Sh. Deepkaran Singh Randhwa, Amritsar. V. The Asstt. Commissioner of Income-tax, Amritsar.

ITA 1/ASR/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0714 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 30-05-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 01-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S K KAD
• Keywords: Capital asset; Salary income; Opportunity of being heard; Revised return
• Section: 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR(SMC). BEFORE SH. A.D. JAIN, JUDICIAL MEMBER ITA NO.01(ASR)/2015 ASSESSMENT YEAR:2010-11 PAN: AAVPR3578D M/S. DEEPKARAN SINGH RANDHAWA VS. ASSTT. COMMR. OF INCOME TAX, 32, RACE COURSE ROAD, AMRITSAR. AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. S.K. KAD, CA RESPONDENT BY: SH. UMESH TAKYAR, DR DATE OF HEARING: 30/05/2016 DATE OF PRONOUNCEMENT: 06/06/2016 ORDER THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2010-11, AGAINST THE ORDER DATED 31.10.2014, PASSED BY THE LD. CIT(A), AMRITSAR. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF A PPEAL: I) THAT, THE ORDER PASSED BY THE COMMISSIONER (APPEA L) OF INCOME TAX IS ILLEGAL, ERRONEOUS, BAD IN LAW AND FACTS. II) THAT, LD COMMISSIONER (APPEAL) OF INCOME TAX H AS NOT GIVEN ANY OPPORTUNITY OF BEING HEARD TO APPELLANT TO EXPL AIN ABOUT KILA NO IN GIRDHAWARI OF SUCH LAND. III) THAT, LD COMMISSIONER (APPEAL) OF INCOME TAX I S ALSO NOT JUSTIFIED IN NOT CONSIDERED THE REPLY FILLED BY THE ASSESSEE DURING THE APPEAL PROCEEDINGS. IV) THAT, LD COMMISSIONER (APPEAL) OF INCOME TAX I S NOT JUSTIFIED IN REJECTING THE CLAIM THAT SUCH LAND SOLD IS AGRICULT URE LAND DUE TO FOLLOWING REASONS:- A) AS PER SALE DEEDS, THE SUB REGISTRAR HAS CATEGO RIZED THE TYPE OF LAND SOLD AS RESIDENTIAL:- THE STAMP PAPER FOR THE SALE DEEDS IS PURCHASED AND TYPED BY THE PURCHASER. IT I S TOTALLY IRRELEVANT THAT ON THE BACK SIDE OF SALE DEED RESID ENTIAL IS MENTIONED. ITA NO. 01(ASR)/2015 A.Y. 2010-11 2 B) THE GIRDHAWARI OF SUCH LAND FILLED BY THE ASSES SEE DOES NOT CONTAIN KILA NO. OUT OF WHICH SUCH PLOT HAS BEEN SO LD.: THE LD COMMISSIONER (APPEAL) OF INCOME TAX HAS NOT CONSIDE RED GIRDHAWARI/KHATONI FILLED AT THE TIME OF APPEAL PRO CEEDING AS SAME KILA NUMBER IS MENTIONED I SUCH GIRDHAWARI. M OREOVER WE WILL BE SUBMITTED HEREWITH GIRDHAWARI/KHATONI DULY SIGNED BY REVENUE OFFICER WHO CERTIFY THAT KILA NO MENTIONED IN GIRDHAWARI AND SALE DEED ARE SAME AND SUCH LAND WAS AGRICULTUR E LAND AT THE TIME OF SALE. MOREOVER WE ARE ENCLOSING HEREWIT H COPY OF SALE DEED, KHATONI AND DETAIL OF SAME. V) THAT, IN LIGHT OF ABOVE FACTS LD COMMISSIONER (A PPEAL) OF INCOME TAX IS NOTJUSTIFIED IN REJECTED THE CLAIM OF SALE O F AGRICULTURE LAND. 2. GROUND NO.(IV) IS GENERAL. 3. AS PER GROUND NO.(II), THE LD. CIT(A) HAS NOT GI VEN ANY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE TO EXPLAIN ABOUT THE KILA NO. IN GIRDAWARI FOR THE ASSESSEES LAND. 4. THE FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL HAVING SALARY INCOME, RENTAL INCOME, INTEREST INCOME AND AGRICULT URE INCOME. THE ASSESSMENT ORDER WAS PASSED BY A.O UNDER SECTION 14 3(3) OF INCOME TAX ACT 1961 ON 07/02/13 AND ADDITION OF RS 4,24,822/- HAD BEEN MADE BY INCREASING THE LONG TERM CAPITAL GAIN ON AGRICULTUR E LAND. THE, LD COMMISSIONER (A) HAS CONFIRMED THE ABOVE SAID ADDIT ION DUE TO NON AVAILABILITY OF ANY EVIDENCE TO JUSTIFY THAT SUCH L AND IS AGRICULTURE LAND OR NOT. ACCORDING TO THE LD COMMISSIONER (APPEALS) THE AO WAS JUSTIFIED IN REJECTING THE CLAIM THAT SUCH LAND SOLD WAS AGRICUL TURE LAND DUE TO THE FOLLOWING REASONS:- (I) AS PER SALE DEEDS, THE SUB REGISTRAR HAS CATEG ORIZED THE TYPE OF LAND SOLD AS RESIDENTIAL. ITA NO. 01(ASR)/2015 A.Y. 2010-11 3 II) THE GIRDAWARI OF SUCH LAND FILLED BY THE ASSES SEE DOES NOT CONTAIN KILA NO OUT OF WHICH SUCH PLOT HAS BEEN SOL D. THE ASSESSEE IS OF THE VIEW THAT THE COMMISSIONER ( APPEALS) IS NOT JUSTIFIED IN REJECTING THE GIRDAWARI AS AN EVIDENCE AND IS ALSO NOT JUSTIFIED IN TAXING CAPITAL GAIN ON AGRICULTURE LAND, AS AGR ICULTURE LAND IS NOT A CAPITAL ASSETS AS PER SECTION 2(14) OF INCOME TAX A CT, 1961 AND IS OUTSIDE THE PURVIEW OF THE INCOME TAX ACT, 1961. 5. THE LD. CIT(A) CONFIRMED THE DISALLOWANCE OF CAP ITAL GAIN OF RS.4,24,822/- U/S 10(37) OF THE ACT. WHILE DOING SO , IT WAS OBSERVED AS FOLLOWS: THE COUNSEL FOR THE ASSESSEE SUBMITTED DURING APPE LLATE PROCEEDING THAT ASSESSEE HAS CLAIMED EXEMPTION OF LONG TERM CA PITAL GAIN U/S 10(37) OF THE ACT BY FILING OF REVISED RETURN ON S ALE OF LAND SITUATED IN VILLAGE KATHUNANGAL, AMRITSAR. THE ASSESSEE OWN AGRICULTURE INCOME HAS BEEN SHOWN IN THE INCOME TAX RETURNS FO R THE LAST SO MANY YEARS. AS PER SECTION 10(37)(1)SUCH LAND IS SITUATED IN AREA REFERRED TO IN ITEM (A) OR ITEM (B) OF SUB CLAUSE ( 3) OF CLAUSE 14 OF SECTION 2. HOWEVER, THE AO HAS DISALLOWED ABOVE CLA IM AS SAID LAND WAS RESIDENTIAL. THE ASSESSEE COULD NOT SUBMIT AN Y EXPLANATION AGAINST MENTION OF SUCH LAND AS RESIDENTIAL EXCEP T FURNISHING COPY OF GIRDHAWARI. EVEN THAT GIRDHAWARI DOES NOT CONTAI N KILA NO. OUT OF WHICH SUCH PLOT HAS BEEN SOLD. UNDER THE CIRCUMSTAN CES, NO EVIDENCE WAS PRODUCED BY THE ASSESSEE THAT ON SUCH SPECIFIC LAND/PLOT BEFORE SALE, AGRICULTURE WAS CARRIED OUT. EVEN DURING APPELLATE PROCEEDINGS WAS NOT ABLE TO PRODUCE ANY EVIDENCE CONTROVERTING REGISTRATION OF SUCH LAND AS RESIDENT IAL HAS BEEN PRODUCED. IN VIEW OF ABOVE, THE AO HAS CORRECTLY DI SALLOWED EXEMPTION U/S 10(37) OF THE INCOME TAX ACT, 1961. T HE ACTION OF THE AO IS UPHELD. 6. THUS, THE LD. CIT(A) CONFIRMED THE DISALLOWANCE, SINCE AS PER HIM, THE ASSESSEE COULD NOT EXPLAIN AS TO HOW THE LAND I N QUESTION, WHICH WAS REGISTERED AS RESIDENTIAL, BY THE REGISTRAR WAS AGR ICULTURAL IN NATURE. ITA NO. 01(ASR)/2015 A.Y. 2010-11 4 7. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED T HAT THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE, WHILE ILLEGAL LY NOT TAKING INTO CONSIDERATION THE GIRDAWARI FILED BEFORE HIM, AS PE R WHICH, THE LAND IN QUESTION HAS BEEN SHOWN AS AGRICULTURAL; AND THAT T HE LD. CIT(A) HAS ALSO FAILED TO TAKE INTO CONSIDERATION THE CERTIFICATE O F THE TEHSILDAR, WHICH ALSO STATES THE SAID LAND, AS MENTIONED IN THE GIRD HAWARI, TO BE AGRICULTURAL. 8. ON THE OTHER HAND, THE LD. DR HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER. 9. HAVING HEARD THE RIVAL CONTENTIONS IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD, IT IS SEEN THAT IN THE GIRDAWA RI FILED BY THE ASSESSEE (COPY AT PAGES 65-66) AND CERTIFICATE OF TEHSILDAR (COPY AT APB 67), THE LAND IN QUESTION IS SHOWN AS AGRICULTURAL LAND UND ER CULTIVATION. NEITHER OF THE AUTHORITIES BELOW HAS TAKEN THESE DOCUMENTS INTO CONSIDERATION. 10. IN THE WRITTEN SUBMISSIONS (COPY AT APB 68 TO 7 8) FILED BY THE ASSESSEE BEFORE THE CIT(A), THE ASSESSEE HAS, INTER -ALIA, COTENDED AS FOLLOWS: 2. ON SUCH LAND CULTIVATION ACTIVITIES ARE CARRIED ON FROM LAST SO MANY YEARS. IT CAN BE PROVED FROM REVENUE RECORDS I .E. GIRDAWARI AND JAMABANDI (ENCLOSED HEREWITH) OF SUCH LAND BEAR ING SAME KILA NO AND KHASRA NO WHICH SHOWN IN SALE DEED. IT IS FU RTHER PROVED FROM AGRICULTURE INCOME SHOWN IN STATEMENT OF TAXAB LE INCOME OF THE ASSESSEE. 3. IT IS AGRICULTURE LAND AT THE TIME OF SALE. IT I S PROVED FROM REVENUE RECORDS AND ALSO IT IS PROVED FROM SALE DEE DS ON WHICH IT IS MENTIONED THAT ASSESSEE IS TRANSFERRING LAND INCLUD ING PASSAGE OF WATER WHICH IS USED IN CULTIVATION. ITA NO. 01(ASR)/2015 A.Y. 2010-11 5 4. NATURE AND CHARACTER OF LAND IS AGRICULTURE AS PROVED, FROM REVENUE RECORDS. 5. AS PER GOVERNMENT RECORDS I.E GIRDHAWERI AND JA MABANDI IT IS AGRICULTURE LAND AT THE TIME OF SALE. BEFORE THE TR ANSFER OF AGRICULTURE LAND ASSESSEE HAS NOT DONE ANY ACT WHICH PROVES THA T HE WANTS TO CONVERT SUCH LAND TO NON AGRICULTURE PURPOSE. ASSEE SSEE HAS ALSO NOT APPLIED FOR ANY CHANGE IN LAND USE. 6. SUCH LAND IS CONTINUOUSLY USED FOR AGRICULTURE PUR POSE FROM LAST SO MANY YEARS AS PROVED FROM REVENUE RECORDS A ND STATEMENT OF TAXABLE INCOME. 7. THE LD AO HAS CHARGED CAPITAL GAIN TAX ON TRANSFER OF AGRICULTURE LAND ONLY DUE TO MENTIONING OF RESIDENT IAL NATURE AS TYPE OF LAND IN THE SALE DEED. FROM ABOVE SIX POINT IT I S PROVED THAT SUCH LAND IS AGRICULTURE AT THE POINT OF SALE. MERE MENT IONING OF RESIDENTIAL ON THE SALE DEED DOESNOT CHANGE THE NATURE AND CHAR ACTER OF THE LAND. EVEN IF SUCH PURCHASE USES SUCH LAND AS RESI DENTIAL IT IS IMMATERIAL ON THE PART OF ASSESSEE. AS FUTURE INTEN D USE OF LAND IS IMMATERIAL. THESE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE BE FORE THE LD. CIT(A) HAVE ALSO NOT BEEN TAKEN INTO CONSIDERATION BY THE LD. CIT(A). 10. IN VIEW OF THE ABOVE, THE IMPUGNED ORDER IS FOU ND TO BE A RESULT OF COMPLETE MIS-READING AND NON-READING OF THE MATERIA L DOCUMENTS BROUGHT ON RECORD BY THE ASSESSEE AND IT IS ALSO A RESULT OF NOT HAVING PROVIDED THE ASSESSEE WITH OPPORTUNITY OF BEING HEA RD TO EXPLAIN ABOUT THE KILA NO. IN THE GIRDAWARI OF THE LAND IN QUESTI ON, AS PRODUCED BY THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, I DEEM IT APPROPRIATE TO REMIT THIS MATTER TO THE FILE OF THE AO, TO BE DECI DED AFRESH, IN ACCORDANCE WITH LAW ON AFFORDING DUE AND ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE AND CONSIDERING THE GIRDAWARI AND CERTIFIC ATE OF THE TEHSILDAR, ITA NO. 01(ASR)/2015 A.Y. 2010-11 6 AS PRODUCED BY THE ASSESSEE. THE ASSESSEE, NO DOUBT , SHALL COOPERATE IN THE FRESH PROCEEDINGS BEFORE THE A.O. 11. IN THE RESULT, THE APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06/06/ 2016. SD/- (A.D. JAIN) JUDICIAL MEMBER /SKR/ DATED: 06/06/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:DEEPKARAN SINGH RANDHAWA, AMRITSAR 2. THE ACIT, ASR 3. THE CIT(A), ASR 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.