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Income Tax Appellate Tribunal, “B” BENCH, AHMEDABAD
Before: SHRI RAJPAL YADAV & SHRI WASEEM AHMED
O R D E R आदेश आदेश आदेश PER RAJPAL YADAV, VICE PRESIDENT : The Revenue is in appeal before the Tribunal against the order of the learned Commissioner of Income-Tax (Appeals)-10, Ahmedabad (“CIT(A)” in short) dated 10.06.2019 passed for Assessment Year 2009-10. On receipt of notice in the Revenue’s appeal, the assessee has filed Cross Objection bearing CO No.186/Ahd/2019. 2. The grounds of appeal
taken by the Revenue read as under:- “1. The Ld. CIT(A) has erred in law and on facts in holding the land sold was used by the assessee for agricultural purposes and assessee is eligible for claim of exemption u/s 54B of the Act of Rs.6,56,467/- and Rs.7,55,04,908/- totaling to Rs.7,61,61,375/-.
2. The CIT(A) has erred in law and on facts in allowing the deduction u/s 54B of the Act when the purchase deed does not reflect any such consideration.”
CO 186/Ahd/2019 DCIT Vs. Shri Hitendrakuamr Bhailal Patel AY : 2009-10 2
Before recording any finding, we would like to note certain details in seriatim as under:-
SN Date Event 1 30.09.2009 The assessee declared an income of Rs.6,68,33,280/-. 2 27.12.2011 An assessment order was passed under Section 143(3) of the Act determining the taxable income equivalent to the income declared by the assessee. 3 19.03.2014 Action under Section 263 of the Act was taken by the Commissioner. An order was passed under Section 263 of the Act. 4 26.03.2015 An assessment order was passed under Section 143(3) r.w.s. 263 of the Act determining the total income of the assessee at Rs.21,83,72,113/-. 5 21.04.2015 The assessee has filed the appeal before the CIT(A) against the assessment order dated 26.03.2015 passed under Section 143(3) r.w.s 263 of the Act. 6 21.12.2017 The assessee had filed an appeal before the ITAT challenging the order under Section 263 of the Act. This appeal was registered as ITAT No.1114/Ahd/2014 and it was partly allowed on 21.12.2017. The Tribunal has vacated the order of the Commissioner and only confirmed the addition to the extent of Rs.1 lac with respect to claim of deduction under Section 54B of the Act. 7 23.05.2018 The assessee earlier moved an application before the Assessing Officer apprising him the order of the ITAT, Ahmedabad in dated 21.12.2017. He requested to give effect to this order and learned Assessing Officer has passed an order under Section 154 of the Act on 24.05.2018. He determined the taxable income at Rs.6,69,33,280/-. 8 10.06.2019 This order of the Assessing Officer passed under Section 154 of the Act on 24.05.2018 was brought to the notice of the learned CIT(A) wherein the original order passed under Section 143(3) r.w.s. 263 of the Act was under challenge.
It is pertinent to note that in pursuance to order passed under Section 263 of the Act passed by the learned CIT, a fresh assessment order was passed. The order of the learned CIT passed under Section 263 of the Act was challenged before the ITAT which was vacated substantially, except the CO 186/Ahd/2019 DCIT Vs. Shri Hitendrakuamr Bhailal Patel AY : 2009-10 3 confirmation of an addition to the extent of Rs.1 lac. Thus, the very jurisdiction of the Assessing Officer has been substantially reduced or vacated. The assessee applied for giving effect to the order of the Tribunal. This effect has been given. During the pendency of appeal before the learned First Appellate Authority against the assessment order passed under Section 143(3) r.w.s. 263 of the Act, the assessee brought this fact to the notice of the learned CIT(A) and the learned CIT(A) took cognizance of the changed facts and allowed the appeal of the assessee. The findings of the learned CIT(A) read as under:-
“6. I have carefully considered the order u/s. 143(3) r.w.s. 263 of the Act dated 26.03.2015 passed by the AO and subsequent order u/s. 154 of the IT Act, 1961 passed by the AO on 01.05.2015 and submission of the appellants. The AO in the assessment order u/s. 143(3) r.w.s. 263 of the Act has modified the total income of the appellant u/s. 143(3) of the Act vide order dated 27.12.2011 as per the directions of the Commissioner of Income Tax, Ahmedabad - IV, Ahmedabad as per his order u/s. 263 of the Act dated 19.03.2014. The AO while passing the order u/s. 143(3) r.w.s. 263 of the Act dated 26.03.2015 wherein, he has given the effect of modification in the assessment order rendered u/s. 143(3) of the Act as per the directions of the CIT, Ahmedabad-IV, Ahmedabad. However, as the AO made duplicate disallowance u/s. 54B of the Act of Rs. 7,62,61,375/-, the appellant made an application u/s. 154 of the Act and the AO passed order u/s. 154 of the Act dated 01.05.2015 by deleting the duplicate disallowance u/s. 54B of the Act for an amount of Rs. 7,62,61,375/- and determined the total income at Rs.14,30,94,655/- as against the total assessed income u/s. 143(3) r.w.s. 263 of the Act dated 26.03.2015 of Rs. 21,83,72,113/-. The appellant also challenged the order of the CIT, Ahmedabad -IV, Ahmedabad for A.Y. 2009-10 dated 19.03.2014 by filing an appeal before the Hon'ble ITAT, Ahmedabad and the Hon'ble ITAT, Ahmedabad "B" Bench has rendered the appellate order in respect of the appeal filed by the appellant in dated 21.12.2017 for A.Y. 2009-10 allowing the appeal of the appellant while deleting the directions of the CIT, Ahmedabad-IV, Ahmedabad in the order u/s. 263 of the Act dated 19.03.2014 and only an amount of Rs. 1,00,000/- in respect of claim of deduction u/s.54B of the Act claimed by the appellant in the original return for which the direction for disallowance of claim of Rs. 1,00,000/- u/s. 54B of the Act has been given by the Hon'ble ITAT and rest of the directions of the CIT, Ahmedabad -IV, Ahmedabad given in the order u/s. 263 of the Act to the AO for modifying the order for making the addition has been deleted by the Hon'ble ITAT, "B"
CO 186/Ahd/2019 DCIT Vs. Shri Hitendrakuamr Bhailal Patel AY : 2009-10 4 Bench, Ahmedabad in its order vies dated 21.12,2017. The appellant has also filed the order of the Hon'ble ITAT vide ITA No. 1114/Ahd/2014 dated 21.12.2017 for A.Y. 21.12.2017 for A.Y. 2009-10 along with an application to the AO for giving the effect of the order of the Hon'ble ITAT and the AO has also passed the order giving effect to the order of Hon'ble ITAT vide his order dated 24.05.2018 addressed to the appellant which has been attached by the appellant along with his Synopsis of Arguments placed before me as per Exhibit -IV (Page No. 21 & 22) and the necessary effect of the order of the Hon'ble ITAT has been given by the AO in the order giving effect to the Hon'ble ITAT's order by only restricting the disallowance u/s.54B as per the Hon'ble ITAT's order for an amount of Rs. 1,00,0007- and the revised total income has been determined at Rs.6,69,33,280/- as against the income assessed u/s. 143(3) of the Act dated 27.12.2011 for an amount of Rs. 6,68,33,280/-.
In view of the order of the Hon'ble ITAT, "B", Ahmedabad, vide dated 21.12.2017 for A.Y. 2009-10 against the order of the CIT, Ahmedabad-IV, Ahmedabad u/s. 263 of the Act for which necessary effect has already been given by the AO in the order giving effect to the Hon'ble ITAT order, the modification made by the AO in the order u/s. 143(3) r.w.s. 263 of the Act while making the disallowance as per the directions of the CIT u/s.263 of the Act has been deleted and the disallowance u/s. 54B has been restricted to the extent of Rs. 1,00,000/- as per the direction given by the Hon'ble ITAT by the AO in the order giving effect to the Hon'ble ITAT order. Respectfully following the order of the Hon'ble ITAT, "B" Bench, Ahmedabad, the modification made by the AO in the assessment order u/s. 143(3) r.w.s.263 of the Act dated 26.03.2015 making the disallowance u/s.54B of the Act is hereby deleted subject to making the disallowance of Rs. 1,00,000/- u/s. 54B of the Act as per the order of the Hon'ble ITAT, "B" Bench, Ahmedabad, (cited supra) for which necessary effect has already been given by the AO in the order giving effect to the order of the Hon'ble ITAT, vide order dated 24.05.2018. Thus, the appeal is partly allowed.”
In view of the facts narrated above, we do not find any merit in the appeal of the Revenue; because the assessment order passed under Section 143(3) r.ws. 263 of the Act is based on the order of the Commissioner which has been vacated by the Tribunal on appeal of the assessee challenging the 263 order. Therefore, the very jurisdiction of the Assessing Officer had extinguished substantially and the Assessing Officer himself recognized it by passing a 154 order whose cognizance has been taken by the CIT(A) in CO 186/Ahd/2019 DCIT Vs. Shri Hitendrakuamr Bhailal Patel AY : 2009-10 5 the impugned order. Therefore, there is no error in the finding recorded by the learned CIT(A). We uphold the order of the learned CIT(A) and dismiss the appeal of the Revenue.
Coming to the Cross Objection filed by the assessee, as the Cross Objection filed by the assessee merely supports the order of the learned CIT(A), the Cross objection is thus dismissed as infructuous.
In the result, appeal filed by the Revenue and Cross Objection filed by the assessee, both are dismissed.
Order pronounced in the Court on 6th December 2021 at Ahmedabad.