Shri Praksh L Soni, Nagpur V. Asst.CIT Rane -5,Nagpur, Nagpur

SA 4/NAG/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3205 (ITAT-NAGPUR)
• Duration Of Justice: 6 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 17-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C G K NAIR
• Keywords: Application of stay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR' BENCH , MUMBAI . , . , BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER SA NO. 04/NAG/2012 (ARISING OUT OF ITA NO. 164/NAG/2012) ( ! '# ! '# ! '# ! '# $ $ $ $ / ASSESSMENT YEAR : 2008-09 SHRI PRAKASH L. SONI ACIT, CIRCLE 5 74, SHRINIKETAN SARAF CHAMBERS, SADAR RAMDASPETH, NAGPUR / VS. NAGPUR 440001 % ./ PAN - AEWPS 2001 P &%' / APPLICANT ()%' / RESPONDENT SA NO. 05/NAG/2012 (ARISING OUT OF ITA NO. 165/NAG/2012) ( ! '# ! '# ! '# ! '# $ $ $ $ / ASSESSMENT YEAR : 2008-09 SHRI RAHUL PRAKASH SONI ACIT, CIRCLE 5 74, SHRINIKETAN SARAF CHAMBERS, SADAR RAMDASPETH, NAGPUR 440012 / VS. NAGPUR 440001 % ./ PAN - AETPS 6965 H &%' / APPLICANT ()%' / RESPONDENT &%' * / APPLICANT BY : SHRI BHUPENDRA SHAH ()%' + * / RESPONDENT BY : SHRI C.G.K. NAIR , - + ./ / DATE OF HEARING : 29.06. 2012 0$# + ./ / DATE OF PRONOUNCEMENT : 29.06.2012 12 / O R D E R PER D. MANMOHAN, V.P. BY THESE APPLICATIONS THE ASSESSEES SEEK STAY OF CO LLECTION OF OUTSTANDING DEMAND PENDING DISPOSAL OF THE APPEALS. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEES HAVE A STRONG PRIMA FACIE CASE ON MERITS AND HENCE THEY DESERVE TO BE TAKEN ON OUT OF TURN BASIS. SA NO. 04&05/NAG/2012 PRAKASH L. SONI & R.P. SONI 2 3. THE FACTS IN SHORT ARE THAT THE ASSESSEES PURCHASED A LAND IN THE PRECEDING YEAR AND SOLD THE SAME IN THE PREVIOUS YE AR RELEVANT TO A.Y. 2008- 09. ACCORDING TO THE ASSESSEES THE IMPUGNED LAND IS TO BE CONSIDERED AS AGRICULTURAL LAND IN WHICH EVENT THE INCOME EARNED THEREON IS NOT ASSESSABLE TO TAX UNDER THE HEAD CAPITAL GAINS. T HE AO AS WELL AS THE CIT(A) WERE OF THE OPINION THAT THE LAND FALLS WITH IN 8 KILOMETERS FROM THE MUNICIPAL LIMITS AS PER THE CERTIFICATES ISSUED BY THE MUNICIPAL AUTHORITIES AND, THEREFORE, SOUGHT TO BRING TO TAX THE RECEIPTS THEREON. THE LEARNED COUNSEL PLACED RELIANCE UPON SEVERAL DECISIONS (ANN EXED TO THE STAY APPLICATIONS) IN SUPPORT OF HIS CONTENTION THAT THE DISTANCE HAS TO BE CALCULATED BY TAKING THE LENGTH IN THE FORM OF CONS IDERING THE MOTORABLE ROAD AVAILABLE TO THE LAND WHEREAS THE TAX AUTHORIT IES HAVE TAKEN INTO CONSIDERATION THE DISTANCE AS THE CROW FLIES. IT WA S THUS SUBMITTED THAT THE ASSESSEES HAVE A STRONG PRIMA FACIE CASE ON MERITS. IT WAS ALSO CONTENDED THAT SUBSTANTIAL TAX WAS ALREADY PAID AND ASSESSEES ARE NOT IN A POSITION TO PAY ANY FURTHER DEMAND. IF ANY COERCIVE MEASURES AR E TAKEN BY THE REVENUE, IT WILL AFFECT THE ASSESSEES IRRETRIEVABLY. 4. ON THE OTHER HAND, THE LEARNED D.R. RELIED UPON THE ORDERS PASSED BY THE TAX AUTHORITIES TO SUBMIT THAT IN VIEW OF THE C ONCURRENT FINDINGS OF THE TAX AUTHORITIES IT CANNOT BE SAID THAT THE ASSESSEE S HAVE STRONG PRIMA FACIE CASE ON MERITS. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. THE PLEA OF THE ASSESSEES IS THAT THERE IS NO DIRECT MOTORABLE ROAD TO THE LAND PURCHASED BY THE ASSESSEES. FROM THE MUNIC IPAL LIMITS, IF THE DISTANCE OF THE ROAD IS TAKEN INTO CONSIDERATION, I T IS BEYOND 8 KILOMETERS. THIS APPEARS TO HAVE NOT BEEN CONTROVERTED BY THE T AX AUTHORITIES. UNDER THESE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE ASS ESSEES HAVE A STRONG PRIMA FACIE CASE ON MERITS AND THE BALANCE OF CONVE NIENCE IS IN FAVOUR OF GRANTING STAY OF COLLECTION OF OUTSTANDING DEMAND. WE DIRECT ACCORDINGLY. REGISTRY IS DIRECTED TO POST THE APPEALS FOR FINAL HEARING ON 26.07.2012. ASSESSEES SHALL GIVE SURETY TO THE SATISFACTION OF THE AO IN RESPECT OF SA NO. 04&05/NAG/2012 PRAKASH L. SONI & R.P. SONI 3 OUTSTANDING DEMAND. WITH THESE OBSERVATIONS, AS PRO NOUNCED IN THE OPEN COURT, THE STAY APPLICATIONS FILED BY THE ASSESSEES ARE ALLOWED. 3#.4 ! '3. + &5 . 6 + 7. 8 ORDER PRONOUNCED IN THE OPEN COURT ON 29TH JUNE 201 2. 12 + '$# - 9 5 : 4 29.06.2012 + ;, SD/- SD/- (B. RAMAKOTAIAH) (D. MANMOHAN) / ACCOUNTANT MEMBER / VICE PRESIDENT - , MUMBAI ; : DATED : 29 TH JUNE 2012 . ! . ./ N.P., SR. PS 12 12 12 12 + ++ + (!.=> (!.=> (!.=> (!.=> &?>$. &?>$. &?>$. &?>$. / COPY OF THE ORDER FORWARDED TO : 1. &%' / THE APPELLANT 2. ()%' / THE RESPONDENT. 3. 1 1@ - ( & ) / THE CIT(A)- NAGPUR II, 4. 1 1@ - / CIT - NAGPUR III, 5. >A; (!.! B' , 1 &/ &B'# , , - / DR NAGPUR BENCH , ITAT, MUMBAI 6. ; C, / GUARD FILE. * DICTATION PAD ATTACHED 12 12 12 12 - -- - / BY ORDER, )>. (!. //TRUE COPY// / 7 7 7 7 (DY./ASSTT. REGISTRAR) 1 1 1 1 &/ &/ &/ &/ &B'# &B'# &B'# &B'# , , - / ITAT, MUMBAI