Sayda, Ghaziabad V. ITO, Ward- 2(3), Ghaziabad

ITA 2951/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2619 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 26-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 2951/DEL/2018 ASSESSMENT YEAR: 2009-10 SAYDA, VS. ITO, WARD 2(3), C/O PRADEEP & CO., GHAZIABAD (UP) TAX ADVOCATES, 7, NAVYUG MARKET, GHAZIABAD (UP) (PAN: HCBPS4001R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. PRATEEK GUPTA, CA REVENUE BY : SH. SL ANURAGI, SR. DR. ORDER THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 02.1.2018 OF THE LD. CIT(A), GHAZIABAD PERTAINING T O ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS:- I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER OF LD. CIT(A) IS BAD IN BOTH IN THE EYES OF L AW AND ON FACTS. II) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDING THE ORDER OF AO MAKING AN ADDITION OF RS. 21,80,700/- BY TREATING AMOUNT REALIZED FROM SALE OF AGRICULTURAL LAND AS SALE OF RESIDENTIAL PROPERTY A ND TAXING THE SAME AS SHORT TERM CAPITAL GAIN. III) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN LAW IN TREATING AGRICULTURAL L AND 2 AS RESIDENTIAL PLOT EVEN WHEN THERE WAS NO CONVERSION OF THE LAND USE MADE BY THE APPELLANT. IV) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW IN LAW IN NOT ADMITTING THE CRUCIAL EVIDENCES IN ACCORDANCE WITH RULE 46A AND OMITTING TO ADJUDICATE ON THE CONTENTION AND CLAIM OF THE APPELLANT. V) THAT THE APPELLANT CRAVES LEAVE TO ADD / ALTER ALL OR ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIES AR E NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE STATED THAT IT IS A CASE WHERE THE LD. CIT(A) HAS NOT ADMITTED THE CRUCIAL EVIDENCES IN ACCORDANCE WITH RULE 46A AND OMITTING TO ADJUDICATE ON THE CONTENTION AND CLAIM OF THE ASSESSEE WHICH WERE FILED DURING THE APPELLATE PROCEEDINGS AND WHICH ARE VERY ESSENTIAL IN CONSIDERING THE ISSUES IN DISPUTE AND THEREFORE, HE REQUESTED THAT THE SAME MAY BE ADMITTED AND ISSUES IN DISPUTE MAY BE SET ASIDE TO THE AO FOR FRESH ADJUDICATION, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN SUPPORT OF HIS CONTENTION HE FILED TH E LETTER DATED 27.12.2017 ISSUED BY THE TEHSILDAR, GHAZIABAD STATI NG THAT THE LAND SITUATED AT KHATA NO. 317, KHASRA NO. 1037, VILLAGE MUHINDDINPUR, DHABARSI, PARGAON DASNA, TEHSIL AND DISTRICT, GHAZI ABAD, UP IS BEYOND 8 KM FROM THE LOCAL LIMITS OF MUNICIPAL CORP ORATION OF GHAZIABAD. HE ALSO FILED A PAPER BOOK CONTAINING P AGES 1-64 IN WHICH HE HAS ATTACHED THE COPY OF ITR ALONGWITH CO MPUTATION OF INCOME; PURCHASE DEED OF LAND SITUATED AT KHASRA NO . 1067, VILLAGE MUHIUDDINPUR DHAHARSI, PARGANA DASNA, TEHSIL AND DI STRICT GHAZIABAD; SALE DEED DATED 16.3.2009 FOR SALE OF LA ND SITUATED AT KHASRA NO. 1067, VILLAGE MUHIUDDINPUR DHAHARSI, PAR GANA DASNA, 3 TEHSIL AND DISTRICT GHAZIABAD; COPY OF KHASRA AND K HATAUNI ISSUED BY THE TEHSILDAR IN RESPECT OF AFOREMENTIONED PROPERTY ; NOTIFICATION NO. (SO 9447) (FILE NO. 164/3/870ITA,I) DATED 6.1.1994; COPY OF SECTION 143 OF UP ZAMINDARI ABOLITION AND LAND REFO RM ACT, 1950; COPY OF WRITTEN SUBMISSION SUBMITTED BEFORE CIT(A); COPY OF AFFIDAVIT STATING NO. CHANGE IN LAND USE; COPY OF DETAILS OF LAND DOWNLOADED FROM GOVERNMENT WEBSITE WWW.UPBHULEKH.GO V.IN. 4. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER OF THE AUTHORITIES BELOW AND STATED THAT LD. CIT(A) HAS RIGHTLY REJECT ED THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE U/R 46A. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES, C OPY OF ADDITIONAL DOCUMENTS FILED U/R 46A OF THE INCOME TAX RULES AN D VARIOUS DOCUMENTS VIZ. LETTER DATED 27.12.2017 ISSUED BY TH E TEHSILDAR, GHAZIABAD STATING THAT THE LAND SITUATED AT KHATA N O. 317, KHASRA NO. 1037, VILLAGE MUHINDDINPUR, DHABARSI, PARGAON D ASNA, TEHSIL AND DISTRICT, GHAZIABAD, UP IS BEYOND 8 KM FROM THE LOC AL LIMITS OF MUNICIPAL CORPORATION OF GHAZIABAD AND THE COPY OF ITR ALONGWITH COMPUTATION OF INCOME; PURCHASE DEED OF LAND SITUAT ED AT KHASRA NO. 1067, VILLAGE MUHIUDDINPUR DHAHARSI, PARGANA DASNA, TEHSIL AND DISTRICT GHAZIABAD; SALE DEED DATED 16.3.2009 FOR S ALE OF LAND SITUATED AT KHASRA NO. 1067, VILLAGE MUHIUDDINPUR D HAHARSI, PARGANA DASNA, TEHSIL AND DISTRICT GHAZIABAD; COPY OF KHASR A AND KHATAUNI ISSUED BY THE TEHSILDAR IN RESPECT OF AFOREMENTIONE D PROPERTY; NOTIFICATION NO. (SO 9447) (FILE NO. 164/3/870ITA,I ) DATED 6.1.1994; COPY OF SECTION 143 OF UP ZAMINDARI ABOLITION AND L AND REFORM ACT, 1950; COPY OF WRITTEN SUBMISSION SUBMITTED BEFORE C IT(A); COPY OF AFFIDAVIT STATING NO. CHANGE IN LAND USE AND COPY OF DETAILS OF LAND DOWNLOADED FROM GOVERNMENT WEBSITE WWW.UPBHULEKH.GO V.IN. AFTER CAREFUL CONSIDERATION OF THESE DOCUMENTS, I FIND CO NSIDERABLE COGENCY IN THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSE SSEE THAT LD. CIT(A) WAS NOT JUSTIFIED IN REJECTING THE ADDITION AL EVIDENCES FILED 4 U/R 46A. I FURTHER NOTE THAT NOW THE ASSESSEE HAS FURNISHED THE COPIES OF THOSE DOCUMENTS WHICH WERE FURNISHED BY T HE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS IN THE S HAPE OF APPLICATION U/R 46A, WHICH ARE VERY MUCH RELEVANT AND ESSENTIA L IN ADJUDICATING THE ISSUES IN DISPUTE. HENCE, IN THE INTEREST OF J USTICE, I ADMIT THE AFORESAID SAID ADDITIONAL EVIDENCES AND SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE AO WITH THE DIRECTIONS TO DECIDE THE SAME, AFRESH, AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE AND PASS A SPEAKING ORDER. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 08-03-2019. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED :08-03-2019 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.