Diwaliben Ramabhai Tandel, Nani Daman V. The Income Tax Officer, Vapi Ward-4, Daman

ITA 1685/AHD/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8914 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 30-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P M JAGASHETH
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP AT SURAT BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER DIWALIBEN RAMABHAI TANDEL, EKTA APARTMENT, SARVODAYA SOCIETY, TEEN BATTI, NANI DAMAN, PAN: AFPPT8533D (APPELLANT) VS THE ITO, VAPI, WARD - 4, DAMAN (RESPONDENT) REVENUE BY : MR. ALOK KUMAR , SR. D . R. ASSESSEE BY: MR. P.M. JAGASHETH , A.R. DATE OF HEARING : 07 - 03 - 2 017 DATE OF PRONOUNCEMENT : 20 - 03 - 2 017 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASSESSEE S AP PEAL FOR A.Y. 2008 - 09 , AR IS ES FROM ORDER OF THE CIT(A), VALSAD DATED 10 - 04 - 2014 IN APPEAL NO. CIT(A)/VLS/308/2011 - 12 , IN PROCEEDINGS UNDER SECTION 144 R.W.S. 147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 1685 / A HD/20 14 A SSESSME NT YEAR 200 8 - 09 I.T.A NO. 1685/AHD/2014 A.Y. 2008 - 09 PAGE NO DIWALIBEN RAMABHAI TANDEL VS. ITO 2 2. THE ASSESSEE HAS RAISED FOLLOWING SUBSTAN TIVE GROUNDS OF APPEAL: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN RE - OPENING THE ASSESSMENT AND ISSUING NOTICE U/S.148 OF THE I.T. ACT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.13,81,090/ - ON ACCOUNT OF SHORT TERM CAPITAL GAIN ON SALE OF LAND. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTIO N OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.69,630/ - ON ACCOUNT OF ALLEGED UNEXPLAINED CASH DEPOSITS IN BANK ACCOUNT. 3. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSESSEE DOES NOT PRESS GROUND NOS. 1 & 3 SO THESE TWO GROUNDS ARE DISMISSED AS NO T PRESSED AND GROUND NO. 2 IS BEING ADJUDICATED AS UNDER. 4 . IN THIS CASE A S PER DEED OF RECTIFICATION REGISTERED IN THE OFFICE OF SUB - REGISTRAR, DAMAN DATED 17 TH NOVEMBER, 2005 . SMT. MEENABEN DEVJIBHAI TANDEL , SHRI RAMABHAI JOGIBHAI TANDEL AND SMT. DIW ALIBEN RAMBHAI TANDEL WERE JOINT PURCHASER OF THE LAND WITH SHRI DEVI JIBHAI DOJIBHAI TANDEL . THE ASSESSING OFFICER STATED THAT THE SALE CONSIDERATION OF THIS LAND ATTRACTS CAPITAL GAIN AS TH SHARE PERTAINED TO THE ASSESSEE WHICH WAS NOT OFFERED FOR T AXATION. THEREFORE, REOPENING PROCEEDING WAS INITIATED IN THIS CASE BY ISSUING OF NOTICE I.T.A NO. 1685/AHD/2014 A.Y. 2008 - 09 PAGE NO DIWALIBEN RAMABHAI TANDEL VS. ITO 3 U/S. 148 ON 24 TH MARCH, 2011. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS OBSERVED THAT ASSESSEE HAD SOLD AGRICULTURAL LAND TOTAL AREA ADM EASURING 70,800 SQ. METER SITUATED AT VILLAGE JANI VANKA, NANI DAMAN WHICH WAS PURCHASED FROM SHRI BHAGWANBHAI MADHAVBHAI MACHHI FOR RS. 15,55,640/ - . THE ASSESSING OFFICER ALSO STATED THAT A NUMBER OF NOTICES WERE ISSUED TO THE ASSESSEE DURING THE CO URSE OF ASSESSMENT PROCEEDING S TO WHICH ASSESSEE HAS NOT RESPONDED. THE ASSESSING OFFICER MENTIONED THAT THE ASSESSE E HAD SOLD AGRICULTURAL LAND BEING SURVEY NO. 130/1 ADMEASURING HA 0 - 16 ARS, SURVEY NO. 131 ADMEASURING HA 2 - 32 ARS, SURVEY NO. 132 ADMEASU RING HA 4 - 49 ARS, SURVEY NO. 133/2, HA 0 - 06 ARS AND SUVEY NO. 133/3 ADMEASURING HA 0 - 05 ARS, TOTAL ADMEASURING 70,800 SQ. METERS SITUATED AT VILLAGE JANI VANKAD, NANI DAMAN WHICH WAS PURCHASED FROM SHRI BHAGWANBHAI MADHAVBHAI MACHHI FOR 15,55,640/ - . THE T OTAL SALE CONSIDERATION OF THE ABOVE LAND WAS RS. 70,80,000/ - MADE ON 5 TH APRIL, 2007 IN THE NAME OF M/S. KHEMANI DISTILLERIES PVT. LTD. THE ASSESSING OFFICER HAS ALSO MENTIONED REGARDING NOTIFICATION AS UNDER: - THE NOTIFICATION U/S. 2(1A)(C), PROVISO, CLAUSE (II)(B) AND SECTION 2(14)(III)(B), DATE 1/6/1994, NOTIFICATION NO, S.O.9447 AND FILE NUMBER 164/3/87 - ITA.I WAS PUBLISHED BY THE CENTRAL. GOVERNMENT HAVING REGARD TO THE EXTENT OF, AND SCOPE FOR URBANISATION OF THE AREAS CONCERNED AND OTHER RELEVANT CONSIDERATIONS, HEREBY SPECIFIES THE AREAS SHOWN IN COLUMN (4) OF THE SCHEDULE HERETO ANNEXED AND FALLING OUTSIDE THE LOCAL LIMITS OF MUNICIPALITY OR CANTONMENT BOARD, AS THE CASE MAY BE, SHOWN IN THE CORRESPONDING ENTRY IN COLUMN (3) THEREOF AND AGAINST THE STATE OR UNION TERRITORY SHOWN IN COLUMN (2) THEREOF FOR THE PURPOSES OF THE ABOVE MENTIONED PROVISION OF THE INCOME - TAX ACT, 1961 (43 OF 1961). IN WHICH ' SCHEDULE OF THE SAME IS AS UNDER: I.T.A NO. 1685/AHD/2014 A.Y. 2008 - 09 PAGE NO DIWALIBEN RAMABHAI TANDEL VS. ITO 4 SR. NO. NAME OF THE STATE OR UNION TERRITORY NAME OF THE MU NICIPALITY OR CANTONMENT BOARD FALLING IN THE STATE/UNION TERRITORY MENTIONED UNDER COLUMN (3) DETAILS OF AREAS FALLING OUTSIDE THE LOCAL LIMITS OF MUNICIPALITY OR CANTONMENT BOARD, ETC., MENTIONED UNDER COLUMN (2) 1 DADRA NAGAR HAVELI (UNION TERRITORY) S ILVASSA VILLAGE PANCHAYAT AREAS UP TO A DISTANCE OF 8 KMS FROM THE MUNICIPAL LIMITS AND FALLING IN SILVASSA TOW N AND THE VILLAG E S OF DADRA, MASAT AND PIPARIA. 2 DAMAN (UNION TERRITORY) DAMAN AREAS UP TO A DISTANCE OF 8 KMS FROM THE MUNICIPAL LIMITS FALLI NG WITHIN THE FOLLOWING VILLAGES, NAMELY: - BHESROL, BHIM A PORE, DABHEL JAMPORE, KACHIGAM, MOTI VANKAD, NANI VANKAD, RINGHWADA. THE ASSESSING OFFICER FURTHER STA TED THAT ON VERIFICATION OF THE SALE DEED DOCUMENT IT WAS SEEN THAT THE A BOVE MENTIONED LAND SI TUATED AT JANI VANKAD WHICH WAS NE AR ABOUT 04 KILOMETERS FROM THE DAMAN MUNICIPAL LIMITS. THE ASSESSING OFFICER ALSO STATED THAT INCOME TAX EXEMPTION ON CAPITAL GAIN WAS ALLOWABLE ONLY ON THOSE PROPERTIES WHICH WAS SITUATED AT A DISTANCE OF MORE THAN 8 KI LOMETERS FROM THE DAMAN MUNICIPAL LIMITS AND NOT COVERED UNDER THE ABOVE NOTIFICATION SCHEDULE. THEREFORE, THE ASSES SING OFFICER MADE ADDITION OF RS . 13,81,099/ - AS SHORT TERM CAPITAL GAIN ON THE SALE OF ABOVE MENTIONED LAND. I.T.A NO. 1685/AHD/2014 A.Y. 2008 - 09 PAGE NO DIWALIBEN RAMABHAI TANDEL VS. ITO 5 5. AGGRIEVED AGAINST THE OR DER OF THE ASSESSING OFFICER, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS REJECTED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER: - 6.2. THE GROUNDS OF APPEAL - GROUND NO. 2 PERTAINS TO M AKING ADDITION OF RS. 13,81,090/ - ON ACCOU NT OF SHORT TERM CAPITAL GAIN ON SALE OF LAND. ON THE PERUSAL OF THE DETAILS IT IS OBSERVED THAT THE LAND WAS SITUATED WITHIN THE DAMAN MUNICIPAL LIMITS AND DID NOT FALL IN THE EXEMPTION ON CAPITAL GAIN S. DURING THE APPELLATE PROCEEDINGS THE APPELLANT WAS UNABLE TO PROVIDE ANY DOCUMENTS OR EVIDENCE TO PROVE THAT THE LAND IN QUESTION IS EXEMPTED FROM CAPITAL GAINS. THE AO HAS MADE RN - DEPTH ANALYSIS BASED ON THE INFORMATION COLLECTED FROM THE VARIOUS GOVERNMENT AUTHORITIES WHICH SHOWS THAT THE LAND IN QUESTIO N IS WITHIN THE MUNICIPAL LIMITS ON DAMAN AND THE DOCUMENT RELIED UPON BY THE APPELLANT REGARDING VILLAGE JANI VANKAD AND NANI VANKAD BEIN G DISTINCT FROM EACH OTHER WAS FOUND TO BE INCORRECT. THE SARPANCH OF BHIMPORE GROUP GRAM PANCHAYAT, BHIMPORE, NANI DA MAN HAS STATED THAT JANI VANKAD IS A REVENUE VILLAGE AND THE MOTI VANKAD AND NANI VANKAD IS A VILLAGES UNDER THE SAID SAJA(REVENUE CIRCLE). IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES IT IS APPARENT AND EVIDENT THAT THE SALE CONSIDERATION ATTRACTS STCG AS THE LA ND IS SOLD WITHIN 36 MONTHS FROM DATE OF PURCHASE. HENCE THE ADDITION MADE BY THE AO IS UPHELD AND THE GROUND OF APPEAL IS DISMISSED. 6. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LEARNED COUNSEL HAS STATED THAT L D. CIT(A) HAS ERRE D IN SUSTAINING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF SHORT TERM CAPITAL GAIN ON SALE OF LAND AND FURNISHED PAPER BOOK CONTAINING COPY OF CIT(A), VALSAD S ORDER, SUBMISSION FILED BEFORE LD. CIT(A), COPY OF FORM 35 ALONG WITH GROUNDS OF A PPEAL, COPY OF ASSESSMENT ORDER U/S. 144, CERTIFICATE OF DAMAN MUNICIPAL COUNCIL, SALE DOCUMENT AND PURCHASE DOCUMENTS. HE FURTHER CONTENDED THAT THE SAID AGRICULTURAL LAND WA S SITUATED AT VILLAGE JANI VANKAD, NANI DAMAN WHICH IS SITUATED OUTSIDE THE 8 K ILOMETERS F ROM DAMAN I.T.A NO. 1685/AHD/2014 A.Y. 2008 - 09 PAGE NO DIWALIBEN RAMABHAI TANDEL VS. ITO 6 MUNICIPAL COUNCIL AND HAS A POPULATION OF LESS THAN 10,000 PEOPLE. ON OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF LD. CIT(A) . 7. WE HA VE HEARD BOTH THE SIDES . WE HAVE ALSO GONE THROUGH THE MATERIAL S ON RECORD THROUGH THE HELP OF REPRESENTATIVES . WE NOTICE D THAT THE SOLD LAND W AS SITUATED AT VILLAGE JANI VANKAD, NANI DAMAN . WE HAVE FURTHER NOTICED THAT JANI VANKAD AND NANI VANKAD WERE NOT THE SAME VILLAGE AND BOTH THE VILLAGES WERE DISTINCT FROM EACH OTHER BELONG ING TO GREATER AREA CALLED NANI DAMAN. WE HAVE ALSO NOTICE D THAT THE CERTIFICATE PRODUCED BEFORE THE ASSESSING OFFICER BY THE ASSS ESSEE FROM THE DAMAN MUNICIPAL C ORPORATION STATING THAT ABOVE REFERRED AGRICULTURE LAND SITUATED IN VILLAGE JANI VA NKAD WAS AT DISTANCE OF MORE THAN 8 KILOMETERS FROM THE MU N ICIPAL AREA OF DAMAN MUNICIPAL COUNCIL AND POPULATION OF VILLAGE JANI VANKAD WAS LESS THAN 10,000 PERSONS. WE FIND THAT THESE FACTS AND EVIDENCES WERE NOT DISPROVED BY THE ASSESSING OFFICER AND THE LD.CIT(A) MADE HIS DECISION ON THE BASIS THAT THE ASSESSING OFFICERE MADE ANALYSIS ON THE BASIS OF INFORMATION MAINLY PERTAINING TO THE T HE SARPANCH OF BHIMPORE GROUP GRAM PANCHAYAT, BHIMPORE, NANI DAMAN STAT ING THAT JANI VANKAD WAS A REVENUE VILLA GE AND THE MOTI VANKAD AND NANI VANKAD WAS A VILLAGES UNDER THE SAID SAJA(REVENUE CIRCLE) WE FIND THAT SARPANCH OF BHIMPORE GROUP GRAM PANCHAYAT, BHIMPORE, NANI DAMAN HAS NOT STATED THAT JANI VANKAD AND NANI VANKAD WERE THE SAME VILLAGE BUT THEY STATED TH AT JANI VANKAD WAS A REVENUE VILLAGE AND THE MOTI VANKAD AND NANI VANKAD WAS A VILLAGE S UNDER I.T.A NO. 1685/AHD/2014 A.Y. 2008 - 09 PAGE NO DIWALIBEN RAMABHAI TANDEL VS. ITO 7 THE SAID SAJA (REVENUE CIRCLE). IN VIEW OF THE ABOVE MENTIONED FACTS AND FINDINGS , WE CONSIDERED THAT THE ASSESSING OFFICER HAS NOT SUBSTANTIATED HIS FINDINGS WITH CONCRETE EVIDENCES AND MADE HIS DECISION ON THE BASIS OF CONCLUSION ARRIVED ON OBSERVATION BASIS AND FAILED TO DISPROVE THE FACTS AND EVIDENCES FURNISHED BY THE ASSESSEE. T HEREFORE , WE FIND THAT THE DECISION OF THE LD. CIT(A) IS NOT JUSTIFIED TO SUSTAI N THE ADDITION MADE BY THE ASSESS ING OFFICER . THUS, THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSE IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 20 - 03 - 201 7 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 20 /03 /2017 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,