Deputy Commissioner of Income-Tax, Central Circle-4, Surat, Surat V. Sharadkumar Popatlal Kakadia, Surat

ITA 890/SRT/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8350 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 21-02-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 20-12-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAVIKANT GUPTA
• Keywords: Revision of order; Set aside
• Section: 143(3); 54B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./ITA No.890/SRT/2023 (Ǔनधा[रणवष[ / Assessment Year: (2015-16) (Physical Court Hearing) Deputy Commissioner of Income Tax, Central Circle-4, Surat, Room No.508, Aaykar Bhavan, Majura Gate, Surat- 395001 Vs. Sharadkumar Popatlal Kakadia B-37, Shadhna Society, L H Road, Varachcha, Surat-395006 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AEBPK 1190 C (अपीलाथŎ /Assessee) (ŮȑथŎ/Respondent) िनधाŊįरती की ओर से /Assessee by : Shri P.M. Jagasheth, C.A राजèव कȧ ओर से /Respondent by: Shri Ravi Kant Gupta, CIT-D.R सुनवाई की तारीख/ Date of Hearing : 22/02/2024 घोषणा की तारीख/Date of Pronouncement : 07/03/2024 आदेश / ORDER PER DR. A. L. SAINI, AM: Captioned appeal filed by the Revenue pertaining to assessment year 2015-16 is directed against the order passed by the Ld. Commissioner of Income Tax (Appeals)-4, Surat (in short “Ld CIT(A)”) dated 25.10.2023, which in turn arises out of an assessment order passed by the Assessing Officer under section 143(3) r.w.s. 263 of the Income-Tax Act, 1961 (hereinafter referred to as 'the Act'). 2. The grounds of appeal raised by the Revenue are as follows: “(1) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in setting aside the assessment order passed in compliance to order u./s 263 when the very ITAT order setting aside the PCIT;’s order u/s 263 is subjudice before jurisdictional High Court. (2) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in setting aside the assessment order and thus, deleting the addition of 3,34,95,835/- regarding disallowing the deduction u/s 54B of the IT Act despite Page | 2 ITA No. 890/SRT/2023 A.Y.15-16 Sharadkumar P Kakadia the fact that the assessee has not fulfilled the conditions as laid down for claiming exemption under section 54B of the IT Act. (3) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in setting aside the assessment order & thus deleting the addition of 36,22,600/- on account of short term capital gain despite the fact that the cost of improvement is not genuine as per discussed in para-4 of the assessment order. (4) On the facts and in the circumstances of the case and in law, the Ld. CIT(A)- 4, Surat ought to have upheld the order of the Assessing Officer. (5) It is, therefore, prayed that the order of the Ld. CIT(A) may be set aside and that the AO may be restored to the above extent. (6) The assessee craves to add, amend, alter, substitute, modify the above ground of appeal, raise any new ground of appeal, if necessary, either before or during the course of the hearing of the appeal on the basis of submissions to be made.” 3. The facts of the case, which can be stated quite shortly are as follows: In the assessee`s case under consideration, the learned Principal Commissioner of Income Tax (ld PCIT) had passed the order u/s 263 of the Act. The assessee filed the appeal before Income Tax Appellate Tribunal Surat, against the order passed by the PCIT u/s 263 of the Act. The Hon’ble ITAT has disposed of the said appeal vide order dated 27.04.2022, in which the revision order passed by the PCIT u/s 263 of the Act, has been quashed. On perusal of order passed by the Hon’ble ITAT, Surat Bench in the case of assessee in ITA No.29/SRT/2021 dated 27.04.2022, it is seen that the order u/s 263 of the Act, dated 28.03.2021, passed by the Ld.PCIT has been set aside by the Hon’ble ITAT by holding as under: “After considering the aforesaid factual and legal discussion, we are of the view that the assessing office has taken a reasonable and plausible view, which cannot be branded as erroneous. thus the twin conditions as enumerated in section 263 if not fulfilled in the present case, thus, the order passed by the Ld.PCIT is not sustainable and the same is set aside. In the result, the grounds of appeal is allowed.” 4. As per ld CIT-DR, the Department has filed the appeal before Hon`ble High Court of Gujarat against the order passed by the ITAT Surat Page | 3 ITA No. 890/SRT/2023 A.Y.15-16 Sharadkumar P Kakadia in ITA No.29/SRT/2021 dated 27.04.2022. The Department has filed the present appeal before this Tribunal to keep the issue alive. 5. At the outset, Ld.CIT-DR for the Revenue argued that Department has filed an appeal before Hon’ble jurisdictional High Court, Gujarat, against the order of Tribunal in ITA No.29/SRT/2021 dated 27.04.2022. Therefore, to keep the issue alive, the Department has filed present appeal before the Tribunal. The Ld.CIT-DR stated that interest of the Department should be protected since Department has filed further appeal against the order passed by the Tribunal and therefore till verdict of the Hon’ble jurisdictional High Court, this appeal of Department may be kept alive to protect the interest of Department and for that adjournment for a longer period may be granted to the Department and appeal of the Department should not be dismissed just because order of ld. PCIT, under section 263 of the Act, was quashed by this Tribunal. 6. On the other hand, Shri P.M. Jagasheth, Ld. Counsel for the assessee, pleaded that if the Department has filed the appeal against the order of Tribunal, before Hon’ble jurisdictional High Court that does not mean that Assessing Officer would not give appeal effect of the order of the Tribunal. The Assessing Officer will not wait till the decision of Hon’ble jurisdictional High Court. If the Hon’ble jurisdictional High Court decides the issue against the assessee, then the Assessing Officer can raise the demand again, by way of giving appeal effect of the decision of Hon’ble jurisdictional High Court. Therefore, there is no point to entertain this appeal and hence the appeal of Department should be dismissed. 7. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal Page | 4 ITA No. 890/SRT/2023 A.Y.15-16 Sharadkumar P Kakadia position. We have also gone through the findings of Ld. CIT(A) and noted that Ld. CIT(A) has rightly stated that since the order passed u/s 263 had been quashed by the Tribunal, therefore, Assessing Officer supposed to give the appeal effect of that order. Therefore, there is no foundation to keep alive the present appeal of Revenue in ITA No.890/SRT/2023, as order passed u/s 263 has been quashed by this Tribunal. The Assessing Officer has to follow the judicial disciple to give appeal effect of the order of Tribunal. If the Hon’ble jurisdictional High Court, decides the issue against assessee, then Assessing Office would give appeal effect of the order of the Hon’ble jurisdictional High Court and may again raise the demand on the assessee, if any, as per the finding of Hon’ble jurisdictional High Court. The mere fact, that further appeal has been filed by the Department, in no way, means that the Tribunal’s order under consideration is not operational and effective. Unless and until the order of the Tribunal is reversed by the Hon`ble High Court, the same has to be given due effect. Judicial discipline demands that once an order has been passed in the assessee’s own case, lower authorities are duty bound to act in accordance with the same. Therefore, based on the factual position, we dismiss the appeal of Revenue. 9. In the result, appeal of the Revenue is dismissed. Order is pronounced on 07/03/2023 by placing record on notice board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER स ू रत /Surat Ǒदनांक/ Date: 07/03/2024 Dkp Outsourcing Sr.P.S Page | 5 ITA No. 890/SRT/2023 A.Y.15-16 Sharadkumar P Kakadia Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // True Copy // Assistant Registrar/Sr. PS/PS ITAT, Surat