Gyanader Yadav, New Delhi V. ITO, Ward-1(2), Gurgaon

ITA 5556/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3401 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 31-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Opportunity of being heard; Principle of natural justice
• Section: 54F; 2(14)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER I.T.A.NO. 5556 /DEL/201 7 A.Y. : 2011 - 12 GYANANDER YADAV, C/O SH. ROHIT SHARMA, ADV., C-99, EAST OF KAILASH, NEW DELHI 110 065 (PAN: AFNPY3535Q) VS. ITO, WARD 1(2), GURGAON (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. ROHIT SHARMA, ADVOCATE DEPARTMENT BY : SH. ARUN KUMAR YADAV, SR. DR ORDER PER H.S. SIDHU, JM THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER DATED 28/12/2016 PASSED BY THE LD. CO MMISSIONER OF INCOME TAX (APPEALS)-1, GURGAON ON THE FOLLOWIN G GROUNDS:- 1. FOR THAT THE IMPUGNED ORDER DATED 28.12.2016 IS CONTRARY TO THE FACTS ON RECORD AND IS AGAINST THE STATUTORY PROVISIONS, AND THEREFORE DESERVES TO BE SET ASIDE. 2. FOR THAT THE AO AND THE LD. CIT(A) HAVE ERRONEOUSLY PROCEEDED ON THE BASIS THAT THE ANCESTRAL AGRICULTURAL LAND THAT WAS SOLD BY THE APPELLANT FOR RS. 3,40,70,801/- VIDE SALE DEEDS NO. 1505 AND 1499 BOTH DATED 23.11.2010 QUALIFIED TO BE CAPITAL ASSET UNDER SECTION 2(14) OF THE INCOME TAX ACT, 1961. THIS SUBMISSION IS SUBSTANTIATED AS FOLLOWS: 2 (I) THE AGRICULTURAL LAND SOLD BY THE APPELLANT IS LOCATED IN VILLAGE SHIKOHPUR, DISTRICT GURUGRAM, HARYANA. IT IS NOT WITHIN THE MUNICIPAL LIMITS OF ANY MUNICIPALITY. (II) THE MINISTRY OF FINANCE, GOVERNMENT OF INDIA, BY A GAZETTE NOTIFICATION NO. S.O. 10(E) DATED 06.01.1994 HAS SPECIFIED THE DISTANCE IN TERMS OF SECTION 2(14)(III)(B) OF THE INCOME TAX ACT, 1961 FROM THE LOCAL LIMITS OF VARIOUS MUNICIPALITIES, WITHIN WHICH AGRICULTURAL LAND IS TO BE TREATED AS A CAPITAL ASSET. WITH REGARD TO GURGAON, THE DISTANCE SPECIFIED IS 8 KM FROM THE MUNICIPAL LIMITS OF GURGAON IN ALL DIRECTIONS. (III) IT IS SETTLED LAW THAT THE DISTANCE OF 8 KM HAS TO BE CALCULATED FROM THE MUNICIPAL LIMITS, AS THEY EXISTED ON THE DATE OF THE NOTIFICATION UNDER SECTION 2(14 )(III)(B). RELIANCE IN THIS REGARD IS PLACED ON THE JUDGMENT OF ITAT JAIPUR BENCH IN DINESH KUMAR JAIN V. INCOME TAX OFFICER, WARD 6(1), JAIPUR, [2017] 78 TAXMANN.COM 53 (JAIPUR- TRIB.). (IV) HOWEVER, IN THE PRESENT CASE, THE CERTIFICATE ISSUED BY THE SUB-REGISTRAR, MANESAR, INDICATED THE DISTANCE OF THE ANCESTRAL LAND FROM THE MUNICIPAL LIMITS OF GURGAON AS THEY EXISTED IN THE YEAR 2014-15. THERE IS NO CERTIFICATE ON RECORD STATING THAT THE ANCESTRAL LAND WAS WITHIN 8 KM FROM THE MUNICIPAL LIMITS OF GURGAON AS ON 06.01.1994. (V) IT IS RESPECTFULLY SUBMITTED THAT THE ANCESTRAL LAND OF THE APPELLANT, WHICH WAS SOLD ON 23.11.2010, DID NOT COME WITHIN 8 KMS FROM THE MUNICIPAL LIMITS OF GURGAON AS ON 06.01.1994. THE MUNICIPAL LIMITS OF GURGAON IN THE YEAR 1994 WERE ONLY UPTO THE TAX COLLECTION BOOTH AT VILLAGE KHANDSA, WHICH IS BEYOND 8 KM FROM THE THE APPELLANT. THEREFORE, THE LAND CANNOT BE TREATED AS A CAPITAL ASSET. 3 C. FOR THAT THE LD. CIT (APPEALS) HAS ERRED IN PROCEEDING EX-PARTE AGAINST THE APPELLANT. IT IS RECORDED IN THE IMPUGNED JUDGMENT THAT THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT DID NOT APPEAR ON 08.12.2016 AND ON 26.12.2016, AND ACCORDINGLY, THE APPEAL WAS DECIDED EX PARTE. IT IS RESPECTFULLY SUBMITTED THAT AS RECORDED IN THE IMPUGNED JUDGMENT, THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT HAD BEEN REQUESTING FOR SEVERAL ADJOURNMENTS, AND DID NOT APPEAR ON THE LAST TWO DATES. IN SUCH CIRCUMSTANCES, IT WOULD HAVE BEEN IN THE INTEREST OF JUSTICE IF THE LD. CIT (APPEALS) HAD ISSUED NOTICE TO THE APPELLANT IN PERSON, AND GIVEN HIM AN OPPORTUNITY TO PRESENT HIS CASE IN A PROPER MANNER. IT IS RESPECTFULLY SUBMITTED THAT THE APPELLANT IS AN AGRICULTURALIST AND IS UNEDUCATED. HE HAS NOT BEEN PROPERLY INTIMATED ABOUT THE PROCEEDINGS OF THE LD. CIT (APPEALS) BY HIS AUTHORIZED REPRESENTATIVE. THE APPELLANT MAY BE GIVEN A PROPER OPPORTUNITY TO PRESENT HIS CASE BEFORE THE CIT (APPEALS). F. FOR THAT WITHOUT PREJUDICE TO THE ABOVE SUBMISSIONS, THE LD. CIT (APPEALS) HAS ERRED IN LAW IN GRANTING BENEFIT UNDER SECTION 54F ONLY IN RESPECT OF ONE RESIDENTIAL HOUSE. IT IS SUBMITTED THAT THE BENEFIT UNDER SECTION 54F IS AVAILABLE IN RESPECT OF ALL RESIDENTIAL HOUSES PURCHASED FROM THE SALE PROCEEDS OF THE ANCESTRAL AGRICULTURAL LAND. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. LD. COUNSEL OF THE ASSESSEE HAS STATED THAT LD. CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY AND PASSED AN EXPARTE ORDER, HENCE, THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF T HE LD. CIT(A) TO DECIDE 4 THE SAME AFRESH, UNDER THE LAW, AFTER GIVING ADEQUA TE OPPORTUNITY OF BEING HEARD. HE HIMSELF MADE A STATEMENT THAT HE WI LL APPEAR BEFORE THE LD. CIT(A), AS AND WHEN THE BENCH DIRECTED TO D O SO. 4. ON THE CONTRARY, LD. DR OPPOSED THE REQUEST OF T HE LD. COUNSEL OF THE ASSESSEE. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. WE HAVE GONE THROUGH THE ORDER PASSED BY THE REVENUE A UTHORITIES ESPECIALLY THE IMPUGNED ORDER AND WE FIND THAT LD.C IT(A) HAS NOT GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AND PASSED THE EXPARTE ORDER WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. HENCE, WE ARE O F THE VIEW THAT IN THIS CASE THE ISSUES IN DISPUTE NEEDS TO BE REMITTED BAC K TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AS PER LAW. ACCORDINGLY, THE ISSUES IN DISPUTE ARE SET ASIDE AND RESTORED BACK T O THE FILE OF THE LD. CIT(A) AND THE LD. CIT(A) IS DIRECTED TO CONSIDER T HE ISSUES IN DISPUTE AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. ALSO AS REQUESTED BY THE LD. COUNSEL OF THE ASSESSEE, THE ASSESSEE IS DIRECTED THROUGH HIS COUNSEL TO BE PRE SENT BEFORE THE LD. CIT(A) ON 07.05.2018 AT 11.00 AM AND FULLY COOPERATE WITH THE LD. CIT(A) AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT AND FILE ALL THE NECESSARY PAPERS BEFORE HIM TO SUBSTANTIATE HIS CAS E. IT IS MADE CLEAR 5 THAT NO NOTICE SHALL BE ISSUED TO THE ASSESSEE, BE CAUSE THIS ORDER HAS BEEN PRONOUNCED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 15/02/2018. SD/- SD/- [L.P. SAHU] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 15/02/2018 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES