Shri Alpesh T.Parikh, Ahmedabad V. The Income tax Officer,Ward-9(1), Ahmedabad

ITA 1159/AHD/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6316 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 02-04-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAVINDRA KUMAR
• Assessee Lawyers: J M SHAH
• Section: 143(3); 54B; 263

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE S/SHRI G. D. AGARWAL, VP AND BHAVNESH SAINI , JM) ITA NO.1159/AHD/2008 A. Y.: 2004-05 ALPESH T. PARIKH, PROP.PARIKH DEVELOPERS, B-204, 2 ND FLOOR, SAPATH- IV, OPP. KARNAVATI CLUB, S. G. HIGHWAY, AHMEDABAD 51 VS THE INCOME TAX OFFICER, WARD -9(1), AHMEDABAD PA NO. AAMPP 2497 C (APPELLANT) (RESPONDENT) APPELLANT BY SHRI J. M. SHAH, AR RESPONDENT BY SHRI RAVINDRA KUMAR, DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-XV , AHMEDABAD DATED 27-02-2008, FOR ASSESSMENT YEAR 2004-05. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND C ONSIDERED THE MATERIALS AVAILABLE ON RECORD. 3. BEFORE TAKING MAIN GROUND NO.1 OF THE APPEAL OF THE ASSESSEE, WE MAY NOTE THAT THE ASSESSEE RAISED GROUND NO.2 IN THE APPEAL OF THE ASSESSEE CHALLENGING ADDITION OF AGRICULTURAL I NCOME IN A SUM OF RS.1,23,224/-. AFTER ARGUING IN BRIEF, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE WAS REVISED BY T HE LEARNED CIT ITA NO.1159/AHD/2008 ALPESHS T. PARIKH, PROP. PARIKH DEVELOPERS VS ITO, W-9(1), AHMEDABAD 2 U/S 263 OF THE IT ACT AND THE AO PASSED THE ASSESSM ENT ORDER DATED 30-12-2009 U/S 143(3) READ WITH SECTION 263 OF THE IT ACT AND THE ADDITION ON THIS ISSUE HAS BEEN ENHANCED TO RS.2,87 ,461/-. COPY OF THE ASSESSMENT ORDER IS PLACED ON RECORD. HE HAS SU BMITTED THAT THE ASSESSEE DID NOT CHALLENGE THE ORDER OF THE AO DATE D 30-12-2009 AND THE SAME HAS REACHED FINALITY. HE STATED THAT S INCE THE ADDITION ENHANCED ON THIS ISSUE WHICH IS ACCEPTED BY THE ASS ESSEE, THEREFORE, HE WOULD NOT BE PRESSING GROUND NO.2 OF THE APPEAL OF THE ASSESSEE. IN VIEW OF THE ABOVE FACTS AND SUBMISSION OF THE LE ARNED COUNSEL FOR THE ASSESSEE, GROUND NO.2 OF THE APPEAL OF THE ASSE SSEE IS DISMISSED AS WITHDRAWN. 4. ON GROUND NO.1 OF THE APPEAL, THE ASSESSEE CHALL ENGED THE ORDER OF THE LEARNED CIT(A IN CONFIRMING LONG TERM CAPITAL GAINS AT RS.14,53,700/-. THE AO NOTED IN THE ASSESSMENT ORDE R THAT THE ASSESSEE HAS SHOWN NET AGRICULTURAL INCOME OF RS.4, 02,510/-. THE ASSESSEE HAS ALSO GIVEN A FOOT NOTE IN THE STATEMEN T OF INCOME STATING THAT THE ASSESSEE HAS RECEIVED AN AMOUNT OF RS.13,75,085/- ON SALE OF AGRICULTURAL LAND AFTER REDUCING THE COS T OF THE LAND OF RS.50,365/- THE ASSESSEE HAS SHOWN NET PROFIT OF RS .13,24,720/-, WHICH IS CLAIMED AS EXEMPT STATING THAT THE AMOUNT RECEIVED FOR SALE OF LAND AT OGNAJ WHICH IS OUTSIDE LIMIT OF MUNICIPA L LIMIT MORE THAN 8 KMS AWAY IS NOT TAKEN INTO CONSIDERATION FOR CAPITA L GAIN AS SAME IS EXEMPT IN VIEW OF PROVISION OF THE ACT. THE AO NOT ED THAT THE ASSESSEE AND ITS FAMILY MEMBERS HAVE PURCHASED THE LAND BEARING SURVEY NO.637 AT VILLAGE OGNAJ BY SALE DEED EXECUTE D ON 07-09-1993 FROM 8 PERSONS FOR A CONSIDERATION OF RS.1,98,000/- THROUGH SALE ITA NO.1159/AHD/2008 ALPESHS T. PARIKH, PROP. PARIKH DEVELOPERS VS ITO, W-9(1), AHMEDABAD 3 DEED. SUBSEQUENTLY, THIS LAND WAS ACQUIRED BY GUJAR AT HOUSING BOARD IN THE YEAR 1996 AND PAID A COMPENSATION AMOU NTING TO RS. 6,44,896/- TO THE LAND OWNERS OF THE SAID LAND AND ACCORDINGLY THE ASSESSEE HAS ALSO RECEIVED HIS SHARE OF RS.1,28,980 /- DURING THAT YEAR. SUBSEQUENTLY, THE OWNERS OF THE LAND WENT INT O LITIGATION AGAINST ACQUISITION OF THE LAND AT LOWER PRICE BY THE GUJAR AT HOUSING BOARD AND AS PER THE FINAL AWARD, ADDITIONAL COMPENSATION OF RS.34,64,397/- WAS PAID TO THE OWNERS OF THE LAND DURING THE YEAR 2003-04. ASSESSEES SHARE OF ADDITIONAL COMPENSATION IN THE LAND COMES TO RS.13,75,085/- WHICH WAS SHOWN IN THE STATEMENT OF INCOME AND CLAIMED EXEMPTION. ON INQUIRIES, IT WAS GATHERED TH AT VILLAGE OGNAJ IS SITUATED WITHIN 8 KMS FROM MUNICIPAL LIMIT OF AHMED ABAD. THE ASSESSEES CLAIM WAS THAT THE LAND AT OGNAJ IS SITU ATED AT 8 KMS AWAY FROM THE OLD MUNICIPAL LIMIT OF AHMEDABAD; THE REFORE, THE ASSESSEE WAS DIRECTED TO PRODUCE NECESSARY EVIDENCE REGARDING THE CLAIM. THE ASSESSEE SUBMITTED THE CERTIFICATE ISSUE D BY SARPANCH OF OGNAJ GRAM PANCHAYAT IN SUPPORT OF THE CLAIM. THE A SSESSEE WAS DIRECTED TO PRODUCE THE ACQUISITION ORDER AS WELL A S EVIDENCE OF CULTIVATION OF THE AGRICULTURAL LAND. THE AO ISSUED LETTER TO THE ASSISTANT TOWN PLANNER OF AHMEDABAD URBAN DEVELOPME NT AUTHORITY (AUDA IN SHORT), AHMEDABAD TO KNOW THE EXACT DISTAN CE FROM THE OLD AHMEDABAD MUNICIPAL LIMIT TO THE STARTING POINT OF OGNAJ VILLAGE THROUGH THE SHORTEST ROUTE AND ALSO THE DISTANCE TO THE LAND OF SURVEY NO.673 AT VILLAGE OGNAJ. THE ASSISTANT TOWN PLANNER , AUDA VIDE HIS LETTER DATED 16-11-2006 STATED THAT THE DISTANCE FR OM VADAJ REVENUE SURVEY NO.233 TO SURVEY NO.940 OF OGNAJ VILLAGE IS ONLY 3.93 KMS AND THE DISTANCE FROM VADAJ REVENUE SURVEY NO.233 T O REVENUE ITA NO.1159/AHD/2008 ALPESHS T. PARIKH, PROP. PARIKH DEVELOPERS VS ITO, W-9(1), AHMEDABAD 4 SURVEY NO.673 OF OGNAJ I.E. THE LAND IN QUESTION IS 4.89 KMS. ON THE BASIS OF THE CERTIFICATE ISSUED BY AUDA FURTHER SHO W CAUSE NOTICE WAS ISSUED TO THE ASSESSEE AS TO WHY CAPITAL GAINS SHOULD NOT BE TAXED. THE AO CONSIDERING THE ABOVE FACTS NOTED THA T THE LAND IS SITUATED WITHIN 8 KMS FROM LOCAL LIMIT OF AHMEDABAD MUNICIPAL CORPORATION AND AS SUCH THE COMPENSATION RECEIVED S HOULD BE TAXED AS CAPITAL GAINS. ACCORDINGLY, CAPITAL GAIN WAS CHA RGED AS LONG TERM CAPITAL GAINS. THE FINDINGS OF THE AO WAS CHALLENGE D BEFORE THE LEARNED CIT(A) AND THE SAME SUBMISSIONS WERE REITER ATED. THE LEARNED CIT(A) CONSIDERING THE MATERIAL ON RECORD C ONFIRMED THE ORDER OF THE AO AND ALSO REJECTED THE CLAIM OF THE ASSESSEE FOR INDEXATION BECAUSE WHATEVER HAS BEEN DECLARED BY TH E ASSESSEE IN THE RETURN OF INCOME HAS BEEN ACCEPTED BY THE AO. T HE LEARNED CIT(A) DURING THE APPELLATE PROCEEDINGS ALSO CALLED FOR REPORT FROM THE ITO, WARD -9(1) WHO HAS CONFIRMED THAT AHMEDABA D MUNICIPAL CORPORATION HAS INFORMED THAT THE LAND FALLS WITHIN 8 KMS MUNICIPAL LIMIT. THEREFORE, THE CLAIM OF THE ASSESSEE WAS REJ ECTED. BUT THE COMPENSATION RECEIVED IN 1996-97 IN A SUM OF RS.1,2 8,980/- WAS EXCLUDED. 5. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSION MADE BEFORE THE AUTHORITIES BELOW AND SU BMITTED THAT THE CERTIFICATE OF SARPANCH OF THE GRAM PANCHAYAT SHOUL D BE ACCEPTED AGAINST THE CERTIFICATE OF THE AUDA AND FURTHER REL IED UPON THE DECISION OF THE PUNJAB & HARYANA HIGH COURT ION THE CASE OF CIT VS LAL SINGH & ORS. 228 CTR 576 IN WHICH IT WAS HELD A S UNDER: ITA NO.1159/AHD/2008 ALPESHS T. PARIKH, PROP. PARIKH DEVELOPERS VS ITO, W-9(1), AHMEDABAD 5 CAPITAL GAINS AGRICULTURAL LAND LAND SITUATED BEYOND 8 KMS FROM MUNICIPAL LIMITS REPORT OF THE TEHSILD AR CERTIFIED THAT THE ASSESSEES LAND WAS 8 KMS AWAY F ROM THE MUNICIPAL LIMITS REPORT OF THE IT INSPECTOR, WITHOUT MENTIONING THE KHASRA NUMBER AND WITHOUT SHOWING HO W THE DISTANCE OF THE LAND WAS MEASURED COULD NOT BE ACCEPTED LAND WAS THEREFORE AGRICULTURAL LAND AND THE ASSESSEE WAS ENTITLED TO EXEMPTION UNDER S. 54B ON ACCOUNT OF PURCHASE OF NEW LAND. HE HAS ALSO SUBMITTED THAT INDEXATION BENEFIT HAS N OT BEEN GIVEN TO THE ASSESSEE; THEREFORE, SAME BENEFIT SHOULD BE GIV EN TO THE ASSESSEE. HE HAS ALSO REFERRED TO NEWS PAPER CUTTIN G TO SHOW THAT HOW THE LAND IS TO BE MEASURED FROM MUNICIPAL LIMIT . BUT, HE COULD NOT EXPLAIN AS TO HOW THE NEWS PAPER CUTTING COULD BE T AKEN INTO CONSIDERATION WHICH WAS ALSO ADMITTEDLY NOT RAISED BEFORE THE AUTHORITIES BELOW. 6. ON THE OTHER HAND, THE LEARNED DR RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW. 7. ON CONSIDERATION OF THE RIVAL SUBMISSIONS WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE ASSESSEE. THE ASSESSEE PRODUCED ONLY CERTIFICATE FROM GRAM PANCHAYAT IN SU PPORT OF THE CLAIM THAT THE LAND IN QUESTION IS 8 KMS AWAY FROM THE LIMIT OF AHMEDABAD MUNICIPAL CORPORATION. COPY OF THE SAME I S FILED IN THE PAPER BOOK WHICH IS ONLY OF TWO LINES CERTIFICATE W ITHOUT MENTIONING ANY DETAIL AND BASIS AS TO HOW THE CERTIFICATE IS I SSUED BY THE SARPANCH. FURTHER, THE SARPANCH IS NOT A STATUTORY AUTHORITY FUNCTIONING UNDER THE ACT. FURTHER, NO DETAIL HAS B EEN GIVEN AS TO FROM DIFFERENT ANGLE OF THE PROPERTY IN QUESTION AN D THE VILLAGE WHERE ITA NO.1159/AHD/2008 ALPESHS T. PARIKH, PROP. PARIKH DEVELOPERS VS ITO, W-9(1), AHMEDABAD 6 THE LAND IS SITUATED AND HOW 8 KMS AWAY FROM THE MU NICIPAL LIMIT. THE AO CALLED FOR REPORT FROM THE ASSISTANT TOWN PL ANNER OF AUDA, AHMEDABAD WHO ARE TO UNDERTAKE DEVELOPMENT OF THE A REA AND WAS FUNCTIONING UNDER LEGAL AUTHORITY. THE AUDA ISSUED THE CERTIFICATE CLARIFYING FROM DIFFERENT ANGLES THAT THE DISTANCE FROM OGNAJ VILLAGE TO THE NEAREST LIMIT OF AHMEDABAD MUNICIPAL CORPORATIO N AT DIFFERENT ANGLES IS 3.93 KMS AND 4.98 KMS. THE REPORT OF THE AUDA IS NOT REBUTTED BY THE ASSESSEE THROUGH ANY EVIDENCE OR MA TERIAL ON RECORD. THE LEARNED CIT(A) AT THE APPELLATE STAGE ALSO IN O RDER TO GET THE FACT FURTHER CONFIRMED, ASKED FOR REPORT FROM AHMEDABAD MUNICIPAL CORPORATION THROUGH THE AO ABOUT THE STATUS OF THE LAND IN WHICH IT WAS CONFIRMED THAT AHMEDABAD MUNICIPAL CORPORATION HAS INFORMED THAT THE LAND IN QUESTION FALLS WITHIN 8 KMS OF MUN ICIPAL LIMIT. CONSIDERING THE ABOVE FACTS, IT IS CLEAR THAT THE A SSESSEE HAS FAILED TO PROVE ITS CONTENTION THROUGH ANY EVIDENCE ON RECORD . THE ASSESSEE MERELY FURNISHED INCOMPLETE AND VAGUE CERTIFICATE F ROM THE GRAM PANCHAYAT WHICH CANNOT BE TAKEN INTO CONSIDERATION AGAINST RELIABLE AND COGENT EVIDENCES PRODUCED BY THE AO NOT ONLY AT THE ASSESSMENT STAGE BUT AT THE APPELLATE STAGE ALSO. T HE DECISION IN THE CASE OF LAL SINGH & OTHERS (SUPRA) THUS WOULD SUPPO RT THE CASE OF THE REVENUE BECAUSE THE CERTIFICATE OF GRAM PANCHAYAT I S WITHOUT MENTIONING ANY DETAILS AND THE MEASUREMENT. ACCORDI NGLY, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE ASSE SSEE. FURTHER, THE LEARNED CIT(A) NOTED IN THE IMPUGNED ORDER THAT THE AO HAS TAKEN THE COST OF LAND DECLARED BY THE ASSESSEE IN THE RE TURN WHICH ACCEPTED BY THE AO. THEREFORE, NO FURTHER INDEXATIO N WAS REQUIRED BY THE AO. FURTHER, NO CLAIM IS MADE BY THE ASSESSEE B EFORE THE AO. ITA NO.1159/AHD/2008 ALPESHS T. PARIKH, PROP. PARIKH DEVELOPERS VS ITO, W-9(1), AHMEDABAD 7 THEREFORE, WHATEVER COST OF THE LAND IS SHOWN BY TH E ASSESSEE IN THE RETURN OF INCOME WHEN ACCEPTED, NO GRIEVANCE IS LEF T FOR THE ASSESSEE. ACCORDINGLY, THERE IS NO MERIT IN THIS GR OUND OF APPEAL OF THE ASSESSEE. SAME IS DISMISSED. 8. CHARGING OF INTEREST IS MANDATORY AND CONSEQUENT IAL. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24-06-2011 SD/- SD/- (G. D. AGARWAL) VICE PRESIDENT (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 24-06-2011 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD