Sh. Kishore Chand Tayalm, Jaitu V. The Dy. Commissioner of Income-tax, Ferozepur

ITA 280/ASR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95032 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 29-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Additional evidence
• Section: 80C; 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, HONBLE JUDICIAL MEMBER AND SH. T.R. MEENA HONBLE ACCOUNTANT MEMBER I.T.A. NO.280(ASR)/2013 ASSESSMENT YEAR: 2008-09 PAN: AAUPT9427A KISHORE CHAND TAYAL, PROP. N. R. ASSOCIATES, BAZA ROAD, JAITU-151202. VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCEL-III, FEROZEPUR. (APPELLANT) (RESPONDENT) APPELLANT BY: NONE. RESPONDENT BY: SH. TARSEM LAL (DR) DATE OF HEARING: 2 7.08.2015 DATE OF PRONOUNCEM ENT: 26.10.2015 ORDER PER A.D. JAIN (JM): THIS IS ASSESSEES APPEAL FOR ASSESSMENT YEAR 200 8-09, TAKING THE FOLLOWING GROUNDS: 1. THAT THE LD. CIT (A) HAS ERRED IN LAW AND ON FA CTS IN CONFIRMING THE ADDITION OF RS.5,60,840/- AS TAXABLE INCOME ON THE SALE OF AGRI CULTURAL LAND SITUATED OUT OF THE NOTIFIED AREA. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN NOT CONSIDERING THE ADDITIONAL EVIDENCE FILED BY THE APPELLANT BEFORE THE LD. CIT( A). 3. IT IS, THEREFORE, PRAYED THAT ADDITION OF RS.5,6 0,840/- MAY KINDLY BE DELETED AND THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BEFORE TH E LD. CIT(A) MAY KINDLY BE CONSIDERED OR ANY OTHER RELIEF AS MAY DEEMED FIT BE ALLOWED. 2. AN APPLICATION FOR ADJOURNMENT HAS BEEN FILED ON BEHALF OF THE ASSESSEE. HOWEVER, WE HAVE REJECTED THE SAME, IN VIEW OF THE FACT THAT THE APPEAL WAS 2. ITA NO.28 0 (ASR)/2013 ASST. YE AR 2008-09 FILED ON 29.04.2013. IT HAS BEEN ADJOURNED ON NUMER OUS OCCASIONS. A SYNOPSIS OF MAIN POINTS TO BE ARGUED AND CASE LAWS RELIED ON HAS BEEN PLACED ON THE FILE ON BEHALF OF THE ASSESSEE AND THIS HAS BEEN TAKEN INTO CONSIDERATION. THE ARGUMENTS OF THE LEARNED DR, WHO HAS STRONGLY S UPPORTED THE IMPUGNED ORDER, HAVE ALSO BEEN TAKEN NOTE OF. 3. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE L EARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.5,60,840/.- ON THE SA LE OF AGRICULTURAL LAND SITUATED OUTSIDE THE NOTIFIED AREA, WITHOUT CONSID ERING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. 4. AS PER THE RECORD, THE A.O NOTICED THAT THE ASSE SSE HAD SHOWN NET PROFIT OF RS.18,87,036/- AS PER THE AUDIT REPORT, WHEREAS NET TAXABLE INCOME WAS SHOWN AT RS.12,36,110/- IN THE RETURN OF INCOME. TH E ASSESSEE EXPLAINED BEFORE THE AO THAT IN THE COMPUTATION OF INCOME, BE SIDES THE CLAIM OF DEDUCTION OF RS.1,0,000/- U/S 80C OF THE IT ACT, PR OFIT OF RS.5,60,840/- ON THE SALE OF AGRICULTURAL LAND HAD ALSO BEEN CLAIMED AS EXEMPT, SINCE THE AGRICULTURAL LAND WAS NOT A CAPITAL ASSET, BUT HAD BEEN KEPT AS STOCK IN TRADE UNDER THE HEAD OF AGRICULTURAL LAND TRADING ACCOUNT . THE A.O ASKED THE ASSESSEE TO EXPLAIN AS TO HOW THE LAND SOLD WAS AGR ICULTURAL LAND, WHEN HE HAD NEVER SHOWN ANY AGRICULTURAL INCOME IN HIS INCOME T AX RETURNS. THE ASSESSEE STATED THAT CARRYING ON AGRICULTURAL OPERATIONS WAS ENTIRELY IMMETARIAL. THE A.O WAS NOT SATISFIED WITH THE ASSESSEES EXPLANATI ON. HE HELD THAT A PIECE OF LAND COULD NOT BE TREATED AS AGRICULTURAL LAND ONLY IF IT WAS BEING USED FOR 3. ITA NO.28 0 (ASR)/2013 ASST. YE AR 2008-09 CULTIVATION, WHEREAS THE ASSESSES LAND HAD ALSO BE EN SOLD TO M/S (FIRST PROMOTERS & DEVELOPERS (P) LTD. DELHI), A COLONIZER . THE A.O HELD THAT THE ASSESSEE WAS ENGAGED IN THE TRADE OF PURCHASE AND S ALE OF LAND, AS WAS APARRENT FROM THE TRADING ACCOUNT FURNISHED BY THE ASSESSE. THE A.O, THEREFORE, TREATED THE PROFIT OF RS.5,60,840/- AS I NCOME LIABLE TO TAX AND ADDED THE SAME TO THE INCOME RETURNED. 5. BEFORE THE LEARNED CIT, INTERALIA, THE ASSESSE F URNISHED A COPY OF KHASRA GIRDAWARI IN SUPPORT OF HIS CONTENTION THAT THE LAN D IN QUESTION WAS AGRICULTURAL LAND AS PER THE REVENUE RECORD. HOWEVE R, THE LEAREND CIT(A), WITHOUT TAKING INTO CONSIDERATION THE SAID DOCUMENT FILED BY THE ASSESSEE, DISMISSED THE CLAIM OF THE ASSESSEE BY OBSERVING TH AT JUST BECAUSE THE LAND UNDER CONSIDERATION WAS AGRICULTURAL LAND IN THE RE VENUE RECORD, IT COULD NOT BE TREATED AS AGRICULTURAL LAND FOR THE PURPOSES OF THE INCOME TAX ACT. 6. COPIES OF THE AFORESAID KHASRA GIRDAWARI HAVE A LSO BEEN FILED BEFORE US. IT IS IRREFUTABLE AND NOT REFUTED THAT THE KHASRA G IRDAWARI IS A CROP INSPECTION BOOK, WHICH IS MANDATORILY TO BE MAINTAINED UNDER T HE LAND REVENUE ACT. THIS DOCUMENTS SHOWS THE CULTIVATION DONE OVER A PARTICU LAR LAND. CULTIVATION OF CROPS OVER A PIECE OF LAND SHOWS, OBVIOUSLY, THAT S UCH LAND IS AGRICULTURAL LAND. IN THE PRESENT KHASRA GIRDAWARI, THE CROPS FOR KHAR IF 2005 AND RABI 2006 WITH REGARD TO VILLAGE BHOKHARA, TAHSIL AND DISTRICT BHA TINDA, HAVE BEEN DEPICTED. THE LAND HAS BEEN SHOWN TO BE UNDER SELF CULTIVATIN G POSSESSION, THROUGH MUTATION, OF, AMONGST OTHERS, THE ASSESSE , TO THE EXTENT OF SHARE. THE 4. ITA NO.28 0 (ASR)/2013 ASST. YE AR 2008-09 CATEGORY OF THE LAND ACCORDING TO THE PREVIOUS JAMA BANDI, HAS BEEN SHOWN TO BE CHAHI, I.E., LAND IRRIGATED BY WELL. 7. THEREFORE, THESE SPECIFIC RELEVANT ATTRIBUTES OF THE LAND IN QUESTION, AS DEPICTED IN THE KHASRA GIRDAWARI, HAVE ERRONEOUSLY NOT BEEN TAKEN INTO CONSIDERATION BY THE LEARNED CIT(A) AND THE ASSESSE ES SPECIFIC STAND HAS BEEN REJECTED BY MERELY OBSERVING THAT JUST BECAUSE THE LAND HAS BEEN SHOWN AS AGRICULTURAL LAND IN THE REVENUE RECORD, IT CANNOT BE TREATED AS AGRICULTURAL LAND FOR THE PURPOSES OF THE INCOME TAX ACT. ONCE T HE KHASRA GIRDAWARI REMAINS UNQUESTIONED, IT CANNOT BE SAID THAT THE LA ND HAS MERELY BEEN SHOWN AS AGRICULTURAL LAND IN THE REVENUE RECORD. THE SPE CIFIC RECITALS IN THE KHASRA GIRDAWARI PROVE BEYOND THE SHADOW OF A DOUBT THAT A GRICULTURAL OPERATIONS ARE IN FACT BEING CARRIED OUT THEREAT. 8. THEREFORE, THE ORDER OF LEARNED CIT(A) IS A RES ULT OF COMPLETE MISREADING OF NONREADING OF THE ADDITIONAL EVIDENCE FILED BY T HE ASSESSEE IN THE SHAPE OF THE AFORESAID KHASRA GIRDAWARI. ACCORDINGLY, WE DEE M IT APPROPRIATE TO REMIT THIS MATTER TO THE FILE OF THE LEARNED CIT(A), TO B E DECIDED AFRESH IN ACCORDANCE WITH LAW, TAKING INTO CONSIDERATION THE AFORESAID K HASRA GIRDAWARI AND OUR ABOVE OBSERVATIONS THEREON. BEFORE US, THE ASSESSEE HAS ALSO FILED COPIES OF PURCHASE DEED AND SALE DEED IN RESPECT OF THE LAND IN QUESTION. ACCORDING TO THE ASSESSEE, THESE DOCUMENTS ALSO SHOW THAT THE LA ND IN QUESTION WAS AGRICULTURAL LAND SITUATED OUTSIDE THE NOTIFIED ARE A AND, THEREFORE, NOT A CAPITAL ASSET UNDER THE PROVISIONS OF SECTION 2(14) OF THE I.T. ACT. THESE DOCUMENTS 5. ITA NO.28 0 (ASR)/2013 ASST. YE AR 2008-09 ALSO GO TO THE ROOT OF THE MATTER AND SINCE THE CAS E IS BEING REMITTED TO THE LEARNED CIT(A), AS ABOVE, THE LEARNED CIT(A) WILL A LSO TAKE INTO CONSIDERATION THE SAID PURCHASE DEED AND SALE DEED. THE ASSESSEE SHAL L BE PROVIDED DUE OPPORTUNITY OF HEARING AND THE ASSESSE SHALL COOPER ATE IN THE REMAND PROCEEDINGS. ORDERED ACCORDINGLY. 9. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH OCTOBER, 2015. SD/- SD/- (T. R. MEENA) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 26.10. 2015 /PK/ PS. COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: KISHORE CHAND TAYAL. 2. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-III, FEROZEPUR. 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.