Income Tax Officer Ward -1(1), RAIPUR V. Tikamchand Pritwani, RAIPUR

ITA 160/BIL/2011

• Counselvise Citation: 16024714 RSA 2011
• Duration Of Justice: 3 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 07-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K JAIN
• Assessee Lawyers: R B DOSHI
• Keywords: Capital asset

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI MUKUL K. SHRAWAT , JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER . IT A NO. 160 / BLPR./201 1 ( ASSESSMENT YEAR : 20 0 8 09 ) INCOME TAX OFFICER , WARD 1(1) CENTRAL REVENUE BUILDING CIVIL LINES, RAIPUR (C.G) APPELLANT V/S TIKAMCHAND PRITWANI C 63, SAMTA COLONY RAIPUR (C.G) PAN AJSPP5754B .... RESPONDENT REVENUE BY : SHRI D.K. JAIN ASSESSEE BY : SHRI R. B DOSHI DATE OF HEARING 12 .06.2015 DATE OF ORDER 19 .06.2015 O R D E R PER SHAMIM YA H YA, A .M. T HIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 29 TH MARCH 2011 , PASSED BY THE LEARNED CIT(A), BILASPUR, FOR THE ASSESSMENT YEAR 20 08 09 . THE GROUND S RAISED BY THE REVENUE ARE AS UNDER: WHETHER IN LAW AND ON FACT S & CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF ` 28,05,508 , MADE BY THE A.O. ON ACCOUNT OF LONG TERM CAPITAL GAIN. TIKAMCHAND PRITWANI 2 2. IN THIS CASE, WE OBSERVE THAT THE ASSESSEE HAD SOLD AGRICULTURAL LAND AT VILLAGE GHUGHAWA, TEHSIL PATA N, DIST. DURG, FOR A TOTAL CONSIDERATION OF ` 30 LAKH. THE ASSESSEE HAS CLAIMED THAT SINCE IT WAS AN AGRICULTURAL LAND SITUATED MUCH BEYOND 32 KMS FROM BHILAI MUNICIPALITY AREA, HENCE, GAIN ON THE SAME WAS EXEMPT. HOWEVER, THE ASSESSING OFFICER DEPUTED AN INSPECTOR WHO OBSERVED THAT THE SAID PROPERTY WAS SITUATED WITHIN 6 TO 7 KMS. FROM MUNICIPALITY AREA OF RAIPUR AND, HENCE, THE SAME SHOULD BE TREATED AS CAPITAL ASSET . ACCORDINGLY, THE ASSESSING OFFICER TAXED THE RECEIPT AS CAPITAL GAIN . 3. UPON ASSESSEE S APPEAL, THE LEARNED CIT(A) HELD THAT FOR THE PURPOSE OF SECTION 2(14)(III)(B) OF THE ACT, THE MUNICIPALITY REFERRED IS THE ONE WHICH HAS THE JURISDICTION OVER THE AREA. IN THE PRESENT CASE, SINCE THE JURISDICTION WAS BHILAI, THE MUNICIPALITY WHICH WAS B EYOND 8 KMS., THEREFORE, THE LEARNED CIT(A) HELD THAT CAPITAL GAIN WAS NOT EXIGIBLE. AGAINST THE ABOVE ORDER, THE REVENUE IS IN APPEAL BEFORE US. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT PROVISION OF THE ACT EXEMPTS LAND FROM THE PURVIEW OF CAPITAL GAINS WHICH ARE SITUATED BEYOND 8 KMS. FROM THE LOCAL LIMITS OF ANY MUNICIPALITY, HENCE, HE SUBMITTED THAT IN THE PRESENT CASE, SINCE THE CONCERNED PROPERTY WAS SITUATED WITHIN 8 KMS. OF RAIPUR MUNICIPALITY, THE ASSESSING OFFICER WAS CORRECT IN LEV YING CAPITAL GAIN ON THE SALE OF SUCH LAND. 5. PER CONTRA, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT IS NOT ANY MUNICIPALITY BUT THE MUNICIPALITY WHICH HAS JURISDICTION OVER THE AREA HAS TO BE CONSIDERED FOR THIS PURPOSE. IN THIS REGARD, HE REFE RRED TO THE FOLLOWING CASE LAWS: I) DCIT V/S CAPITAL LOCAL AREA BANK LTD., 123 TTJ 918 (ASR.); II) CIT V/S SATINDER PAL SINGH, 33 DTR 281 (P&H); AND III) SRINIVAS PANDIT (HUF) V/S ITO, 29 CCH 352 (HYD.) . TIKAMCHAND PRITWANI 3 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL A VAILABLE ON RECORD. WE FIND THAT THE ITAT, AMRITSAR BENCH, IN THE CASE OF DCIT V/S CAPITAL LOCAL AREA BANK LTD. (SUPRA), HAD CONSIDERED SIMILAR ISSUE AFTER A VERY ELABORATE DISCUSSION ON THE ISSUE AND CONSIDERED SEVERAL CASE LAWS ON THE ISSUE. THE TRIBUNAL HAD HELD THAT IT IS THE MUNICIPALITY WHICH HAS JURISDICTION OVER THE AREA IN WHICH PROPERTIES LIE WHICH HAS TO BE CONSIDERED . A NY OTHER MUNICIPALITY WHICH DOES NOT HAVE JURISDICTION OVER THE PROPERTY / LAND, IS NOT THE MUNICIPALITY MENTIONED IN SECTION 2( 14)(III)(B) OF THE ACT. SINCE IN THE PRESENT CASE, IT IS UNDISPUTED THAT IT WAS BHILAI MUNICIPALITY WHICH HAS JURISDICTION OVER THE LAND AND THE SAME WAS BEYOND 8 KMS. FROM THE IMPUGNED LAND, THE LEARNED CIT(A) HAS RIGHTLY HELD THAT SALE OF SUCH LAND WAS N OT EXIGIBLE TO CAPITAL GAIN TAX. WE MAY ALSO POINT OUT THAT THE HON'BLE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. V /S CIT, (2007) 295 ITR 466 (SC), HAS HELD THAT WHEN AN ORDER OF THE CO ORDINATE BENCH IS PLACED BEFORE THE TRIBUNAL AND WAS NOT CONSI9DERED BY IT WHILE PASSING THE ORIGINAL ORDER, IT CAN AMOUNT TO A MISTAKE APPARENT FROM RECORD. SINCE IN THE PRESENT CASE , A DECISION OF THE CO ORDINATE BENCH HAS BEEN CITED BEFORE US AND WE DO NOT HAVE ANY REASON TO DEFER FROM THE VIEW EXPRESSED THEREIN, FOLLOWING THE SAME, WE UPHOLD THE ORDER OF THE LEARNED CIT(A). 7. IN THE RESULT, APPEAL BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT O N 19 TH JUNE 2015 SD/ - MUKUL K. SHRAWAT JUDICIAL MEMBER SD/ - SHAMIM YAHYA ACCOUN TANT MEMBER RAI PUR , DATED : 19 TH JUNE 2015 TIKAMCHAND PRITWANI 4 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE ; (2) THE REVENUE; (3) THE CIT(A ) ; (4) THE CIT, BILASPUR CITY CONCERNED ; (5) THE DR, ITAT, RAIPUR (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE S ECRETARY SR. PRIVATE SECRETARY / ASSISTANT REGISTRAR ITAT, RAIPUR