M/S. ANAND SAGAR REAL ESTATES PVT. LTD., Indore V. THE CIT-1, Indore

MA 51/Ind/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7179 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 12-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V J BORICHA
• Assessee Lawyers: ARPIT GAUR CAS
• Keywords: Set aside
• Section: 201; 254(2); 263

Judgement Text

MA NO. 5 1 O F 201 9 ANAND SAGAR REAL ESTATE 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER MA NO.51/IND/2019 ARISING OUT OF ITA NO.336/IND/2015 A.Y. 2010-11 ANAND SAGAR REAL ESTATE PVT. LTD., INDORE PAN AAGCA 4078 F :: APPLICANT VS CIT-1, INDORE :: RESPONDENT ASSESSEE BY SHRI ANIL KAMAL GARG AND SHRI ARPIT GAUR, CAS REVENUE BY SHRI V.J. BORICHA, SR. DR DATE OF HEARING 09.08.2019 DATE OF PRONOUNCEMENT 31.10.2019 O R D E R PER SHRI KUL BHARAT, JM THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE I .T. ACT HAS BEEN FILED BY THE ASSESSEE AGAINST THE TRIBUNAL ORDER DA TED 02.1.2019. 2. THROUGH THIS APPLICATION, THE ASSESSEE IS SEEKIN G TO MODIFY THE ORDER OF THE TRIBUNAL PRAYING THAT IN CASE THE ASSE SSING OFFICER FINDS THAT APPLICANT ASSESSEE MADE EFFORTS TO SET UP A WATER P ARK AT THE LAND IN MA NO. 5 1 O F 201 9 ANAND SAGAR REAL ESTATE 2 QUESTION INVOLVING THE REVISIONARY JURISDICTION MAY BE DECLARED AS BAD IN LAW. ON THE OTHER HAND, THE LD. SR. DR RELIED ON TH E ORDER OF THE TRIBUNAL. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON THE FILE. WE FIND THAT THE TRIBUNAL HAS, IN PARA 5, DECIDED THE ISSUE BY OBSERVING AS U NDER: 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIALS AVAILABLE ON RECORDS AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. LAW IS WELL SETTLED THAT THE LD. CIT CAN IN VOKE PROVISIONS OF SECTION 263 OF THE ACT AND REVISE THE ASSESSMENT FR AMED BY THE A.O., IF HE IS SATISFIED THAT THE ORDER PASSED IS E RRONEOUS SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. IN THE PRESENT CASE, LD. CIT HAS REVISED THE CONCLUDED ASSESSMENT BY SET TING ASIDE ASSESSMENT TO THE A.O. FOR DE-NOVO ASSESSMENT. IT IS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESS EE CAN HAVE TWO PORTFOLIOS, ONE IS IN THE NATURE OF INVESTMENT, ANOTHER BEING BUSINESS. THE ASSESSEE IS ENGAGED IN BUSINESS OF R EAL ESTATE. THE LD. CIT IN THE IMPUGNED ORDER HAS OBSERVED THAT THE SALE OF LAND IN THE SAME LOCALITY IS TREATED AS THE BUSINES S RECEIPTS. HOWEVER, IN RESPECT OF THE LAND IN QUESTION, THE AS SESSEE HAS CLAIMED IT AS AN INVESTMENT. FURTHER, THE ASSESSEE CLAIMED IT AS EXEMPT BEING AN AGRICULTURAL LAND. IN THE OPINION OF THE LD. CIT, A.O. HAD NOT CARRIED OUT ENQUIRY RELATED TO TREATME NT OF THE SALE PRICE OF THE SAID LAND. IT IS CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE THAT LAND IN QUESTION WAS NOT PART OF STOC K IN TRADE AS THE ASSESSEE WANTED TO ESTABLISH A WATER PARK. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE CONTENTION OF THE R EPRESENTATIVES OF MA NO. 5 1 O F 201 9 ANAND SAGAR REAL ESTATE 3 THE PARTIES. WE ARE UNABLE TO ACCEPT THIS CONTENTI ON THAT ASSESSING OFFICER HAD RAISED A SPECIFIC QUERY AS TO WHY THE ASSESSEE HAS TREATED SALE CONSIDERATION AS EXEMPT. THE LD. CIT HAS ALSO NOT DEALT WITH THE CONTENTION THAT THE ASS ESSEE WANTED TO ESTABLISH A WATER PARK. UNDER THESE FACTS, WE DEEM IT PROPER TO MODIFY THE DIRECTION OF THE LD. CIT AND DIRECT THE A.O. TO MAKE ENQUIRY, WHETHER THE ASSESSEE HAD MADE ANY EFFORTS TO ESTABLISH A WATER PARK ON THE LAND IN QUESTION. FURTHER, THE A .O. WOULD ALSO CONSIDER CONTENTION OF THE ASSESSEE THAT THERE WAS A TYPOGRAPHICAL ERROR IN THE ACCOUNTS OF THE ASSESSEE. GROUNDS RAI SED IN THIS APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES AS INDI CATED ABOVE. 4. IT IS ALSO NOTEWORTHY THAT THE LD. CIT HAD DIREC TED THE ASSESSING OFFICER AS UNDER: THEREFORE AFTER HAVING CONSIDERED THE FACTS OF THE CASE OF THE ASSESSEES SUBMISSIONS IN REFERENCE TO SHOW CAU SE NOTICE, THE ASSESSMENT ORDER UNDER REFERENCE IS SET ASIDE TO THE FILE OF THE AO-DCIT-1(1), INDORE TO MAKE AFRESH ON THE ISSUES MENTIONED ABOVE AFTER MAKING NECESSARY ENQUI RIES APPROPRIATE DECISION AS PER LAW. NEEDLESS TO MENTIO NED DUE OPPORTUNITY SHOULD BE GIVE TO THE ASSESSEE WHILE CO MPLETING THE ASSESSMENT AFRESH ON THE SAID ISSUES. 5. THE DISPUTE IS WITH REGARD TO WHETHER IT TO BE T REATED AS INVESTMENT OR TO BE TREATED AS STOCK-IN-TRADE. THE TRIBUNAL HA D MODIFIED THE ORDER OF THE LD. CIT AND HAD DIRECTED THE ASSESSING OFFICER TO MAKE ENQUIRY WHETHER THE ASSESSEE HAD IN FACT KEPT THIS PART OF LAND TO ESTABLISH A MA NO. 5 1 O F 201 9 ANAND SAGAR REAL ESTATE 4 WATER PART. IN CASE THE ASSESSING OFFICER FINDS THA T THE LAND WAS FOR ESTABLISHING THE WATER PART, HE HAS TO TREAT THE SA ME ACCORDINGLY WHILE THE ISSUE WHETHER THE LAND WAS PART OF STOCK-IN-TRA DE. SINCE THE ASSESSEE HAS SOUGHT CLARIFICATION, WE HEREBY CLARIF Y THAT IN CASE THE ASSESSING OFFICER FIND THAT THE LAND IN QUESTION WA S A PART OF PROJECT FOR ESTABLISHING A WATER PARK, IN THAT EVENT, SAME SHOU LD NOT BE TREATED AS STOCK-IN-TRADE OF THE ASSESSEE. 6. FINALLY, THE MISCELLANEOUS APPLICATION IS DISPOS ED OFF IN TERMS AS INDICATED HEREINABOVE. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 31.10.20 19. SD/- (MANISH BORAD) ACCOUNTANT MEMBER SD/- ( KUL BHARAT) JUDICIAL MEMBER DATED : 31.10.2019 COPY TO: ASSESSEE/RESPONDENT/CIT(A)/CIT/DR, INDORE