Smt Narayanamma , Bangalore V. The Income Tax Officer Ward-1 , Kolar

ITA 2162/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7170 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 10-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A RAMESH KUMAR
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Opportunity of being heard; Fair market value
• Section: 50C; 2(14); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO . 2162 /BANG/201 8 ASSESSMENT YEAR : 20 08 - 09 SMT. NARAYANAMMA, PLOT NO. G-3, UTTARAHALLI CIRCLE, BANGALORE 560 061. PAN: ABXPN2559D VS. THE INCOME TAX OFFICER, WARD 1, KOLAR. APPELLANT RESPONDENT APPELLANT BY : SHRI T. SRINIVASA, CA RESPONDENT BY : SHRI A. RAMESH KUMAR, JCIT (DR) DATE OF HEARING : 1 6 .01.2019 DATE OF PRONOUNCEMENT : 18 . 01 .201 9 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIREC TED AGAINST THE ORDER OF LD. CIT(A)-3, BANGALORE DATED 10.05.2018FOR ASSESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE IMPUGNED ORDER PASSED BY THE LEARNED COMMISS IONER OF INCOME TAX (APPEALS)- 3, BENGALURU IS HIGHLY UNJUST , ARBITRARY AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED COMMISSIONER IS NOT JUSTIFIED TO HAV E HELD THAT THE LEARNED ASSESSING OFFICER HAD JURISDICTION PASS THE ASSESSMENT ORDER U/S 144 R.W.S147 DATED 19-03-2014 DESPITE THE APPEL LANT HAVING SHIFTED HER PERMANENT PLACE OF RESIDENCE TO BENGALU RU AND HAVING FILED HER RETURNS OF INCOME UNDER THE JURISDICTIONA L ASSESSING OFFICER AND WHICH WAS WELL WITHIN THE KNOWLEDGE OF THE DEPA RTMENT. 3. THE LEARNED COMMISSIONER OF INCOME TAX OUGHT TO HAVE HELD THAT BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED ASSESSING OFFICER DID NOT HAVE JURISDICTION TO PASS THE ASSESSMENT ORDER DATED: 19-03-2017 AND OUGHT TO HAVE REFERRED THE MATTER TO THE JURISDICTIONAL ASSESSING OFFICER. 4. THE LEARNED COMMISSIONER OF INCOME TAX IS NOT JU STIFIED IN NOT PROVIDING ADEQUATE OPPORTUNITY TO THE APPELLATE TO ESTABLISH THAT THE LAND SOLD WAS ONLY AN AGRICULTURAL LAND LOCATED BEY OND 8KMS FROM THE NOTIFIED MUNICIPAL LIMITS OF BENGALURU DISTRICT AND ACCORDINGLY WAS NOT A CAPITAL ASSET IN TERMS OF CBDT NOTIFICATI ON NO: NO. 9447 DATED:16-1-1994 ITA NO. 2162/BANG/2018 PAGE 2 OF 4 5. THE COMMISSIONER OUGHT TO HAVE BEEN GUIDED BY TH E BINDING DECISION OF THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CIT VS N. MADHUKUMAR HUF AND SRI. NARENDRA SINGH VS. DCIT SANGUR (HC- P&H) FOR THE ABOVE GROUNDS AND SUCH OTHER GROUNDS THAT M AY BE URGED AT THE TIME OF HEARING, WITH KIND PERMISSION, THE APPE LLANT PRAYS THAT THE HON'BLE TRIBUNAL MAY KINDLY BE PLEASED TO ALLOW THE APPEAL IN THE INTEREST OF JUSTICE. 3. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT IT I S STATED BY CIT(A) IN PARA 5.2 OF HIS ORDER THAT ASSESSEE HAS NOT BROUGHT ANYTHING ON RECORD TO SHOW THAT THE IMMOVABLE PROPERTY SOLD BY HER WOULD NOT FALL W ITHIN THE SCOPE OF SECTION 2(14) AND IT SHOULD NOT TO BE TREATED AS A CAPITAL ASSET. HE SUBMITTED THAT IN FACT, THE EVIDENCES WERE PRODUCED BEFORE CIT (A) IN THIS REGARD THAT THE LAND SOLD BY THE ASSESSEE IS AGRICULTURAL LAND LOCATED B EYOND 8 KMS. FROM THE NOTIFIED MUNICIPAL LIMITS OF BENGALURU DISTRICT BUT THE SAME WAS NOT CONSIDERED BY CIT (A) AND HENCE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT (A) FOR FRESH DECISION AFTER CONSIDERIN G THE SAME. HE SUBMITTED A COPY OF SUBMISSIONS FILED BEFORE CIT (A). HE ALSO S UBMITTED THAT EVEN IF IT IS FOUND THAT THE ASSET IN QUESTION IS NOT AN AGRICULT URAL LAND AND THEREFORE, IT IS A CAPITAL ASSET, THEN ALSO, THE MATTER SHOULD BE RE STORED BACK TO THE FILE OF CIT(A) WITH THE DIRECTION TO OBTAIN REPORT FROM DVO U/S. 50C(2) OF IT ACT. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A) . 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, I REPRODUCE PARA 5.2 FROM THE ORDER OF CIT(A) FOR READY REFERENCE. 5.2 THE SUBMISSIONS OF THE APPELLANT HAVE DULY BEEN CONSIDERED. AS REGARDS FIRST ARGUMENT OF THE APPELLANT, THE APPELL ANT HAS NOT BROUGHT ANYTHING ON RECORD TO SHOW THAT THE IMMOVABLE PROPE RTY SOLD BY HER WOULD NOT FALL WITHIN THE SCOPE OF 2(14), FOR NOT T O BE TREATED AS A CAPITAL ASSET. AS REGARDS THE SECOND ARGUMENT OF TH E APPELLANT THAT PURCHASE VALUE OF THE PROPERTY SHOULD ALSO HAVE BEE N ADOPTED AS PER GUIDANCE RATE, THE SAME IS ALSO DEVOID OF ANY MERIT . THERE IS NO PROVISION IN LAW TO DEEM THE PURCHASE VALUE OF THE PROPERTY WHILE COMPUTING CAPITAL GAINS. AS REGARDS THE LAST ARGUME NT, THE ONUS WAS ON THE APPELLANT TO SHOW THAT SHE SATISFIED THE CON DITIONS LAID IN SECTION 50C (2) OF THE ACT, IF SHE WANTED THAT THE MATTER SHOULD HAVE BEEN REFERRED TO THE VALUATION OFFICER. THIS WAS NE VER THE CLAIM OF THE APPELLANT THAT THE STAMP VALUATION AUTHORITY HAD AD OPTED A VALUE OF THE PROPERTY WHICH EXCEEDED THE FAIR MARKET VALUE A ND THAT THE APPELLANT HAD CHALLENGED IT BEFORE SUCH AUTHORITY. JN VIEW OF ABOVE, ALL THESE ARGUMENTS OF THE APPELLANT NEED TO BE REJ ECTED AND AN ITA NO. 2162/BANG/2018 PAGE 3 OF 4 ADDITION MADE BY THE AO IS UPHELD. THE GROUNDS OF A PPEAL 6 TO 8 OF THE APPELLANT ARE DISMISSED. 5. FROM THE ABOVE PARA REPRODUCED FROM THE ORDER OF CIT (A), IT IS SEEN THAT WHILE DECIDING THIS ISSUE AS TO WHETHER THE ASSET I N QUESTION IS AGRICULTURAL LAND OR NOT AND AS A CONSEQUENCE, WHETHER IT IS A C APITAL ASSET OR NOT, IT IS STATED BY CIT (A) THAT NECESSARY EVIDENCES WERE NOT FILED BEFORE HIM BUT BEFORE THE TRIBUNAL, THE ASSESSEE HAS FILED COPY OF SUBMISSIONS FILED BEFORE CIT (A) IN THIS REGARD. AS PER THE SAME, IT IS SEEN THAT ALTHOUGH THIS CLAIM IS MADE THEREIN THAT THE IMPUGNED LAND IS AN AGRICULTU RAL LAND SITUATED BEYOND 8 KMS. FROM THE JURISDICTION OF A MUNICIPALITY AND IT DOES NOT HAVE A POPULATION EXCEEDING 10 THOUSAND BUT NO EVIDENCE IS ENCLOSED IN SUPPORT OF THIS CLAIM. BUT I FEEL THAT THE MATTER HAS TO GO BA CK AT LEAST FOR OBTAINING REPORT OF DVO U/S 50C (2). HENCE, I FEEL THAT IN TH E INTEREST OF JUSTICE, THIS ASPECT ALSO MAY BE RESTORED BACK TO CIT (A) FOR A F RESH DECISION. HENCE, I SET ASIDE THE ORDER OF CIT (A) AND RESTORE BOTH ASP ECTS OF THE MATTER BACK TO THE FILE OF CIT (A) FOR FRESH DECISION. IF THE ASSE SSEE BRINGS ANY EVIDENCE IN SUPPORT OF THIS CLAIM THAT THE IMPUGNED LAND IS NOT A CAPITAL ASSET, THEN IT SHOULD BE EXAMINED AND THIS ASPECT BE DECIDED AFRES H AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IF IT IS FOUND THAT IT IS NOT A CAPITAL ASSET THAN NOTHING FURTHER REMAINS TO BE DECIDED BUT IF THE ASSESSEE FAILS ON THIS ASPECT THAN A REPORT FROM DV O SHOULD BE OBTAINED U/S. 50C(2) OF IT ACT TO DETERMINE THE QUANTUM OF C APITAL GAIN. REMAND REPORT FROM AO MAY BE OBTAINED IF REQUIRED. I ORDER ACCORDINGLY. THE ORDER OF CIT (A) IS SET ASIDE AND THE MATTER IS RESTORED BACK TO HIS FILE FOR FRESH DECISION IN THE LIGHT OF ABOVE DISCUSSION AFTER PRO VIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 18 TH JANUARY, 2019. /MS/ ITA NO. 2162/BANG/2018 PAGE 4 OF 4 COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.