SHRI GURDEV SINGH S/O SHRI SANTOKH SINGH, NAWANSHAHAR V. INCOME TAX OFFICER, NAWANSHAHAR

ITA 360/ASR/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 2074 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 14-05-2019
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Assessee Lawyers: VIKAS SHARMA
• Keywords: Additional evidence; Competent authority
• Section: 2(14)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No. 360/ASR/2019 (Assessment Year: 2012-13) Sh. Gurdev Singh S/o Sh. Santokh Singh, VPO-Sujon, Nawanshahr 144 022 [PAN: BEMPS 4875J] (Appellant) Vs. ITO-Ward Nawanshahr Punjab. (Respendent) Appellant by Sh. Vikas Sharma, Advocate Respondent by Sh. Sunil Gautam, CIT-DR Date of Hearing 11.05.2022 Date of Pronouncement 29.06.2022 ORDER Per: Anikesh Banerjee, JM: The instant appeal is directed against the order of Ld. Commissioner of Income Tax(Appeal)-1, Jalandhar {in brevity CIT(A)} bearing appealno.CIT(A)-1/JAL/10036/2018-19, order dated 22.02.2019 passed u/s. 250(6) of the Income tax Act, 1961 (in brevity the Act) for Assessment year 2012-13. The impugned order was originated from the order of Income Tax 2 Officer, Nawanshahr (in brevity A.O) The order passed u/s. 147/143(3) of the Act, the order dated 26.12.2017. 2. The brief fact of the case is that during the assessment year, the assessee sold a plot measuring 26 Kanal 19 Marlas Rakba Rupawal-48 Tehsil Garhshankar, the sale consideration amount of Rs.37,50,000/- executed on dated 10.06.2011. The said plot was purchased on dated 08.11.2010 for an amount to Rs,22,00,000/-. The assessee earned Short Term Capital Gain of Rs.15,50,000/- as the holding of land was within 3 years. The said amount was not declared in the return of the assessee. Accordingly, the ld. A.O. added back the total income of the assessee. As per the assessee’s arguments, the said plot was agricultural plot which was situated beyond 12 Kms of Mehatpur. During the appeal before the ITAT, the assessee filed additional evidence as a proof of the nature of the plot as agricultural plot. Certificate from the Patwari dated 13.09.2019 is placed during the hearing. The ld. CIT(A) upheld the order of the ld. AO. Aggrieved, assessee filed appeal before us. 3. The certificate from the Patwari dated 13.09.2019 is placed during the hearing as proof of land is agricultural. This evidence is filed by the assessee first time before ITAT. The ld. Counsel of the assessee claimed that his plot is an agricultural plot. So, entire transaction is exempted under the Act. 4. The ld. CIT-DR vehemently argued. He relied on the order of ld. CIT(A) in page no. 3 para 5.1 of the order of the CIT(A): 3 “5.1 I have carefully considered the facts of the case and submissions of the assessee. The assessing officer has made an addition of short term capital again u/s. 144 of the I.T. Act, 1961. Since, no reply was filed by the assessee during the assessment proceedings. During the appeal proceedings it is stated that the assessee has sold an agriculture land measuring 26 Kanal 19 Marlas for sRs.37.50 lacs on 10.06.2011which was purchased by him on 08.11.2010 for Rs.22.00 lacs. It is claimed that the agriculture land sold by the assessee was situated beyond the Municipal limit more than 10 K.M. and is exempted from tax. It is stated in this regard a certificate from Nambardar is enclosed who has certified that the land was situated beyond 12 KM of Mehatur. However, no such certificate has been enclosed with the reply filed by the assessee. There is no dispute regarding purchase and sale value of the land. The assessee has claimed exemption from levy of short-term capital Gain on the basis that land sold by him was agricultural land. However, the assessee has not bought on record any evidence to show that the said that the said land was being used for agricultural activities. No certificate from revenue records was filed in this regard that the land was being used for agricultural activities. The assessee has failed to prove that the land sold by him is exempt asset as per section 2(14) of the I.GT. Act 1961. As per the registration deed, the type of land sold by the assessee is agriculture and its location is two fields away from Link Road. Thus, it is not clearly established that the land will fall in the category of exempt asset for the purposes of I.T. Act 1961. Therefore, the addition made by the assessing officer on account of short term capital gain in upheld and appeal of the assessee is dismissed”. Ld. CIT-DR further mentioned that Patwari is not Competent Authority for ascertaining the nature of plot as per Income Tax Act 1961. So, this particular additional evidence should be rejected. 5. We heard rival submissions and relied on the documents available on the record. The particular transaction was not declared in the return by the assessee. The Revenue Authority correctly ascertained that the transaction should be STCG. The assessee was failed to ascertain the nature of the plot before the 4 Revenue Authority. On the other hand the nature of land was not properly ascertained through other competent authority, as per the provisions of the Act. We considered the additional evidence of the assessee. It was directed to assessee to submit the document before the CIT(A) for further adjudication. We are setting aside the case before the ld. CIT(A) for further adjudication, Denovo. Also, assessee should get proper opportunity for redressal his grievances. 6. In the result assessee’s appeal is allowed for statistical purposes. Order pronounced in the open court on 29.06.2022 Sd/- Sd/- (Dr. M. L. Meena) (Anikesh Banerjee) Accountant Member Judicial Member Copy of the order forwarded to: (1) The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order