Shri Dev Dutt Tyagi, Uttar Pradesh V. ITO, Ghaziabad

ITA 368/DEL/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7872 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Assessment Year: 2009-2010
• Appeal Filed On: 25-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: SANJAY PARASHAR
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A .NO.-368/DEL /2016 (ASSESSMENT YEAR-2009-10) DEV DUTT TYAGI, S/O-LATE SRI RAM CHARAN TYAGI, VILL.BASANTPUR, SAITHLY MURADNAGAR, DISTT.-GHAZIABAD, UTTAR PRADESH. PAN-AFCPT4001M (APPELLANT) VS ITO, WARD-1(5), C.G.O.COMPLEX-1, HAPUR CHUNGI, GHAZIABAD-201002. (RESPONDENT) A SSESSEE BY SH. SANJAY PARASHAR, AR R EVENUE BY SH. K.K.JAISWAL, SR. DR ORDER PER DIVA SINGH, JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 30.10.2015 OF CIT(A), GHAZIABAD PER TAINING TO 200910 ASSESSMENT YEAR ON VARIOUS GROUNDS ASSAILING THE ADDITION MADE BY ASSESSING OFFICER WHICH HAVE BEEN SUSTAINED IN APPEAL BY THE CIT(A). 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE IS AN INDIVIDUAL WHO HAD SOLD RESIDENTIAL PLOTS FOR RS.12,30,000/-. IN VIEW OF THE FACT THAT THE ASSESSEE HAD NOT RETURNED OF INCOME FOR THE YEAR UNDER CONSIDERATION AND THE INFORMATION OF SALE OF PLOTS WAS WITH THE REVENUE, NOTICE U/S 148 WAS ISSU ED AND SERVED ON 01.06.2012 AFTER RECORDING THE REASONS. THE ASSESSEE IN THE RE SPONSE TO THE NOTICE ACCEPTED THAT DATE OF HEARING 16.03.2016 DATE OF PRONOUNCEMENT 03.05.2016 I.T.A .NO.-368/DEL/2016 PAGE 2 OF 3 4 SPECIFIC PLOTS WERE SOLD TO 3 DIFFERENT PARTIES O N VARIOUS DATES. IT WAS CLAIMED THAT AGRICULTURAL LAND WAS SOLD AND DESCRIPTION IN THE S ALE DEED THAT IT WAS A RESIDENTIAL PLOT, IT WAS SUBMITTED WAS NOT OF MUCH RELEVANCE. T HE EXPLANATION OFFERED WAS NOT ACCEPTED. IN APPEAL BEFORE THE FIRST APPELLATE AUT HORITY BY THE ASSESSEE IT WAS SUBMITTED THAT THE RELEVANT EVIDENCE WOULD BE THE L AND REVENUE RECORD MAINTAINED BY THE TEHSIL OFFICE AND NOT DESCRIPTION IN THE SALE D EED. THE REVENUE RECORDS IT WAS SUBMITTED REFERRED THAT IT WAS AGRICULTURAL LAND. D ECISION OF THE HONBLE DELHI HIGH COURT DATED 09.12.2009 REPORTED IN 2009 TAXMAN 14 [ DELHI] WAS RELIED UPON FOR THE PROPOSITION THAT ON THE DATE OF PURCHASE THE LAND I N QUESTION WAS AGRICULTURAL LAND AND THE RELEVANT CRITERIA WAS THE NATURE OF LAND ON THE DATE OF ACQUISITION. THE CHARACTER OF THE LAND AT THE POINT OF TIME IT WAS S OLD IT WAS SUBMITTED IS TO BE SEEN. THE SAID EXPLANATION OF THE ASSESSEE WAS NOT ACCEPT ED AND DECISIONS RELIED UPON IN SUPPORT OF THE VIEW TAKEN BY THE ASSESSING OFFICER OVER AND ABOVE OTHER DECISIONS WERE RELIED UPON. 3. BOTH THE SIDES HAVE BEEN HEARD WHO RE-ITERATE TH EIR RESPECTIVE STANDS. AFTER HEARING BOTH THE SIDES, WE ARE OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE THE MATERIAL FACTS NEED TO BE CULLED O UT. WE FIND THAT ALL ALONG ASSERTIONS THAT THE LAND IN QUESTION IS AN AGRICULTURAL LAND A RE FOUND TO HAVE BEEN MADE BEFORE THE AO AS WELL AS THE CIT(A). HOWEVER, WE FIND THA T EVIDENCE IN SUPPORT THEREOF IS NOT PLACED BEFORE US. 4. IN THE PECULIAR FACTS AND CIRCUMSTANCE OF THE CA SE, WE ARE OF THE VIEW THAT IT WOULD BE APPROPRIATE TO SET ASIDE THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORD ANCE WITH LAW AFTER TAKING INTO CONSIDERATION THE STATUS OF THE LAND AT THE TIME OF SALE AS RECORDED IN THE LAND I.T.A .NO.-368/DEL/2016 PAGE 3 OF 3 REVENUE RECORDS THE NECESSARY EVIDENCE IS DIRECTED TO BE PLACED ON RECORD BY THE ASSESSEE. WE HOPE THAT THE OPPORTUNITY SO GRANTED S HOULD NOT BE ABUSED BY THE ASSESSEE AS FAILING WHICH THE ASSESSING OFFICER WOU LD BE AT LIBERTY TO PASS A SPEAKING ORDER ON THE PIECE OF MATERIAL AVAILABLE ON RECORD. 5. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 03 O F MAY, 2016. SD/- SD/- (PRASHANT MAHARISHI) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 03/05/2016 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI