Pragnaben P. Prajapati, Ahmedabad V. The Income Tax Officer, Ward-9(4), Ahmedabad

ITA 606/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6280 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-04-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 28-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: PF JAIN
• Keywords: Capital asset
• Section: 2(14); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 606/AHD/2014 (ASSESSMENT YEAR: 2006-07) PRAGNABEN P. PRAJAPATI KHODIYAR KRUPA BUNGLOW, NEAR S. B. TRUST VADI, NAVA VADAJ, AHMEDABAD- 380013 V/S INCOME TAX OFFICER, WARD- 9 (4), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ASSPP 7022M APPELLANT BY : SHRI P. F. JAIN, AR RESPONDENT BY : SHRI RAHUL KUMAR, SR. D.R. ( )/ ORDER DATE OF HEARING : 05 -04-201 7 DATE OF PRONOUNCEMENT : 10 -04-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. WITH THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE C ORRECTNESS OF THE ORDER OF LD. CIT(A)-II, AHMEDABAD DATED 20.01.2014 PERTAI NING TO A.Y. 2006-07. ITA NO. 606/ AHD/2014 . A.Y. 2006-07 2 2. THE SUBSTANTIVE GRIEVANCE OF THE ASSESSEE READS AS UNDER:- 1. THE LD.CIT (APPEALS) HAS ERRED IN LAW AND ON FACTS IN REJECTING THE GROUNDS OF APPEAL AS PER APPEAL MEMO IN FORM NO. 35 ON THE TECHNICAL GROUND THAT NO SUCH OBJECTION WAS RAISED BEFORE THE A.O. AND NO GRIEVANCE ARISES OUT OF SUCH ORDER WITHOUT APPRECIATING THE LEGAL ISSUES INVOLVED IN THE APPEA L IN AS MUCH AS THAT THE CAPITAL GAIN IS NOT TAXABLE AS PER LAW. 2. THE LD. CIT (APPEALS) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE RE-ASSESSMENT PROCEEDING U/S. 147 WHICH WERE SUBMITTED TO BE BAD IN LAW AND VOID ABINITIO. 3. HE HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE T AXATION OF LONG TERM CAPITAL GAIN THOUGH DECLARED BY THE ASSESSEE WITHOUT APPRECIATIN G THE FACT THAT THE IMPUGNED LAND WAS NOT CAPITAL ASSET U/S. 2(14) READ WITH NOT IFICATION NO.9447 DATED 06/01/1994 ISSUED UNDER THE ACT. 4. ON THE FACT AND AS PER LAW THE CAPITAL GAIN OUGHT T O HAVE BEEN HELD AS EXEMPT AND NON TAXABLE AND THE TAXES PAID UNDER IGNORANCE OF L AW OUGHT TO HAVE BEEN HELD AS REFUNDABLE. 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSE E STATED THAT IN THE CASE OF CO-OWNERS ON IDENTICAL SET OF FACT, THE TRIBUNAL HA S RESTORED THE MATTER TO THE FILES OF THE LD. CIT(A) FOR FRESH ADJUDICATION. 4. THE LD. D.R. FAIRLY CONCEDED TO THIS. 5. WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF THE AU THORITIES BELOW. THE DISPUTE RELATES TO WHETHER THE AGRICULTURAL LAND SO LD BY THE ASSESSEE COMES WITHIN THE EXEMPTION AND IS NOT A CAPITAL ASSET U/S . 2(14) OF THE ACT. WE HAVE ALSO GONE THROUGH THE ORDER OF THE CO-ORDINATE BENCH IN THE CASE OF ONE OF THE CO-OWNERS SMT. GITABEN CHANDULAL PRAJAPA TI IN ITA NO. ITA NO. 606/ AHD/2014 . A.Y. 2006-07 3 2379/AHD/2013. THE RELEVANT FINDINGS OF THE CO-ORDI NATE BENCH READS AS UNDER:- WE NOTICE THAT A CO-ORDINATE BENCH OF THIS TRIBUNA L IN ACIT VS. SATYANARAYAN AGARWAL 255 ITR (AT) 69 (KOLKATA) HOLDS THAT AN ADM ISSION MADE IN THE RETURN IS NOT BINDING IN CASE AN ASSESSEE SEEKS TO CHANGE OR MODIFY HIS OR HER STAND. LEARNED CO-ORDINATE BENCH IS OF THE VIEW THAT AN AS SESSEE CAN ALWAYS SEEK TO PROVE THAT THE INCOME DECLARED EARLIER WAS NOT TAXA BLE. WE DRAW SUPPORT THEREFROM TO REJECT REVENUES ABOVE CONTENTION OF N ON MAINTAINABILITY OF THE INSTANT ASSESSEES APPEAL. WE THEREFORE REMIT THE ASSESSEES LATTER SUBSTANTIVE GROUND AS WELL BACK TO THE CIT(A) TO DECIDE AFRESH AS TO WHETHER HER LAND SOLD WAS A CAPITAL ASSET OR NOT U/S.2(14)(III) OF THE AC T IN TUNE WITH THE OTHER GROUP CASES (SUPRA). IT IS MADE CLEAR THAT THE ASSESSEE WOULD BE AT LIBERTY TO PLACE ON RECORD ALL THE RELEVANT DETAILS IN ORDER TO PROVE T HE FACT THAT HER LAND SOLD WAS AGRICULTURAL NOT FORMING A CAPITAL ASSET UNDER THE ABOVE STATUTORY PROVISION. IT WOULD BE APPRECIATED IF THE LD. CIT(A) DECIDES ALL THESE GROUP CASES TOGETHER. 6. RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO-ORDIN ATE BENCH, WE RESTORE THIS ISSUE TO THE FILES OF THE LD. CIT(A) TO BE DEC IDED AFRESH IN LINE WITH THE DECISION TAKEN IN GROUP CASES. THE APPEAL IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 10 - 04- 20 17 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY A CCOUNTANT MEMBER AHMEDABAD: DATED 10 /04/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT.