ADITYA CHOUDHARY, Jaipur V. ITO, Jaipur

ITA 520/JPR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5616 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 12-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PREM PRAKASH MEENA J DHK
• Assessee Lawyers: ANUP BHATIA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 154

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] Y S[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 520/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13 SHRI ADITYA CHOUDHARY B-501, AURAM APARTMENT, TILAK MARG, C-SCHEME, JAIPUR CUKE VS. THE ITO WARD- 1(3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AENPC 6763 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY :SHRI ANUP BHATIA, CA JKTLO DH VKSJ LS@ REVENUE BY: SHRI PREM PRAKASH MEENA, JCIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23/01/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 27 /01/2017 VKNS'K@ ORDER PER KUL BHARAT, JM THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINS T THE ORDER OF THE LD. CIT (A)-1, JAIPUR DATED 09-02-2016 PERTAINING TO AS SESSMENT YEAR 2012- 13. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF A PPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE COMMISSIONER (APPEALS) ERRED IN DECIDING THE CASE O N 9 TH FEBRUARY 2016 WITHOUT CONSIDERING THE POWER OF ATTORNEY SUBM ITTED ON 4 TH FEBRUARY 2016. THUS OPPORTUNITY OF BEING HEARD AS REQUESTED WAS ITA NO. 520/JP/2016 SHRI ADITYA CHOUDHARY VS. ITO , WARD- 1(3), JAIPUR . 2 NOT DULY PROVIDED TO THE ASSESSEE. HOWEVER THE ASS ESSEE HAS FILED A RECTIFICATION APPLICATION U/S 154 ON 21.04.2016. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LAND TRANSFERRED BY THE ASSESSEE WAS RURAL AGRICULT URE LAND; TRANSFER THEREOF WAS NOT CHARGEABLE TO INCOME TAX. WHEREAS SAME HAS BEEN WRONGLY TAXED BY THE ASSESSING OFFICER. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE COMMISSIONER (APPEALS) ERRED IN NOT HOLDING THAT TH E AGRICULTURE LAND UNDER CONSIDERATION WAS BEYOND 8 KMS FROM THE LIMITS OF JAIPUR MUNICIPAL AREA AS ON 06.01.1994 (I.E. THE DA TE OF ISSUING RELEVANT NOTIFICATION NO. 9447/F.NO. 164/3/87-ITA-1 DATED 6.1.1994). BOTH THE ASSESSING OFFICER AND CIT (APP EALS) HAVE NOT TRIED TO FIND OUT AND CONSIDER THE STATUS OF SAID L AND AS ON THE DATE OF NOTIFICATION I.E. 6-1-1994. 4. ON THE FACTS IN THE CIRCUMSTANCES OF THE CASE AND I N LAW THE COMMISSIONER (APPEALS) ERRED IN NOT APPLYING THE RA TIONALE OF POOJA AGARWAL, JAIPUR VS. CIT CASE FOR THE ASSESSME NT YEAR 2008- 09 PASSED BY THE HON'BLE ITAT, JAIPUR BENCH ON 22.0 1.2014 WHEREIN IT IS HELD THAT NO AUTHORITY OTHER THAN THE SARPANCH AND PATWARI OF THE SAME VILLAGE CAN BE SO AUTHENTIC TO STATE AND CERTIFY THAT THE SOLD LAND IS SITUATED AT A DISTANCE OF MOR E THAN 8 KMS FROM THE LOCAL LIMIT OF THE RELATED MUNICIPALITY. WHERE AS BOTH THE ASSESSING OFFICER AS WELL AS CIT(APPEALS) HAVE RELI ED UPON THE REPORT OF TEHSILDAR, SANGANER ONLY AND NOT TRIED TO MAKE ANY INQUIRY WITH THE SARPANCH OR PATWARI OF THE CONCERN ED VILLAGE. 5. THE APPELLANT PRAYS THAT THE LONG TERM CAPITAL GAIN ADDITION OF RS. 1,65,21,259/- MADE IN THE TOTAL INCOME OF THE ASSES SEE, MAY ACCORDINGLY BE DELETED. 2. AT THE OUTSET OF HEARING THE LD. A.R OF THE ASSE SSEE SUBMITTED THAT THE LD. CIT (APPEALS) DID NOT PROVIDE SUFFICIENT OP PORTUNITY TO THE ASSESSEE TO REPRESENT HIS CASE. HE SUBMITTED THAT THE IMPUGNED ORDER WAS ITA NO. 520/JP/2016 SHRI ADITYA CHOUDHARY VS. ITO , WARD- 1(3), JAIPUR . 3 PASSED IN THE ABSENCE OF THE ASSESSEE. FURTHER, HE SUBMITTED THAT AT LEAST AN OPPORTUNITY BE GRANTED ON THE AFORESAID ISSUE AN D THUS THE APPEAL MAY BE RESTORED TO THE FILE OF LD. CIT (APPEALS) FOR AF RESH DECISION IN THE INTEREST OF PRINCIPLE OF NATURAL JUSTICE AND FAIR P LAY. 3. DURING THE COURSE OF HEARING LD. DEPARTMENTAL R EPRESENTATIVE RELIED ON THE ORDER OF THE LD. CIT (APPEALS). 4. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD AND ALSO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS NOT IN DISPUTE WITH REGARD TO THE IMPUGNED ORDER WHICH WAS PASSED BY THE LD. CIT (APPEALS) IN THE ABSENCE OF THE ASSESSEE. AFTER CONSIDERING THE TOTALITY IN THE FACTS OF THIS CASE, WE ARE OF THE C ONSIDERED VIEW THAT IN THE INTEREST OF JUSTICE THE ASSESSEE BE GRANTED AS LAS T OPPORTUNITY TO REPRESENT HIS CASE BEFORE THE LD. CIT (APPEALS). THEREFORE T HE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE RESTORED TO THE FILE OF THE LD. CIT (APPEALS) FOR AFRESH DECISION. HENCE THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE ONLY. ITA NO. 520/JP/2016 SHRI ADITYA CHOUDHARY VS. ITO , WARD- 1(3), JAIPUR . 4 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 27 /01/2 017. SD/- SD/- FOE FLAG ;KNO DQY HKKJR (VIKRAM SINGH YADAV) (KUL BHARAT) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27/01/ 2017 *GANESH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI ADITYA CHOUDHARY, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO,WARD- 1 (3), JAIPUR 3. VK;DJ VK;QDRVIHY ) @ CIT(A), 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.520/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR