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08-01-2019, Jawaharlal Pannalal, Section 132, 153C, 54B, Tribunal Indore

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2 months 1 week ago #8307 by amit
Section - 132, 153C, 54B, 271(1)(c)
Order Date - 08-01-2019
Favouring - Assessee Partly allowed for statistical purposes
Court - Tribunal Indore
Appellant - ACIT
Respondent - Jawaharlal Pannalal Nema(HUF)
Justice - KUL BHARAT JM & MANISH BORAD AM
Citation - 119Taxpundit104
Appeal No. - IT(SS)A No.81/Ind/2015
Asstt. Year - 2008-09

Order

PER : KUL BHARAT

This appeal and cross objection in quantum proceedings and appeal in penalty proceedings were taken up together and are being disposed of by way of
consolidated order. First we take up the revenue’s appeal in IT(SS)A No.81/Ind/2015. The revenue has raised following grounds of appeal:

“On the facts and in the circumstances of the case, the Ld. CIT(A):-

i. Erred while deleting the addition of Rs.1,06,00,956/- made by the A.O. under the head ‘Long Term Capital Gain’ owing to the sale of land having Survey No.231/1, 207, 211,212 & 213 at Gram: Umaria, Tehsil: Mhow, Distirct; Indore.

ii. Erred while placing undue reliance upon the report of Patwari, Rau thouigh the Anuvibhageeya Adhikari Rau has not endorsed the said report and merely forwarded the same without inking his/her specific remarks with regard to consent or dissent with the Patwari’s report; and after considering the said report deleted the addition made by the A.O.

iii. The appellant reserves the right to add, amend or alter the ground of appeal on or before the date the appea is finally heard for disposal.”

2. The only effective ground in the revenue’s appeal is against deletion of addition of Rs.1,06,00,956/- made by the A.O. treating the sale of agricultural land as sale of capital asset. The facts in brief are that a search & seizure operation u/s 132 of the Income Tax Act, 1961 (hereinafter called as ‘the Act’) was conducted on 2.5.2008 at the office premises of Rajesh Nema and at his residence. The A.O. issued a notice after case was transferred on DCIT-1 Indore dated 12.8.2010 for taking action u/s 153C of the Act. The A.O. thereafter framed assessment u/s 153C r.w.s. 143(3) of the Act vide order dated 30.12.2010. The A.O. while framing the assessment treated the sale of agricultural land as transaction in the nature of transfer of capital asset and computed long term capital gain arising there from of Rs.1,06,00,956/- and added the same into the income of the assessee.

3. Aggrieved by this the assessee had filed appeal before Ld. CIT(A) where the assessee had challenged proceedings on both legal and factual grounds. The legal ground of the assessee’s appeal was against not recording of satisfaction by the assessing officer of the searched person. This ground of the assessee’s appeal was not adjudicated by the Ld. CIT(A) on the basis that the relief was given in assessee’s appeal on merit i.e. on factual basis. Against this order, both revenue as well as the assessee have filed appeal and cross objection respectively.

4. Ld. CIT(DR) vehemently supported order of the A.O. and submitted that Ld. CIT(A) was not justified in deleting the addition. He further submitted that the Ld. CIT(A) has wrongly appreciated the facts by coming to the conclusion that the said land did not fall within the Municipal limit. Per contra, Ld. Counsel for the assessee submitted that Ld. CIT(A) has considered the notification governing the issue of asset being capital or not.

5. We have heard the rival submissions, perused the materials available on record and gone through the orders of the authorities below. There is no dispute with regard to the fact that Ld. CIT(A) has considered the certificate of the revenue official who has categorically stated that the land in question do not fall within 4 kms. of the limit of Mhau Cantonment Board. Further, it is noticed that Ld. CIT(A) has duly considered the objections of the assessing officer and rejected the same on the basis of notification. The

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