SMT. KUSUM VERMA, Indore V. The ITO Ward 3(1), Indore

ITA 417/IND/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5691 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 27-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MOHD JAVED
• Keywords: Capital asset; Opportunity of being heard; Additional evidence; Accommodation entries; Competent authority

Judgement Text

SMT. KUSUM VERMA ITA NO. 417/IND/2014 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., ..!', #$ # !% BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER I.T.A. NO. 417/IND/2014 ASSESSMENT YEAR: 2009-10 SMT. KUSUM VERMA INDORE PAN AADHJ 1112M :: APPELLANT VS ITO WARD 3(1) INDORE :: RESPONDENT REVENUE BY SHRI SUDHIR PADLIYA ASSESSEE BY SHRI MOHD. JAVED ! ' #$ DATE OF HEARING 22.9.2016 %&'( #$ DATE OF PRONOUNCEMENT 28.10.2016 * O R D E R PER SHRI D.T. GARASIA, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-I, INDORE, DATED 3.3.201 4. SMT. KUSUM VERMA ITA NO. 417/IND/2014 2 2. THE SHORT FACTS OF THE CASE ARE THAT DURING THE COUR SE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO VER IFY THE AIR INFORMATION RECEIVED IN CONNECTION WITH SALE OF AGRICULTURAL INCOME BY THE ASSESSEE. IN RESPONSE THE ASSESSEE SUBMITTED A SALE DEED OF AN AGRICULTURAL LAND SOL D FOR RS.1,48,00,000/-. THE ASSESSEE DID NOT SHOW THE ABOVE TRANSACTION IN HER RETURN NOR FILED THE DETAILS IN THE SCHEDULE OF AIR NOR IN SCHEDULE OF INCOME CLAIMED AS EXEMPT. THE ASSESSING OFFICER THEREFORE ASKED THE ASS ESSEE TO SHOW THE REASON FOR NOT SHOWING THE ABOVE TRANSACTIO N IN HER RETURN OF INCOME BUT THE ASSESSEE FAILED TO RE PLY THE SAME. HOWEVER, THE ASSESSEE SUBMITTED A CERTIFICATE IS SUED BY TEHSILDAR SHOWING THAT THE CAPTIONED AGRICULTURAL LAND IS SITUATED APPROXIMATELY 8 KM FAR FROM LASUDIA MORI, DEWAS NAKA,INDORE. THEN THE ASSESSING OFFICER REQUIRED THE TEHSILDAR TO SUBMIT THE ACTUAL DISTANCE IN RESPONS E TO WHICH HE SUBMITTED THAT THE CAPTIONED AGRICULTURAL LAND IS SMT. KUSUM VERMA ITA NO. 417/IND/2014 3 SITUATED WITHIN THE MUNICIPAL LIMIT OF INDORE MUNICIP AL CORPORATION. ON THIS BASIS THE ASSESSING OFFICER REJE CTED THE CLAIM OF THE ASSESSEE AND COMPUTED LONG TERM CAPITAL GAIN @ 20%. 3. ON APPEAL, THE LEARNED CIT(A) CONFIRMED THE ACTION O F THE ASSESSING OFFICER AGAINST WHICH THE ASSESSEE IS IN APEPAL. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE SI DES. WE FIND THAT RECENTLY VIDE ORDER DATED 20 TH OCTOBER, 2016 IN THE CASE OF SMT. TRAPTI AGRAWAL VS. ACIT; ITA NO. 458/IND/2014 THE TRIBUNAL HAS DECIDED AN IDENTICAL ISSU E AS UNDER :- 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL DOING THE BUSINESS IN THE NAME AND STYLE OF M/S SUBHASH ENTERPRISES AS C&F AGENT FOR M/S RANE BRAKE LININGS LIMITED, CHENNAI. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS FOUND THAT THE ASSESSEE HAS SOLD RURAL AGRICULTURAL LAND SITUATED BEYOND THE LIMITS OF INDORE MUNICIPALITY DURING THE YEAR LOCATED AT GRAM BOCHOLI HAPSI, PATWARI HALKA NO. 25, SURVEY NO. 16 & 17 PAKI AND CLAIMED THE LONG TERM CAPITAL GAIN ON THE SAME SMT. KUSUM VERMA ITA NO. 417/IND/2014 4 TRANSACTION AS EXEMPT IN THE SUM OF RS.22,36,790/-. THE ASSESSING OFFICER WAS OF THE VIEW THAT THIS LAN D IS WITHIN 8 KMS FROM MUNICIPALITY, THEREFORE, IT IS A CAPITAL ASSET. THEREFORE, THE ASSESSING OFFICER HA S DISALLOWED LONG TERM CAPITAL GAIN. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER OBTAINED LETTER FROM TEHSILDAR DATED 23.11.2010 AND HELD THAT THE ASSESSEE IS LIABLE FOR LONG TERM CAPITAL GAIN ON SALE OF AGRICU LTURAL LAND AND HE ACCORDINGLY MADE THE ADDITION. THE LEARNED CIT(A) CONFIRMED THE ADDITION WITH THE FOLLOWING OBSERVATIONS :- I HAVE GONE THROUGH THE DETAILED REASONS BROUGHT OUT BY THE A.O. IN THE ASSESSMENT ORDER AND REMAND REPORT. I HAVE ALSO GONE THROUGH THE WRITTEN SUBMISSIONS OF THE APPELLANT ON THE ISSUE, ADDITION AL EVIDENCES AND COMMENTS ON THE REMAND REPORT OF A.O. WHICH ARE REPRODUCED ABOVE. THE A.O. HAS DISCUSSED THE ISSUE OF DISTANCE OF LAND FROM INDORE MUNICIPALITY ELABORATELY AND CONCLUSIVELY. THE TEHSILDAR IS COMPETENT AUTHORITY TO CERTIFY THE DISTANCE OF KHASRA NO. OF ANY LAND FROM MUNICIPAL LIMITS. THE A.O. HAS DULY OBTAINED THE CERTIFICATE FROM THE TEHSILDAR, INDORE. THERE IS NO REASON WHY THE ADDITIONAL EVIDENCE ON THIS ISSUE OBTAINED FROM SOM E OTHER AUTHORITIES, NOT COMPETENT TO ISSUE SUCH CERTIFICATES SHOULD BE ACCEPTED. THE REMAND REPORT OF A.O. IS MORE THAN CLEAR TO BRING OUT THAT SUFFICIEN T OPPORTUNITIES WERE PROVIDED TO THE APPELLANT TO FIL E DOCUMENTARY EVIDENCES TO SUPPORT THE CONTENTIONS. THEREFORE, THE ADDITIONAL EVIDENCE IN THE FORM OF CERTIFICATE FROM MUNICIPALITY INDORE IS NOT ADMISSI BLE. SMT. KUSUM VERMA ITA NO. 417/IND/2014 5 HOWEVER, I HAVE GONE THROUGH THE CERTIFICATE ISSUE D BY THE SAID AUTHORITY AND OBSERVED THAT IT CERTIFIE S THE DISTANCE OF BICHOLI GRAM FROM THE THE MUNICIPAL LIMITS OF INDORE. IT DOES NOT SPECIFY THE DISTANCE OF RELEVANT KHASRA NUMBERS FROM THE MUNICIPAL LIMITS O F INDORE. THEREFORE, TECHNICALLY ON MERIT ALSO THE FA CTS BROUGHT OUT IN THE CERTIFICATE ARE NOT ACCEPTABLE PARTICULARLY IN VIEW OF CONCLUSIVE CERTIFICATE OF TEHSILDAR, INDORE, THE COMPETENT AUTHORITY. FURTHER , DURING THE COURSE OF APPEAL PROCEEDINGS ON 12.08.2013, THE APPELLANT HAS FILED A CERTIFICATE F ROM PWD, INDORE AND REQUESTED FOR ADMISSIONS OF THE SAME AS ADDITIONAL EVIDENCE. AS DISCUSSED ABOVE, WHEN THE ISSUE OF DISTANCE HAS BEEN SETTLED BY THE COMPETENT FINAL AUTHORITY I.E. THE TEHSILDAR, INDOR E, THERE IS NOT REASON TO ADMIT THE CERTIFICATE FROM A NY OTHER AUTHORITY WHO IS NOT COMPETENT. THEREFORE, TH E CERTIFICATE HAS NOT BEEN ADMITTED AS ADDITIONAL EVIDENCE AS DISCUSSED IN THE NOTE SHEET DATED 12.08.2013. REGARDING ADDITIONAL EVIDENCES IN SUPPORT OF THE CONTENTION FOR OAYMENT OF BROKERAGE, IT IS SEEN THAT THE RETURN OF INCOME BY THESE TWO LADIES SMT. NEETA NAHATA AND SMT. SANDHYA BAFNA HAVE BEEN FILED FOR THE RELEVANT ASSESSMENT YEAR ON 30.03.2009 AND 06.04.2009 RESPECTIVELY. THE ASSESSMENT IN THIS CASE HAS BEEN COMPLETED ON 29.11.2010. THEREFORE, I DO NOT FIND ANY REASON AS WHY THESE ROI WERE NOT FILED BEFORE THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN FACT, IT I S A CLEAR CASE WHERE THE APPELLANT WANTED TO AVOID FURTHER INQUIRIES BY FILING THESE DOCUMENTS DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HOWEVER, DURING THE COURSE OF APPELLATE PROCEEDINGS ALSO, THE APPELLANT WAS REQUIRED TO FILE DETAILS OF ROIS FILE D BY SMT. KUSUM VERMA ITA NO. 417/IND/2014 6 THESE LADIES INCORPORATING INCOME ON ACCOUNT OF BROKERAGE IN EARLIER AND SUBSEQUENT ASSESSMENT YEARS. THE COUNSEL OF THE APPELLANT DURING THE COURSE OF APPELLATE PROCEEDINGS HAS FAILED TO FILE ANY SUCH DETAILS. THEREFORE, K AM CONVINCED WITH A CONCLUSION DRAWN BY THE A.O. THAT THESE ARE THE ACCOMMODATION ENTRIES. THEREFORE, AFTER CONSIDERING THE FACTS BROUGHT OUT IN THE ASSESSMENT ORDER, REMAND REPORT, WRITTEN SUBMISSIONS, I AM OF THE OPINION THAT THE A.O. WAS JUSTIFIED IN WORKING OUT THE LONG TERM CAP[ITAL GAIN AFTER CONSIDERING VARIOUS FACTORS AND DISALLOWING THE BROKERAGE AMOUNTING TO RS.3 LACS. THESE GROUNDS OF APPEAL ARE DISMISSED. 4. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD MADE APPLICATION TO PWD ENGINEER AND HE CERTIFIED THAT THE SAID PROPERT Y IS 6 KMS FROM BENGALI CHOURAHA TO GRAM BICHOLI HAPSI AND CERTIFICATE WAS PRODUCED. THAT EVIDENCE WAS NOT TAKEN ON RECORD. MOREOVER, THERE ARE THREE CERTIFICATES ISSUED BY THREE GOVERNMENT AGENCIES WHICH ARE ON RECORD ONE TEHSILDAR CERTIFICATE O NE MUNICIPAL CORPORATION LETTER - ONE CERTIFICATE ISSU ED BY PWD. THEREFORE, THE EXACT DISTANCE BETWEEN THE PROPERTY AND MUNICIPAL LIMIT CANNOT BE ASCERTAINED. THEREFORE, THE MATTER MAY BE RESTORED TO THE ASSESSING OFFICER FOR DECIDING THE EXACT MEASUREMENT BETWEEN THE DISPUTED LAND AND MUNICIPAL LIMIT OF INDORE MUNICIPAL CORPORATION. T HE LEARNED DR OBJECTED TO IT ON THE GROUND THAT THE PROPERTY IS SITUATED WITHIN 8 KMS FROM THE MUNICIPA L LIMIT, THEREFORE, NO PURPOSE WILL BE SERVED IFN THE MATTER IS RESTORED TO THE ASSESSING OFFICER. SMT. KUSUM VERMA ITA NO. 417/IND/2014 7 5. WE HAVE HEARD BOTH THE SIDES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT SECTION 2(14)(III)(B) OF THE ACT PROVIDES THAT IN A NY AREA WITHIN THE DISTANCE, MEASURED AERIALLY, NOT BEING MORE THAN EIGHT KILOMETRES FROM THE LOCAL LIM ITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM (A), AS THE CENTRAL GOVERNMENT MAY, HAVING REGARD TO THE EXTENT OF, AND SCOPE FOR, URBANISATIO N OF THAT AREA AND OTHER RELEVANT CONSIDERATIONS, SPECIF Y IN THIS BEHALF BY NOTIFICATION IN THE OFFICIAL GAZE TTE. IN THIS CASE THE ASSESSING OFFICER OBTAINED THE CERTIFICATE FROM TEHSILDAR BUT THE COPY OF THE CERTIFICATE WAS NOT PROVIDED TO THE ASSESSEE. DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS ALSO PRODUCED A COPY OF LETTER FROM MUNICIPALIT Y AND PWD. THEREFORE, THERE ARE THREE LETTERS. IN SU CH A SITUATION, WE ARE OF THE VIEW THAT THE TEHSILDAR IS THE COMPETENT AUTHORITY TO DECIDE THE DISTANCE BETWEEN THE MUNICIPAL LIMIT AND THE DISPUTED LAND. THEREFORE, THE ASSESSING OFFICER IS DIRECTED TO GIV E COPY OF THE LETTER OF TEHSILDAR TO THE ASSESSEE AND IF THE ASSESSEE IS NOT SATISFIED WITH THIS CERTIFICATE , HE MAY APPLY TO TEHSILDAR FOR FRESH CERTIFICATE AND AF TER OBTAINING THE EXACT DISTANCE FROM THE TEHSILDAR, TH E ASSESSING OFFICER IS TO DECIDE THE MATTER AFRESH AS PER LAW. HOWEVER, IF THE ASSESSEE FAILS TO OBTAIN THE CERTIFICATE FROM TEHSILDAR THEN THE ASSESSING OFFIC ER IS AT LIBERTY TO REPEAT THE ADDITION. 6. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 20 OCTOBER, 2016. SMT. KUSUM VERMA ITA NO. 417/IND/2014 8 IN THE LIGHT OF THE ABOVE ORDER OF THE TRIBUNAL, WE D IRECT THE ASSESSING OFFICER TO GET A FRESH CERTIFICATE FROM THE TEHSILDAR, INDORE, REGARDING THE ACTUAL DISTANCE OF THE AGRICULTURAL INCOME FROM INDORE MUNICIPAL CORPORATION. THEREFORE, THE ASSESSING OFFICER IS DIRECTED TO GIV E COPY OF THE LETTER OF TEHSILDAR TO THE ASSESSEE AND IF THE ASSESSEE IS NOT SATISFIED WITH THIS CERTIFICATE, HE MA Y APPLY TO TEHSILDAR FOR FRESH CERTIFICATE AND AFTER OBTAINING THE EXACT DISTANCE FROM THE TEHSILDAR, THE ASSESSING OFFICER IS TO DECIDE THE MATTER AFRESH AS PE R LAW. HOWEVER, IF THE ASSESSEE FAILS TO OBTAIN THE CERTIFICATE FROM TEHSILDAR THEN THE ASSESSING OFFICER IS AT LIBERTY TO REPEAT THE ADDITION AND THEN TO DECIDE TH E ISSUE AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. SMT. KUSUM VERMA ITA NO. 417/IND/2014 9 THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 28 OCTOBER, 2016. SD/- SD/- ( ..!') (..) #$ (O.P.MEENA) (D.T.GARASIA) ACCOUNTANT MEMBER J UDICIAL MEMBER (') / DATED : 28 OCTOBER, 2016. DN/ SMT. KUSUM VERMA ITA NO. 417/IND/2014 10