Income Tax Appellate Tribunal - Ahmedabad
Dcit, Circle-9,, Ahmedabad vs Jagdishchandra B.Patel, Ahmedabad on 16 May, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD "A" BENCH AHMEDABAD
BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER
AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER
ITA No. 2518/Ahd/2012
&
CO. No.29/Ahd/2013
(Assessment Year:2009-10)
D.C.I.T., Circle -9, Ahmedabad Appellant
Vs.
Shri Jagdischandra B Patel
4a Ketan Society, Nr. Sardar
Patel Colony, Navjivan Post,
Ahmedabad 380013 Respondent/Cross Objector
PAN: AFUPP4222L
राज व क ओर से/By Revenue : Shri R. I. Patel, CIT D.R.
आवेदक क ओर से/By Assessee : Shri Dhiren Shah, A.R.
सन
ु वाई क तार ख/Date of Hearing : 31.03.2017
घोषणा क तार ख/Date of
Pronouncement : 16.05.2017
ORDER
PER S. S. GODARA, JUDICIAL MEMBER
This Revenue's appeal and assessee's cross objection for assessment year 2009-10 emanates from the CIT(A)-XV, Ahmedabad's order dated 13.08.2012, in case no. CIT(A)-XV/DCIT/Cir-9/457/11-12, in proceedings u/s. 143(3) of the Income Tax Act, 1961, in short 'the Act'.
ITA No. 2518/Ahd/2012 & CO No.29 Ahd 2013 ( DCIT vs.Shri Jagadishchandra B Patel) A.Y. 2009-10 -2-
2. The Revenue's sole substantive ground pleaded in its appeal seeks to restore Assessing Officer's action disallowing expenditure claim of Rs.10,61,47,415/- u/s. 48(1) of the Act by treating the same as not connected to transfer of the land. The Assessing Officer had made the said disallowance in assessment order dated 29.12.2011. The CIT(A) has deleted the same in the lower appellate order under challenge. This culminates in Revenue's instant appeal followed by assessee's cross objection supporting the CIT(A)'s action deleting the abovestated disallowance.
3. We now advert to the relevant facts. The assessee is stated to be dealing in shares alongwith futures and options. He purchased the land in question at Sarkhej Mouje, District Ahmedabad alongwith his brother Shri Hitendra B. Patel and a friend namely Shri Ajay H. Patel. The said purchase transactions were executed between November 2003 to February 2004. The assessee's share therein was 1/3rd. He thereafter entered into a development agreement dated 30.03.2007 with one M/s. Prerna Infrabuild Pvt. Ltd. This agreement forms part of the case records. The assessee therein appears to have undertaken the obligation of getting assignment of development rights in respect of the remaining 2/3rd share in favour of the abovestated entity. He further made himself responsible for converting the agricultural land to non agricultural. This followed yet another agreement by way of a memorandum of understanding between assessee and the abovestated two other co-owners on the one side and M/s. Satlon Investment Pvt. Ltd. on the other side. These parties appear to have agreed to obtain conveyance of the abovestated lands in favour of a yet another purchaser M/s. Applewoods Estate Pvt. Ltd. These agreements / MOUs took place in January 2008. The relevant dates therein are 04.01.2008, 18.01.2008 & 24.01.2008. It transpires that the first agreement dated 04.01.2008 was also a registered document. The assessee thereafter made compensation payment in question of Rs.10.61crores to M/s.
ITA No. 2518/Ahd/2012 & CO No.29 Ahd 2013 ( DCIT vs.Shri Jagadishchandra B Patel) A.Y. 2009-10 -3- Prerna Infrabuild Ltd. in view of the fact that he had not been able to honour his former development agreement (supra). These two parties appear to have taken recourse to arbitration proceedings. Learned arbitrator therein announced his award on 29.04.2008 qua the sum in question of Rs.10.61crores. The parties thereafter entered into a termination agreement dated 10.05.2008. There is no dispute that the assessee also made payment of the award sum in question.
4. We now come to assessment order dated 29.12.2011. The Assessing Officer completed a regular assessment disallowing assessee's claim of the abovestated expenditure u/s.48(1) of the Act on the ground that the same could not be held to be in connection with the sale of the land in question. He further appears to have relied upon various judicial pronouncements ie. VSMR Jagdishchandaran vs. CIT (1997) 227 ITR 240 (SC), CIT vs. Attli N Rao (2001) 252 ITR 880 (SC), Sitananda vs. CIT (2001) 119 Taxman 227 (Delhi), Ashok Soi vs. CIT (2004) 192 CTR 535 (Delhi) etc. This resulted in the impugned disallowance.
5. The assessee preferred appeal. Learned CIT(A) reverses the abovestated disallowance by way of following discussion:
"5.(5.1.) I have perused the facts of the case as enumerated by A.O. and as submitted by appellant. I have perused the case laws relied on by both A.O. as well as appellant. After careful consideration of facts, submission, ratio of case laws relied on and contentions of both A.O. as well as appellant, the following issues emerges for the main ground of appeal.
(a) There is no dispute in respect of facts and figures related to sale of land in question. Even the computation of capital gain with indexation is not disputed by A.O.
(b) There is no dispute in respect of various agreements entered in to by appellant and arbitrage settlement and its amount.
(c) The other two co-owners return of income has following details in their respective return of income.ITA No. 2518/Ahd/2012 & CO No.29 Ahd 2013 ( DCIT vs.
Shri Jagadishchandra B Patel) A.Y. 2009-10 -4-
(i) Shri Ajaybhai Haribhai Patel, PAN: ABXPP1822D filed return of income for A.Y. 2009-10 on 17.12.2009 with Dy. CIT, Cir-9, Ahmedabad declaring there in total income of Rs. 13,52,14,894. This include long term capital gain of Rs. 13,46,04,395 as worked out in the Annexure attached with computation of income. It is evident that no cost was claimed for transfer of land by the co-owner in respect of impugned land sale having the co-ownership of appellant.
(ii) Shri Hitendra Kumar Bhailalbhai Patel PAN: AFUPP4221K filed return of income for A.Y. 09-10 on 30.09.09 declaring there in total income of Rs. 6,68,33,280. This includes long term capital gain from sale of land at Rs. 6,89,28,317. This Co-owner also not claimed any cost of transfer of land.
(d) The appellant's return of income for A.Y. 03-04,04-05,07-08 and 08-09 were also examined to verify the facts about sources and proper disclosure of purchase/acquiring of such land for genuine claim of long term capital gain and improvement cost. The A.O. also not disputed any of such fact and accepted the facts and figures related to such land.
5.2. It is therefore only dispute is about allow ability of Rs. 10,61,47,415 as transfer expenses related to sale of land on whether the same is compensation for breach of contract. It is in this respect section 48(i) of the Act provide under the mode of computation that out of the capital gain as computed under section 48 of the Act, deduction from the full value of the consideration is to be given for "
Expenditure incurred wholly and exclusively in connection with such transfer".
The important phrases here to be considered are " Expenditure", "Incurred", "Wholly and exclusively" and " in connection with such transfer". It is therefore, there should be a positive expenditure being actually incurred is eligible for such deduction. The all important phrase " in connection with such transfer" is not defined but has to be interpreted with various judicial pronouncement. Hon'ble Kerala High Court in the case of V.A. Vasumathi v CIT (1980) 123 ITR 94 and in the case of CIT vs Dr. P Rajendran (1981) 127 ITR 810 observed that "The word" in connection with such transfer" occurring is that section mean intrinsically related to the transfer. These words are very wide in their ambit. There is no warrant for importing a restriction that, to qualify for deduction, the expenditure must necessarily have been incurred prior to the passing of title. It is immaterial whether the eligible expenditure was incurred prior or subsequent to the passing of title. In this view of the matter expenditure incurred by the assessee in conducting the land acquisition reference proceedings before the civil court was held to be eligible expenditure u/s. 48(l)(a)(i)". It is in this regard Hon'ble Bombay High court's judgment in the case of CIT v Shakuntala Kantilal (Supra) has laid the 3tio where the expenditure to remove encumbrance to land was allowed as deduction. Such encumbrance can be related to title or otherwise to effect the peaceful transfer of asset. Hon'ble Madhya Pradesh High Court in the case of CIT v Smt Laxmidevi Ratani (2008) 261 ITR 363 held that "The compensation for giving up the right to specific performance for any contractual right relating to capital asset would be liable for capital gain tax " Similar view are taken by other high courts i.e. Hon'ble Madras High court in K.R. Srinath v ACIT (2004) 268 ITR 436(Mad), Hon'ble Bombay High Court in CIT v Vijay Flexible Containers (1990) 186 ITR 693, Tata Teleservices Ltd. (1980 122 ITR 594 and CIT v Sterling ITA No. 2518/Ahd/2012 & CO No.29 Ahd 2013 ( DCIT vs. Shri Jagadishchandra B Patel) A.Y. 2009-10 -5- Investment Corporation Ltd. (1980) 123 ITR 441. It is therefore, the compensation paid by appellant for breach of development right to M/s. Prerna Infrabuild Pvt. Ltd cannot be separated out from transfer of land since the same result in to capital gain in the hands of M/s. Prerna Infrabuild Pvt. Ltd.
5.3. The A.O. relied on the case laws where the issue of mortgaging of property under transfer is involved. In other word there was already a debt on the property in the form of such mortgage and the ratio of almost all such cases rightly held that repayment or discharge of such debt cannot be a part of expenditure related to sale of land. In fact it is an application of such sale consideration. The ratio also highlight the expenditure character of such repayment/discharge of burden as revenue and not as capital on the contrary in the case of Chaturbhuj Dwarkadas Kapadia v ClT(2003) 260 ITR 491, Hon'ble Bombay High Court observed and held that " Development agreement is not an agreement for sale, because it is an executory contract with the developer not being the intended purchaser, so that not for specific performance should not ordinarily lie on the basis of a development agreement, which is essentially a business agreement. But in :ne content of preemptive purchase of property under chapter xx-c, development agreement has been understood to be an agreement for sale requiring No Objection Certificate under this chapter as held in Ashok Leyland Finance Ltd v Appropriate Auth. (1998) 230 ITR 398 (Mad), Ashish Mukherji vs Union of India (1999) 236 ITR 793(Delhi).
5.4. The essence of argument of A.O. that appellant has diverted capital gain at source by such compensation can be viewed in the light of ratio of Hon'ble Supreme Court in the case of Miss Dhan Dadabhoy Kapadia v CIT (1967) 63 ITR 651, where in it was pointed out that the capital gain has to be computed on the basis of commercial practice which an ordinary man of business will adopt in computation for business purpose. This concept is some time referred as the real income concept. Probably there is no justification for computing capital gain on a different basis. On such a view it would be unnecessary to stretch the concept of cost, improvement and/or sale expenses to cover situation where they cannot possibly cover the same, but all the same entitled to deduction to arrive at the true capital gain. Similar views were taken by Andhra Pradesh High Court in the case of CIT v Bilquis Jahan Begam (1984) 150 ITR 508 (AP). Hon'ble Gujarat High Court in the case of CIT v Dahiha Ramanlal (1992) 197 ITR 123 considered these test and ratio and held in favor of appellant. Hon'ble Supreme Court affirmed this Hon'ble Gujarat High Court judgment vide 93 tax man 423(SC).
5.5. Hon'ble Supreme Court in the case of R M Arunadhalam v CIT(1997) 227 ITR 222,237 affirmed the Full Bench Judgment of Hon'ble Madras High Court in the case of Smt S. Vailiammai v ClT (1981) 127 ITR 713 in which Hon'ble Madras High Court held that cost of making the title ana perfect can be treated as the "cost of acquisition".
5.6 Considering the above discussed legal proposition, following facts of the case has to be considered.
(i) Lands were disputed, as the appellant, as per conditions of development agreement was not in position to assign share of other ITA No. 2518/Ahd/2012 & CO No.29 Ahd 2013 ( DCIT vs. Shri Jagadishchandra B Patel) A.Y. 2009-10 -6- co-owners for development purpose, at the same time the co-owners were net ready to sale their share to the developer.
(ii) Land owners get better proposal for sale of land end fast money, for which if was must for appellant to get development agreement terminated, so that he can get clear title and possession over the land, to be sold to ether parties.
(iii) Appellant was under due pressure of compromise, as he knows that in case of litigation and court case, the land will be beyond his control in the next 7-10 years and there will be no money till decision of Court of Law.
(iv) To give dear title, possession and ownership rights to buyers in sale, it was must for the appellant to arrive on compromise to avoid disputes and litigations, therefore, the appellant accepted Arbitration Award for payment, of compensation of Rs. 10,61 crores to the developer for termination of development agreement.
5.7. Considering the above discussion and reasoning, I am inclined to accept the contention of the appellant, from where, it is evident that the appellant was not able to fulfill the conditions of development agreement as the co-owners were neither agree to give their share of land for development purpose nor ready to sale their portion of land to developer. Due to this, the development agreement become hurdle and due to development agreement, the lands become disputed. To avoid such legal juggleries and to have clear and peaceful title over land the appellant agreed for award of compensation of Rs. 10.61 crores for removing encumbrance on land due to development agreement, so that land can be sold to other parties and if the compromise is not arrive, there will be long legal litigations and the land will be under dispute for years to come. The purpose of agreeing to such award is for sale land with clear title and in connection to sale of land.
In view of the above, I hold that the expenditure for termination of development agreement is in connection with transfer of land i.e. sales. The A.O. is directed to allow such expenses as deduction from sale proceeds of lands, the ground of appeal of appellant is allowed.
5.8. In respect of appellant's contention (alternative by and without prejudicial) that the sale agricultural land does not lead to capital gain, I am not inclined on the fact that appellant himself voluntarily offered capital gain from these transaction and failed to substantiate his ground that these land were Agricultural Iand as defined in the Act. Therefore, this contention rejected.
5.9. In respect of issues relating to charging rate of tax on long-term capital gain on sale of land, I am incline to accept the contention of the appellant that taxes on long-term capital gain on sale of assets are @ 20% i.e. concessional rate instead of higher rate of tax. The A.O. is directed to charge concessional rate of tax on long-term capital gain on sale the ground of appeal of appellant is allowed.
5.10 In respect of ground related to charging of interest u/s.234B and 234C, the same is consequential in nature. The A.O. is directed to charge if required after appeal effect."
ITA No. 2518/Ahd/2012 & CO No.29 Ahd 2013 ( DCIT vs.Shri Jagadishchandra B Patel) A.Y. 2009-10 -7-
6. We have heard both the parties. Case file perused. Shri R. I. Patel (CIT-Departmental Representative/1) represents the Revenue. He first of all invites our attention to the Revenue's petition dated 09.07.2014 alongwith a covering letter containing the Assessing Officer's request of additional evidence. The latter petition moved from Assessing Officer's end dated 05.06.2014 pleads as under:
"No.CIT-IV/Tech./ITAT/JBP/2014-15 Date : 05/06/2014 To, The Commissioner of Income-tax ITAT-I, Ahmedabad Sir, Sub: Admission of additional evidences in appellate proceedings Before Hon'ble ITAT in the case of Shri Jagdishchandra Bhaiialbhai Patel for A.Y. 2009-10 - regarding With reference to the appeal filed in the above case for A.Y, 2009-10 at ITA No. 2518/Ahd/2012, I am directed to enclose herewith letter No.DCIT/Circle- 9/ITAT/JBP/2014-15 dated 29/05/2014 of Dy. CIT, Cir!ce-9, Ahmedabad and letter NoJCIT/Range-9/ITAT/Jagdish B Patel/2014-15 dated 03/06/2014 .
2. As reported by Assessing Officer and the Range Head in their reports, in this case the assessee filed return of income showing income under the head long term capital gain of Rs. 4,56,35,583/- on account of sale of land at Sarkhej which was sold to M/s. Apple Woods Estate Pvt. Ltd. for a total consideration of Rs. 16,08,69,914/-. Against the sale proceeds, assessee had claimed transfer expenses of Rs. 10,61,47,415/- which the Assessing Officer disallowed on the ground that the compensation paid to M/s. Prerna Infrabuild Ltd for termination of development agreement dated 30/03/2007 in consequence to the arbitration proceedings by way of an award dated 29/04/2008 which was disallowed by the Assessing Officer as the said compensation is not connected with the sale of land.
3. The CIT(A) deleted the disallowance on the ground that the transfer expenses were in the nature of expenses for betterment of title and hence allowable as deduction against income offer to tax under the head capital gain. The Department did not accept the aforesaid| of CIT(A) and filed appeal to ITAT as mentioned above, which is pending as on date.
4. However, department has been able to unravel the modus operand! of this assessee as well as his family members to claim such expenses on the basis of false ITA No. 2518/Ahd/2012 & CO No.29 Ahd 2013 ( DCIT vs. Shri Jagadishchandra B Patel) A.Y. 2009-10 -8- and fabricated documentary evidence of development agreement, its cancellation and subsequent arbitration proceedings and arbitration award.
4.1. During the course of the proceedings u/s.263 of the Act in the case of Dhara Jagdishchandra Patel (daughter of assessee) for A.Y. 2009-10 wherein claim of expenses amounting to Rs. 3,81,58,013/- had been made against income under the head capital gain. The other facts were exactly similar to the assessee's case i.e. entering into development agreement with one Prerna Infrabuild Ltd and its consequent termination, invoking of arbitration proceedings and arbitration award. The development agreement and other documentary evidences such as arbitration agreement, termination agreement etc were signed by assessee on one hand (both in his individual capacity and as father of Dhara J. Patel) and one Shri Tushar S Shah another hand on behalf of Prerna Infra Build Ltd. The arbitration proceedings as per the award where adjudicated by one Shri Jasubhai D Patel in both cases. Assessee further placed on record evidence of subsequent payment of compensation from its bank account.
4.2. During the course of proceedings u/s.263 of the Act, it was detected through cross-verification from the assessment records of Prerna Infra Build Ltd that the said company had/ not shown any receipt in this regard from Dhara J. Patel. In consequence to the aforesaid fact coming to fore statement of Shri Vijay Shah, Chairman of M/s. Prerna Infra Build Ltd was recorded u/s.131 of the Act by Dy.CIT, Circle-5, Ahmedabad in which he categorically mentioned that Shri Tushar Shah (signatory to the development agreement, termination agreement etc on behalf Prerna Infra Build Ltd n the capacity of director had never been an employee or Director of M/s. Prerna Infra Build Ltd nor authorized by the company at any point of time to enter into any agreement with assessee or his daughter with respect to development of their land at Sharkhej. Shri Vijay Shah Chairman and Managing Director, Prerna Infra Build ltd also denied to have received any amount from either Dhara J. Patel or Shri Jagdishchandra B. Patel in performance of Arbitration Award. Further, Shri Vijay Shah stated that the amount by him from assessee amounted to Rs. 7.85 crores only and not Rs. 10,61,47,415/- as by assessee and the said payment of Rs. 7.85 crroes pertained to different transaction not related to any arbitration award. Finally Shri Vijay Shah has started that balance of Rs. 2.76 crores claimed to have been paid by assessee by way of cheques to Axis Bank Rs.15,00,000/-, Rs. 2,00,00,000/- and Rs. 61,47,415/- had never been received by the company Prerna Infra Build Ltd. The relevant portion of statement recorded from Shri Vijay Shah are reproduced in DCIT, Circle-9 and Jt.CIT, Range-9, A'bad's above referred letter.
5. In view of above facts as reported by the Assessing Officer and the Range Head, it is proved beyond doubt that the claim of assessee for deduction on account of payment of compensation Rs. 10,61,47,415/- to Prerna Infra Build Ltd for termination of development agreement is based on false and fabricated documents with a view to evade tax. Therefore, as proposed by the Assessing Officer and Range Head, Hon'ble ITAT may be presented with these additional evidence and facts with a request to restore back the matter to the file of CIT(A) for proper and further inquiry in this case."ITA No. 2518/Ahd/2012 & CO No.29 Ahd 2013 ( DCIT vs.
Shri Jagadishchandra B Patel) A.Y. 2009-10 -9-
7. Shri Patel accordingly contends that the assessee's hands are not clean in view of the fact that the ld. CIT has been able to bust his modus operandi of claiming false compensation expenses in question. The said CIT -III, Ahmedabad's order dated 29.03.2014 passed in assessee's daughter Ms. Dhara Jagdishchandra Patel's case involving a very much an identical payment made to M/s. Prerna Infrabuild (supra) is also placed on record. Shri Patel quotes the same to vehemently oppose the assessee's claim of expenditure as learned CIT held therein that no payment was made to the above payee entity as per statement of its authorized person Shri Vijay C. Shah as recorded in the course of Section 263 proceedings. Learned Departmental Representative therefore strongly argues that the assessee has raised a fraudulent claim of expenditure in question. He thus seeks to restore Assessing Officer's findings.
8. We have considered Revenue's averments in its abovestated petition. It is not in dispute that the Assessing Officer never doubted the assessee to have made the impugned payment in the nature of compensation to M/s. Prerna Infrabuild in furtherance to the abovestated arbitration award. His main ground taken in assessment order for disallowing the impugned expenditure claim u/s.48(1) of the Act is that the same is not admissible since not connected with transfer of the land in question. It is also evident that the CIT(A)'s order under challenge is dated 13.08.2012 whereas the CIT's order (supra) is dated 29.03.2014 in furtherance to his show cause notice issued on 18.07.2013. We observe in these peculiar facts that Section 263 Explanation 1(c) stipulating that CIT's jurisdiction does not extend to those matters which has been considered and decided in an appeal; squarely applies here. We reiterate that although the assessee is not the same in the above CIT's order and CIT(A)'s order under challenge, still we hold that former's findings would not have mattered at this stage even if the assessee were the same. It ITA No. 2518/Ahd/2012 & CO No.29 Ahd 2013 ( DCIT vs. Shri Jagadishchandra B Patel) A.Y. 2009-10 - 10 -
further transpires that the CIT's order hereinabove stands reversed in said assessee's appeal ITA No.1116/Ahd/2014 with detailed observations that payment to M/s. Prerna Infrabuild stood duly proved by way of banking channel. We therefore find no merit in Revenue's above petition seeking to place reliance upon CIT's order (supra). We thus proceed to adjudicate the Revenue's sole substantive ground on the basis of the material already on record.
