Shri Balraj Singh, Uttar Pradesh V. ITO, Bulandshahr

ITA 1864/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3433 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 29-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A K SRIVASTAVA
• Keywords: Capital asset; Opportunity of being heard; Principle of natural justice; Reassessment proceedings
• Section: 2(14); 148; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO.1864/DEL/2017 ASSESSMENT YEAR : 2008-09 BALRAJ SINGH, VILLAGE- SHERPUR, MAJARA, SIKANDRABAD, DISTT. BULANDSHAHR, UTTAR PRADESH VS. ITO, WARD- 3(1), BULANDSHAHR PAN : BKQPS6532Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI A. K. SRIVASTAVA, CA DEPARTMENT BY : MS. YAMINI, SR.DR DATE OF HEARING : 22-11-2017 DATE OF PRONOUNCEMENT : 22-11-2017 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 28.11.2016 OF CIT(A), GHAZIABAD RELATING TO ASSESSM ENT YEAR 2008-09. 2. ALTHOUGH, A NUMBER OF GROUNDS HAVE BEEN RAISED B Y THE ASSESSEE, THEY ALL RELATE TO THE ORDER OF THE LD. CIT(A) IN SUSTAINING THE ADDITION OF RS.10,40,115/- BY TREATING THE SALE OF AGRICULTURAL LAND BY THE AS SESSEE AS CAPITAL ASSET AS DEFINED U/S 2(14) OF THE I.T. ACT. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND HAS SOLD TWO PIECES OF LAND WITH 21 OTHER CO-OWNERS SIT UATED AT GATE NO.20A AND 202B OF KHATA NO.07 IN VILLAGE JOKHABAD, SIKANDRABA D, DISTT. BULANDSHAHR AND 2 ITA NO.1864/DEL/2017 RECEIVED A SUM OF RS.2,98,723/- AND ALSO SOLD LAND AT GATA 204 WITH OTHER 8 CO- OWNERS WITH HIS SHARE BEING RS.7,92,952/-. HOWEVER , NO RETURN OF INCOME WAS FILED BY THE ASSESSEE. THE ASSESSING OFFICER INITI ATED REASSESSMENT PROCEEDINGS AND IN RESPONSE TO NOTICE U/S 148 ISSUED ON 27.03.2 015 THE ASSESSEE FILED RETURN OF INCOME DECLARING AGRICULTURAL INCOME OF RS.60,00 0/- AND INCOME FROM OTHER SOURCES OF RS.200/-. THE ASSESSING OFFICER TREATED THE SHARE OF RECEIPTS ON SALE OF ABOVE SAID LANDS (RS.2,98,723 + RS.7,92,952 = RS .10,91,675) AS CAPITAL GAINS AND AFTER NECESSARY ADJUSTMENT COMPUTED LONG TERM C APITAL GAIN OF RS.10,40,115/-. HE, HOWEVER, ACCEPTED AGRICULTURAL INCOME OF RS.60,000/- AND INCOME FROM OTHER SOURCES OF RS.200/-. 4. BEFORE THE LD. CIT(A), THE ASSESSEE MAD ELABORAT E SUBMISSIONS. HOWEVER, THE LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE BY OBSERVING AS UNDER :- 5. APPELLATE FINDINGS: THE SUBMISSION OF THE APPELLANT, ASSESSMENT ORDER A LL THE CASE LAWS REFERRED TO THEREIN HAVE BEEN DULY CONSIDERED. 5.1 GROUND NOS.1, 2 & 3: THE APPELLANT HAS CHALLENG ED THE TREATMENT OF LAND SOLD BY APPELLANT AS CAPITAL ASSET IN ACCORDANCE WITH PR OVISIONS OF SECTION 2(14) BY THE AO. DURING THE COURSE OF APPELLATE PROCEEDINGS, TH E APPELLANT SUBMITTED THAT THE LAND IN QUESTION SHOULD BE TREATED AS RURAL AGRICUL TURAL LAND BECAUSE IT IS SITUATED IN 5 KILOMETERS AWAY FROM LOCAL LIMITS OF SIKANDRABAD AN D BEYOND 1 KILOMETER FROM GHAZIABAD-SIKANDRABAD NATIONAL HIGHWAY. FURTHER, A PPELLANT STATED THAT PERMISSION OF CHANGE OF LAND USE HAS BEEN TAKEN BY THE PURCHASE OF THE LAND AFTER SALE DEED HAS BEEN EXECUTED. APPELLANT CHALLENGED THE T REATMENT OF THE SAID LAND AS CAPITAL ASSET WITHIN THE DEFINITION OF CAPITAL ASSE T AS PER SECTION 2(14) READ WITH NOTIFICATION SO NO.9447 DT.06.01.1994 BY AO. 5.1.1 THE ABOVE SAID CIRCULAR SPECIFIES THAT THE PU RPOSE OF SIKANDRABAD MUNICIPALITY AREA FALLING WITHIN 1 KILOMETER ON EIT HER SIDE OF GHAZIABAD-SIKANDRABAD ROAD AND SIKANDRABAD-BULANDSHAHR ROAD UP TO A DISTA NCE OF 8 KILOMETERS FROM MUNICIPAL LIMIT OF THESE ROADS TO BE TREATED AS CAP ITAL ASSET IN ACCORDANCE WITH PER SECTION 2(14). APPELLANT HAS DISPUTED THAT THE LAN D WHICH HE HAS SOLD IS BEYOND 1 KM 3 ITA NO.1864/DEL/2017 OF SIKANDRABAD-GHAZIABAD ROAD. HOWEVER, EXAMINATIO N OF CERTIFICATE ISSUED BY TEHSILDAR ON 04.11.2015 WHEREIN IT HAS BEEN CERTIFI ED THAT THE DISTANCE FROM SAID LAND FROM THE ABOVE MENTIONED ROAD IS LESS THAN ONE KILO METER. THIS FACT IS ALSO SUPPORTED BY THE DESCRIPTION OF PROPERTY GIVEN IN THE SALE DE ED WHEREIN IT HAS BEEN MENTIONED THAT APPROXIMATE DISTANCE OF THE SAID LAND IS 1 KIL OMETER. APPELLANT FURTHER CONTENDED THAT TEHSILDAR HAS GIVEN DISTANCE CERTIFICATE AS PE R CROW FLY DISTANCE, CLAIM TO REBUT THE CERTIFICATE OF REVENUE OFFICER ISSUED STATING T HAT THE DISTANCE OF SAID LAND IS LESS THAN 1 KM FROM THE GHAZIABAD-SIKANDRABAD ROAD. KEE PING IN VIEW THE ABOVE FACTS THE ACTION OF THE AO UPHOLDING THE SOLD LAND AS CAP ITAL ASSET WITHIN THE MEANING OF SECTION 2(14) IS UPHELD. AS FAR AS PRINCIPLE OF NA TURAL JUSTICE IS CONCERN DURING APPELLATE STAGE APPELLANT GOT AMPLE OF OPPORTUNITIE S TO SUPPORT HIS CLAIM WITH SUFFICIENT EVIDENCE AND TO REBUT THE ARGUMENTS GIVE N BY AO IN THE ASSESSMENT ORDER, SATISFYING THE PRINCIPLE OF NATURAL JUSTICE. THUS, THERE GROUNDS OF APPEAL ARE DISMISSED. 5. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMI TTED THAT THE LD. CIT(A) WHILE DISMISSING THE APPEAL OF THE ASSESSEE VIDE OR DER DATED 28.11.2016 HAS INCORPORATED THE SUBMISSIONS MADE BY ANOTHER ASSESS EE. WHEN THE MISTAKE WAS POINTED OUT, THE LD. CIT(A) PASSED AN ORDER U/S 154 ON 08.02.2017 AND INCORPORATED THE SUBMISSIONS MADE BY THE ASSESSEE. HOWEVER, HIS FINDINGS REMAINED THE SAME WITHOUT ANY VERIFICATION. HE SUB MITTED THAT THE SUBMISSION MADE BY THE ASSESSEE IS DIFFERENT FROM THE EARLIER SUBMISSION INCORPORATED BY THE LD. CIT(A) IN CASE OF SOME OTHER PERSON. THERE FORE, THE LD. CIT(A) SHOULD HAVE APPLIED HER MIND BEFORE COMING TO THE CONCLUSI ON. SINCE THE SAME HAS NOT BEEN DONE, THEREFORE, THE ORDER OF THE LD. CIT(A) B E SET-ASIDE AND THE GROUNDS RAISED BY THE ASSESSEE SHOULD BE ALLOWED. 4 ITA NO.1864/DEL/2017 7. LD. DR ON THE OTHER HAND SUBMITTED THAT SINCE TH E LD. CIT(A) HAS NOT CONSIDERED THE SUBMISSIONS MADE BY THE ASSESSEE, TH EREFORE, THIS MATTER MAY BE RESTORED TO THE FILE OF THE LD. CIT(A) WITH A DIREC TION TO ADJUDICATE THE ISSUE AFRESH. 8. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE DISPUTE IN T HE PRESENT APPEAL IS RELATING TO THE TREATMENT OF THE LAND SOLD BY THE ASSESSEE. AC CORDING TO THE ASSESSEE, THE LAND IS AN AGRICULTURAL LAND WHEREAS ACCORDING TO T HE REVENUE, THE SAME IS CAPITAL ASSET. THE DISPUTE IS ALSO REGARDING THE D ISTANCE BETWEEN THE AGRICULTURAL LAND AND THE NEARBY TOWN. DIFFERENT CERTIFICATES H AVE BEEN FILED IN THE PAPER BOOK BY DIFFERENT PERSONS FROM DIFFERENT AUTHORITIE S. FURTHER, THE SUBMISSION OF THE ASSESSEE, WHICH WAS INCORPORATED BY THE LD. CIT (A) IN HER 154 ORDER HAS NOT BEEN CONSIDERED IN HER FINAL DECISION. THE DECISIO N GIVEN IN THE ORDER DATED 28.11.2016 REMAINS UNCHANGED ALTHOUGH SHE HAS RECTI FIED THE PARAGRAPHS RELATING TO THE SUBMISSIONS MADE BY THE ASSESSEE. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE LD. CIT(A) WITH A DIRECTIO N TO DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. CIT(A) SHALL CONSIDER THE CERTIF ICATES/EVIDENCES FILED BY THE ASSESSEE TO SUBSTANTIATE HIS CASE. I HOLD AND DIRE CT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 5 ITA NO.1864/DEL/2017 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON THIS 22 ND DAY OF NOVEMBER, 2017. SD/- (R. K. PANDA) ACCOUNTANT MEMBER DATED: 22-11-2017. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI