Smt. Prabhati Devi G-2, Arihant Tower-2, Opp. BSNL Telephone exchange, Sanganeri Gate, Jaipur, Jaipur V. Income Tax Officer Ward-7(2), Jaipur, Ward-7(2), Jaipur

ITA 284/JPR/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7766 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 01-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Principle of natural justice; Set aside
• Section: 2(14); 147; 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 284/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2008-09 SMT. PRABHATI DEVI VILLAGE- SURATPURA, TEHSIL-SANGANER, JAIPUR. CUKE VS. THE ITO, WARD-7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: CMSPD 2355 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI ASHISH KHANDELWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. ANURADHA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 22/04/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 24/04/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A), JAIPUR DATED 24.01.2018 FOR THE ASSESSMENT YEAR 2008-09 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND S OF APPEAL:- 1. THAT THE LD. A.O. HAS ERRED IN LAW AS WELL AS I N FACTS OF THE CASE IN ASSUMING JURISDICTION U/S 148 OF THE I.T. A CT, 1961. 2. THAT BOTH THE LOWER AUTHORITIES HAS ERRED IN LAW AS WELL AS IN FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS. 10,01,250/- AS ITA NO. 284/JP/2019 SMT. PRABHATI DEVI VS. ITO 2 LONG TERM CAPITAL GAIN WITHOUT APPRECIATING THE FAC T THAT IMPUGNED LAND WAS NOT A CAPITAL ASSET WITHIN THE ME ANING OF SECTION 2(14) OF THE I. T. ACT, 1961. 3. THAT LD. CIT(A) HAS ERRED IN LAW AS WELL AS IN F ACTS OF THE CASE IN NOT AFFORDING SUFFICIENT OPPORTUNITY OF BEING HE ARD, HENCE VIOLATED PRINCIPLE OF NATURAL JUSTICE. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSMENT IN THIS CASE WAS COMPLETED U/S 147 R/W SECTION 144 OF THE ACT WH EREIN THE AO HAS BROUGHT TO TAX LONG TERM CAPITAL GAINS AMOUNTING TO RS. 10,01,250/- IN THE HANDS OF THE ASSESSEE. BEING AGGRIEVED THE ASSE SSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS CONF IRMED THE SAID ADDITION AND NOW THE ASSESSEES IN APPEAL BEFORE US . 3. DURING THE COURSE OF HEARING, VARIOUS CONTENTION S HAVE BEEN RAISED BY THE LD. AR AND WRITTEN SUBMISSIONS HAVE B EEN FILED CHALLENGING THE ASSUMPTION OF JURISDICTION U/S 147 BY THE AO ST ATING THAT THERE HAS BEEN NO APPLICATION OF MIND BY THE AO BEFORE INVOKI NG HIS JURISDICTION U/S 147, THERE ARE FACTUAL INCONSISTENCIES IN THE R EASONS SO RECORDED IN TERMS OF DESCRIPTION OF LAND HOLDING WHICH HAS BEEN SOLD AND THE FACT THAT THE AGRICULTURE LAND HAS BEEN HELD TO BE A CAP ITAL ASSET SITUATED WITHIN 8 KMS OF JAIPURS MUNICIPALITY WITHOUT ANY M ATERIAL ON RECORD. FURTHER, ON MERITS OF THE ADDITION MADE BY THE ASSE SSING OFFICER, IT HAS BEEN CONTENDED BY THE LD AR THAT DISTANCE OF AGRICU LTURE LAND SHALL BE MEASURED FROM THE LOCAL LIMITS OF MUNICIPALITY AS O N THE DATE OF THE NOTIFICATION IE, 6.01.1994 AS HELD BY THE HONBLE R AJASTHAN HIGH COURT IN CASE OF PR CIT VS KHETI RAM HUF (ITA NO. 170/2016 D ATED 21.11.2017) ITA NO. 284/JP/2019 SMT. PRABHATI DEVI VS. ITO 3 AND NOT ON THE DATE OF SALE OF THE AGRICULTURE LAND . FURTHER, IT HAS BEEN SUBMITTED THAT WHERE BASED ON THE TEHSILDAR REPORT, THE LAND SITUATED AT VILLAGE KALWADA HAS BEEN HELD TO BE SITUATED BEY OND 8 KMS OF THE JAIPUR MUNICIPAL LIMITS, LAND SITUATED AT VILLAGE S URATPURA WHICH IS ALMOST 2.5 KMS FURTHER FROM VILLAGE KALWADA HAS BEEN HELD TO BE SITUATED WITHIN 8 KMS OF THE MUNICAPAL LIMITS. IT WAS BEEN FURTHER SUBMITTED THAT THE AO DURING THE COURSE OF ASSESSMENT PROCEED INGS HAS ALSO SOUGHT REPORT FROM THE TEHSILDAR REGARDING DISTANCE OF VILLAGE SURATPURA FROM THE MUNICIPAL LIMITS, HOWEVER, WITHOUT WAITING FOR HIS REPORT, HE HAS CONCLUDED THE ASSESSMENT HOLDING THE LAND SITUA TED WITHIN 8 KMS FROM THE MUNICIPAL LIMITS. IT WAS ACCORDINGLY SUBM ITTED THAT THE ASSESSMENT SO MADE THUS SUFFERS FROM THE JURISDICTI ONAL INFIRMITY AS WELL AS ON MERITS AND THUS SHOULD BE SET-ASIDE. IT WAS ALTERNATIVELY PLEADED THAT THE MATTER MAY BE SET-ASIDE TO THE FILE OF THE AO TO OBTAIN THE REPORT OF THE TEHSILDAR REGARDING DISTANCE OF AGRIC ULTURE LAND AT VILLAGE SURATPURA FROM THE MUNICIPAL LIMITS OF JAIPUR AS ON THE DATE OF THE NOTIFICATION. 4. THE LD DR IS HEARD WHO HAS RELIED ON THE FINDIN GS OF THE ASSESSING OFFICER. IT WAS FURTHER SUBMITTED THAT THE ASSESSM ENT ORDER HAS BEEN PASSED U/S 147 R/W 144 AND EVEN THE LD CIT(A) HAS P ASSED THE ORDER EX-PARTE QUA THE ASSESSEE AND THEREFORE, WHERE THE BENCH SO DECIDE, THE REVENUE HAS NO OBJECTION WHERE THE MATTER IS SE T-ASIDE TO THE FILE OF THE LD CIT(A). 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSESSMENT ORD ER HAS BEEN PASSED ITA NO. 284/JP/2019 SMT. PRABHATI DEVI VS. ITO 4 U/S 147 R/W 144 AND EVEN THE LD CIT(A) HAS NOT PASS ED THE ORDER ON MERITS BUT HAS DISMISSED THE APPEAL EX-PARTE QUA TH E ASSESSEE. WE ALSO FIND THAT THE REPORT OF THE TEHSILDAR REGARDIN G DISTANCE OF AGRICULTURE LAND AT VILLAGE SURATPURA FROM THE MUNI CIPAL LIMITS OF JAIPUR AS ON THE DATE OF THE NOTIFICATION IS NOT ON RECORD . THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE SET ASIDE THE MATTER TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER CALLING THE REPO RT OF THE TEHSILDAR REGARDING DISTANCE OF AGRICULTURE LAND AT VILLAGE S URATPURA FROM THE MUNICIPAL LIMITS OF JAIPUR AS ON THE DATE OF THE NO TIFICATION. NEEDLESS TO SAY, THE ASSESSEE SHALL BE PROVIDED A REASONABLE OP PORTUNITY AND SHE SHALL COOPERATE IN THE TIMELY COMPLETION OF THE PRO CEEDINGS AS SO DIRECTED BY THE AO. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24/04/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 24/04/2019. *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. PRABHATI DEVI, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-7(2), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) ITA NO. 284/JP/2019 SMT. PRABHATI DEVI VS. ITO 5 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 284/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR