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TAXAP/716/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 716 of 2010
=========================================================
COMMISSIONER
OF INCOME TAX, CENTRAL - II - Appellant(s)
Versus
JAYANTILAL
D PANCHAL - Opponent(s)
=========================================================
Appearance
:
MRS
MAUNA M BHATT
for
Appellant
None for
Opponent
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI 18th July 2011
ORAL
ORDER
(Per
: HONOURABLE MS JUSTICE SONIA GOKANI)
This Appeal u/s. 260A of
the Income-tax Act, 1961 [“Act” for short] is
preferred by the Revenue against the judgment and order of the Income
Tax Appellate Tribunal, Ahmedabad [“Tribunal” for
short] dated 29th October 2009, raising the following
question of law :-
“Whether
in the facts and circumstances of the case that the Appellate
Tribunal has rightly held that the assessee was not carrying on
business but was holding assets as capital assets and profit earned
is not business profit but is a capital gain ?”
In
the present Tax Appeal, the issue involved is in respect to tax
ability of income arising on sale of the land. The assessee treated
the profit on sale of land as “long term capital gain”
after claiming indexation of cost of acquisition, whereas, the
Assessing Officer treated such profit as “business profit “,
relying on certain factual aspects. When challenged, the CIT [A]
upheld the findings of Assessing Officer. In an appeal preferred by
the assessee -respondent before the Tribunal, the Tribunal reversed
the findings of CIT [A] by following its own Order in ITA No.
289/Ahd/2005 dated 24th October 2008 rendered on this very
issue in the assessee’s case for Assessment Year 2001-2002. In the
words of the Tribunal –
“6. We
have heard the rival submissions. We find that similar issue came up
for consideration before the ITAT, “A” Bench, Ahmedabad
in assessee’s own case for A.Y 2001-02 in ITA No. 289/Ahd/2005. The
Tribunal vide its order dated 24.10.2008 has decided the issue
in favour of the assessee and against the Revenue observing as under
:-
“20. In
the totality of the facts and circumstances of the case and in view
of the various decisions discussed hereinbefore, we are of the
opinion that the assessee was not carrying on any business or any
adventure in the nature of trade in lands and had been purchasing the
lands with the intention to make investment ie., to keep the same as
capital asset and, therefore, any surplus arising as a result of sale
of transfer of such assets was taxable as long term capital
gain/short term capital gains depending on the nature of assets ie.,
whether the assets was short term capital gains/long term capital
gains. Assessee’s ground is allowed.”
Facts
being similar in this Appeal to the facts of the assessee’s case in
Assessment Year 2001-02, the Tribunal adhered to its earlier year’s
version.
It
is urged before this Court by the learned counsel for the Revenue
that due to low tax effect, for the earlier year, no appeal was
preferred.
Be that as it may, Tribunal decided the issue on considering totality
of facts available with it. Moreover, there being no reason for the
Tribunal to take different view than it had taken in assessee’s own
case, it committed no illegality or mistake. And when no infirmity
having been found in this approach of the Tribunal, the present Tax
Appeal deserves to be dismissed. Accordingly, Tax Appeal stands
dismissed.
{Akil
Kureshi, J.}
{Ms.
Sonia Gokani, J.}
Prakash*
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