Shri Ghelabhai Popatbhai Shingala, RAJKOT-GUJARAT V. The Income Tax Officer, Wd-2(3), RAJKOT-GUJARAT

ITA 742/RJT/2014

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5171 (ITAT-RAJKOT)
• Duration Of Justice: 4 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 17-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [ CONDUCTED THROUGH E-COURT AT AHMEDABAD ] BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ITA NO.742/RJT/2014 ( / ASSESSMENT YEAR : 2008-09) GHELABHAI POPATBHAI SHINGALA NAYANA 4 SHREE RANCHHODNAGAR SOCIETY RAJKOT / VS. THE INCOME TAX OFFICER WARD-2(3) RAJKOT ./ ./ PAN/GIR NO. : AEXPS 2481 L ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : ASSESSEE / RESPONDENT BY : SHRI PRAVEEN VERMA, SR.DR / DATE OF HEARING 31/01/2019 !'# / DATE OF PRONOUNCEMENT 31/01/2019 / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)III, RAJKOT [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)-III/ 0036/13-14 DATED 23/04/2013 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3) R.W.S.147 OF THE INCOME TAX ACT, 1961(HEREINAFTER R EFERRED TO AS 'THE ACT') DATED 26.03.2013 RELEVANT TO ASSESSMENT YEA R (AY) 2008-09. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL:- ITA NO.742/RJT/2014 GHELABHAI POPATBHAI SHINGALA VS. ITO ASST .YEAR 2008-09 - 2 - 1. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CO NFIRMING LONG TERMS CAPITAL GAIN AT RS.26,34,331/-. THE ADDITIO N NEEDS DELETION. 2. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CO NFIRMING LONG TERMS CAPITAL GAIN OF RS.26,34,331/- BASED ON FACTU AL POSITION WHICH HE DESCRIBED WRONGLY. THE ADDITION NEEDS DEL ETION. 3. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CO NFIRMING LONG TERMS CAPITAL GAIN OF RS.26,34,331/- ERRONEOUSLY AP PLYING PROVISIONS OF SECTION 50C WHICH HE DESCRIBED WRONGL Y. THE ADDITION NEEDS DELETION. 4. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CO NFIRMING LONG TERM CAPITAL GAIN OF RS.26,34,331/- BASED ON PRESUM PTION AND SURMISES AND AGAINST THE SETTLED POSITION. THE ADD ITION NEEDS DELETION. 5. TAKING INTO CONSIDERATION THE LEGAL, STATUTORY, FACTUAL AND ADMINISTRATIVE ASPECTS, NO DETERMINATION OF LONG TE RM CAPITAL GAIN OF AN AMOUNT OF RS.26,34,331/- OUGHT TO HAVE BEEN C ONFIRMED. THE ADDITIONS NEED DELETION. 2. AT THE OUTSET, WE FIND THAT THERE WAS NO PROPER REPRESENTATION FROM THE SIDE OF THE ASSESSEE BEFORE THE AUTHORITIES BEL OW. 3. WE FIND FROM THE WRITTEN SUBMISSIONS SUBMITTED B EFORE US BY THE ASSESSEE THAT THE PROPERTY IN DISPUTE BELONGS TO T HE HUF, WHEREAS THE ASSESSMENT FOR THE SAME HAS BEEN MADE IN THE HANDS OF THE ASSESSEE. AS PER THE LD.AR, THE IMPUGNED CAPITAL GAIN INCOME CAN NOT BE TAXED IN THE HANDS OF THE ASSESSEE. THEREFORE, THE SAME DESERVE S TO BE DELETED. ITA NO.742/RJT/2014 GHELABHAI POPATBHAI SHINGALA VS. ITO ASST .YEAR 2008-09 - 3 - 4. ON A SPECIFIC QUESTION TO THE LD.DR TO REMIT THE MATTER TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION IN ACCO RDANCE WITH LAW, HE DID NOT RAISE ANY OBJECTION. THEREFORE, IN THE INT EREST OF JUSTICE AND FAIR PLAY, WE RESTORE THE MATTER TO THE FILE OF ASSESSIN G OFFICER FOR FRESH ADJUDICATION AS PER THE PROVISIONS OF LAW. 5. IT IS ALSO PERTINENT TO NOTE THAT THE ASSESSEE S HOULD CO-OPERATE WITH THE ASSESSING OFFICER DURING THE PROCEEDINGS. OTHE RWISE, THE ASSESSING OFFICER SHALL BE AT HIS LIBERTY TO PASS THE ORDER T O THE BEST OF HIS KNOWLEDGE U/S.144 OF THE INCOME TAX ACT, 1961. HEN CE, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 31/01/2019 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANTMEMBER JUDICIAL MEMBER AHMEDABAD; DATED 31/01/2019 &.., .(../ T.C. NAIR, SR. PS ITA NO.742/RJT/2014 GHELABHAI POPATBHAI SHINGALA VS. ITO ASST .YEAR 2008-09 - 4 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)-III, RAJKOT 5. 012 ((*+ , *+# , !& /DR,ITAT, RAJKOT 6. 2=> ? / GUARD FILE. / BY ORDER, 0 ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) $%, !& / ITAT, RAJKOT 1. DATE OF DICTATION .. 31.1.2019 (DICTATION-PAD 4 -PAGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 31.1.2019 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.31.1.2019 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 31.1.2019 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER