Smt. Maya Devi, Fatehabad V. ITO, Fatehabad

ITA 5403/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2883 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 17-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R MISHRA
• Keywords: Capital asset; Opportunity of being heard; Principle of natural justice; Additional evidence; Cost of acquisition; Tangible material; Fair market value
• Section: 2(14); 234B; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO.5399/DEL/2016 ASSESSMENT YEAR : 2009-10 KAUSHALYA DEVI, C/O. M/S. KISSAN AGRO PROPERTIES, KHEMA KHATTI ROAD, OPP. THAKKAR HOSPITAL, FATEHABAD. VS. ITO, WARD- 1, FATEHABAD. PAN : BWTPD8759F (APPELLANT) (RESPONDENT) ITA NO.5403/DEL/2016 ASSESSMENT YEAR : 2009-10 MAYA DEVI, C/O. M/S. KISSAN AGRO PROPERTIES, KHEMA KHATTI ROAD, OPP. THAKKAR HOSPITAL, FATEHABAD. VS. ITO, WARD- 1, FATEHABAD. PAN : BWTPD8477N (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SALIL KAPOOR, ADV. MS. SOUMYA, ADV. MS. ANANYA KAPOOR, ADV. DEPARTMENT BY : SHRI B. R. MISHRA, SR.DR DATE OF HEARING : 15-02-2018 DATE OF PRONOUNCEMENT : 16-03-2018 O R D E R PER R. K. PANDA, AM : THE ABOVE TWO APPEALS FILED BY THE RESPECTIVE ASSES SEES ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 08.08.2016 OF THE CIT(A), HISAR RELATING TO ASSESSMENT YEAR 2009-10. SINCE IDENTICAL GROUNDS H AVE BEEN TAKEN BY THE 2 ITA NO.5399/DEL/2016 ITA NO.5403/DEL/2016 RESPECTIVE ASSESSEES IN THESE APPEALS, THEREFORE, T HESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. ITA NO.5403/DEL/2016 (MAYA DEVI) : 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND JOINTLY OWNED CERTAIN AGRICULTURAL LAND WITH HER FOUR BROTH ERS AND ONE SISTER NAMELY, S/SHRI SOHAN LAL, KARAM CHAND, DHARAM CHAND, PREM C HAND AND KAUSHALYA DEVI, ALL SONS & DAUGHTERS OF LATE SHRI MALIK DITTA , R/O FATEHABAD, MEASURING 49 KANALS (6.13 ACRES) AT BHIVA BASTI, FATEHABAD. THE ASSESSEE WAS HAVING 1/6 TH SHARE IN THIS LAND. THE ABOVE-MENTIONED LAND IS SI TUATED WITHIN THE MUNICIPAL LIMITS AND, THEREFORE, UNDISPUTEDLY IT IS A CAPITA L ASSET WITHIN THE MEANING OF SUB-SECTION (14) OF SECTION 2 OF THE I.T. ACT. DUR ING THE YEAR UNDER CONSIDERATION, THE SAID LAND WAS SOLD BY THE ASSESS EE TO M/S SOMA NEW TOWN PVT. LTD. FOR A CONSIDERATION OF RS.2,67,72,376/-. SINCE IT WAS A HIGH VALUE TRANSACTION, THEREFORE, THE REGISTRATION AUTHORITY PASSED ON THE INFORMATION TO THE INCOME TAX DEPARTMENT THROUGH THE ANNUAL INFORM ATION RETURN. THE ASSESSING OFFICER THEREAFTER CONDUCTED ENQUIRIES AN D OBSERVED THAT THE ASSESSEE HAD NOT FILED HER RETURN OF INCOME FOR THE YEAR UND ER CONSIDERATION. THE ENQUIRIES CONDUCTED BY THE INSPECTOR OF THE WARD RE VEALED THAT PREVALENT MARKET RATE AS ON 01.04.1981 IN RESPECT OF THE TRANSFERRED LAND WAS NOT MORE THAN RS.40,000/- PER ACRE AS AGAINST THE HUGE SALE CONSI DERATION RECEIVED. THE 3 ITA NO.5399/DEL/2016 ITA NO.5403/DEL/2016 ASSESSING OFFICER, THEREFORE, REOPENED THE ASSESSME NT U/S 147 AND ISSUED NOTICE U/S 148 OF THE I.T. ACT. IN RESPONSE TO THE SAME, SHE FILED HER RETURN OF INCOME DECLARING NIL INCOME PLUS AGRICULTURAL INCOME OF RS .35,000/-. FROM THE COMPUTATION OF INCOME FURNISHED BY THE ASSESSEE, TH E ASSESSING OFFICER OBSERVED THAT THE SHARE OF THE ASSESSEE ON ACCOUNT OF THE SALE CONSIDERATION WORKS OUT TO RS.44,62,062/-. AGAINST THE SAME THE ASSESSEE HAS CLAIMED INDEXED COST OF ACQUISITION AT RS.46,65,690/- AND I NDEXED COST OF IMPROVEMENT AT RS.5,65,571/-. ACCORDINGLY, THE ASSESSEE HAS CO MPUTED THE LONG TERM CAPITAL LOSS OF RS.7,69,199/-. 3. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS SUBSTITUTED THE FAIR MARKET VALUE (FMV) OF THE LAND AS ON 01.04.1981 IN PLACE OF THE COST OF ACQUISITION OF HER LAND IN TERMS OF SECTION 55(2)(B )(I) OF THE I.T. ACT. ACCORDINGLY, THE FMV OF THE LAND AS ON 01.04.1981 W ORKS OUT TO RS.8,00,000/- PER ACRE CALCULATING THE COST OF ACQUISITION AT RS8 ,01,665/- AS ON 01.04.1981 AND INDEXED COST OF ACQUISITION/IMPROVEMENT COMES TO RS .52,31,261/-. THE ASSESSING OFFICER AFTER EXAMINING CERTAIN SALE INST ANCES AND THE REPORT OF THE INSPECTOR DETERMINED THE FAIR MARKET VALUE OF THE A SSESSEES LAND AT RS.5,760/- PER ACRE AND ACCORDINGLY DETERMINED THE INDEXED COS T OF ACQUISITION OF RS.2,05,330/-. AFTER DEDUCTING THE SALE CONSIDERAT ION OF RS.44,62,062/-, THE ASSESSING OFFICER MADE ADDITION OF RS.42,56,732/- T O THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSING OFFICER FURTHER DETERMINED THE AGRICULTURAL INCOME AT 4 ITA NO.5399/DEL/2016 ITA NO.5403/DEL/2016 RS.35,000/- DECLARED BY THE ASSESSEE AS INCOME FROM OTHER SOURCES. THUS, HE DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.4 2,91,730/-. 4. IN APPEAL, THE LD. CIT(A) UPHELD THE ACTION OF T HE ASSESSING OFFICER IN SO FAR AS THE COST OF ACQUISITION AT RS.5,760/- PER AC RE IS CONCERNED. HE, HOWEVER, GAVE PARTIAL RELIEF TO THE ASSESSEE ON ACCOUNT OF C OST OF IMPROVEMENT. HE ALSO DELETED THE ADDITION OF RS.35,000/- MADE BY THE ASS ESSING OFFICER TREATING THE INCOME AS INCOME FROM OTHER SOURCES AS AGAINST AGRI CULTURAL INCOME DECLARED BY THE ASSESSEE. 5. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUND S :- 1. THAT THE NOTICE ISSUED U/S 148 AND THE ASSESSME NT ORDER PASSED IN PURSUANCE TO SAID NOTICE ARE ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION. 2. THAT IN VIEW OF FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW THE CIT(A) FAILED TO APPRECIATE THAT THE REASONS TO BELIEVE PROVIDED BY THE AO ARE ABSOLUTELY SUBJECTIVE, BASED ON SUSPICION AND HAVE BEEN RECORDED WITHOUT EXERCISE OF MIND OVER INFORMATION RECEIVED BY THE A O. 3. THAT IN THE REASONS TO BELIEVE THE AO HAS ARBI TRARILY CONCLUDED THAT THE LAND WHICH HAS BEEN SOLD IS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) AND IN THE ABSENCE OF ANY TANGIBLE MATERIAL. THERE FORE, RE-OPENING OF THE ASSESSMENT U/S 147 IS ILLEGAL, UNJUST AND VOID AB I NITIO AT THE VERY THRESHOLD. 4. THAT IN VIEW OF FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) GROSSLY ERRED IN UPHOLDING THE ACTIONS OF AO AS RE- ASSESSMENT ORDER PASSED BY AO IS ARBITRARY, WITHOUT APPLICATION OF MIND AND IN GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THE ADDITIONS MADE ARE ILLEGAL AND BAD IN LAW. 5. THAT THE CIT(A) AND AO HAVE ERRED IN ASSUMING TH AT THE SAID AGRICULTURAL LAND IS SITUATED WITHIN THE MUNICIPAL LIMITS AND HE NCE A CAPITAL ASSET WITHIN THE MEANING OF CAPITAL ASSET WITHIN THE MEANING OF SUB SECTION 14 OF SECTION 2 OF THE INCOME TAX ACT. 6. THAT WITHOUT PREJUDICE IN VIEW OF FACTS AND CIRC UMSTANCES OF THE CASE AND IN LAW, THE CIT(A) & AO HAVE GROSSLY ERRED IN ADOPTING THE FMV AS ON 1.04.1981 OF THE SAID LAND AT RS.5,760/- ARBITRARIL Y AND IGNORING ALL OTHER EVIDENCES AND MATERIAL AVAILABLE AND PLACED ON RECO RD BY THE ASSESSEE IN THIS REGARD. 5 ITA NO.5399/DEL/2016 ITA NO.5403/DEL/2016 7. THAT WITHOUT PREJUDICE THE FACTS AND CIRCUMSTANC ES OF THE LAND DEAL RELIED UPON BY THE AO ARE COMPLETELY DIFFERENT FROM THE AS SESSEE'S CASE AND THUS THE LAND VALUE OF THE EARLIER DEAL, AS RELIED BY THE AO CANNOT BE MADE BASIS FOR ESTIMATING THE FAIR MARKET VALUE OF THE ASSESSE'S L AND. 8. THAT IN VIEW OF FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) HAVE GROSSLY ERRED IN UPHOLDING THE ADDITIONS MADE AO ON ACCOUNT OF CAPITAL GAINS ARISING FROM SALE OF THE AGRICULTURAL LAND OW NED BY THE ASSESSEE. 9. THAT THE MATERIAL USED BY THE AO HAS NOT BEEN CO NFRONTED TO THE ASSESSEE AND REASONABLE OPPORTUNITY TO PLACE THE DOCUMENT AND EV IDENCE IN SUPPORT OF HIS CASE IS NOT GIVEN TO ASSESSEE. HENCE THE ADDITIONS MADE ARE AGAINST THE NATURAL PRINCIPLES OF JUSTICE. 10. THAT WITHOUT PREJUDICE TO THE ABOVE THE CAPITAL GAINS HAVE BEEN WRONGLY COMPUTED AND WRONGLY WORKED OUT BY THE AO. 11. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE VARIOUS OBSERVATIONS MADE BY THE AO AND CIT(A) ARE FACTUALL Y INCORRECT, ILLEGAL, BAD IN LAW AND CONTRARY TO FACTS ON RECORD AND BASED ON MERE GUESSWORK AND SURMISES AND CONJECTURES. 12. THE ADDITIONS MADE AND THE OBSERVATIONS MADE AR E UNJUST, UNLAWFUL AND BASED ON MERE SURMISES AND CONJUNCTURES. THE ADDITIONS MA DE CANNOT BE JUSTIFIED BY ANY MATERIAL ON RECORD AND ADDITIONS ARE ALSO EXCES SIVE. 13. THE EXPLANATIONS GIVEN, THE EVIDENCE PRODUCED A ND MATERIAL PLACED HAS NOT BEEN PROPERLY CONSIDERED AND JUDICIALLY INTERPRETED AND THE SAME DO NOT JUSTIFY THE ADDITIONS/ ALLOWANCES MADE. 14. THAT THE INTEREST U/S 234A, 234B AND 234C HAS B EEN WRONGLY AND ILLEGALLY CHARGED AND IS WRONGLY WORKED OUT. 15. THAT THE ASSESSEE RESERVES THE RIGHT TO ADD, AM END, ALTER THE GROUNDS OF APPEAL. 6. LD. COUNSEL FOR THE ASSESSEE REFERRING TO THE AP PLICATION FOR ADMISSION OF ADDITIONAL EVIDENCES SUBMITTED THAT THESE EVIDENCES GO TO THE ROOT OF THE MATTER AND ARE NECESSARY TO DETERMINE THE TAX LIABILITY OF THE ASSESSEE. FURTHER, THE ASSESSEE IS AN OLD LADY HAVING PRACTICALLY NO EDUCA TION AND IS NOT AWARE ABOUT THE INTRICACIES OF THE INCOME TAX LAW AND AS SUCH S HE COULD NOT FILE THESE DOCUMENTS EARLIER. FURTHER, THE LAND IN QUESTION I S BEYOND THE DISTANCE OF 5 KM. FROM THE MUNICIPAL LIMITS OF FATEHABAD AND AS SUCH IS NOT A CAPITAL ASSET. REFERRING TO THE DECISION OF THE TRIBUNAL IN THE CA SE OF VIRENDRA SINGH VS. ITO 6 ITA NO.5399/DEL/2016 ITA NO.5403/DEL/2016 VIDE ITA NO.3166/DEL/2010 ORDER DATED 27.06.2014 HE SUBMITTED THAT UNDER IDENTICAL CIRCUMSTANCES THE TRIBUNAL HAD ADMITTED T HE ADDITIONAL GROUND AND THE ADDITIONAL EVIDENCES AND RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO ADJUDICATE ALL THOSE ISSUES AFT ER CONSIDERING THE ADDITIONAL EVIDENCES FILED. 7. REFERRING TO THE DECISION OF THE TRIBUNAL IN THE CASE OF ITO VS. SHRI PRAVEEN KUMAR VIDE ITA NO.3839/DEL/2012 ORDER DATED 21.10.2016, COPY OF WHICH IS PLACED AT PAGE 103 TO 115 OF THE PAPER BOO K, HE SUBMITTED THAT THE TRIBUNAL UNDER IDENTICAL CIRCUMSTANCES HAS RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WHEREIN THE ASSESSEE IN THAT CASE ALSO HAD TRANSFERRED THE LAND TO M/S. SOMA NEW TOWNS PRIVATE LIMITED FOR RS.1,21, 79,806/-. THE TEHSILDAR ESTIMATED THE FAIR MARKET VALUE OF THE LAND AT RS.1 0,45,000/- AS ON 01.04.1981 AS AGAINST COST OF ACQUISITION AT NIL BY THE ASSESSING OFFICER. HE, THEREFORE, SUBMITTED THAT IN THE INTEREST OF JUSTICE THIS MATT ER SHOULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO ADJUDI CATE THE ISSUE AFRESH IN THE LIGHT OF THE ADDITIONAL EVIDENCES FILED AND IN THE LIGHT OF THE DECISIONS OF THE TRIBUNAL CITED (SUPRA). 8. LD. DR ON THE OTHER HAND WHILE SUPPORTING THE OR DER OF THE LD. CIT(A) FAIRLY CONCEDED THAT THE HE HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO CONSIDER THE ADDITIONAL EVIDENCES NOW FILED BY THE ASSESSEE. 7 ITA NO.5399/DEL/2016 ITA NO.5403/DEL/2016 9. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES, PERUSED THE ORDER OF THE ASSESSING OFFICER AND THE LD. CIT(A) A ND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE ME. I FIND THE ASSESSEE IN THE INSTANT CASE HAS SO LD THE AGRICULTURAL LAND ALONG WITH FIVE CO-OWNERS FOR A CONSIDERATION OF RS.2,67, 72,376/-. THE SHARE OF THE ASSESSEE IN SUCH AGRICULTURAL LAND WAS RS.44,62,062 /-. AFTER CONSIDERING THE INDEXED COST OF ACQUISITION AND IMPROVEMENT AT RS.5 2,32,261/-, THE ASSESSEE DECLARED LONG TERM CAPITAL LOSS AT RS.7,69,199/-. I FIND THE ASSESSING OFFICER ON THE BASIS OF THE REPORT OF THE INSPECTOR AND CERTAI N SALE INSTANCES IN CERTAIN ADJACENT LAND DETERMINED THE FAIR MARKET VALUE AT R S.5,760/- PER ACRE AND THUS DETERMINED THE COST OF ACQUISITION OF LAND AS ON 01 .04.1981 AT RS.35,280/-. AFTER DEDUCTING THE INDEXED COST OF ACQUISITION OF RS.2,05,330/- FROM THE 1/6 TH SHARE OF THE TOTAL CONSIDERATION I.E. RS.44,62,062/ - I.E. SHARE OF THE ASSESSEE, THE ASSESSING OFFICER DETERMINED THE LONG TERM CAPITAL GAIN AT RS.42,56,732/-. I FIND IN APPEAL THE LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER IN CONSIDERING THE VALUE OF THE LAND AS ON 01.04.1981 AT RS.5,760/- PER ACRE. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE LAND IS NOT A CAPITAL ASSET BEING AN AGRICULTURAL LAND SITUATED BEYOND 5 KM FROM THE MUNICIPAL LIMITS OF FATEHABAD. IT IS ALSO THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE TRIBUNAL IN THE CASE OF SHRI PRAVEEN KUMAR (SUP RA) UNDER IDENTICAL CIRCUMSTANCES HAS RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A 8 ITA NO.5399/DEL/2016 ITA NO.5403/DEL/2016 DIRECTION TO DECIDE THE ISSUE AFRESH IN THE LIGHT O F THE ADDITIONAL EVIDENCES FILED BEFORE ME. FROM THE SUBMISSION OF THE ASSESSEE, I FIND THE ASSESSING OFFICER, AFTER THE ORDER WAS SET-ASIDE BY THE TRIBUNAL TO HI S FILE HAS PASSED THE ORDER U/S 143(3)/263 ON 29.09.2017. SINCE THE ADDITIONAL EVI DENCES FILED BEFORE ME GO TO THE ROOT OF THE MATTER, THEREFORE, AFTER ADMITTING THE ADDITIONAL EVIDENCES SO FILED, I DEEM IT APPROPRIATE TO RESTORE THE ISSUE T O THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO ADJUDICATE THE ISSUE AF RESH IN THE LIGHT OF THE ADDITIONAL EVIDENCES FILED AND IN THE LIGHT OF THE DECISION OF THE TRIBUNAL IN CASE OF VIRENDRA SINGH (SUPRA). NEEDLESS TO SAY, THE AS SESSING OFFICER SHALL GIVE DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECI DE THE ISSUE AS PER FACT AND LAW. I HOLD AND DIRECT ACCORDINGLY. THE GROUNDS R AISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.5399/DEL/2016 (KAUSHALYA DEVI) : 10. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THAT THE NOTICE ISSUED U/S 148 AND THE ASSESSME NT ORDER PASSED IN PURSUANCE TO SAID NOTICE ARE ILLEGAL, BAD IN LAW AND WITHOUT JURISDICTION. 2. THAT IN VIEW OF FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW THE CIT(A) FAILED TO APPRECIATE THAT THE REASONS TO BELIEVE PROVIDED BY THE AO ARE ABSOLUTELY SUBJECTIVE, BASED ON SUSPICION AND HAVE BEEN RECORDED WITHOUT EXERCISE OF MIND OVER INFORMATION RECEIVED BY THE A O. 3. THAT IN THE REASONS TO BELIEVE THE AO HAS ARBI TRARILY CONCLUDED THAT THE LAND WHICH HAS BEEN SOLD IS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) AND IN THE ABSENCE OF ANY TANGIBLE MATERIAL. THERE FORE, RE-OPENING OF THE ASSESSMENT U/S 147 IS ILLEGAL, UNJUST AND VOID AB I NITIO AT THE VERY THRESHOLD. 4. THAT IN VIEW OF FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) GROSSLY ERRED IN UPHOLDING THE ACTIONS OF AO AS RE- ASSESSMENT ORDER PASSED BY AO IS ARBITRARY, WITHOUT APPLICATION OF MIND AND IN GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THE ADDITIONS MADE ARE ILLEGAL AND BAD IN LAW. 9 ITA NO.5399/DEL/2016 ITA NO.5403/DEL/2016 5. THAT THE CIT(A) AND AO HAVE ERRED IN ASSUMING TH AT THE SAID AGRICULTURAL LAND IS SITUATED WITHIN THE MUNICIPAL LIMITS AND HE NCE A CAPITAL ASSET WITHIN THE MEANING OF CAPITAL ASSET WITHIN THE MEANING OF SUB SECTION 14 OF SECTION 2 OF THE INCOME TAX ACT. 6. THAT WITHOUT PREJUDICE IN VIEW OF FACTS AND CIRC UMSTANCES OF THE CASE AND IN LAW, THE CIT(A) & AO HAVE GROSSLY ERRED IN ADOPTING THE FMV AS ON 1.04.1981 OF THE SAID LAND AT RS.5,760/- ARBITRARIL Y AND IGNORING ALL OTHER EVIDENCES AND MATERIAL AVAILABLE AND PLACED ON RECO RD BY THE ASSESSEE IN THIS REGARD. 7. THAT WITHOUT PREJUDICE THE FACTS AND CIRCUMSTANC ES OF THE LAND DEAL RELIED UPON BY THE AO ARE COMPLETELY DIFFERENT FROM THE AS SESSEE'S CASE AND THUS THE LAND VALUE OF THE EARLIER DEAL, AS RELIED BY THE AO CANNOT BE MADE BASIS FOR ESTIMATING THE FAIR MARKET VALUE OF THE ASSESSE'S L AND. 8. THAT IN VIEW OF FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) HAVE GROSSLY ERRED IN UPHOLDING THE ADDITIONS MADE AO ON ACCOUNT OF CAPITAL GAINS ARISING FROM SALE OF THE AGRICULTURAL LAND OW NED BY THE ASSESSEE. 9. THAT THE MATERIAL USED BY THE AO HAS NOT BEEN CO NFRONTED TO THE ASSESSEE AND REASONABLE OPPORTUNITY TO PLACE THE DOCUMENT AND EV IDENCE IN SUPPORT OF HIS CASE IS NOT GIVEN TO ASSESSEE. HENCE THE ADDITIONS MADE ARE AGAINST THE NATURAL PRINCIPLES OF JUSTICE. 10. THAT WITHOUT PREJUDICE TO THE ABOVE THE CAPITAL GAINS HAVE BEEN WRONGLY COMPUTED AND WRONGLY WORKED OUT BY THE AO. 11. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE VARIOUS OBSERVATIONS MADE BY THE AO AND CIT(A) ARE FACTUALL Y INCORRECT, ILLEGAL, BAD IN LAW AND CONTRARY TO FACTS ON RECORD AND BASED ON MERE GUESSWORK AND SURMISES AND CONJECTURES. 12. THE ADDITIONS MADE AND THE OBSERVATIONS MADE AR E UNJUST, UNLAWFUL AND BASED ON MERE SURMISES AND CONJUNCTURES. THE ADDITIONS MA DE CANNOT BE JUSTIFIED BY ANY MATERIAL ON RECORD AND ADDITIONS ARE ALSO EXCES SIVE. 13. THE EXPLANATIONS GIVEN, THE EVIDENCE PRODUCED A ND MATERIAL PLACED HAS NOT BEEN PROPERLY CONSIDERED AND JUDICIALLY INTERPRETED AND THE SAME DO NOT JUSTIFY THE ADDITIONS/ ALLOWANCES MADE. 14. THAT THE INTEREST U/S 234A, 234B AND 234C HAS B EEN WRONGLY AND ILLEGALLY CHARGED AND IS WRONGLY WORKED OUT. 15. THAT THE ASSESSEE RESERVES THE RIGHT TO ADD, AM END, ALTER THE GROUNDS OF APPEAL. 11. AFTER HEARING BOTH THE SIDES, I FIND THE ABOVE GROUNDS ARE IDENTICAL TO GROUNDS RAISED BY THE ASSESSEE IN ITA NO.5403/DEL/2 016. I HAVE ALREADY DECIDED THE ISSUE AND THE MATTER HAS BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH IN THE LIGHT OF THE DIRECTION GIVEN THEREIN. 10 ITA NO.5399/DEL/2016 ITA NO.5403/DEL/2016 FOLLOWING THE SAME REASONING, I RESTORE THIS APPEAL TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO ADJUDICATE THE ISSUE AF RESH IN THE LIGHT OF THE ADDITIONAL EVIDENCES FILED AND IN THE LIGHT OF THE DIRECTION GIVEN IN THE CASE OF MAYA DEVI (SUPRA). 12. IN THE RESULT, BOTH THE APPEALS FILED BY THE RE SPECTIVE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH MARCH, 2018. SD/- (R. K. PANDA) ACCOUNTANT MEMBER DATED: 16-03-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI