Income Tax Appellate Tribunal - Ahmedabad
Shri Chetan H. Shah,, Vadodara vs The Income Tax Officer, Ward-1(3)(1),, ... on 20 December, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL
"B" BENCH, AHMEDABAD
BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER&
Ms. MADHUMITA ROY, JUDICIAL MEMBER
I.T.A. No. 1320/Ahd/2017
(Assessment Year: 2011-12)
Shri Chetan H Shah Vs. ITO
23, Amarkunj Society, Ward-1(3)(1),
Ellora Park, Aaykar Bhavan
Vadodara- 390007 Race Course Circle,
Vadodara- 390007
[PAN No. AGY PS3 617 H]
(Appellant) .. (Respondent)
Appellant by : Shri Nirmit Mehta, AR
Respondent by : Shri Vidyut Trivedi, Sr. D.R.
Date of Hearing 19.12.2019
Date of Pronouncement 20.12.2019
ORDER
PER Ms. MADHUMITA ROY - JM:
The instant appeal filed by the assessee is directed against the order dated 28.02.2017 passed by the Commissioner of Income Tax (Appeals) - 4, Vadodara arising out of the order dated 28.03.2014 under section 143(3) of the Income Tax Act, 1961 (hereinafter referred as to 'the Act') passed by the ITO, Ward-3(1), Baroda for Assessment Year 2010-11 with the following grounds:-
"1. The learned Commissioner of Income Tax (Appeals)-4, Vadodara ["the CIT(A)"] erred in fact and in law in confirming the action of the learned Income Tax Officer, Ward 3(1), Vadodara in considering the land situtated at village Sherkhi as not an agricultural land.ITA No.1320/Ahd/2017
Shri Chetan H Shah vs. ITO Asst.Year -2011-12 -2-
2. The learned CIT(A) erred in fact and in law in confirming the action of the AO in holding the assessee's land village, Sherkhi as a "capital asset"
as defined in section 2(14) of the Income Tax Act, 1961 ("the Act") and thereby taxing the gain arising on sale of land u/s. 45 of the Act.
3. Without prejudice to the above, the learned CIT(A) erred in fact and in law in confirming the action of the AO in not allowing exemption u/s. 10(37) of the Act on the sum of Rs. 29,90,006/-.
4. The learned CIT(A) erred in fact and in law in confirming the action of the AO in treating the income arising on sale of land as business income instead of capital gain.
5. The learned CIT(A) ERRED in fact and in law confirming the action of the AO in treating agricultural income amounting to Rs. 1,62,200/- as "income from other sources".
6. The learned CIT(A) erred in fact and in law in confirming the actions of the AO in charging interest u/s. 234A of the Act.
7. The learned CIT(A) erred in fact and in law in confirming the actions of the AO in charging interest u/s. 234B of the Act.
8. The learned CIT(A) erred in fact and in law in confirming the action of the AO in charging interest u/s. 234C of the Act.
9. The learned CIT(A) erred in fact and in law in confirming the actions of the AO in initiating penalty u/s. 271(1)(c) of the Act."
2. At the time of the hearing of the instant appeal the Ld. Counsel appearing for the assessee submitted before us that the Ground No. 1 is the main ground and if this ground is decided all other ground become infructuous. Assessee's case is this that the land in question situated at Sherkhi is an agricultural land and away from 8kms. from the Municipal limits of Baroda. Thus, it is not a capital asset as defined under section 2(14) of the Act and thereby taxing the gain on the sale of the said land under section 45 of the Act does not arise. He also relied upon a Circular dated 06.01.1994 in support of his case and also the judgments ITA No.1320/Ahd/2017 Shri Chetan H Shah vs. ITO Asst.Year -2011-12 -3- pronounced by the Co-ordinate Bench on identical issue. However, this particular aspect has not been considered by the authorities below and hence, he fairly prays for setting aside the issue to the file of the Ld. AO for deciding the same afresh.
On the other hand, the Ld. DR relied upon the order passed by the authorities below.
3. Heard the parties, perused the relevant materials available on record including the notification dated 06.01.1994 issued by the CBDT. And the judgment passed by the Co-ordinate Bench in ITA No. 2138/Ahd/2012 for A.Y. 2009-10.
It appears that while deciding the issue the authorities below has not taken into consideration the prevailing notification dated 06.01.1994 which is applicable to the instant case of the assessee. It is fact that in the event the land in question is found to be beyond Municipal limits in terms of such notification and thus satisfies the criteria as an agricultural land then it is not a capital asset, neither the gain arising out of the sale of the said land is taxable under section 45 of the Act. However, since the issue has not considered by the authorities below we find it fit and proper to remit the same to the file of the Ld. AO to decide it afresh upon taking into consideration the notification dated 06.01.1994 and also judgment passed by the Co-ordinate Bench in ITA No. 2138/Ahd/2012 and upon giving an opportunity of being heard to the assessee and upon taking into consideration the evidence on record and any other evidence which the ITA No.1320/Ahd/2017 Shri Chetan H Shah vs. ITO Asst.Year -2011-12 -4- assessee to choose to file at the time of hearing of the issue. Thus, assessee's appeal is allowed for statistical purposes.
4. In the result, assessee's appeal is allowed for statistical purposes.
This Order pronounced in Open Court on 20/12/2019
Sd/- Sd/-
(PRADIP KUMAR KEDIA) (Ms. MADHUMITA ROY)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 20/12/2019
TANMAY, Sr. PS TRUE COPY
आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. संबं धत आयकर आयु त / Concerned CIT
4. आयकर आयु त(अपील) / The CIT(A)-
5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड' फाईल / Guard file.
आदे शानुसार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad
1. Date of dictation 19.12.2019
2. Date on which the typed draft is placed before the Dictating Member 19.12.2019
3. Other Member.....................
4. Date on which the approved draft comes to the Sr.P.S./P.S 19 .12.2019
5. Date on which the fair order is placed before the Dictating Member for pronouncement .12.2019
6. Date on which the fair order comes back to the Sr.P.S./P.S .12.2019
7. Date on which the file goes to the Bench Clerk 20.12.2019
8. Date on which the file goes to the Head Clerk..........................................
9. The date on which the file goes to the Assistant Registrar for signature on the order..........................
10. Date of Despatch of the Order..........................................