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TMI Blog2024 (5) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... o know of addition, filed appeal before the ld. CIT(A), thus, find that there was a reasonable cause for condonation of delay in filing appeal before the ld. CIT(A). Thus, the order of ld. CIT(A) in not condoning the delay is set aside. Nature of land sold - Gain earned on sale of land/acquisition - land of assessee was rural agricultural land and compulsorily acquired by State Government under settlement - HELD THAT:- Similar case of Hazira land as well as land in Village Mora, wherein the land was compulsorily acquired by State Government under settlement, the Division Bench of Surat Tribunal [ 2022 (5) TMI 1403 - ITAT SURAT] has held that the land situated in Hazira notified area is not situated within Municipal limit and / or Hazira Notified area is not deemed municipality and held that such land was rural agricultural land and compensation/consideration received thereon is not taxable being exempt under Section 10(37) of the Act - Thus the capital gain earned on sale of land/acquisition is not taxable under capital gain. In the result, the ground No1 of appeal of assessee in quantum assessment is allowed. Penalty levied u/s 271(1)(c) - Once the assessee succeeded in quantum as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich reopening was made through a notice dated 22/03/20212. (3) Ld. CIT(A), NFAC has erred in law and on facts to confirm AO s reopening of assessment on incorrect facts. (4) Ld. CIT(A), NFAC has erred in law and on facts to confirm AO s assessment u/s 144 overlooking the fact that his predecessor has already consider the issue vide notice dated 22/03/2012. 2. Rival submission of both the parties have been heard and record perused. The learned Authorised Representative (ld. AR) of the assessee submits that the case of assessee was reopened under Section 147 of the Act. Notice under Section 148 of the Act dated 30/03/2016 was served upon the assessee. The case of assessee was reopened on the basis of AIR information that the assessee alongwith other co-owner have sold immovable property situated in Revenue Survey (RS) No. 178, Mouze-Mora, Taluka-Choryasi, Surat for a consideration of Rs. 1.59 crore. The share of assessee was Rs. 28.33 lacs out of total sale consideration. The Assessing Officer on recording reasons that the income of assessee has escaped assessment to the extent of capital gain earned by assessee. The Assessing Officer completed assessment under Section 144 r.w.s 147 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient and reasonable cause for condoning the delay. 4. The assessee has good case on merit as the land acquired by the State Government was rural agricultural land, though, it was transferred under settlement with the intervention of local administration and the settlement arrived. However, the fact remains the same that the land of assessee was rural agricultural land. The ld. AR of the assessee submits that due to aforesaid position and the legal advice given to assessee, the delay occurred in filing appeal. The ld. AR of the assessee submits that the assessee has good case on merit and is likely to succeed if the order on the application of condonation of delay passed by the ld. CIT(A) is set aside and the appeal is admitted and adjudicated on merit. 5. On merit, the ld. AR of the assessee submits that all the shareholder as well as other similar situated person whose lands in Hazira were acquired under the same notification, have challenged the addition made by department under the head capital gain and other addition under head income from other sources before the Tribunal. The Tribunal in a lead case of Ambaben J Patel in ITA No. 3021/Ahd/2014 has decided such lead case where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee that once the case of assessee was reopened by issuing notice under Section 148 of the Act on 22/03/2012 and was dropped and again reopening on the same ground, the assessee has reasonable believe that it may be dropped again as has been advised by the consultant to the assessee. I further find that before the ld. CIT(A), the assessee in Form-35 while explaining the cause of delay, has categorically contended that earlier in her case, proceedings under Section 147/148 of the Act were carried out in 2012 which was dropped and the assessee was advised not to make compliance of notice under Section 148 of the Act. Though, such advice was not correct. Later on Shri Rajesh Upadhayay, Tax Consultant advised her to file appeal against the assessment order. I find that all such facts were categorically pleaded in Column 16 of Form No. 35 (appeal form). 8. I find that the Hon'ble Bombay High Court in the case of Vijay Vishin Meghani Vs DCIT (2017) 86 taxmann.com 98 (Bom) while considering the similar contention of wrong advice by consultant on condonation of delay in filing appeal, held that wrong advice by Chartered Accountant not to file appeal, the Tribunal was not justif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee on merit, therefore adjudication on grounds No. 2 3 have become academic. 10. In the result, the appeal in quantum assessment is allowed. 11. So far as penalty levied under Section 271(1)(c) of the Act which is a subject matter in ITA No. 743/Srt/2023 and penalty levied under Section 271F which is the subject matter of ITA No. 744/Srt/2023 both for the A.Y. 2009-10 are concerned, such penalties are consequential. Once the assessee succeeded in quantum assessment wherein it has been held that no capital gain is to be taxed in the hands of assessee, therefore, the penalty levied under section 271(1)(c) will not survive. So far as penalty under section 271F is concerned, I find that the assessee has no other source of income except the capital gain earned during the impugned assessment year, the assessing officer has not taxed any other income except impugned capital gain earned on transferred of land at More village, thus, the assessee was not under obligation to file return of income, therefore, the assessee has shown sufficient cause for not filing return of income, hence, both the penalties i.e. penalty under Section 271(1)(c) and 271F of the Act are also deleted. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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