JAGDISH PRASAD SHARMA, Jaipur V. ITO, Jaipur

ITA 128/JPR/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5364 (ITAT-JAIPUR)
• Duration Of Justice: 5 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-12-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 15-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAILASH MANGAL JCIT DHK
• Keywords: Capital asset; Cost of acquisition
• Section: 54B; 54F; 2(14); 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA-@ ITA NO. 128/JP/2011 & 23/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 . SHRI JAGDISH PRASAD SHARMA, VILLAGE: BHAMBHORIA, TEHSIL: SANGANER, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. CJSPS 9214 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (C.A.) JKTLO DH VKSJ LS@ REVENUE BY : SHRI KAILASH MANGAL (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 26.02.2016. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 25.04.2016. VKNS'K@ ORDER PER SHRI R.P. TOLANI, J.M. THESE ARE TWO ASSESSEES APPEALS. ONE AGAINST THE QUANTUM ASSESSMENT AND THE OTHER IS AGAINST PENALTY UNDER SECTION 271(1)(B ) AT RS. 10,000/-. WE DECIDE THE APPEALS AS UNDER : ITA NO. 128/JP/2011 : 2. GROUNDS RAISED IN THIS APPEAL ARE AS UNDER :- ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE L D. CIT (A) HAS ERRED IN LAW AND IN FACTS IN 1. UPHOLDING THE ASSESSMENT U/S 144 OF THE I.T. ACT, 1 961 WHEN IN FACT ALL THE PRECISE DETAILS WERE SUBMITTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 2 ITA NO. 128/JP/2011 & 23/JP/2013 SHRI JAGDISH PRASAD SHARMA VS. ITO 2. CONFIRMING DISALLOWANCE OF EXEMPTION OF RS. 7248150 /- U/S 54B OF THE INCOME TAX ACT, 1961 IGNORING THE EVIDENCES FIL ED FOR THE ACQUISITION OF AGRICULTURE LAND OUT OF SALE PROCEED S THUS THE EXEMPTION U/S 54B DESERVES TO BE ALLOWED. 3. NOT ACCEPTING THE AFFIDAVIT FILED OF THE SELLER FRO M WHOM THE ASSESSEE HAS FURTHER PURCHASED THE AGRICULTURE LAND . 4. SUSTAINING THE DISALLOWANCE OF THE EXEMPTION OF RS. 11,17,988/- U/S 54F OF THE IT ACT. 5. SUSTAINING THE COST OF ACQUISITION AT RS. 16,151/- AS ADOPTED BY THE AO INSTEAD OF RS. 40,000/- CLAIMED BY THE ASSESSEE. 6. NOT ACCEPTING THE COST INCURRED BY ASSESSEE ON BOUN DARY WALL, TUBE WELL AND PUMP HOUSE AND BORING AND SMALL DWELLING U NIT, BY GROSSLY IGNORING THE EVIDENCES SUBMITTED. 7. NOT ALLOWING THE CREDIT OF INDEXED COST OF IMPROVEM ENT AS CLAIMED BY ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS RAISED AN ADDI TIONAL GROUND WHICH IS AS UNDER :- THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. AO HAS GROSSLY ERRED IN NOT TREATING THE LAND SOLD BY THE ASSESSEE AS AGRICULTURE LAND WITHIN THE MEANING OF SECTION 2(14 )(III)(B) OF THE INCOME TAX ACT, 1961 THEREFORE THE ACTION OF THE AO IN HOLDING THE LAND AS CAPITAL ASSET DESERVES TO BE HOLD BAD IN LA W AND CONSEQUENTLY THE LONG TERM CAPITAL GAIN ASSESSED ON THE TRANSFER OF SUCH LAND DESERVES TO BE DELETED. 3. IT IS CONTENDED THAT THE ADDITIONAL GROUND IN QU ESTION IS PURELY LEGAL IN NATURE AS THE ASSET IN QUESTION BEING EXEMPT, A CLAIM WAS NOT MADE DUE TO OVERSIGHT. THE ISSUE BEING LEGAL AND REQUIRES FURTHER NO VERIFICAT ION, DESERVES TO BE ADMITTED. 4. WE HAVE HEARD BOTH THE PARTIES ON THE ISSUE OF A DMISSION OF ADDITIONAL GROUND. THE SAME BEING LEGAL IN NATURE, IS ADMITTED . 5. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, CONTENDS THAT ASSESSEE IS BROTHER OF ONE SHRI BHANWAR LAL SHARMA. THE ASSESSE E SOLD THE LAND IN QUESTION 3 ITA NO. 128/JP/2011 & 23/JP/2013 SHRI JAGDISH PRASAD SHARMA VS. ITO ALONG WITH OTHER BROTHERS I.E. SHRI BHANWAR LAL SHA RMA AND SHRI RAM NIWAS SHARMA TO M/S. SANDEEP LANDCON PVGT. LTD. THE KHASRA NUMBE R BEING SAME, THE DESCRIPTION OF LAND AND ITS GEOGRAPHICAL LOCATION BEING OUTSIDE THE SPECIFIED MUNICIPAL LIMIT IS SAME. LD. COUNSEL REFERRED TO SALE DEED OF SHRI BH ANWAR LAL SHARMA DATED 05.04.2006 AND ASSESSEES SALE DEED DATED 31.07.200 6 AND THE KHASRA NUMBER MENTIONED IN BOTH THE SALE DEEDS ARE AS UNDER :- IZFKE & [KSOV [KRKSUH UBZ 133 IQJKUH 142 FEU E LA - [KLJK UECJ JDCK GSDVS;J ESA 1. 58 0.03 2. 61 0.21 3. 62 1.24 4. 63 0.03 5. 70 0.41 6. 136 0.03 7. 184 0.47 8. 185 0.47 9. 186 0.74 10. 187 0.08 11. 188 0.22 12. 189 0.13 13. 190 0.09 14. 191 0.09 15. 192 0.08 16. 193 0.20 17. 194 0.32 18. 284 0.52 19. 285 0.06 20. 287 0.37 21. 288 0.13 22. 317 0.26 23. 350 0.08 24. 354 0.04 THUS THE LAND SOLD BY THE ASSESSEE IS FROM THE SAME KHASRA NUMBERS WHICH ARE OUTSIDE THE SPECIFIED MUNICIPAL AREA. 4 ITA NO. 128/JP/2011 & 23/JP/2013 SHRI JAGDISH PRASAD SHARMA VS. ITO 6. SIMILAR ISSUE AROSE IN THE CASE OF SHRI BHANWAR LAL SHARMA IN ITA NO. 522/JP/2012. VIDE ORDER DATED 05.12.2014, THE TRIB UNAL FOLLOWING ITS OWN ORDER IN THE CASE OF SHRI RAM NIWAS SHARMA IN ITA NO. 996/JP /2007 DATED 30.12.2010 HELD THAT THE LAND IN QUESTION IS EXEMPT BEING OUTSIDE T HE SPECIFIED LIMIT OF JAIPUR MUNICIPAL CORPORATION. THE OBSERVATIONS MADE ARE A S UNDER :- 2.5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERU SED THE MATERIALS AVAILABLE ON RECORD, RESPECTFULLY FOLLOWING THE DEC ISION OF THIS BENCH IN THE CASE OF SHRI RAM NIWAS SHARMA (ITA NO. 996/JP/2 007 DATED 30.12.2010), SUPRA, WE ALLOW GROUND NO. 1 OF THE AS SESSEE. THE ASSESSEES CAPITAL GAINS ARE EXEMPT AS THE LAND IN QUESTION IS OUTSIDE THE SPECIFIED JAIPUR CORPORATION LIMIT AND, THEREFO RE, THE ASSETS ARE NOT LIABLE FOR CAPITAL GAINS. CONSEQUENTLY, THE GROUND NO. 2 OF THE ASSESSEE ABOUT SECTION 54B AND SECTION 54F BECOMES ACADEMIC IN NATURE AND THUS IS INFRUCTUOUS. CONSEQUENTLY, THE APPEAL OF TH E ASSESSEE IS ALLOWED ON ABOVE TERMS. SINCE THE ISSUE IN QUESTION IS EXACTLY SAME, THE LA ND BEING AN EXEMPTED ASSET IS NOT ASSESSABLE TO CAPITAL GAIN. SINCE THE LAND IS EXEM PTED, THE OTHER GROUNDS RAISED BY THE ASSESSEE HAVE BECOME INCONSEQUENTIAL. 7. THE LD. D/R SUPPORTED THE ORDERS OF THE AUTHORIT IES BELOW. 8. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. RESPECTFULLY FOLLOWING THE ITAT JAIPUR JUD GMENT IN THE CASE OF ASSESSEES BROTHERS SHRI BHANWAR LAL SHARMA AND SHRI RAM NIWAS SHARMA, THE FACTS AND CIRCUMSTANCES AND GEOGRAPHICAL LOCATION OF THE LAND BEING SAME IN TERMS OF KHASRA NUMBERS, WE HOLD THAT THE IMPUGNED LAND SOLD BY THE ASSESSEE IS EXEMPT UNDER SECTION 2(14) BEING SITUATED OUTSIDE THE SPECIFIED LIMITS OF JAIPUR MUNICIPAL CORPORATION. THIS GROUND OF THE ASSESSEE IS ALLOWED . 9. SINCE THE OTHER GROUNDS ABOUT CLAIM OF DEDUCTION UNDER SECTION 54B AND 54F AND THE ISSUE HAS BECOME INCONSEQUENTIAL, THEY ARE BEING NOT ADJUDICATED. 5 ITA NO. 128/JP/2011 & 23/JP/2013 SHRI JAGDISH PRASAD SHARMA VS. ITO ITA NO. 23/JP/2013 : 10. APROPOS THE PENALTY UNDER SECTION 271(1)(B), TH ERE IS NO TAX LIABILITY IN THE CASE. IN OUR CONSIDERED VIEW, THE ASSESSEE HAD NO M ALAFIDE INTENTION FOR NON- COMPLIANCE OF NOTICE IN QUESTION AND WAS PREVENTED BY SUFFICIENT CAUSE. IN VIEW THEREOF, THE PENALTY IS DELETED. 11. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 25.04.2016. SD/- SD/- FOE FLAG ;KNO VKJ-IH-RKSYKUH (VIKRAM SINGH YADAV) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25/04/2016 DAS/ VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI JAGDISH PRASAD SHARMA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 7(2), 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. 128/JP/2011 & 23/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR 6 ITA NO. 128/JP/2011 & 23/JP/2013 SHRI JAGDISH PRASAD SHARMA VS. ITO