Vithaldas Tribhuwandas Bagadiya, Jalna V. Income tax Officer, Ward-1, Jalna, Jalna

ITA 807/PUN/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0988 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-10-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 10-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Salary income; Set aside
• Section: 148; 144; 139(1)

Judgement Text

आयकरअपीलीयअिधकरण ” बी” ɊायपीठपुणेमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES “B” :: PUNE BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.807/PUN/2023 िनधाᭅरण वषᭅ / Assessment Year : 2009-10 Vithaldas Tribhuwandas Bagadiya, 2-14-10, M.B.Agecies, Nehru Road, Kaderabad, Jalna – 431203. PAN: ADYPB 5508 K V s The Income Tax Officer, Ward-1, Jalna. Appellant/ Assessee Respondent /Revenue Assessee by Shri M.K.Kulkarani – AR Revenue by Shri M.G.Jasnani – DR Date of hearing 04/10/2023 Date of pronouncement 05/10/2023 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This an appeal filed by the assessee against the order of ld.Commissioner of Income Tax(Appeals)[NFAC] under section 250 of the Income Tax Act, 1961 for A.Y.2009-10 dated 18.05.2023 emanating from the assessment order under section 144 r.w.s 147 of the Income Tax Act, 1961 dated 17.03.2016 for A.Y.2009-10. 2. Heard both the parties and perused the records. ITA No.807/PUN/2023 Vithaldas Tribhuwandas Bagadiya [A] 2 3. The assessee is an individual having income from salary and other sources. The assessee had filed return of income for A.Y.2009-10 under section 139(1) of the Income Tax Act, 1961 on 26.10.2010 declaring total income at Rs.4,85,410/-. The Assessing Officer(AO) received information that Government of Maharashtra through Land Acquisition Officer, Jalna had acquired land of the assessee for the purpose of setting up Industrial Zone. The Land Acquisition Officer, had awarded compensation to the assessee of Rs.3,11,38,075/- for the assessee’s Land at Gat No.22, Village Nagewadi, District Jalna. The AO accordingly initiated proceedings under section 148 of the Act by issuing notice under section 148 of the Act dated 20.06.2014 for A.Y. 2009-10. The AO completed ex-party assessment and calculated the Long Term Capital Gain at Rs.1,53,52,952/-. Aggrieved by the assessment order, assessee filed appeal before the ld.CIT(A). The ld.CIT(A) upheld the assessment order, ignoring the submission of the assessee which has been reproduced by the ld.CIT(A) in the order. 4. The assessee had filed Writ Petition before the Hon'ble’ Bombay High Court regarding the Land Acquisition Award. The ITA No.807/PUN/2023 Vithaldas Tribhuwandas Bagadiya [A] 3 Hon'ble Bombay High Court in Writ Petition No.285/2012 in paragraph 87 held as under : “i. The validity of the acquisition proceedings culminating into an award dated 2 nd February 2010 is upheld. ii. Amount of compensation finally determined by the respondents including the Collector without rendering an opportunity to the petitioners contemplated under Section 33(4) of the Maharashtra Industrial Development Act, 1961 is set aside.” 5. Thus, it is observed that the Land Acquisition Officer, Jalna had given the award on 02.02.2010 and land was taken over by Land Acquisition Officer by 8 th Sep, 2010. These facts are also mentioned at page no.6 of the ld.CIT(A)’s order. Thus, there is no activity in F.Y.2008-09 i.e. A.Y.2009-10 regarding acquisition. As per Section 45 profit or gain from the Transfer of Capital Asset shall be deemed to be income under the head “Capital Gain” in the previous year in which transfer took place. Therefore, there is no question of Long Term Capital Gain for A.Y.2009-10, accordingly, the AO is directed to delete the Long Term Capital Gain for A.Y.2009-10. 6. In the result, appeal of the assessee is allowed. Order pronounced in the open Court on 5 th October, 2023. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 5 th Oct, 2023/ SGR* ITA No.807/PUN/2023 Vithaldas Tribhuwandas Bagadiya [A] 4 आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकरअपीलीयअिधकरण, “बी” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.