The Income-tax Officer, Ward-6(2), Nagpur v. Devidas Govindrao Kirpane
[Citation -2016-LL-0919-11]

Citation 2016-LL-0919-11
Appellant Name The Income-tax Officer, Ward-6(2), Nagpur
Respondent Name Devidas Govindrao Kirpane
Court ITAT-Nagpur
Relevant Act Income-tax
Date of Order 19/09/2016
Assessment Year 2009-10
Judgment View Judgment
Keyword Tags real estate business • capital gain tax • natural justice • sale of land
Bot Summary: Whether on the facts and circumstances of the case and in law the Learned CIT(Appeals) has erred in deciding the issue by relying only on the submission of the assessee that he agreed to pay the taxes treating the profit as short term capital gain by misconception , without appreciating the fact that the assessee is guided by a professional i.e. the Chartered Accountant expected to be completely diligent, cautious and careful while preparing and finalizing the business affairs of his/her client. The assessee has claimed the same to be agricultural land. Before the learned CIT(Appeals) the assessee submitted that the assessee had erroneously accepted to pay tax in the aforesaid sale of agricultural land. Before the learned CIT(Appeals) the assessee changed its stance and claimed that it was on account of wrongful advise that he had agreed to pay the tax. Thereafter the learned CIT(Appeals) examined the assessee s submission and came to the conclusion that the assessee s claim was correct. After the AO has been stopped in making any further enquiry/investigation by the admission of the assessee in offering the sale of land as capital gain it was incumbent upon the learned CIT(Appeals) to send the submissions of the assessee regarding his claim of agricultural land for remand/examination by the AO. Admittedly in this case learned CIT(Appeals) has not done any such activity. The AO deserves the chance to examine the submission of the assessee before the learned CIT(Appeals).


ITA No. 337/Nag/2014. IN INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) I.T.A. No.337/Nag/2014. Assessment Year : 2009-10. Income-tax Officer, Shri Devidas Govindrao Kirpane, Ward-6(2), Nagpur. Vs. Nagpur. PAN ADEPR 3256D. Appellant. Respondent. Appellant by : Smt. Agnes P. Thomas. Respondent by : Shri Himesh Demble. Date of Hearing : 08-09-2016 Date of Pronouncement : 19th Sept., 2016 ORDER This appeal by Revenue is directed against order of learned CIT(Appeals)-II, Nagpur dated 04-03-2014 and pertains to assessment year 2009-10. grounds of appeal read as under : 1. Whether on facts and circumstances of case and in law Learned CIT(Appeals) has erred in deciding issue by relying only on submission of assessee that he agreed to pay taxes treating profit as short term capital gain by misconception , without appreciating fact that assessee is guided by professional i.e. Chartered Accountant expected to be completely diligent, cautious and careful while preparing and finalizing business affairs of his/her client. 2. Whether on facts and circumstances of case and in law Learned CIT(Appeals) has erred in not appreciating fact that assessee is into Real Estate Business and has accordingly computed total income and filed return of income. 2 ITA No. 337/Nag/2014. 2. In this case assessee has sold land for Rs.76,79,000/-. assessee has claimed same to be agricultural land. enquiries conducted by AO showed that no agricultural activity was carried on and land was sold out of short period of 13 months. On query by AO in this regard assessee offered profits on sale of land under head Short Term Capital Gain. 3. Before learned CIT(Appeals) assessee submitted that assessee had erroneously accepted to pay tax in aforesaid sale of agricultural land. Learned CIT(Appeals) accepted this submission and proceeded to examine issue. He agreed with assessee that no capital gain was exigible as sale of that agricultural land. 4. Against above order, Revenue is in appeal before ITAT. 5. I have heard both counsel and perused records. I find that in explanation to query by AO assessee has agreed to offer capital gain tax on sale of aforesaid land. Thus assessee clearly stopped AO from making any further enquiry/investigation. Before learned CIT(Appeals) assessee changed its stance and claimed that it was on account of wrongful advise that he had agreed to pay tax. Thereafter learned CIT(Appeals) examined assessee s submission and came to conclusion that assessee s claim was correct. 6. In this regard I find that principle of natural justice apply to assessee as well as Revenue. After AO has been stopped in making any further enquiry/investigation by admission of assessee in offering sale of land as capital gain it was incumbent upon learned CIT(Appeals) to send submissions of assessee regarding his claim of agricultural land for remand/examination by AO. Admittedly in this case learned CIT(Appeals) has not done any such activity. Hence in my considered opinion order of 3 ITA No. 337/Nag/2014. learned CIT(Appeals) suffers from infirmity. AO deserves chance to examine submission of assessee before learned CIT(Appeals). Hence I remit this issue to file of AO. AO is directed to examine veracity of assessees submission regarding claim of sale of land as agricultural land sale. 7. In result, this appeal filed by Revenue stands allowed for statistical purposes. Order pronounced in Open Court on this 19th day of Sept., 2016. Sd/- ( SHAMIM YAHYA) ACCOUNTANT MEMBER. Nagpur, Dated: 19th Sept., 2016. Copy forwarded to : 1. Shri Devidas Govindrao Kirpane, 7, Shashi Bhawan, R.M.S. Colony, Old Subhedar Layout, Nagpur-440024. 2. I.T.O., Ward-6(2), Nagpur. 3. C.I.T.- III, Nagpur. 4. CIT(Appeals), -II, Nagpur. 5. D.R., ITAT, Nagpur. 6. Guard File True Copy By Order Assistant Registrar, Income Tax Appellate Tribunal, Nagpur Bench, Nagpur. Wakode. Income-tax Officer, Ward-6(2), Nagpur v. Devidas Govindrao Kirpane
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