The ACIT, Circle-4, Baroda V. Shri Vishal R. Agrawal, Baroda

MA 143/AHD/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4425 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 17-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Keywords: Cost of acquisition; Tax effect
• Section: 143(3); 147

Judgement Text

, , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD L LL LK KK KOZJH OZJH OZJH OZJH OLHE OLHE OLHE OLHE VGEN VGEN VGEN VGEN] YS[KK ] YS[KK ] YS[KK ] YS[KK LNL; ,O LNL; ,O LNL; ,O LNL; ,O EK/ EK/EK/ EK/KQFERK KQFERK KQFERK KQFERK JKW; JKW;JKW; JKW;] U; ] U;] U; ] U;KF KFKF KF;D ;D;D ;D LNL; LNL; LNL; LNL; DS LE{KA DS LE{KA DS LE{KA DS LE{KA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SMT MADHUMITA ROY, JUDICIAL MEMBER MISC. APPLICATION NO.143/AHD/2018 (IN ITA NO.2032/AHD/2014) ( / ASSESSMENT YEAR : 2008-09) THE ACIT, CIRCLE 4, BARODA. / VS. SHRI VISHAL R. AGRAWAL, 61, ALKAPURI SOCIETY, ALKAPURI, VADODARA 390 005 ./ ./ PAN/GIR NO. : ABLPA 2034 L ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI LALIT P. JAIN, SR. D.R. / RESPONDENT BY : SHRI SUNIL TALATI, A.R. / DATE OF HEARING 05/10/2018 !'# / DATE OF PRONOUNCEMENT 26/10/2018 $% / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: BY VIRTUE OF THIS MISCELLANEOUS APPLICATION, THE RE VENUE IS SEEKING TO RECALL THE ORDER PASSED BY THE ITAT IN I TA NO. 2032/AHD/2014 FOR ASSESSMENT YEAR 2008-09 VIDE ORDE R DATED 27 TH JULY, 2017 ON THE GROUND THAT THERE IS A MISTAKE APPARENT FROM THE RECORD. 2. THE REVENUE BEFORE US SUBMITTED AS UNDER: THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 28. 08.2008 DECLARING TOTAL INCOME OF RS.89,26,392/-. THE ASSES SMENT ORDER WAS PASSED U/S 143(3) OF THE IT ACT ON 04.11.2010 DETER MINING TOTAL INCOME AT RS.3,52,83,250/- AFTER MAKING ADDITION ON LONG-T ERM CAPITAL GAIN OF RS. 2,63,56,850/-. THE CASE WAS LATER REOPENED U/S 147 TO VERIFY THE FACT MA NO.143/AHD/2018 IN ITA NO.2032/AHD/2014 SHRI VISHAL R. AGRAWAL A.Y. 2008-09 - 2 - THAT THE ASSESSEE HAD PAID TAX @10% ON LTCG INSTEAD OF 20% APPLICABLE AS PER SECTION 112(1)(A) OF THE ACT. ORD ER U/S 143(3) R.W.S.147 OF THE ACT WAS PASSED ON 15.11.2013 AFTER MAKING THE ADDITION OF LONG TERM CAPITAL GAIN AFTER INDEXATION OF RS.1, 77,99,830/-. 2. THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT (A)-III, BARODA WHO DIRECTED THE AO TO TAX LONG TERM CAPITAL GAIN @ 10% AS PROVIDED IN PROVISO BELOW CLAUSE (D) OF SUB SECTION (1) OF S ECTION 112 OF THE ACT INSTEAD OF 20% AS APPLIED BY THE AO. 3. AGAINST THE ORDER OF LD.CIT(A), REVENUE HAD FIL ED AN APPEAL BEFORE THE HON'BLE ITAT. 4. KIND ATTENTION IS DRAWN TO PARA NO.3 OF THE I TATS ORDER WHICH READS AS UNDER:- 'WE FIND THAT THE AMOUNT OF TAX DEMANDED AS IT STOO D BEFORE THE FIRST APPELLATE AUTHORITY WAS RS.14,18,885/-. A PERUSAL OF THE GRIEVANCE OF THE REVENUE SHOWS THAT THE DISPUTE IS WHETHER THE TAX SHOULD BE LEVIED @ 10% OR 20%. THE ID.CIT(A ) HAS HELD THAT THE TAX SHOULD BE LEVIED @70%. CONSIDERIN G THE REVENUE INVOLVED IN THE LITIGATION, IN OUR CONSIDER ED OPINION, THIS APPEAL OF THE REVENUE IS TO BE DISMISSED IN TH E LIGHT OF THE CBDT CIRCULAR NO.21 OF 2015 DATED 10.12.2015. HOWEV ER, IF THE REVENUE FEELS THAT THE TAX EFFECT IS GREATER TH AN RS. 10 LAKHS THEN IT MAY APPROACH THE TRIBUNAL AS PER THE PROVIS IONS OF THE LAW.' 5. THE DECISION OF THE HON'BLE ITAT IS NOT ACCE PTABLE IN VIEW OF THE FOLLOWING:- DURING THE ASSESSMENT PROCEEDINGS, IT WAS NOTICED T HAT THE ASSESSEE HAD PAID TAX @10% ON LONG TERM CAPITAL GAI N INSTEAD OF 20% AS PER SECTION 112(1)(A) OF THE ACT. THE ASSESSEE W AS ASKED TO EXPLAIN AS TO WHY TAX @20% ON LONG TERM CAPITAL GAIN AFTER INDEXATION OF COST OF ACQUISITION SHOULD NOT BE TAXED INSTEAD OF 10% A S PAYABLE BEING LISTED SECURITIES U/S 112(1)(D) OF THE IT ACT. THE SUBMISSION MADE BY THE ASSESSEE WAS CONSIDERED BUT NOT FOUND TENABLE. AS P ER THE PROVISIONS OF SECTION 112(1)(A) DEALS WITH INDIVIDUAL AND HUF(BEI NG A RESIDENT) AND 112(1)(D) DEALS WITH ANY OTHER CASE (OF A RESIDENT) .THUS, THE ASSESSEE BEING AN INDIVIDUAL FALLS UNDER THE PROVISION OF SE CTION 112(1)(A) AND NOT FALLS U/S 112(1)(D) OF THE ACT. THE ASSESSEE'S CLAIM THAT THE TAX IS MA NO.143/AHD/2018 IN ITA NO.2032/AHD/2014 SHRI VISHAL R. AGRAWAL A.Y. 2008-09 - 3 - APPLICABLE @10% ON CAPITAL GAIN RAISED FROM SALE OF LISTED EQUITY SHARES WAS NOT FOUND ACCEPTABLE, AS THE 10% TAX RAT E IS NOT PROVIDED IN ANY EXPLANATION BUT APPLICABLE TO SECTION 112(1)(D) OF THE IT ACT. THEREFORE, THE ASSESSEE BEING AN INDIVIDUAL WAS LIA BLE TO PAY TAX @20% ON LTCG INSTEAD OF 10% AS OFFERED BY THE ASSESSEE. AN ADDITION OF RS.1,77,99,830/- WAS MADE ON ACCOUNT OF LTCG AFTER INDEXATION. 6. AS THE TAX EFFECT INVOLVED IS RS.20,16,665/- WH ICH IS HIGHER THAN THE MONETARY LIMITED PRESCRIBED BY THE CBDT'S CIRCU LAR NO. 21/2015. THEREFORE, THE UNDERSIGNED REQUESTS YOUR HONOR TO R ESTORE THE APPEAL IN THE CASE OF SHRI VISHAL R AGRAWAL FOR A.Y 2008-09 A ND AN INTIMATION OF HAVING RESTORED THE APPEAL BEFORE HON'BLE ITAT MAY KINDLY BE SENT TO THIS OFFICE. IT IS ALSO PRAYED THAT THE HON'BLE ITA T MAY KINDLY PASS A APPROPRIATE ORDER, IN VIEW OF THE ACTUAL TAX EFFECT OF RS.20,16,16,665/- ON MERITS, AS IT MAY DEEM FIT. IT IS ALSO SUBMITTED THAT NO MISCELLANEOUS APPLICATION U/S. 254(2) HAS BEEN FILED EARLIER IN T HIS CASE. 7. THE APPELLANT CRAVES TO ADD TO, AMEND OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 3. ON THE OTHER HAND, THE LD. AR BEFORE US SUBMITTE D THAT EVEN THE APPEAL OF THE REVENUE IS RECALLED ON THE GROUND THA T THERE IS A MISTAKE APPARENT FROM RECORD, IT WILL NOT BE MAINTAINABLE I N VIEW OF THE RECENT CIRCULAR NO.03/2018 DATED 11/07/2018 ISSUED BY THE CBDT WHEREIN, THE LIMIT FOR FILING THE APPEAL WAS ENHANCED FROM RS. 1 0,00,000/- TO RS. 20,00,000/-. 4. THE LD. DR IN HIS REJOINDER AGREED TO THE SUBMIS SION MADE BY THE LD. COUNSEL FOR THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. RECENTLY THE CBDT HAS ISSUED A CIRCULAR NO.3/2018 MA NO.143/AHD/2018 IN ITA NO.2032/AHD/2014 SHRI VISHAL R. AGRAWAL A.Y. 2008-09 - 4 - DATED 11/07/2018 WHEREBY, THE LIMIT FOR FILING THE APPEAL WAS ENHANCED FROM RS.10,00,000/- TO RS.20,00,000/- BEFORE THE TR IBUNAL. IN THE CASE ON HAND, THERE IS NO AMBIGUITY THAT THE TAX EFFECT IN THE DISPUTE RAISED BY THE REVENUE IS LESS THAN RS.20,00 ,000/-. THEREFORE, IN OUR CONSIDERED VIEW, EVEN WE ALLOW THE MA FILED BY THE REVENUE BY RECALLING THE ORDER OF THE ITAT, IT WOULD NOT SURVI VE IN VIEW OF THE RECENT CIRCULAR ISSUED BY THE CBDT AS DISCUSSED ABOVE. THE REFORE, WE DO NOT FILED ANY MERIT IN THE MISC. APPLICATION FILED BY T HE REVENUE. HENCE, THE MA FILED BY THE REVENUE IS DISMISSED. 6. IN THE RESULT, MISC. APPLICATION OF THE REVENUE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 26/10/2018 SD/- SD/- E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; YK S[KK LNL; U;KF;D LNL; YK S[KK LNL; U;KF;D LNL; YK S[KK LNL; U;KF;D LNL; YK S[KK LNL; (MADHUMITA ROY) (WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 26/10/2018 PRITI YADAV, SR.PS MA NO.143/AHD/2018 IN ITA NO.2032/AHD/2014 SHRI VISHAL R. AGRAWAL A.Y. 2008-09 - 5 - !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / CONCERNED CIT 4. ) () / THE CIT(A). 5. ,-. //'( , '(# , 12$&$ / DR, ITAT, AHMEDABAD 6. .34 5 / GUARD FILE. % & / BY ORDER, , / //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD