Deputy Commissioner Of Income Tax 1(1), Bhilai, Durg, Chhattisgarh v. Shri Ketan Moolchand Shah, Block A

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Tax Case (Income Tax Appeal) No. 62 of 2018 Deputy Commissioner of Income Tax 1(1), Bhilai, Durg, Chhattisgarh ---- Appellant Versus Shri Ketan Moolchand Shah, Block A-5, Surya Vihar, Junwani, Bhilai, DistrictDurg, Chhattisgarh. ---- Respondent For AppellantFor Respondent : Ms. Naushina Ali, Advocate.: None Hon'ble Shri P.R. Ramachandra Menon, Chief JusticeHon'ble Shri Prashant Kumar Mishra, Judge Judgment on Board Per P.R. Ramachandra Menon, Chief Justice 10/05/2019 1.Challenge is at the instance of the Revenue. Grievance is against the orderpassed by the Income Tax Appellate Tribunal, Raipur Bench, Raipur (forshort 'the Tribunal') granting relief to the Respondent-Assessee.passed by the Income Tax Appellate Tribunal, Raipur Bench, Raipur (forshort 'the Tribunal') granting relief to the Respondent-Assessee. 2.The factual matrix reveals that assessment finalized in respect of year 2008-2009 as per order dated 20.03.2015 (Annexure A/3) came to be affirmed bythe appellate authority vide order dated 24.02.2017 (Annexure A/2). Thiswas sought to be challenged by the Assessee by filing further appeal beforethe Tribunal which led to passing of the impugned order dated 01.02.2018(Annxure A-1) whereby relief has been granted to the Assessee directingthe Assessing Officer to delete the addition of Rs.1,37,72,502/-. This madethe Revenue to challenge the said verdict contending that the land inquestion is not an agricultural land coming within the purview of Section2(14)(iii) of the Income Tax Act, 1961 and further that it is not in conformitywith the law declared by the Apex Court in Smt. Sarifabibi MohammedIbrahim v. Commissioner of Income Tax;(1993) 204 ITR 631 SC. 3.It is in the said circumstances that the above appeal hass been filed,suggesting the following substantial questions of law:suggesting the following substantial questions of law: "1. Whether in law and on the facts and circumstances ofthe case, the ITAT was justified in setting aside the orderof CIT (A) and directing to delete the addition of Rs.1,37,72,502/- made by the AO under LTCG by holdingthat the land is treated as agricultural land is entitled forexemption u/s. 2(14) of the Act? 2. Whether in law and on the facts and circumstances ofthe case, the ITAT is justified in ignoring the decisionrelied upon by the AO of Hon'ble Supreme Court in thecase of Smt. Sarifabibi Mohmed Ibrahim reported in 204ITR 631 wherein the Hon'ble Court has approved thedecision of a Division Bench of the Hon'ble Gujarat HighCourt in the case of CIT v Siddharth J Desai (1982) 28CTR (Guj) 148-(1983) 139 which has laid down fewtests/factors that are required to be considered and afterdue verification /consideration of the same, the questionwhether the land is an agricultural land or not, was to bedecided or answered? 3. Whether in law and on the facts and circumstances ofthe case, the ITAT is justified in deleting the order of CIT(A) who has confirmed the order of the AO accepting thefindings by the latter and from the evidences on recordregarding the impugned land being regarded as nonagricultural land, inter alia falling within the ambit ofdecision of Capital Asset u/s. 2(14)(iii)(a) of the IT Actthereby erred by giving a finding which is contrary to theevidence on record, which is factually incorrect andthereby rendering the decision, which is perverse? 4. Whether in law and on the facts and circumstances ofthe case, the ITAT is justified in setting aside the order ofCIT (A) thereby giving a decision in favour of theassessee and against the revenue though there is nonexus between the conclusion of fact and primary factupon which the conclusion is based? " 4.When the matter is taken up for consideration, learned Standing Counsel for 4. Whether in law and on the facts and circumstances ofthe case, the ITAT is justified in setting aside the order ofCIT (A) thereby giving a decision in favour of theassessee and against the revenue though there is nonexus between the conclusion of fact and primary factupon which the conclusion is based? " 4.When the matter is taken up for consideration, learned Standing Counsel for the Revenue fairly concedes that the appeal was filed way back in June,2018. By virtue of the 'new litigation policy' and the circular issuedsubsequently on 11.07.2018 by the Central Board of Direct Taxes (CBDT),the subject matter of litigation for approaching the High Court shall be of aminimum value of Rs. 50,00,000/- which requirement is not satisfied in theinstant case, as in the present case, the tax effect is to the extent of Rs.44,07,200/- only. 5.This Court is also aware of the fact that the scope of the said circular wasconsidered by the Apex Court and in terms of the contents of such circular,it has been held that the same is having retrospective application i.e. inrespect of the pending litigations as well. considered by the Apex Court and in terms of the contents of such circular,it has been held that the same is having retrospective application i.e. inrespect of the pending litigations as well. 6.In view of the above circumstances, the learned Standing Counsel seekspermission of this Court to withdraw this appeal.permission of this Court to withdraw this appeal. 7.It is ordered accordingly. The appeal is dismissed as withdrawn. Sd/- ( P.R. Ramachandra Menon) CHIEF JUSTICE Sd/- (Prashant Kumar Mishra) JUDGE