Sh. Virender Kumar, Jagadhri V. ITO, W-2, Yamunanagar

ITA 1322/CHANDI/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5165 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 04-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGHSR
• Keywords: Opportunity of being heard
• Section: 54B; 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH B, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 1322/CHD/2 017 ASSESSMENT YEAR: 2007-08 SHRI VIRENDER KUMAR, VS. INCOME TAX OFFICER, VILLAGE SUDHAL, WARD 2, JAGADHARI. YAMUNA NAGAR. PAN NO. : BQUPK4848R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ROHIT GOEL RESPONDENT BY : SHRI MANJIT SINGH,SR.DR DATE OF HEARING : 01.02.2018 DATE OF PRONOUNCEMENT : 20.03. 2018 ORDER PER DIVA SINGH,JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 13.07.2017 OF LD. CIT(APPEA LS) PANCHKULA PERTAINING TO 2007-08 ASSESSMENT YEARS ON THE FOLLOWING GROUNDS : 1. THAT AUTHORITIES BELOW HAS ERRED IN LAW AND FACTS I N REOPENING THE ASSESSMENT U/S 148. 2. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FACT S IN CONFIRMING AN ADDITION OF RS. 1,04,44,875/- BEING LONG TERM CAPITAL GAIN ON SA LE OF AGRICULTURE LAND MEASURING 39 KANAL6 MARLA FOR A CONSIDERATION OF RS. 1,06,96,969 /-. 3. THAT LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FAC TS IN ADOPTING INDEXED COST OF LAND VALUED ON THE BASIS OF LAND VALUE ON 1-4-1981 AT RS. 2,52,094/-. 4. THAT LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FACTS IN CONFIRMING THE AO ACTION BY NOT ALLOWING THE BENEFIT OF IMPROVEMENT COST OF LAND. 5. THAT LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FAC T IN NOT ALLOWING THE DEDUCTION U/S 54B/54F AS PER THE PROVISIONS OF LAW. 2. THE LD. AR AT THE TIME OF HEARING, INVITING ATTENTION TO T HE ASSESSMENT ORDER SUBMITTED THAT THE ASSESSMENT ORDE R U/S 147 R.W.S. 144 HAS BEEN PASSED TAKING NOTE OF THE FACT THAT INFORM ATION WAS RECEIVED FROM THE SUB REGISTRARS OFFICE THAT THE ASSESSEE HAD SOLD CERTA IN ANCESTRAL AGRICULTURAL LAND NEARBY VILLAGE JARODA. THE LD. AR SUBMITTE D THAT ON ACCOUNT OF IGNORANCE OF THE ASSESSEE AND LACK OF INFORMATIO N ETC., THE PROCEEDINGS WERE CONCLUDED U/S 147 READ WITH 144. THE ASSESSEE CARRIED ITA 1322/CHD/2017 A.Y. 2007-08 PAGE 2 OF 4 THE ISSUE IN APPEAL BEFORE THE CIT(A) AND THE ORDER ON AC COUNT OF SIMILAR HANDICAP OF THE ASSESSEE WAS PASSED WITHOUT CONSIDERING NECESSARY EVIDENCES. ACCORDINGLY, IT WAS HIS LIMITED PRAYER THAT IN TH E INTERESTS OF SUBSTANTIAL JUSTICE, THE ASSESSEE MAY BE PERMITTED TO FILE FRESH EVIDENCES UNDER RULE 29. THE FRESH EVIDENCES, IT WAS SUBMITTED, ARE MENTIONED AT SR.NO. 6, 7 AND 8 OF THE PAPER BOOK FILED AND CONSISTS OF EVIDENCES OF PURCHASES OF AGRICULTURAL LANDS WHICH IS RELEVANT FOR DECIDIN G THE ISSUES. THE PRAYER FOR ADMISSION OF FRESH EVIDENCES, IT WAS SUBMITTE D, WAS SUPPORTED BY COPY OF THE AFFIDAVIT DATED 05.10.2017 AVAILABLE AT PAGES 4 AND 4 (WRONGLY GIVEN THE SAME NUMBER) IN THE PAPER BOO K ALONGWITH AN APPLICATION. IT WAS HIS SUBMISSION THAT THE EVIDENCES MAY BE ADMITT ED. 3. A PERUSAL OF THE AFFIDAVIT SHOWS THAT THE ASSESSEE AVERS THAT ; 1. THAT I AM AN AGRICULTURIST AND AGRICULTURE OPERATIO NS IS MY ONLY SOURCE OF INCOME. THAT DURING THE YEAR 1-4-2006 TO 31-3-2007 . I HAD SOLD MY JOINT ANCESTRAL LAND HELD IN THE NAME OF NARESH KUM AR AND VIRENDER KUMAR MEASURING 39 KANAL 06 MARIA TO BHAGIRATHI REALTORS PRIVATE LIMITED FOR A CONSIDERATION OF RS. 2,13,93,937/- ON 25-8-2006. 2. THAT I HAVE NOT FILED MY INCOME TAX RETURNS AS NO I NCOME WAS CHARGEABLE TO TAX AS PER MY UNDERSTANDING. THAT ON RECEIPT OF NOT ICES FROM INCOME TAX DEPARTMENT I SOUGHT ADVICE FROM ADVOCATE WHO WAS PRACTICING IN C IVIL COURTS ADVISED THAT AS THE LAND WHICH HAD BEEN SOLD BY ME IS OUTSIDE LIMITS AN D IS USED FOR AGRICULTURE OPERATIONS AND THE SALE OF THE SAME DO NOT ATTRACT ANY INCOME TAX. 3. THAT I HAD INVESTED RS. 1,01,74,126/- IN PURCHASE O F OTHER AGRICULTURE LAND PURSUANT TO SALE OF AGRICULTURE LAND IN QUESTION DETAILED IN PARA 1 ABOVE. 4. THAT I SHOULD BE ALLOWED TO FILE SALE DEED AND AGRE EMENTS WHICH WERE NOT FILED EARLIER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3.1 THE ASSESSEE, IT IS SEEN THAT AS PER THE APPLICATION ON RECORD, STATED THAT JOINT ANCESTRAL LAND WAS SOLD WHICH HAD BEEN IN THE NAME OF NARESH KUMAR AND VIRENDER KUMAR MEASURING 39 KANAL 06 MARLA TO BHAGIRATHI REALTORS PRIVATE LIMITED FOR A CONSIDERATION OF RS. 2,13,93,937 /- ON 25-8- 2006. IT WAS STATED THAT THE ASSESSEE WAS 50% OWNE R OF THE PROPERTY AS SUCH ONLY 50% OF SALE CONSIDERATION WAS ASSESSABLE IN HIS HANDS. THE LD. AR CLARIFIED THAT THE ASSESSEE HAS NOT BEEN FILING HIS I NCOME TAX RETURNS AS NO INCOME ACCORDING TO THE ASSESSEE WA S CHARGEABLE TO TAX. IT HAS ALSO BEEN PLEADED THAT THE ASSESSEE WAS ALSO N OT AWARE OF THE PROVISIONS OF INCOME TAX ACT THAT ON RECEIPT OF NOTICES FR OM INCOME TAX DEPARTMENT THE ASSESSEE SOUGHT ADVICE FROM AN ADVOCAT E WHO WAS PRACTICING IN CIVIL COURTS AND WAS ADVISED THAT AS THE LAND WHICH HAD BEEN SOLD IS OUTSIDE MUNICIPAL LIMITS AND IS USED FOR AGRICULT URE OPERATIONS THE SALE OF THE SAME THUS DID NOT ATTRACT AN Y INCOME TAX. INVITING ATTENTION TO PARAS 1.6 TO 1.9 OF THE SAME, THE LD . AR SUBMITTED ITA 1322/CHD/2017 A.Y. 2007-08 PAGE 3 OF 4 THAT THE ASSESSEE HAS INVESTED THE ENTIRE SUM FOR PUR CHASE OF ANOTHER AGRICULTURE LAND AND THUS WAS ELIGIBLE FOR CLAIMING DEDUCTION U /S 54B. THE ASSESSEE BEING IGNORANT OF THE LEGAL POSITION THOUGH HAS MADE INVESTMENT OF THE AMOUNT IN AGRICULTURAL LAND FAILED TO SUBST ANTIATE HIS CLAIM. ACCORDINGLY THE FRESH EVIDENCES IN THESE PECULIAR FA CTS AND CIRCUMSTANCES, IT WAS HIS PRAYER, MAY BE ADMITTED. RELIAN CE WAS ALSO PLACED UPON THE DECISION OF THE HIGH COURT IN THE CASE OF CIT VS TEXT HUNDRED INDIA PRIVATE LIMITED 351 ITR 57. ACCORDINGLY, IT WAS HIS PRAYER THAT THE ISSUES MAY BE REMANDED TO THE AO. 4. THE LD. SR.DR INVITED ATTENTION TO THE IMPUGNED ORDER AN D SUBMITTED THAT THE CIT(A) REJECTING THE ASSESSEE'S APPE AL HAS RELIED UPON THE VIEW TAKEN IN THE CASE OF SHRI NARESH KUMAR I.E. THE BROTHER OF THE ASSESSEE. PARTIES WERE REQUIRED TO ADDRESS THE FATE OF THE AFORESA ID ORDER OF THE CIT(A) DATED 05.08.2016 IN THE CASE OF THE ASSESSEE'S BROTHER. BOTH THE PARTIES WERE UNAWARE OF THE FATE OF THE SAID DECISION, HOWEVER, LD. AR SUBMITTED THAT IN THE LIGHT OF THE EVIDENCES WHICH ARE RELE VANT AND CRUCIAL TO DECIDE THE ISSUE, WHICH FACTS MAY NOT AND NEED NOT B E NECESSARILY IDENTICAL MAY BE DIRECTED TO BE CONSIDERED. THE AO, IT WAS SUBMITTED, CAN LOOK INTO THE ASPECT WHETHER THE SAID FACTS WERE IDENTICAL OR NOT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT IN THE FACTS OF THE P RESENT CASE, THE ASSESSEE RECEIVED SALE CONSIDERATION OF RS. 1,06,96,969/- AND THE ASS ESSEE DID PUT-FORTH THE CLAIM BEFORE THE CIT(A) THAT AFTER THE DE MISE OF HIS FATHER SHRI GURMUKH SINGH WHO HAD INHERITED THE LAND FROM SHRI BA KHTAWAR SINGH WHEREIN AT TIMES THE NAME OF THE FATHER OF SHRI GURMUKH SING H, THE NAME OF SHRI DES RAJ HAS WRITTEN AS HE WAS HIS BIOLOGICAL FA THER AS SHRI GURMUKH SINGH HAD BEEN ADOPTED BY SHRI BAKHTAWAR SINGH WHO IN-TURN HAD INHERITED THE LAND FROM HIS FATHER SHRI MARU RAM IN 196 5 AS PER THE ASSESSMENTS MADE. THE CORRECTNESS OF THESE IS NOT BEIN G DECIDED IN THE PRESENT PROCEEDINGS. THE FACT REMAINS THAT RELATED ISSUES ARE S TATED TO BE ADDRESSED IN THE APPEAL OF SHRI NARESH KUMAR, I.E. THE CASE OF THE BROTHER OF THE ASSESSEE IN 2007-08 ASSESSMENT YEAR ON WHICH RE LIANCE HAS BEEN PLACED BY THE CIT(A). IT IS NOT KNOWN WHETHER THE RELIEF U NDER SECTION 54B WAS AN ISSUE THEREIN OR NOT. THE FRESH EVIDENCES WHICH THE ASSES SEE SEEKS TO FILE IN THE PRESENT PROCEEDINGS WHICH CONSISTS OF COPY O F PURCHASE OF LAND 98 KANAL 19 MARLA FOR RS. 43,29,063/- (PAG E ITA 1322/CHD/2017 A.Y. 2007-08 PAGE 4 OF 4 19-23), COPY OF PURCHASE OF LAND 605 KANAL FOR RS. 2,80,59,23 8/- (PAGE 24-33) AND COPY OF PURCHASE OF LAND AND AGREEMENT TO S ELL FOR RS. 1,13,42,650/- ( PAGE 34-42). THE FRESH EVIDENCES IN THE LIGH T OF THE DECISION OF THE HIGH COURT IN THE CASE OF TEXT HUNDRED IN DIA PVT. LTD. IS ADMITTED AND THE ISSUE IS RESTORED BACK TO THE FILE OF THE AO WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. SAID O RDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20.03.2018. SD/- SD/- (ANNAPURNA GUPTA) (DIVA SIN GH) ACCOUNTANT MEMBER JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.