JAIRAM JAT, Jaipur V. ITO, Jaipur

ITA 371/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5138 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 21-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Capital asset; Opportunity of being heard; Additional evidence
• Section: 2(14)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH , - MH - TSU U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI A.D. JAIN, JM & SHRI VIKRAM SINGH YADA V, AM VK;DJ VIHY LA- @ ITA NO. 371/JP/2015 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2007-08 JAIRAM JAT, S/O- SHRI BHIWA RAM JAT, VILLAGE- SANJHARIA, TEHSIL- SANGANER, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 7(2), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BMQPR 0181 N VIHYKFKHZ@ APP ELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S.L. JAIN (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 06/09/2016 MN?KKS'K .KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 08/09/2016 VKNS'K@ ORDER PER: A.D. JAIN, J.M. THIS IS ASSESSEES APPEAL FOR A.Y. 2007-08 FILED AG AINST THE ORDER DATED 13/02/2015 PASSED BY THE LD. CIT(A)-III, JAIPU R, AGAINST THE CONFIRMATION OF PENALTY OF RS. 17,64,000/- LEVIED U /S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE FOLLOWIN G GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE:- 1. THAT THE LEARNED AUTHORITIES BELOW HAVE GROSSLY ERRED IN LAW AND FACTS IN CONFIRMING PENALTY U/S ITA 371/JP/2015_ JAIRAM JAT VS. ITO 2 271(1)(C) AMOUNTING TO RS. 17,64,000/- WITHOUT JURISDICTION. 2. THAT THE LEARNED AUTHORITIES BELOW HAVE GROSSLY ERRED IN LAW AND FACTS IN CONFIRMING PENALTY WITHOUT SERVING NOTICE OF APPEAL HEARING ON THE ADDRESS MENTIONED IN FORM NO. 35 AND THUS NO NOTICE OF APPEAL HEARING WAS PROPERLY SERVED AND THEREFORE APPEAL WAS HEARD WITHOUT PROVIDING REASONABLE & SUFFICIENT OPPORTUNITY OF BEING HEARD. 3. THAT THE LEARNED AUTHORITIES BELOW HAVE GROSSLY ERRED IN LAW AND FACTS IN DECIDING PENALTY APPEAL WITHOUT ADJUDICATING QUANTUM APPEAL PENDING BEFORE HIM. 2. ASSESSMENT U/S 147/144 OF THE ACT WAS COMPLETED VIDE ORDER DATED 25/3/2013, AT A TOTAL INCOME OF RS. 79,35,925 /-, WHICH AMOUNT WAS TAXED AS LONG TERM CAPITAL GAIN. THE LD. ASSESSING O FFICER OBSERVED THAT THE SALE OF AGRICULTURAL LAND ATTRACTED THE PROVISI ONS OF CAPITAL GAIN, WHICH WAS DETERMINED AT THE SAID FIGURE. NOTING THAT THE A SSESSEE HAD CONCEALED LONG TERM CAPITAL GAIN TO THE EXTENT OF T HE ADDITION, PENALTY PROCEEDINGS WERE INITIATED. THE PENALTY PROCEEDINGS WE NT UNATTENDED. ACCORDINGLY, THE LD ASSESSING OFFICER IMPOSED THE P ENALTY, HOLDING THAT BY NOT DISCLOSING THE LONG TERM CAPITAL GAIN OF RS. 79 ,35,930/-, THE ASSESSEE HAD CONCEALED ITS INCOME. ITA 371/JP/2015_ JAIRAM JAT VS. ITO 3 3. BY VIRTUE OF THE IMPUGNED ORDER, THE LD CIT(A) CO NFIRMED THE PENALTY IMPOSED AND DISMISSED THE ASSESSEES APPEAL . 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE ADDITION HAS BEEN DELETED BY THE LD. CIT(A) VIDE OR DER DATED 26/2/2016 AND THAT SO, THE PENALTY SHOULD BE DELETED. 5. ON THE OTHER HAND, THE LD. DR STRONGLY RELIED ON THE IMPUGNED ORDER. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS SEEN THAT VIDE ORDER DATED 26/2/2016, PASSED BY THE LD. CIT(A) IN APPEAL NO. 275/JP/2013-14 (COPY PLACED ON RECORD), THE LD CIT(A) HAS DELETED THE ADDITION, WHICH FORMS THE BASIS OF PENALTY IN QUESTION. WHILE DOING SO, THE LD CIT(A) HAS HELD AS UNDER:- I HAVE CAREFULLY CONSIDERED THE FINDINGS OF THE A. O., SUBMISSION OF THE APPELLANT AS ALSO OTHER RELEVANT FACTS RELATED TO THIS CASE. IT WAS SUBMITTED BY THE AR IN REJOINDER THAT THE A.O. H AS ALREADY FILED A REPORT IN FAVOUR OF THE ASSESSEE. IT IS OBS ERVED THAT THE A.O. HAS SUBMITTED THAT THE LAND IS NOT WITHIN 8 KMS FROM LOCAL LIMITS OF NAGAR NIGAM. THEREFORE, THIS ADDITION IS DELETED. ITA 371/JP/2015_ JAIRAM JAT VS. ITO 4 7. A PERUSAL OF THE AFORESAID ORDER OF THE LD. CIT(A ), PASSED IN THE QUANTUM APPEAL FILED BY THE ASSESSEE, SHOWS THAT IN THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE BEFORE THE LD. CI T(A), IT HAD BEEN SUBMITTED THAT THE LAND SOLD BY THE ASSESSEE WAS AGR ICULTURAL LAND SITUATED OUTSIDE THE MUNICIPAL LIMITS AND THE JURIS DICTIONAL MUNICIPALITY WITHIN THE MEANING OF SECTION 2(14)(III)(A) IS THE M UNICIPALITY WITHIN THE JURISDICTION OF WHICH THE AREA, IN WHICH THE CONCERN ED LAND IS SITUATED IS COMPRISED AND WHICH HAS A POPULATION OF NOT LESS THA N THEN THOUSAND, PERSONS ACCORDING TO THE LAST PRECEDING CENSUS, OF WHICH, THE RELEVANT FIGURES HAVE BEEN PUBLISHED BEFORE THE 1 ST DAY OF THE PREVIOUS YEAR; THAT THE LAND IN QUESTION WAS ADMITTEDLY SITUATED IN VILL AGE BAGRU KHURD, TEHSIL- SANGANER, JAIPUR, BEYOND 8 KMS FROM THE LOCA L LIMITS OF SANGANER, JAIPUR MUNICIPALITY; AND THAT THEREFORE, IT COULD N OT BE CONSIDERED WITHIN THE LIMITS OF SANGANER, JAIPUR CITY MUNICIPALITY AN D AS SUCH, IT WAS NOT A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE ACT. IN THIS REGARD, THE ASSESSEE PLACED RELIANCE ON THE DECISIO NS IN THE CASES OF DEPUTY COMMISSIONER OF INCOME TAX VS. CAPITAL LOCAL AREA BANK LTD. (2009) 25 DTR (ASR)(TRIB) 136, CIT VS. LILAVATI THAKO RELAL PATEL 152 ITR 565 (GUJ), CIT VS. SMT. SANJEEDA BEGUS 154 TAXMAN 3 46 (ALL) AND CIT VS MINGUEL CHANDRA PALS & ANR. 282 CTR 618 (BOM). T HE ASSESSEE FILED ITA 371/JP/2015_ JAIRAM JAT VS. ITO 5 AN APPLICATION FOR ADDITIONAL EVIDENCE BEFORE THE L D. CIT(A). THESE ADDITIONAL EVIDENCES WERE COPIES OF SALE DEED DATED 05/8/2006, COPY OF JAMABANDI AND COPY OF CERTIFICATE OF SARPANCH. THE L D. CIT(A) FORWARDED THE ADDITIONAL EVIDENCES TO THE LD. ASSESSING OFFIC ER, WHO REFERRED THE MATTER TO THE TEHSILDAR, JAIPUR MUNICIPAL CORPORATIO N, JAIPUR, REQUIRING HIM TO INTIMATE THE DISTANCE OF THE LAND FROM THE L OCAL LIMITS OF JAIPUR MUNICIPAL CORPORATION, JAIPUR. IN HIS REPORT TO THE LD. CIT(A), THE LD ASSESSING OFFICER SUBMITTED THAT THE TEHSILDAR HAD I NTIMATED VIDE HIS OFFICE LETTER DATED 12/11/2014, THAT THE DISTANCE O F THE LAND IN QUESTION FROM THE LOCAL LIMITS OF JAIPUR NAGAR NIGAM, JAIPUR , WAS 9.2 KMS, I.E., THE PROPERTY SOLD BY THE ASSESSEE WAS NOT SITUATED WITHIN 8 KMS FROM THE LOCAL LIMITS OF JAIPUR NAGAR NIGAM, JAIPUR. 8. IT WAS ON THE BASIS OF THE ABOVE, THAT THE LD. CI T(A) DELETED THE ADDITION OF RS. 17,35,925/-, REPRESENTING ALLEGED L ONG TERM CAPITAL GAIN OF THE ASSESSEE. 9. A PERUSAL OF THE ASSESSMENT ORDER DATED 25/3/201 3 AND THAT OF THE PENALTY ORDER DATED 26/9/2013 SHOWS THAT THE PENALTY IN QUESTION WAS IMPOSED ON THE BASIS OF THE AFORESAID ADDITION OF R S. 79,35,925/-. NOW, AS EVIDENT FROM THE ABOVE, THAT VERY ADDITION HAS B EEN DELETED BY THE LD. ITA 371/JP/2015_ JAIRAM JAT VS. ITO 6 CIT(A). THEREFORE, THE VERY RAISON D ETRE OF THE IMP OSITION OF THE CONCEALMENT PENALTY HAVING BEEN DONE AWAY WITH, THE P ENALTY CANNOT BE SUSTAINED. THE SAME IS, ACCORDINGLY, DELETED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08/09/2016. SD/- SD/- FOE FLAG ;KNO , - MH TSU (VIKRAM SINGH YADAV) (A.D. JAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08 TH SEPTEMBER, 2016 * RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI JAIRAM JAT, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD 7(2), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 371/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR