SMT CHANDRA KANTA, Jaipur V. ITO, Jaipur

ITA 153/JPR/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5138 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 08-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Keywords: Corroborative evidences
• Section: 143(3); 2(14); 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,O JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, J.M VK;DJ VIHY LA-@ ITA NO. 153/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 . SMT. CHANDRA KANTA, 188, JOHARI BAZAR, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 1(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ACMPK 7669 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 08.07.2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 11/07/2016. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A)-I, JAIPUR DATED 31.12.2012 PERTAINING TO ASSESSMENT YE AR 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT THE LEARNED CIT (APPEALS) HAS ERRED IN HOLDING THAT IN THE ABSENCE OF ANY KIND OF SUPPORTING EVIDENCE THE AFFIDAVIT AND S TATEMENTS OF SHRI JAGDISH JAT ARE HELD TO BE UNRELIABLE EVIDENCE VIS- -VIS THE REVENUE RECORD BY WAY OF KHASRA GIRDAWARI. THE SAID FINDING IS ILL EGAL AND UNJUSTIFIED. 2. THAT THE LEARNED CIT (APPEALS) HAS ERRED IN HOLDING THAT THE LANDS AT KHASRA NOS. 466/133, 467/134 AND 468/135 WERE NOT P UT TO USE FOR AGRICULTURAL PURPOSE AS REQUIRED FOR CLAIMING EXEMP TION U/S 10(37)(II) AND EXEMPTION IS NOT AVAILABLE IN RESPECT OF THE SAID L ANDS. THE SAID FINDING IS ILLEGAL AND UNJUSTIFIED. 2 ITA NO. 153/JP/2013 SMT. CHANDRA KANTA VS. ITO 3. THAT THE LEARNED CIT (APPEALS) HAS ERRED IN HOLDING THAT CAPITAL GAINS ARE PAYABLE IN RESPECT OF LAND FOR WHICH THE CAPITAL GA INS HAS BEEN DETERMINED AT RS. 36,37,110/-. THE SAID FINDING IS ILLEGAL AND UNJUSTIFIED. 4. THAT THE LEARNED CIT (APPEALS) HAS ERRED IN HOLDING THAT NO AGRICULTURAL OPERATIONS WERE CARRIED OUT AT KHASRA NO. 499, 507 AND 509 HAVING TOTAL AREA OF 0.88 HECTARES AND HOLDING THAT EXEMPTION U/ S 10(37) IS NOT ALLOWABLE IN RESPECT OF THE SAID LANDS. 5. THAT THE LEARNED CIT (APPEALS) HAS ERRED IN CONFIRM ING THE ACTION OF THE ASSESSING OFFICER IN DISALLOWING CLAIM OF RS. 8,71, 164/- U/S 30(37) OF THE IT ACT. THE SAID ACTION IS ILLEGAL AND UNJUSTIFIED. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE VARIOUS OPPORTUNITIES GIVEN. IT IS TRANSPIRED FROM THE RECORD THAT ON 1 ST MARCH, 2016 ONE SHRI RAM KISHORE GUPTA, LD. A/R APPEARED ON BEHALF OF THE ASSESSEE. THE CAS E WAS ADJOURNED TO 03.05.2016. ON THE DATE SO FIXED, NO ONE APPEARED. THE APPEAL W AS FURTHER ADJOURNED TO 8 TH JULY, 2016. NONE APPEARED ON BEHALF OF THE ASSESSE E ON 8 TH JULY, 2016. ACCORDINGLY, THIS APPEAL IS BEING DECIDED IN ABSENCE OF THE ASSE SSEE. 3. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND WHILE FRAMING THE ASSESSMEN T UNDER SECTION 143(3) OF THE IT ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), THE AO VIDE ORDER DATED 20 TH DECEMBER, 2011 DECLINED EXEMPTION UNDER SECTION 10( 37) OF THE ACT. AGGRIEVED BY THIS ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE LD . CIT (A). THE LD. CIT (A) AFTER CONSIDERING THE SUBMISSIONS PARTLY ALLOWED THE APPE AL THEREBY ALLOWING EXEMPTION UNDER SECTION 10(37) OF THE ACT ON PROPORTIONATE BA SIS. THE ASSESSEE AGGRIEVED BY THIS ORDER, FURTHER IN APPEAL BEFORE THIS TRIBUNAL. 3 ITA NO. 153/JP/2013 SMT. CHANDRA KANTA VS. ITO 4. THE ONLY GRIEVANCE IN THIS APPEAL OF THE ASSESSE E IS AGAINST DISALLOWANCE OF EXEMPTION CLAIMED UNDER SECTION 10(37) OF THE ACT. 4.1. THE LD. D/R SUPPORTED THE ORDERS OF THE AUTHO RITIES BELOW. HE SUBMITTED THAT THE ONUS WAS ON THE ASSESSEE TO PROV E THAT THE ASSESSEE IS ENTITLED FOR EXEMPTION UNDER SECTION 10(37) OF THE ACT BY PL ACING SUPPORTING EVIDENCE ON RECORD. THE LD. D/R SUBMITTED THAT NO AGRICULTURAL ACTIVITIES WERE CARRIED OUT BY THE ASSESSEE WHICH IS A PRE-CONDITION FOR SEEKING EXEMP TION UNDER SECTION 10(37). 4.2. FROM THE REVENUE RECORD FURNISHED BY THE ASSES SEE, IT CANNOT BE INFERRED THAT AGRICULTURAL ACTIVITIES WERE BEING CARRIED OUT FOR THE LAST THREE YEARS ON THE LAND IN QUESTION. AS PER SECTION 10(37) OF THE ACT , EXEMPTION IS AVAILABLE IN THE CASE OF AN ASSESSEE, BEING AN INDIVIDUAL OR A HINDU UNDI VIDED FAMILY, ANY INCOME CHARGEABLE UNDER THE HEAD CAPITAL GAINS ARISING F ROM THE TRANSFER OF AGRICULTURAL LAND, WHERE (I) SUCH LAND IS SITUATE IN ANY AREA REFERRED TO IN ITEM (A) OR ITEM (B) OF SUB-CLAUSE (III) OF CLAUSE (14) OF SECTION 2; (II) SUCH LAND, DURING THE PERIOD OF TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER, W AS BEING USED FOR AGRICULTURAL PURPOSES BY SUCH HINDU UNDIVIDED FAMILY OR INDIVID UAL OR A PARENT OF HIS; (III) SUCH TRANSFER IS A BY WAY OF COMPULSORY ACQUISITION UNDE R ANY LAW, OR A TRANSFER THE CONSIDERATION FOR WHICH IS DETERMINED OR APPROVED B Y THE CENTRAL GOVERNMENT OR THE RESERVE BANK OF INDIA; (IV) SUCH INCOME HAS ARISEN FROM THE COMPENSATION OR CONSIDERATION FOR SUCH TRANSFER RECEIVED BY SUCH AS SESSEE ON OR AFTER THE 1 ST DAY OF APRIL, 2004. AS PER THE REVENUE AUTHORITIES, THE A SSESSEE COULD NOT PROVE THAT THIS LAND WAS BEING USED FOR AGRICULTURAL PURPOSES FOR T HE PERIOD OF TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER. WE FIND THAT LD. CIT (A) AFTER CONSIDERING 4 ITA NO. 153/JP/2013 SMT. CHANDRA KANTA VS. ITO THE SUBMISSIONS OF THE ASSESSEE HAS GIVEN A FINDING OF FACT IN PARA 4.6 AND 5.3 OF HIS ORDER AS UNDER :- 4.6. AS DISCUSSED ABOVE, THE FACTS OF THE CASE ARE THAT AS PER KHASRA GIRDAWARI THE LANDS AT KHASRA NO. 466/133, 467/134 AND 468/135 WERE NOT PUT TO USE FOR AGRICULTURAL PURPOSE AS REQUIRED FOR CLAIMING EXEMPTION U/S 10(37)(II). SO EVEN THOUGH THE NATURE OF LAND WAS AGRICULTURAL IN THE REVENUE RECORDS AS PER SECTION 2(14) SHE WOULD NOT BE ALLOWED THE EXEMPTION ON THE COMPENSATION RECEIV ED U/S 10(37). IN VIEW OF THE ABOVE DISCUSSION IT IS HELD THAT THE AS SESSEE IS TO BE ALLOWED TO CLAIM EXEMPTION U/S 10(37) ON A PROPORTI ONATE BASIS TO THE EXTENT OF COMPENSATION PAID FOR LAND AT KHASRA NO. 127 FOR WHICH THE CAPITAL GAINS HAS BEEN DETERMINED BY THE AO AT RS. 42,27,956/-. HOWEVER, EXEMPTION U/S 10(37) IS NOT AVAILABLE TO T HE APPELLANT ON CAPITAL GAIN ON THE ACQUISITION OF OTHER 3 KHASRAS OF LAND FOR WHICH THE CAPITAL GAINS HAS BEEN DETERMINED AT RS. 36,37,110/ -. 5.3. I HAVE CAREFULLY PERUSED THE ORDER OF THE AO AND THE SUBMISSIONS OF THE AR AND DO NOT CONCUR WITH THE SU BMISSIONS OF THE AR. AS DISCUSSED ABOVE IN GROUND OF APPEAL NO. 3, T O CLAIM EXEMPTION U/S 10(37) BOTH THE TWO CONDITIONS ARE REQUIRED TO BE FULFILLED IN CASE OF LAND SITUATED IN AN AREA REFERRED TO IN SECTION 2(14)(III), NAMELY THAT THE LAND DURING THE PERIOD OF TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER SHOULD HAVE BEEN USE FOR AGRICULTURAL P URPOSES. AS PER THE EVIDENCE FURNISHED BY THE ASSESSEE HIMSELF BY WAY O F KHASRA GIRDAWARI ONLY TWO PLOTS OF LANDS NAMELY KHASRA NO. 501 & 502 OF TOTAL AREA OF 1.16 HEC. WERE USED FOR AGRICULTURAL PURPOSE. THE O THER THREE PIECES OF LAND WERE NOT PUT TO AGRICULTURAL USE AS PER THE KH ASRA GIRDAWARI. THE EVIDENCE FURNISHED BY THE ASSESSEE HIMSELF BY WAY O F KHASRA GIRDAWARI AND THE OBSERVATIONS OF THE AO HAVE NOT BEEN REBUTT ED BY THE APPELLANT DURING THE COURSE OF APPELLATE PROCEEDING S. CONSIDERING THAT THE CONDITION THAT THE LAND SHOULD HAVE BEEN PUT TO AGRICULTURAL USE FOR TWO YEARS PRIOR TO THE DATE OF ACQUISITION AS PER S ECTION 10(37)(II) HAS NOT BEEN FULFILLED, I HOLD THE DECISION OF THE AO T O DISALLOW PROPORTIONATE AMOUNT OF EXEMPTION ON CAPITAL GAINS CLAIMED U/S 10 (37) AS SUSTAINABLE. THEREFORE, THE DISALLOWANCE OF CLAIM U/S 10(37) OF RS. 8,71,164/- IS UPHELD. THE ABOVE FINDING OF FACTS IS NOT CONTROVERTED BY T HE ASSESSEE BY PLACING ANY CONTRARY MATERIAL ON RECORD. THEREFORE, WE DO NOT S EE ANY REASON TO INTERFERE IN THE 5 ITA NO. 153/JP/2013 SMT. CHANDRA KANTA VS. ITO ORDER OF LD. CIT (A), WHICH IS HEREBY CONFIRMED. TH E GROUNDS RAISED IN THIS APPEAL ARE REJECTED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/07/2016 . SD/- SD/- HKKXPUN ( DQY HKKJR ) ( BHAGCHAND ) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 11/07/2016. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SMT. CHANDRA KANTA, JAIPUR. 2. THE RESPONDENT- THE ITO WARD 1(1), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 153/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 6 ITA NO. 153/JP/2013 SMT. CHANDRA KANTA VS. ITO