Smt. Meera Devi Kedia, Kolkata V. ITO, Ward - 32(3), Kolkata, Kolkata

ITA 20/KOL/2010

• Counselvise Citation: [2013] 119 COUNSELVISE.COM (IT) 2927 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2013
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 1997-1998
• Appeal Filed On: 05-01-2010
• Court: TRIBUNAL
• Assessee Lawyers: SUJAY SEN
• Keywords: Capital asset; Principle of natural justice; Earning of tax free income; Additional evidence
• Section: 143(3); 2(14)

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE . . . . . . . . , ! /AND ' #!' , ) [BEFORE SHRI P. K. BANSAL, AM & SHRI MAHAVIR SINGH, JM] !$ !$ !$ !$ / I.T.A NO. 20/KOL/2010 #% &' #% &' #% &' #% &'/ // / ASSESSMENT YEAR: 1997-98 SMT. MEERA DEVI KEDIA, VS. INCOME-TAX OFFICER, WD-32(3), KOLKATA (PAN:AFLPK4140B) ()* /APPELLANT ) (+,)*/ RESPONDENT ) DATE OF HEARING: 18.03.2013 DATE OF PRONOUNCEMENT: 18.03.2013 FOR THE APPELLANT: SHRI SUJAY SEN, ADVOCATE FOR THE RESPONDENT: SHRI SANJAY MUKHERJEE, SR. DR - / ORDER PER BENCH: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XIX, KOLKATA IN APPEAL NO. 382/CIT(A)-XIX/ITO,WD-32(3)KOL/08-09 DATED 25.08.20 09. ASSESSMENT WAS FRAMED BY ITO, WARD-32(3), KOLKATA U/S. 254 READ WITH SECTION 143( 3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 1997- 98 VIDE HIS ORDER DATED 26.12.2008. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) IN CONFIRMING THE ACTION OF AO IN ASSESSING THE SURPLUS EARNED ON SALE OF AGICULTURAL LAND AS LONG TERM CAPITAL GAINS (LTCG). THE ASSESSEE TO CHALLENGE TH E SAME HAS RAISED FOLLOWING TWO GROUNDS: 1. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANES OF THE CASE THE LD. CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN CONFIRMING THE A.OS ACTION IN ASSESSING THE PROFIT OF RS. 8,72,457/- EARNED ON SALE OF AGRICULTURAL LAND SITU ATED IN A VILLAGE AS LONG TERM CAPITAL GAIN AND CHARGING IT TO TAX IN THE ORDER U/S 254/14 3(3) DT. 26.12.2008 WITHOUT CONSIDERING THE RECORDS AND THE EVIDENCES FILED BEF ORE HIM THAT THE SAID AGRICULTURAL LAND IS NOT A CAPITAL ASSET WITHIN THE MEANING OF SECTIO N 2(14) OF THE ACT AND HENCE THE PROFIT ON ITS SALE BEING AN EXEMPT INCOME CANNOT BE SUBJEC TED TO CAPITAL GAIN TAX IN VIEW OF THE NON- APPLICABILITY OF THE PROVISION OF SECTION 2(14 )(II)(A) & (B). BOTH THE ACTIONS OF THE A.O AND THE LD. CIT(A) WERE WHOLLY UNREASONABLE, UN CALLED FOR AND BAD IN LAW. 2. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN CONFIRMING THE A.OS ACTION IN RE-ASSESSING THE SAD PROFIT OF RS. 8,72,457/- UNDER THE HEAD LONG TERM CAPITAL GAIN BY SIMPLY IGNORING AND TREATING THE SAID EVIDENCES AS AN ADDITIONAL EVIDENCE U/S 46A OF THE ACT WITHOUT VERIFYING IT EITHER HIMSELF OR THROUGH THE A.O FROM THE POINT OF VIEW O F FAIR AND NATURAL JUSTICE. BOTH THE ACTIONS OF THE A.O AND THE LD. CIT(A) WERE WHOLLY U NREASONABLE, UNCALLED FOR AND BAD IN LAW. 2 ITA NO.20/K/2010 SMT. MEERA DEVI KEDIA 1997-98 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE THAT ASS ESSMENT FOR AY 1997-98 WAS COMPLETED BY AO U/S. 143(3) OF THE ACT VIDE ORDER DATED 28.03.20 00 AND AGAINST THIS ORDER APPEAL WAS FILED BEFORE CIT(A) AND CIT(A) DISPOSED OF THE APPEAL VID E ORDER DATED 09.01.2006. FURTHER, APPEAL FILED BEFORE ITAT ON 22.03.2006 AND TRIBUNAL RESTOR ED THE ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION IN ITA NO.599/KOL/2006 DATED 10.05.200 7. AS AGAINST THE DIRECTION OF THE TRIBUNAL, AO COMPLETED ASSESSMENT U/S. 254/143(3) O F THE ACT VIDE ORDER DATED 26.12.2008 WHEREBY HE ASSESSED THE SURPLUS EARNED ON ACCOUNT O F SALE OF AGRICULTURAL LAND AS LTCG, ACCORDING TO ASSESSEE. ACCORDING TO AO, THE LAND SO LD BY ASSESSEE BELONGS TO VILLAGE BIJWASAN TEHSIL, MEHRAULI AND NOT THE VILLAGE DERA MANDI FOR WHICH THE ASSESSEE HAS PROCURED A CERTIFICATE OF SURVEY OF INDIA DATED 24.01.2008. EV EN, ACCORDING TO AO, THIS CERTIFICATE DOES NOT CERTIFY THAT THE LAND SOLD IS LOCATED AT A DISTANCE NOT BEING MORE THAN 8 KMS. FROM THE LOCAL MUNICIPAL LIMITS AND ANY MUNICIPALITY OR CANTONMENT BOARD. EVEN THE SALE DEED IS DATED 11.11.1996 AND IT DOES NOT STATE THE LOCAL LIMITS O F ANY MUNICIPALITY OR CANTONMENT BOARD. THE ASSESSEE ALSO FILED A CERTIFICATE FROM DIRECTOR OF CENSUS DATED 31.05.2007 WHICH CERTIFIES THE POPULATION OF VILLAGE DERA MUNDI AT 3384 OR 3355 BU T FINALLY, AO IN RESPECT TO THE ABOVE FACTS AND EVIDENCE NOTED AS UNDER: THE ASSESSEE FAILED TO PROVE THAT BOTH THE CONDITI ONS U/S. 2(14) OF THE ACT THIS ISSUE THE EARLIER ORDER WAS SET ASIDE. DESPITE SECOND CHANCE BEING GIVEN THE ASSESSEE FAILED TO ESTABLISH THAT THE LAND SOLD QUALIFIES AS FOR EXEMP TION AND IS NOT A CAPITAL ASSET. IN VIEW OF THE SAME THE CAPITAL GAINS FROM THE SALE OF THE SAID LAND IS ASSESSED AS LTC GAINS. AGGRIEVED, ASSESSEE FURTHER WENT IN APPEAL BEFORE C IT(A), WHO ALSO CONFIRMED THE ACTION OF AO VIDE PARA 4.2 OF HIS ORDER AS UNDER: 4.2. I HAVE CONSIDERED THE SUBMLSSION OF THE APPEL LANT, PERUSED THE ORDER OF THE HONBLE ITAT DT. 10.5.2007 AND THE ORDER OF THE AO PASSED U /S. 254/143(3) OF THE I.T. ACT. THE HONBLE ITAT HAS PASSED THE ORDER ON 10.5.2007 WHER EIN THE ISSUE INVOLVED REGARDING CAPITAL GAIN WAS RESTORED TO THE FIIE OF THE AO. DU RING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDING, THE GAIN ON SALE OF LAND WAS BROUGHT TO TAX BECAUSE THE ASSESSEE HAS FAILED TO PROVE THAT THE LAND SOLD WAS AN AGRICULTURAL LAN D AND THE APPELLANT HAS SATISFIED THE CONDITIONS MENTLONED IN ECTION 2(14)(II) OF THE I.T . ACT. THE ORIGINAL ORDER OF THE AO WAS UPHELD BY THE CIT(A), BUT THE HONBLE ITAT HAS REST ORED BACK THE MATTER TO THE FILE OF AO SO THAT THE APPELLANT COULD ADDUCE THE EVLDENCE TO SUPPORT HER CLAIM THAT THE LAND SOLD WAS AN AGRICULTURAL LAND. HOWEVER, DURING THE COURS E OF PROCEEDINGS U/S. 254/143(3), THE APPELLANT HAS FAILED TO ADDUCE ANY EVLDENCE TO SUPP ORT HER CLAIM. THE ORDER U/S. 254/143(3) WAS PASSED BY THE AO ON 26.12.2008, I.E. , MORE THAN ONE YEAR OF THE ORDER PASSED BY THE HONBLE ITAT. EVEN, IN MORE THAN A YE AR, THE APPELLANT COULD NOT PROCURE THE EVIDENCES TO SUPPORT HER CLAIM AND NOTHING WAS PRODUCED BEFORE THE AO EXCEPT THE SUBMISSION AND DOCUMENTS FLLED DURLNG THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS. FROM THE DOCUMENTS FLLED BY THE APPELLANT IT IS APP ARENT THAT THE APPELLANT HAS TAKEN THE STEPS TO OBTAIN CERTAIN DOCUMENTS TO SUPPORT HER CL AIM AFTER FILING THE PRESENT APPEAL ON 5.2.2009. DURING THE COURSE OF APPELLATE PROCEEDING S, SEVERAL NOTICES WERE ISSUED TO THE APPELLANT AND EVERY TIME, ADJOURNMENT WAS SOUGHT FO R THE REASON THAT THE REQUIRED CERTIFICATES FROM THE GOVERNMENT OFFICES AT NEW DEL HI WERE NOT RECEIVED BY HER. IT SHOWS THAT THE APPELLANT WAS NOT SINCERE IN HER EFFORTS A ND THE DOCUMENTS WERE RECEIVED BY HER 3 ITA NO.20/K/2010 SMT. MEERA DEVI KEDIA 1997-98 IN THE MONTH OF APRIL AND JUNE, 2009. IN TERMS OF P ROVISIONS OF RULE 46A OF THE INCOME TAX RULES, 1962, THE APPELLANT HAS FAILED TO EXPLAI N THAT SHE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCES BEFORE THE AO. I N VIEW OF ABOV FACTS, I DECLINE TO ADMIT THE ADDITIONAL EVIDENCES AND UPHELD THE VIEW TAKEN BY THE AO IN THE ASSESSMENT ORDER U/S. 254/143(3) OF THE ACT. THE GROUND NO. 1 & 2 ARE DISMISSED. AGGRIEVED, NOW ASSESSEE IS IN APPEAL BEFORE US. 4. BEFORE US, LD. COUNSEL FOR THE ASSESSEE FILED CO PY OF TRIBUNALS ORDER IN THE CASE OF SHRI VINAY KUMAR KEDIA, ITA NO.859/K/2006 FOR AY 1998-99 DATED 21.09.2007 WHEREBY THE ISSUE IS SET ASIDE BY OBSERVING AS UNDER: 3. ON GROUND NOS. 2 & 3 THE LD. A.R. HAS SUBMITTED THAT THE IDENTICAL ISSUE CAME UP BEFORE THIS TRIBUNAL IN THE CASE OF SHRI NAVIN KUMA R KEDIA VS. DCIT, KOLKATA IN ITA NO.1168/KOL/2006 AND THIS TRIBUNAL VIDE ORDER DATED 18.04.2007 HAS RESTORED THE IDENTICAL ISSUE RAISED BY THE ASSESSEE TO THE FILE OF THE A.O. FOR FRESH ADJUDICATION. IT HAS, THEREFORE, BEEN PLEADED BY THE LD. A.R. THAT THE SA ME ISSUE RAISED BY THE ASSESSEE IN THIS CASE SHOULD ALSO BE RESTORED BACK TO THE FILE OF TH E A.O. WE FIND THAT THE FACTS ARE UNDISPUTED AND THE LAND SOLD BY THE ASSESSEE VIDE SALE DEED DATED 11.11.1996 IS IN VILLAGE BIJWASAN, TEHSIL MEHRUALI, WHICH IS TEHSIL OF DELHI. BEFORE US, LD. SR. DR FILED COPY OF NOTIFICATION ISSUED U/S. 2(1A)(C), PROVISO, CLAUSE (II)(B) AND SECTION 2(14)(III)(B): URBANISATION OF AREAS SPECIFIES TH E AREAS FALLING OUTSIDE THE LOCAL LIMITS OF MUNICIPALITY OR CANTONMENT BOARD. HERE, SL. NO. 6 FOR DELHI LIMIT APPLIES AS UNDER: 6. DELHI (UNION TERRITORY) 1. DELHI AREAS UPTO A DISTANCE OF 8 KMS. FROM THE LIMITS OF MUNICIPAL CORPORATION IN ALL DIRECTIO NS. NOW, THE AO SHOULD ASCERTAIN WHETHER THE LAND SOLD BY THE ASSESSEE FALLS WITHIN THE AREA UPTO A DISTANCE OF 8 KMS. FROM THE LIMITS OF MUNICIPAL CO RPORATION OF DELHI IN ALL DIRECTIONS OR NOT. IN CASE, THE LAND FALLS WITHIN THE LIMITS, THEN IT CAN NOT BE TREATED AS SALE OF AGRICULTURAL LAND AND CANNOT BE CLAIMED AS EXEMPT AS PROVIDED IN SECTION 2(14) OF THE ACT, OTHERWISE, THE LAND WILL BE CLAIMED AS EXEMPT. IN VIEW OF THE ABOVE DIRECTIONS, WE SET ASIDE THE ISSUE TO THE FILE OF AO FOR VERIFICATION AND DECIDING AS PER LAW. APPEAL OF ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 18.03.2013 SD/- SD/- . . . . . . . . , ' ' ' ' #!' #!' #!' #!' , (P. K. BANSAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( . . . .) )) ) DATED : 18TH MARCH, 2013 /0 #12 #3 JD.(SR.P.S.) 4 ITA NO.20/K/2010 SMT. MEERA DEVI KEDIA 1997-98 - 4 +##5 65&7- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT SMT. MEERA DEVI KEDIA, C/O, M/S. SALARP URIA, JAJODIA & CO., 7, C. R. AVENUE, KOLKATA-700 072. 2 +,)* / RESPONDENT ITO, WARD-32(3), KOLKATA . 3 . #- ( )/ THE CIT(A), KOLKATA 4. 5. #- / CIT KOLKATA 5 <#= +# / DR, KOLKATA BENCHES, KOLKATA ,5 +#/ TRUE COPY, ->/ BY ORDER, ' !2 /ASSTT. REGISTRAR .