DCIT, New Delhi V. Shri Ashok Jaidka, Gurgaon

ITA 4274/DEL/2010

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7132 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 25-04-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 16-09-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Keywords: Capital asset; Opportunity of being heard; Additional evidence; Cost of acquisition
• Section: 2(14); 133(6)

Judgement Text

ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 1 OF 15 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE VICE PRESIDENT & SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.-4274/DEL/2010 ( ASSESSMENT YEAR: 2006-07) DCIT, CIRCLE 2(1) ROOM NO. 398C, C.R.BLDG., NEW DELHI. VS ASHOK JAIDKA, 1, AKASH NEEM MARG, DLF PHASE II, GURGAON. ACBPJ2345Q ASSESSEE BY SH. GAGAN KUMAR, ADV. & SH. AMIT KAUSHIK, CA SH. MANOJ NAGRATH, CA REVENUE BY SH. K.K. JAISWAL, DR ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER : THE PRESENT APPEAL IS PREFERRED BY THE DEPARTMENT AGAINST THE ORDER PASSED BY THE LD. CIT (APPEALS)-V , NEW DATE OF HEARING 25.04.2016 DATE OF PRONOUNCEMENT 18.07.2016 ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 2 OF 15 DELHI. THE DATE OF THE IMPUGNED ORDER IS 23.06.201 0 AND THE ASSESSMENT YEAR IS 2006-07. 2. THE ISSUE INVOLVED IN THE APPEAL BEFORE US IS TH AT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICE D BY THE AO THAT THE ASSESSEE HAD CLAIMED EXEMPT AN AMOUNT O F RS. 5,75,00,000/- ON ACCOUNT OF SALE PROCEEDS OF AGRICU LTURAL LAND SITUATED IN KHEVAT NO. 60 KHATA NO. 65 MU/KILA NO. 57/15, 6, 7, 14/1, 14/2, VAKA SHIVANA MAUJA, VILLAGE GHATA, T EHSIL SOHNA. THE ASSESSEE WAS REQUIRED TO FURNISH DETAILS REGARDING LONG TERM CAPITAL GAIN IN RESPECT OF THESE SALE PRO CEEDS OF AGRICULTURAL LAND CLAIMED AS EXEMPT. IN RESPONSE TH ERETO THE ASSESSEE SUBMITTED THE DETAILS THEREOF ALONG WITH A CERTIFICATE FROM THE PATWARI , GURGAON CERTIFYING THAT THE LAND IN QUESTION WAS SITUATED AT A DISTANCE BEYOND 8 KILOMETERS FROM THE MUNICIPAL CANTONMENT LIMITS. SUBSEQUENTLY, THE TEHSILDAR, TEHSIL SOHNA, (HARYANA) WAS REQUESTED BY THE AO TO AUTHENTICATE AND VALIDATE THE FACT AS TO WHETHER THE LAND IN QUESTION WAS APPROXIMATELY 10 KILOMETERS FROM THE LO CAL LIMIT OF THE GURGAON COMMITTEE AREA OR NOT, AS CLAIMED BY THE ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 3 OF 15 ASSESSEE IN ITS CERTIFICATE FROM THE PATWARI. IN RESPONSE TO THE REQUEST OF THE AO, THE TEHSILDAR OF TEHSIL SOHNA, (HARYANA) IN HIS REPORT DATED 29/12/2008 REPORTED THAT THE AFORE SAID AGRICULTURE LAND WAS SITUATED APPROXIMATELY 6.6 K.M. FROM THE LOCAL LIMITS OF MUNICIPAL CORPORATION OF GURGAON. R ELYING ON THE REPORT OF THE TEHSILDAR, THE AO OPINED THAT IT THE LAND IN QUESTION WAS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE INCOME TAX ACT AND THEREFORE ANY GAIN ARISING OUT OF TRANSFER OF SUCH CAPITAL ASSET WAS TO BE TAXED AS PER THE PROVISIONS OF SECTION 45 OF THE INCOME TAX ACT, 196 1. THE AO CALCULATED THE INDEXED COST OF ACQUISITION AT RS. 3 1,64,472/- AND SINCE THE ASSESSEE WAS OWNER OF SHARE OF LAND, THE PROPORTIONATE COST OF ACQUISITION FOR THE ASSESSEE WAS CALCULATED AT RS. 15,82,236/- AND THE LONG TERM CAP ITAL GAIN FOR SHARE WAS CALCULATED AT RS. 5,59,17,764/- AND WAS ADDED TO THE INCOME OF THE ASSESSEE. 3. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE LD. CIT(A) RAISING THE CONTENTION THAT THE LAND IN QUESTION WAS SITUATED OUTSIDE THE MUNICIPAL LIMITS OF GURGAON (A S CONFIRMED ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 4 OF 15 BY THE PATWARI GURGAON) AND HENCE THE LAND WAS NOT A CAPITAL ASSET AS DEFINED IN SECTION 2(14)(III) OF THE INCOM E TAX ACT. THE LD. CIT(A) HELD THAT THE AO WAS NOT JUSTIFIED IN REJ ECTING THE ASSESSEES CLAIM THAT THE SAID LAND WAS AN AGRICULTU RAL LAND IN TERMS OF SECTION 2(14)(III) AND THAT THE INCOME ARI SING ON SALE OF AGRICULTURAL LAND WAS EXEMPT. THE OBSERVATIONS O F THE LD. CIT (A) ON THIS ISSUE ARE IN PARAS 7.8 AND 7.9 OF T HE IMPUGNED ORDER AND THEY ARE BEING REPRODUCED HEREUNDER FOR A READY REFERENCE: 7.8 ON A CLOSE READING OF THE ASSESSMENT ORDER, I FIND THAT THE ENTIRE ASSESSMENT WAS FRAMED BY HOLDI NG THAT THE LAND AS POSSESSED BY THE APPELLANT WAS SITUATED LESS THAN 8 KMS DISTANCE FROM GURGAON MUNICIPAL CORPORATION. HOWEVER, THE SAID GROUND NO LONGER HOLDS GOOD AS THE ASSESSING OFFICER HAD CONFIRMED IN HIS REMAND REPORT THAT THE DISTANCE HAS TO BE MEASURED FROM LOCAL LIMITS OF GURGAON MUNICIP AL COMMITTEE AREA WHICH IS MORE THAN 8 KMS FROM THE GURGAON MUNICIPAL COMMITTEE AREA. IT IS ALSO TO BE NOTED THAT THE REMAND REPORT AS ISSUED BY THE AO IS , HOWEVER, SILENT ON THE FACT THAT THE ASSESSMENT ORD ER MAKES A REFERENCE THAT THE DISTANCE SHOULD BE ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 5 OF 15 MEASURED FROM THE LIMITS OF MCG (MUNICIPAL COMMITTE E OF GURGAON). 7.9 FURTHER, THE ASSESSING OFFICER, IN HIS REMAND REPORT, OBSERVED THAT THE LAND WAS BEYOND THE MUNICIPAL LIMITS OF GURGAON/SOHNA. FROM THIS OBSERVATION, IT IS APPARENT THAT THE AO HAS CONCLUD ED THAT THE SAID AGRICULTURAL LAND IS OUTSIDE THE MUNI CIPAL LIMITS OF GURGAON/SOHNA AND THEREFORE, THE GAIN ARISING THEREFROM WILL NOT BE TAXABLE UNDER THE ACT . THE LD. AO HAS MADE A NEW OBSERVATION THAT THE SAID LAND WAS WITHIN EIGHT KILOMETERS FROM THE MUNICIPAL LIMITS OF DELHI AND THUS, THE LAND FELL OUTSIDE THE EXEMPTION PROVIDED U/S 2(14) OF THE ACT. IT IS THI S CONCLUSION OF THE AO WHICH HAS EFFECTIVELY TRAVELLE D UP TO ME AS THE SURVIVING BONE OF CONTENTION BETWEEN B OTH THE PARTIES. 4. FURTHER, PARAS 7.9.5, 7.9.6, 7.9.12, 7.9.13 & 7. 9.14 OF THE IMPUGNED ORDER ARE ALSO RELEVANT AND THEY ALSO ARE BEING REPRODUCED FOR A READY REFERENCE: 5. AFTER EXAMINING THE CONCEPT OF MUNICIPALITY, I NOW TURN TO SECTION 2(14)(III) OF THE ACT. CONSIDER TH AT WHAT SECTIONS 2(14)(III)(A) AND (B) OF THE INCOME TAX AC T OBVIOUSLY ENVISAGE IS ONE SINGLE MUNICIPALITY AND N OT ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 6 OF 15 MORE THAN ONE. WHEN THE LAND UNDER CONSIDERATION ADMITTEDLY FALLS OUTSIDE THE SOHNA MUNICIPALITY, AS NOTIFIED BY THE CENTRAL GOVERNMENT IN ACCORDANCE WI TH SECTION 2(14)(III)(B) OF THE ACT, THERE IS NO QUEST ION OF IT BEING CONSIDERED WITHIN THE LIMITS OF THE DELHI CIT Y MUNICIPALITY, AS REFERRED BY THE AO IN HIS REMAND REPORT. IT IS NOTEWORTHY THAT UPTO THE AY 1969-70, THE EXCLUSION FROM CAPITAL ASSET IN SEC. 2(14)(III) O F THE ACT WAS IN RESPECT OF AGRICULTURAL LAND IN INDIA. THIS EXCLUSION, WITH EFFECT FROM THE SAID ASSESSMENT YEA R, WAS NARROWED DOWN AS A RESULT OF SUBSTITUTION OF NE W SUB-CLAUSE (III) IN SECTION 2(14) FROM THE AY 1970- 71, BY THE FINANCE ACT, 1970. AS A RESULT OF THIS SUBSTIT UTION, ALL AGRICULTURAL LANDS IN INDIA ARE NO LONGER OUTSI DE THE PURVIEW OF CAPITAL ASSET AND ONLY THOSE AGRICULTU RAL LANDS IN INDIA ARE FALLING OUTSIDE THE SCOPE OF CA PITAL ASSET, AS DO NOT FALL EITHER UNDER ITEM (A) OR ITE M (B) OF SECTION 2(14)(III). IN OTHER WORDS, OUT OF AGRICUL TURAL LANDS IN INDIA, THE LANDS FALLING IN THESE TWO ITEM S WOULD FALL WITHIN THE DEFINITION OF CAPITAL ASSETS . THESE LANDS ARE (A) AGRICULTURAL LANDS SITUATED WIT HIN THE JURISDICTION OF MUNICIPALITY AND WHICH HAS A POPULATION OF NOT LESS THAN TEN THOUSAND ACCORDING TO THE LAST PRECEDING CENSUS, OF WHICH, THE RELEVANT F IGURES HAVE BEEN PUBLISHED BEFORE THE FIRST DAY OF THE PRE VIOUS YEAR; AND (B) AGRICULTURAL LANDS SITUATED IN ANY AR EA ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 7 OF 15 WITHIN SUCH DISTANCE, NOT MORE THAN EIGHT KILOMETER S, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY REFERRED TO IN ITEM (A), AS THE CENTRAL GOVERNMENT MAY, HAVING REG ARD TO THE EXTENT OF, AND SCOPE FOR, URBANISATION OF TH AT AREA AND OTHER RELEVANT CONSIDERATIONS, SPECIFY IN THE O FFICIAL GAZETTE. 6. THUS, IT APPEARS THAT THE INTENTION OF THE LEGISLATURE IS EXPLICIT THAT THE MUNICIPALITY BEING TALKED ABOUT IN BOTH SECTIONS, I.E., SECTION 2(14)(III)(A) AS WELL AS SECTION 2(14)(III)(B), IS ONE AND THE SAME, I.E., O NE AND ONLY ONE MUNICIPALITY. IN THIS CASE, IT IS ONLY SO HNA MUNICIPALITY AREA. XXXXXX 12. NOW, UNDISPUTEDLY, THE LAND IN QUESTION LIES IN VILLAGE GHATA, WHICH FALLS IN TEHSIL SOHNA, DISTRIC TNOW, UNDISPUTEDLY, THE LAND IN QUESTION LIES IN VILLAGE GHATA, WHICH FALLS IN TEHSIL SOHNA, DISTRICT GURGAON AND I S MORE THAN FIVE KMS. AWAY FROM SOHNA MUNICIPALITY. THE NOTIFICATION SPECIFIES AREAS UP TO FIVE KILOMET ERS IN ALL DIRECTION, FROM THE MUNICIPAL LIMITS OF SOHNA MUNICIPALITY. SO, ACCORDING TO THE NOTIFICATION, A REAS UP TO FIVE KMS. AWAY FROM THE LOCAL LIMITS OF SOHNA MUNICIPALITY STAND NOTIFIED AS FALLING OUTSIDE ITS LOCAL LIMITS. THE LAND IN QUESTION IS ADMITTEDLY NINETEE N KMS. FROM THE LOCAL LIMITS OF SOHNA MUNICIPALITY. ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 8 OF 15 13. THE LAND IN ISSUE WOULD NOT HAVE FALLEN WITHIN THE EXEMPTION PROVIDED BY SECTION 2(14)(III)(B), WERE I T SITUATED WITHIN FIVE KMS. FROM THE LOCAL LIMITS OF SOHNA MUNICIPALITY. THE LD. AO CONTENDED THAT THOUGH ADMITTEDLY, THE LAND IN QUESTION IS BEYOND THE MUNI CIPAL LIMITS OF SOHNA, IT IS WITHIN EIGHT KMS. OF THE MUN ICIPAL LIMITS OF DELHI AND SO, IT IS OUTSIDE THE EXEMPTION OF SEC. 2(14) OF THE ACT. IN MY VIEW, THE AO HAS ERRONEOUS LY ARRIVED AT THIS CONCLUSION WITHOUT REFERRING TO AND OR COMPLETELY IGNORING SUB CLAUSE (B) OF CLAUSE (III) OF SEC. 2(14) OF THE ACT. 14. THE CASE OF THE AO IS BASED ON THE OBSERVATION IN PAGE 5 OF THE ORDER THAT THE LAND BEING WITHIN 8 KM S. OF MUNICIPAL LIMITS OF GURGAON MUNICIPAL CORPORATION, IT WAS CAPITAL ASSET WITHIN THE MEANING OF SEC. 2(14) OF THE I.T. ACT. THIS ISSUE DOES NOT SURVIVE AS THE S AME HAS BEEN DEALT BY ME IN THE EARLIER PARAGRAPHS OF T HIS ORDER AS WELL AS BY THE AO IN HIS REMAND REPORT WHE RE HE AGREES THAT THE SAID LAND IS SITUATED BEYOND EIG HT KILOMETERS OF THE MUNICIPAL LIMITS OF GURGAON. IF THIS BE THE FACTS OF THE CASE, THE ACTION OF THE AO IN TAXI NG THE SALE PROCEEDS AS CAPITAL GAIN DOES NOT HOLD GOOD. 5. AGGRIEVED, THE DEPARTMENT IS IN APPEAL AND HAS R AISED THE FOLLOWING GROUNDS OF APPEAL: ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 9 OF 15 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER OF THE LD. CIT (A) IS WRONG, PERVERS E, ILLEGAL AND AGAINST THE PROVISIONS OF LAW WHICH IS LIABLE TO BE SET ASIDE. 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DEL ETING ADDITION OF RS. 5,59,17,764/- ON ACCOUNT OF LONG TE RM CAPITAL GAINS ARISING OUT OF SALE OF LAND, IGNORING THAT THE PROVISIONS OF SEC. 2(14)(III) OF THE INCOME TAX ACT, 1961 ARE CLEARLY APPLICABLE IN THIS CASE. THE LAND IN QUESTION IS SITUATED ABOUT 6 KMS FROM THE LOCAL LIM IT OF MUNICIPAL CORPORATION OF DELHI, THEREFORE, A CAPIT AL ASSET WITHIN THE MEANING OF SUB-CLAUSE (B) OF SEC. 2(14)(III) OF THE INCOME TAX ACT, 1961 AND LIABLE F OR CAPITAL GAIN. 3. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUNDS OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 6. THE LD. DR SUBMITTED THAT IT IS UNDISPUTED THAT THE LAND IS SITUATED IN SOHNA AND EVEN THE LD. CIT (A) HAS A CCEPTED THAT ALL THE REGULATORY AND ADMINISTRATIVE CONTROLS ARE UNDER THE JURISDICTION OF SOHNA MUNICIPALITY AS IS EVIDENT FR OM PARA 15 AND 16 OF THE IMPUGNED ORDER AND, THEREFORE, THE AP PROACH ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 10 OF 15 ADOPTED BY THE LD. CIT (A) IS CONTRADICTORY WHEN IT IS CONCLUDED BY HIM THAT THE LAND IS NOT A CAPITAL ASSET BUT AN AGRICULTURAL LAND WHICH WILL NOT ATTRACT CAPITAL GAINS. THE LD. DR RELIED ON THE JUDGMENT OF THE HONBLE APEX COURT IN G.M. OMAR KHAN VS. ACIT 196 ITR 269 (SC), WHEREIN THE HONBLE APEX COUR T HAS HELD THAT LOCAL SELF-GOVERNMENT IS CARRIED OUT UNDER VARIOUS STATUTES BY MEANS OF MUNICIPALITIES, MUNICIPAL BOAR DS, CANTONMENT BOARDS, ETC. AFTER THEIR INITIAL SET UP , AREA BY MEANS OF THOSE LAWS ARE ADDED TO AND SUBTRACTED FROM AND SUBSUME AS SUCH FOR IDENTITY, NOT AS A SEPARATE MUNICIPAL UNIT BUT PART OF THE ALREADY SET UP MUNICIPAL UNIT. SUCH BEING THE SCHE ME OF THINGS, IT IS DIFFICULT TO ACCEPT THE PLEA OF THE APPELLANT THAT EVEN THOUGH HIS VILLAGE WAS FALLING IN THE MUNICIPAL AREA OF HY DERABAD, IT RETAINED ITS IDENTITY AS A VILLAGE AND, HENCE, AN AREA SO AS TO STAND APART FOR THE PURPOSE OF SECTION 2(14)(III)(A ). THE LD. AR ALSO CONTESTED THE FINDING IN THE ASSESSMENT ORDER THAT THE AR OF THE ASSESSEE HAD ACCEPTED THAT THE LAND WAS SITUA TED WITHIN 6 KMS OF THE MUNICIPAL LIMITS OF DELHI. PLACING REL IANCE ON THE FINDINGS OF THE AO, IT WAS SUBMITTED THAT THE LD. CI T (A) HAS ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 11 OF 15 ERRED IN DELETING THE ADDITION AND THE ORDER SHOULD BE SET ASIDE. 7. THE LD. AR, IN RESPONSE SUBMITTED THAT THE AO HI MSELF HAS STATED IN THE REMAND REPORT (REPRODUCED IN PARA 7.3 OF LD. CIT (A)S ORDER) THAT IT IS NOT DISPUTED THAT THE L AND DOES NOT FALL WITHIN THE JURISDICTION OF ANY MUNICIPALITY INCLUDIN G SOHNA. HE DREW OUR ATTENTION TO COPY OF THE REMAND REPORT D ATED 10.05.2010 AND DREW OUR ATTENTION TO PARA 7.2 WHICH R EAD AS UNDER: 7.2 DURING THE REMAND PROCEEDINGS, INFORMATION HAS BEEN SOUGHT FOR U/S 133(6) OF THE IT ACT FROM T HE COMMISSIONER OF GURGAON NAGAR NIGAM AND THE EXECUTIVE ENGINEER, PROVICIAL DIVISION NO. 1 PWD B&R BRANCH OF GURGAON AGAINST WHICH IT IS INFORMED THAT THE ACTUAL PWD ROAD HAS BEEN LOST IN HUDA SECTORS AND PART OF IT ONLY EXISTS AT SOME PLACES A ND THE NEAREST POSSIBLE DISTANCE OF THE LAND FROM THE LIMIT OF GURGAON MUNICIPAL COMMITTEE IS MEASURED BY ROAD AT MORE THAN 8 KMS. WHEREAS, BY WAY OF ADDITIONAL EVIDENCE, IT HAS BEEN INFORMED BY THE ASSESSEE THAT THE LAND IS SITUATED AROUND 19 KMS. FROM THE MUNICIPAL LIMITS OF SOHNA AND, VIDE ORDER ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 12 OF 15 SHEET ENTRY DT. 29.04.2010, IT HAS BEEN ADMITTED BY THE AR OF THE ASSESSEE HERSELF THAT THE SAID LAND I S SITUATED ABOUT 6 KMS FROM THE LOCAL LIMIT OF MUNICI PAL CORPORATION OF DELHI. THE ASSESSEE IS CONFUSING TH E JURISDICTION OF TEHSIL WITH MUNICIPALITY. THE MUNICIPALITY HAS NO EXTENDED JURISDICTION ONCE THE BOUNDARY OF JURISDICTION OF MUNICIPALITY ENDS AND THERE IS NO JURISDICTION LEFT FOR THE LANDS SITUATE D OUTSIDE THE BOUNDARY. THE LEGISLATURES INTENT IS TO EXCLUDE THE LAND FROM THE PURVIEW OF AGRICULTURAL LAND ON THE BASIS OF URBANIZATION AND IN THIS CASE THE DISTANCE IS TO BE TAKEN FROM THE LIMITS OF MUNICIPA L CORPORATION OF DELHI WHICH IS LESS THAN 8 KMS. 8. THE LD. AR ALSO DREW THE ATTENTION OF THE BENCH T O THE ASSESSEES APPLICATION BEFORE THE TRIBUNAL SEEKING ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF T HE ITAT RULES, 1963. IT WAS SUBMITTED THAT THE AO HAD N OT GIVEN ANY OPPORTUNITY TO THE ASSESSEE TO NEGATE THE TEHSILDARS REPORT THAT THE LAND IN QUESTION WAS WITH IN 6.6 KMS FROM THE MUNICIPAL CORPORATION OF GURGAON. IT WA S SUBMITTED THAT NOW THE ASSESSEE SEEKS TO ADMIT THE FOLLOWING AS ADDITIONAL EVIDENCES UNDER RULE 29- ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 13 OF 15 I) CERTIFICATE DATED 10.07.2013 FROM THE OFFICE OF SDM MEHRAULI CONFIRMING THAT THE LAND IS SITUATED OUTSI DE THE LIMIT OF DELHI MUNICIPALITY. II). CERTIFICATE DATED 18.07.2013 FROM THE EXECUTIV E MAGISTRATE, MEHRAULI CERTIFYING THAT THE LAND DOES NOT FALL WITHIN THEIR JURISDICTION. III). CERTIFICATE DATED 4.10.2013 FROM THE MUNICIPA L COMMISSIONER, GURGAON STATING THAT THE DISTANCE OF THE LAND FROM THE MUNICIPAL LIMIT IN THE YEAR 2006 WAS APPROXIMATELY 12KMS. IV). CERTIFICATE DATED 25.10.2013 CERTIFYING THAT T HE DISTANCE OF LAND IS 8.5 KMS FROM MANDI VILLAGE, 11. 2 KMS FROM AYA NAGAR AND 13KMS FROM AMBIENCE MALL, GURGAON. 9. THE LD. AR URGED THAT THESE ADDITIONAL EVIDENCES SUPPORT THE CASE OF THE ASSESSEE AND THAT THE SAME MAY BE ADMITTED AND CONSIDERED WHILE ADJUDICATING THE IS SUE AT HAND. THE LD. AR ALSO PLACED RELIANCE ON THE DEC ISION ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 14 OF 15 OF THE CO-ORDINATE BENCH OF DELHI ITAT IN ACIT VS V IJAY SINGH KADAN IN ITA NO. 4733/DEL/2011(AFFIRMED BY TH E HONBLE DELHI HIGH COURT IN CIT VS. VIJAY SINGH KAD AN 378 ITR 7) WHEREIN A SIMILAR ISSUE HAS BEEN DECIDED IN FAVOUR OF THE RESPONDENT ASSESSEE. HE ALSO FILED A COPY OF THE ASSESSMENT PROCEEDINGS ORDER SHEET ENTRY DATED 29/04/2010 TO NEGATE THE DEPARTMENTS CONTENTION TH AT THE AR OF THE ASSESSEE HAD ITSELF ADMITTED THAT THE LAND WAS SITUATED WITHIN 6KMS OF THE MUNICIPAL LIMITS OF D ELHI. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT DOCUMENTS. WE ALSO DEEM IT FIT TO ADMIT TH E DOCUMENTS BEING ADMITTED AS ADDITIONAL EVIDENCE UND ER RULE 29 OF THE ITAT RULES, 1963 AS THESE DOCUMENTS/EVIDENCES WILL HAVE A BEARING ON THE FINAL OUTCOME OF THIS CASE. HOWEVER, SINCE THE AO HAS NOT HAD THE BENEFIT OF EXAMINING THESE ADDITIONAL EVIDENCES , IT WILL BE MORE APPROPRIATE THAT THESE ADDITIONAL EVIDENCES ARE EXAMINED/VERIFIED BY THE AO SO AS TO BE ENABLE HIM TO ITA NO. 4274/DEL/2010 ASHOK JAIDKA PAGE 15 OF 15 ADJUDICATE THE ISSUE AT HAND AFRESH. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT (A) AND REMIT THE MA TTER TO THE FILE OF THE AO TO RE-EXAMINE THE ISSUE AFTER DU LY CONSIDERING THE DOCUMENTS/EVIDENCES AS SUBMITTED BY THE ASSESSEE AND WHICH WE HAVE PERMITTED TO BE ADMIT TED AS ADDITIONAL EVIDENCE AS AFORE SAID AFTER GIVING T HE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. 11. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 18.07.2016 SD/- SD/- (G.D. AGRAWAL) (SUDHANSHU SRIVASTAVA ) VICE PRESIDENT JUDICIAL MEMBER DATED: 18/07/2016 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI