ACIT, SRIGANGANAGAR V. Sh. Jesa Ram S/o Sh. Kharta Ram Goyal, SRIGANGANAGAR

ITA 172/JODH/2009

• Counselvise Citation: 17223314 RSA 2009
• Duration Of Justice: 2 year(s) 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 06-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Section: 54B; 37(1); 37

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR (BEFORE SHRI R.K. GUPTA AND SHRI .N.L. KALR A ) ITA NO.172/JU/2009 ASSESSMENT YEAR : 2005-06 PAN: AMOPR 6200 M THE ACIT VS. SHRI JESA RAM CIRCLE- SRIGANGANAGAR S/O SHRI KHARTA RAM GOYAL CHAK 7 E, CHOTTI, SRIGANGANAGAR (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI G.R. KOKANI ASSESSEE BY : SHRI SURESH OJHA DATE OF HEARING: 16-12-2011 DATE OF PRONOUNCEMENT: 16-12-2011 ORDER PER N.L. KALRA, AM:- THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD.CIT(A), BIKANER DATED 29-01-2009 FOR THE ASSESSMENT YEAR 2005-06. 2.1 THE GROUND OF APPEAL RAISED BY THE REVENUE IS A S UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 26.00 LAC S MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN BANK BY HOL DING THAT AOS ACTION REGARDING APPLICATION OF SECTION 37910 IS NOT SUSTA INABLE, EVEN WHEN THE ASSESSMENT WAS COMPLETED ON THE BASIS OF BANK STATE MENT AND MATERIAL AVAILABLE ON RECORD I.E. DIFFERENCE BETWEEN THE IKR ARNAMA OF RS. 45.00 LACS AND REGISTERED SALE DEED OF RS. 19.00 LACS 2.2 THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE AS PER SALE AGREEMENT SOLD AGRICULTURAL LAND FO RS. 45.00 LACS TO SHRI INDER R AJ KOTH. THE SALE DEED WAS GOT 2 REGISTERED LATER ON. THE AO RECEIVED INFORMATION TH AT THE ASSESSEE DEPOSITED RS. 37,47,00/- IN HIS BANK ACCOUNT DURING THE FINANCIAL YEAR 2004-05. THE LAND MENTIONED IN AGREEMENT WAS SOLD FOR RS. 19.00 LACS IN THE NAME O F OTHER TWO PERSONS. THE LAND WAS THE SAME AS MENTIONED IN THE AGREEMENT AND THE SAME WAS REGISTERED AT RS. 19.00 LACS. STAMP DUTY WAS TO BE BORNE BY THE PURCHASER AD HENCE HE S IGNED THE SALE DEEDS. THE AO HAS HELD THAT EXCESS OF AMOUNT OF RS. 45.00 LACS AND RS . 19.00 LACS IS TO BE TAXED U/S 37(1) OF THE ACT WHICH REQUIRES THAT ANY EXPENDITURE INCURRE D FOR PURPOSE WHICH IS AN OFFENCE IS NOT ALLOWABLE. THE ASSESSEE HAS EVADED THE STAMP DU TY. 2.3 THE LD.CIT(A) OBSERVED AS UNDER:- THE AO IS THEREFORE, DIRECTED TO VERIFY THE POSI TION/ SITUATION OF THE LAND THAT WHETHER IT IS SITUATED W ITHIN 8 KM OF THE MUNICIPAL LIMIT AND IF FOUND WITHIN 8 KM OF THE MUN ICIPAL LIMIT TO CALCULATE THE CAPITAL GAIN TAX ON SALE CONSIDERATIO N OF RS. 45 LACS. BECAUSE STATUTE PROVIDES THAT ON SALE OF AGRICULTURE LAND C APITAL GAIN HAS TO BE CHARGED AND FURTHER THE AO IS DIRECTED TO TAKE THE VALUE AS ON 01-04-1981 AT RS. 26,000/- (RS. TWENTY SIX THOUSAND) BECAUSE T HE AO TOOK IT AT RS. 10000/- (TEN THOUSAND ONLY) WITHOUT ANY BASIS, WHER EAS A/R BROUGHT TWO INSTANCES ONE IS RS. 16000/- AND ANOTHER IS RS. 290 00/- THEREFORE, THE AO IS DIRECTED TO TAKE THE RATE OF 26,000/- PER BIGHA IN ORDER TO MEET THE ENDS OF JUSTICE THE APPELLANT HAS SHOWN FURTHER PURCHASE OF AGRICULTURAL LAND OUT OF SALE CONSIDERATION AMOUNTING TO RS. 36,05,40 0/- AND THE AO HAS ACCEPTED IT. THE AO IS THEREFORE, DIRECTED TO ALLOW DUE DEDUCTION THEREOF PROVIDED U/S 54B OF THE INCOME TAX ACT. 2.4 WE HAVE HEARD BOTH THE PARTIES. THE LD. AR HAS RELIED UPON THE FOLLOWING DECISIONS THAT DOCUMENT SHOULD BE READ AS WHOLE. 1. UTTAM CHAND NOHAR 28 TW 435 ITAT JODHPUR 3 2. ANAND PRAKASH 32 TW 221 ITAT JODHPUR 3. INDORE MALWA UNITED MILLS LTD. VS STATE OF M.P. 60 ITR 41 (SC) 2.5 SECTION 37 IS APPLICABLE WHEN THE INCOME IS BEI NG COMPUTED UNDER THE HEAD PROFITS AND GAINS OF BUSINESS. THE ASSESSEE HAS NOT CLAIMED THE EXPENDITURE BUT RS. 26.00 LACS IS A RECEIPT. HENCE, WE FEEL THAT LD.CIT(A) HA S PASSED A REASONABLE ORDER AND NO INTERFERENCE IS NEEDED. WE ALSO CONFIRM THE DIRECTI ONS GIVEN BY THE LD.CIT(A) 3.0 IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 16- 12-2011. SD/- SD/- (R.K. GUPTA) (N.L. KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER JODHPUR DATED: 16/12/2011 MISHRA COPY TO: 1. THE ACIT, CIRCLE- SRIGANGANAGAR 2. SHRI JESA RAM, SRIGANGANAGAR 3.THE LD. CIT (A) BY ORDER 4.THE CIT 5.THE D/R 6.THE GUARD FILE (ITA NO. 172/JU/09) A.R.. ITAT: JODHPUR 4 5 6 7