Shri Vishal Periwal, Darjeeling V. ITO, Ward - 2(2), Siliguri, Siliguri

ITA 1131/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48051 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2011
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 11-04-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 04-06-2010
• Court: TRIBUNAL
• Department Lawyers: A KUMAR
• Assessee Lawyers: S K TULSIYAN
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Opportunity of being heard
• Section: 50C; 2(14)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND , . ! . '# ) [BEFORE HONBLE SRI MAHAVIR SINGH, JM & HONBLE SHR I C. D. RAO, AM] $ $ $ $ / I.T.A NO. 1131/KOL/2010 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR: 2005-06 SHRI VISHAL PERIWAL VS INCOME-TAX OFFICER, WD- 2(2), SILIGURI ( *+ /APPELLANT ) (,-*+/ RESPONDENT ) FOR THE APPELLANT: SHRI S. K. TULSIYAN FOR THE RESPONDENT: SHRI A. KUMAR '. / ORDER PER MAHAVIR SINGH, JM ( , , , , ) THIS APPEAL BY ASSESSEE IS ARISING OUT OF THE ORDER OF CIT(A), SILIGURI IN APPEAL NO.52/CIT(A)/SLG/09-10 DATED 09.03.2010. THE ASSESS MENT WAS FRAMED BY ITO, WD- 2(2), SILIGURI U/S.143(3)/148 OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2005-06 VIDE HIS ORD ER DATED 31.12.2009. 2. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS , WHETHER THE ASSESSEES LAND FALLS IN NOTIFIED AREAS IN DARJEELING DISTRICT I.E. UP TO THE DISTANCE OF 8 KMS. FROM THE MUNICIPAL LIMITS OF DARJEELING OR NOT? FOR THIS, T HE ASSESSEE HAS RAISED FOLLOWING ARGUMENTATIVE GROUNDS: 1. THAT THE LD CIT(A) ERRED IN LAW AS WELL AS ON F ACTS IN UPHOLDING THE ASSESSMENT ORDER DATED 31.12.09 WHEREBY THE RETURNE D INCOME OF RS.1,08,140/- WAS ASSESSED AT RS.16,34,620/-. 2. THAT THE LD CIT(A) ERRED IN LAW AS WELL AS ON FA CTS IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER WHEREBY SHORT TERM CAPITAL GA IN OF RS.6,727/- (AS COMPUTED BY THE APPLICANT) WAS SUBSTITUTED FOR RS. 15,26,482 /- (AS COMPUTED BY THE AO). 3. THE LD CIT(A) ERRED IN LAW AS WELL AS ON FACTS I N UPHOLDING THE ACTION OF THE AO WHEREBY SALE CONSIDERATION RECEIVED ON ACCOUNT O F SALE OF TWO PLOTS OF LANDS BEING A. LAND MEASURING 9 KATHAS 6.5 CHATAKS, PLOT NO 235 & 236. KHAITAN NO:558, MOUZA: DEBAGRAM, J.L.NO.2., SEAT NO;-8, PS . BHAKTINAGAR, DIST. JALPAIGURI. 2 ITA 1131/K/201 0 VISHAL PERIWAL. A.Y. 05-06 B. LAND MEASURING 2 KHATAS 10.5 CHATAKS OUT OF 13.5 CHATAKS PURCHASED VIDE DEED NO.13809, SEAT NO. 8 PLOT NO. 237, MOUZA : DABAGRAM, P.S. BHAKTINAGAR, DIST. JALPAIGURI WAS TAKEN AT RS. 15,52,500/- AND RS. 1,44,544/- AGG REGATING TO RS. 16,97,044/- INSTEAD OF RS.1,55,250 AND RS.14,166/- AGGREGATING TO RS.1,69,416/- AS DECLARED BY THE APPLICANT. 4. THE LD CIT(A) ERRED IN LAW AS WELL AS ON FACTS I N UPHOLDING THE ACTION OF THE AO IN TAKING THE VALUE ASSESSED BY THE REGISTERING AUTHORITY AS FULL VALUE OF CONSIDERATION RECEIVED OR ACCRUED AS A RESULT OF TH E AFORESAID TRANSFER. 5. THE LD CIT(A) ERRED IN LAW AS WELL AS ON FACTS I N RELYING UPON SECTION 50C IGNORING THE PROVISIONS OF SUB-SECTION (2) AND SUB- SECTION (3) OF THE SAID SECTION 50C. 6. THE LD CIT(A) ERRED IN LAW AS WELL AS ON FACTS I N IGNORING THE PLEA OF THE APPELLANT THAT THE SAID PLOTS OF LANDS WERE AGRICUL TURAL LANDS AND HENCE WERE NOT CAPITAL ASSETS WITHIN THE MEANING OF SECTION 2(14) AND GAIN ON SALE OF THE SAME CANNOT BE CHARGED TO TAX. 7. THE LD. CIT(A) ALSO ERRED IN LAW AS WELL AS ON F ACTS IN HOLDING THAT THE LD AO HAS RIGHTLY ADOPTED THE VALUATION MADE BY THE DV O FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN WHEN NO REFERENCE TO T HE DVO HAS EVER BEEN MADE. HENCE, THE SAID FINDING IS WITHOUT VERIFICATION OF FACTS ON RECORD AND THEREFORE ARBITRARY. 3. AT THE TIME OF HEARING OF THE APPEAL, THE LD. CO UNSEL FOR THE ASSESSEE HAS DRAWN OUR ATTENTION TO CBDT NO. 9447/F NO.164/3/87 ITA-I DATED 06.01.1994 THAT SILIGURI, AREAS FALLING WITHIN THE MOUZAS OF (1) DEBGRAM, (2) BINAGURI (BOTH IN JALPAIGURI DIST.) AND (3) PATHARGHATA INCLUDING CHAMPASARI, PHULBARI AND MOTIGARH (ALL IN DARJEELING DIST.) UP TO A DISTANCE OF 8 KMS. FROM THE MUNICIPA L LIMITS. IN VIEW OF THIS, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THIS ASPECT HA S NEITHER BEEN EXAMINED BY ASSESSING OFFICER NOR BY CIT(A). HE REFERRED TO ASSESSMENT O RDER AND READ OUT THE WHOLE ORDER AND STATED THAT THIS ASPECT, IN RESPECT TO MUNICIPA L LIMITS OF SILIGURI AND DISTANCE UP TO 8 KMS, HAS NOT BEEN DISCUSSED. ACCORDING TO HIM, THE ASSESSEES AGRICULTURAL LAND FALLS OUTSIDE THE MUNICIPAL LIMITS OF 8 KMS. BUT THE SAM E HAS NOT BEEN VERIFIED BY THE LOWER AUTHORITIES. ON THIS, THE LD. DR STATED THAT THE I SSUE CAN BE REMANDED BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH VERIFICATION AND ALSO H E WILL DECIDE ON MERITS. 4. AFTER HEARING BOTH THE SIDES ON THIS ISSUE AND G OING THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT RELEVANT NO TIFICATION OF AREAS I.E. MOUZA : DEBGRAM WHETHER FALLS WITHIN A DISTANCE OF 8 KMS FR OM MUNICIPAL LIMITS I.E. AGRICULTURAL 3 ITA 1131/K/201 0 VISHAL PERIWAL. A.Y. 05-06 LAND OF THE ASSESSEE OR NOT HAS NOT BEEN VERIFIED AND CONSEQUENTLY THIS LAND IS A CAPITAL ASSET OR NOT. HENCE, WE SET ASIDE THIS ISSUE TO TH E FILE OF THE ASSESSING OFFICER FOR FRESH VERIFICATION. NEEDLESS TO SAY THAT ASSESSING OFFIC ER WILL PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSING OFFI CER WILL ALSO DECIDE THE VALUE ADOPTED BY DVO FOR COMPUTATION OF CAPITAL GAINS IN TERMS OF SECTION 50C OF THE ACT. THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- . ! ! ! ! . '# , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( !# !# !# !#) )) ) DATED 11TH DAY OF APRIL, 2011 /0 %12 3 JD.(SR.P.S.) '. 4 ,5 6'5'7- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT SHRI VISHAL PERIWAL, BIDHAN ROAD, P.O. SILIGURI, DIST. DARJEELING. 2 ,-*+ / RESPONDENT ITO, WARD-2(2), SILIGURI 3 . .% ( )/ THE CIT(A), SILIGURI 4. 5. .% / CIT SILIGURI 5 => ,% / DR, KOLKATA BENCHES, KOLKATA -5 ,/ TRUE COPY, '.%?/ BY ORDER, 2 /ASSTT. REGISTRAR .