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

ITA 1834/DEL/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4074 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 10-05-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 12-05-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RIS GILL
• Keywords: Capital asset; Salary income
• Section: 45(5); 2(14); 32; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER & SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO. 1833 & 1834/DEL/2008 ASSESSMENT YEAR: 2000-01 & 2001-02 SH. HIRDEY, VS. CIT-XVI, S/O SH. DHAN SAHAY, NEW DELHI. VILLAGE ANKHIR, SECTOR 21-D, FARIDABAD (HARYANA). PAN (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GURJEET SINGH, CA RESPONDENT BY : SHRI R.I.S. GILL, CIT(DR) ORDER PER I.P. BANSAL, J.M. BOTH THESE APPEALS ARE FILED BY THE ASSESSEE AND THEY ARE DIRECTED AGAINST TWO SEPARATE ORDERS PASSED BY LD. CIT(A)-XVI, NEW DELHI DATED 28.3.2008 AND 31.3.2008 FOR A.Y. 2000-0 1 & 2001-02 RESPECTIVELY U/S 263 OF INCOME TAX ACT, 1961 (ACT). GROUNDS OF APPEAL READ AS UNDER: - 1. THAT THE CIT ORDER IS BEING CHALLENGED ON FACTS AND LAW ON THE TRUE AND CORRECT INTERPRETATION OF THE PROVISIONS O F SEC. 263 READ WITH THE PROVISIONS OF SEC. 2(N), 32 OF THE HARYANA URBAN DEVELOPMENT AUTHORITY ACT, 1977. 2. THAT THE CIT ORDER IS BEING CHALLENGED ON THE GR OUND THAT THE APPELLANT IS WITHIN THE JURISDICTION OF HARYANA AND NOT OF DELHI AND EVEN FURTHER THERE IS NO JUDGMENT CONTRARY BY JURIS DICTIONAL P&H HIGH COURT CONSIDERING THE SEC. 2(N), 32 OF THE HAR YANA URBAN DEVELOPMENT AUTHORITY ACT, 1977. ITA NO. 1833 & 1834/D/2008 2 3. THAT THE CIT ORDER IS BEING CHALLENGED FOR INVOK ING THE PROVISIONS OF SEC. 45(5) OF THE ACT INTRODUCED W.E.F. 1.4.88 B Y THE FINANCE ACT, 1987,WHEREIN THE CLAUSE (C) HAS BEEN INSERTED BY THE FINANCE ACT, 2003 W.E.F. 1.04.2004 WHEREAS THE APPE LLANT IS FOR THE YEAR PRIOR TO THE ABOVE SAID AMENDMENT. 4. THAT THE ASSESSEE PRAYS FOR GRANTING OF ANY CONS EQUENTIAL RELIEF AND ON LEGAL CLAIM IN THE INTEREST OF SUBSTANTIAL J USTICE TO AVOID PROTRACTED LITIGATION AND WITH A PRAYER TO ALLOW AN Y ADDITION, DELETION, AMENDMENT, MODIFICATION AND RECTIFICATION IN THE GROUNDS OF APPEAL BEFORE THE DISPOSAL OF THE SAME. 2. BOTH THE IMPUGNED ASSESSMENTS ARE FRAMED U/S 143 (3)/148 VIDE EVEN DATED ORDER ON 28.2.2006. IN THE IMPUGNED ASS ESSMENTS THE RETURNED INCOME OF THE ASSESSEE HAS BEEN ACCEPTED A T RS. 79,430/- AND RS. 24,000/- FOR ASSESSMENT YEARS 2000-01 & 2001-02 RESPECTIVELY, WHEREBY IN A.Y. 2000-01 THE ENHANCED COMPENSATION A S RETURNED BY THE ASSESSEE AT RS. 73,563/- WAS ACCEPTED APART FROM DE CLARED SALARY INCOME OF RS. 5,867/-. SIMILARLY FOR A.Y. 2001-02 THE ASSESSED INCOME OF RS. 24,000/- COMPRISED OF SALARY INCOME ONLY AND IT HAS NO ELEMENT OF ENHANCED COMPENSATION. 3. THE ASSESSEE OWNS A PIECE OF LAND AT VILLAGE ANK HIR, SECTOR 21D, FARIDABAD (HARYANA) WHICH WAS ACQUIRED BY HUDA IN 1 993 AND ON WHICH THE ASSESSEE HAD RECEIVED COMPENSATION/ENHANC ED COMPENSATION AND INTEREST ON DELAYED PAYMENT AS UND ER: - COMPENSATION/ENHANCED COMPENSATION RS. 4,91,538.50 INTEREST (FROM 1993 TO 2000) RS. 4,79,586/- ITA NO. 1833 & 1834/D/2008 3 PRINCIPAL INTEREST TOTAL AMOUNT RECEIPT DATE 3,36,147/- NIL 3,36,147/- 28.2.2000 41,546/- NIL 41,546/- TDS ON COMPENSATION 1,13,845/- 2,82,164.50 3,96,010/- 23.12.2000 NIL 1,45,564.00 1,45,564/- 22.03.2003 NIL 51,757.00 51,757/- TDS ON INTEREST 4,91,538/- 4,79,485.50 9,71,024/- TOTAL 4. THE AO ASSESSED ONLY INTEREST RECEIVED ON COMPENSATION/ENHANCED COMPENSATION WHICH WAS PERTAI NING ONLY TO A.Y. 2000-01. LATER ON LD. CIT INVOKED THE PROVISI ONS OF SEC. 263 AND A NOTICE WAS ISSUED ON ASSESSEE ON 24.3.08 TO SHOW CA USE AS TO WHY THE ABOVE MENTIONED ASSESSMENT SHOULD NOT BE CANCELLED. IN RESPONSE TO SHOW CAUSE NOTICE THE ASSESSEE HAS STATED THAT VIDE LETTER NO. 1612 DATED 19.7.2005 LAND ACQUISITION OFFICER, URBAN EST ATE, FARIDABAD, ON THE REQUEST OF ITO, WARD 47(1), NEW DELHI HAD CERTI FIED THAT THE SITUS OF THE LAND WAS BEYOND 8 KMS. OF MUNICIPAL LIMIT AND, THEREFORE, NO TAX COULD BE LEVIED IN RESPECT OF COMPENSATION/ ENHANCE D COMPENSATION. HOWEVER, LD. CIT HAS HELD THAT THE BASIC ISSUE INVO LVED WAS WHETHER THE LAND ACQUIRED BY HUDA WAS SITUATED WITHIN MUNICIPAL LIMIT/ WITHIN 8 KM OF THE LIMITS OF THE NOTIFIED AREA. ACCORDING TO L D. CIT TO ASCERTAIN SUCH FACTS AO WAS REQUIRED TO MAKE ENQUIRIES WITH THE CO NCERNED MUNICIPAL AUTHORITY INSTEAD OF DEPENDING UPON THE AFOREMENTIO NED LETTER ISSUED BY LAND ACQUISITION OFFICER OF HUDA. ACCORDING TO LD. CIT, HUDA IS AN AUTHORITY CONCERNED WITH ACQUISITION OF LANDS, CONS TRUCTION, URBAN DEVELOPMENT AND TOWN PLANNING AND ITS FUNCTIONS ARE TOTALLY DIFFERENT FROM A MUNICIPALITY. LD. CIT HAS REFERRED TO THE D ECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF DEOKI NANDAN AND SONS VS. CIT 115 TAXMAN ITA NO. 1833 & 1834/D/2008 4 513 ACCORDING TO WHICH THE COMPLEX IN THE SABHA ARE AS OF ANKHIR VILLAGE IN THE FARIDABAD COMPLEX WAS AKIN TO THE MUNICIPAL AUTHORITY AND THE LAND FALLING IN ITS JURISDICTION WAS HELD TO BE A CAPITAL ASSET WITHIN THE MEANING OF SEC. 2(14)(III)(A) OF THE ACT. LD. CIT ALSO REFERRED TO THE DECISION OF HONBLE SC IN THE CASE OF G.M. OMAR KHA N VS. CIT (ADDL.) 196 ITR 269, WHEREIN IT WAS HELD THAT IF THE AGRICU LTURAL LAND IS SITUATED IN A VILLAGE, WHICH COMES WITHIN A MUNICIPALITY ETC. T HEN THE POPULATION OF THE MUNICIPALITY SHALL BE CONSIDERED AND NOT OF A V ILLAGE. THEREFORE, ACCORDING TO LD. CIT EVEN IF THE POPULATION OF VILL AGE WAS LESS THAN 10,000 AT THE RELEVANT POINT OF TIME, THE POPULATIO N OF FARIDABAD COMPLEX AS A WHOLE WAS REQUIRED TO BE TAKEN INTO CONSIDERAT ION FOR THE PURPOSE OF SEC. 2(14) OF THE ACT. THUS, ACCORDING TO LD. CIT, THE AO DID NOT FOLLOW THE DECISION OF JURISDICTION HIGH COURT AND RESTED HIS DECISION UPON LETTER ISSUED BY HUDA AUTHORITY WITHOUT MAKING ENQUIRY WIT H THE CONCERNED MUNICIPAL AUTHORITY AND, THEREFORE, THE ASSESSMENT ORDER WAS ERRONEOUS. THE AO FAILED TO TAKE INTO NOTICE THE HARYANA GOVER NMENTS NOTIFICATION DATED 22 ND AUGUST, 1978 VIDE WHICH THE AREAS OF ANKHIR VILL AGE WAS INCLUDED IN FARIDABAD COMPLEX. IN THIS MANNER THE ASSESSMENT ORDERS PASSED BY AO WHICH HELD TO BE ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE AND FOLLOWING DIRECTIONS HAVE B EEN GIVEN TO THE AO TO PASS A SUITABLE ORDER AS PER LAW DENOVO. AFTER CONSIDERING THE REPLY OF THE ASSESSEE, I HER EBY FIND THE ORDER ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTER ESTS OF THE REVENUE. I AM CONSTRAINED TO FOLLOW THE ORDERS OF JURISDICTIONAL HIGH COURT. HENCE, THE ORDER IS CAN CELLED AND THE AO IS ASKED TO FOLLOW THE JURISDICTIONAL HIGH C OURT ORDER AND PASS A SUITABLE ORDER AS PER LAW DE-NOVO. ITA NO. 1833 & 1834/D/2008 5 5. AFTER NARRATING THE FACTS, IT WAS POINTED OUT BY LD. AR THAT IN THE CASE OF BROTHER OF THE ASSESSEE AND OTHER CO-OWNERS OF WHOM THE SIMILAR LAND WAS ACQUIRED BY HUDA, LD. CIT HAS PASS ED SIMILAR ORDER U/S 263 AND THE MATTER IN THE OTHER CASES HAVE BEEN DEC IDED BY THE TRIBUNAL VIDE ORDER DATED 18.6.2010 THE DETAILS OF WHICH ARE AS UNDER: - S.NO. ITA NOS. ASSTT. YRS. NAME OF THE ASSESSEE 1. 1827/DEL/008 2000-01 SH. BHAGAT SINGH 2. 1828/DEL/008 2001-02 -DO- 3. 1831/DEL/008 2000 - 01 NAHAR 4. 1832/DEL/008 2001-02 -DO- 5. 1835/DEL/008 2000-01 BABU RAM 6. 1836/DEL/008 2001-02 -DO- 7. 1840/DEL/008 2000-01 BISHAMBHAR 6. HE HAS PLACED BEFORE US COPY OF THE AFOREMENTION ED ORDER IN WHICH TRIBUNAL WHILE UPHOLDING THE ORDER OF LD. CIT HAS MODIFIED THE DIRECTIONS GIVEN BY HIM. THUS, IT WAS PLEADED BY L D. AR THAT THE SAME ORDER MAY BE PASSED IN THE PRESENT APPEALS ALSO, AS THE ISSUE IS IDENTICAL. 7. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY LD. CIT. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF MATERIAL PLACED BEFORE US. AFTER CAREFUL CONSIDERA TION WE FOUND THAT THE ISSUE RAISED IN THE PRESENT APPEAL ARE IDENTICAL AS DECIDED BY TRIBUNAL IN THE AFOREMENTIONED CASES. AS PER PRECEDENT, UNLESS DEPARTMENT IS ABLE TO POINT OUT ANY DIFFERENCE IN FACTS, WE ARE TO FOL LOW THE DECISION OF ITA NO. 1833 & 1834/D/2008 6 COORDINATE BENCH. NO DIFFERENCE HAS BEEN POINTED O UT BY THE REVENUE OR BY THE AR IN THE FACTS AND CIRCUMSTANCES OF THE PRE SENT CASE AS COMPARED TO THE FACTS AND CIRCUMSTANCES CONSIDERED IN THE AFOREMENTIONED CASES BY THE TRIBUNAL VIDE ITS ORDER DATED 18.6.2010. IN THE AFOREMENTIONED DECISION THE TRIBUNAL THOUGH HAS UPHELD THE APPLICABILITY OF SEC. 263 BUT HAS MODIFIED THE DIRE CTIONS GIVEN BY CIT. FOR THE SAKE OF CONVENIENCE WE REPRODUCE THE OPERAT IVE PART OF THE SAID DECISION WHICH IS AS UNDER: - WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AND GONE THROUGH THE RECORD CAREFULLY. THE ITAT IN THE CASE OF MRS. KHATIZA S. OOMERBHOY VS. ITO, MUMBAI, 101 TTJ 1095, ANALYZED IN DETAIL VARIOUS AUTHORITATIVE PRONOUNCEMENTS INCLUDING THE DECISION OF HONBLE SU PREME COURT IN THE CASE OF MALABAR INDUSTRIES 243 ITR 83 AS WELL AS HONBLE BOMBAY HIGH COURT RENDERED IN THE CASE O F GABRIEL INDIA LTD. AND HAS PROPOUNDED THE FOLLOWING BROADER PRINCIPLE TO JUDGE THE ACTION OF CIT TAKEN U/S 263. THE FUNDAMENTAL PRINCIPLE WHICH EMERGE FROM THE ABOVE CASES MAY BE SUMMARIZED BELOW (I) THE CIT MUST RECORD SATISFACTION THAT THE ORDER OF THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. BOTH THE CONDITIONS MUST BE FULFILLED. (II) SEC. 263 CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE AO AND IT WAS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WILL BE ATTRACTED. (III) AN INCORRECT ASSUMPTION OF FACTS OR AN INCORRECT APPLICATION OF LAW WILL SUFFICE THE REQUIREMENT OF ORDER BEING ERRONEOUS. ITA NO. 1833 & 1834/D/2008 7 (IV) IF THE ORDER IS PASSED WITHOUT APPLICATION OF MIND, SUCH ORDER WILL FALL UNDER THE CATEGORY OF ERRONEOUS ORDER. (V) EVERY LOSS OF REVENUE CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE AND IF THE AO HAS ADOPTED ONE OF THE COURSES PERMISSIBLE UNDER LAW OR WHERE TWO VIEWS ARE POSSIBLE AND THE AO AHS TAKEN ONCE VIEW WITH WHICH THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER, UNLESS THE VIEW TAKEN BY THE AO IS UNSUSTAINABLE UNDER LAW. (VI) IF WHILE MAKING THE ASSESSMENT, THE AO EXAMINES THE ACCOUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINE THE INCOME, THE CIT, WHILE EXERCISING HIS POWER U/S 263 IS NOT PERMITTED TO SUBSTITUTE HIS ESTIMATE OF INCOME IN PLACE OF THE INCOME ESTIMATED BY THE AO. (VII) THE AO EXERCISES QUASI-JUDICIAL POWER VESTED IN HIS AND IF HE EXERCISES SUCH POWER IN ACCORDANCE WITH LAW AND ARRIVES AT A CONCLUSION, SUCH CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE CIT DOES NOT FEEL SATISFIED WITH THE CONCLUSION. (VIII) THE CIT, BEFORE EXERCISING HIS JURISDICTION U/S 263 MUST HAVE MATERIAL ON RECORD TO ARRIVE AT A SATISFACTION. (IX) IF THE AO HAS MADE ENQUIRIES DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON THE RELEVANT ISSUES AND THE ASSESSEE HAS GIVEN DETAILED EXPLANATION BY A LETTER IN WRITING AND THE AO ALLOWS THE CLAIM ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE, THE DECISION OF THE AO CANNOT BE ITA NO. 1833 & 1834/D/2008 8 HELD TO BE ERRONEOUS SIMPLY BECAUSE IN HIS ORDER HE DOES NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD. IN THE LIGHT OF THE ABOVE PROPOSITION, LET US EXAMI NE THE FACTS OF THE PRESENT CASE. THE LETTER BEARING NO. 1612 DATED 9.7.2005 HAS BEEN PLACED ON RECORD BY THE LD. COUNSEL FOR THE ASSESSEE. WE HAVE PERUSED THIS LET TER. IT IS WRITTEN BY LAND ACQUISITION OFFICER, URBAN ESTATE, FARIDABAD, HARYANA. THE LETTER IS ADDRESSED TO THE ITO, WARD NO. 47(1), NEW DELHI. IT IS WRITTEN IN RESPONSE TO THE INFORMATION CALLED FOR U/S 133(B) OF THE I.T. ACT. THE LAND AC QUISITION OFFICER HAS SUBMITTED IN THIS LETTER THAT LANDS OF THE ASSESSEE COMPRISED IN ANKHIR VILLAGE IS SITUATED AT A DISTAN CE OF 8 KMS. FROM MUNICIPAL LIMIT AND THE POPULATION OF THE VILLAGE IS LESS THAN 10,000 PEOPLE. THE LAND REVENUE RECORDS ARE NOT BEING MAINTAINED BY THE OFFICERS OF LAND ACQUISITIO N COLLECTORATE OFFICE IN HARYANA STATE. THE LAND REV ENUE RECORD IN THE STATE OF HARYANA ARE BEING MAINTAINED UNDER THE PUNJAB LAND REVENUE ACT BY THE REVENUE OFFICIAL S. THE FIRST OFFICER IN WHOSE CUSTODY SUCH RECORDS ARE MAI NTAINED IS A PATWARI OF A PARTICULAR REVENUE STATE AND, THE REFORE, KANOONGO, TEHSILSAR ETC. HAD THE AO CALLED A REPOR T FROM THE TEHSILDAR/ASSISTANT COLLECTOR HAVING TERRITORIA L JURISDICTION OVER THE REVENUE ESTATE OF ANKHIR VILLAGE? WE COUL D UNDERSTAND THAT AO HAS APPLIED HIS MIND AND CONDUCT ED AN INQUIRY. NEITHER THE LAND ACQUISITION OFFICER IS A COMPETENT OFFICER TO GIVE A CERTIFICATE ABOUT THE GEOGRAPHICA L LOCATION OF AN AGRICULTURAL LAND NOR HE HAS PREPARED HIS LETTER ON THE BASIS ANY RECORD MAINTAINED BY THE REVENUE OFFICIAL S UNDER THE PUNJAB LAND REVENUE ACT. SECTION 2(14) PROVIDE S THE DEFINITION OF CAPITAL ASSETS. IT READS AS UNDER: (14) CAPITAL ASSET MEANS PROPERTY OF ANY KIND HELD BY AN ASSESSEE, WHETHER OR NOT ITA NO. 1833 & 1834/D/2008 9 CONNECTED WITH HIS BUSINESS OR PROFESSION, BUT DOES NOT INCLUDE (I) ANY STOCK-IN-TRADE, CONSUMABLE STORES OR RAW MATERIALS HELD FOR THE PURPOSE OF HIS BUSINESS OR PROFESSION; (II) PERSONAL EFFECTS, THAT IS TO SAY, MOVEABLE PROPERTY (INCLUDING WEARING APPAREL AND FURNITURE) HELD FOR PERSONAL USE BY THE ASSESSEE OR ANY MEMBER OF HIS FAMILY DEPENDENT ON HIM, BUT EXCLUDES- A) JEWELLERY; B) ARCHAEOLOGICAL COLLECTIONS; X X X X X X X X (III) AGRICULTURAL LAND IN INDIA, NOT BEING LAN D SITUATE- (A) IN ANY CASE WHICH IS COMPRISED WITHIN THE JURISDICTION OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MUNICIPAL CORPORATION, NOTIFIED AREA COMMITTEE, TOWN AREA COMMITTEE, TOWN COMMITTEE, OR BY ANY OTHER NAME) OR A CANTONMENT BOARD AND WHICH HAS A POPULATION OF NOT LES THAN TEN THOUSAND ACCORDING TO THE LAST PRECEDING CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBLISHED BEFORE THE FIRST DAY OF THE PREVIOUS YEAR; OR (B) IN ANY AREA WITHIN SUCH DISTANCE, NOT BEING MORE THAN EIGHT KILOMETERS, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM (A), AS THE CENTRAL GOVERNMENT MAY, HAVING ITA NO. 1833 & 1834/D/2008 10 REGARD TO THE EXTENT OF, AND SCOPE FOR, URBANIZATION OF THAT AREA AND OTHER RELEVANT CONSIDERATIONS, SPECIFY IN THIS BEHALF BY NOTIFICATION IN THE OFFICIAL GAZETTE. FROM THE PERUSAL OF THIS DEFINITION, IT WOULD REVEAL THAT IN ORDER TO TREAT ANY AGRICULTURAL LAND , AS A NON-CAPITAL ASSETS FOR THE PURPOSE OF THE INCOME-TA X ACT, 1961, AO OUGHT TO HAVE DETERMINED THE PHYSICAL GEOGRAPHICAL LOCATION OF THE LAND IN DISPUTE. WITH OUT 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 LD. COMMISSIONER HAS TAKEN COGNIZANCE U/S 263 OF THE ACT, WE DO NOT FIND ANY ERROR IN HIS ORDER. HE HAS RIGHTLY EXERCISED THE POWERS U/S 263 AND HAS RIGHTL Y SET ASIDE THE ASSESSMENT ORDER. HOWEVER, AS FAR AS TREATING THE LAND OF ASSESSEE AS A CAPITAL ASSETS WITHIN THE MEANING OF SEC. 2(14)(III) OF THE ACT, L D. COMMISSIONER AGAIN FAILED TO COLLECT ANY DIRECT EVIDENCE AGAINST THE ASSESSEE. HE HAS RELIED UPON THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CAS E OF DEVKINANDAN & SONS. THIS JUDGMENT DO INDICATE THAT FARIDABAD ADMINISTRATION COMPLEX IS AKIN TO MUNICIPALITY BUT AGAIN ONE HAS TO COLLECT THE REPOR T FROM THE REVENUE OFFICIALS EXHIBITING THE ACTUAL LOCATION OF THE LAND IN DISPUTE. LD. DR AFTER CONCLUSION OF THE HEARING OBTAINED A REPORT FROM TH E PATWARI AND PLACE IT ON RECORD BUT WE CANNOT TAKE COGNIZANCE OF THIS REPORT AT THIS STAGE I.E. FROM T HE BACK OF THE ASSESSEE AND WITHOUT GIVING THEM AN OPPORTUNITY OF HEARING. CONSIDERING ALL THESE ASPE CTS, WE DEEM IT APPROPRIATE TO MODIFY THE ORDER OF LD. ITA NO. 1833 & 1834/D/2008 11 COMMISSIONER. WE SET ASIDE THE ISSUE TO THE FILE O F THE AO WHO WILL COLLECT THE EVIDENCE FROM THE FIELD AND DETERMINE THE ACTUAL PHYSICAL LOCATION OF THE LANDS OF THE ASSESSEE AT THE TIME OF ACQUISITION. AFTER COLLECTING THE RELEVANT EVIDENCE HE SHALL DECIDE WHETHER LANDS OF THE ASSESSES ARE CAPITAL ASSERT WITHIN THE MEANING OF SEC. 2(14) OF THE ACT OR NOT AND THEREAFTER HE WILL DECIDE THE COMPUTATION OF CAPITA L GAIN, ARISEN IF ANY. IT IS NEEDLESS TO SAY THAT TH E OBSERVATIONS MADE BY US WHILE DISPOSING OF THESE APPEALS WILL NOT IMPAIR OR INJURE THE CASE OF AO OR WILL NOT CAUSE ANY PREJUDICE TO THE DEFENCE/EXPLANATION OF THE ASSESSEE IN RESPECT OF DETERMINATION OF EXACT PHYSICAL LOCATION OF THE LAND IN DISPUTE. IN THE RESULT, ALL THE SEVEN APPEALS FILED BY THE ASSESSEE ARE PARTLY ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 18.6.2010. 9. THEREFORE, RESPECTFULLY FOLLOWING THE AFOREMENTI ONED DECISION, WE PASS SIMILAR ORDER IN THE PRESENT APPEALS ALSO AND SIMILAR DIRECTIONS ARE GIVEN TO AO. 10. IN THE RESULT, BOTH THESE APPEALS FILED BY THE ASSESSEE ARE PARTLY ALLOWED, IN THE MANNER AFORESAID. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 10.05.201 1 SD/- SD/- (K.D. RANJAN) (I.P. BANSAL) ACCOUNTANT MEMBER JUDI CIAL MEMBER DATED: 10.5.11 *KAVITA CHOPRA ITA NO. 1833 & 1834/D/2008 12 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR