Late Sh. Laxmi Chand, Delhi V. ITO, New Delhi

ITA 3163/DEL/2014

• Counselvise Citation: 316320114 RSA 2014
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 06-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 22-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN RAWAL
• Assessee Lawyers: K C PAHUJA
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH SMC - 2 : NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 3163 /DEL/201 4 A.Y. : 200 9 - 10 LATE SH. LAXMI CHAND, VS. ITO, WARD - 35 ( 2 ), THROUGH LEGAL HEIR SH. MAEHNDER SINGH, VIKAS BHAWAN, NEW DELHI IX/5253, MAIN ROAD, OLD SEELAMPUR, DELHI 110 0031 (PAN : AMNPC3086B) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. K.C. PAHUJA, ADV. DEPARTMENT BY : SH. ROBIN RAWAL, SR. DR DATE OF HEARING : 09 - 7 - 2015 DATE OF ORDER : 0 9 - 7 - 2015 PER H.S. SIDHU: JM O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) , MEERUT DATED 17 . 2 .201 4 PERTAINING TO ASSESSMENT YEAR 200 9 - 10 . 2. T HE GROUNDS OF APPEAL READ AS UNDER: - I) THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ITO, WARD 35(2), NEW DELHI WRONGLY PASSED THE ASSESSMENT ORDER DATED 27.12.2011 U/S. 143(3) AT INCOME OF RS. 13,91,221/ - AS AGAINST THE INCOME DECLARED AT RS. 37 ,891/ - WHICH HAS BEEN WRONGLY CONFIRMED BY THE LD. CIT(A). 2 II) THAT THE LD. CIT(A) HAS WRONGLY HELD THAT THE LAND WAS NOT BEING USED FOR AGRICULTURAL PURPOSES PRIOR TO ITS ACQUISITION BY THE GOVT. AND HAS WRONGLY DENIED THE EXEMPTION CLAIMED BY THE APPE LLANT U/S. 10(37) OF THE I.T. ACT, 1961. (III) THAT THE LD. CIT(A) HAS WRONGLY UPHELD THE DISALLOWANCE OF RS. 12,81,330/ - MADE BY THE AO. (IV) THAT THE ADDITION OF RS. 12,81,330/ - MAY KINDLY BE DELETED BY THIS HON BLE TRIBUNAL. 3. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 4. THE RELEVANT FINDING OF THE LD. CIT(A) VIDE PARA NO. 6 AT PAGE NO. 3 - 4 OF THE IMPUGNED ORDER IS REPRODUCED BELOW: - 6. GROUND NOS. 3 & 4 ARE AGAINST THE DENIAL OF SECTION 10(37) BENEFIT FOR RS. 12,81,330/ - RECEIVED BY THE APPELLANT FOR LAND ACQUIRED BY THE GOVERNMENT FROM HIM. THE BASIC CRITERIA FOR 10(37) EXEMPTION IS THE LAND SHOULD BE AGRICULTURA L. DURING THE ASSESSMENT PROCEEDINGS, APPELLANT FAILED TO PRODUCE ANY EVIDENCE TO PROVE THAT THE LAND ACQUIRED WAS USED FOR AGRICULTURAL PURPOSES PRIOR TO ITS ACQUISITION. EVEN DURING THE APPELLATE PROCEEDINGS, APPELLANT FAILED TO PRODUCE ANY EVIDENCE TO PRO VE THAT THE 3 LAND WAS USED FOR AGRICULTURAL PURPOSES PRIOR TO THE ACQUISITION OF LAND BY THE GOVERNMENT AND EXPECTED THE APPELLATE AUTHORITIES TO PRESUME THAT SINCE THE ACQUISITION WAS DONE YEARS AGO THE LAND WAS AGRICULTURAL. THE EVIDENCE SUBMITTED BY THE APPELLANT DURING THE APPELLATE PROCEEDINGS IN THE FORM OF COURT'S ORDER IN LAC NO. 132/93 DATED 01.11.1999 OF ADDITIONAL DISTRICT JUDGE, DELHI IS ALSO AGAINST THE APPELLANT. IT CLEARLY STATES THAT THE APPELLANT PLEA BEFORE THE COURT WAS THAT THE LAND IN QU ESTION WAS HABITABLE PLOTS MEANT FOR BUILDING HOUSES AND SHOPS AND THEREFORE ENTITLED FOR A HIGHER COMPENSATION. THE ORDER ALSO STATES THAT THE CLASSIFICATION MADE BY THE GOVERNMENT FOR COMPENSATION WAS BASED ON ITS AGRICULTURAL UTILITY AND DONE WITHOUT CO NSIDERING THE LAND'S UTILITY AS A BUILDING SITE. THEREFORE, THE APPELLANT HAD CLAIMED BEFORE THE ADDITIONAL DISTRICT COURT THAT THE LAND WAS NOT AGRICULTURAL IN NATURE IN ORDER TO ENHANCE HIS COMPENSATION AND AT THE SAME TIME FOR INCOME TAX PURPOSES THE AP PELLANT CLAIMS THAT THE LAND IS AGRICULTURAL TO CLAIM EXEMPTION U / S 10(37) OF THE LT. ACT. IN THE ABSENCE OF ANY EVIDENCE THAT THE LAND WAS USED FOR AGRICULTURAL PURPOSES PRIOR TO ITS ACQUISITION BY THE 4 GOVERNMENT, I AM CONSTRAINED TO SUSTAIN THE DISALLOWA NCE OF RS. 12,81,330 / - MADE BY THE A.O. THE ONUS WAS ON THE APPELLANT TO PROVE THAT HE IS ENTITLED FOR 10(37) EXEMPTION AS IT IS HE WHO HAD CLAIMED THAT THE COMPENSATION RECEIVED BY HIM OF RS. 12,81,330 / - WAS EXEMPT FROM TAX . SINCE THE APPELLANT HAS FAILED TO DO SO DURING THE ASSESSMENT PROCEEDINGS OR DURING THE APPELLATE PROCEEDINGS, GROUND NO. 3 & 4 ARE REJECTED AND THE DISALLOWANCE OF RS. 12,81,330 / - MADE BY THE A.O. IS SUSTAINED. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS PASSED BY TH E REVENUE AUTHORITIES ALONGWITH THE SMALL PAPER BOOK FILED BY THE LD. COUNSEL OF THE ASSESSEE CONTAINING PAGES 1 TO 76 IN WHICH HE HAS ATTACHED THE COPY OF THE LD. CIT(A) ORDER DATED 17.2.14; GROUNDS OF APPEAL IN FORM NO. 36; ASSESSMENT ORDER DATED 27.12 .2011; GROUNDS OF APPEAL IN FORM NO. 35 FILED BEFORE CIT(A); WRITTEN SUBMISSION DATED 13.12.2013 FILED BEFORE THE CIT(A); COPY OF ACKNOWLEDGEMENT RECEIPT FOR FILING THE RETURN; COMPUTATION OF INCOME; COPY OF BANK PASS BOOK OF THE BANK ACCOUNT MAINTAINED WITH OBC; COPY OF THE ORDER PASSED BY THE LAC IN LA NO. 769 / 1963; COPY OF THE JUDGMENT PASSED IN REFERENCE PETITION U/S. 18 OF THE LAND ACQUISITION ACT AND COPY OF FORM 16A. I AM OF THE VIEW THAT THE LD. CIT(A) HAS NOT GIVEN ANY SUFFICIENT 5 OPPORTUNITY F OR SUBSTANTIATING ITS CLAIM BEFORE HIM. KEEPING IN VIEW OF THE EVIDENCES FILED BY THE LD. COUNSEL OF THE ASSESSEE IN THE FORM OF PAPER BOOK MENTIONED ABOVE, I AM OF THE CONSIDERED VIEW THAT THE MATTER REQUIRES READJUDICATION AT THE LEVEL OF THE AO FOR SUB STANTIATING ITS CLAIM. ACCORDINGLY, I SET ASIDE THE ISSUES IN DISPUTES TO THE FILE OF THE AO WITH THE DIRECTION TO DECIDE THE SAME AFRESH, UNDER THE LAW, AFTER CONSIDERING THE EVIDENCES FILED BEFORE THE TRIBUNAL. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09 /7/201 5 . SD/ - [ H.S. SIDHU ] JUDICIAL MEMBER DATE: 09 /7/201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES