Late Smt. Sushilaben Chandulal Kansara, Ahmedabad V. Income Tax Officer, Ward-6(5), Ahmedabad

ITA 3491/AHD/2014

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5526 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 29-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Additional evidence
• Section: 143(3); 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO.3491/AHD/2014 (ASSESSMENT YEAR : 2010-11) LATE SMT. SUSHILABEN CHANDULAL KANSARA, 3, GAZETTED OFFICE SOCIETY, OPP. ARJUN COMPLEX, NEAR RATNAMANI FLAT, GHATLODIA, AHMEDABAD-380 061. VS. INCOME TAX OFFICER, WARD-6(5), AHMEDABAD. [PAN NO. BKOPK 2069 Q] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI PRITESH SHAH, A.R. RESPONDENT BY : SHRI JAYANT JHAVERI, SR.D.R. DATE OF HEARING 12.12.2018 DATE OF PRONOUNCEMENT 30.01.2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS AGAINS T THE ORDER DATED 17.09.2014 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- XI, AHMEDABAD ARISING OUT OF THE ORDER DATED 28.03.2013 FOR THE ASSESSMENT YEAR 2010 -11 PASSED BY THE ITO, WD.-6(5), AHMEDABAD UNDER SECTION 143(3) R.W.S. 147 AND 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS TO THE ACT) WITH THE FOL LOWING GROUNDS: 1. THE LD. CIT(A) ERRED IN LAW AND IN FACTS CONFIRMIN G THE ADDITION MADE BY AO OF RS.3,98,749/- AS SHORT TERM CAPITAL GAIN, WHICH IS REQUESTED TO BE DELETED. - 2 - ITA NO.3491/AHD/2014 LATE SMT. SUSHILABEN C. KANSARA VS. ITO ASST.YEAR 2010-11 2. THE BRIEF FACTS LEADING TO THIS CASE IS THIS THA T THE ASSESSEE SOLD OUT A PROPERTY BEARING SURVEY NO.685 AND 717/2 ON 11.01.2010 TO ON E SHRI KALAJI GALAJI THAKOR FOR A CONSIDERATION OF RS. 7,61,000/- IN F.Y. 2009-10 REL EVANT TO A.Y. 2010-11. THE LEARNED AO CONSIDERED THE DETAILS OF THE PROPERTY FOR WORKI NG OF CAPITAL GAINS. SINCE NO ASSISTANCE WAS GIVEN BY THE ASSESSEE, AS OBSERVED B Y THE LEARNED AO TAKING INTO CONSIDERATION, THE LAND AS NOT AGRICULTURAL IN NATU RE SHOW-CAUSE NOTICE WAS SERVED UPON THE ASSESSEE TO EXPLAIN AS TO WHY SHORT TERM CAPIT AL GAIN SHOULD NOT BE ADDED TO THE TOTAL INCOME. ULTIMATELY, THE LEARNED AO ON THE BAS IS OF THE DETAILS FURNISHED BY THE ASSESSEE CONSIDERED THAT THE PROPERTY SITUATED WITH IN THE MUNICIPAL LIMIT AND SHORT TERM CAPITAL GAIN OF RS.3,98,749/- WAS ADDED TO THE TOT AL INCOME OF THE ASSESSEE. 3. IN APPEAL, THE ADDITIONAL EVIDENCES WERE FILED B Y THE APPELLANT IN THE FORM OF CERTIFICATE FROM GRAM PANCHAYAT SO AS TO ESTABLISH THAT THE LAND IN QUESTION IS SITUATED, NOT WITHIN THE MUNICIPAL LIMITS WITH AN ADDED FACT THAT THE POPULATION OF THE VILLAGE IS LESS THAN 10,000 AND THUS THE PROFIT ON SALE OF AGRICULT URE LAND IS EXEMPTED U/S 2(14) OF THE ACT. HOWEVER, SUCH ADDITIONAL EVIDENCES PLACED BEFO RE THE LEARNED CIT(A) WERE NOT CONSIDERED ON THIS PARTICULAR GROUND THAT THE ASSES SEE FAILED TO EXPLAIN THE REASON FOR NON- FILING OF THE SAID CERTIFICATE AT THE TIME OF ASSES SMENT PROCEEDINGS, NEITHER THE CERTIFICATE IS FROM THE PROPER AUTHORITY AND ULTIMATELY THE ORD ER PASSED BY THE LEARNED AO WAS CONFIRMED. HENCE, THE INSTANT APPEAL. 4. AT THE TIME OF HEARING OF THE APPEAL, THE LEARNE D ADVOCATE APPEARING FOR THE ASSESSEE TAKEN US TO THE APPLICATION FOR ALLOWING T HE ADDITIONAL EVIDENCE SO PLACED BEFORE THE LEARNED CIT(A) BEING PAGES 20 TO 22 OF THE PAPE R BOOK BEFORE US. APART FROM THAT, THE CERTIFICATE ISSUED BY THE AUTHORITY BEING THE E XECUTIVE ENGINEER, R & D DIVISION, DEHGAM VILLAGE, DIST. GANDHINAGAR AS ALSO THUS CERT IFIED BY THE LOCAL AUTHORITY I.E. AMRABHAI NA MUVADA VILLAGE, TALUKA DEHTAM DIST. GAN DHINAGAR DATED 19.04.2014 WAS - 3 - ITA NO.3491/AHD/2014 LATE SMT. SUSHILABEN C. KANSARA VS. ITO ASST.YEAR 2010-11 ALSO PLACED ON RECORD BEING PART OF THE PAPER BOOK. HE, FURTHER CONTENDED THAT IT APPEARS FROM THE CERTIFICATE ISSUED BY THE CONCERNED AUTHOR ITIES THAT THE LAND IN QUESTION IS BEYOND THE MUNICIPAL LIMIT AS SPECIFIED BY THE STATUTE AND THE POPULATION THEREOF IS LESS THAN 10,000 CLEARLY CATEGORIZED LAND AS AGRICULTURAL IN NATURE AND THEREFORE EXEMPTION U/S 2(14) OF THE ACT IS TO BE GRANTED TO THE ASSESSEE. IN SUPPORT OF HIS ARGUMENT HE ALSO RELIED UPON THE JUDGMENT OF HONBLE ITAT, INDORE BENCH IN THE CASE OF ITO-VS-ASHOK SHUKLA REPORTED IN [2012] 28 TAXAMANN.COM 112 (INDORE) ON THE POINT THAT EVEN ANY AGRICULTURAL ACTIVITY CARRIED OUT BY THE ASSESSEE AND THE LAND S ITUATED WAS BEYOND 8 KMS FROM THE MUNICIPAL LIMIT TO BE TREATED AS NON-AGRICULTURE LA ND U/S 2(14)(III) SUB CLAUSE (B) OF THE ACT WHILE ANSWERING THE CONTROVERSY RELATING TO THE AGRICULTURAL ACTIVITY SO RAISED BY THE AUTHORITIES BELOW. ON THE CONTRARY, THE LEARNED DR RELIED UPON THE ORDER PASSED BY THE AUTHORITIES BELOW. 5. HEARD THE RESPECTIVE PARTIES, PERUSED THE RELEVA NT MATERIALS AVAILABLE ON RECORD. IT APPEARS FROM THE RECORDS THAT THE ASSESSEE THOUGH F AILED TO PRODUCE THE DOCUMENTS IN SUPPORT OF HIS CLAIM ARISING OUT OF THE ISSUE THAT THE LAND IN QUESTION IS AN AGRICULTURE ONE BEFORE THE LEARNED AO DULY PLACED THE SAME BEFORE T HE LEARNED CIT(A) AS ADDITIONAL EVIDENCES AS APPEARING FROM PAGES 17-24 OF THE PAPE R BOOK BEFORE US. THE APPLICATION UNDER RULE 46A OF THE INCOME TAX RULE FOR TAKING IN TO CONSIDERATION THE ADDITIONAL EVIDENCE BY THE COMMISSIONER OF INCOME TAX IS ALSO ON RECORD AT PAGES 20 & 21 OF THE PAPER BOOK. STATEMENT AND/OR EXPLANATION THEREOF FO R NOT PLACING THE SAME BEFORE THE LEARNED AO AS ALSO BEEN SUFFICIENTLY PLEADED IN PAR AGRAPH 2 & 3 WHICH IS AS FOLLOWS: 2.2 I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS ION. PERUSAL OF ASSESSMENT ORDER REVEALS THAT THE APPELLANT SOLD IMMOVABLE PRO PERTY SITUATED AT VILLAGE AMARAJI NA MUVADA, TAL. DEHGAM, DIST. GANDHINAGAR, SURVEY NO.685 AND 717/2 TO SHRI KALAJI GALAJI THAKOR, NIKOL, AHMEDABAD FOR A SALE CONSIDERATION OF RS.7,61,000/- ON 11/01/2010 I.E. IN F.Y.2009-10 REL EVANT TO A.Y. 2010-11. DURING THE ASSESSMENT PROCEEDINGS THE A.O. ASKED THE ASSES SEE TO FURNISH THE COPY OF SATE DEED AND PURCHASE DEED OF SOLD PROPERTY IN RESPONSE TO WHICH THE ASSESSEE - 4 - ITA NO.3491/AHD/2014 LATE SMT. SUSHILABEN C. KANSARA VS. ITO ASST.YEAR 2010-11 SUBMITTED COPY OF HAK PATRAK AND CLAIMED PURCHASE P RICE FOR RS. 4,53,000/-. ON VERIFICATION OF THE DETAILS IT CAME TO THE NOTICE O F THE A,O. THAT THE ASSESSEE IS IN POSSESSION OF LAND BEARING SURVEY NO.685, 717/1 AND 717/2 OUT OF WHICH THE ASSESSEE HAS SOLD OUT LAND BEARING SURVEY NO.685 AN D 717/2. THE APPELLANT HAS FILED ADDITIONAL EVIDENCE IN THE FORM OF CERTIFICATE FROM VILLAGE PANCHAYAT. THE CERTIFICATE HAS BEEN FILED AT THE TIME OF APPELLATE PROCEEDINGS WITHOUT EXPLANATION OF REASON OF NON FI LING OF THIS CERTIFICATE AT THE TIME OF ASSESSMENT PROCEEDINGS. THE CERTIFICATE IS ALSO NOT FROM PROPER AUTHORITY HENCE IT CANNOT BE CONSIDERED AT THIS STAGE. 2.3 THE ABOVE FACTS CLEARLY INDICATE THAT THE A.O, HAS ESTABLISHED THE FACT THAT THE IMPUGNED PROPERTY IS SITUATED IN THE MUNICIPAL LIMITS OF AHMEDABAD MUNICIPAL CORPORATION. SINCE THE IMMOVABLE PROPERTY SOLD BY T HE APPELLANT IS SITUATED IN AHMEDABAD MUNICIPAL CORPORATION, ACCORDINGLY, I HOL D THAT THE IMMOVABLE PROPERTY SOLD BY THE APPELLANT IS A CAPITAL ASSET A S PER THE PROVISIONS OF SEC.2(14) OF THE I.T. ACT, 1961. I HAVE ALSO GONE THROUGH THE COMPUTATION OF S.T.C.G. MADE BY THE A.O. AND THE SAME APPEARS TO BE AS PER THE P ROVISIONS OF I.T. ACT, 1961 . IN VIEW OF ABOVE, I AM OF THE CONSIDERED VIEW THAT THE A.O. HAD CORRECTLY WORKED OUT THE SHORT TERM CAPITAL GAIN OF RS.3, 98,749/- ON SA LE OF THIS IMMOVABLE PROPERTY. ACCORDINGLY, ADDITION OF RS.3,98,749/- IS CONFIRMED . THIS GROUND OF APPEAL IS DISMISSED. 6. IT IS A SETTLED PRINCIPLE OF LAW IF THE EXPLANAT ION IN THE APPLICATION UNDER RULE 46A OF THE INCOME TAX RULE IS FOUND TO BE SUFFICIENT TH EN THE SAME SHOULD HAVE BEEN CONSIDERED BY THE AUTHORITIES BELOW. IN THIS PARTIC ULAR CASE, THE CIT(A), HOWEVER DID NOT CONSIDER THE SAME WITHOUT ASSIGNING ANY REASON WHIC H WAS DULY INCUMBENT UPON HIM UNDER THE STATUTE WHICH VITIATES THE ENTIRE PROCEED INGS BEFORE THE FIRST APPELLATE AUTHORITY. IT IS PERTINENT TO MENTION THAT THE REASONS ASSIGNE D BY THE ASSESSEE IN THE APPLICATION UNDER RULE 46A OF THE ACT FOR NOT BEEN ABLE TO PROD UCE THE SAME BEFORE THE LEARNED AO IS JUSTIFIED. IN THAT VIEW OF THE MATTER, WE FIND I T FIT AND PROPER TO REMIT THE ISSUE TO THE FILE OF THE LEARNED CIT(A), DIRECTING HIM TO CONSID ER THE ADDITIONAL EVIDENCES PLACED BY THE ASSESSEE AND TO VERIFY THE ISSUE ON THAT BASIS AND TO PASS A FRESH ORDER ON THE ISSUE INVOLVED IN THIS PARTICULAR CASE. WHILE DOING SO, T HE LEARNED CIT(A) IS FURTHER DIRECTED TO - 5 - ITA NO.3491/AHD/2014 LATE SMT. SUSHILABEN C. KANSARA VS. ITO ASST.YEAR 2010-11 TAKING INTO CONSIDERATION ANY OTHER EVIDENCE AND/OR JUDGMENT PASSED BY THE COURT OF LAW WHICH THE ASSESSEE MAY CHOOSE TO FILE AT THE TIME O F THE HEARING OF THE APPEAL. THUS ASSESSEES APPEAL IS ALLOWED. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 30/01/2019 SD/- SD/- ( WASEEM AHMED ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 30/01/2019 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)-XI, AHMEDABAD. 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 24/01/2019 (DICTATION PAGES 7) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25/01/2019 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 30/01/2019 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER