ITO, Jaipur V. BAKSA RAM, Jaipur

ITA 310/JPR/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5194 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 31-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P BATEJA CIT DHK
• Assessee Lawyers: S C JAIN
• Keywords: Capital asset; Cost of acquisition; Competent authority; Assessment record
• Section: 2(14); 54; 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, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF;D LN L; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO.310/JP/15 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07 THE INCOME TAX OFFICER, WARD 7(2), JAIPUR CUKE VS. SHRI BAKSHA RAM, VILLAGE THIKARIYA, AJMER ROAD, SANGANER, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AKTPR 6461 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.C. JAIN (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI O.P. BATEJA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17.06.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 04/07/2016. VKNS'K@ ORDER PER SHRI LALIET KUMAR, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-3, JAIPUR DATED 12.01.2015 WHEREIN THE REVENUE HAS TA KEN FOLLOWING GROUND OF APPEAL: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CITA(A) HAS ERRED IN DELETING THE ADDITION OF RS.2,24,21,023/- ON ACCOUNT OF LONG TERM CAPITAL GAIN. THE LD. CIT(A) HAS ERRED IN DELETING THE , THE ABOVE ADDITION ON THE BASIS THAT THE ABOVE LAND SOLD BY THE ASSES SEE IS SITUATED BEYOND 08. I.E. 8.2 KM. FROM THE LOCAL LIMITS OF JAIPUR MU NICIPAL CORPORATION, JAIPUR AS PER REPORT SUBMITTED BY THE TEHSILDAR OF JAIPUR NAGAR NIGAM, JAIPUR. HOWEVER, THE REPORT OF THE INSPECTOR FURNIS HED AFTER INSPECTION BY THE PATWARI AND IN THE PRESENCE OF THE ASSESSEES S ON HAS BEEN IGNORED TOTALLY. WHEN TWO CONFLICTING REPORTS OF GOVT. AUT HORITIES WERE ON RECORD THE SAME SHOULD HAVE BEEN GOT FURTHER VERIFIED RAT HER THAN IGNORE ONE ITA NO. 310/JP/15 THE ITO, WARD 7(2), JAIPUR VS. SHRI BAKSHA RAM, JAI PUR 2 COMPLETELY. HENCE THE RELIEF ALLOWED BY THE CIT(A) -3, JAIPUR IS COMPLETELY UNJUSTIFIED. 2. THE BRIEF FACTS OF THE CASE ARE THAT ORIGINALLY ASSESSMENT U/S 144 OF IT ACT WAS COMPLETED BY THE AO ON 09.03.2007 AND AMOUNT D EPOSITED IN THE BANK ACCOUNT FOR RS. 2,25,96,000/- WAS TAXED AS UNDISCLO SED INCOME. THE ASSESSEE WENT IN APPEAL AGAINST THIS ORDER BEFORE THE CIT(A )-3, JAIPUR AND SUBSEQUENTLY BEFORE ITAT, JAIPUR. THE HONBLE ITAT, JAIPUR BENC H WHILE DECIDING THE APPEAL IN ITA NO.60/JP/2011 DIRECTED THE AO TO RE-EXAMINE THE ISSUE OF DETERMINING THE DISTANCE OF AGRICULTURAL LAND SOLD BY THE ASSE SSEE FROM MUNICIPAL LIMIT OF JAIPUR AND APPLICABILITY OF PROVISIONS OF CAPITAL G AIN. THE PRESENT RE-ASSESSMENT IS COMPLETED BY THE AO AS PER THE DIRECTION OF THE HONBLE ITAT. AS REGARDS THE ISSUE OF LOCATION OF THE LAND THE A O HAS REQUESTED CEO, JAIPUR NAGAR NIGAM (MUNICIPAL CORPORATION) TO IDENT IFY THE EXACT LOCATION LIMIT OF MUNICIPALITY AS ALSO LOCATION OF LAND. THE TEHS ILDAR OF JAIPUR (TEHSIL) APPOINTED SHRI HIDAYATULLAH AN AMIN I.E. DESIGNATIO N OF A REVENUE OFFICIAL WHO ALONGWIH THE INSPECTOR OF INCOME TAX DEPARTMENT VIS ITED VILLAGE HASANPURA VASS, BHANKROTA IN THE PRESENCE OF THE AO AND KHAS ARA NO. 315 WAS LOCATED AS ALSO THE POINT WHERE MUNICIPAL LIMIT ENDED AT AJ MER ROAD AND WAS ALSO LOCATED. AS PER AO THE VILLAGE HASANPURA VASS BHAN KROTA WAS THE LAST VILLAGE OF THE MUNICIPALITY OF JAIPUR. THESE FACTS WERE ALSO CONFIRMED BY THE TEHSILDAR MUNICIPALITY JAIPUR VIDE CERTIFICATE DATED 22.02.20 13. THIS CERTIFICATE IS ALSO PART OF THE ASSESSMENT ORDER. THE AO FURTHER NOTED THAT AS PER NOTIFICATION DATED 06.01.1994, JAIPUR CITY WAS NOTIFIED AS MUNIC IPALITY AS REFERRED IN SECTION 2(14)(III)(B). THE JAIPUR MUNICIPALITY WAS EARLIER KNOWN BY THE NAME OF JAIPUR NAGAR PARISHAD AND NOW KNOWN AS JAIPUR NAGAR NIG AM. RIGHT FROM ITS INCEPTION IN 1994 THE JAIPUR MUNICIPALITY WAS HAVIN G 70 WARDS AND THE WARD 12 AT THAT TIME WAS HAVING VILLAGE HASANPURA VASS BHANKROTA IN ITS TERRITORY. ITA NO. 310/JP/15 THE ITO, WARD 7(2), JAIPUR VS. SHRI BAKSHA RAM, JAI PUR 3 AS PER AO AS PER GAZETTE NOTIFICATION OF GOVT. OF RAJASTHAN DATED 23.04.1992, THE JURISDICTION OF JAIPUR NAGAR PARISHAD WAS UPTO HASAMPURA VASS BHANKROTA. A COPY OF THE SUCH NOTIFICATION IS ALSO PART OF ASS ESSMENT ORDER AS PER ANNEXURE B. FURTHER FOR DETERMINING THE DISTANCE OF 8 KMS. FROM THE MUNICIPAL LIMIT, THE AO HAS CALLED THE CONCERNED PATWARI OF THE VILL AGE TO MEASURE THE DISTANCE OF THE PARTICULAR KHASRA FROM THE MUNICIPAL LIMITS. THE AO ALSO ISSUED A SHOW CAUSE NOTICE DATED 07.02.2013 INTIMATING THE ASSESS EE THAT AS PER THE REPORT OF THE INSPECTOR OF THE INCOME TAX THE LAND OF THE ASS ESSEE WAS SITUATED WITHIN 8 KMS. FROM THE MUNICIPAL LIMITS OF JAIPUR NAGAR NIGA M. THE SHOW CAUSE LETTER DATED 07.02.2013 IS ALSO PART OF THE ASSESSMENT ORD ER. IN THIS SHOW CAUSE NOTICE THE ASSESSEE WAS GIVEN OPPORTUNITY TO MEAS URE THE DISTANCE OF THE LAND FROM MUNICIPAL LIMIT OF JAIPUR ALONGWITH THE INSPECTOR OF INCOME TAX. IN COMPLIANCE OF THIS SHOW CAUSE NOTICE, SON OF THE AS SESSEE SHRI BABULAL VISITED THE LAND ON 15.02.2013. THE INSPECTOR SUBMITTED A REPORT STATING THAT THE LAND IN QUESTION WAS SITUATED AT 7.2 KMS FROM THE MUNICI PAL LIMITS OF JAIPUR NAGAR NIGAM. COPY OF THIS REPORT IS ALSO PART OF THE ASSE SSMENT ORDER AS ANNEXURE-C. ACCORDINGLY THE AO ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE REQUIRING AS TO WHY ON SALE OF SUCH AGRICULTURAL OF LAND CAPITAL G AIN MAY NOT BE LEVIED AND PROCEEDINGS WERE FIXED ON 19.02.2013. HOWEVER, THE ASSESSEE APPEAR TO HAVE NOT RESPONDED TO THE AOS NOTICE. AS PER AO THE LA ND WAS SOLD FOR CONSIDERATION OF RS.2,25,96,000/-. FOR DETERMINATI ON OF COST OF ACQUISITION THE AO RELIED ON THE INFORMATION RECEIVED FROM DIG STAM PS JAIPUR IN THE CASE OF SHRI BHANWAR LAL S/O SHRI AMER CHAND JAIN WHO HAS S OLD HIS LAND SITUATED AT VILLAGE THIKARIYA @ RS. 3272/- PER BIGHA ON 02.04.1 981. THE VILLAGE IN WHICH THE LAND WAS BY THE APPELLANT WAS ADJOINING TO VILL AGE THIKARIYA AND THEREFORE THE LAND RATE OF THE VILLAGE THIKARIYA AS PER SALE DEED IN THE CASE OF SHRI BHANWARLAL S/O AMERCHAND JAIN WERE ADOPTED AND THE INDEXED COST OF ITA NO. 310/JP/15 THE ITO, WARD 7(2), JAIPUR VS. SHRI BAKSHA RAM, JAI PUR 4 ACQUISITION OF 1.76 BIGHAS OF LAND WAS ARRIVED AT R S. 1,74,977/-. ACCORDINGLY THE LONG TERM CAPITAL GAIN WAS DETERMINED AT RS. 2,24,2 1,023/- (2,25,96,000/- - 1,74,977/-). 2.1 THE LD. CIT(A) HAS GIVEN HIS FINDING THAT : I HAVE CAREFULLY CONSIDERED THE FINDINGS OF THE AO AS ALSO THE SUBMISSIONS OF THE APPELLANT. IT MAY BE NOTED THAT THE PRESENT ASSESSMENT HAS BEEN COMPLETED AS PER THE DIRECTIONS OF HON. ITAT VIDE ORDER DATED 22.11.2011 AND THE HONBLE ITAT HAS DIR ECTED THAT IF ASSESSEE FILED AN EVIDENCE WITH REGARD TO DISTANCE OF THE LAND FOR LEVY OF CAPITAL GAIN, THE AO WILL EXAMINE THE SAME AND PASS THE ORDER KEEPING IN VIEW THAT WHETHER THE LAND WAS SITUATED WITHIN 8 KM S OF MUNICIPAL LIMIT OR NOT. THERE IS NO DISPUTE ON THE FACT THAT THE A SSESSEE HAS SOLD AGRICULTURAL LAND FOR RS. 2,25,96,000/-. FOR DETER MINING THE FACT AS TO WHETHER THE SOLD LAND WAS A CAPITAL ASSET OR NOT T HE AO HAS CONDUCTED NECESSARY INQUIRIES IN TERMS OF SECTION 2(14)(III)( B) OF IT ACT AND IT WAS FOUND THAT MUNICIPAL LIMIT JAIPUR AS ON DATE OF IS SUE OF NOTIFICATION DATED 06.01.1994 ENDED AT VILLAGE HASANPURAVASS BHA NKROTA AT AJMER ROAD LAND AT KHASRA NO.315 WAS THE LAST LAND OR THI S VILLAGE IN THE MUNICIPAL AREA. THAT FACT IS THAT OF MUNICIPAL LIM IT AS ON 6.1.1994 WAS ASCERTAINED AS PER THE TECHNICAL GUIDANCE PROVIDED BY THE TEHSILDAR AND EVEN THIS FACT IS ALSO NOT DISPUTED BY THE APPELLA NT. THE ONLY DISPUTE IS IN RESPECT OF DISTANCE OF THE LAND SOLD FROM THE MUN ICIPAL LIMIT AS ON 6.1.1994. AS PER THE AO THE DISTANCE WAS ASCERTAIN ED WITH THE HELP OF CONCERNED PATWARI OF THE VILLAGE BY THE INSPECTOR A ND ACCORDINGLY THE INSPECTOR SUBMITTED A REPORT STATING THAT THE LAND WAS SITUATED WITHIN 8 KMS OF THE MUNICIPAL LIMIT IE. WITHIN 8 KMS. I.E. 7.2 KMS FROM THE LAST POINT OF MUNICIPAL LIMITS. THE INSPECTORS REPORT I S DATED 15.02.2013. THE AOS CASE IS THAT DURING THE ASSESSMENT PROCEEDINGS THE APPELLANT DID NOT OBJECT SUCH REPORT OF THE INSPECTOR REGARDING D ISTANCE OF THE LAND. ON THE OTHER HAND THE APPELLANTS CASE IS THAT DURI NG THE ASSESSMENT PROCEEDINGS ITSELF AS REGARDS THE DISTANCE OF LAND, A CERTIFICATE ISSUED BY THE CONCERNED TEHSILDAR OF JAIPUR NAGAR NIGAM WAS F ILED ON 31.08.2012 AND AS PER THE CERTIFICATE DATED 23.11.2011 ISSUED BY THE TEHSILDAR THE LAND WAS SITUATED 8.2 KMS FROM THE MUNICIPAL LIMITS I.E. FROM THE POINT OF VILLAGE HASANPURAVASS . THE APPELLANT ALSO CONTEN DED THAT THE TEHSILDAR JAIPUR NAGAR NIGAM WAS THE COMPETENT REVENUE AUTHO RITY FOR ASCERTAINING THE DISTANCE AND CERTIFYING THE SAME. FOR SUCH SUBMISSION ITA NO. 310/JP/15 THE ITO, WARD 7(2), JAIPUR VS. SHRI BAKSHA RAM, JAI PUR 5 THE APPELLANT ALSO PLACED RELIANCE ON THE DECISION OF HON. PUNJAB AND HARIYANA HIGH COURT IN THE CASE OF CIT VS. LAL SIN GH & ORS. (2010) 228 ITR 577 WHEREIN IN THE SIMILAR CIRCUMSTANCES THE D ISTANCE OF LAND MEASURED BY THE REVENUE OFFICER WAS TREATED TO BE M ORE AUTHENTIC AS COMPARED TO THE MEASUREMENT DONE BY THE INSPECTOR OF INCOME TAX. AS REGARDS THE OBJECTION OF THE AO IN THE REMAND REPO RT THAT THE KHASRA NUMBER MENTIONED IN THE TEHSILDARS REPORT ARE NEW NUMBERS AS AGAINST THE KHASRA NUMBER MENTIONED IN THE SALE DEED, THE A PPELLANT SUBMITTED THAT THE KHASRA NUMBERS MENTION IN THE CERTIFICATE ARE OF THE SAME LAND AND IN FACT THESE KHASRA NUMBERS ARE THE NEW KHASR A NUMBERS AS AGAINST THE OLD ONE. IT WAS ALSO STATED THAT THE F ACTS OF KHASRA NUMBER OF THE LAND SOLD WERE SUBSEQUENTLY CHANGED WERE ALS O BROUGHT TO THE NOTICE OF THE AO AND SUCH EVIDENCE S ARE ALREADY PART OF THE ASSESSMENT PROCEEDINGS. AS REGARDS THE ANOTHER OBJECTION OF T HE AO THAT THE TEHSILDARS REPORT WAS NOT SPECIFIC AS ALSO THAT IN THIS REPORT THE DISTANCE IS STATED TO BE APPROXIMATELY DID NOT INDI CATE THAT THE LAND WAS SITUATED WITHIN 8 KMS AND THAT IN FACT THE LAND WAS SITUATED NEAR ABOUT 8.2KMS FROM THE MUNICIPAL LIMIT. IT WAS ACCORDINGL Y CONTENDED THAT AS THE LAND WAS SITUATED BEYOND 8 KMS. THEREFORE IT W AS NOT A CAPITAL ASSET IN TERMS OF SECTION 2(14) OF IT ACT AND THEREFORE T HE CAPITAL GAIN WAS NOT LEVIABLE. THE APPELLANT HAS ALSO DISPUTED INDEXED COST OF ACQUISITION AS ALSO THAT AGAINST THE SALE OF SUCH LAND SUBSEQUENTL Y AGRICULTURAL LAND WAS PURCHASED AND THEREFORE DEDUCTION U/S 54 SHOULD HAV E BEEN ALLOWED BY THE AO. ON CAREFULLY CONSIDERATION OF ALL THESE RE LEVANT FACTS IT MAY BE NOTED FOR DETERMINING THE MUNICIPAL LIMITS OF THE JAIPUR NAGAR NIGAM AS ON 6.1.1994 THE AO HAS RELIED ON THE TEHSILDAR OF THE JAIPUR NAGAR NIGAM. HOWEVER SUBSEQUENTLY FOR DETERMINING THE DI STANCE OF THE LAND FROM THE MUNICIPAL LIMITS OF JAIPUR NAGAR NAGAM, TH E AO IS NOT RELYING ON THE REPORT OF THE TEHSILDAR. THERE IS NO DISPUT E ON THE FACT THAT DURING THE ASSESSMENT PROCEEDING S ITSELF THE APPELLANT H AS FILED CERTIFICATE FROM THE TEHSILDAR ON 31.08.2012 AS PER WHICH THE L AND IN QUESTION WAS SITUATED ABOUT 8.2 KMS FROM THE MUNICIPAL LIMITS. IT IS ALSO FACT THE AO HAS NOT POINTED OUT ANY SUBSTANTIVE DEFECT IN THE REPORT OF TEHSILDAR. IT IS ALSO FACT THAT DESPITE THE CERTIFICATE OF THE TEH SILDAR DATED 23.11.2011 MADE AVAILABLE TO THE AO ON 31.08.2012, THE AO GOT MEASURED THE DISTANCE OF LAND FROM THE INSPECTOR ON 15.02.2013. FURTHER THE REPORT OF THE INSPECTOR IS NOT AUTHENTICATED BY ANY REVENUE A UTHORITY I.E. PATWARI OF THE TEHSILDAR. SIMILARLY THE AO HAS NOT POINTED OUT ANY DEFECTS IN THE REPORT OF THE TEHSILDAR AND THE APPELLANT COULD KNO W REGARDING THE NON ACCEPTANCE OF TEHSILDAR REPORT REGARDING LOCATION O F LAND AFTER ITA NO. 310/JP/15 THE ITO, WARD 7(2), JAIPUR VS. SHRI BAKSHA RAM, JAI PUR 6 COMPLETION OF ASSESSMENT ORDER. THE FACTS AVAILAB LE ON RECORD INDICATE THAT THE AO ISSUED SHOW CAUSE NOTICE TO THE APPELLA NT ON 07.02.2013 WHEREAS THE INSPECTORS REPORT IS DATED 165.02.2013 . IT INDICATED THAT THE INSPECTORS REPORT WAS ALSO NOT CONFRONTED TO THE APPELLANT. AS REGARDS THE OBJECTION OF THE AO THAT THE KHASRA NUM BER IN THE TEHSILDARS REPORT ARE DIFFERENT WITH THE KHASRA NUMBER MENTIO NED IN THE SALE DEED IT MAY BE NOTED THAT THE OLD KHASRA NUMBER OF THE S AME LAND HAVE SUBSEQUENTLY BEEN CHANGED AND THIS FACT WAS PROVED FROM THE JAMABANDHI REPORT ISSUED BY THE REVENUE AUTHORITIES WHICH WERE FURNISHED BEFORE THE AO AND WHICH ARE PART OF THE A SSESSMENT RECORD. IN FACT DURING THE APPELLATE PROCEEDINGS THE FACT THA T SUCH INFORMATION WAS FURNISHED AND IS PART OF THE ASSESSMENT RECORD WAS VERIFIED AD FOUND TO BE CORRECT. THE ABOVE FACT WILL INDICATE THAT W HEN THE AO IS RELYING ON THE REPORT OF THE TEHSILDAR FOR DETERMINING THE MUN ICIPAL LIMITS OF THE JAIPUR NAGAR NIGAM, THEN THERE WAS NO REASON NOT O ACCEPT THE REPORT OF THE TEHSILDAR ON THE DISTANCE OF LAND FROM THE MUNI CIPAL LIMIT. MOREOVER IT IS ALSO NOTED THAT THOUGH THE INSPECTOR HAS REPO RTED THAT THE LAND WAS SITUATED WITHIN 7.2 KMS FROM THE MUNICIPAL LIMITS B UT IT IS NOT KNOWN AS TO HOW THE LAND WAS MEASURED. EVEN DURING THE APPE LLATE PROCEEDINGS THE AO HAS NOT POINTED OUT ANY SUBSTANTIVE DEFECTS IN THE REPORT OF THE TEHSILDAR. THE DECISION OF HON. PUNJAB & HARIYANA HIGH COURT RELIED UPON BY THE APPELLANT ALSO SUPPORTS THE ASSESSEES CASE. KEEPING IN VIEW THE ABOVE FACTS IT IS HELD THAT THE LAND IN QUESTIO N SOLD BY THE ASSESSEE WAS NOT SITUATED WITHIN 8 KMS OF THE MUNICIPAL LIMI TS AND THEREFORE IT WAS NOT CAPITAL ASSET WITHIN THE MEANING OF SECTION N 2(14) OF THE IT ACT AND ACCORDINGLY CAPITAL GAIN WAS NOT LEVIABLE. ACC ORDINGLY THE ADDITION MADE BY THE AO IS DELETED. 2.2 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE TRIBUNAL VIDE ITS ORDER DATED 22.11 .2011 HAS REMANDED BACK THE MATTER TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMINE THE DISTANCE BETWEEN THE LAND OF ASSESSEE AND MUNICIPAL LIMIT OF JAIPUR. AT THE OUTSET,THE LD AR HAD SUBMITTED THAT IT IS NOT POSSIBLE FOR THE ASSESSEE TO PRODUCE THE RECORD OF THE APPLICATION FILED WITH THE OFFICE OF INFORMATION COMMISSIONER OF MUNICIPAL CORPORATION OF JAIPUR AND HAS SUBMITTED T HAT THE MATTER BE DECIDED ITA NO. 310/JP/15 THE ITO, WARD 7(2), JAIPUR VS. SHRI BAKSHA RAM, JAI PUR 7 ON MERIT, IN THE ABSENCE OF THE SAID APPLICATION. A CCORDINGLY WE ARE PROCEEDING TO DECIDE THE ISSUE UNDER CONSIDERATION ON MERIT. IN THE TRIBUNALS ORDER A REFERENCE WAS ALSO MADE TO THE RTI APPLICATION FILED BY THE ASSESSEE TO THE DISTRICT COLLECTOR DAT ED 20.09.2011 WHEREIN IT WAS MENTIONED THAT THE VILLAGE NAIWALA IS SITUATED OUTS IDE THE MUNICIPAL LIMIT OF JAIPUR . THE AR HAS DRAWN OUR ATTENTION TO THE CER TIFICATE ISSUED BY THE TEHSILDAR NAGAR NIGAM JAIPUR DATED 23.11.2011 WH EREBY IT IS MENTIONED THAT VILLAGE NAIWALA TEHSIL SANGANER IS SITUATED AT A DI STANCE OF 8.2 KMS FROM THE MUNICIPAL LIMIT OF JAIPUR NAGAR NIGAM. THE LD.AR I N SUPPORT OF HIS CONTENTIONS THAT THE PROPERTY IN QUESTION IS SITUATED AT A DIST ANCE OF MORE THAN 8 KMS TO THE GOOGLE MAP WHEREBY THE MOTOR ABLE DISTANCE BE TWEEN THE TWO POINTS WAS SHOWN AS 8.4 KMS. ON THE BASIS OF THE ABOVE TH E LD. AR HAS SUBMITTED THAT THE ORDER PASSED BY THE LD. AO WAS WRONG THEREFORE THE LD.CIT(A) HAS RIGHTLY HELD THAT THE LAND IS NOT A CAPITAL ASSET AS IT IS SITUATED AT A DISTANCE OF MORE THAN 8 KMS. ON THE OTHER HAND THE LD. DR IN SUPPORT OF APPEAL HAS SUBMITTED THAT AS PER THE REGISTERED DOCUMENTS OF THE ASSESSEE PURCHA SED THE AGRICULTURAL LAND IS SITUATED AT VILLAGE PRITHISUNGPURA URF NAIWALA T EHSIL SANGANER FROM JEEWAN LAL S/O LATE RAMDAS AND HAS SUBMITTED THAT THE AO BEFORE COMPLETING THE ASSESSMENT AS PER THE ORDER OF THE TRIBUNAL HAD GI VEN AN OPPORTUNITY TO THE ASSESSEE. HE HAS DRAWN OUR ATTENTION TO THE REPORT OF THE INSPECTOR DATED 15.02.2013 WHEREIN THE DISTANCE BETWEEN THE MUNICIP AL LIMIT AND THE PROPERTY OF THE ASSESSEE WAS SHOWN TO BE 7.2 KMS. HE HAS ALSO SUBMITTED THAT AFTER THE RECEIPT OF THE REPORT FROM THE INSPECTOR THE ASSESSEE WAS CALLED UPON TO GIVE HIS RESPONSE HOWEVER, ASSESSEE HAS NOT GIVE N ANY RESPONSE TO THE REPORT SUBMITTED BY THE INSPECTOR. AS A RESULT THE REOF THE ASSESSMENT PROCEEDINGS WERE COMPLETED. THE LD. DR HAS SUBMITTE D THAT RELIANCE PLACED BY ITA NO. 310/JP/15 THE ITO, WARD 7(2), JAIPUR VS. SHRI BAKSHA RAM, JAI PUR 8 THE CIT(A) ON THE REPORT OF THE MUNICIPAL CORPORATI ON OF JAIPUR, IS NOT CORRECT AS THE NAME OF THE VILLAGE AND DESCRIPTION OF THE P ROPERTY HAS NOT BEEN CORRECTLY MENTIONED AND FURTHER IT WAS SUBMITTED TH AT THE MUNICIPAL AUTHORITY CANNOT GRANT A CERTIFICATE CERTIFYING DISTANCE BE TWEEN THE LAST POINT OF THE MUNICIPAL LIMIT AND THAT OF THE PROPERTY OF THE ASS ESSEE. IN OUR VIEW THE SOLE ISSUE WHICH IS TO BE ADJUDICA TED IN THE PRESENT APPEAL S WHAT IS THE DISTANCE FROM THE LOCAL LIMI TS OF THE MUNICIPAL LIMITS OF THE JAIPUR AND THAT OF THE PROPERTY SOLD BY THE ASS ESSEE?. THE ASSESSEE HAD FILED A RIGHT TO INFORMATION LETTER DATED 20.09.201 1 WHEREIN IT IS SUBMITTED THAT THE VILLAGE NAIWALA DO NOT FALL WITHIN THE MUN ICIPAL LIMITS OF JAIPUR. THE ASSESSEE AND THE LD. CIT(A) BOTH RELIED UPON CERTIF ICATE ISSUED BY THE OFFICE OF MUNICIPAL CORPORATION, JAIPUR ON 23.11.2011 CERTIF YING THAT THE VILLAGE NAIWALA TEHSIL SANGANER (KHASRA NO. 161, 162 & 163) ARE SIT UATED AT A DISTANCE OF 8.2 KMS FROM THE MUNICIPAL LIMITS OF JAIPUR. THE SAID CERTIFICATE WAS ISSUED BY THE TEHSILDAR NAGAR NIGAM UNDER RTI. WE FAILED TO APPR ECIATE AS TO HOW THE OFFICE OF MUNICIPAL CORPORATION CAN GRANT A CERTIFICATE I N RESPECT TO THE PROPERTY SITUATED OUTSIDE MUNICIPAL LIMITS OF THE CORPORATI ON. IN OUR VIEW THE TEHSILDAR NAGAR NIGAM JAIPUR HAS ONLY JURISDICTION TO DEAL WI TH THE ISSUE/SUBJECT/PROPERTY/LAND FALLING WITHIN THE TERR ITORIAL JURISDICTION OF NAGAR NIGAM JAIPUR AND HAVE NO JURISDICTION TO ISSUE CERT IFICATE IN RESPECT TO THE PROPERTIES SITUATED OUTSIDE THE LIMITS OF NAGAR NIG AM JAIPUR . THEREFORE IN OUR VIEW THE TEHSILDAR NAGAR NIGAM WITH NO JURISDICTION TO ISSUE A CERTIFICATE IN RESPECT OF THE PROPERTY SITUATED OUTSIDE THE JURIS DICTION OF THE NAGAR NIGAM, JAIPUR. FOR THAT PURPOSE THE REVENUE AUTHORITY OF TEHSIL SANGANER IS HE COMPETENT AUTHORITY OR INSPECTOR OF THE REVENUE TO ISSUE A CERTIFICATE. IN OUR VIEW THE RELIANCE MADE BY THE ASSESSEE ON THE JUDGE MENT OF PUNJAB & HARYANA HIGH COURT IN THE MATTER OF LAL SINGH & OTHERS (201 0) 228 CTR 577 INSTEAD OF ITA NO. 310/JP/15 THE ITO, WARD 7(2), JAIPUR VS. SHRI BAKSHA RAM, JAI PUR 9 THE ESPOUSING THE CAUSE OF THE ASSESSEE, ESPOUSE TH E CAUSE OF THE REVENUE. IN THE SAID JUDGEMENT IT IS CLEARLY MENTIONED THAT THE CIT(A) HAS RIGHTLY NOT ACCEPTED THE REPORT O F THE INSPECTOR. IN THE SAID REPORT, NEITHER THE KHASARA NUMBER OF THE LAND OF THE ASSESSEE WAS GIVEN NOR IT HAS BEEN EXPLAINED HOW THE DISTANCE OF THE SAID L AND WITH THE MUNICIPAL LIMITS WAS MEASURED. EVEN OTHERWISE, WITHOUT THE HELP OF THE REVENUE OFF ICIALS, IT IS DIFFICULT FOR A PERSON TO IDENTIFY THE LAND AND THEN TO MEASURE THE DISTANCE OF THE SAID LAND WITH THE MUNICIPAL LIMITS. (EMPHASIS SUPPLIED BY THE BENCH ) THE OFFICIALS WORKING IN THE RTI OFFICE ARE NOT EQU IPPED TO IDENTITY OF THE SITUATED LAND IN TEHSIL SANGANER AND FOR THAT PURPO SE THE HELP OF THE REVENUE OFFICIALS OF TEHSIL SANGANER WAS REQUIRED TO IDENTI FY THE PROPERTY SOLD BY THE ASSESSEE. FURTHER THE CERTIFICATE RELIED UPON BY T HE ASSESSEE DATED 23.11.2011 HAS NOT PROVIDED ANY DETAILS AS TO HOW THE DISTANCE WAS CALCULATED BY THE TEHSILDAR NAGAR NIGAM, JAIPUR AND WHO HAD IDENTIFIE D THE PROPERTY OF THE ASSESSEE. ON THE OTHER HAND IF WE LOOK INTO THE RE PORT DATED 15.2.2013 OF THE INSPECTOR(INCOME TAX) RELIED UPON BY THE AO , IT CL EARLY SHOWS THAT THE INSPECTOR HAD PREPARED THE REPORT WITH THE HELP OF THE JURISDICTIONAL PATWARI AND WHILE PREPARING THE REPORT THE SON OF THE ASSES SEE WAS ALSO PRESENT. IN OUR VIEW THE REPORT OF THE INSPECTOR DATED 15.2.201 3 ON WHICH THE AO HAS RELIED IS MORE CREDIBLE THAN THAT OF CERTIFICATE IS SUED UNDER BY THE RTI OFFICE OF NAGAR NIGAM, JAIPUR. SINCE THE ASSESSEE HAS NOT APPEARED BEFORE THE AO IN RESPONSE TO THE REPORT DATED 15.02.2013 AND IN THE ABSENCE OF THE A SSESSEE THE AO HAS FINALISED THE ASSESSMENT, THEREFORE WE DEEM IT APPR OPRIATE TO REMAND THE MATTER TO THE FILE OF THE AO WITH THE DIRECTIONS TO THE ASSESSEE, TO FILE OBJECTIONS IF ANY AGAINST THE REPORT OF THE INSPECT OR DATED 15.2.2013. IT IS OPEN ITA NO. 310/JP/15 THE ITO, WARD 7(2), JAIPUR VS. SHRI BAKSHA RAM, JAI PUR 10 TO THE ASSESSEE AS WELL AS THE AO TO PREPARE A JOIN T REPORT WITH THE HELP OF THE JURISDICTIONAL PATWARIS AND JOINT REPORT SHALL BE DULY WITNESSED BY THE PARTIES AND THE OFFICIALS PRESENT DURING THE PREPARATION O F REPORT AND THEREAFTER THE PROCEEDING SHALL BE FINALIZED BY THE AO. IN THE LI GHT OF THE ABOVE THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04 /07 /2016. SD/- SD/- ( BHAGCHAND ) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER DATED:- 04 /07/2016 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD 7(2), JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- SHRI BAKSHA RAM, JAIPUR 3. VK;DJ VK;QDR@ CIT III, JAIPUR 4. VK;DJ VK;QDRVIHY@ THE CIT(A)-III, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 310/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR