Shri Hukam Chand S/o Shri Budha, Rewari V. ITO, Rewari

ITA 5644/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3455 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-04-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 03-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEDOBANI CHAUDHURI
• Assessee Lawyers: NARESH KUMAR AGARWAL
• Keywords: Capital asset; Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO.5644/DEL/2016 ASSESSMENT YEARS 2007-08 SHRI HUKUM CHAND S/O SHRI BUDHA, VPO MAHESWARI PO DHARUHERA, DIST. REWARI. PAN: COWPS 6505Q VS. ITO,WARD-3, REWARI. (APPELLANT) (RESPONDENT) REVENUE BY : MS. BEDOBANI CHAUDHURI, SR.D.R. ASSESSEE(S) BY : SHRI NARESH KUMAR AGARWAL, A.R. / DATE OF HEARING : 20/04/2017 / DATE OF PRONOUNCEMENT: 24/04/2017 ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), ROHTAK DATED 30.08.2016 FOR THE ASSESSMENT YEAR 200 7-08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. THAT THE APPELLANT HUMBLY REITERATES ALL THE FACTS AND GROUNDS OF A PPEAL RAISED BEFORE THE LD CIT (APPEALS). 2. THAT THE CIT(A) HAS BLINDLY CONFIRMED THE ASSESS MENT ORDER . THAT THE APPELLANT HEREBY RAISES THE FOL L OWING GROUNDS OF APPEAL FROM THE SAID ORDER AS FOLLOWS: A. THAT THE DAHRUHERA SITUATED IN D I STRICT REWARI IS NOT COVERED BY ANY ENTRY MENTIONED ' IN GOVERNMENT OF INDIA GAZETTE DT 6 TH JAN 1994. B. THAT THE AO AND CIT(A) HAS COMMITTED A GRAVE MIS TAKE BY HOLDING THAT AGRICULTURAL LAND SOLD BY THE APPELLANT IS A C APITAL ASSET UNDER THE INCOME TAX ACT. THAT VILLAGE MAHESHWARI (REWARI) HA S NOT POPULATION EXCEEDING TEN THOUSANDS DURING LAST CENSUS YEAR: 19 91, 2001 . THAT VILLAGE MAHESHWARI IS OUTSIDE OF MUNICIPAL LIMIT OF DHARUHE RA (REWARI ) . C. THAT THE AO AND CIT(A) HAS NOT CONSIDERED THE FA CT THAT NEITHER MUN I C I PA L COMM I TTEE NOR MUNICIPA L L I MIT OF DAHRUHERA ( REWAR I) EX I STED ON THE DATE OF GAZETTE NOT I FICAT I ON ON 6 TH JAN 1994. THAT THEREFORE IT IS NOT POSSIBLE TO MEASURE OF DISTANCE OF AGRICULTURAL L AND ON DATE OF THE GAZETTE NOTIFICATION FROM DEFINITE LIMIT. THAT THE LOWER AU THORITIES HAS IGNORE THE ITA NO.5644/DEL/2016 2 EXPLANATIONS MENTIONED IN THE GAZETTE NOTIFICATION WHICH IS PRE-CONDITION TO APPELLANT LIABLE UNDER THE INCOME TAX ACT .' 2. THE BRIEF FACTS OF THE CASE ARE THAT AS PER AIR INFORMATION FOR THE FINANCIAL YEAR 2006-07 RECEIVED IN THIS OFFICE , M/S. RAMOTAR, PARKASH, HUKAM, KALU RAM S/O SH . BUDHA , HUF HAS SOLD A IMMOVABLE PROPERTY VALUED AT RS . 8 , 52,50 , 000/ - (1,10,00 , 000+7 , 42 , 50 , 000) ON 14.02 . 2007 AT MAHESHWARI , DHARUHERA, DISTT . REWARI . DURING THE ASSESSMENT PROCEEDINGS U/S 143(3)/148 IN THE CASE OF M/S. RAMOTAR , PARKASH , HUKAM , KALU RAM S/O SH . BUDHA, HUF , THE ASSESSEE HAS SUBMITTED AN AFFIDAVIT STATING THEREIN THAT THE LAND WAS SOLD BY HIM IN INDIVIDUAL CAPACITY AND NOT AS A HUF . ASSESSEE'S SHARE IN THE SAID SALE CONSIDERATION COM ES TO RS. 1 , 16 , 18 , 750/ - . THE QUERY LETTER IN THIS REGARD ISSUED AND THE ASSE SSEE WAS ASKED TO FURNISH THE COPY OF RETURN OF INCOME , PAN, CALCULATION OF CAPITAL GAIN ON SAID LAND. THE ASSESSEE FAILED TO FURNISH ANY REPLY . THE LAND IN QUESTION IS SITUATED WITHIN 5 K . M . FROM MUNICIPAL LIMIT OF DHARUHERA MUNICIPALITY . THUS , THE LAND SOLD BY THE ASSESSEE COVERED IN THE DEFINITION OF CAPITAL ASSET IN VIEW OF THE NOTIFICATION ISSUED BY THE CBDT ON 06 . 01 . 1994 . F . NO . 164/03/87/1TAI DATED 06.01.1994 AND WAS LIABLE TO TAX UNDER THE HEAD LON G TERM CAPITAL GAIN. 3. IT WAS ARGUED BY LEARNED COUNSEL FOR THE ASSESSE E WHO POINTED OUT THE NOTIFICATION DATED 28 TH JULY, 2008 OF STATE ELECTION COMMISSION HARYANA AN D RELEVANT PART IS REPRODUCED HEREINBELOW: (TO BE PUBLISHED IN THE HARYANA STATE (EXTRA ORDIN ARY) GAZETTER DAED 28.07.2008 STATE ELECTION COMMISSION, HARYANA S.C.O 16-17, SECTOR-20D, CHANDIGARH NOTIFICATION NO.SEC/IME/2008/6760-WHEREAS THE STATE GOVERNMENT ( URBAN LOCAL BODIES DEPARTMENT) VIDE ITS NOTIFICATIONS NO.18/7/2007-3C1 , DATED 10.07.2007 AND 18/2/2007-3C1, DATED 20.07.2007 HAS DECLARED THE LO CAL AREA OF MUNICIPAL ITA NO.5644/DEL/2016 3 COMMITTEE, SAMPLA IN DISTRICT ROHTAK AND DHARUHERA IN DISTRICT REWARI RESPECTIVELY. THE STATE GOVT. (URBAN LOCAL BODIES D EPARTMENT) FURTHER VIDE ITS NOTIFICATIONS NO.18/7/2007-3C1 AND 18/2/2007-3C1 DA TED 12.05.2007 HAS DELIMITED THE WARDS OF THE ABOVE SAID MUNICIPAL COM MITTEE. 4. IT WAS ARGUED THAT LAND IS SITUATED AT VILLAGE-M AHESHWARI, DHARUHERA, DIST-REWARI WHERE THERE WAS NO MUNICIPALITY UPTO TH E DATE OF NOTIFICATION MENTIONED HEREINABOVE, AND THEREFORE, THE SAID AMOU NT IS NOT A CAPITAL ASSET AND NOT LIABLE FOR THE CAPITAL GAIN. LEARNED CIT(A) HAS NOT TAKEN INTO CONSIDERATION THE SAID NOTIFICATION AND HAS DECIDED THE APPEAL ONLY ON THE BASIS OF THE REMAND REPORT WHERE THE AO ALSO DID NO T TAKE INTO CONSIDERATION THE SAID NOTIFICATION. 5. I AM OF THE VIEW THAT WITHOUT TAKING INTO CONSID ERATION THE SAID NOTIFICATION WHICH IS QUITE RELEVANT AND THE SAID N OTIFICATION GOES DEEP INTO ROOT OF THE MATTER, THE DECISION OF THE LEARNED CIT (A) IS NOT A JUDICIOUS DECISION, AND THEREFORE, IN THE INTEREST OF NATURAL JUSTICE, THE MATTER IS SET ASIDE TO THE FILE OF THE LEARNED CIT(A) WHO WILL DE CIDE THE APPEAL DE NOVO AFTER TAKING INTO CONSIDERATION THE SAID NOTIFICATI ON MENTION HEREINABOVE AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE SHALL CO-OPERATE IN THE FIRST APPELLATE PR OCEEDINGS BEFORE THE LEARNED CIT(A). 6. IN THE RESULT, THE GROUNDS OF APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY 24 TH APRIL, 2017 SD/- (B.P. JAIN) ACCOUNTANT MEMBER DATED: 24/04/2017