PRADIP PRANLAL SHAH,PUNE vs AU NATIONAL E-ASSESSMENT CENTRE DELHI, DELHI

Income Tax Appellate Tribunal, “B” BENCH, PUNE

Before: SHRI R.K. PANDA & SHRI S.S. GODARA

For Appellant: Shri Nikhil Pathak

For Respondent: Shri Arvind Desai

Hearing: 11.09.2024Pronounced: 18.09.2024

आदेश / ORDER

PER S.S. GODARA, JM :

This assessee’s appeal for assessment year 2018-19 arises against the NFAC’s Order No.ITBA/NFAC/S/250/2023-24/1059161549(1), dated 28.12.2023, involving proceedings u/s.250 of the Income Tax Act, 1961 (in short “the Act”).

Heard both the parties. Case file perused. 3. The assessee pleads the following substantive grounds in the instant appeal.

“The following grounds are taken without prejudice to each other

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On facts and in law. 1] The Id. CIT(A) erred in confirming the addition of Rs.53,90,000/- made by the Id. A.O. on the ground that the land situated at Gat No.1738, Ranjangaon Ganapati, Tal Shirur, Dist Pune which was sold by the assessee was not an agricultural land and hence, the gain thereon was taxable as long term capital gain. 2] The Id. CIT(A) failed to appreciate that the above referred land sold by the assessee was an agricultural land and hence, the same was not a capital asset as per the provisions of section 2(14) and accordingly, the addition made of Rs. 53,90,000/- ought to have been deleted. 3] The Id. CIT(A) erred in not appreciating the various evidences submitted by the assessee to prove that the land sold by him was an agricultural land and hence, the addition confirmed by him is not justified at all. 4] Without prejudice to the above grounds, the assessee submits that the entire sale proceeds received on sale of the above referred land has been taxed as long term capital gains by the Id. A.O., without appreciating that only the gain after reducing the indexed cost could be taxed as long term capital gain in the hands of the assessee. 5] The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal.”

It emerges during the course of hearing that the assessee’s sole substantive grievance raised in the instant appeal challenges both the lower authorities’ action assessing long term capital gains of Rs.53.90 lakhs in his hands, in the course of assessment framed on 17.02.2021 as upheld in the lower appellate discussion reading as follows :

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We wish to make it clear at the outset that the assessee has stated

in very fair terms that he had never claimed any section 54B deduction

either in the return or otherwise, as the case may be. The Revenue is

equally very fair in not rebutting the same before us. It is in this factual

backdrop that we proceed to decide with the foregoing sole substantive

question of long term capital gains addition amounting to Rs.53.90

lakhs.

There is no dispute between the parties that the assessee had

indeed sold/transferred the land at Taluka Shirur, Pune on 19.05.2017

for a consideration of Rs.53.90 lakhs. A perusal of the assessee’s paper

book running into 65 pages indicates that he had also produced the

corresponding Form 7/12 extract indicating the said land to be

agricultural only. The Assessing Officer appears to have treated the

said land as a capital asset within the meaning of section 2(14) of the

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Act to assess the foregoing sale consideration as his long term capital

gains as upheld in the lower appellate proceedings.

Learned counsel’s sole substantive argument is that the assessee’s

land nowhere qualifies the relevant conditions in section 2(14) so as to be a capital asset once the CIT(A)’s detailed discussion in para 6.8 to

6.9 has gone by “proximity” of various industries in the corresponding location. This clinching fact has gone un-rebutted from the

departmental side as there is no indication in the case file that the land satisfies all the relevant parameters of being a capital asset. This is

indeed coupled with the fact that the assessee has already proved his land cultivated for agricultural activities only. We thus conclude in

these peculiar facts and circumstances that once both the learned lower authorities have not quoted any concrete material indicating the

assessee to have transferred his agricultural land as a capital asset, the impugned consequential long term capital gains addition of Rs.53.90

lakhs is not sustainable in law. The same is directed to be deleted in very terms.

This assessee’s appeal is allowed. Order pronounced on 18th September, 2024.

Sd/- Sd/- R.K. PANDA S.S. GODARA VICE PRESIDENT JUDICIAL MEMBER पुणे / Pune; �दनांक / Dated : 18th September, 2024 Satish

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आदेश क� ��त�ल�प अ�े�षत/Copy of the Order is forwarded to : 1. अपीलाथ� / The Appellant; 2. ��यथ� / The Respondent; 3. The concerned Pr.CIT 4. "वभागीय ��त�न%ध, आयकर अपील�य अ%धकरण, पुणे “B” / DR ‘B’, ITAT, Pune; 5. गाड� फाईल / Guard file. आदेशानुसार / BY ORDER,

//स�या"पत ��त// True Copy// व*र+ठ �नजी स%चव / Sr. Private Secretary आयकर अपील�य अ%धकरण, पुणे / ITAT, Pune

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, PUNE

BEFORE SHRI R.K. PANDA, VICE PRESIDENT AND SHRI S.S. GODARA, JUDICIAL MEMBER

आयकर अपील सं. / ITA No.371/PUN/2024 �नधा�रण वष� / Assessment Year: 2018-19

Pradip Pranlal Shah, AU National e-Assessment 410, Budhwar Peth, Centre, Delhi बनाम / Near Pasodya Vithoba V/s. Temple, Pune 411002 Maharashtra PAN : ADXPS3591G .......अपीलाथ� / Appellant ……��यथ� / Respondent Assessee by : Shri Nikhil Pathak Revenue by : Shri Arvind Desai

सुनवाई क� तार�ख / Date of Hearing : 11.09.2024 घोषणा क� तार�ख / Date of Pronouncement : 18.09.2024