9. We now come to learned Departmental Representative' argument that the impugned expenditure of Rs.10.61crores is not allowable u/s.48(i) of the Act since not incurred wholly and exclusively incurred in connection with the transfer in question. We wish to mention here that the assessee declared long term capital gains in the impugned assessment year amounting to Rs.4,56,35,583/- and raised the impugned claim of transfer expenses of Rs.10.61crores. Learned Departmental Representative reiterates the abovestated case law to fortify Assessing Officer's findings. We however find no merit therein. It is evident that hon'ble Supreme Court's decision in Jagdishchandran's case (supra) pertained to a mortgage deed which is not the case here. Same is the fact involved in said hon'ble court's second decision in a Attili N. Rao's case (supra). Third decision in Sita Nanda's case (supra) holds that an expenditure under the above statutory provision has to be wholly and exclusively in connection with the transfer. We keep in mind the same to once again revert back to facts narrated in preceding paragraph wherein it stands proved that the assessee has paid the impugned compensation for having not been able to perform his obligation in development agreement dated 30.03.2007 as followed by subsequent arrangement fetching huge profits by way of long term capital gains. It has further come on record that the assessee made the impugned payment in furtherance to an arbitration award having very much a legal sanctity under ITA No. 2518/Ahd/2012 & CO No.29 Ahd 2013 ( DCIT vs. Shri Jagadishchandra B Patel) A.Y. 2009-10 - 11 -
arbitration law. It is evident from the paper book that hon'ble Bombay high court in CIT vs. Shakuntala Kantilal (1991) 190 ITR 56 (Bombay) allows very much a similar claim of expenditure by holding the same to be in connection with the transfer in question u/s.48(i) of the Act. We find that the assessee therein had entered into an agreement. The vendee concerned filed a suit. The assessee paid the sum in question to the earlier vendee. He thereafter sold the very property to another vendee. This followed identical claim of expenditure which was allowed by hon'ble high court. We make it clear that the case records contain a long compilation of judicial precedents in the very direction. We however conclude that the same are not quoted for the sake of brevity. The gist that flows therefrom is that such an expenditure comes u/s.48(i) of the Act. We further deem it appropriate to observe that the Assessing Officer's case law (supra) pertains to mortgages only which is not found relevant since facts of the instant case involve at development agreement creating a clear cut encumbrance in favour of the developer who has been paid the compensation in question. We thus are of the view that the Assessing Officer's action placing reliance upon the above quoted decisions is not sustainable. We accordingly conclude that the learned CIT(A) has rightly deleted the impugned disallowance after a very detailed discussion extracted hereinabove. The Revenue's sole substantive ground as well as main appeal ITA No.2518/Ahd/12 fails.
10. We now come to assessee's cross objection CO No.29/Ahd/13. Mr. Dhiren Shah submits first of all that assessee's averments therein support CIT(A)'s order deleting the impugned disallowance. He then urges us to come to para 5.8 of the lower appellate order rejecting assessee's contention that the land in question was not a capital asset u/s.2(14) of the Act being agricultural in nature so as to give rise to long term capital gains. After arguing for sometime on this aspect, he wishes to not press for this plea in ITA No. 2518/Ahd/2012 & CO No.29 Ahd 2013 ( DCIT vs. Shri Jagadishchandra B Patel) A.Y. 2009-10 - 12 -
view of our findings on merits. We thus order the assessee's instant cross objection to have been rendered infructuous.
11. This Revenue's appeal is dismissed and assessee's cross objection is dismissed as rendered infructuous.
[Pronounced in the open Court on this the 16th day of May, 2017.] Sd/- Sd/-
(AMARJIT SINGH) (S. S. GODARA)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad: Dated 16/05/2017
True Copy
S.K.SINHA
आदे श क त ल
प अ े
षत / Copy of Order Forwarded to:-
1. राज व / Revenue
2. आवेदक / Assessee
3. संबं धत आयकर आयु!त / Concerned CIT
4. आयकर आयु!त- अपील / CIT (A)
5. )वभागीय ,-त-न ध, आयकर अपील य अ धकरण, अहमदाबाद /
DR, ITAT, Ahmedabad
6. गाड3 फाइल / Guard file.
By order/आदे श से,
उप/सहायक पंजीकार
आयकर अपील य अ धकरण, अहमदाबाद ।