Ghanshyam, V. ITO Ward- 47 (1),

ITA 1830/DEL/2008

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0672 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 06-01-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 12-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D N KAR
• Keywords: Capital asset
• Section: 45(5); 2(14); 32; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH C CC C : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI R.P. BEFORE SHRI R.P. BEFORE SHRI R.P. BEFORE SHRI R.P.TOLANI, JM AND SHRI K.D.RANJAN TOLANI, JM AND SHRI K.D.RANJAN TOLANI, JM AND SHRI K.D.RANJAN TOLANI, JM AND SHRI K.D.RANJAN, AM , AM , AM , AM ITA NO ITA NO ITA NO ITA NO S SS S . .. . 1829/DEL/2008 & 1830/DEL/2008 1829/DEL/2008 & 1830/DEL/2008 1829/DEL/2008 & 1830/DEL/2008 1829/DEL/2008 & 1830/DEL/2008 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR S SS S : :: : 2001 2001 2001 2001 - -- - 02 & 2000 02 & 2000 02 & 2000 02 & 2000 - -- - 01 0101 01 SHRI GHANSHYAM, SHRI GHANSHYAM, SHRI GHANSHYAM, SHRI GHANSHYAM, S/O SHRI DHAN SAHAY, S/O SHRI DHAN SAHAY, S/O SHRI DHAN SAHAY, S/O SHRI DHAN SAHAY, VILLAGE ANKHIR, SECTOR VILLAGE ANKHIR, SECTOR VILLAGE ANKHIR, SECTOR VILLAGE ANKHIR, SECTOR 21 2121 21- -- -D, D,D, D, FARIDABAD, FARIDABAD, FARIDABAD, FARIDABAD, HARYANA. HARYANA. HARYANA. HARYANA. PAN NO. PAN NO. PAN NO. PAN NO.AHLPG9907E. AHLPG9907E. AHLPG9907E. AHLPG9907E. VS. VS. VS. VS. COMMISSIONER OF INCOME TAX COMMISSIONER OF INCOME TAX COMMISSIONER OF INCOME TAX COMMISSIONER OF INCOME TAX - -- - XVI, XVI, XVI, XVI, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GURJEET SINGH, ADVOCATE. RESPONDENT BY : SHRI D.N.KAR, CIT - DR. ORDER ORDER ORDER ORDER PER R.P.TOLANI, J PER R.P.TOLANI, J PER R.P.TOLANI, J PER R.P.TOLANI, JM : M : M : M : THESE ARE TWO APPEALS FILED BY THE ASSESSEE. COMM ON GROUNDS RAISED READ AS UNDER:- 1. THAT THE CIT ORDER IS BEING CHALLENGED ON FACTS AND LAW ON THE TRUE AND CORRECT INTERPRETATION OF THE P ROVISIONS OF SECTION 263 READ WITH THE PROVISIONS OF SECTION 2(N), 32 OF THE HARYANA URBAN DEVELOPMENT AUTHORITY ACT, 197 7. 2. THAT THE CIT ORDER IS BEING CHALLENGED ON THE GR OUND THAT THE APPELLANT IS WITHIN THE JURISDICTION OF HA RYANA AND NOT OF DELHI AND EVEN FURTHER THERE IS NO JUDGMENT CONTRARY BY JURISDICTIONAL P&H HIGH COURT CONSIDERING THE SE CTION 2(N), 32 OF THE HARYANA URBAN DEVELOPMENT AUTHORITY ACT, 1977. 3. THAT THE CIT ORDER IS BEING CHALLENGED FOR INVOK ING THE PROVISIONS OF SEC. 45(5) OF THE ACT INTRODUCED W.E.F. 1.04.88 BY THE FINANCE ACT, 1987, WHEREIN THE CLAUS E (C) HAS BEEN INSERTED BY THE FINANCE ACT, 2003 W.E.F. 1.04.2004 WHEREAS THE APPELLANT IS FOR THE YEAR PRI OR TO THE ABOVE SAID AMENDMENT. 4. THAT THE ASSESSEE PRAYS FOR GRANTING OF ANY CONSEQUENTIAL RELIEF AND ON LEGAL CLAIM IN THE INTE REST OF ITA-1829 & 1830/DEL/2008 2 SUBSTANTIATE JUSTICE TO AVOID PROTRACTED LITIGATION AND WITH A PRAYER TO ALLOW ANY ADDITION, DELETION, AMENDMENT , MODIFICATION AND RECTIFICATION IN THE GROUNDS OF AP PEAL BEFORE THE DISPOSAL OF THE SAME. 2. LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUTSET, CONTENDS THAT SIMILAR ACTION WAS TAKEN BY CIT U/S 263 IN A NUMBER OF CASES IN THE ASSESSEES VILLAGE. ITAT BY CONSOLIDATED ORDER DAT ED 18.6.2010 PASSED IN ITA NOS.1831 & 1832/DEL/2008 AND OTHERS IN THE C ASE OF SHRI NAHAR AND OTHERS, RESTORED THE FILE BACK TO THE AO WITH T HE FOLLOWING OBSERVATIONS:- 9. FROM THE PERUSAL OF THIS DEFINITION, IT WOULD R EVEAL THAT IN ORDER TO TREAT ANY AGRICULTURAL LAND, AS A NON-CAPITAL ASSETS FOR THE PURPOSE OF THE INCOME-TAX ACT, 1961, ASSESSING OFFICER OUGHT TO HAVE DETERMINED THE PHYS ICAL GEOGRAPHICAL LOCATION OF THE LAND IN DISPUTE. WITHO UT DETERMINING THAT ASPECT FACTUALLY, HE HAS ACCEPTED THE VERSION OF ASSESSEE WITHOUT APPLICATION OF MIND WHI CH WOULD RENDER HIS ORDER AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THEREFORE, AS FAR AS THE L EARNED COMMISSIONER HAS TAKEN COGNIZANCE UNDER SEC. 263 OF THE ACT, WE DO NOT FIND ANY ERROR IN HIS ORDER. HE HAS RIGHTLY EXERCISED THE POWERS UNDER SEC. 263 AND HAS RIGHTLY SET ASIDE THE ASSESSMENT ORDER. HOWEVER, AS FAR AS TREA TING THE LAND OF ASSESSEE AS A CAPITAL ASSETS WITHIN THE MEANING OF SEC. 2(14)(III) OF THE ACT, LEARNED COMMISSIONER AGAIN FAILED TO COLLECT ANY DIRECT EVIDENCE AGAINST THE A SSESSEE. HE HAS RELIED UPON THE JUDGMENT OF HON'BLE DELHI HI GH COURT IN THE CASE OF DEVKINANDAN & SONS. THIS JUDGM ENT DO INDICATE THAT FARIDABAD ADMINISTRATION COMPLEX IS A KIN TO MUNICIPALITY BUT AGAIN ONE HAS TO COLLECT THE REPOR T FROM THE REVENUE OFFICIALS EXHIBITING THE ACTUAL LOCATIO N OF THE LAND IN DISPUTE. LEARNED DR AFTER CONCLUSION OF THE HEARING OBTAINED A REPORT FROM THE PATWARI AND PLACED IT ON RECORD HUT WE CANNOT TAKE COGNIZANCE OF THIS REPORT AT THI S STAGE I.E. FROM THE BACK OF THE ASSESSEE AND WITHOUT GIVI NG THEM AN OPPORTUNITY OF HEARING. CONSIDERING ALL THESE AS PECTS, WE DEEM IT APPROPRIATE TO MODIFY THE ORDER OF LEARN ED COMMISSIONER. WE SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WHO WILL COLLECT THE EVIDENCE FRO M THE FIELD AND DETERMINE THE ACTUAL PHYSICAL LOCATION OF THE LANDS OF THE ASSESSEE AT THE TIME OF ACQUISITION. A FTER ITA-1829 & 1830/DEL/2008 3 COLLECTING THE RELEVANT EVIDENCE HE SHALL DECIDE WH ETHER LANDS OF THE ASSESSEES ARE CAPITAL ASSERT WITHIN TH E MEANING OF SEC. 2(14) OF THE ACT OR NOT AND THEREAF TER HE WILL DECIDE THE COMPUTATION OF CAPITAL GAIN, ARISEN IF ANY. IT IS NEEDLESS TO SAY THAT THE OBSERVATIONS MADE BY US WHILE DISPOSING OF THESE APPEALS WILL NOT IMPAIR OR INJUR E THE CASE OF A.O. OR WILL NOT CAUSE ANY PREJUDICE TO THE DEFENCE/EXPLANATION OF THE ASSESSEE IN RESPECT OF DETERMINATION OF EXACT PHYSICAL LOCATION OF THE LAN D IN DISPUTE. 3. IT IS PLEADED THAT THE ASSESSEES APPEALS MAY BE SET ASIDE WITH SIMILAR DIRECTIONS. LEARNED DR CONTENDS THAT FACTS AND CIRCUMSTANCES ARE SIMILAR AND AGREES FOR SETTING ASIDE OF THE ISS UE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL PLACED ON RECORD. FACTS AND CIRCUMSTANCES OF THE P RESENT CASE BEING SIMILAR TO THAT OF DECIDED BY THE TRIBUNAL VIDE ORD ER DATED 18.6.2010 PASSED IN ITA NOS.1831 & 1832/DEL/2008 IN THE CASE OF SHRI NAHAR AND OTHERS (SUPRA), WE, RESPECTFULLY FOLLOWING THE AFOR ESAID ORDER OF THE TRIBUNAL, RESTORE BOTH THE APPEALS TO THE FILE OF T HE ASSESSING OFFICER TO DECIDE THE SAME AFRESH AFTER AFFORDING REASONABLE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 6 TH JANUARY, 2011. SD/- SD/- (K.D.RANJAN (K.D.RANJAN (K.D.RANJAN (K.D.RANJAN ) )) ) (R.P.TOLANI (R.P.TOLANI (R.P.TOLANI (R.P.TOLANI ) )) ) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 06.01.2011. VK. ITA-1829 & 1830/DEL/2008 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR