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

ITA 1839/DEL/2008

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0042 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 21-03-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 12-05-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: REENA SINHAPURI
• Keywords: Capital asset
• Section: 2(14); 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 C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI K.D.RANJAN K.D.RANJAN K.D.RANJAN K.D.RANJAN, AM , AM , AM , AM ITA NO. ITA NO. ITA NO. ITA NO.1839/DEL/2008 1839/DEL/2008 1839/DEL/2008 1839/DEL/2008 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2000 2000 2000 2000- -- -01 0101 01 SHRI HEM CHAND, SHRI HEM CHAND, SHRI HEM CHAND, SHRI HEM CHAND, VILLAGE ANKHIR, SECTOR 21 VILLAGE ANKHIR, SECTOR 21 VILLAGE ANKHIR, SECTOR 21 VILLAGE ANKHIR, SECTOR 21- -- -D, D,D, D, FARIDABAD. FARIDABAD. FARIDABAD. FARIDABAD. HARYANA. HARYANA. HARYANA. HARYANA. PAN NO. PAN NO. PAN NO. PAN NO.AEOPC0759E. AEOPC0759E. AEOPC0759E. AEOPC0759E. 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, AR. RESPONDENT BY : SMT.REENA SINHA PURI, CIT-DR. ORDER ORDER ORDER ORDER PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI, J , J, J , JM : M : M : M : THE PRESENT APPEAL IS FILED BY THE ASSESSEE AGAINS T THE ORDER DATED 28.3.2008 PASSED BY CIT U/S 263 OF THE INCOME -TAX ACT, 1961 (THE ACT) FOR THE AY 2000-01. 2. THE VARIOUS GROUNDS OF APPEAL RAISED BY THE ASSE SSEE ARE DIRECTED AGAINST CITS ORDER CONTENDING THAT THE OR DER PASSED BY CIT IS BAD IN LAW AND IS CONTRARY TO THE VARIOUS PROVISION S OF LAW CONTAINED IN THAT BEHALF. 3. IN THE COURSE OF HEARING OF THIS APPEAL, IT WAS POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE FACTS OF THIS CASE ARE COMMON AND IDENTICAL TO THE CASE OF SHRI NAHAR & TH REE OTHERS DECIDED BY ITAT DELHI BENCH IN ITA NOS.1831 & 1832/DEL/2008 , 1835 & 1836/DEL/2008, 1827 & 1828/DEL/2008 AND 1840/DEL/20 08 VIDE ORDER DATED 18.6.2010. HE SUBMITTED THAT THE TRIBUNAL IN THESE APPEALS HAS TAKEN A VIEW THAT CIT HAS RIGHTLY EXERCISED THE POW ERS U/S 263 AND HAS RIGHTLY SET ASIDE THE ASSESSMENT ORDER. HOWEVER, T HE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF THE AO WITH CERT AIN OBSERVATIONS. ITA-1839/DEL/2008 2 4. THE LEARNED DR FOR THE DEPARTMENT HAS ALSO SUBMI TTED THAT THE FACTS OF THIS CASE ARE IDENTICAL TO THE OTHER CASES DECIDED BY THE TRIBUNAL IN THE ABOVE REFERRED CASES. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL ON RECORD. IN THE ABOVE REFERRED APPEALS, THE TRIB UNAL HAS CONCLUDED AND HELD AS UNDER:- 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 COLLECTING THE RELEVANT EVIDENCE HE SHALL DECIDE WH ETHER LANDS OF THE ASSESSEES ARE CAPITAL ASSERT WITHIN TH E ITA-1839/DEL/2008 3 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. 6. RESPECTFULLY FOLLOWING THE TRIBUNALS AFORESAID ORDER, WE HOLD THAT LEARNED CIT HAS RIGHTLY EXERCISED HIS POWERS U /S 263 OF THE ACT AND THEN HE HAS RIGHTLY SET ASIDE THE ASSESSMENT ORDER. WE DO NOT FIND ANY ERROR IN HIS ORDER AS SO HELD BY THE TRIBUNAL IN CO NNECTED APPEALS. IN THE LIGHT OF THE TRIBUNALS ORDER DATED 18.6.2010 P ASSED IN THE CONNECTED APPEALS, WE RESTORE THIS ASSESSMENT ORDER TO THE FILE OF THE AO FOR DECIDING THE MATTER AFRESH AFTER COLLECTING THE EVIDENCE FROM THE FIELD AND DETERMINE THE ACTUAL PHYSICAL LOCATIO N OF THE LANDS OF THE ASSESSEE AT THE TIME OF ACQUISITION. THE VARIOUS O BSERVATIONS MADE BY THE TRIBUNAL IN THE CONNECTED APPEALS SHALL APPLY T O THIS APPEAL ALSO. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 25 TH MARCH, 2011. SD/- SD/- (K.D.RANJAN (K.D.RANJAN (K.D.RANJAN (K.D.RANJAN) )) ) (C.L.SETHI (C.L.SETHI (C.L.SETHI (C.L.SETHI) )) ) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 25.03.2011. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR ITA-1839/DEL/2008 4