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M/s Vijaya Silk House Pvt. Ltd. Versus A.C.I.T. Cir. 3 (3) , Mumbai

2015 (12) TMI 824 - ITAT MUMBAI

Allowability of exemption to the short term capital gain - sale of an agricultural land - eligibility for exemption from tax u/s 10 - Held that:- The assessee was not aware of this fact that the sale proceeds arised out of sale of an agricultural land is exempt from tax u/s 10 of the Act hence the assessee inadvertently could not adduce the said fact before the Assessing Officer as well as while filing the return of income. The assessee’s claim is in accordance with' the provisions of law and ge .....

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is settled legal position that assessee can raise its legal claim at any stage. The course of appellate proceedings, assessee filed a copy of certificate from "Group Gram Panchayat, Ambhai-Amgaon certified by Gram Sevak and Sarpanch, which suggested that the land is not situated in area, which is comprised within the jurisdiction of a municipality or a cantonment board and which has a population of not less than ten thousand or in any area within such distance, not being more than eight kilomet .....

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in the return of income on the ground that subject matter of STCG was agricultural land as defined u/s 2(14) of the Act. - Decided against revenue - I.T.A. No.4806/Mum/2012 - Dated:- 30-9-2015 - SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI RAMIT KOCHAR, AM For The Appellant by Shri Rajesh Ranjan For The Respondent by : Shri Ishwar Prakash Rathi ORDER PER SHAILENDRA KUMAR YADAV, J.M. : This appeal has been filed by the Revenue on following grounds:- 1. On the facts and circumstances of the case and .....

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ssee in the return of income on the ground that subject matter of STCG was agricultural land as defined u/s. 2(14) of the Income Tax Act without appreciating the fact that the said claim was not made by the assessee either in the original return of income or revised return of income, which is in contravention to the judgment of Hon'ble Supreme Court in the case of M/s. Goetz (India) Ltd. Vs. CIT [284 ITR 323]. 3. On the facts and circumstances of the case and in law, the Id. CIT (A) has erre .....

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egards to this appeal, the assessee seeks condonation of delay by 433 days in filing this appeal before the CIT(A). As per Form No. 35 and memorandum of appeal, the impugned order was received by the assessee on 8-6-2009. Notice in ITNS was issued to the Assessing Officer. The assessee has delayed for 433 days in filing of this appeal before the CIT(A). The stand of the assessee before the CIT(A) has been to condone the delay and filed a detailed written submission in support of its contention. .....

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cultural land and being an agricultural land the asset can not be termed as capital asset as defined section 2(14) and hence the profit on transfer of such land cannot be charged as capital gain. Because of the wrong presumption about the chargeability of tax on this land (ignoring the fact that the land is agricultural land) the income was declared in the return of income and even during the course of assessment proceedings or till the time assessment completed, this mistake could not be rectif .....

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disallowance U/s 14A and rule 8 D also the jurisdictional high court has now taken the view that rule 8 D is not applicable for the asst year 2007-08. Since the time for filing of the appeal has expired but now we came to know correct position of law for exemption on profit on transfer of Agriculture land and disallowance under rule 8 D, we had filed this appeal and there is a delay of 433 days. The delay in filing of this appeal is fully on account of incorrect conclusion drawn by assessee abo .....

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ondonation of delay with a view to do even handed justice on merits in preference to approach which scuttles a decision on merits and no injustice being done because of a non-deliberate delay. Kindly condone the delay and oblige. The above submission has been supported by various case laws. Learned Authorized Representative requested to uphold the condonation of delay at the end of CIT(A) and to uphold the order on merit. On other hand Learned Departmental Representative supported the order of A .....

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pital Gains'. Hence the issue of charging tax on ₹ 53,98,220/- as short term capital gain on transfer of agricultural land does not emanate from the assessment order and is therefore not open to appellate proceedings. In case the assessee had wrongly offered an income to tax in its return of income it had the option of filing a revised return. The maxim "Ignorance Facti excusat, Ignorantia Juris non excusat " states that ignorance of law cannot be held as an excuse and in the .....

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ll have to obtain necessary permission for any other purpose/use of the land than agricultural". The Deed of conveyance submitted for the Lonawala Plot on page 10 that the Vendor shall also get the share certificate issued by the Summer Hill Plot Owners Co-Operative Housing Society Ltd. in the name of Vijay Silk House bearing certificate No. 50 comprising of 5 shares being distinctive nos. 246 to 250 (both inclusive) in respect of plot No. 4, Survey No. 41/1 + 41/2 transferred to the name o .....

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of Amgaon village is 1350 which is less than 10,000. In view of the above remarks, the contention of the assessee that the documents submitted by it may be accepted deserves to be rejected under rule 46A of the IT Rules, 1962 and the case deserves to be decided strictly on merits based on the evidence already on record. 4. The copy of the remand report as referred above was given to the assessee for making counter comments for the same. The assessee in this regard has filed its submission, which .....

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technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. In view of the aforesaid facts and our submission dt. 12- 10-2011, we hereby request your good self that the delay may please be condoned and oblige. 5. The CIT(A) has considered the submission of the assessee with regard to the condonation of delay in filing of appeal as well as additional evidences filed by the assessee in respect of agricultural land. He observed that the delay .....

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his reasoned finding of CIT(A) on point of condonation needs no interference from our side. We uphold the same. 7. On merits, the issue is with regard to allowability of exemption to the short term capital gain of ₹ 53,98,220/-. In appeal, CIT(A) after having considered the submission as well as the case laws cited by the assessee, granted relief to the assessee and the same has been opposed by the Revenue in its further appeal. The ld. D.R. submitted that the CIT(A) erred in allowing capi .....

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f an agricultural land is exempt from tax u/s 10 of the Act hence the assessee inadvertently could not adduce the said fact before the Assessing Officer as well as while filing the return of income. The assessee s claim is in accordance with' the provisions of law and gets support from the CBDT circular No. l4 (XL-35) dated 11/0411955, wherein it has been clearly stated that the officers of department must not take advantage of ignorance of an assessee as to his rights. It is duty of the dep .....

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