The Dy. Commissioner of Income-tax, Pathankot V. Smt. Usha Rani, Pathankot

ITA 416/ASR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57406 (ITAT-AMRITSAR)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 12-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P N ARORA
• Assessee Lawyers: AMRIK CHAND
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.416(ASR)/2011 ASSESSMENT YEAR:2006-07 PAN:AAYPR2781D DY. COMMR. OF INCOME-TAX, VS. SMT. USHA RANI CIR.II, PATHANKOT. GANDHI NAGAR, PATHANKOT. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. AMRIK CHAND, DR RESPONDENT BY:SH. P.N. ARORA, ADV. DATE OF HEARING :19/03/2012 DATE OF PRONOUNCEMENT:19/03/2012 ORDER PER BENCH; THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER O F THE CIT(A), AMRITSAR, DATED 05/05/2011RELATING TO ASSESSMENT YE AR 2006-07. 2. THE REVENUE HAS RAISED FOLLOWING GROUND OF APPEA L: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), AMRITSAR HAS ERRED IN TAKING INTO ACCOUNT ADDITIONA L EVIDENCE I.E. CERTIFICATE ISSUED BY THE XEN, CPWD CONSTRUCTI ON DIVISION, B & R, PATHANKOT, WITHOUT ALLOWING REASO NABLE ITA NO.416(ASR)/2011 2 OPPORTUNITY TO THE A.O. UNDER RULE 46A(3) OF THE IN COME TAX RULES, 1962. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), AMRITSAR HAS ERRED NOT TO CONSIDERING THE CERTIFICA TE ISSUED BY THE TEHSILDAR, PATHANKOT DATED 25/01/2008, WHERE TH E TEHSILDAR HAS MENTIONED THAT THE DISTANCE BETWEEN MUNICIPAL L IMIT PATHANKOT AND VILLAGE ISLAMPUR IS 5 KM. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER OF THE LD. CIT(A), AMRITSAR, BE VACATED AND THAT OF THE A.O. B E RESTORED. 4. APPELLANT CRAVES LEAVE TO AMEND OR ADD ANY OR MO RE GROUNDS OF APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT IN TH E COMPUTATION ATTACHED WITH THE RETURN OF INCOME, THE ASSESSEE HAS GIVEN A NOTE AS AGRICULTURAL LAND MEASURING 8 KANALS SITUATED AT VILLAGE ISLAMPUR, T EHSIL PATHANKOT ( MORE THAN 9 KM AWAY FROM PATHANKOT) SOLD ON 29/08/2005 F OR RS.16 LACS ONLY NOT BEING ASSET. NO CAPITAL GAIN. DURING THE ASSES SMENT PROCEEDINGS, THE ASSESSEE WAS GIVEN A COPY OF TEHSILDARS LETTER NO. 247 DATED 25/01/2008 THAT DISTANCE OF THE LAND UNDER CONSIDERATION IS AT A DI STANCE OF 5 KM FROM THE MUNICIPAL COMMITTEE, PATHANKOT. THE ASSESSEE SUBMIT TED A CERTIFICATE FROM TEHSILDAR PATHANKOT DATED 31.08.2005 IN WHICH A DIS TANCE OF 9 KM FROM PATHANKOT WAS MENTIONED. THE AO DID NOT ACCEPT THE SAME AND CONSIDERED THE SAID LAND WITHIN MUNICIPAL LIMIT AND WORKED OUT THE SHORT-TERM CAPITAL GAIN AT RS.14,94,000/- AND TAXED THE SAME ACCORDING LY. ITA NO.416(ASR)/2011 3 4. THE LD. CIT(A), ACCEPTED THE EXPLANATION OF THE ASSESSEE ALONGWITH THE CERTIFICATE OF THE TEHSILDAR PATHANKOT, AND THE CERTIFICATE OF XEN, PWD, CONSTRUCTION DIVISION (B&R), PATHANKOT AND ALLOWED THE CLAIM OF THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE H AS FURNISHED THE CERTIFICATE OF TEHSILDAR PATHANKOT DATED 31.08.2005, WHERE THE DISTANCE OF 9 KM FROM THE MUNICIPAL LIMIT OF PATHANKOT TEHSIL, WAS MENTIO NED. THE ASSESSE HAS ALSO FURNISHED A CERTIFICATE DATED 28.03.2008 FROM XEN, PWD, CONSTRUCTION DIVISION (B&R), PATHANKOT AND A COPY OF REGISTRY OF LAND EVIDENCING THAT THE LAND IN QUESTION FALLS IN TEHSIL PATHANKOT. AS A MATTER OF FACT, AS PER CERTIFICATE RELIED UPON BY THE A.O., THE ASSESSEES LAND FROM SUJANPUR IS 5 KMS. FROM NALWA BRIDGE OCTROI POST AND LITTLE MORE THAN 5 KMS FROM KATH DA PUL BASED ONLY ON LOCAL INQUIRY WITHOUT ANY AUTH ENTIC MEASUREMENT BY AN APPROVED AUTHORITY. AS A MATTER OF FACT, MUNICIP AL LIMIT HAS TO BE DECIDED IN WHICH THE CONCERNED LAND IS SITUATED. IN THE PRESENT CASE, THE LAND IS SITUATED IN TEHSIL PATHANKOT AND, THEREFORE, THE MUNICIPAL LIMIT OF PATHANKOT SHALL BE APPLICABLE. THEREFORE, ON THE BA SIS OF DOCUMENTS ON RECORD, I.E. CERTIFICATE OF TEHSILDAR PATHANKOT DAT ED 31.08.2005, EVEN ITA NO.416(ASR)/2011 4 IGNORING ADDITIONAL EVIDENCES, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A), WHO HAS RIGHTLY ALLOWED THE CLAIM OF THE AS SESSEE. THUS, ALL THE GROUNDS OF REVENUES APPEAL ARE DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED ORDER PRONOUNCED IN THE OPEN COURT ON 19TH MARCH, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19TH MARCH , 2012 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE: SMT. USHA RANI, PATHANKOT. 2. THE DCIT, CIR.II, PATHANKOT. 3. THE CIT(A), ASR. 4. THE CIT, ASR. 5. THE SR DR, ITAT, ASR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH : AMRITSAR.