SHRI GORU RAM YADAV, JAIPUR V. INCOME TAX OFFICER, JAIPUR

ITA 1008/JPR/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5415 (ITAT-JAIPUR)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 20-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K MAHLA JCIT DHK
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Additional evidence; Cost of acquisition; Fair market value
• Section: 54B; 50C; 54F; 2(14)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 1008/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2011-12 GORU RAM YADAV, NARI KA BAS (PEETHAWAS), PANCHAYAT HATOJ, JAIPUR CUKE VS. I.T.O., WARD 3(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AMMPY 4405 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI A.K. MAHLA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 04/10/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 12/10/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 09/11/2017 OF LD. CIT(A)-I, JAIPUR FOR THE A.Y. 201 1-12. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DIRECTING THE AO TO ENHANCE THE INCOME FROM LONG TERM CAPITAL GAIN ON S ALE OF AGRICULTURAL LAND DECLARED AT RS. NIL BY THE ASSESS EE AND RS. 19,50,554/- COMPUTED BY THE AO TO RS. 1,60,28,557/- BY:- (I) UPHOLDING THAT THE FULL VALUE OF CONSIDERATION SHOULD BE ADOPTED U/S 50C AT RS. 1,91,25,000/- AS AGAINST ACT UAL CONSIDERATION OF RS. 1,43,00,000/- BY NOT ACCEPTING THE CONTENTION OF ASSESSEE THAT SUCH VALUE SHOULD BE CO NSIDERED AS ITA 1008/JP/2017_ GORU RAM YADAV VS ITO 2 ON 08.10.2007 WHEN THE ASSESSEE ENTERED INTO AN AGR EEMENT TO SALE THE LAND AND NOT AS ON 26.05.2010 WHEN THE SALE DEED WAS EXECUTED. (II) DIRECTING TO TAKE THE COST OF ACQUISITION AS O N 01.04.1981 AT RS.12,679/- AS DETERMINED BY DVO AS AGAINST RS.2,60 ,000/- CONSIDERED BY THE ASSESSEE AND RS.1,78,500/- ADOPTE D BY THE AO. (III) NOT ACCEPTING THE VARIOUS OBJECTIONS RAISED BY THE ASSESSEE ON THE REPORT OF DVO DETERMINING THE FMV OF LAND AS ON 01.04.1981 AND THE VALUE DETERMINED BY HIM U/S 50C( 2). (IV) NOT ALLOWING THE CLAIM OF DEDUCTION U/S 54B M ADE BY THE ASSESSEE AND ALLOWED BY THE AO AT RS. 1,39,00,000/- BY MAKING VARIOUS OBSERVATIONS ON SURMISES & CONJECTUR ES AND BY NOT CONSIDERING THE PROVISION OF SECTION 2(47)(VI) AND BY INCORRECTLY APPLYING THE DECISION OF APEX COURT IN CASE OF CIT VS. BALBIR SINGH MAINI 86 TAXMANN.COM 94 WHEREAS TH IS DECISION SUPPORT THE CASE OF ASSESSEE. 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.25,27,649/- MADE U/S 69 BY THE AO NO T ACCEPTING THE SOURCE OF INVESTMENT MADE IN CONSTRUCTION OF HOUSE PROPERTY ON WHICH DEDUCTION U/S 54F IS CLAIMED. 3. THE LD. AO HAS ERRED ON FACTS AND IN LAW IN CONS IDERING THE AGRICULTURAL LAND SOLD BY THE ASSESSEE AS A CAPITAL ASSET U/S 2(14) OF THE ACT WHEREAS THE SAME BEING BEYOND 8 KMS OF THE MUNICIPAL LIMIT AS ON THE DATE OF NOTIFICATION DATED 06.01.1994 IS NOT A CAPITAL ASSET AND THUS, NO CAPITAL GAIN IS CHARGEABLE ON SALE OF THE AGRICULTURAL LAND. THIS CONTENTION THOUGH RAISED BEFORE THE AO B UT NOT RAISED BEFORE LD. C1T(A) UNDER A MISTAKEN ASSUMPTION THAT THE CERTIFICATE OBTAINED BY THE AO FROM TEHSILDAR ON THIS ISSUE IS OF AS ON 06.01.1994 BE ADMITTED AS ADDITIONAL GROUND OF APPE AL. 4. THE ASSESSEE CRAVES TO AMEND, ALTER AND MODIFY A NY OF THE GROUNDS OF APPEAL. 5. THE APPROPRIATE COST BE AWARDED TO THE ASSESSEE. ITA 1008/JP/2017_ GORU RAM YADAV VS ITO 3 1.1 THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUND A S UNDER: THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN AS SESSING THE INCOME FROM LONG TERM CAPITAL GAIN ON TRANSFER OF LAND IN A.Y. 2011-12 IGNORING THAT THE LAND UNDER CONSIDERATION STOOD TR ANSFER U/S 2(47) OF THE IKT ACT, 1961 IN A.Y. 2008-09. 2. WE HAVE HEARD THE LD AR AS WELL AS THE LD DR ON A DMISSION OF ADDITIONAL GROUND. THE LD AR HAS RELIED UPON THE DE CISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. NTPC LTD. 229 IT R 383 AND SUBMITTED THAT THE ISSUE RAISED BY THE ASSESSEE IN THE ADDITIONAL GROUND IS PURELY LEGAL IN NATURE AND GOES TO THE ROOT OF THE MATTER AND THEREFORE, THE SAME MAY BE ADMITTED IN DECIDING ON MERITS. 3. ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE ASSESSEE HAS RAISED ALTOGETHER A NEW ISSUED AT THIS STAGE FOR WHI CH THE RELEVANT FACTS AND MATERIAL ARE NOT AVAILABLE ON THE RECORD BUT RE QUIRED TO BE INVESTIGATED. THUS, HE HAS OBJECTED TO THE ADMISSION OF THE ADDITIONAL GROUND. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FUL PERUSAL OF THE ADDITIONAL GROUND WE NOTE THAT THAT THE ISSUE RAISED IN THE ADDITIONAL GROUND WOULD AMOUNT TO SETTING UP ALTOGETHER A NEW CA SE WHICH WAS NOT RAISED BEFORE THE AUTHORITIES BELOW. THE ASSESSEE NEV ER DISPUTED THAT THE LAND IN QUESTION WAS NOT TRANSFERRED DURING THE YEAR UNDER CONSIDERATION ITA 1008/JP/2017_ GORU RAM YADAV VS ITO 4 BUT RAISED THE OTHER ISSUES REGARDING THE CAPITAL G AIN AND WHETHER IT IS A CAPITAL ASSET U/S 2(14) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) OR NOT. THUS, WHEN THE ASSESSEE DID NOT DISPUTE THE TRAN SFER OF THE LAND IN QUESTION DURING THE YEAR UNDER CONSIDERATION THEN R AISING THIS ISSUE AT FIRST TIME BY RELYING UPON THE AGREEMENT TO SELL WHI CH IS NOT REGISTERED AND CLAIMED TO HAVE BEEN ENTERED INTO ON 08/10/2007 ABOUT THREE YEARS PRIOR TO THE SALE DEED ON THE BASIS OF WHICH THE ASS ESSMENT WAS REOPENED BY THE ASSESSING OFFICER WOULD SET THE ENTIRE PROCEE DINGS IN REVERSE MOTION. WHEN THE SAID AGREEMENT WAS NOT DISCLOSED BY THE ASSESSEE AT ANY POINT OF TIME PRIOR TO THIS STAGE THEN IT WOULD OPEN A NEW GATE OF AVOIDING THE TAX LIABILITY IN THE MANNER THAT SUCH DOCUMENT NOT IN THE PUBLIC DOMAIN CAN BE KEPT WITH THE CHEST BY THE ASSE SSEE TILL THE LIMITATION FOR ASSESSMENT IS EXPIRED AND THEN EXECUTE A SALE D EED AND WOULD TAKE A PLEA THAT THE TRANSFER WAS ALREADY TAKEN PLACE SEVER AL YEARS BACK WHEN SUCH SECRET UNREGISTERED AGREEMENT WAS ENTERED INTO BETWEEN THE PARTIES. HENCE, SUCH MODUS OPERANDI CANNOT BE ALLOWE D TO AVOID THE TAX LIABILITY. THE NON-DISCLOSURE OF THE ALLEGED AGREEME NT WOULD OPERATE AS ESTOPPEL AGAINST THE ASSESSEE TO RELY ON SUCH DOCUM ENT WITH A VIEW TO AVOID TAX. ACCORDINGLY, THE ADDITIONAL GROUND RAISE D BY THE ASSESSEE CANNOT BE ALLOWED AND DESERVES TO BE REJECTED. WE OR DER ACCORDINGLY. ITA 1008/JP/2017_ GORU RAM YADAV VS ITO 5 5. THE ASSESSEE HAS ALSO FILED ADDITIONAL EVIDENCE I N THE SHAPE OF CERTIFICATE OF THE CONCERNED TEHSILDAR IN SUPPORT OF THE CLAIM THAT THE LAND IN QUESTION IS SITUATED BEYOND THE DISTANCE OF 8 K. M. FROM THE MUNICIPAL LIMITS AND THEREFORE, THE SAME DOES NOT FALL IN THE DEFINITION OF CAPITAL ASSET U/S 2(14) OF THE ACT. 6. THE ASSESSEE HAS FILED AN APPLICATION FOR ADMISSI ON OF ADDITIONAL EVIDENCE. WE HAVE HEARD THE LD AR AS WELL AS THE DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD ON THE POINT OF ADMISSI ON OF ADDITIONAL EVIDENCE PROPOSED TO BE FILED BY THE ASSESSEE. WE F IND THAT THE ASSESSING OFFICER REJECTED THE CLAIM OF THE ASSESSEE THAT THE LAND IN QUESTION IS BEYOND 8 K.M. FROM THE MUNICIPAL LIMITS ON THE BASI S OF A CERTIFICATE ISSUED BY THE TEHSILDAR, HOWEVER, THE LD AR HAS NOW SU BMITTED ANOTHER CERTIFICATE TO SHOW THE DISTANCE AS ON 01/6/1994 THE DATE OF CIRCULAR ISSUED BY THE CBDT AND CONTENDED THAT THE EARLIER C ERTIFICATE ISSUED BY THE TEHSILDAR IS REGARDING THE CURRENT STATUS OF THE DISTANCE AND NOT AS ON 01/6/1994. THE LD AR HAS ALSO REFERRED TO THE DECISI ON OF THE HON'BLE HIGH COURT IN THE CASE OF CIT VS. DR. SUBHA TRIPATHI DECI SION DATED 04/11/2015. 7. ON THE OTHER HAND, THE LD DR HAS OBJECTED TO THE SAID CERTIFICATE FILED BY THE ASSESSEE AND SUBMITTED THAT THE ASSESS ING OFFICER HAS ALREADY ITA 1008/JP/2017_ GORU RAM YADAV VS ITO 6 CONSIDERED THE CERTIFICATE ISSUED BY THE CONCERNED TEHSILDAR THEN THE SECOND CERTIFICATE ISSUED BY THE SAME AUTHORITY CAN NOT BE CONSIDERED AT THIS STAGE. 8. WE FIND THAT, THOUGH, THE EARLIER CERTIFICATE IS SUED BY THE TEHSILDAR WAS CONSIDERED BY THE ASSESSING OFFICER, HOWEVER, THE SAID CERTIFICATE DOES NOT SPECIFY THE DISTANCE AS AT THE TIME OF ISS UING CERTIFICATE OR ANY OTHER DATE WHEREAS THE CERTIFICATE FILED BY THE ASSE SSEE AS AN ADDITIONAL EVIDENCE HAS SPECIFICALLY MENTIONED THE DATE AS ON 01/6/1994, THEREFORE, THE CERTIFICATE FILED BY THE ASSESSEE REFERS TO THE SITUS OF THE LAND BEING BEYOND 8 K.M. FROM THE MUNICIPAL LIMITS. SINCE THIS CERTIFICATE IS FILED AT THIS STAGE AND THERE IS AN EARLIER CERTIFICATE ISSU ED BY THE SAME AUTHORITY, THEREFORE, IT REQUIRES A PROPER VERIFICATION. THE IS SUE RAISED IN GROUND NO. 1 OF THE ASSESSEES APPEAL GOES TO THE ROOT OF THE MATTER AND THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE, THOUGH, RELEVANT FOR THE PURPOSE OF ADJUDICATION OF THE SAID ISSUE, HOWEVER, IT ALSO REQUIRES A PROPER VERIFICATION. ACCORDINGLY WHEN THE ISSUE GOES TO THE ROOT OF THE MATTER, THEREFORE, THE SAME IS SET ASIDE TO THE REC ORD OF THE ASSESSING OFFICER FOR CONSIDERATION OF THE ADDITIONAL EVIDENC E FILED BY THE ASSESSEE AND THEN DECIDE THE SAME AFTER CONDUCTING A PROPER ENQUIRY ON THIS ITA 1008/JP/2017_ GORU RAM YADAV VS ITO 7 ASPECT. NEEDLESS TO SAY THAT THE ASSESSEE BE GIVEN AN APPROPRIATE OPPORTUNITY OF HEARING BEFORE PASSING A FRESH ORDER ON THIS ISSUE. 9. THE OTHER ISSUES RAISED BY THE ASSESSEE IN THIS APPEAL ARE KEPT OPEN 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 12/10/2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12 TH OCTOBER, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI GORU RAM YADAV, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD 3(1), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 1008/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR