SATBIR YADAV, Jaipur V. ITO, Alwar

ITA 415/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2144 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 22-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY DCIT DHK
• Keywords: Capital asset; Additional evidence; Cost of acquisition; Revised return
• Section: 143(3); 54B; 244A; 54F; 2(14); 133(6); 147; 148; 54; 11

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 414/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2012-13 BALWANT YADAV, VILLAGE- BANBIRPUR, KHIJURIBAS, TIJARA, ALWAR (RAJ). CUKE VS. I.T.O., WARD- BHIWADI, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AGBPY 0341 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 415/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2012-13 SATBIR YADAV, VILLAGE- BANBIRPUR, KHIJURIBAS, TIJARA, ALWAR (RAJ). CUKE VS. I.T.O., WARD- BHIWADI, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AGBPY 0342 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV.) JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10/01/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 06/02/2018 VKNS'K@ ORDER PER: BHAGCHAND, A.M. BOTH ARE THE APPEALS FILED BY TWO DIFFERENT ASSESSE ES EMANATES FROM THE TWO SEPARATE ORDERS OF THE LD. CIT(A), ALWAR DATED 24/03/2017 ITA 414 & 415/JP/2017_ BALWANT YADAV VS. ITO 2 PERTAINING TO THE ASSESSMENT YEAR 2012-13. IN BOTH THE APPEALS, THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: GROUNDS OF ITA NO. 414/JP/2017 1. THE IMPUGNED ADDITION MADE IN THE ORDER U/S 143(3) DATED 11.03.2015 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE TH E SAME KINDLY BE DELETED. 2.1 RS.33,59,002 /-: THE ID. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITIONS OF RS.33,59,002/- MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN. THE ADDI TION SO MADE AND CONFIRMED BY THE ID. CIT(A), IS TOTALLY CO NTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE SAME KINDLY BE DELETED IN FULL. 2.2 THE ID. CIT(A) ERRED IN LAW AS WELL AS ON THE F ACTS OF THE CASE IN CONFIRMING THE COST OF ACQUISITION CLAIMED BY THE A O AT RS.10,000/- ONLY (INDEXED COST OF RS.78,500/-) AS AGAINST RS.95,000/- (APPROX) (INDEXED COST OF RS.3,74,750/- ) AS PER PREVAILING DLC RATE IN F.Y. 1991-92. THE COST OF AC QUISITION SO ADOPTED AND CONFIRMED BY THE ID. CIT(A), IS TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND H ENCE THE SAME MAY KINDLY BE ALLOWED. 2.3 THE LD. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN DENYING THE CLAIM OF DEDUCTION U/S 54B OF RS.20,23,837/- INVESTED IN PURCHASE OF NEW AGRICULTURE LAND AND DE DUCTION U/S '54F OF RS.12.50 LAKHS INVESTED IN THE CONSTRUCTION OF A NEW RESIDENTIAL HOUSE. THE DENIAL OF DEDUCTION SO CLAIM ED AND CONFIRMED BY THE ID. CIT(A), IS TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE SAME M AY KINDLY BE ALLOWED. 3. THE ID. AO FURTHER ERRED IN LAW AS WELL AS ON TH E FACTS OF THE CASE IN CHARGING INTEREST U/S 234A, 234B, 234C & 23 4D OF THE ACT AND AS ALSO IN WITHDRAWING INTEREST U/S 244A OF THE ACT. THE APPELLANT TOTALLY DENIES ITS LIABILITY OF CHARG ING AND WITHDRAWAL OF ANY SUCH INTEREST. THE INTEREST SO ITA 414 & 415/JP/2017_ BALWANT YADAV VS. ITO 3 CHARGED/WITHDRAWN, BEING CONTRARY TO THE PROVISIONS OF LAW AND FACTS, KINDLY BE DELETED IN FULL. GROUNDS OF ITA NO. 415/JP/2017 1. THE IMPUGNED ADDITION MADE IN THE ORDER U/S 143 (3) DATED 11.03.2015 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE TH E SAME KINDLY BE DELETED. 2.1 RS.13,51,056/-: THE ID. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITIONS OF RS .13,51,056/- MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN. THE ADDI TION SO MADE AND CONFIRMED BY THE ID. CIT(A), IS TOTALLY CO NTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE , THE SAME KINDLY BE DELETED IN FULL. 2.2 THE ID. CIT(A) ERRED IN LAW AS WELL AS ON THE F ACTS OF THE CASE IN CONFIRMING THE COST OF ACQUISITION CLAIMED BY THE A O AT RS.10,000/- ONLY (INDEXED COST OF RS.78,500/-) AS AGAINST RS.95,000/- (APPROX) (INDEXED COST OF RS.3,74,750/- ) AS PER PREVAILING DLC RATE IN F.Y.1991-92. THE COST OF ACQ UISITION SO ADOPTED AND CONFIRMED BY THE ID. CIT(A), IS TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND H ENCE, THE SAME MAY KINDLY BE ALLOWED. 2.3 THE ID. CIT(A) ERRED IN LAW AS WELL AS ON THE F ACTS OF THE CASE IN DENYING THE CLAIM OF DEDUCTION U/S 54F OF RS.12.50 LAKHS INVESTED IN THE CONSTRUCTION OF A NEW RESIDENTIAL H OUSE. THE DENIAL OF DEDUCTION SO CLAIMED AND CONFIRMED BY THE ID. CIT(A), IS TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FA CTS ON THE RECORD AND HENCE THE SAME MAY KINDLY BE ALLOWED. 3. THE ID. AO FURTHER ERRED IN LAW AS WELL AS ON TH E FACTS OF THE CASE IN CHARGING INTEREST U/S 234A, 234B, 234C & 23 4D OF THE ACT AND AS ALSO IN WITHDRAWING INTEREST U/S 244A OF THE ACT. THE APPELLANT TOTALLY DENIES ITS LIABILITY OF CHARG ING AND WITHDRAWAL OF ANY SUCH INTEREST. THE INTEREST SO CHARGED/WITHDRAWN, BEING CONTRARY TO THE PROVISIONS OF LAW AND FACTS, KINDLY BE DELETED IN FULL. ITA 414 & 415/JP/2017_ BALWANT YADAV VS. ITO 4 2. SINCE THE CERTAIN ISSUES INVOLVED IN THE APPEALS ARE COMMON, THEREFORE, BOTH THESE APPEALS WERE HEARD TOGETHER AN D FOR THE SAKE OF CONVENIENCE AND BREVITY, A COMMON ORDER IS BEING PA SSED. 3. ITA NO. 414/JP/2017 THE ASSESSEE SHRI BALWANT YADAV E-FILED HIS RETURN O F INCOME ON 21/03/2014 DECLARING TOTAL INCOME OF RS. 30,185/- A ND AGRICULTURAL INCOME OF RS. 25,500/-. THE CASE WAS SELECTED FOR SC RUTINY AND THE ASSESSEE FILED REVISED RETURN ON21/3/2014 WHEREIN TD S CREDIT OF RS. 4,467/- WAS CLAIMED. THE ASSESSING OFFICER HELD THAT SINCE THE ORIGINAL RETURN WAS NOT FURNISHED U/S 139(1) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), THEREFORE, REVISED RETURN IS VOID A B INITIO. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SOLD IMM OVABLE PROPERTY HELD IN JOINT NAMES LOCATED AT BANBEERPUR, TEHSIL- TI JARA, DISTRICT- ALWAR VIDE SALE DEED DATED 25/4/2011 AND RECEIVED SALE CO NSIDERATION OF RS. 34,37,502/- OUT OF THE TOTAL CONSIDERATION OF RS. 2 ,06,25,000/-. NO DEDUCTION U/S 54 OF THE ACT WAS CLAIMED IN THE RETUR N OF INCOME. IN THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS CLAIMED TH AT AGRICULTURAL LAND WAS SITUATED BEYOND 8 KM FROM THE MUNICIPAL LIM IT OF BHIWADI, THEREFORE, THERE IS NO CAPITAL GAIN AS PER DEFINITI ON OF CAPITAL ASSET. ALTERNATIVELY, IT WAS ALSO CLAIMED THAT THE ASSESSEE HAS INVESTED RS. 20,07,946/- IN THE PURCHASE OF AGRICULTURAL LAND AN D ELIGIBLE FOR ITA 414 & 415/JP/2017_ BALWANT YADAV VS. ITO 5 EXEMPTION U/S 54B OF THE ACT TO THAT EXTENT. THE ASS ESSING OFFICER DID NOT ACCEPT BOTH THE CLAIM OF ASSESSEE AND ASSESSED LONG TERM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE AT RS. 33,59,002/ - AFTER ADOPTING THE COST OF ACQUISITION AT RS. 10,000/- AS ON 01/4/1981 AND INDEXED COST WORKED OUT AT RS. 78,500/-. 4. THE ISSUE REGARDING AGRICULTURAL LAND WHETHER IT I S CAPITAL ASSET AS PER DEFINITION U/S 2(14) OF THE ACT OR NOT, HAS BEE N DECIDED BY THE LD. CIT(A) BY HOLDING AS UNDER: 5.2 I HAVE PERUSED THE ASSESSMENT ORDER AND FIND T HAT THE A.O. HAS BROUGHT IRREFUTABLE FACTS ON RECORDS WHICH PROV ES THAT THE LAND IN QUESTION IS A CAPITAL ASSET AND IS NOT COVE RED UNDER EXEMPTIONS CLAUSE U/S 2(14) OF THE ACT. THEREFORE, THE APPELLANTS GROUND OF APPEAL ON THIS ISSUE IS DEVOI D OF ANY MERIT AND HENCE DISMISSED. 5. THE ISSUE REGARDING CLAIM U/S 54B OF THE ACT WAS D ECIDED BY THE LD. CIT(A) BY HOLDING AS UNDER: 6.5 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL A S REMAND REPORT OF THE AO, SUBMISSIONS AND CROSS REPLY OF THE APPELLANT IN CLUDING JUDICIAL CITATIONS GIVEN THEREIN. FOLLOWING FACTS HAVE EMERG ED; 1. THAT THE ASSESSEE HAD INHERITED LAND AT BANBIRPU R DISTT. ALWAR FROM HIS UNCLE SH. MANGAL BY WAY OF A WILL DATED 23 /05/1991. 2. THAT DURING THE YEAR UNDER CONSIDERATION THE ASS ESSEE HAD SOLD HIS PART OF LAND TO M/S STAR CITY BUILDHOME PVT. LT D. AND GOT HIS SHARE OF CONSIDERATION AT RS. 34,37,502/-. ITA 414 & 415/JP/2017_ BALWANT YADAV VS. ITO 6 3. THAT THE ASSESSEE HAD FILED HIS REGULAR RETURN O F INCOME FOR THE YEAR UNDER CONSIDERATION DECLARING TOTAL TAXABLE IN COME OF RS. 30,185/- AND AGRICULTURAL INCOME OF RS. 25,500/-. 4. THAT THE APPELLANT HAD NOT DECLARED CAPITAL GAIN ON THE PROPERTY SOLD DURING THE YEAR UNDER CONSIDERATION CLAIMING T HAT THE LAND SOLD IS NOT A CAPITAL ASSET AS DEFINED U/S 2(14) OF THE ACT. 5. THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE APPELLANT HAS CLAIMED DEDUCTION UNDER SECTION 54B AND 54F OF THE ACT AGAINST THE CAPITAL GAIN ARISEN OUT OF SALE OF THE LAND. 6. THAT DURING THE ASSESSMENT PROCEEDINGS THE ASSES SEE COULD NOT FILE EVIDENCE IN SUPPORT OF HIS CLAIM ABOUT THE LAN D BEING COVERED UNDER SECTION 2(14) OF THE ACT. THE A.O HAS GIVEN A VERY REASONED ORDER CITING EVIDENCES THAT THE LAND IN QU ESTION DOES NOT FULFILL CONDITIONS TOO CLAIM OF IT BEING NOT A CAPITAL ASSET AS PER THE PROVISION OF SECTION 2(14) OF THE ACT. 7. THAT THE A.O HAS FURTHER CONTENDED THAT THE ASSE SSEE HAS NOT CLAIMED ANY DEDUCTION U/S 54B AND 54F OF THE ACT IN THE REGULAR RETURN FILED BY HIM AND HE HAS ALSO NOR FILED REVIS ED RETURN WITHIN STIPULATED TIME, HENCE THE CLAIM CANNOT BE ENTERTAI NED DURING ASSESSMENT PROCEEDINGS. THE A.O HAS CITED THE DECIS ION OF APEX COURT IN THE CASE OF M/S GOETZE INDIA LIMITED. 6.5.2 I HAVE CONSIDERED THE ABOVE MENTIONED FACTS O F THE CASE. ALTHOUGH THE A.O HAS RIGHTLY REJECTED THE CLAIM OF DEDUCTION S U/S 54B AND 54F OF THE ACT AS THE SAME WAS NOT CLAIMED IN THE REGUL AR RETURN OF INCOME AND THE APPELLANT HAS ALSO NOT FILED REVISED RETURN U/S 139(4) OF THE ACT. THE A.O HAS TAKEN INTO CONSIDERATION AP EX COURT IN THE CASE OF M/S GOETZE INDIA LIMITED. HOWEVER, THE SAID JUDGMENT IS APPLICABLE FOR THE ASSESSING OFFICER AND THE ASSESS EE CAN RAISE LEGITIMATE ISSUES BEFORE THE APPELLATE AUTHORITIES. IN THIS REGARD THE ADDITIONAL EVIDENCES WERE FILED UNDER RULE 46A OF I T RULES, 1962. THE ADDITIONAL EVIDENCES WERE FORWARDED TO THE A.O FOR HIS EXAMINATION AND COMMENTS. THE REMAND REPORT FROM THE A.O HAS BE EN RECEIVED ITA 414 & 415/JP/2017_ BALWANT YADAV VS. ITO 7 VIDE LETTER DATED 24/01/2017. COPY OF REMAND REPORT WAS PROVIDED TO THE AR AND THE CROSS REPLY WAS SUBMITTED VIDE LETTE R DATED 10/02/2017. REMAND REPORT AND THE CROSS REPLY HAVE BEEN TAKEN INTO CONSIDERATION. 6.5.3 I HAVE CONSIDERED THE REMAND REPORT WHERE IT IS SUBMITTED THAT SO FAR AS APPLICABILITY OF SECTION 54B OF THE ACT IS CONCE RNED, FOLLOWING CONDITIONS SHOULD BE SATISFIED TO CLAIM THE BENEFIT OF SECTION 54B. 1. THE BENEFIT OF SECTION 54B IS AVAILABLE ONLY TO AN INDIVIDUAL OR A HUF 2. THE ASSET TRANSFERRED SHOULD BE AGRICULTURAL LAN D. THE LAND MAY BE A LONG-TERM CAPITAL ASSET OR SHORT-TERM CAPITAL ASSET. 3. THE AGRICULTURAL LAND SHOULD BE USED BY THE INDI VIDUAL OR HIS PARENTS FOR AGRICULTURAL PURPOSE AT LEAST FOR A PER IOD OF TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER. I N CASE OF HUF THE LAND SHOULD BE USED BY ANY MEMBER OF HUF. 4. WITHIN A PERIOD OF TWO YEARS FROM THE DATE OF T RANSFER OF OLD LAND THE TAXPAYER SHOULD ACQUIRE ANOTHER AGRICULTUR AL LAND. 5. IN CASE OF COMPULSORY ACQUISITION THE PERIOD OF ACQUISITION OF NEW AGRICULTURAL LAND WILL BE DETERMINED FROM THE D ATE OF RECEIPT OF COMPENSATION. 6. HOWEVER, AS PER SECTION 10(37), NO CAPITAL GAIN WOULD BE CHARGEABLE TO TAX IN CASE OF AN INDIVIDUAL OR HUF I F AGRICULTURAL LAND IS COMPULSORILY ACQUIRED UNDER ANY LAW AND THE CONSIDERATION OF WHICH IS APPROVED BY THE CENTRAL G OVERNMENT OR RBI AND RECEIVED ON OR AFTER 01-04-2004. IN THIS CASE FOLLOWING FACTS HAVE BEEN NOTICED; 1. THE A.O HAS DECIDED ON THE BASIS OF EVIDENCES TH AT THE LAND IN QUESTION IS A CAPITAL ASSET AND IS NOT COVERED UNDE R SECTION 2(14) OF THE ACT. ITA 414 & 415/JP/2017_ BALWANT YADAV VS. ITO 8 2. THE APPELLANT HAS FILED GIRDWARI/KHASRA RECORD S HOWING USE OF THE LAND FOR AGRICULTURAL PURPOSES FOR THE LAST 2 Y EARS. 3. THE REGISTRY OF THE LAND HAS TAKEN PLACE ON 25/ 04/2011. 4. THE AGRICULTURAL LAND WAS PURCHASED IN THE HAND SH. AJIT SINGH AND SH. POP SINGH ON 22/03/2011. AS PER SECTION 54B OF THE ACT THE PURCHASE OF ANOTH ER AGRICULTURAL LAND HAS TO BE IN THE NAME OF THE SELLER OF THE OLD LAND. HERE IN THIS CASE, THE NEW AGRICULTURAL LAND WAS PURCHASED IN TH E NAME OF SH. AJIT SINGH AND SH. POP SINGH. THEREFORE, THE APPELLANT I S NOT ENTITLED TO CLAIM DEDUCTION U/S 54B OF THE ACT. THEREFORE, IN VIEW OF THE PROVISIONS OF THE ACT AND THE FACTUAL MATRIX OF THE CASE, IT IS MY CONSIDERED VIEW THAT THE APPE LLANT IS NOT ENTITLED TO AVAIL DEDUCTION UNDER SECTION 54B OF THE ACT. I HAVE ALSO TAKEN NOTE OF THE REMAND REPORT AND FIND THAT NO COGENT E VIDENCES HAVE BEEN PRODUCED IN SUPPORT OF CLAIMS FOR DEDUCTION UN DER SECTION 54F OF THE ACT, HENCE THE CLAIM OF DEDUCTION U/S 54B AN D 54F OF THE ACT IS DISMISSED. 6. WHILE PLEADING ON BEHALF OF THE ASSESSEE, THE LD AR HAS SUBMITTED AS UNDER: ON THE ISSUE OF LAND IS NOT A CAPITAL ASSET: 1.1 AT THE OUTSET, IT IS SUBMITTED THAT THE SUBJEC TED LAND IS SITUATED AT VILLAGE BANDIPUR, TEHSIL TIJARA, DISTRICT ALWAR WHICH IS CLEARLY BEYOND 8 KM BY ROAD DISTANCE FROM THE LIMITS OF THE MUNICIPAL CORPORATION, BHIWARI (I.E. 8.8 KM) AND THIS WAS DUL Y SUBMITTED EVEN BEFORE THE ASSESSING OFFICER HIMSELF VIDE REPL Y DATED 10.03.2015 (AO PG 4). THE AO HOWEVER, REJECTED THIS FACTUAL ITA 414 & 415/JP/2017_ BALWANT YADAV VS. ITO 9 CONTENTION WITHOUT BRINGING ANY CONTRARY MATERIAL O N RECORD (EXCEPT THE CASE OF RAMAVTAR DISCUSSED LATER). 1.2 IT IS EVIDENT FROM THE ASSESSMENT ORDER THAT T HE AO HAS PERHAPS TAKEN THE PICTURE (AO PG 3) WITH THE HELP OF GOOGLE MAP AND ON THAT BASIS ONLY, AN AERIAL DISTANCE HAS BEEN MEASUR ED WHEREAS, THE LAW AT THE RELEVANT POINT OF TIME REQUIRED THE AO TO MEASURE THE DISTANCE BY ROAD ONLY AND NOT TO CONSID ER FLIGHT/AERIAL DISTANCE. IT IS ONLY OF LATE BY THE F INANCE ACT, 2013, W.E.F. 01.04.2014 [I.E. FOR & FROM A.Y. 2014-15 & O NWARD ONLY], SUCH DISTANCE IS NOW REQUIRED TO BE MEASURED BASED ON AERIAL DISTANCE (THOUGH AERIALLY ALSO IT COMES TO 8.02KM). HOWEVER, PRIOR TO THIS SUCH DISTANCE WAS TO BE MEASURED HAVI NG REGARD TO THE ROAD DISTANCE ONLY. THUS, THE AUTHORITIES BELOW HAVE COMPLETELY PROCEEDED ON A MISCONCEPTION OF LAW AND HAD INCORRECTLY APPRECIATED THE LEGAL POSITION PREVAILE D AT THE RELEVANT TIME. IN FACT, THEY HAVE NOT EVEN REFERRED TO THIS AMENDMENT AT ALL THEREFORE, EVEN IT CANNOT BE SAID THAT THE AUTHORITIES BELOW WANTED TO APPLY THE LAW RETROSPEC TIVELY AND HENCE, THERE WAS NO DISPUTE ON THIS ASPECT AT ALL. THUS, THE CONTENTION OF THE ASSESSEE THAT IN A.Y.2012-13 SUCH DISTANCE WAS TO BE MEASURED BASED ON THE ROAD ONLY AND AERIA L DISTANCE WAS TO BE CONSIDERED, IS FULLY ESTABLISHED. MEASURE D BY ROAD IT COMES TO 8.8 KM, AS ALSO CONFIRMED BY AOS FINDING WHERE DISTANCE BETWEEN KAAROLI (RAMAVATAR) AND OUTER LIMI T OF BHIWADI NAGAR PALIKA IS 8KM (AERIAL)/ 12.7 (BY ROAD ) AND REDUCING THEREFROM DISTANCE OF 4KM (BY ROAD) BETWEE N KAAROLI (INDUSTRIAL AREA WHERE THERE IS NO NAGAR PALIKA) AN D BANBEERPUR, WILL COME TO 8.7 KM (APPROX.) ITA 414 & 415/JP/2017_ BALWANT YADAV VS. ITO 10 1.3 THE CBDT HAS ALSO CAME OUT WITH A CIRCULAR DAT ED 06.10.2015 NO. 17/2015 (DPB 23) ACCEPTING THE DECISION IN THE CASE OF SMT. MALTIBAI R KADU IN ITA NO. 151/ 2013 OF NAGPUR BENCH, BOMBAY HIGH COURT DATED 30.03.2015 (DPB 1-22). ACCO RDINGLY, IN PARA 3, THE DEPARTMENTAL OFFICERS HAVE BEEN DIRE CTED, EVEN TO THE EXTENTS THAT APPEALS ALREADY FILED ON THIS ISSU E MUST BE WITHDRAWN/ NOT PRESSED UPON. 1.4 IN THE CASE OF MALTIBAI R KADU (SUPRA), IT WAS HELD THAT 15. INSOFAR AS RELEVANCE OF SECTION 11 OF THE GENE RAL CLAUSES ACT IS CONCERNED, IT NEEDS TO BE NOTED THAT HERE THE RELEV ANT AMENDMENT PRESCRIBING DISTANCE TO BE COUNTED MUST BE AERIAL H AS COME INTO FORCE W.E.F. 1ST APRIL, 2014. THE NEED OF AMENDMENT ITSEL F SHOWS THAT, IN ORDER TO AVOID ANY CONFUSION, THE EXERCISE BECAME N ECESSARY. THE PARLIAMENT NOTICED THE JUDGMENTS BEING DELIVERED AN D THEREFORE, EMPHATICALLY POINTED OUT AERIAL DISTANCE AS THE REL EVANT NORM. THIS EXERCISE TO CLEAR THE CONFUSION, THEREFORE, SHOWS T HAT BENEFIT THEREOF MUST BE GIVEN TO THE ASSESSEE. IT IS SETTLED LAW TH AT, IN SUCH MATTERS, WHEN THERE IS ANY DOUBT OR CONFUSION, THE VIEW IN F AVOUR OF THE ASSESSEE NEEDS TO BE ADOPTED. THE CIRCULAR NO.3/240 , DT.24.1.2014 SHOWS VIDE CLAUSE NO.4 AMENDMENT IN DEFINITION OF ' CAPITAL ASSET' AND CLAUSE 4.5 DEALING WITH APPLICABILITY EXPRESSLY STI PULATES THAT IT TAKES EFFECT FROM 1.4.2014 AND THEREFORE, PROSPECTIVELY A PPLIES IN RELATION TO THE ASSESSMENT YEAR 2014-15 AND SUBSEQUENT ASSESSME NT YEARS. HENCE, THE QUESTION WHETHER PRIOR TO THE SAID ASSES SMENT YEAR 2014- 15 THE AUTHORITIES ERRED IN COMPUTING THE DISTANCE BY ROAD DOES NOT ARISE AT ALL. THE IT CANNOT BE QUESTIONED ON THAT G ROUND. FOR THESE REASONS, SECTION 11 OF THE GENERAL CLAUSES ACT ALSO HAS NO APPLICATION IN THE PRESENT MATTER WHERE THE ITAT WAS CONCERNED WITH THE ASSESSMENT YEAR 200910 OR PRIOR TO THE TIME WHEN AM ENDMENT TOOK EFFECT. 2. COVERED ISSUE: 2.1 IT IS NOT DENIED THAT THE SUBJECTED PROPERTY W AS OWNED BY 4 PERSONS JOINTLY AND THE ENTIRE LAND WAS SOLD ALSO J OINTLY. THE ENTIRE LAND OF 0.775 HECTARE SITUATED AT BANBEERPUR , TEHSIL TIJARA, DISTRICT ALWAR WAS SOLD FOR RS.2,06,25,000/ - ON ITA 414 & 415/JP/2017_ BALWANT YADAV VS. ITO 11 25.04.2011 VIDE THE SAID REGISTERED SALE DEED. ONE OF THE CO- OWNERS LATE SHRI DEEP CHAND WAS ACCOUNTABLE FOR THE SALE CONSIDERATION OF RS.1,03,12,500/-. HOWEVER, THAT AS SESSEE DID NOT FILE HIS RETURN OF INCOME. THE AO OF LATE SHRI DEEP CHAND REFERRING TO THESE VERY FACTS AND THE FACT THAT THE AO OF OTHER CO-OWNERS (I.E. THE PRESENT APPELLANTS SHRI SATBIR YADAV AND BALWANT YADAV), HAD FOUND THAT THE IMMOVABLE PROPE RTY WHICH WAS SOLD WAS A CAPITAL ASSET AND SALE CONSIDERATION RECEIVED AGAINST SALE OF THAT ASSET IS LIABLE TO BE TAXED UN DER THE HEAD OF CAPITAL GAIN THEREFORE, A NOTICE U/S 148 WAS ISSUE D IN CASE OF LATE SHRI DEEP CHAND IN RESPONSE TO WHICH THAT ASSE SSEE FILED A WRITTEN SUBMISSION DATED 25.11.2006 CONTENDING THAT THE SUBJECTED LAND WAS SITUATED OUTSIDE THE LIMIT OF BH IWARI NAGAR PALIKA. HENCE, THE AO OF LATE SHRI DEEP CHAND GOT T HE ENQUIRY CONDUCTED AND OBTAINED INFORMATION U/S 133(6) OF TH E ACT DIRECTLY FROM THE COMMISSIONER, MUNICIPAL CORPORATI ON, BHIWARI AND HELD THAT THE SOLE PROPERTY WAS NOT A CAPITAL A SSETS. CONSEQUENTLY, THE PROCEEDINGS INITIATED U/S 147 WER E DROPPED IN THAT CASE VIDE ASSESSMENT ORDER DATED 27.12.2016 PASSED U/S 143(3)/147. CONSEQUENTLY, THE PROCEEDINGS INITI ATED U/S 147 WERE DROPPED IN THAT CASE VIDE ASSESSMENT ORDER DAT ED 27.12.2016 PASSED U/S 143(3)/147 (PB 93-94). 2.2 SIMILAR WAS THE SITUATION IN CASE OF THE OTHER JOINT OWNER NAMELY SHRI BAHADAR S/O LATE SHRI DEEP CHAND WHO ALSO SHAR ED THE SALES CONSIDERATION OF RS.34,37,500/- ON THE SALE O F THE SAME VERY LAND WHEREIN ALSO THE FACTS ARE EXACTLY SIMILA R. THERE ALSO THE RETURN OF INCOME WAS ACCEPTED WITHOUT ANY VARIA TION VIDE THE ASSESSMENT ORDER DATED 14.12.2016 PASSED U/S 14 3(3)/147 (PB 88-89). ITA 414 & 415/JP/2017_ BALWANT YADAV VS. ITO 12 2.3 THE LD. CIT(A) HOWEVER, DID NOT PAY ATTENTION TO ASCERTAIN AS TO WHAT HAPPENED IN THE CASE OF THE TWO OTHER JOINT OW NERS OF THE SAME VERY LAND BUT HE BLINDLY RELIED UPON WHAT THE AO SAID EVEN IGNORING SUCH FACTS & SUBMISSIONS BROUGHT IN H IS NOTICE DURING THE APPELLATE PROCEEDINGS. THUS, THE SAME AO (I.E. THE SAME ASSESSING OFFICER HAVING JURISDICTION OVER ALL THE 4 JOINT OWNERS) HAVING HE LD IN THE CASES OF 2 JOINT OWNERS THAT THE SUBJECTED LAND WAS NOT C APITAL ASSET BEING BEYOND 8 KMS, IT HAS TO BE HELD THAT IN THE C ASES OF THE TWO JOINT OWNERS (PRESENT APPELLANT), ALSO THAT IT WAS NOT A CAPITAL ASSET. HENCE, THERE WAS NO CAPITAL GAIN AT ALL LIABLE TO BE TAXED. 3. THE AO HAS VAGUELY REFERRED TO THE CASE OF ONE SHRI RAMAVTAR AND CONCLUDED THAT THE PRESENT LAND WAS ALSO SITUAT ED WITHIN 8KMS ONLY. FIRSTLY, SUCH EVIDENCE COULD NOT HAVE BE EN RELIED UPON BY THE AO AS WAS NEVER CONFRONTED TO THE ASSES SEE AND THEREFORE, MUST BE IGNORED BEING IN VIOLATION OF SE C.142(3). ALSO KINDLY REFER VIMAL CHANDRA GOLECHA V/S ITO & ANR. ( 1982) 134 ITR 119 (RAJ), ITO & ANR. V/S GARGIDIN JAWLA PRASAD MAHOLI & ORS. (1980) 124 ITR 203 (ALL), FOLLOWED IN SUNIL KH AN & PARTY ITA NO. 804/JP/03 DATED 08.11.2005. HENCE ANY ADDIT ION BASED ON THE BASIS OF SUCH MATERIAL COLLECTED AND NOT CON FRONTED TO THE ASSESSEE, HAS TO BE DELETED ALTOGETHER ON THIS SHORT GROUND ALONE. SECONDLY, THE MEASUREMENT HAS BEEN TAKEN AER IALLY WHICH IS INCORRECT HENCE, THE SAME DESERVES TO BE I GNORED. 7. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE O RDERS OF THE AUTHORITIES BELOW. ITA 414 & 415/JP/2017_ BALWANT YADAV VS. ITO 13 8. THE BENCH HAVE HEARD BOTH THE SIDES ON THIS ISSUE . IN BOTH THESE APPEALS, THE ASSESSEE HAS CHALLENGED THAT THE LAND WHICH WAS SOLD BY THESE ASSESSES WAS NOT A CAPITAL ASSET AS PER DEFINI TION PROVIDED IN SECTION 2(14) OF THE ACT. THE ASSESSEE HAS CLAIMED T HAT THE LAND WAS SITUATED BEYOND 8 K.M. FROM THE MUNICIPAL LIMIT OF BHIWADI. A GOOGLE MAP WAS ALSO PLACED ON RECORD WHERE THE DISTANCE COME S OF 8.02 K.M.. IT IS PERTINENT TO NOTE THAT PRIOR TO AMENDMENT IN SECTION 2(14) BY FINANCE ACT, 2013 W.E.F. 01/4/2014 WHEREIN ITEM (B) IN CLAUSE (III) OF SUB-SECTION (14) OF SECTION 2 READ AS UNDER: (B) IN ANY AREA WITHIN SUCH DISTANCE, NOT BEING MOR E THAN EIGHT KILOMETERS, FROM THE LOCAL LIMITS OF ANY MUNICIPALI TY OR CANTONMENT BOARD REFERRED TO IN ITEM (A), AS THE CE NTRAL GOVERNMENT MAY, HAVING REGARD TO THE EXTENT OF, AN SCOPE FOR, URBANIZATION OF THAT AREA AND OTHER RELEVANT CONSID ERATIONS, SPECIFY IN THIS BEHALF BY NOTIFICATION IN THE OFFIC IAL GAZETTE. THE LAST NOTIFICATION IN OFFICIAL GAZETTE IS DATED 0 6/01/1994. BHIWADI WAS NOT A MUNICIPALITY NOR A CANTONMENT BOARD AS ON 06/1/1994. THE NOTIFICATION NO. 9447 DATED 06/01/1994 WAS NOTIFIED IN SUPERSESSION OF NOTIFICATION NO. SO 77(E) DATED 06/2/1973. THERE IS NO FURTHER NOTIFICATION WITH REGARD TO DISTANCE FROM THE LOCAL LIMITS OF MUNICIPALITY IN CASE OF BHIWADI MUNICIPALITY. SUCH NOTIFICATIONS ARE ISSUED BY THE CENTRAL GOVERNMENT HAVING REGARD TO THE EXTENT OF A ND, SCOPE FOR URBANIZATION OF THAT AREA AND OTHER RELEVANT CONSID ERATIONS. THEREFORE, THE AGRICULTURAL LAND SITUATED OUTSIDE THE MUNICIPA L LIMIT OF BHIWADI SHALL ITA 414 & 415/JP/2017_ BALWANT YADAV VS. ITO 14 NOT BE COVERED BY THE DEFINITION OF CAPITAL ASSET PRIOR TO AMENDMENT FROM 01/4/2014. IN THIS VIEW OF THE MATTER, THE AGRI CULTURAL LAND SOLD BY THE ASSESSEES IS NOT COVERED BY THE DEFINITION OF CAPITAL ASSET AS PROVIDED IN SECTION 2(14) OF THE ACT. THEREFORE, THE LEVYING THE CAPITAL GAIN TAX ON THE SALE OF THE AGRICULTURAL LAND SITUA TED OUTSIDE THE MUNICIPAL LIMIT OF THE BHIWADI WAS NOT JUSTIFIED. 6. SINCE THE ASSET, WHICH WAS SOLD, WAS NOT A CAPITAL ASSET AND NO CAPITAL GAIN TAX IS LEVIABLE, THEREFORE, THE ISSUES RAISED IN OTHER GROUNDS OF APPEALS REGARDING CLAIM U/S 54B AND 54F OF THE A CT ARE NOT REQUIRED TO BE ADJUDICATED. HENCE, BOTH THE APPEALS OF THE A SSESSEES ARE ALLOWED. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/02/2018. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06 TH FEBRUARY, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANTS- (I) SHRI BALWANT YADAV, ALWAR & (II) SHRI SATBIR YADAV, ALWAR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD- BHIWADI, ALWAR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) ITA 414 & 415/JP/2017_ BALWANT YADAV VS. ITO 15 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 414 & 415/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR