VIMLESH DEVI, MEERUT V. ITO, WARD- 2(4), MEERUT

ITA 2286/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3273 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 03-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJIV MAHAJAN
• Keywords: Capital asset; Opportunity of being heard; Fair market value; Capital Gains

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC B ENCH, NEW DELHI [THROUGH VIDEO CONFERENCE] BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 2286/DEL/2018 [ASSESSMENT YEAR: 2009-10] SMT VIMLESH DEVI VS. THE I.T.O GALI NO. 4, KANKERKHERA WARD 2(4) MEERUT, UTTAR PRADESH NEW DELHI PAN: AIRPD 0703 E [APPELLANT] [RESPONDENT] DATE OF HEARING : 20.10.2021 DATE OF PRONOUNCEMENT : 20.10.2021 ASSESSEE BY : SHRI RAMIT KAKKAR, CA REVENUE BY : SHRI SANJIV MAHAJAN, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS], MEERUT DATED 29.01.2018 PERTAINING TO ASSESSMENT YEAR 2009-10. 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE AS SESSEE IS THAT THE LD. CIT(A) ERRED IN SUSTAINING THE VIEW OF THE ASSESSING OFFICER THAT THE IMPUGNED PROPERTY IS A CAPITAL ASSET. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT A S PER TEP INFORMATION, THE ASSESSING OFFICER CAME TO KNOW THA T THE ASSESSEE HAS SOLD A CERTAIN PIECE OF LAND SITUATED AT KHATAULI D ISTRICT, MUZAFFARNAGAR FOR A CONSIDERATION OF RS. 11,31,540/ ON WHICH STA MP DUTY VALUE WAS DETERMINED AT RS. 18,85,900/. WHEN THIS INFORMATIO N WAS CONFRONTED TO THE ASSESSEE ASKING HER TO EXPLAIN AS TO WHY CAP ITAL GAINS TAX LIABILITY SHOULD NOT BE DETERMINED ON THE SALE OF L AND ALONG WITH CONSTRUCTION, THE ASSESSEE, IN HER REPLY, STRONGLY OBJECTED CLAIMING THAT THERE WAS NO CONSTRUCTION ON THE SAID PIECE OF LAND. 4. THE ASSESSING OFFICER CONFRONTED THE VALUATION R EPORT BY THE DVO WHO HAS DETERMINED THE FMV OF THE IMPUGNED LAND AT RS.18,85,900/ ON WHICH STAMP DUTY PAID IS RS. 94,300/. 5. BEING NOT SATISFIED WITH THIS REPLY OF THE ASSES SEE, THE ASSESSING OFFICER COMPUTED LONG TERM CAPITAL GAINS ON THE SAL E OF THE SAID PIECE OF LAND AT RS.17,71,850/-. 3 6. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) AND VEHEMENTLY CONTENDED THAT THE SAID PIECE OF LAND IS SITUATED BEYOND 8 KMS FROM THE MUNICIPAL CORPORATION LIMITS AND THERE FORE, DOES NOT COME WITHIN THE PURVIEW OF THE DEFINITION OF CAPIT AL ASSETS AND BEING AN AGRICULTURAL LAND, IS NOT SUBJECTED TO CAPITAL G AINS TAX. 7. THE LD. CIT(A) CALLED FOR REMAND REPORT DIRECTIN G THE ASSESSING OFFICER TO CONDUCT DETAILED ENQUIRY TO VERIFY WHETH ER THE IMPUGNED PROPERTY WAS BEYOND 8 KMS OF MUNICIPAL LIMITS. 8. A DETAILED ENQUIRY WAS CONDUCTED BY THE ASSESSIN G OFFICER ON THE DIRECTIONS OF THE LD. CIT(A) AND REPORTED THAT THE OFFICE OF THE MUNICIPAL CORPORATION PARISHAD HAS STATED THAT THE IMPUGNED PROPERTY IS LOCATED IN PARGANA KHATAULI BUDHANA ROAD, KHATAU LI AND WAS ACTUALLY ON 500 METRES FROM THE MUNICIPAL LIMIT. THE LD. CIT (A), REFERRING TO THE DOCUMENTS RECEIVED FROM THE OFFICE OF NAGAR PAL IKA PARISHAD, KHATAULI CAME TO THE CONCLUSION THAT THE FINDINGS O F THE ASSESSING OFFICER REMAINED UNCONTROVERTED AND THEREFORE, NO I NTERFERENCE IS CALLED FOR IN THE ORDER OF THE ASSESSING OFFICER. 4 9. BEFORE ME, THE LD COUNSEL FOR THE ASSESSEE VEHEM ENTLY CONTENDED THAT THE ASSESSING OFFICER AND THE LD. CIT(A) HAVE PROCEEDED IN THE WRONG DIRECTION IN AS MUCH AS THEY HAVE CONSIDERED THE DISTANCE FROM OUTER LIMIT OF PARGANA KHATAULI, BUDHANA ROAD, KHAT AULI. IT IS THE SAY OF THE LD COUNSEL THAT BOTH THE PARTIES WHO HAVE CO NSIDERED THE DISTANCE FROM MUNICIPAL CORPORATION LIMIT OF MUZAFF ARNAGAR FROM WHERE THE IMPUGNED PIECE OF LAND IS SITUATED IS MORE THAN 8 KM. 10. PER CONTRA, THE LD. DR STRONGLY SUPPORTED THE F INDINGS OF THE ASSESSING OFFICER/CITA. 11. I HAVE CAREFULLY CONSIDERED THE ORDERS OF THE A UTHORITIES BELOW. I FIND THAT BEFORE THE ASSESSING OFFICER, THE ASSESSE E HAD A TAKEN A DIFFERENT STAND AND BEFORE THE LD. CIT(A), THE ASSE SSEE HAS TAKEN ANOTHER STAND. IT IS TRUE THAT THE LD. CIT(A) HAD C ALLED FOR A REMAND REPORT AND ON THE DIRECTIONS OF THE LD. CIT(A), THE ASSESSING OFFICER DID MAKE SOME ENQUIRY. 12. HOWEVER, I FIND THAT THE LETTER STATING THAT TH E IMPUGNED PIECE OF LAND IS SITUATED 500 MTRS IS FROM THE OFFICE OF NAG AR PALIKA PARISHAD KHATAULI AND THE CONTENTION OF THE ASSESSEE IS THAT THE DISTANCE SHOULD 5 HAVE BEEN CONSIDERED FROM THE MUNICIPAL LIMITS OF M UZAFFARNAGAR WHICH HAS BEEN NOTIFIED BY THE GOVERNMENT. SINCE TH E FACTS ARE NOT COMING OUT PROPERLY FROM THE ORDERS OF THE AUTHORIT IES BELOW, I DEEM IT FIT TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSI NG OFFICER. THE ASSESSEE IS DIRECTED TO FURNISH NECESSARY DOCUMENTS/ EVIDENC ES TO DEMONSTRATE THAT THE SAID PIECE OF LAND IS ACTUALLY SITUATED BE YOND 8 KILOMETRES FROM THE MUNICIPAL CORPORATION LIMIT AND THE ASSESS ING OFFICER IS DIRECTED TO CONSIDER THE EVIDENCES AND DECIDE THE I SSUE AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 2286/DEL/2018 IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT IN THE PR ESENCE OF BOTH THE REPRESENTATIVES ON 20.10.2021. SD/- [N.K. BILLAIYA] ACCOUNTANT MEMBER DATED: 20 TH OCTOBER, 2021. VL/ COPY FORWARDED TO: 6 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER