SHRI PREETAM, Jaipur V. ITO, Alwar

ITA 191/JPR/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2108 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 06-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA CIT DHK
• Keywords: Capital asset; Corroborative evidences
• Section: 80C; 2(14); 54; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 191/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13. SHRI PREETAM LEGAL HEIR OF SHRI DAYARAM, VILLAGE-KAMALPUR, TAPUKARA, TIJARA, ALWAR. CUKE VS. THE ITO, WARD- BHIWADI, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. BDXPR 7034 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 192/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13. SHRI LAXMI NARAYAN C/O KALANI & CO. CA. 5 TH FLOOR, MILE STONE GANDHI NAGAR TURN, JAIPUR. CUKE VS. THE ITO, WARD- BHIWADI, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AKMPN 2489 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (C.A) JKTLO DH VKSJ LS@ REVENUE BY : SHRI VARINDER MEHTA(CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01.05.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 03/05/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THESE TWO APPEALS BY THE TWO DIFFERENT ASSESSEE AR E DIRECTED AGAINST THE DIFFERENT ORDERS OF LD. CIT (A), JAIPUR, BOTH DATED 03.02.2017 PERTAINING TO ASSESSMENT YEAR 2012-13. SINCE THE COMMON ISSUES A RE INVOLVED, BOTH THE APPEALS 2 ITA NOS. 191 & 192/JP/2017 SHRI PREETAM L/H OF SHRI DAYARAM, ALWAR. & SHRI LA XMI NARAYAN, ALWAR. WERE TAKEN UP TOGETHER AND ARE BEING DISPOSED OF BY WAY OF CONSOLIDATING ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. FIRST WE TAKE UP ITA NO. 191/JP/2017, PERTAINING TO THE A.Y. 2012-13. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPLOADING THE ORDER OF THE AO IN ASSESSING THE INCOME FROM LONG TERM CAPIT AL GAIN ON SALE OF AGRICULTURAL LAND AT VILLAGE KAROLI ACQUIRED BY THE GOVERNMENT UNDER THE LAND ACQUISITION ACT, 1894 AT RS. 3,98,30,439/- BY: (A) IGNORING THAT THE CAPITAL GAIN ON SUCH ACQUISITION IS EXEMPT U/S 10(37) OF THE ACT AND ASSESSEE HAS FULFILLED ALL TH E CONDITIONS FOR CLAIMING SUCH EXEMPTION FOR WHICH EVIDENCE WAS AVAI LABLE BEFORE HIM, (B) IGNORING THAT THE AGRICULTURAL LAND ACQUIRED IS NOT A CAPITAL ASSET BEING SITUATED MORE THAN 8 KMS FROM THE MUNICIPAL L IMITS OF DISTRICT ALWAR AND THUS NOT LIABLE TO TAX UNDER THE INCOME T AX ACT, 1961, (C) CONSIDERING THE SALE CONSIDERATION OF THE AGRICULTU RAL LAND ACQUIRED AT RS. 4,06,48,147/- WHEREAS THE ACTUAL CONSIDERED AWARDED IS ONLY RS. 2,88,20,401/- AND (D) IGNORING THE ASSESSEE HAS DECLARED THE INCOME UNDER THE HEAD LONG TERM CAPITAL GAIN AFTER CLAIMING EXEMPTION U /S 54 UNDER MISCONCEPTION. 2. THE ASSESSEE CRAVES TO ALTER, AMEND AND MODIFY A NY OF THE GROUNDS OF APPEAL. 3. NECESSARY COST BE ALLOWED TO THE ASSESSEE. 2. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT DESPITE ISSUANCE OF SERVICE NOT ICE. NO ONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE, THE ASSESSING OFFICER PASSED AN ORDER U/S 144 OF THE I.T. ACT, 1961 DATED 11/03/2015. THEREBY, THE ASSE SSING OFFICER COMPUTED THE CAPITAL GAIN AT RS. 3,97,92,348/- AND DISALLOWED TH E CLAIM U/S 80C OF RS. 1 LAKHS. THEREBY, THE ASSESSING OFFICER COMPUTED TAXABLE INC OME AT RS. 4,00,64,291/- ,AGAINST THE INCOME DECLARED AT RS. 1,71,943/-. AG GRIEVED BY THIS ORDER THE 3 ITA NOS. 191 & 192/JP/2017 SHRI PREETAM L/H OF SHRI DAYARAM, ALWAR. & SHRI LA XMI NARAYAN, ALWAR. ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS DISMISSED THE APPEAL. 3. THE ONLY EFFECTIVE GROUND RAISED IN THIS APPEAL IS AGAINST COMPUTATION OF LONG TERM CAPITAL GAIN. AT THE TIME OF HEARING THE LD. C OUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED THAT THE ASSESSING OFFICER AS WEL L AS LD. CIT(A) DID NOT CONSIDERED THE FACTS IN RIGHT PERSPECTIVE. HE SUBM ITTED THAT THE GRIEVANCES OF THE ASSESSEE ARE TWOFOLD, FIRSTLY, THE ASSET WHICH WAS TRANSFERRED WAS AN AGRICULTURAL LAND. THEREFORE, WAS NOT WITHIN THE DEFINITION OF CAPITAL ASSET. SECONDLY, EVEN IF IT WAS A CAPITAL ASSET, THE ASSET WAS COMPULSORY ACQUI RED BY THE GOVERNMENT. THEREFORE, CAPITAL GAIN ON SUCH ACQUISITION IS EXEM PT U/S 10(37) OF THE ACT. THE LD. DEPARTMENTAL REPRESENTATIVES OPPOSED THE SUBMISSION S AND SUBMITTED THAT THE ASSESSEE IS REQUIRED TO DEMONSTRATE, AS TO HOW THIS LAND CANNOT BE TERMED AS CAPITAL ASSET. IN REJOINDER LD. COUNSEL FOR THE ASSESSEE D REW OUR ATTENTION AT PAGE NO. 32 OF THE PAPER BOOK, WHERE REPORT BY SUB-TAHSILDAR TAPUK ARA DISTRICT ALWAR, DATED 2/3/2017, WHERE IT IS STATED THAT THE LAND IS 75 KM S. AWAY FROM THE MUNICIPAL COMMITTEE, ALWAR AND 11 KMS. FROM THE BHIWADI MUNIC IPAL COUNSEL. HOWEVER, AFTER SOME HEARING ON THE ISSUES THE RESPECTIVE REPRESENT ATIVES OF THE PARTIES AGREED THAT THE ISSUE MAY BE RESTORED TO THE FILE OF THE A SSESSING OFFICER FOR DECISION AFRESH ON THE ISSUE OF WHETHER THE LAND WAS FALLING WITHIN THE MUNICIPAL LIMIT OR NOT IF THE SAME WAS FALLING WITHIN THE PRESCRIBED LIMIT OF MUN ICIPALITY WHETHER ACQUISITION OF SUCH LAND WAS COMPULSORILY BY THE STATE GOVERNMENT. 4. WE HAVE HEARD THE RIVAL CONTENTIONS, AND GONE TH ROUGH THE ORDER OF THE AUTHORITIES BELOW. WE HAVE GIVEN THOUGHTFUL CONSID ERATION TO SUBMISSIONS OF THE RESPECTIVE PARTIES. THERE IS NO DISPUTE WITH REGAR D TO THE FACT THAT ASSET WHICH WAS 4 ITA NOS. 191 & 192/JP/2017 SHRI PREETAM L/H OF SHRI DAYARAM, ALWAR. & SHRI LA XMI NARAYAN, ALWAR. TRANSFERRED AS PER THE ASSESSEE IF IT WAS AN AGRICU LTURAL LAND WOULD NOT FALL WITHIN THE DEFINITION OF THE CAPITAL ASSETS IN TERMS OF SECTIO N 2(14) OF THE ACT. SECONDLY, IF THE LAND WAS COMPULSORILY ACQUIRED BY THE STATE GOVERNM ENT, THEREFORE, EXEMPTION U/S 10(37) WOULD BE AVAILABLE TO THE ASSESSEE. THERE I S NO EVIDENCE AVAILABLE ON THE RECORD FROM BOTH THE PARTIES TO SUPPORT WHETHER THE LAND IS A CAPITAL ASSET OR NOT AND WHETHER THE LAND IS AN AGRICULTURAL LAND AS PER THE PROVISION OF THE INCOME-TAX ACT OR NOT. THE ASSESSEE HAD NOT APPEARED BEFORE T HE AO AND DID NOT FILE THE RELEVANT DOCUMENTS. UNDER THESE FACTS WE DEEM IT P ROPER AND IN THE INTEREST OF JUSTICE TO RESTORE THIS ISSUE TO THE FILE OF THE AS SESSING OFFICER FOR DECISION AFRESH. THE ASSESSING OFFICER IS DIRECTED TO VERIFY THE CLA IM OF THE ASSESSEE WHETHER LAND WAS AN AGRICULTURAL LAND AT THE TIME ACQUISITION/TR ANSFER AND IF NOT WHETHER THE ASSESSEE IS ENTITLED FOR EXEMPTION U/S 10(37) OF TH E ACT IN CASE THE ACQUISITION WAS A COMPULSORY ACQUISITION BY THE STATE GOVERNMENT. TH E ASSESSING OFFICER WOULD MAKE ENQUIRY FROM THE CONCERNED REVENUE OFFICIALS AND PR OVIDE OPPORTUNITY TO THE ASSESEE FOR PLACING SUPPORTING EVIDENCE ON RECORD. GROUND NO. 1(A) TO (D), THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 5. GROUND NO. 2 IS GENERAL IN NATURE AND NEED NO SE PARATE ADJUDICATION. 6. GROUND NO. 3, PRAYER FOR COST NO ARGUMENT IS MAD E NOR ANY MATERIAL PLACED BY THE ASSESSEE IN SUPPORT OF SUCH CLAIM. THEREFOR E, THIS GROUND IS DISMISSED. 7. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY A LLOWED FOR STATISTICAL PURPOSES. 8. NOW, WE TAKE UP ITA NO. 192/JP/2017, PERTAINING TO THE ASSESSMENT YEAR 2012-13. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF A PPEAL. 5 ITA NOS. 191 & 192/JP/2017 SHRI PREETAM L/H OF SHRI DAYARAM, ALWAR. & SHRI LA XMI NARAYAN, ALWAR. 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE ORDER OF THE AO IN ASSESSING THE INCOME FROM LONG TERM CAPIT AL GAIN ON SALE OF AGRICULTURAL LAND AT VILLAGE KAROLI ACQUIRED BY THE GOVERNMENT UNDER THE LAND ACQUISITION ACT, 1894 AT RS. 1,33,79,866/- BY: (A) IGNORING THAT THE CAPITAL GAIN ON SUCH ACQUISITION IS EXEMPT U/S 10(37) OF THE ACT AND ASSESSEE HAS FULFILLED ALL TH E CONDITIONS FOR CLAIMING SUCH EXEMPTION FOR WHICH EVIDENCE WAS AVAI LABLE BEFORE HIM, (B) IGNORING THAT THE AGRICULTURAL LAND ACQUIRED IS NOT A CAPITAL ASSET BEING SITUATED MORE THAN 8 KMS FROM THE MUNICIPAL L IMITS OF DISTRICTS ALWAR AND THUS NOT LIABLE TO TAX UNDER TH E INCOME TAX ACT, 1961 AND (C) IGNORING THAT ASSESSEE HAS DECLARED THE INCOME UNDE R THE HEAD LONG TERM CAPITAL GAIN AFTER CLAIMING EXEMPTION U /S 54 UNDER MISCONCEPTION. 2. THE ASSESSEE CRAVES TO ALTER, AMEND AND MODIFY ANY OF THE GROUNDS OF APPEAL. 3. NECESSARY COST BE ALLOWED TO THE ASSESSEE. 9. BOTH THE RESPECTIVE REPRESENTATIVES OF THE PARTI ES HAVE ADOPTED THE SAME ARGUMENT AS WERE ADDRESSED IN ITA NO. 191/JP/2017 . THE FACTS ARE IDENTICAL IN THIS APPEAL, THERE IS NO CHANGE INTO FACTS AND CIRC UMSTANCES ARE POINTED OUT BY THE REVENUE. THEREFORE, TAKING A CONSISTENT VIEW, OUR FINDING IN ITA NO. 191/JP/2017 IN PARA 4 AS REPRODUCED AS UNDER:- 4. WE HAVE HEARD THE RIVAL CONTENTIONS, AND GONE THROU GH THE ORDER OF THE AUTHORITIES BELOW. WE HAVE GIVEN THOUGHTFUL CO NSIDERATION TO SUBMISSIONS OF THE RESPECTIVE PARTIES. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT ASSET WHICH WAS TRANSFERRED AS PER THE ASSESSEE IF IT WAS AN AGRICULTURAL LAND WOULD NOT FALL WITHIN THE DEFINITION OF THE CAPITAL ASSETS IN TERMS OF SECTION 2(14) OF THE ACT . SECONDLY, IF THE LAND WAS COMPULSORILY ACQUIRED BY THE STATE GOVERNM ENT, THEREFORE, EXEMPTION U/S 10(37) WOULD BE AVAILABLE TO THE ASSE SSEE. THERE IS NO EVIDENCE AVAILABLE ON THE RECORD FROM BOTH THE PART IES TO SUPPORT WHETHER THE LAND IS A CAPITAL ASSET OR NOT AND WHET HER THE LAND IS AN AGRICULTURAL LAND AS PER THE PROVISION OF THE INCOM E-TAX ACT OR NOT. 6 ITA NOS. 191 & 192/JP/2017 SHRI PREETAM L/H OF SHRI DAYARAM, ALWAR. & SHRI LA XMI NARAYAN, ALWAR. THE ASSESSEE HAD NOT APPEARED BEFORE THE AO AND DID NOT FILE THE RELEVANT DOCUMENTS. UNDER THESE FACTS WE DEEM IT P ROPER AND IN THE INTEREST OF JUSTICE TO RESTORE THIS ISSUE TO THE FI LE OF THE ASSESSING OFFICER FOR DECISION AFRESH. THE ASSESSING OFFICER IS DIRECTED TO VERIFY THE CLAIM OF THE ASSESSEE WHETHER LAND WAS AN AGRIC ULTURAL LAND AT THE TIME ACQUISITION/TRANSFER AND IF NOT WHETHER THE AS SESSEE IS ENTITLED FOR EXEMPTION U/S 10(37) OF THE ACT IN CASE THE ACQUISI TION WAS A COMPULSORY ACQUISITION BY THE STATE GOVERNMENT. TH E ASSESSING OFFICER WOULD MAKE ENQUIRY FROM THE CONCERNED REVEN UE OFFICIALS AND PROVIDE OPPORTUNITY TO THE ASSESEE FOR PLACING SUPP ORTING EVIDENCE ON RECORD. GROUND NO. 1(A) TO D, THE ASSESSEES APPEA L IS ALLOWED FOR STATISTICAL PURPOSE. THE ABOVE FINDING WOULD APPLY TO THIS APPEAL AS WEL L. THE AO WOULD DECIDE THE ISSUE ACCORDINGLY. 10. GROUND NO. 2 IS ALSO GENERAL IN NATURE AND NEED S NO SEPARATE ADJUDICATION. 11. GROUND NO. 3 IS A PRAYER FOR COST; NO ARGUMENT IS MADE NOR PLACED ANY MATERIAL IN SUPPORT OF THIS CLAIM. THEREFORE, THIS GROUND OF THE ASSESSEES APPEAL IS DISMISSED. 12. IN THE RESULT, APPEALS OF THE ASSESSEE ARE PART LY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON WEDNESDAY, THE 3RD DAY OF MAY 2017. SD/- SD/- FOE FLAG ;KNO ( DQY HKKJR ) (VIKRAM SINGH YADAV) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 03/05/2017. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 7 ITA NOS. 191 & 192/JP/2017 SHRI PREETAM L/H OF SHRI DAYARAM, ALWAR. & SHRI LA XMI NARAYAN, ALWAR. 1. THE APPELLANT- SHRI PREETAM L/H OF SH. DAYA RAM , VILLAGE-KAMALPUR, TAPUKARA, TIJARA, ALWAR & LAXMI NARAYAN C/O KALANI & CO.CA, ALWAR. 2. THE RESPONDENT-THE ITO, WARD- BHIWADI, ALWAR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 191 & 192/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR