SHREE ROHITASH, ALIGARH V. ITO, Alwar

ITA 257/JPR/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8709 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 05-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA JCIT DHK
• Keywords: Capital asset; Principle of natural justice; Set aside
• Section: 142(1); 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES A, JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; ,OA JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO, JM VK;DJ VIHY LA -@ ITA NO. 257/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2012-13 SHREE ROHITASH, S/O- RUNIYA RAM, VILLAGE- KAMALPUR, TAPUKARA, ALWAR (RAJ). CUKE VS. I.T.O., WARD-BHIWADI, ALWAR. LFKK;H YS[KK LA -@THVKBZVKJ LA-@ PAN/GIR NO.: BFEPR 1063 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI SIDDARTH RANKA (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A.S. NEHRA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 04/04/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 05/04/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD.CIT(A), ALWAR DATED 01/02/2017 FOR THE A.Y. 2012-13 IN THE MATTER OF EX PARTE ORDER PASSED U/S 144 OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). 2. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED FOR THE ADDITION MADE UNDER THE HEAD LONG TERM CAPITAL GAIN IN RESPECT OF LAND COMPULSORY ITA 257/JP/2017_ SHREE ROHITASH VS ITO 2 ACQUIRED BY THE GOVERNMENT AND ELIGIBLE FOR EXEMPTION U/S 10(37) OF THE ACT. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. THE FACTS IN BRIEF ARE THAT THE ASSESSEE MR. ROHITASH, S/O- RUNIA RAM IS AN AGRICULTURIST AND DOING THE FARMING IN HIS VILLAGE KAMALPUR, TEHSIL- TAPUKARA (RAJ) SINCE LONG TIME. THE AGRICULTURAL LAND WHICH IS IN QUESTION WAS ACQUIRED BY RIICO UNDER COMPULSORY ACQUISITION AND ASSESSEE RECEIVED COMPENSATION OF RS. 60,65,695.00 IN THE YEAR UNDER REFERENCE. THE SAID AGRICULTURAL LAND IS ALLEGED TO BE AT A DISTANCE OF MORE THAN 9 KM FROM THE MUNICIPALITY LIMIT THEREFORE, THIS AGRICULTURAL LAND IS NOT COVERED UNDER THE DEFINITION OF CAPITAL ASSETS AS PER INCOME TAX ACT. HOWEVER. THE A.O. HAS FRAMED THE ASSESSMENT BY PASSING EX PARTE ORDER TAKEN THIS COMPENSATION AS LONG-TERM CAPITAL GAIN AND CHARGED TAX @ 20% AS WELL AS INTEREST THEREOF. BY THE IMPUGNED ORDER, THE LD. CIT(A) CONFIRMED THE ACTION OF THE A.O., AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE ITAT. 4. IT WAS ARGUED BY THE LD AR OF THE ASSESSEE THAT BEFORE PASSING THE ASSESSMENT ORDER IN THE INTEREST OF NATURAL JUSTICE, OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE, OTHERWISE THE FACTS AND DOCUMENTS COULD HAVE BEEN PRODUCED BEFORE THE A.O. THEN AND THERE ITSELF AND LITIGATION ITA 257/JP/2017_ SHREE ROHITASH VS ITO 3 COULD HAVE BEEN AVOIDED. OUR ATTENTION WAS INVITED TO THE DETAILED AFFIDAVIT FILED BY THE ASSESSEE TO THE EFFECT THAT NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE. OUR ATTENTION WAS ALSO INVITED TO THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 191/JP/2017 ORDER DATED 03/05/2017 WHEREIN UNDER SIMILAR FACTS AND CIRCUMSTANCES, THE MATTER WAS RESTORED BACK TO THE FILE OF THE A.O. THE LD AR HAS FURTHER DRAWN OUR ATTENTION TO THE ORDER PASSED BY THE A.O. GIVING EFFECT TO THE ABOVE ORDER OF THE TRIBUNAL WHEREIN THE A.O. VIDE ORDER DATED 18/12/2018 HAS ALLOWED ASSESSEES CLAIM. 5. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAD ALSO GONE THROUGH THE AFFIDAVIT SO FILED BY THE ASSESSEE. FROM THE RECORD WE FOUND THAT THE ASSESSEE IS HAVING ANCESTRAL LAND AND DOING FARMING IN HIS VILLAGE KAMALPUR. THE ASSESSEES AGRICULTURAL LAND WAS ACQUIRED BY THE RIICO FOR WHICH COMPENSATION WAS PAID. HOWEVER, WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE AND CONSIDERING THE FACTUAL DETAILS WITH REGARD TO DISTANCE OF THE AGRICULTURAL LAND FROM MUNICIPAL LIMITS, THE A.O. HAS MADE THE ADDITION BY PASSING EX PARTE ORDER. THE ASSESSEE HAS ALSO NOT ITA 257/JP/2017_ SHREE ROHITASH VS ITO 4 RECEIVED ANY ASSESSMENT NOTICES U/S 143(2), 142(1) OF THE ACT ISSUED BY THE A.O. OF WARD BHIWADI, ALWAR (RAJASTHAN). THE ASSESSEE HAD ALSO FILED AN AFFIDAVIT TO THIS EFFECT. IN THE SUBSTANTIAL INTEREST OF JUSTICE, WE SET ASIDE THE EX PARTE ORDER OF THE A.O. AND MATTER IS RESTORED BACK TO HIS FILE FOR DECIDING AFRESH. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE A.O. WITHIN A PERIOD OF 60 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. WE ORDER ACCORDINGLY. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH APRIL, 2019. SD/- SD/- FOT; IKY JKO JES'K LH 'KEKZ (VIJAY PAL RAO) (RAMESH C SHARMA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05 TH APRIL, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHREE ROHITASH, ALWAR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD-BHIWADI, ALWAR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 257/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR