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The Income-tax Officer, Ward-2 (2) , Nagpur Versus Shri Inder Sunderdas Sethiya

2016 (4) TMI 375 - ITAT NAGPUR

Agricultural land - CIT(A) held that the agricultural land which is within 8 Kms from municipal limits is not a capital asset - Held that:- CIT(Appeals) has grossly erred in ignoring all those facts and adopted a contrary view, that too by taking a ‘turtle turn’ simply on the pretext that the case laws of higher forum were binding upon him. It is a well established law that an appeal is to be decided on it’s own facts as available on record. In this appeal it is evident from the paragraphs, repr .....

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as given a finding on certain facts that there were number of real estate projects in that area and that there was International Cricket Stadium located very near to the said land , therefore, in the absence of any agricultural activity it was a ‘capital asset’ for the purpose of levying tax as per the provisions of Income-tax Act, it is very strange that even after recording of those facts of the case, the learned CIT(Appeals) has taken a view that because few decisions of the Tribunal and the .....

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RAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER For The Appellant : Shri C.W. Awgulkar. For The Respondent : Shri V.V. Saranjame and Shri Satish Gidwani. ORDER Per Shri Mukul K. Shrawat, J.M. This is an appeal filed by the Revenue arising from the order of learned CIT(Appeals)-I, Nagpur dated 11-06-2013 and the grounds raised are reproduced below : 1. On the facts and circumstances of the case and in law, the CIT(A) erred in holding that the land is beyond 8 Km. on road when the .....

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the business of manufacturing biscuits. However, it was noticed by the Assessing Officer that the assessee had sold an agricultural land during the year under consideration. Facts of the case have revealed that the land in question was purchased by the assessee from one Shri Arun Jaiswal on 26th February, 2008 for a consideration of ₹ 16 lakhs. Later on in the month of November, 2008 the said land was sold to that very person, i.e., Shri Arun Jaiswal for a consideration of ₹ 50 lakhs .....

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the municipal limit, therefore, not exempt from tax. The Assessing Officer had also recorded a statement of Shri Arun Jaiswal. He had informed that there was no agricultural activity and there was no crop on the land when he took the possession. The Assessing Officer has thereupon concluded as under : On perusal of the land purchase and sale agreement produced by the assessee, it is noticed that the assessee has purchased and sold land within 7 months. During the statement Shri Arun Jaiswal was .....

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000/- is to be taxed as Short term capital gains. Penalty proceedings u/s 271(1)(c) are hereby initiated for furnishing inaccurate particulars of income and concealment of income. 3. When the matter was carried before the first appellate authority, it is worth to mention at the out set itself that on careful reading of the order of learned CIT(Appeals) we have noted that upto para 14 learned CIT(Appeals) had discussed the facts of the case and finally on para 14 made an observation that the land .....

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ber of real estate projects have been come up in these areas. Even the newly developed International Cricket Stadium is very near to the said land. Hence, the appreciation in the value is mainly due to the urbanization factors and not due to incidental rise in prices. Therefore, I am of the okpinion that this particular aspect ought to have been considered and the agricultural land in question to be treated as capital asset within the meaning of Sec.2 (14(iii)(b) read with the notification No. 9 .....

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set. Accordingly, the AO is directed to allow exemption u/s 2(14) in respect of the agricultural land as claimed by the appellant. 4. From the side of the Revenue, learned D.R. Mr. C.W. Awagulkar appeared and vehemently argued that learned CIT(Appeals) has totally erred in taking a decision that the land in question was not a capital asset without appreciating the facts of the case. On one hand learned CIT(Appeals) has given a finding that it was a capital asset but on the other hand, taken a co .....

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has strongly pleaded that the order of learned CIT(Appeals) should be reversed. 5. From the side of the respondent-assessee, the learned A.R. Shri V.V. Saranjame appeared and supported the order of learned CIT(Appeals) mainly on the ground that there was no fallacy in the said order because learned CIT(Appeals) has followed the view taken by the respected Tribunal as well as by several High Courts. It was the duty of the learned CIT(Appeals) to follow those decisions. 6. We have heard both the s .....

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able on record. In this appeal it is evident from the paragraphs, reproduced above, that although the facts of this case were found to be not matching with the facts of certain precedents cited, but still Ld CIT(A) had decided not only to follow but to apply the view taken in those cited cases so as to give relief on the pretext that those case-laws being pronounced by the higher forum hence binding upon him. It is an incorrect way of following or applying a precedent. Law does not permit to bli .....

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e light of the facts/circumstances of that case. It is not desirable to pick few words from the judgment which is otherwise divorced from the context in which it was used. We are of the considered opinion that reliance should not be placed on a decision without discussing how the factual situation fits in, with the factual situation of the decision on which reliance is to be applied. This much caution ought to be exercised before relying upon a precedent . A precedent is to be followed if the fa .....

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