ANY PAYMENT WHATSOEVER BY 31-03-2008. HENCE, THE FACTS OF THE CASE ARE DISTINGUISHABLE. THE RELIANCE OF THE APPELLANT ON THE JUDGMENT OF HO NBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT-II, AGRA VS . SHIMBHU MEHRA 65, TAXMAN.COM, 142 (ALLAHABAD) ALSO WOULD NOT HELP THE CASE OF THE APPELLANT AS NO PAYMENT WHATSOEVER HAS BEEN RECEIVE D BY THE APPELLANT ON OR BEFORE 31-03-2008. IN THIS CASE, THE APPELLAN T HAD RECEIVED PART PAYMENT BEFORE THE POSSESSION OF THE LAND WAS TRANS FERRED. SINCE THE PAYMENT HAD NOT BEEN RECEIVED BY THE APPELLANT ON O R BEFORE 31-03- 2008 IN THIS CASE, THE SAME IS NOT APPLICABLE TO TH E FACTS OF THE CASE. IN VIEW OF THE ABOVE, IT IS HELD THAT THE AO HAS RI GHTLY APPLIED THE PROVISIONS OF SECTION 50C OF THE INCOME TAX ACT AND THEREFORE, THE GROUND NO.1 OF THE APPELLANT IS DISMISSED. BEING AGGRIEVED BY ORDER OF LEARNED CIT(A) ASSESSEE IS IN APPEAL BEFORE US. LEARNED AR BEFORE US SUBMITTED AS UNDER: IT WAS CLAIMED THAT THE LAND SOLD FALLS IN A.Y. 20 08-09, SINCE SALE DEED WAS EXECUTED, STAMP DUTY WAS PAID, REGISTRATION FEE S PAID AND POSSESSION OF THE LAND WAS GIVEN TO THE BUYER ON 31 /03/2008. THE A.O. HAD RE-OPENED THE ASSESSMENT IN A.Y. 2009-10 ON THE BASIS OF REGISTRATION OF SALE DEED ON 16/07/2008. THE LAND IS OWNED BY 5 CO-OWNERS INCLUDING APPELLAN T. IN CASE OF OTHER 4 CO-OWNERS SAME ISSUE WAS INVOLVED AND IN THOSE CA SES SAME ITA NO.60/AHD/2017 GOVINDBHAI SOMAB HAI PATEL VS. ITO ASST.YEAR 2009-10 - 8 - ADDITIONAL GROUND WAS RAISED. HON. SMC BENCH HAVE V IDE ITA NO. 520 TO 523/AHD/2014 DECIDED THE APPEALS AS UNDER: 6. 'SINCE THE SALE HAS TAKEN PLACE IN F.Y. 2007-08 PERTAINING TO A.Y. 2008-09, THE CAPITAL GAINS, IF ANY, HAVE TO BE TAXED IN A.Y. 2008-09. WE FIND THAT THE APPELLANTS HAVE DISCLOSED THE CAPITAL GAINS IN A.Y. 2009-10 WHICH IS NOT THE PROPER YEAR FOR THE TAXABILITY OF CAPITAL GAINS.' 7. 'WE ACCORDINGLY RESTORE THE ISSUE TO THE FILES O F THE A.O. THE A.O. IS DIRECTED TO DETERMINE THE CAPITAL GAIN TAX LIABILITY AS PER THE PROVISIONS OF THE LAW IN A.Y. 2008-09.THE A.O. IS DIRECTED TO ALLOW CREDIT OF TAXES, IF ANY, PAID RELATING TO THE SALE OF THE IMPUGNED LAND IN A. Y. 2008-09. EVEN IF THE SAID TA X HAS BEEN PAID BY THE APPELLANTS IN A. Y. 2009-10.' THE COPY OF THE APPELLATE ORDER OF HON. SMC BENCH W AS GIVEN TO YOUR HONORS DURING THE COURSE OF HEARING OF APPEAL ON 25 /05/2018. ACCORDINGLY THE ISSUE INVOLVED IN APPEAL BEFORE YOUR HONORS IS COVERED BY SAID DECISION. 2. DURING THE COURSE OF HEARING THE A.R. HAD BROUG HT TO THE KIND NOTICE OF HON. BENCH THAT IN CASE OF OTHER CO-OWNER S FOR GIVING EFFECT TO THE APPELLATE ORDER OF HON. ITAT, THE A.O.'S HAVE R E-OPENED THE CASES FOR A.Y. 2008-09 U/S.147 OF THE ACT THOUGH IT IS TI ME BARRED. THIS IS NOT CORRECT LEGAL POSITION. THE A.O. IS NOT REQUIRED TO RE-OPEN THE ASSESSMENT FOR A.Y. 2008-09 TO GIVE EFFECT TO THE D IRECTIONS OF HON. BENCH. THE ASSESSMENT FOR A.Y. 2008-09 IS TIME BARR ED AND THEREFORE ISSUE OF NOTICE U/S 147 BY A.O. IS BAD IN LAW. BECA USE OF THIS UNNECESSARY LITIGATION IS TAKING PLACE. IT IS PRAYED THAT AS PER PROVISIONS OF SEC 153 (2A) THE A.O. IS REQUIRED TO MAKE FRESH ASSESSMENT AS PER THE DIRECTIONS OF H ON. BENCH. SECTION 153 (2A) PROVIDES THAT, 'NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTIONS (1), (1A), (1B), AND (2), IN RELATION TO THE ASSESSMENT YEAR C OMMENCING ON THE 1 ST DAY OF APRIL, 1971, AND ANY SUBSEQUENT ASSESSMENT Y EAR, AN ORDER OF FRESH ASSESSMENT IN PURSUANCE OF AN ORD ER U/S 250 OR ITA NO.60/AHD/2017 GOVINDBHAI SOMAB HAI PATEL VS. ITO ASST.YEAR 2009-10 - 9 - SEC. 254 OR SEC. 263 OR SEC. 264, SETTING ASIDE OR CANCELLING AN ASSESSMENT, MAY BE MADE AT ANY TIME BEFORE THE EXPI RY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH TH E ORDER U/S 250 OR SEC. 254 IS RECEIVED BY PRINCIPAL CHIEF COMMISSI ONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER OR AS THE CASE MAY BE, THE ORDER U/S 2 63 OR SEC. 264 IS PASSED BY THE PRINCIPAL CHIEF COMMISSIONER O R CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIO NER.' THEREFORE, THERE IS SPECIFIC PROVISION IN THE ACT I N SEC. 153 (2A) FOR EXECUTING THE DIRECTION OF HON. BENCH. THE SAME ISS UE HAS ARISEN BEFORE HON. ITAT KOLKATA BENCH, IN CASE OF DY. CIT VS SANJ AY JAISWAL (2016) 158 ITD 397 WHERE IN THE FACTS WHERE AS UNDE R, WHEN TRIBUNAL ASKED THE A.O. TO DETERMINE TOTAL INC OME BY REDUCING ISSUES INVOLVED IN ADDITIONS MADE THEREIN, IT IMPLIED INDISPUTABLY A MANDATE FOR FRESH DETERMINATION OF T OTAL INCOME AND IN SUCH CASE LIMITATION FOR COMPLETION OF ASSES SMENT U/S 153 (2A) WOULD APPLY - HEAD NOTES THE COPY OF THE SAID JUDGMENT IS ENCLOSED HEREWITH FOR HONORS REFERENCE. IN VIEW OF THE ABOVE FACTS AND JUDGMENT OF HON. ITAT KOLKATA BENCH YOUR HONORS ARE PRAYED TO DIRECT THE A.O. THAT PROVISIONS OF SEC. 147 MAY NOT BE INVOKED BUT FRESH ASSESSMENT MAY BE MADE AS PER PROVISIONS OF SEC. 153 (2A) AND OBLIGE. ON THE OTHER HAND, LEARNED DR SUBMITTED THAT THE HO NBLE ITAT IN RESPECT OF OTHER PARTIES HAS RESTORED THE MATTER TO THE FILE OF THE AO WITH THE SPECIFIC DIRECTION TO TAX THE CAPITAL GAIN INCO ME IN THE ASSESSMENT YEAR 2008-09 IN ITA NOS. 520 TO 523/AHD/2014 VIDE O RDER DATED 24-07- 2017. THE RELEVANT EXTRACT OF THE ORDER IS REPRODUC ED BELOW: 7. WE ACCORDINGLY RESTORE THE ISSUE TO THE FILES O F THE AO. THE AO IS DIRECTED TO DETERMINE THE CAPITAL GAINS TAX LIABILI TY AS PER THE PROVISIONS OF THE LAW IN A.Y. 2008-09. THE AO IS DIRECTED TO A LLOW CREDIT OF TAXES, IF ITA NO.60/AHD/2017 GOVINDBHAI SOMAB HAI PATEL VS. ITO ASST.YEAR 2009-10 - 10 - ANY, PAID RELATING TO THE SALE OF THE IMPUGNED LAND IN A.Y. 2008-09. EVEN IF THE SAID TAX HAS BEEN PAID BY THE APPELLANT S IN A.Y. 2009-10. LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF AUTHOR ITIES BELOW. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET, WE FIND THAT IN THE IDENTICAL FACTS AND CIRCUMSTANCES THE HONBLE ITAT IN THE CASE OF THE S UDHIR KUMAR G PATEL (HUF) AND OTHERS (SUPRA) HAS DIRECTED THE AO TO CHA RGE THE CAPITAL GAIN INCOME IN THE YEAR ASSESSMENT 2008-09. THE RELEVANT EXTRACT OF THE ORDER HAS ALREADY BEEN REPRODUCED IN THE PRECEDING PARAGR APH. THEREFORE WE RESPECTFULLY FOLLOWING THE SAME RESTORE THE MATTER TO THE FILE OF AO FOR FRESH ADJUDICATION REGARDING THE DIRECTION ISSUED B Y THE HONBLE TRIBUNAL IN ITA NOS. 520 TO 523/AHD/2014 VIDE ORDER DATED 24 -07-2017. HOWEVER, THE LEARNED AR DURING THE COURSE OF HEARIN G HAS TAKEN THE PLEA THAT THE ASSESSMENT FOR THE A.Y. 2008-09 CANNOT BE REOPENED UNDER SECTION 147 OF THE ACT BEING BARRED BY TIME. HOWEVE R, WE NOTE THAT THE PLEA TAKEN BY THE LEARNED AR PERTAINS TO THE REOPEN ING OF THE CASE FOR A.Y. 2008-09 UNDER SECTION 147 OF THE ACT, WHICH IS NOT BEFORE US. THEREFORE, THE ASSESSEE, IF WISHES TO CHALLENGE THE PROCEEDINGS INITIATED UNDER SECTION 147 OF THE ACT CAN DO SO AGAINST THE ORDER PASSED FOR THE AY 2008-09. THUS WE DISMISS THE ARGUMENT RAISED BY THE LD. AR FOR THE ASSESSEE AS DISCUSSED ABOVE. ITA NO.60/AHD/2017 GOVINDBHAI SOMAB HAI PATEL VS. ITO ASST.YEAR 2009-10 - 11 - 7. GROUND NO. 2, RELATED TO CONFIRMING THE AMOUNT O F INTEREST CHARGED BY AO U/S 234B & 234C OF THE INCOME TAX ACT, 1961. THE LD. COUNSEL FOR THE ASSESSEE DID NOT ADVANCE AN Y ARGUMENT ON THIS ISSUE AT THE TIME OF THE HEARING. MOREOVER, THIS IS SUE IS CONSEQUENTIAL IN NATURE, AND THEREFORE WE DISMISS THE SAME. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 08/06/2018 SD/- SD/- JKTIKY ;KNO JKTIKY ;KNO JKTIKY ;KNO JKTIKY ;KNO OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LN L; L; L; L; (RAJPAL YADAV) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 08/06/2018 PRITI YADAV, SR.PS !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. /01( % 2( / CONCERNED CIT 4. % 2( ( ) / THE CIT(A)-10, AHMEDABAD. 5. 567 !(&01 , ) 01- , 8 / / DR, ITAT, AHMEDABAD 6. 79 :' / GUARD FILE. % & / BY ORDER, ' 5( !( //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD