The Income tax Officer, Amritsar. V. Sh. Harjit Singh, Amritsar.

ITA 111/ASR/2012

• Counselvise Citation: 11120914 RSA 2012
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-10-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 22-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: TARSEM SINGH
• Assessee Lawyers: TEJINDER SINGH AURORA
• Keywords: Capital asset; Principle of natural justice; Additional evidence; Reassessment proceedings
• Section: 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.110(ASR)/2012 ASSESSMENT YEAR:2008-09 PAN :ABTPS3216Q THE INCOME TAX OFFICER, VS. SH. HARDEEP SINGH, WARD 3(2), AMRITSAR. SULTANWIND ROAD, AMRITSAR. (APPELLANT) (RESPONDENT) I.T.A. NO.111(ASR)/2012 ASSESSMENT YEAR:2008-09 PAN :ABTPS3358P THE INCOME TAX OFFICER, VS. SH. HARJIT SINGH, WARD 3(2), AMRITSAR. SULTANWIND ROAD, AMRITSAR. (APPELLANT) (RESPONDENT) I.T.A. NO.112(ASR)/2012 ASSESSMENT YEAR:2008-09 PAN :ABTPS33356D THE INCOME TAX OFFICER, VS. SH. MANOHAR SINGH, WARD 3(2), AMRITSAR. SULTANWIND ROAD, AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. TARSEM SINGH, DR RESPONDENT BY:SH.TEJINDER SINGH AURORA, ADV DATE OF HEARING:03.10.2012 DATE OF PRONOUNCEMENT:05/10/2012 ORDER ITA NO110 TO 112(ASR)/2012 2 PER BENCH ; THE REVENUE HAS FILED THE PRESENT APPEALS AGAINST THE DIFFERENT IMPUGNED ORDERS PASSED BY THE CIT(A), AMRITSAR, EAC H DATED 29.12.2011 RELATING TO ASSESSMENT YEAR 2008-09. AS THE ISSUES INVOLVED IN THE PRESENT APPEALS ARE COMMON, THESE WERE HEARD TOGETHER AND A RE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE . 2. THE GROUNDS RAISED BY THE ASSESSES IN ALL THE A PPEALS ARE COMMON. HOWEVER, THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO.110(ASR)/2012 WHICH ARE COMMON IN OTHER APPEALS, EXCEPT VARIATION IN AMOUNTS, ARE REPRODUCED AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS.34,71,670/- MADE BY A.O. IN RESPECT OF SHORT TER M CAPITAL GAIN ON SALE OF LAND. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE ASSESSEE F AILED TO ESTABLISH THAT THE LAND SOLD HAS BEEN AGRICULTURE L AND OF THE NATURE DEFINED IN SEC. 10(37) READ WITH SECTION 2(1 4) AND DOES NOT FORM A CAPITAL ASSET. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ADMITTED ADDITIONAL EVIDENCE IN THE FORM OF REVISED CERTIFICATE OF DISTRICT TOWN PLANNER IN VIOLATION O F RULE 46A OF THE INCOME TAX RULES, 1962. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED OF. ITA NO110 TO 112(ASR)/2012 3 3. THE FACTS NARRATED BY THE REVENUE ARE DISPUTED B Y BOTH THE PARTIES. THEREFORE, THERE IS NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 4. AT THE TIME OF HEARING, THE LD. DR STATED THAT T HE ASSESSEE HAS FAILED TO ESTABLISH BEFORE THE AO WITH THE SUPPORT OF ANY EVIDENCE THAT THE LAND SOLD BY THE ASSESSEE IS AGRICULTURAL LAND, AS DEFIN ED IN SECTION 10(37) READ WITH SECTION 2(14) OF THE INCOME TAX ACT, 1961. HE FURTHER STATED THAT THE ASSESSEE HAS PRODUCED SOME ADDITIONAL EVIDENCES BEF ORE THE LD. FIRST APPELLATE AUTHORITY, WHO HAS NOT FORWARDED THOSE EV IDENCES TO THE A.O. FOR HIS COMMENTS AND VERIFICATION, WHICH IS CONTRARY TO THE VIOLATION OF RULE 46A OF THE I.T.RULES, 1962. 5. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSESSE E, SH. T.S. AURORA, ADVOCATE, DREW OUR ATTENTION TO THE ORDER OF THE L D. FIRST APPELLATE AUTHORITY AS WELL AS THE ASSESSMENT ORDER ALONGWITH ONE PAPER BOOK FILED BY HIM IN ALL THE APPEALS. HE FURTHER DREW OUR ATTENTION TO ONE C ERTIFICATE ISSUED BY THE SUB-REGISTRAR, AMRITSAR, DATED 01.06.2010 IN WHICH THE SUB-REGISTRAR, AMRITSAR SOUGHT A REPORT FROM THE HALKA PATWARI. THE HALKA PATWARI REPORTED THAT THE LAND OF THE ASSESSEE IS AGRICULTU RAL LAND AND IS SITUATED APPROXIMATELY AT A DISTANCE OF 7 KM AWAY FROM THE M UNICIPAL LIMITS. HE ALSO DREW OUR ATTENTION TOWARDS VARIOUS JUDGMENTS O F HONBLE HIGH COURTS: I) CIT VS. SMT. DEBBIE ALEMAO (2011) 196 TAXMAN 2 43 (BOM) ITA NO110 TO 112(ASR)/2012 4 II) CIT VS. SATINDER PAL SINGH (2010) 229 CTR 82 ( P&H) III) SHIV SHANKER LAL VS. CIT (1974) 94 ITR 433 (DEL.) IV) CIT VS. SRINIVAS BUS SERVICE (1974) 94 ITR 454 (AP) V) DCIT VS. M/S. SIDHARTHA TEXTILE MILLS LTD. AMRITSAR ITA NO.338(ASR)/2009, DATED 26 TH AUGUST, 2009. (ITAT, AMRITSAR BENCH). 5.1. HE FURTHER SUBMITTED THAT THE AO HAS WRONGLY R ELIED UPON THE INFORMATION RECEIVED FROM THE TOWN PLANNER, MUNICIP AL CORPORATION, AMRITSAR, WHO HAS INDICATED THE DISTANCE OF THE BOU NDARY OF THE VILLAGE AND HAS NOT SPECIFICALLY MEASURED THE DISTANCE OF AGRIC ULTURE LAND SOLD BY THE ASSESSEE. HE FURTHER SUBMITTED THAT THE AO WARD 3(1 ) AMRITSAR, HAS REOPENED THE PROCEEDINGS IN THE CASE OF SMT GURVIN DER KAUR, ONE OF THE CO- OWNERS OF AGRICULTURE LAND ON THE BASIS OF ASSESSME NT FRAMED IN THE CASE OF SH. MANOHAR SINGH, SH. HARDEEP SINGH & SH. HARJIT S INGH. THE PROCEEDINGS HAVE BEEN DROPPED BY THE AO AFTER OBTAINING INFORMA TION REGARDING DISTANCE OF LAND FROM THE OFFICE OF THE DISTRICT TOWN PLANN ER, WHO CERTIFIED THE DISTANCE OF LAND AT 6.5 KM AS PER MASTER PLAN ( AT CROWS THROUGH). FINALLY, HE STATED THAT THE LD. FIRST APPELLATE AUTHORITY HA S PASSED A WELL REASONED ORDER ON THE BASIS OF EVIDENCE PRODUCED BY THE ASSE SSEE, THEREFORE, THE SAME MAY BE UPHELD BY DISMISSING THE APPEALS OF THE DE PARTMENT. ITA NO110 TO 112(ASR)/2012 5 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US ALONGWITH CITATIONS CITED BY BOTH THE PARTIES AS WELL AS THE DOCUMENTARY EVIDENCES PRODUCED BY THE ASSESSEE BEFO RE THE A.O. AS WELL AS BEFORE THE LD. FIRST APPELLATE AUTHORITY. WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUTHORITY HAS PERUSED THE W RITTEN SUBMISSIONS DATED 23.12.2011 FILED BY THE ASSESSEE. AS PER IMPUGNED O RDER, THE ASSESSEE HAS FILED HIS WRITTEN SUBMISSIONS DURING THE COURSE OF APPELLATE PROCEEDINGS ALONGWITH VARIOUS DOCUMENTARY EVIDENCES INCLUDING T HE LATEST DISTANCE CERTIFICATE NO.2434 DATED 29.12.2010 OF THE DISTRIC T TOWN PLANNER, AMRITSAR ACCOMPANYING THEREWITH CERTIFIED COPY OF RELEVANT P ART OF AMRITSAR MASTER PLAN CONCERNING THE SITE AT VILLAGE MEHARBANPUR CER TIFYING THE ROAD DISTANCE BETWEEN THE KHASRA-WISE ASSESSEES LAND & THE MUNI CIPAL LIMITS OF AMRITSAR IS 7.5 KMS AND ALSO RELYING ON THE DISTANCE CERTIF ICATE DATED 01.06.2010 FURNISHED BEFORE THE AO ISSUED BY THE SUB-REGISTRAR (TEHSILDAR), AMRITSAR INTER ALIA CERTIFYING THAT THE DISTANCE BETWEEN THE ASSESSEES LAND AND THE MUNICIPAL LIMITS OF AMRITSAR IS 7 KMS. THE LD. FIRS T APPELLATE AUTHORITY HAS ALSO PERUSED THE COPY OF ASSESSEES REPLY DATED 9.1 2.2011 FILED BEFORE THE ITO WAD 3(1), AMRITSAR IN THE ALLIED CASE OF ONE OF THE CO-OWNER NAMELY SMT. GURVINDER KAUR, AMRITSAR INCORPORATING THEREIN AOS ORDER-SHEET RECORDINGS DATED 9.01.2011, WHO RELYING ON THE DIST ANCE CERTIFICATE DATED ITA NO110 TO 112(ASR)/2012 6 23.8.2011 OF THE DISTRICT TOWN PLANNER, AMRITSAR, H AS DROPPED THE REASSESSMENT PROCEEDINGS HOLDING THAT THESE ARE UNC ALLED FOR. THE LD. FIRST APPELLATE AUTHORITY HAS ALSO REPRODUCED THE WRITTEN SUBMISSIONS DATED 23.12.2011 AT PAGE 5 (PARAS 5 & 6) OF HIS ORDER. TH E ASSESSMENT ORDER IN THE PRESENT APPEAL IS DATED 27.12.2010 WHEREAS THE WRIT TEN SUBMISSIONS FILED BY THE APPELLANT ARE DATED 23.12.2011 DISCUSSING THE N OTIFICATION NO. 10(E): DATED 06.01.1994 BASED UPON THE INFORMATION RECEIVE D FROM THE TOWN PLANNER, MUNICIPAL CORPORATION, AMRITSAR AS WELL AS VARIOUS OTHER DOCUMENTARY EVIDENCES SHOWING THE DISTANCE OF LAND SITUATED AT A DISTANCE OF APPROXIMATELY 5 KMS AWAY FROM THE MUNICIPAL CORPORA TION LIMIT. 6.1. KEEPING IN VIEW THE WRITTEN SUBMISSIONS DATED 23.12.2011 FILED BY THE ASSESSEE BEFORE THE LD. FIRST APPELLATE AUTHORITY W HICH INCLUDES VARIOUS ADDITIONAL EVIDENCES , WHICH HAS NOT BEEN CONFRONTE D TO THE AO AS REQUIRED UNDER RULE 46A OF THE I.T. RULES, 1962. AFTER GOING THROUGH THE IMPUGNED ORDER, WE FIND NO DISCUSSION IN THE IMPUGNED ORDER SHOWING COMPLIANCE OF RULE 46A OF THE I.T.RULES, 1962. IN OUR VIEW, THE L D. FIRST APPELLATE AUTHORITY HAS ADMITTED THE ADDITIONAL EVIDENCE FILED BY THE A SSESSEE IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AS WELL AS RULE 46 OF I.T. RULES, 1962. WE ARE NOT COMMENTING UPON THE MERIT OF THE CASE BUT IN TH E INTEREST OF JUSTICE, WE THINK IT APPROPRIATE TO SET ASIDE THE MATTER TO THE FILE OF THE LD. FIRST APPELLATE ITA NO110 TO 112(ASR)/2012 7 AUTHORITY TO DECIDE THE SAME AFRESH IN ACCORDANCE W ITH LAW AFTER COMPLYING WITH RULE 46A OF THE I.T. RULES, 1962 ON THE ADDITI ONAL EVIDENCE FILED BY THE ASSESSEE BEFORE HIM AND GIVE FULL OPPORTUNITY TO TH E AO AS REQUIRED UNDER RULES AND DECIDE THE MATTER AFRESH AFTER HEARING BO TH THE PARTIES. THE APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES . 7. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 5TH OCTOBER, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 5TH OCTOBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:S/SH. HARDEEP SINGH (II) HARJIT SINGH & (III) SH. MANOHAR SINGH, AMRITSAR. 2. THE ITO WAD 3(2), ASR. 3. THE CIT(A), ASR. 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.