Shri Digvijay Gaekwad, Baroda V. The Income Tax Officer, Ward-6(3), Baroda

ITA 640/AHD/2014

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8101 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 04-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Keywords: Initiation of penalty proceedings
• Section: 143(3)

Judgement Text

ITA NO. 640/AHD/2014 DIGVIJAY GAEKWAD VS. ITO ASSESSMENT YEAR: 2009-10 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR VP AND MAHAVIR PRASAD JM] ITA NO. 640/AHD/2014 ASSESSMENT YEAR: 2009-10 DIGVIJAY GAEKWAD ..............APPELLAN T VANDAN BUNGALOW, LALGAUG ROAD, BARODA [PAN : ABWPG 2624 H] VS INCOME TAX OFFICER ...................RESPO NDENT WARD 6(3), BARODA APPEARANCES BY URVASHI SHODHAN, FOR THE APPELLANT SK DEV, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : SEPTEMBER 26, 2018 DATE OF PRONOUNCEMENT : DECEMBER 25, 2018 O R D E R PER PRAMOD KUMAR, VP: 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HA S CHALLENGED CORRECTNESS OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)S ORDER DATED 2 ND JANUARY, 2014, IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2009-10. 2. THE GRIEVANCES RAISED BY THE ASSESSEE ARE AS FOL LOWS:- 1. THE LEARNED CIT (A) HAS ERRED IN LAW AND ON FA CTS OF THE APPELLANT'S CASE IN CONFIRMING THE ACTION OF LEARNED A.O. IN TAXING THE 'INCOME FROM LONG TERM CAPITAL GAIN' ON PROTECTIVE BASIS. 2. THE LEARNED CIT (A) HAS ERRED IN LAW AND ON FA CTS OF THE APPELLANT'S CASE IN CONFIRMING THE ACTION OF THE LEARNED AO IN HOLDI NG THAT 'INCOME FROM CAPITAL GAIN' IS TAXABLE IN AY 2008-09 AND NOT IN A Y 2009-10 ON VARIOUS ERRONEOUS PLEA. BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS OF THE APPELLANT'S CASE IN NOT APPRECIATING THE FACT THAT THE 'INCOME FROM CAPITAL GAIN' IS TAXABLE ITA NO. 640/AHD/2014 DIGVIJAY GAEKWAD VS. ITO ASSESSMENT YEAR: 2009-10 PAGE 2 OF 3 IN AY 2009-10 AS SUBJECT PROPERTY HAS BEEN 'TRANSFE RRED' IN PREVIOUS YEAR RELEVANT TO AY 2009-10 AND PRAYS THAT HON'BLE TRIBU NAL BE PLEASED TO HOLD SO NOW AND DIRECT THE LD. A.O TO TAXED THE SAME IN AY 2009-10 ONLY. 3. THE INITIATION OF PENALTY PROCEEDINGS U/S 271(1) (C) OF THE ACT IS NOT JUSTIFIED. 4. THE LEVY OF INTEREST U/S 234A/B/C OF THE ACT IS NOT JUSTIFIED. 3. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, LEA RNED COUNSEL INVITED OUR ATTENTION TO THE FACT THAT THE CIT(A), VIDE ORDER D ATED 8 TH JANUARY 2016, HAS HELD THAT THE CAPITAL GAINS IN QUESTION CANNOT BE BROUGHT TO TAX, IN THE HANDS OF THE ASSESSEE, IN THE ASSESSMENT YEAR 2008-09, AND THAT REVENUES APPEAL, AGAINST THE SAID ORDER, HAS BEEN DISMISSED BY A COORDINATE BENCH OF THIS TR IBUNAL ON 30 TH JULY 2018. COPIES OF BOTH OF THESE ORDERS WERE ALSO FILED BEFO RE US. ON THE STRENGTH OF THIS FACTUAL POSITION, IT IS CONTENDED THAT SINCE NON-TA XATION OF THESE CAPITAL GAINS IN THE ASSESSMENT YEAR 2008-09 HAS ATTAINED FINALITY, THIS ASSESSMENT SHOULD BE CONFIRMED ON SUBSTANTIVE BASIS AND, THEREFORE, THE PLEA OF TH E ASSESSEE SHOULD BE UPHELD. 4. LEARNED DEPARTMENTAL REPRESENTATIVE DOES NOT DIS PUTE THE SUBMISSIONS SO MADE BY THE LEARNED COUNSEL, BUT REITERATES HIS STA ND THAT THE CAPITAL GAIN WAS TAXABLE IN THE ASSESSMENT YEAR 2008-09. 5. WE SEE MERITS IN THE PLEA OF THE LEARNED COUNSEL . ONCE THE NON-TAXATION OF CAPITAL GAINS IN THE ASSESSMENT YEAR 2008-09 HAS AT TAINED FINALITY, AS IN THE PRESENT CASE, THE ASSESSMENT OF THIS CAPITAL GAIN IN THE AS SESSMENT YEAR 2009-10, I.E. YEAR BEFORE US, IS TO BE TREATED AS ON SUBSTANTIVE BASIS . ANY OTHER VIEW OF THE MATTER WILL RESULT IN COMPLETE NON-TAXATION OF CAPITAL GAINS. 6. IN VIEW OF THE ABOVE DISCUSSIONS, AS ALSO BEARIN G IN MIND ENTIRETY OF THE CASE, WE UPHOLD THE PLEA OF THE ASSESSEE AND DIRECT THE A SSESSING OFFICER TO TREAT THE ASSESSMENT AS CAPITAL GAIN IN THE PRESENT ASSESSMEN T YEAR AS ON SUBSTANTIVE BASIS. 7. IN THE RESULT, APPEAL IS ALLOWED IN THE TERMS IN DICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON THE 25 TH DAY OF DECEMBER, 2018. SD/- SD/- MAHAVIR PRASAD PRAMOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) AHMEDABAD, DATED THE 25 TH DAY OF DECEMBER, 2018 **BT ITA NO. 640/AHD/2014 DIGVIJAY GAEKWAD VS. ITO ASSESSMENT YEAR: 2009-10 PAGE 3 OF 3 COPIES TO: (1) THE APPELLANT (2) THE RESPOND ENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: ..25.12.2018.............. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: .. 25.12.2018........ 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: ... 25.12.2018...... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: ... 25.12.2018. .. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : . 25.12.2018. 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: ......