Income-tax Officer, Pune V. Primit Technologies, Pune

ITA 927/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5663 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 10-07-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 13-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N ASHOK BABU
• Keywords: Business income; Rule of consistency

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.927/PUN/2017 / ASSESSMENT YEAR : 2012-13 ITO, WARD-9(3), PUNE. ....... / APPELLANT / V/S. PRIMIT TECHNOLOGIES, ANJALI NIKETAN, VIVEKNAGAR, AKURDI, PUNE-411035. PAN : AAIFP9086F / RESPONDENT REVENUE BY : SHRI N. ASHOK BABU ASSESSEE BY : NONE / DATE OF HEARING : 10.07.2019 / DATE OF PRONOUNCEMENT : 01.08.2019 / ORDER PER D. KARUNAKARA RAO, AM: THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A)-6, PUNE DATED 27.12.2016 FOR THE ASSESSMENT YEAR 2012-13. 2. THE SOLITARY ISSUE RAISED IN THE PRESENT APPEAL RELATES TO THE TAXABILITY OF THE SALE PROCEEDS OF LAND AND BUILDING EITHER UNDER THE HEAD OF CAPITAL GAINS OR UNDER THE HEAD BUSINESS INCOME. 3. THERE IS NONE TO REPRESENT THE ASSESSEE BEFORE US DESPITE THE SERVICE OF NOTICE BY THE ITAT. CONSIDERING THE COVERED NATURE OF THE ISSUE AS WELL AS THE SIMILARITY OF THE FACTS AND THE SIMILAR ISSUE WHICH WAS THE 2 ITA NO.927/PUN/2017 SUBJECT-MATTER OF LITIGATION FOR THE ASSESSMENT YEAR 2010-11, WE ARE OF THE OPINION, THE MATTER IS TO BE HEARD WITH THE ASSISTANCE OF LD. DR FOR THE REVENUE. THE REVENUE ACCEPTED THE DECISION OF THE CIT(A) IN THAT YEAR. 4. FROM THE MATERIAL AVAILABLE ON RECORD, IT IS SEEN THAT, AS PER PARA 2, 2.1, 3 TO 5.1 OF THE ORDER OF CIT(A), SUCH INCOME WAS HELD AS TAXABLE UNDER THE HEAD CAPITAL GAINS AND NOT TO BE TREATED AS BUSINESS INCOME FOR THE ASSESSMENT YEAR 2010-11. PARA 5 AND 5.1 OF THE ORDER OF THE CIT(A) CONSTITUTES AN OPERATIONAL PARA. FOR THE SAKE OF COMPLETENESS, THE SAID PARAS ARE EXTRACTED HEREUNDER :- 5. THIS ASSESSMENT ORDER IS AN OUTCOME OF THE FINDINGS MADE BY THE AO IN THE ASSESSMENT ORDER PASSED FOR A.Y. 10-11. THE APPELLANT HAD APPEALED AGAINST THE FINDINGS OF THE AO BEFORE THE CIT(A). THE UNDERSIGNED VIDE ORDER NO:PN/CIT(A)-V/ITO WD.9(3)/206/2013-14 DTD.7/11/2016 HAD DISPOSED THE APPEAL FOR A.Y. 10-11 HOLDING THAT THE ACTIVITY OF THE APPELLANT CANNOT BE TREATED TO BE IN THE NATURE OF ADVENTURE OF TRADE. THE RELEVANT FINDINGS IN THAT ORDER ARE AS FOLLOWS: .. 5.1. IN VIEW OF THE CLEAR FINDING MADE IN THE A.Y. 10-11, THE SALE OF LAND AND BUILDING BY THE APPELLANT CANNOT BE TREATED TO BE BUSINESS ACTIVITIES AND THEREBY NOT CHARGEABLE TO TAX UNDER THE HEAD BUSINESS INCOME. THE INCOME AS OFFERED BY THE APPELLANT UNDER THE HEAD CAPITAL GAINS IS UPHELD. THEREFORE, THE ADDITION MADE BY THE AO IS DELETED. 5. CONSIDERING THE ABOVE SETTLED LEGAL POSITION ON THIS ISSUE, WE ARE OF THE OPINION THAT THE ORDER OF THE CIT(A) IS FAIR AND REASONABLE ON THIS ISSUE AND IT DOES NOT CALL FOR ANY INTERFERENCE. RULE OF PRINCIPLE OF CONSISTENCY APPLY IN THIS CASE. REVENUE DID NOT DEMONSTRATE THAT THE RELEVANT FACTS ARE DIFFERENT IN THIS YEAR. WE ALSO HERE MENTIONED THAT THE ORDER OF THE CIT(A) FOR THE ASSESSMENT YEAR 2010-11 IS ACCEPTED BY THE 3 ITA NO.927/PUN/2017 REVENUE FOR SIMILAR LEGAL PROPOSITION. THUS, THE RELEVANT GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 01 ST DAY OF AUGUST, 2019. SD/- SD/- ( /VIKAS AWASTHY) ( . /D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 01 ST AUGUST, 2019. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-6, PUNE. 4. THE PR. CIT-5, PUNE. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.