Ganesh B Rangani, RAJKOT-GUJARAT V. The Income Tax Officer, Ward 1(1), RAJKOT-GUJARAT

MA 10/RJT/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0639 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 3 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 31-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset; Difference of opinion
• Section: 201; 54

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , RAJKOT BENCH, RAJKOT BEFORE SHRI RAJPAL YADAV , HON BLE JUDICIAL MEMBER AND SHRI WASEEM AHMED HON BLE ACCOUNTANT MEMBER MISC. APPLICATION NO.08/RJT/2016 IN ITA.NO. 45 / RJT /20 1 2 / ASSTT.YEAR : 200 7 - 0 8 RAMESHBHAI B. RANGANI RAJKOT. VS ITO, WARD - 1(1) RAJKOT. MISC. APPLICATION NO.09/RJT/2016 IN ITA.NO. 46 / RJT /201 2 / ASSTT.YEAR : 2007 - 08 KANJIBHAI B. RANGANI RAJKOT. VS ITO, WARD - 1(1) RAJKOT. MISC. APPLICATION NO.10/RJT/2016 IN ITA.NO. 1319 / RJT /201 0 / ASSTT.YEAR : 2007 - 08 GANESHBHAI B. RANGANI RAJKOT. VS ITO, WARD - 1(1) RAJKOT. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : WRITTEN SUBMISSIONS REVENUE BY : SHRI ANIL KUMAR DAS, DR / DATE OF HEARING : 16 / 0 9 / 201 9 / DATE OF PRONOUNCEMENT: 16 / 0 9 /201 9 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER PRESENT THREE MISC. APPLICATIONS ARE DIRECTED AT THE INSTANCE OF THE ASSESS EE S POINTING OUT APPARENT ERROR IN THE ORDER OF THE TRIBUNAL DATED 8.10.2015 PASSED FOR THE ASSTT.YEAR 2007 - 08. MA NO .8 TO 10 / RJT /201 6 2 2 . F ACTS IN DETAILS WERE DISCUSSED IN THE CASE OF SHRI GANESH B. RANGANI I .E. ITA NO.1319/AHD/2010. IN BRIEF THE FACTS ARE THAT , THE ASSESSEE HAS SOLD A PARCEL OF LAND ALONG HIS RELATIVES AND THE CONSIDERATION RECEIVED WAS AS UNDER: SR.NO. ADDRESS OF LAND DOCUMENT NO. DOCUMENTED PRICE YOUR SHARE BEING 50% 1. REV. SURVEY NO.27 PAIKI 3, BILIYANA NO.1993 EXECUTED ON 8.3.2007 RS.37,88,125/ - RS.18,94,0762.50 2. REV. SURVEY NO.27 PAIKI 4, BILIYANA NO.1992 EXECUTED ON 8.3.2007 RS.37,88,125/ - RS.18,94,0762.50 RS.37,88,125/ - 3. TWO DISPUTES WERE RAISED WHILE DETERMINING THE CAPITAL GAIN UNDER SECTION 48 OF THE INCOME TAX ACT, 1961. IN THE FIRST FOLD OF GRIEVANCE, IT WAS DISPUTED THAT THE LAND IN DISPUTE WAS AN AGRICULTURE LAND AND ON SALE OF SUCH LAND NO CAPITAL GAIN IS ASSESSABLE. I N THE SECOND FOLD OF DISPUTE, THE CONVERS ION CHARGES OF RS.19,36,440/ - INCURRED BY THE LAND OWNERS FROM CHANGE OF AGRICULTURE LAND TO NON - AGRICULTURE LAND WAS WHETHER ALLOWABLE AS COST OF IMPROVEMENT OR NOT. AS FAR AS FIRST FOLD OF GRIEVANCE WAS CONCERNED , IT WAS UNANIMOUSLY DECIDED THAT IT IS A CAPITAL ASS E T ON WHOSE SALE , CAPITAL GAIN IS LEVIABLE. WITH REGARD TO SECOND OF FOLD GRIEVANCE, WHETHER CONVERSION CHARGES PAID BY THE VENDORS IS TO BE TREATED AS COST OF IMPROVEMENT OR NOT, A DIFFERENCE OF OPINION AROSE AMONGST THE MEMB E RS WHO HA V E HEAR D THE APPEAL ON 23.10.2013. ULTIMATELY, THIRD MEMBER OF THE TRIBUNAL WAS APPOINTED TO RESOLVE THE ISSUE, WHO CONCURRED WITH THE JUDICIAL MEMBER AND HELD THAT SUCH CONVERSION CHARGES ARE REQUIRED TO BE ALLOWED TO THE ASSESSEE AS IMPROVEMENT COST WHILE COMP UTING THE CAPITAL G A IN. THE EFFECT OF THE THIRD MEMBER S ORDER WAS GIVEN. THE TRIBUNAL HAS DISPOSED OF APPEAL VIDE ORDER DATED 8.10.2015. THE ASSESSESES HAVE MOVED MA AND THE LD.COUNSEL FOR THE MA NO .8 TO 10 / RJT /201 6 3 ASSESSEE, SHRI D.R. ADHIA HAS FILED A VERBATIM SAME WRITTEN SUBMISSIONS IN ALL THESE MAS. HIS SUBMISSIONS READ AS UNDER: KIND ATTENTION IS INVITED TO THE HEARING FIXED OF THE ABOVE MATTER ON 16 - 9 - 2019. 2. AS MENTION IN THE MA GROUND NO.1 TAKEN BY THE APPELLANT REGARDING DISTANCE OF BOUNDARY OF SALE OF AGRICULTURE LA N D HAS REMAIN TO BE CONSIDERED. THE ISSUE WAS ALSO TAKEN BEFORE THE LD.CIT(A) AND COPY OF WRITTEN SUBMISSIONS FURNISHED BEFORE THE LD.CIT(A) HAS ALSO BEEN SUBMITTED BEFORE THE HON. ITAT BENCH IS MENTIONED AT PARA 4.3 OF THE MA. THIS CONSTIT UTES A MISTAKE APPARENT FORM THE RECORDS RECTIFIABLE. 3. MOREOVER THE SALE PROCEED S OF THE AG RICULTURE LAND HAS BEEN CONSIDERED WITHIN 2 YEARS ENTITLING NO BENEFITS OF EXEM PTION WHICH IS ALSO REQUIRES CONSIDERATION SINCE IT IS AFTER 2 YEARS AS PER GUID ELI NES OF THE CBDT. 4. IT IS THEREFORE HUMBLY REQUESTED THAT THE MATTER MAY KINDLY BE RECALLED TO CONSIDER SINCE THE HEARING OF THE APPEAL WAS DECIDED EX PARTY NOT ACCEPTING THE ADJOURNMENT APPLICATION SUPPORTED WITH MEDICAL CERTIFICATE SHOWING EYE PROBLEM. 4 . WITH THE ASSISTANCE OF THE LD. D E P A R T M E N T A L REPRESENTATIVE , WE HAVE GONE THROUGH THE RECORD CAREFULLY. THE POWER OF RECTIFICATION UNDER SECTION 2 54 OF THE INCOME TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE, WHICH IS SOUGHT TO BE RECTIFIED, IS AN OBVIOUS PATENT MISTAKE, WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND LONG DRAWN PROCESS OF REASONING ON POINTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. 5 . A PERUSAL OF THE IMPUGNED ORDER WOULD I NDICATE THAT THESE ISSUES ARE SPECIFICALLY GONE THROUGH BY THE TRIBUNAL, AND ALL THESE CONTENTIONS HAVE BEEN CONSIDERED AND REJECTED. IT HAS BEEN HELD THAT IT WAS A CAPITAL ASSET SOLD BY THE ASSESSEE S AND GAIN ARISEN ON SUCH SALES DESERVES TO BE ASSESSED AS CAPITAL GAIN. MA NO .8 TO 10 / RJT /201 6 4 THERE IS NO APPARENT ORDER IN THE ORDER OF THE TRIBUNAL, HENCE, THESE MA ARE REJECTED. 6. IN THE RESULT, ALL THREE MISC. APPLICATIONS ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 1 6 T H SEPTEMBER, 201 9 AT RAJKOT . S D / - S D / - (WASEEM AHMED ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER