THE ITO-WARD-1(2)(3),, AHMEDABAD vs. SMT. LALITABEN GOVINDBHAI PATEL,, AHMEDABAD

आयकर अपील�य अ�धकरण, अहमदाबाद �यायपीठ ‘C’ अहमदाबाद ।

IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, HON’BLE VICE PRESIDENT & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER आयकर अपील सं./I.T.A. No. 875/Ahd/2016 And Cross Objection No. 76/Ahd/2016 (�नधा�रण वष� / Assessment Year: 2009-10) ITO, Smt. Lalitaben बनाम/ Ward-1(2)(3), Ahmedabad, Govindbhai Patel Vs. A-Wing, Room No. 103, Ganesh House, 1st Floor, Pratyaksh Kar Nr. Dharnidhar Derasar, Bhavan, Ambawadi, New Vikas Gruh Road, Ahmedabad- 380015 Paldi Bhatta, Ahmedabad- 380007 Smt. Lalitaben Govindbhai ITO, Patel Ward-1(2)(3), Ahmedabad, Ganesh House, A-Wing, Room No. 103, 1st Floor, Pratyaksh Kar Nr. Dharnidhar Derasar, New Vikas Gruh Road, Bhavan, Ambawadi, Paldi Bhatta, Ahmedabad- 380015 Ahmedabad- 380007 �थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AEA PP9 516 L (Appellant/Respondent) .. (Respondent/Cross Objector) अपीलाथ� ओर से /Appellant by : O. P. Sharma, CIT DR, Lalit P. Jain, Sr. DR Nupur Patel ��यथ� क� ओर से / Respondent by : सुनवाई क� तार�ख / Date of 03/01/2019 Hearing घोषणा क� तार�ख /Date of 22/03/2019 Pronouncement आदेश/O R D E R PER MAHAVIR PRASAD - JM: This appeal has been preferred by the Revenue against the order of Ld. CIT(A) Appeal No. CIT(A)-10/ITO-WD/2(1)/370/2014-15 dated 03.02.2016 arising from assessment order dated 26.06.2014. In the

ITA No.875/Ahd/2016 & C.O. No. 76/Ahd/2016 [ITO Vs. Smt. Lalitaben G. Patel] A.Y. 209-10 - 2 - Revenue’s appeal the assessee has also filed cross objection captioned above.

ITA No.875/Ahd/2016 & C.O. No. 76/Ahd/2016 [ITO Vs. Smt. Lalitaben G. Patel] A.Y. 209-10 - 3 - 5. Accordingly Ld. AO made attention of Rs. 4,04,77,729/- as short term capital gain in the hands of assessee. Against the said order assessee preferred first statutory appeal before the Ld. CIT(A) who granted relied to the assessee with following observation. On going through the facts of the case, it is found that the appellant received the amount, which has fully shown in the books of accounts of the appellant on account of this transaction. The AO failed to establish that the appellant received more money for which additions have been made. The amounts which have been added in the hands of the appellant has been received by M/s. Melody Complex Pvt. Ltd. through regular banking channels and M/s. Melody Complex Pvt. Ltd. has shown this transaction in its books of accounts. M/s. Melody Complex Pvt. Ltd. is also assessed to income tax. There is no evidence to show that the excess amount was received by the appellant than shown by her in regular books of accounts. Therefore, additions in the hands of the appellant are not justified.

ITA No.875/Ahd/2016 & C.O. No. 76/Ahd/2016 [ITO Vs. Smt. Lalitaben G. Patel] A.Y. 209-10 - 4 - Gujarat in Tax Appeal No. 329 of 2018. And the Hon’ble High Court of Gujarat has rendered the order dated 11.04.2018 reported in [2018] 94 taxmann.com 396 (Gujarat) upholding the order of Coordinate Bench of ITAT in ITA NO. 1175/Ahd/2014 and the tax appeal of the department has been dismissed by the Hon’ble Gujarat High Court and in respect of its contention Ld. AR also filed copy of the order of the Gujarat High Court. Before us appeal is an order passed pursuant to u/s. 263. At the outset Ld. AR requested that since already relief had been granted by the Hon’ble High Court to the assessee with the following observation:- Section 48, r.w.s 263, of the Income Tax Act, 1961. Capital gain Computation of (full value of consideration). Assessee entered into agreement to sell land to ‘M’ for a sale consideration of Rs. 38.74 lakhs. At time of execution of agreement, assessee executed a sale deed in which land in question was sold to one ‘G’ Ltd. for a sale consideration of Rs. 4.43 crores. In said sale deed, assessee was seller, ‘G’ Ltd. was buyer and ‘M’ was confirming party. Sale deed also showed that assessee received balance sale consideration of Rs. 37.74 lakhs, whereas remaining amount of Rs. 4.04 crores was received by ‘M’. In return of income, assessee claimed that cost of acquisition of land was Rs. 33.36 which was sold for Rs. 38.74 lakhs and, thus, difference was offered as short term capital gain. Assessing Officer accepted such declaration of assessee. Commissioner passed a revisional order holding that sale consideration being Rs. 4.43 crores, assessee had to offer a sum of Rs. 4.09 crores by way of short term capital gain. Tribunal, however, set aside revisional order. It was undisputed that out of total sale consideration, Rs. 4.04 crores was received by confirming party ‘M’. Whether on facts, when assessee never received anything beyond Rs. 38.74 lakhs originally agreed, question of charging capital gain from assessee on a sum larger than said amount would not arise. Held, yes. Whether, therefore, Tribunal

ITA No.875/Ahd/2016 & C.O. No. 76/Ahd/2016 [ITO Vs. Smt. Lalitaben G. Patel] A.Y. 209-10 - 5 - was justified in setting aside revisional order passed by commissioner. Held, yes [Para 7] [In favour of assessee].

This Order pronounced in Open Court on 22/03/2019

Sd/- Sd/- (PRAMOD KUMAR) (MAHAVIR PRASAD) JUDICIAL MEMBER VICE PRESIDENT Ahmedabad: Dated 22/03/2019 True Copy TANMAY आदेश 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. गाड� फाइल / Guard file.

By order/आदेश से,

उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद ।