Ita/703/2016 Of The Principal Commissioner Of Income Tax-07 v. Shri Bikram Singh

$~4 *IN THE HIGH COURT OF DELHI AT NEW DELHI+ITA 703/2016THE PRINCIPAL COMMISSIONER OF INCOME TAX-07, ..... Appellant Through:Mr. Dileep Shivpuri, Senior StandingCounsel, Mr. Sanjay Kumar, Junior StandingCounsel and Mr. Vikrant A. Mahehwari, Advs. versus SHRI BIKRAM SINGH ..... Respondent Through:None. CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE NAJMI WAZIRIO R D E R %08.11.2016 The question of law urged by the Revenue in this appeal underSection 260A is - “whether in the facts of this case, the addition madeby the CIT(A) on grounds of Capital Gains on sale of land of Rs.3.11crore which the Assessing Officer (AO) was asked to compute in theassessee’s appeal to the CIT(A) was justified.” The facts are that the assessee declared income whichunderwent scrutiny. The assessment was concluded at Rs.1.03 croreand included additions on account of commission/brokerage earned aswell as on account of disallowance of part expenses claimed againstvending machine amounting to Rs.2,51,325/-.The assessee’s appealagainst the additions made, was allowed partly on the issue ofbrokerage and upheld 50% addition of the agricultural income shownon the ground that the assessee had not produced any evidence to show how and when the produce was taken to the market and sold.The CIT(A), thereafter went to discuss the sale of agricultural assetsand held that it yielded capital gains. The appellate order, therefore,brought the said amount to Rs.3.11 crore to tax under the head of“capital gains”. The assessee’s appeal before the ITAT relied upon the ruling ofthis Court in Commissioner of Income Tax vs. Sardari Lal & Co.251 ITR 864 and of the Supreme Court in Commissioner of IncomeTax vs. Shapoorji Pallonji [1962] 44 ITR 891(SC). It is evident from the above enumeration of facts that theCIT(A) for the first time brought to tax an amount under the head thathad not been assessed as such by the A.O.In Shapoorji Pallonji(supra) the Supreme Court considered the views of the Patna HighCourtandrejectedtheRevenue’scontentionthatthewidephraseologyemployedbySection31(1)thatprecludedtheCommissioner from exercising the power to bring to taxation anincome under a head which was hitherto not resorted to by theAssessing Officer. This Court is therefore of the view that the question of lawurged by the Revenue does not arise. The appeal is thereforedismissed. S. RAVINDRA BHAT, J NOVEMBER 08, 2016/acm NAJMI WAZIRI, J