ACIT, New Delhi V. Smt. Sushma Aggarwal, New Delhi

ITA 4379/DEL/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81543 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 12-08-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 03-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMESH CHANDRA
• Assessee Lawyers: VENKETESH
• Keywords: Capital asset
• Section: 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SH. JOGINDER SINGH, JM AND SH. T. S. KAPOOR, AM ITA NO. 4379/DEL/2011 : ASS TT. YEAR : 2008-09 ITA NO. 4380/DEL/2011 : ASS TT. YEAR : 2009-10 ACIT, CENTRAL CIRCLE 1, NEW DELHI VS SMT. SUSHMA AGGARWAL, 18/26, EAST PUNJABI BAGH, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AAAPA1434C ASSESSEE BY : SH. VED JAIN, A. K. AGGARWAL, F.C.A SMT. RANU JAIN & VENKETESH REVENUE BY : SH. RAMESH CHANDR A, CIT DR DATE OF HEARING : 12.8.2014 DATE OF PRONOUNCEMENT : 13.8.2014 ORDER PER JOGINDER SINGH, JM: BOTH THESE APPEALS ARE BY THE REVENUE CHALLENGING T HE ORDERS, OF THE LD. FIRST APPELLATE AUTHORITY, DELHI, DATED 12.7.20 11. 2. THE COMMON ISSUE INVOLVED IN BOTH THESE APPEAL P ERTAINS TO DELETING THE ADDITION OF RS. 2,44,05,529/- (ASSESSMENT YEAR 2008-09) AND RS. 2,98,13,167/- (ASSESSMENT YEAR 2009-10) ADDED ON AC COUNT OF SHORT TERM CAPITAL GAINS. DURING HEARING OF THESE APPEALS WE H AVE HEARD SHRI RAMESH CHANDRA, LD. CIT DR AND SHRI VED JAIN ALONG WITH SH RI A. K AGGARWAL, SMT. RANU JAIN AND VENKETESH, LD. COUNSEL FOR THE A SSESSEE. THE CRUX OF ARGUMENT ADVANCED ON BEHALF OF THE REVENUE IS IN SU PPORT TO THE ADDITION MADE BY THE LD. A.O BY SUBMITTING THAT THE LD. COMM ISSIONER WAS NOT ITA NO. 4379 & 4380/DEL/2011 SUSHMA AGGARWAL 2 JUSTIFIED IN NOT EXAMINING THE FACTS INDEPENDENTLY REGARDING DISTANCE OF LAND FROM THE MUNICIPAL LIMIT. IT WAS ALSO SUBMITTE D THAT AERIAL SURVEY WAS NOT DONE BY THE LD. COMMISSIONER, THUS, THE ADDITIO N WAS RIGHTLY MADE BY THE ASSESSING OFFICER. ON THE OTHER HAND, THE LD. C OUNSEL FOR THE ASSESSEE CONTENDED THAT THE IMPUGNED ISSUE IS COVERED IN FAV OUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN THE CASE OF ACIT VS SMT. ASHI AGGARWAL ORDER DATED 30.3.2012 AND ALSO THE DECISION OF DELH I BENCH ITSELF IN THE CASE OF SMT. MANJU BANSAL AND NIRMAL BANSAL ORDER D ATED 31.1.2012. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT TH E ASSESSEE SOLD LAND SITUATED AT VILLAGE HAYATPUR, DISTT. GURGAON, WHICH WAS A CO-OWNERSHIP PROPERTY. THE ASSESSEE CLAIMED THE SALE PROCEEDS AS EXEMPT ON THE GROUNDS THAT FIRSTLY IT WAS AN AGRICULTURAL LAND AND SECOND LY SITUATED BEYOND 8 KMS FROM THE MUNICIPAL LIMITS OF GURGAON. IN SUPPORT OF HIS CLAIM THE ASSESSEE FURNISHED CERTIFICATE FROM THE TEHSILDAR. THE ASSES SING OFFICER MADE FURTHER INQUIRY FROM THE DISTRICT TOWN PLANNER, GUR GAON, WHO ALSO CERTIFIED THAT THE LAND IS SITUATED BEYOND 8.5 KMS FROM THE MUNICIPAL LIMITS. HOWEVER, THE ASSESSING OFFICER OPINED THAT POSSIBIL ITY OF OTHER SHORTEST DISTANCE CANNOT BE RULED OUT AND THEREFORE, HE MADE THE IMPUGNED ADDITIONS. THE ASSESSEE FELT AGGRIEVED AND CHALLENG E THE ADDITION BEFORE THE LD. CIT(A) WHEREIN FOR ASSESSMENT YEAR 2008-09 IT W AS HELD AS UNDER: ON A CAREFUL CONSIDERATION OF THE ASSESSMENT ORDER OF THE A.O AND THE WRITTEN SUBMISSION MADE BY THE APPELLANT AS WELL AS THE CASE LAWS RELIED UPON BY THE LATTER IT IS OB SERVED THAT THE APPELLANT ITA NO. 4379 & 4380/DEL/2011 SUSHMA AGGARWAL 3 DURING THE ASSESSMENT PROCEEDINGS HAS SUBMITTED CER TIFICATE ISSUED BY THE TEHSILDAR, GURGAON TO THE EFFECT THAT THE LA ND WHOSE PARTICULARS ARE GIVEN IN THE SALE DEED IN QUESTION IS SITUATED AT DISTANCE WHICH IS 9 KILOMETERS FROM THE OUTER MUNIC IPAL LIMITS OF GURAGAON. AS SEEN FROM IN THE IMPUGNED ASSESSMENT O RDER, THE A.O HAS MADE FURTHER ENQUIRIES ABOUT THE DISTANCE O F THE SAID LAND FROM MUNICIPAL LIMITS OF GURGAON FROM DISTRICT TOWN PLANNER, GURGAON. THE DISTRICT TOWN PLANNER, GURGAON VIDE LE TTER MEMO 70954 DATED 21.12.2010 HAS INTIMATED THAT THE DISTA NCE OF THE LAND FROM THE OUTER LIMIT OF THE MUNICIPAL COMMITTEE OF GURGAON WAS 8.5 KILOMETERS ON THE DATED OF SALE. THUS TWO COMPE TENT AUTHORITIES VIZ. TEHSILDAR, GURGAON & DISTRICT & TO WN PLANNER, GURGAON BOTH HAVE INDEPENDENTLY CERTIFIED THAT THE SAID LAND IS SITUATED BEYOND 8 KILOMETERS OF MUNICIPAL LIMITS OF GURGAON. THEREFORE THE APPREHENSION OF THE A.O THAT THE DIST ANCE GIVEN BY DTP, GURGAON IS VERY NARROW AS COMPARED TO THE DIST ANCE MENTIONED IN THE ACT AND THEREFORE THE POSSIBILITY OF ANY OTHER SHORTEST DISTANCE CANNOT BE RULED OUT IS NOT BASED ON ANY HARD EVIDENCE. SUCH APPREHENSION AND POSSIBILITY CANNOT FORM BASIS FOR DENIAL OF THE CLAIM OF THE ASSESSEE THAT THE LAND I N QUESTION IS NOT A CAPITAL ASSET WITHIN THE MEANING OF S. 2(14) OF T HE ACT. IN FACT THE DISTANCE OF 8 KMS AS OUTER LIMIT FROM THE LOCAL LIMITS OF THE MUNICIPAL COMMITTEE HAS BEEN ENVISAGED UNDER THE I. T ACT FOR THE PURPOSE OF A CUT OFF DISTANCE AND THEREFORE IS AN O BJECTIVE CRITERIA FIXED BY THE ACT AND ANY AGRICULTURAL LAND FALLING OUTSIDE THE SAID LIMIT WOULD BE ENTITLED TO EXEMPTION FROM CAPITAL G AINS BEING NOT A CAPITAL ASSET. HENCE, ADDITION OF RS. 2,44,05,529 /- ON ACCOUNT OF CAPITAL GAINS IS NOT JUSTIFIED AND IS ACCORDINGLY D IRECTED TO BE DELETED. IDENTICAL IS THE FINDING FOR ASSESSMENT YEAR 2009- 10. 3.1 IF THE ARGUMENTS ADVANCED FROM BOTH SIDES AND T HE FACTUAL FINDINGS RECORDED BY THE LD. CIT(A) ALONG WITH OBSERVATIONS MADE IN THE ASSESSMENT ITA NO. 4379 & 4380/DEL/2011 SUSHMA AGGARWAL 4 ORDER ARE KEPT IN JUXTAPOSITION AND ANALYZED. THERE IS NO DISPUTE TO THE FACT THAT THE IMPUGNED LAND IS SITUATED BEYOND 8 KMS FRO M THE OUTER MUNICIPAL LIMITS OF THE CITY OF GURGAON. IT IS NOTED THAT THE DISTANCE CERTIFIED BY THE TEHSILDAR IS 9 KMS AND THE DISTRICT TOWN PLANNER VI DE COMMUNICATION 70954 DATED 21.12.2010 CONFIRMED THAT THE LAND IS S ITUATED BEYOND 8.5 KMS, THUS, IN BOTH THE SITUATION THE LAND IS SITUAT ED BEYOND 8 KMS FROM THE MUNICIPAL LIMITS. BOTH THE AUTHORITIES I.E. TEHSILD AR AND DISTRICT TOWN PLANNER ARE GOVERNMENT AUTHORITIES, THEREFORE, THEI R CERTIFICATES CANNOT BE IGNORED. THE APPREHENSION OF THE LD. CIT DR AND ALS O OF THE ASSESSING OFFICER REGARDING AERIAL SURVEY CANNOT FORM THE BAS IS FOR DENIAL OF CLAIM WITHIN THE MEANING OF SEC. 2(14) OF THE ACT. IN FAC T, THE DISTANCE OF 8 KMS FROM THE MUNICIPAL LIMITS HAS BEEN PROVIDED IN THE ACT ITSELF, THUS, ANY AGRICULTURAL LAND SITUATED BEYOND THIS LIMIT WOULD BE ENTITLED FOR EXEMPTION FROM CAPITAL GAINS. THUS, WE FIND NO INFIRMITY IN T HE ORDERS OF THE LD. CIT(A). 3.2. IN THE CASE OF CO-OWNER ON IDENTICAL FACT THIS ISSUE HAS ALREADY BEEN CONSIDERED BY THE TRIBUNAL VIDE ORDER DATED 30.3.20 12, THEREFORE, WE ARE NOT EXPECTED TO DEVIATE FROM THAT ORDER UNLESS AND UNTIL CONTRARY FACTS ARE BROUGHT TO OUR NOTICE. IT IS FURTHER NOTED THAT WHI LE COMING TO THIS CONCLUSION THE BENCH HAS ALREADY CONSIDERED ANOTHER DECISION IDENTICALLY VIDE ORDER DATED 31.1.2012 IN THE CASES OF SMT. MAN JU BANSAL AND SMT. NIRMAL BANSAL. ALL THESE ORDERS ARE AVAILABLE IN TH E PAPER BOOK. CAPITAL ASSET HAS BEEN DEFINED IN SEC. 2(14) OF THE ACT AND AGRICULTURAL LAND HAS ITA NO. 4379 & 4380/DEL/2011 SUSHMA AGGARWAL 5 BEEN ELABORATED IN SUB-CLAUSE (III) WHICH MENTIONS ABOUT THE DISTANCE OF 8 KMS FROM THE LOCAL LIMITS OF ANY MUNICIPALITY. KEEP ING IN VIEW THE CLEAR POSITION OF THE ACT AND THE FACTS AVAILABLE BEFORE US, WE AFFIRM THE STAND OF LD. CIT(A). 4. BOTH THESE APPEALS OF THE REVENUE ARE HAVING NO MERIT, CONSEQUENTLY, DISMISSED. 5. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 13.8.2014. SD/- SD/- (T. S. KAPOOR) (J OGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13/8/2014 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR DATE INITIAL 1. DRAFT DICTATED ON 12.8.2014 PS 2. DRAFT PLACED BEFORE AUTHOR 12.8.2014 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.