The Dy. Commissioner of Income Tax, Central Circle-1, Baroda V. Shri Jethanand Khemchand Luhana, Godhra

ITSSA 224/AHD/2016

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3702 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-04-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 03-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANKET BAKSHI
• Keywords: Capital asset; Retrospective amendment; Tax effect
• Section: 143(3); 54F; 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SHR I S. S. GODARA , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER THE DCIT, CENTRAL CIRCLE - 1, AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA - 390007 (APPELLANT /RESPONDENT ) VS SHRI JETHANAND KHEMCHAND LUHANA, 27/2, ANKUR SOCIETY, BAMROLI ROAD, GODHRA - 389001, PAN: AASPL5234D (RESPONDENT /CROSS OBJECTOR ) REVENUE BY : S H RI PRASOON KABRA , SR. D . R. ASSESSEE BY: S H RI SANKET BAKSHI , A.R. DATE OF HEARING : 15 - 03 - 2 018 DATE OF PRONOUNCEMENT : 19 - 04 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS REVENUE S APPEAL AND ASSESSEE CROSS OBJECTION FOR A.Y. 2008 - 09 , AR ISE FROM ORDER OF THE CIT(A) - 12 , AHM EDABAD DATED 02 - 04 - 2016 , IN PROCEEDINGS UNDER SECTION 153A R.W.S. 143(3) OF THE INCOME TA X ACT, 1961; IN SHORT THE ACT . 2. IN THIS CASE, ASSESSMENT U/S. 153A R.W.S. 143(3) OF THE ACT WAS COMPLETED ON 30 TH JAN, 2015 WHEREIN THE ASSESSING OFFICER HAS DISALLOWED THE CLAIM OF THE ASSESSEE FOR EXEMPTION U/S. 54F OF THE ACT OF RS. 40,20,000/ - FOR INVESTING THE CONSIDERATION RECEIVED ON SALE OF CAPITAL ASSET (LAND) IN THE CONSTRUCTION OF RESIDENTIAL HOUSE. THE ASSESSING OFFICER HAS DISALLOWED T HE CLAIM STATING CONDITION O F SECTION 54F W ERE NOT FULFILLED. LD. CIT(A) HAS ALLOWED THE CLAIM OF I T (SS) A NO . 224 & C.O. NO. 147 / A HD/20 16 A SSESSMENT YEAR 200 8 - 09 I.T(SS). A NO. 224 & CO NO. 147 /AHD/20 1 6 A.Y. 2008 - 09 PAGE NO DCIT VS. SHRI JETHANAND KHEMCHAND LUHANA 2 THE AS SESSEE THAT WHEN THE ASSESSEE MADE CLAIM ON THE STRENGTH OF ACTUAL INVESTMENT IN THE NEW PROPERTY A NON - DEPOSIT INTO CAPITAL GAIN SCHEME ACCOUNT IS NOT A RELEVANT CONSIDERATION. DURING THE COURSE OF PENALTY PROCEEDINGS BEFORE US, THE LD. COUNSEL HAS BROUG HT TO OUR NOTICE THE NET TAX EFFECT IN THIS CASE AS FOLLOWS: - PARTICULARS AMOUNT (RS.) ASSESSED INCOME AS PER AO ORDER RETURNED INCOME AS PER AO ORDER 2,05,50,860/ - 1,65,30,860/ - ADDITION MADE U/S. 54F CONTESTED BY DEPARTMENT 40,20,000 TAX @ 20% 8,04,000 SURCHARGE @ 10% 80,400 EDUCATION AND HIGHER EDUCATION CESS @ 3% 26,532 NET TAX IMPACT 9,10,932 THIS PROPOSITION OF THE LD. COUNSEL COULD NOT BE CONTROVERTED BY THE LD. DEPARTMENTAL REPRESENTATIVE AND HE CONTENDED TO DECIDE THIS CASE AS PER LAW. WE FIND THAT THERE IS NO DISPUTE THAT THE NET TAX EFFECT IN THE INSTANT APPEAL IS LESS THAN RS. 10 LACS. WE FIND THAT THE CENTRAL BOARD OF DIRECT TAXES; HEREAFTER THE BOARD HAS ISSUED THE CIRCULAR NO. 21/2015 DATED 10 - 12 - 2015 CLEARLY ENVISA GING THEREIN THAT DEPARTMENT S PENDING APPEALS BEFORE THE TRIBUNAL/HIGH COURTS ARE TO BE WITHDRAWN/NOT PRESSED AS PER THE ABOVE STATED CIRCULAR. THE SAME HAS BEEN DECLARED TO BE HAVING RETROSPECTIVE EFFECT IN OTHER WORDS. WE TAKE INTO CONSIDERATION THE A BOVE STATED BOARD S CIRCULAR AND DISMISS THE INSTANT APPEAL ACCORDINGLY.THIS REVENUE S APPEAL IS DISMISSED AS HAVING LOW TAX EFFECT. CROSS OBJECTION NO. 147/AHD/2016 I.T(SS). A NO. 224 & CO NO. 147 /AHD/20 1 6 A.Y. 2008 - 09 PAGE NO DCIT VS. SHRI JETHANAND KHEMCHAND LUHANA 3 3. SINCE THE APPEAL OF THE REVENUE HAS BEEN DISMISSED ON ACCOUNT OF LOW TAX EFFECT AS S UPRA , THEREFORE , THE CROSS OBJECTION FILED BY THE ASSESSEE ALSO STANDS DISMISSED. 4 . IN THE RESULT , BOTH THE APPEAL OF THE REVENUE AND CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 19 - 04 - 201 8 SD/ - SD/ - ( S.S. GODARA ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 19 /04 /2018 / COPY OF ORDER FOR WARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,