Manjit Singh/Kaka Singh, Mohali V. ITO, Mohali

ITA 119/CHANDI/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6829 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 30-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C CHANDRAKANTA
• Assessee Lawyers: PARISKSHIT AGGARWAL
• Section: 54B; 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND DR.B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO.119/CHD/2014 ASSESSMENT YEAR: 2009-10 M/S MANJIT SINGH / KAKA SINGH VS. THE ITO VILLAGE BALLOMAJRA WARD 6(3) MOHALI MOHALI PAN NO. EPFPS3617B (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. PARISKSHIT AGGARWAL REVENUE BY : SMT. C. CHANDRAKANTA DATE OF HEARING : 22/08/2017 DATE OF PRONOUNCEMENT : 20/09/2017 ORDER PER B.R.R. KUMAR A.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT (A)- CHANDIGARH DT. 04/11/2013. 2. THE EFFECTIVE GROUNDS OF THE APPEAL ARE AS UNDER : 2. THAT ON THE FACTS, CIRCUMSTANCES AND LEGAL POSIT ION OF THE CASE, THE LD. ASSESSING OFFICER HAS ERRED IN INITIATING THE PROCE EDINGS U/S 148 R.W.S 147 OF THE ACT AND THEREFORE THE WHOLE IMPUGNED ASSESSMENT IS VOID-AB-INITIO AND DESERVES TO BE QUASHED. FURTHER, VIDE PARA 5.1 OF HIS ORDER, WORTHY CIT(A) HAS ERRED IN NOT ALLOWING THIS GROUND AGITATED BEFORE HIM. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, WORTHY CIT(A) VIDE PARA 4.2.1 OF HIS ORDER, HAS ERRED IN NOT ALLOWING THE D EDUCTION OF RS. 1,40,48.000/- CLAIMED UNDER SECTION 54B OF THE ACT TO BE SET OFF ON ACCOUNT OF PURCHASE OF AGRICULTURAL LANDS AGAINST GAIN ON SALE OF AGRICULT URAL LANDS. THE ACTION OF LD. ASSESSING OFFICER AS WELL AS WORTHY CIT(A) WAS ARBI TRARY IN THIS REGARD. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, WORTHY CIT(A) VIDE PARA 6.1 OF HIS ORDER, HAS ERRED IN CONFIRMING THE ACTIO N OF LD. ASSESSING OFFICER WHEREIN LD. ASSESSING OFFICER ARBITRARILY CALCULATED THE CO ST OF ACQUISITION WHICH IS TOTALLY UNJUSTIFIED. 3. BRIEF FACTS OF THE CASE ARE THAT PROCEEDINGS UND ER SECTION 147 OF THE INCOME TAX ACT , 1961 WERE INITIATED AGAINST THE ASSESSEE AS I NFORMATION AVAILABLE WITH THE DEPARTMENT HAS REVEALED THAT THE ASSESSEE HAS SOLD HIS LAND AT VILL- BALLOMAJRA TO M/S HAMIR REAL ESTATE PVT. LTD. DURING THE FY 2008-09 M EASURING 1.8 ACRE AND .01 ACRE. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS NOT COMPLIED TO THE NOTICES 2 ISSUED HENCE THE ASSESSING OFFICER HAS PASSED ORDER UNDER SECTION 144 DETERMINING THE CAPITAL GAINS BASED ON THE INFORMATION OBTAINED FRO M REVENUE AUTHORITIES AND DETERMINING THAT THE LAND IS SITUATED WITHIN 1KM FR OM THE URBAN AREA OF MOHALI KHARAR ROAD NH-21. 4. BEFORE THE LD. CIT(A) THE ASSESSEE SUBMITTED THA T HE IS INVESTED IN PURCHASE OF AGRICULTURE LAND AND ELIGIBLE FOR EXEMPTION UNDER S ECTION 54B. THE CIT(A) HAS NOT ACCEPTED THE CLAIM ON THE GROUNDS THAT ONLY AGREEME NTS TO SELL HAVE BEEN PRODUCED AND HELD THAT THE ASSESSEE IS NOT ELIGIBLE FOR DEDU CTION. 5. AGGRIEVED THE ASSESSEE FILED THE APPEAL BEFORE U S. 6. THE ASSESSEE HAS PRODUCED SALE DEED AND AGREEMEN T TO SELL. 7. THE LD. AR HAS ALSO BROUGHT TO OUR NOTICE THE CO PY OF THE ORDER IN THE CASE OF MR. S.S. CHAHAL WHO SOLD THE LAND OF THE SAME VILLAGE T O THE SAME PURCHASER WHEREIN THE DEPARTMENT HAS TREATED THE LAND AS A NON CAPITAL AS SET. THE LD. AR ALSO BROUGHT TO OUR NOTICE THE CIRCULAR NO. 72/2015 FOR MEASUREMENT OF DISTANCE FOR THE PURPOSE OF SECTION 2(14)(III)(B) DT. 06/10/2015 OF CBDT, AND PLEADED T HAT THE CASE MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR CORRECT DETERMINA TION OF CAPITAL GAINS. 8. THE LD. DR STRONGLY SUPPORTED THE ORDER OF THE C IT(A). 9. WE HAVE GONE THROUGH THE MATERIAL PLACED BEFORE US. WE FIND THAT THE ASSESSING OFFICER OR THE CIT(A) COULD NOT GO THROUGH THE ISSU E OF DETERMINATION OF CAPITAL GAINS AND CLAIM OF EXEMPTION THERETO FULLY AND COMPLETELY DUE TO ABSENCE OF COMPLIANCE BEFORE THE ASSESSING OFFICER. HENCE THE CASE IS BEI NG SENT BACK TO THE FILE OF THE ASSESSING OFFICER FOR COMPLETING THE ASSESSMENT DENOVO. THE ASSESSEE IS ALSO DIRECTED TO COMPLY WITH ALL THE STATUTORY REQUIREMENTS AS CA LLED FOR BY THE ASSESSING OFFICER IN THE FURTHER PROCEEDINGS, FAILING WHICH THE ASSESSING OF FICER WOULD BE AT LIBERTY TO TAKE DECISION AS DEEMED FIT. THE CASE IS SET ASIDE. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (SANJAY GARG) (DR.B.R.R.KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 20/09/2017 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR