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Income Tax Appellate Tribunal, BENCH ‘B’ KOLKATA
Before: Hon’ble Shri Waseem Ahmed, AM & Shri S.S.Viswanethra Ravi, JM ]
These appeals of the Revenue arise out of the different orders of .Commissioner of Income Tax(Appeals)-VIII, Kolkata in Appeal Nos.176 & 174/CIT(A)- VIII/Kol/08-09 dated 26.07.2011 & 12.09.2011 respectively for A.Y.2006-07 Assessments were framed by ACIT, Circle-9, Kolkata u/s 143(3) of the Income tax Act, 1961 (hereinafter referred to as the ‘Act ‘) vide his order dated 03.11.2008. (M/s.Bagrees Investment Pvt. Ltd.) 2. The revenue has raised the following grounds of appeal :- “1. That "on the facts and circumstances of the case and in law the Ld. ClT(A) erred in accepting fresh evidence which is in violation of Rule 46A of the LT. Rule, 1962.
2. That "on the facts and circumstances of the case and in law, Ld. CIT(A) has erred in directing the A.O. to delete the addition of Rs. 1,29,78,906/- added as long term capital gain.
3. That "on the facts and circumstances of the case and in law, Ld. CIT(A) has erred in not considering the fact that the Assessing Officer is within his right to adopt the sale & 1667/Kol/2011 M/s. Bagrees Investments P.Ltd & M/s. Bagri Synthetics P.Ltd. A..Y. 2006-07 consideration as per the valuation of stamp duty authority which is higher than the value declared by the assessee."
4. That "on the facts and circumstances of the case and in law. Ld. CIT(A) has erred in admitting the evidences on which the Assessing Officer made this disallowances of expenses relating to Capital Gain Income."
3. Ground no.2 raised by the revenue is that the ld. CIT(A) erred in deleting the addition made by the AO for Rs.1,29,78,906/- on account of long term capital gain.
Briefly stated facts are that the assessee, in the present case, is a private limited company and engaged in the business of financial services. The assessee, in the year under consideration, has sold the land and offered the income under the head capital gain. The assessee in working out the capital gain on the sale of land has taken sale consideration as per the deed of conveyance. On questioned by the AO for not taking his sale consideration as determined by the stamp duty valuation authority, the assessee submitted the land was sold on 15th October, 1996 and the possession of the property was handed over in the financial year 1996-97. At that relevant time the provision of section 50C of the Act was not in existence. It came in the statute w.e.f. 01.04.2002. The assessee also submitted that the consideration for the sale of land was taken in the earlier years and therefore the provision as defined u/s 2(47) of the Act cannot be recognized in the year under consideration i.e. financial year 2005-06. However, the AO disregarded the claim of the assessee by observing that the assessee has worked out the capital gain on the sale of land in the year under consideration. The assessee has also taken the indexation cost benefit till the financial year 2005-06. In view of the above the AO invoked the provision of section 50C of the Act and accordingly worked out the capital gain for the year under consideration.
Aggrieved, assessee preferred an appeal before CIT(A), who has confirmed the order of AO after giving relief to the assessee in part.
Aggrieved by this, the revenue has come up in appeal before us. & 1667/Kol/2011 M/s. Bagrees Investments P.Ltd & M/s. Bagri Synthetics P.Ltd. A..Y. 2006-07 6. At the outset, the ld. AR before us submitted that in the similar facts and circumstances the Hon’ble High Court of Calcutta in the case of Bagri Impex (P)Ltd vs ACIT reported in 259 CTR 553 (Cal) where the issue was allowed in favor of the revenue. But against the order of the Hon’ble Calcutta High Court the assessee preferred an appeal to the Apex Court who has stayed the order against the Hon’ble Calcutta High Court (supra) vide SLP No.17138/2013 vide order dated 10.05.2013. In view of the above, the ld. AR submitted that the judgment of the Hon’ble jurisdictional High Court is no more in force and therefore the same cannot be relied on the instant case. The ld. AR further submitted that since the matter is pending before the Hon’ble Supreme Court, the instant case can be restored back to the AO for fresh adjudication as per law and in terms of the directions to be issued by the Hon’ble Supreme Court. On the other hand, the ld. DR raised no objection if the matter is restored to the file of AO for fresh adjudication.
We have heard the rival contentions of both the parties and perused the materials available on record. At the outset, we find that the Apex Court has stayed the order of Bagri Impex (P)Ltd (supra) vide its order dated 10.05.2013 which reads as under :- “Issue notice returnable in the last week of August, 2012. In the meantime, there shall be stay of implementation of the order dated 16.1.2013 passed by the High Court at Calcutta in ITAT No.277 of 2012. “ As the matter is pending in the court of law therefore we are inclined to restore the issue to the file of AO for fresh adjudication with the direction to pass fresh order in the light of the directions to be issued in the aforesaid judgment by Hon’ble Supreme Court. Hence the appeal of the Revenue is allowed for statistical purposes.
In the result the appeal of the revenue is allowed for statistical purposes. (M/s.Bagri Synthetics Pvt. Ltd.) 9. The revenue has raised the following grounds of appeal :
1. That "on the facts and circumstances of the case and in law the Ld. ClT(A) erred in accepting fresh evidence which is in violation of Rule 46A of the LT. Rule, 1962. & 1667/Kol/2011 M/s. Bagrees Investments P.Ltd & M/s. Bagri Synthetics P.Ltd. A..Y. 2006-07
2. That "on the facts and circumstances of the case and in law, Ld. CIT(A) has erred in directing the A.O. to delete the addition of Rs. 57,63,560/- in the sale value consideration for computing as long term capital gain.
3. That "on the facts and circumstances of the case and in law, Ld. CIT(A) has erred in not considering the fact that the Assessing Officer is within his right to adopt the sale consideration as per the valuation of stamp duty authority which is higher than the value declared by the assessee."
As stated earlier, the issues under consideration for the same assessment year, are exactly identical, both parties are agreed whatever view taken in the above appeal in Revenue’s appeal may be taken in this appeal of Revenue also. We hold accordingly.
In the result, both appeal of Revenue stand allowed for statistical purpose. Order pronounced in the court on 11/1/2017.