PINAKIN DINESHCHANDRA SHAH,VADODARA vs. INCOME-TAX OFFICER WARD 1(3)(2), VADODARA, VADOSARA

That on the facts and in law, the Hon'ble CIT(A) was not justified in considering the rural agricultural land as capital asset u/s 2(14) of the Act Asst. Year : 2012-13 - 2– which is not liable to any Long-Term Capital Gain and erred in confirming the impugned addition in a mechanical manner.

That on the facts of the case, Hon'ble CIT(A) erred in appreciating the fact that impugned land was owned by 8 co-owners not by 5 co-owners and hence, as an alternative argument, assessee's share and chargeable capital gain should have been accordingly calculated.

That Hon'ble CIT(A) failed to accept the additional grounds of appeal with regard to challenging the validity of assumption of juri iction for reopening of case u/s 148 on various counts which ought to have been accepted in the light of ratio laid down by Hon'ble Supreme Court in the case of Jute Corporation of India Ltd. Vs CIT (1991)187 ITR 688(SC).

That Hon'ble CIT(A) failed to take judicial notice of the fact that in one of the co-owners namely Babubhai A. Joshi, no addition was made for alleged LTCG in respect of same land by the assessing officer, ITO, Ward, Patan by treating the said land as outside the definition of Capital Assets u/s 2(14) of the Act. Hence, following the "rule of consistency", the impugned addition should have been deleted.

That Hon'ble CIT(A) also failed to take judicial notice of the fact that impugned land was fraudulently transferred by other persons and not by the assessee himself by forging his signature for which matter is pending in the Court. By this way, when there was "no valid transfer", no Capital Gain is chargeable. ”

The brief facts of the case are that the assessee is an agriculturist who sold an immovable property amounting to Rs.1,47,30,000/- during the FY 2011- 12, but no return of income was filed by the assessee. The case was reopened u/s 147 of the Act. The Assessing Officer observed that the land was sold with 4 other co-owners for the consideration amount of Rs.1,47,30,000/- to M/s. Advantage Equi Fund Pvt. Ltd and the share of the assessee in this transaction was Rs.29,46,000/- (1/5th share in sale consideration of Rs. 1,47,30,000/-). Subsequently, assessment order u/s 144 r.w.s. 147 was passed on 26.10.2019 Asst. Year : 2012-13 - 3– making an addition of Rs.29,46,000/- as the assessee had not offered the capital gain to tax.

Aggrieved by the order of the Assessing Officer, the assessee filed appeal before the Ld. CIT(A) who dismissed the appeal of the assessee.

Aggrieved, the assessee is now in appeal before the Tribunal.

On going through the record, we find that the Assessing Officer has passed order u/s 144 of the Act and the CIT(A) dismissed the appeal of the assessee summarily owing to non-submission of relevant facts before him. Since the assessee being an agriculturist not well versed with the procedural aspect of the taxation, we deem it fit to remand the matter to the Assessing Officer to examine the issue and pass an order de-novo. The assessee shall comply to the notices issued by the Assessing Authorities from time to time, failing which the Assessing Officer shall invoke the relevant penalty provisions of the Income Tax Act as deemed fit.

In the result, the appeal of the assessee is allowed for statistical purposes.