Shri Manoj Singh Gautam, Dhar V. The ITO, Dhar

ITA 314/IND/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66768 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 25-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Capital asset; Opportunity of being heard; Additional evidence
• Section: 143(3); 54B; 2(14); 6

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 314/IND/2012 A.Y.2003-04 MANOJ SINGH GAUTAM, LABED, DIST. DHAR PAN ABTPG 7235 P :: APPELLANT VS ITO-DHAR :: RESPONDENT APPELLANT BY SHRI ANIL KAMAL GARG RESPONDENT BY SHRI R .A. VERMA DATE OF HEARING 18.12.12 DATE OF PRONOUNCEMENT 18.12.12 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 16.2.2012, PASSED BY LD. FIRST APPELLATE AUTHORITY, I NDORE, ON THE FOLLOWING GROUNDS OF APPEAL: 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN 1. CONFIRMING THE ORDER OF ASSESSMENT PASSED U/S 143(3) OF THE I.T. ACT, 1961 BY THE ASSESSING OFFIC ER, WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 2. CONFIRMING THE ADDITION OF RS.7,64,597/- MADE BY THE ASSESSING OFFICER UNDER THE HEAD SHORT TERM CA PITAL GAIN ON SALE OF CERTAIN AGRICULTURAL LAND WITHOUT CONSIDERING THE MATERIAL FACT THAT THE SUBJECT AGRI CULTURAL LAND WAS NOT A CAPITAL ASSET WITHIN THE MEANING OF CLAUSE (14) OF SECTION 2 OF THE I.T. ACT, 1961. 3. CONFIRMING THE ADDITION OF RS.20,000/-, MADE BY THE ASSESSING OFFICER, BY ESTIMATING TRUCK PLYING INCOM E AT RS.85,000/- AS AGAINST THE SAME SHOWN BY THE APPELL ANT AT RS.65,000/-. 4. CONFIRMING THE ACTION OF THE LD. ASSESSING OFFICER IN MAKING ADDITION OF RS.32,000/- UNDER THE HEAD INCO ME FROM OTHER SOURCES BY HOLDING A PORTION OF THE AGRICULTURAL INCOME SHOWN BY THE APPELLANT AS NON- AGRICULTURAL INCOME. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHRI AN IL KAMAL GARG, LD. COUNSEL FOR THE ASSESSEE AND SHRI R.A. VERMA, LEARNED SR. DR. THE ASSESSEE HAS ALSO FILED APPLICATION FOR ADMISSION OF ADDL. EVIDENCE BY INVITING OUR ATTENTION TO THE CERTIFICATE, ISSUED BY THE TEHSILDAR AND THE SURPANCH OF THE VILLAGE PANCHYAT, ALONG WITH FORM B(1) KISHTBANDI KHATAUNI. IT WAS CONTENDED BY THE LEARNED 3 COUNSEL FOR THE ASSESSEE THAT THESE DOCUMENTS GO TO THE ROOT OF THE MATTER. THE LD. SR. DR CONTENDED THAT THE ASSESSEE WAS EXPECTED TO PRODUCE THESE DOCUMENTS BEFO RE THE ASSESSING OFFICER BUT DELIBERATELY NOT FILED. HE FURTHER CONTENDED THAT APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE SHOULD HAVE BEEN FILED UNDER RULE 29, ITAT RULES 1963, WHEREAS ASSESSEE HAS WRONGLY FILED THE SAME UNDER RULE 18(4) OF I.T.A.T. RULES. WE ARE IN AGREEMENT WIT H THE CONTENTION OF LD. SR. DR SHRI VERMA THAT SUCH APPLICAT ION SHOULD HAVE BEEN FILED UNDER RULE 29 OF ITAT RULES. HOWEVER, MERELY ON TECHNICALITIES, THE ADDITIONAL EVID ENCE PRODUCED BY ASSESSEE CANNOT BE DECLINED, AS THE SAME G OES TO ROOT OF THE MATTER. IT WAS PLEADED THAT THE ASSESSIN G OFFICER MAY BE PROVIDED OPPORTUNITY TO EXAMINE THE C LAIM OF THE ASSESSEE SO THAT THE INTEREST OF THE REVENUE M AY BE SAFEGUARDED. 4 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS EARNING INCOME FROM PLYING OF TRUCKS , SHARE INCOME FROM PARTNERSHIP FIRM AND WAS ALSO POSSESSING AGRICULTURAL LAND. IN THE ABSENCE OF DETAILS OF EXPENDI TURE FOR EARNING INCOME FROM AGRICULTURE, THE ASSESSING OF FICER ESTIMATED THE AGRICULTURAL INCOME AT RS.7,500 PER ACRE WHICH WORKED OUT TO RS.2,28,000/- AND THE REMAINING AMOUNT OF RS.32,000/- WAS ASSESSED AS INCOME FROM OTHER SOURCES. IT WAS ALSO OBSERVED BY THE ASSESSING OFFICE R THAT BROTHER OF THE ASSESSEE SHOWED AGRICULTURAL INCOME AT RS.7,666 PER ACRE FROM 29.35 ACRES. THE ASSESSEE ALSO S OLD LAND AND CLAIMED THE BENEFIT OF SEC. 54B OF THE ACT. T HE ASSESSING OFFICER CONCLUDED THAT THE GAIN OF RS.7,64, 597/- FROM THE SALE OF LAND ATTRACTS LIABILITY OF TAX OF SHORT TERM CAPITAL GAIN, THEREFORE, HE ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. THE CLAIM OF THE ASSESSEE WAS THAT 5 THE IMPUGNED LAND WAS SITUATED BEYOND THE PRESCRIBED MUNICIPAL LIMIT. THERE IS NO FINDING IN THE ASSESSMEN T ORDER ON THIS ISSUE REGARDING THE LOCATION OF THE LAND FROM THE MUNICIPAL LIMIT. THE ASSESSEE HAS ALSO RAISED A GROU ND THAT THE ASSESSMENT WAS FRAMED WITHOUT PROVIDING PROPER OPPORTUNITY AND THUS, THE ADDITION WAS CHALLENGED BY CLAIMING THAT THE AGRICULTURAL LAND WAS NOT A CAPITAL ASSET WITHIN THE MEANING OF SEC. 2(14) OF THE ACT. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE HAS FILED APPLICATION F OR ADMISSION OF ADDITIONAL EVIDENCE IN THE FORM OF CERTI FICATE BY PATWARI DATED 10.5.2012, ACCORDING TO WHICH AGRICULTURAL LAND WAS SITUATED OUTSIDE THE MUNICIPAL LIMI T. WITHOUT GOING INTO MUCH DELIBERATION, SINCE THE ADDIT IONAL EVIDENCE WAS NOT AVAILABLE BEFORE THE REVENUE AUTHORITI ES BUT GOES TO THE ROOT OF THE MATTER, THEREFORE, IT RE QUIRES FRESH EXAMINATION. EVEN BEFORE THE LD. CIT(A), THE ASS ESSEE HAS DISPUTED THE ISSUE OF CAPITAL ASSET WITHIN THE MEANI NG 6 OF SEC. 2(14) OF THE ACT ALONG WITH OTHER GROUNDS. T HE DOCUMENTS FILED BEFORE THE TRIBUNAL BY WAY OF ADDITI ONAL EVIDENCE ARE FRESH DOCUMENTS, THEREFORE, NEED EXAMINAT ION BY THE ASSESSING OFFICER SO THAT THE INTEREST OF REV ENUE AS WELL AS OF THE ASSESSEE MAY BE PROTECTED, CONSEQUENTL Y, WE DEEM IT APPROPRIATE TO ADMIT THE ADDITIONAL EVIDENCE AND REMAND THE SAME TO THE FILE OF THE LD. ASSESSING OFFI CER TO EXAMINE THE CLAIM OF THE ASSESSEE AFRESH FOR WHICH DUE OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO F URNISH EVIDENCE, IF ANY, BE PROVIDED TO THE ASSESSEE. THE L D. ASSESSING OFFICER IS DIRECTED TO EXAMINE THE CLAIM OF THE ASSESSEE REGARDING DISTANCE OF THE LAND FROM THE MUNICI PAL LIMIT AND THEN DECIDE THE ISSUE OF SHORT TERM CAPITAL GAINS AFRESH AS PER LAW. THUS, ALL THE GROUNDS RAISED IN THE APPEAL ARE REMANDED BACK FOR FRESH ADJUDICATION AS NO PERSON SHOULD BE CONDEMNED UNHEARD. THEREFORE, THE 7 APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE S ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT TH E CONCLUSION OF THE HEARING ON 18.12.2012. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 18.12.2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYS!