Shri Kaushalkumar Gangaram Patel, Ahmedabad V. ITO, Ward-3(3)(12), Ahmedabad

ITA 286/AHD/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7751 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 05-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: P B PARMAR
• Keywords: Capital asset; Principle of natural justice; Set aside
• Section: 2(14); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 286/AHD/2018 (ASSESSMENT YEAR: 2014-15) KAUSHALKUMAR G PATEL, OPP. GRAND BHAGWATI HOTEL, S.G. HIGHWAY, BODAKDEV, AHMEDABAD- 380054 V/S INCOME TAX OFFICER, WARD- 3 (3)(12), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ACPPP 9442G APPELLANT BY : SHRI P. B. PARMAR, AR RESPONDENT BY : SHRI LALIT P. JAIN, SR. D.R. ( )/ ORDER DATE OF HEARING : 27 -09-201 9 DATE OF PRONOUNCEMENT : 14 -10-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. CIT(A)-7, AHMEDABAD DATED 06.11.2017 PERTAINING TO A.Y. 2014-15 AND THAT ONLY ONE GROUND STATING THAT LD. CIT(A) HAS ERRED I N NOT AFFORDING AN ITA NO. 286/ AHD/2018 . A.Y. 2014- 15 2 OPPORTUNITY OF HEARING TO THE ASSESSEE AND PASSED E X PARTE ORDER, WHICH IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 2. FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING OF GOODS, LOGISTIC SERVICES & GOODS TRANSPORT AGENCIES . AND ASSESSEE DERIVED INCOME FROM PROFITS AND GAINS OF BUSINESS OR PROFES SION AND INCOME FROM OTHER SOURCES. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, FROM T HE DETAILS FURNISHED BY THE ASSESSEE, IT HAS BEEN FOUND THAT THE ASSESSEE HAS S OLD FOLLOWING FOLLOWING JOINTLY HELD IMMOVABLE PROPERTY SITUATED AT ADALAJ, GANDHIN AGAR DURING THE YEAR UNDER CONSIDERATION: SI. NO. REVENUE BLOCK NO. TOTAL SALE CONSIDERATION SHARE OF SALE CONSIDERATION RECEIVED BY YOU REGD. NO. AND DATE 1. BLOCK NO.- 52 RS.L,54,80,000/- SHARE-17% RS. 26, 31, 600/- 6693 DATED 08.5.2013 2. BLOCK NO. -48 RS. 1, 36,57,000/- SHARE-17% RS. 23,21,775/- 6690 DATED 08.5.2013 3. BLOCK NO.-57 RS. 1,27, 98, 500/- SHARE-17% RS. 21, 75,745/- 6695 DATED 08.5.2013 TOTAL SHARE RECEIVED IN SALE CONSIDERATION RS. 71,29,120/- 4. HOWEVER, THE ASSESSEE HAD NOT OFFERED ANY CAPITAL G AIN FOR TAX ON SALE OF ABOVE MENTIONED IMMOVABLE PROPERTY. ON BEING ASKED, THE A SSESSEE HAD SUBMITTED HIS REPLY VIDE LETTER DATED 22.11.2016. THE CRUX OF THE REPLY FURNISHED BY THE ASSESSEE IS AS UNDER: ITA NO. 286/ AHD/2018 . A.Y. 2014- 15 3 ''THE ASSESSEE HAD SOLD THREE AGRICULTURE LAND WHIC H WERE BEARING BLOCK NO. 52, 48, AND 57. ALL THE AGRICULTURAL LAND IS SITUATED AT ADALAJ . THE ABOVE AGRICULTURAL LAND WERE RURAL AGRICULTURAL LAND AND AS PER THE PROVISION OF SECTION 2(14) 'CAPITAL ASSETS' RURAL AGRICULTURAL L AND WERE EXEMPT FROM THE CAPITAL GAIN. AS PER THE DEFINITION OF SECTION 2(14) (III)(A) IT MEANS IF THE AGRICULTURAL LAND SITUATED IN ANY AREA WHICH IS COMPRISED WITHIN THE JURISDICTION OF MUNICIPALITY (WHETHER KNOWN AS MUNICIPALITY, MUNICIPALITY CORPORATION, NOTIFIED AR EA COMMITTEE, TOWN COMMITTEE OR BY ANY OTHER NAME) AND ITS POPULATION SHOULD BE LESS THAN 10,000 AS PER THE LAST PUBLISHED CENSUS. THAT STARTING WORDS OF SECTION 2(14)(III)(A ) READ US LAND SITUATED IN ANY AREA, WHICH MEANS THAT SECTION IS APPLICABLE AREA WISE AN D NOT AS PER MUNICIPALITY WISE. THAT THE SECTION IS TALKING ABOUT THE AREA IN WHICH THE LAND IS SITUATED AND THE POPULATION OF THAT AREA NEED TO BE CONSIDER ONLY AND NOT THE POPU LATION OF THE MUNICIPALITY, HENCE THE ASSESSEE LAND FALL IN THE JURISDICTION OF GUDA I.E. GANDHINAGAR URBAN DEVELOPMENT AUTHORITY AND THE POPULATION OF THAT AREA IS LESS T HAN 10,000. HENCE, BOTH THE CONDITIONS ARE FULFILLED AND THE LA ND HEREUNDER SHALL BE TREATED AS RURAL AGRICULTURAL LAND AND CAPITAL GAIN ON THE SAME SHAL L BE EXEMPT. EVEN OTHERWISE IF WE CONSIDER THAT THE GUDA IS NOT THE MUNICIPALITY THAT AS PER THE DEFINITION OF SECTION 2(14)(III)(B) IF SITUATED OUT SIDE THE LIMIT OF MUNICIPALITY ETC. IT SHOULD BE SITUATED CERTAIN KILOMETERS AWAY FROM THE LOCAL LIM ITS OF ANY MUNICIPALITY ETC. AS MAY BE SPECIFIED BY THE CENTRAL GOVERNMENT IN THE OFFICIAL GAZETTE. THE CENTRAL GOVERNMENT CAN NOTIFIED URBAN LAND UPTO MAXIMUM 8 KM FROM THE LIMI TS OF MUNICIPALITY ETC. THE ASSESSEE LAND IS SITUATED AT ADALAJ WHICH IS OU TSIDE THE LIMITES OF GANDHINAGAR AND AS PER THE PROVISION, LAND SHOULD BE SITUATED CERTA IN KILOMETER AWAY FROM THE GANDHINAGAR MUNICIPALITY, AND AS PER NOTIFICATION N O. 9447 DATED 06.01.1994 OF THE DEPARTMENT OF REVENUE HAS SPECIFIED AREA UPTO 4 KM FROM THE MUNICIPALITY LIMITS OF THE GANDHINAGAR AS URBAN AREA. FURTHER ANY PROPERTY SIT UATED OUTSIDE THE 4 KM WILL BE CONSIDERED AS RURAL AREA. THAT THE LETTER GIVEN BY GUDA CLEARLY MENTIN THAT THE LAND IS 5 KM AWAY FROM THE GANDHINAGAR MUNICIPALITY, HENCE TH E ABOVE CONDITION IS FULFILLED THAT THE LAND IS AWAY FROM THE MUNICIPALITY LIMIT AND HE NCE QUALIFY FOR THE RURAL AGRICULTURAL LAND. HENCE, LOOKING TO THE ABOVE FACTS AND EVIDENCES THE LAND IS ANY CASE I.E. IF IT IS SITUATED IN GUDA GANDHINAGAR URBAN DEVELOPMENT AUTHORITY THE POPULATION IS LESS THAN 10,000 AND IF GANDHINAGAR IS MUNICIPALITY LIMIT, THAN ALSO IT IS CERTAIN DISTANCE AWAY FROM THE MUNICIPALITY LIMITS, HENCE IN ANY CASE IT QUALIFY F OR THE RURAL ASSETS AND IS EXEMPT FROM THE CAPITAL GAIN.'' 5. THE ASSESSEES SUBMISSION THAT LAND IN QUESTION IS SITUATED AT ADALAJ WHICH FALL UNDER THE GANDHINGAR URBAN DEVELOPMENT AUTHORITY (G UDA) AND THE SAME IS EQUIVALENT TO A MUNICIPALITY AND AS THE POPULATION OF ADALAJ AS PER CENSUS 2001 IS LESS THAN 10,000, THE LAND IN QUESTION IS NOT A CAPITAL ASSET AS PER THE DEFINITION OF SECTION 2(14)(III)(A) OF THE ACT, IS NOT FOUND ACCEPTABLE. PROVISIONS OF SECTION 2(14)(III)(A) OF THE ACT SAYS AS UNDER: ITA NO. 286/ AHD/2018 . A.Y. 2014- 15 4 2(14} 'CAPITAL ASSET' MEANS PROPERTY OF ANY KIND HELD BY AN ASSESSEE, WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFESSION, B UT DOES NOT INCLUDE (///) AGRICULTURAL LAND IN INDIA, NOT BEING LAND SI TUATE (A) IN ANY AREA WHICH IS COMPRISED WITHIN THE JURIS DICTION OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MUNICIPAL CORPORA TION, NOTIFIED AREA COMMITTEE, TOWN AREA COMMITTEE, TOWN COMMITTEE, OR BY ANY OTHER NAME) OR A CANTONMENT BOARD AND WHICH HAS A POPULATION OF NOT LESS THAN TEN THOUSAND [***]; OR (B) IN ANY AREA WITHIN THE DISTANCE,, MEASURED AERI ALLY, (I) NOT BEING MORE THAN TWO KILOMETRES, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM (A) AND WHI CH HAS A POPULATION OF MORE THAN TEN THOUSAND BUT NOT EXCEEDING ONE LAKH; OR (II) NOT BEING MORE THAN SIX KILOMETRES, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM (A) AND WHI CH HAS A POPULATION OF MORE THAN ONE LAKH BUT NOT EXCEEDING TEN LAKH; OR (III) NOT BEING MORE THAN EIGHT KIL OMETRES, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD EFEFERRED TO IN IT EM (A) AND WHICH HAS A POPULATION OF MORE THAN TEN LAKH. 6. IT CAN BE SEEN CLEARLY FROM THE PROVISIONS OF SECTI ON 2(14(III)(A) OF THE ACT THAT IT TALKS ABOUT TOTAL POPULATION OF MUNICIPALITY IN WHICH AREA THE ASSET FALLS AND NOT ABOUT THE POPULATION OF A PARTICULAR AREA. THE ASSESSEE HAS SUBMITTED IN HIS REPLY THAT ADALAJ, IN WHICH LAND IN QUESTION WAS SI TUATED, FALLS UNDER GANDHINAGAR URBAN DEVELOPMENT. AUTHORITY(GUDA) IS E QUIVALENT AS MUNICIPALITY. THEREFORE, POPULATION OF GANDHINAGAR URBAN DEVELOPMENT AUTHORITY IS REQUIRED TO BE TAKEN FOR DECIDING THE CAPITAL ASSETS AS PER THE PROVISIONS OF SECTION 2(14)(III)(A) OF THE ACT. IT IS AN UNDISPUTED FACT THAT THE POPULATION OF GANDHINAGAR (GUDA) WAS IN LACS AS PER 2001 CENSUS. THEREFORE, LAND IN QUESTION SITUATED AT ADALAJ SOLD DURING THE YEAR IS CAPITAL ASSET AS PER THE PROVISIONS OF SECTION 2(14)(III)(A) OF THE ACT AND GAIN ARISING ON SALE OF THESE LANDS ARE REQUIRED TO TAXED AS PER THE PROVISIONS O F THE ACT. ITA NO. 286/ AHD/2018 . A.Y. 2014- 15 5 7. EVEN OTHER-WISE ALSO, WITH A VIEW TO VERIFY THE FAC T THAT WHETHER THE AFORESAID LAND SITUATED AT ADALAJ SOLD DURING THE YEAR UNDER CONSIDERATION WAS CAPITAL ASSET OR NOT AS PER THE PROVISIONS OF SECTION 2(14) (III) OF THE INCOME TAX ACT, 1961, ENQUIRIES WERE MADE BY ISSUING A NOTICE U/S 1 33(6) OF THE ACT DATED 28.11.2016 TO THE SR. TOWN PLANNER, GUDA, GANDHINAG AR. IN RESPONSE TO THIS NOTICE, REPLY FROM GANDHINAGAR URBAN DEVELOPMENT AU THORITY(GUDA) HAS BEEN RECEIVED VIDE REF. NO. : NO. GUDA/TANTRIK/6359 /2016 DATED 05.12.2016. THE DETAILS OF DISTANCE OF LAND IN QUES TION FROM THE LIMIT OF GANDHINAGAR MUNICIPALITY AS PROVIDED BY THE GUDA IS AS UNDER : SI. NAME OF THE VILLAGE R.S. NO. / DISTANCE FROM NO. BLOCK NO. GANDHINAGAR MUNICIPALITY LIMIT 1. ADALAJ 52 5.63 2. ADALAJ 48 5.61 3. ADALAJ 57 5.74 8. THEREFORE, THE LAND IN QUESTION IS SITUATED WITHIN 6 K.MS, FROM THE LIMIT OF GANDHINAGAR MUNICIPALITY AND THEREFORE, CAPITAL ASS ETS WITHIN THE MEANING OF SECTION 2(14)(III)(B) OF THE ACT, INSERTED W.E.F. 0 1.04.2014. A COPY OF LETTER RECEIVED FROM THE TOWN PLANNER, GUDA, GANDHINAGAR H AS ALSO BEEN GIVEN TO THE ASSESSEE. 9. EVEN OTHER-WISE ALSO, WITH A VIEW TO VERIFY THE FAC T THAT WHETHER THE AFORESAID LAND SITUATED AT ADALAJ SOLD DURING THE YEAR UNDER CONSIDERATION WAS CAPITAL ASSET OR NOT AS PER THE PROVISIONS OF SECTION 2(14) (III) OF THE INCOME TAX ACT, ITA NO. 286/ AHD/2018 . A.Y. 2014- 15 6 1961, ENQUIRIES WERE MADE BY ISSUING A NOTICE U/S 1 33(6) OF THE ACT DATED 19.10.2016 TO THE SR. TOWN PLANNER, AUDA, USMANPURA , AHMEDABAD. IN RESPONSE TO THIS NOTICE, REPLY FROM AHMEDABAD URBAN DEVELOPMENT AUTHORITY(AUDA) HAS BEEN RECEIVED VIDE REF. NO. : N O. 15287 DATED 16.11.2016. IN ITS REPLY, IT HAS BEEN SUBMITTED BY THE SR. TOWN PLANNER, AUDA, AHMEDABAD THAT THE 'THE MINIMUM DISTANCE OF REVENUE LIMIT OF THE VILLAGE ADALAJ FROM AMC LIMIT IS 706 MT. A COPY OF LETTER R ECEIVED FROM SR. TOWN PLANNER, AUDA, AHMEDABAD HAS ALSO BEEN PROVIDED TO THE ASSESSEE. 10. THEREFORE, IT HAS BEEN ESTABLISHED THAT THE LAND IN QUESTION ARE SITUATED WITHIN A RADIUS OF 8 KMS. OF AHMEDABAD MUNICIPAL CORPORATION LIMIT (AMC). THEREFORE, THE SAID LAND SOLD DURING THE YEAR UNDER CONSIDERATION IS A CAPITAL ASSETS AS PER THE PROVISIONS OF SECTION 2(14)(III)( B) OF THE INCOME TAX ACT, 1961 ALSO AND CAPITAL GAIN ON SALE OF SUCH LAND IS TAXABLE U/S 45 OF THE ACT AS CAPITAL GAIN. 11. IN VIEW OF THE ABOVE DISCUSSION, IT IS ESTABLISHED THAT THE ABOVE LAND SOLD DURING THE YEAR UNDER CONSIDERATION ARE CAPITAL ASSETS AS PER THE PROVISIONS OF SECTION 2(14)(III) OF THE IT. ACT,1961 AND LONG TERM CAPITA L GAIN ARISEN ON IT IS LIABLE FOR TAX. THE COMPUTATION OF LONG TERM CAPITAL GAIN ARISEN ON SALE IMMOVABLE PROPERTY IN QUESTION IS AS UNDER: SI. NO. BLOCK NO. SHARE OF SALE TRANSFER NET SALES PURCHASE INDEXED LONG TERM CONSIDERATIO N COST CONSIDERATIO CONSIDERATIO C.O.I. CAPITAL GAIN RECEIVED BY YOU N N AND DATE (4 - 5) ITA NO. 286/ AHD/2018 . A.Y. 2014- 15 7 1 2 3 4 5 6 7 1. BLOCK NO. - RS. 26, 31, 600/- 6,84,216/- 19,47,384/ - RS,28,382/ - 51,3507 - RS.18,96,034/- 52 [2006-07] 2. BLOCK NO.- RS. 23,21, 775/- - 23,21,775/- RS, 25, 109/- 45,428/- RS.22,76,347/- 48 [2006-07] 3. BLOCK NO.- RS. 21,75,745/- - 21,75,745/- RS.19,2447- 34,8177- RS. 21,40, 928/- 57 [2006-07] TOTAL RS. 63, 13,309/ - 12. IN VIEW OF THE ABOVE, VIDE SHOW-CAUSE NOTICE DATED 07.12.2016, THE ASSESSEE WAS REQUESTED TO SHOW-CAUSE AS TO WHY THE LONG TERM CAPITAL GAIN OF RS.63,13,309/- ON TRANSFER OF THE ABOVE LAND IN QUE STION BE NOT BROUGHT TO TAX. IN VIEW OF THIS, THE ASSESSEE FURNISHED HIS REPLY V IDE LETTER DATED 19.12.2016. THE REPLY FURNISHED BY THE ASSESSEE IS AS UNDER: 'THAT DURING THE YEAR THE ASSESSEE HAD SOLD THREE A GRICULTURE LAND WHICH WERE BEARING BLOCK NO.52, 48 AND 57. ALL THE AGRICULTURE LAND WE RE SITUATED AT ADALAJ. THAT THE ABOVE AGRICULTURE LAND WERE RURAL AGRICULTUR E LAND AND AS PER THE PROVISION OF SECTION 2(14) 'CAPITAL ASSETS' RURAL AGRICULTURE LAND W ERE EXEMPT FROM THE CAPITAL GAIN. FOR CLASSIFYING A RURAL AGRICULTURE LAND ONE MUST FULF ILL AND OF THE CONDITION SPECIFIED IN SECTION 2(14)(III) 2(14)[(III) [AGRICULTURAL LAND IN INDIA, NOT BEING LAND S ITUATE (A) IN ANY AREA WHICH IS COMPRISED WITHIN THE JURISDICTI ON OF A MUNICIPALITY 1 (WHETHER KNOWN AS A MUNICIPALITY, MUNICIPAL CORPORATION, NOTIFIED AR EA COMMITTEE, TOWN AREA COMMITTEE, TOWN COMMITTEE, OR BY ANY OTHER NAME) OR A CANTONMENT BOARD AND WHICH HAS A POPULATION OF NOT LESS THAN TEN THOUSAND, ACCO RDING TO THE LAST PRECEDING CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBLIS HED BEFORE THE FIRST DAY OF THE PREVIOUS YEAR. (B) IN ANY AREA WITHIN SUCH DISTANCE, MEASURE D AERIALLY, (I) NOT BEING MORE THAN TWO KILOMETRES, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM (A) AND WHICH HA S A POPULATION OF MORE THAN TEN ITA NO. 286/ AHD/2018 . A.Y. 2014- 15 8 THOUSAND BUT NOT EXCEEDING ONE LAKH; OR (II) NOT BEING MORE THAN SIX KILOMETRES, FROM TH E LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM (A) AND WHICH H AS A POPULATION OF MORE THAN ONE LAKH BUT NOT EXCEEDING TEN LAKH; OR (III) NOT BEING MORE THAN EIGHT KILOMETRES, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM (A) AND WHICH HA S A POPULATION OF MORE THAN TEN LAKH THUS, AS PER THE DEFINITION OF SECTION 2(14)(III)(A) IT MEANS IF THE AGRICULTURE LAND SITUATED IN ANY AREA WHICH IS COMPRISED WITHIN THE JURISD ICTION OF MUNICIPALITY (WHETHER KNOW AS MUNICIPALITY, MUNICIPAL CORPORATION, NOTIF IED AREA COMMITTEE, TOWN COMMITTEE OR BY ANY OTHER NAME) AND ITS POPULATION SH OULD BE LESS THAN 10,000 AS PER THE LAST PUBLISHED CENSUS. THAT STARTING WORDS O F SECTION 2(14)(III)(A) READ US LAND SITUATED IN ANY AREA, WHICH MEANS THAT SECTION IS APPLI CABLE AREA WISE. THAT THE SECTION IS TALKING ABOUT THE AREA IN WHICH THE LAND IS SIT UATED AND THE POPULATION OF THAT AREA NEED TO BE CONSIDER ONLY, AND NOT THE POPU LATION OF THE MUNICIPALITY, HENCE, THE ASSESSEE LAND FALL IN THE JURISDICTION OF GUDA I.E. GANDHINAGAR URBAN DEVELOPMENT AUTHORITY AND THE POPULATION OF THAT AR EA IS LESS THAN 10,000 FOR WHICH DETAILS ARE ENCLOSED HEREWITH AND THE SAME MARKED AS ANNEXURE. HENCE BOTH THE CONDITIONS ARE FULFILLED AND THE LAND H EREUNDER SHALL BE TREATED AS RURAL AGRICULTURE LAND AND CAPITAL GAIN ON THE SAME SHA LL BE EXEMPT. EVEN OTHERWISE IF WE CONSIDER THAT GUDA IS NOT THE MU NICIPALITY THAT AS PER THE DEFINITION OF 2(14)(III)(B) IF SITUATED OUTSIDE THE LI MIT OF MUNICIPALITY ETC. IT SHOULD BE SITUATED CERTAIN KILOMETERS AWAY FROM THE LOCAL LIMITS O F ANY MUNICIPALITY ETC AS MAY BE SPECIFIED. THE ASSESSEE LAND IS SITUATED AT ADALA J WHIAH IS OUTSIDE THE LIMITS OF GANDHINAGAR AND AS PER THE PROVISIONS, SINCE THE LAND IS SITUATED CERTAIN KILOMETER AWAY FROM THE GANDHINAGAR MUNICIPALITY AS SPECIFIED H ENCE THE SAME IS RURAL AGRICULTURE LAND. HENCE, LOOKING TO THE ABOVE FACTS AND EVIDENCES THE LAND IS ANY CASE I.E. IF IT IS SITUATED IN GUDA GANDHINAGAR URBAN DEVELOPMENT AUTHOR ITY THE POPULATION IS LESS THAN 10,000 AND IF GANDHINAGAR IS MUNICIPALITY LIMIT THAN ALSO IT IS CERTAIN DISTANCE AWAY FROM THE MUNICIPALITY LIMITS, HENCE IN ANY CASE I T QUALIFY FOR THE RURAL ASSETS AND IS EXEMPT FROM THE CAPITAL GAIN.' 13. BUT REPLY OF THE ASSESSEE COULD NOT CONVINCE THE AS SESSING OFFICER AND HELD THAT THE LAND, SUBJECT MATTER OF SALE, IS A CAPITAL ASSET FALLING WITHIN THE SCOPE OF CLAUSE (III) OF SECTION 2(14) AND MADE ADDITION OF RS. 63,13,309/-. ITA NO. 286/ AHD/2018 . A.Y. 2014- 15 9 14. AGAINST THE SAID ORDER, ASSESSEE PREFERRED FIRST ST ATUTORY APPEAL BEFORE THE LD. CIT(A) ISSUED THREE NOTICES TO THE APPELLANT BUT BE CAUSE OF SOME REASON COULD NOT APPEARED BEFORE THE LD. CIT(A) AND IN LIMINE LD . CIT(A) WITHOUT DISCUSSING ANY MERIT OF THE CASE JUST CONFIRMED THE ORDER OF T HE ASSESSING OFFICER. 15. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGN ED ORDER. AS WE CAN SEE, WITHOUT DISCUSSING THE MERIT OF THE CASE, LD. CIT(A ) HAS CONFIRMED THE ORDER OF THE ASSESSING OFFICER. IN OUR CONSIDERED OPINION, S AME IS AMOUNTING TO MISCARRIAGE OF JUSTICE. 16. IN SUPPORT OF ITS CONTENTION, LD. A.R. CITED AN ORD ER OF CO-ORDINATE BENCH WHEREIN WITH FOLLOWING OBSERVATION CO-ORDINATE BENC H HAS ALLOWED THE APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSE. 4. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. WE FIND THAT IN PARA-2 OF THE IMPUGNED O RDERS, THE ID.CIT(A) HAS NOTICED THE DETAILS OF HEARING AND HOW THE ASSESSEE HAS COM PLIED WITH THE DIRECTIONS, NO DOUBT THE HEARINGS IN ALL THESE APPEALS WERE FIXED ON SEVEN OCCASIONS. OUT OF SEVEN OCCASIONS, THE ASSESSEE APPEARED ON SIX OCCAS IONS, BUT HEARING WAS ADJOURNED. ON THE SEVENTH OCCASION, NO ONE COULD AP PEAR BEFORE THE LD.CIT(A), 5. THE LD.CIT(A), HAS CONCLUDED THE HEARING AND DIS MISSED THE APPEALS BY WAY OF SEPARATE ORDERS ON 15.11.2016. SUB-SECTION (6) OF S ECTION 250 OF THE INCOME TAX ACT, 1961 CONTEMPLATES THAT THE LD.CIT(A) WOULD STA TES THE POINTS IN DISPUTE AND THEREAFTER ASSIGN REASONS IN SUPPORT OF CONCLUSIONS . ON PERUSAL OF THE IMPUGNED ORDERS WOULD INDICATE THAT THE LD.CIT(A) HAS SIMPLY CONCURRED WITH THE AO WITHOUT FORMULATING SPECIFIC POINTS AND TAKING NOTE OF DETAILS AVAILABLE BEFORE THE ID.CIT(A). IN A WAY, THE APPEALS WERE DISMISSED IN SUMMARY MANNER. THIS EXERCISE OF POWER AT THE END OF THE LD.CIT(A) IS NOT IN COHE RENCE WITH THE MANDATE OF SECTION 250(6) OF THE ACT, THEREFORE, WE SET ASIDE ALL THESE ORDERS AND RESTORE ALL ITA NO. 286/ AHD/2018 . A.Y. 2014- 15 10 THE ISSUES IN THESE THREE ASSESSMENT YEARS TO THE F ILE OF THE ID.CIT(A) FOR DECIDING THEM ON MERIT. WE FURTHER DIRECT THE ASSESSEE TO CO OPERATE WITH THE LD.CIT(A) AND REFRAIN HIMSELF FROM SEEKING UNNECESSARY ADJOURNMEN TS. 6. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSE. 17. IN OUR CONSIDERED OPINION, LD. CIT(A) IS REQUIRED T O PASS A SPEAKING AND REASONED ORDER AND WE ALSO DIRECT THE ASSESSEE TO C OOPERATE WITH THE LD. CIT(A) AND WILL NOT SEEK UNNECESSARILY ADJOURNMENT. 18. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 14 - 10- 2019 SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 14/10/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD