BAKSHA RAM, Jaipur V. ITO, Jaipur

ITA 60/JPR/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54281 (ITAT-JAIPUR)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 14-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 25-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA
• Assessee Lawyers: S C JAIN
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

1 ITA 60-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 60/JP/2011 ASSTT. YEAR : 2006-07. SHRI BAKSHA RAM, VS. THE INCOME-TAX OFFICER, S/O SHRI MANGU RAM, WARD 7(4), M/S. JAIN CHOWDHARY & CO., JAIPUR. CHARTERED ACCOUNTANTS, O-5, 3 RD FLOOR, AMBER TOWER, SC ROAD, JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.C. JAIN RESPONDENT BY : SHRI SUBHASH CHANDRA DATE OF HEARING : 14.11.2011 DATE OF PRONOUNCEMENT : 22.11.2011. ORDER DATED : 22/11/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2006-07. 2. FIRST GROUND RELATES TO CONFIRMING THE ORDER PAS SED BY AO UNDER SECTION 144 WHICH WAS WITHOUT REASONABLE OPPORTUNITY OF BEING H EARD. 3. IT WAS SUBMITTED BEFORE THE TRIBUNAL THAT IN FAC T NO NOTICE WAS SERVED ON THE ASSESSEE AND THE LAND IN QUESTION WHICH WAS SOLD BY ASSESSEE IS SITUATED BEYOND THE 8 KM OF MUNICIPAL LIMIT. 2 4. ON THE OTHER HAND, THE LD. D/R STATED THAT AO HA S FILED A REMAND REPORT DURING THE APPELLATE PROCEEDINGS BY ASCERTAINING THAT THE LAND IN QUESTION IS SITUATED WITHIN 8 KM OF MUNICIPAL LIMIT. COPY OF THE REMAND REPORT WAS ALS O FILED. 5. IN REPLY, THE LD. COUNSEL OF THE ASSESSEE STATED THAT ASSESSEE HAS FILED AN APPLICATION UNDER RTI ACT AND THE CONCERNED AUTHORI TY HAS DIRECTED THE TEHSILDAR TO ISSUE THE CERTIFICATE WHICH IS AWAITED. THEREFORE, TO ME ET THE ENDS OF JUSTICE, MATTER CAN BE SENT BACK TO THE FILE OF AO TO EXAMINE THE ISSUE AFRESH AS IN THE MEANTIME THE ASSESSEE WILL GET THE CERTIFICATE FROM THE TEHSILDAR. 6. IN COUNTER REPLY, THE LD. D/R STATED THAT THE AO HAS ALREADY ASCERTAINED THAT THE LAND IN QUESTION IS SITUATED WITHIN 8 KM OF MUNICIP AL LIMIT. 7. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD, WE FIND THAT MATTER SHOULD GO BACK TO THE FILE OF AO TO PAS S A FRESH ORDER AS PER PROVISIONS OF LAW. AO HAS MENTIONED IN HIS REMAND ORDER THAT HE HAS OB TAINED FROM THE OFFICE OF DISTRICT COLLECTOR THAT THE LAND IN QUESTION IS SITUATED WIT HIN 8 KM OF MUNICIPAL LIMIT. HOWEVER, NO COPY OF GAZETTE NOTIFICATION ISSUED BY RAJASTHAN GOVERNMENT DATED 23.4.1992 WHICH WAS OBTAINED BY THE AO FROM THE OFFICE OF DISTRICT COLLECTOR IS AVAILABLE NEITHER IT WAS FILED BEFORE THE APPELLATE AUTHORITY BY EITHER OF T HE PARTIES. ON THE OTHER HAND, LD. COUNSEL OF THE ASSESSEE HAS FILED A COPY OF LETTER BY WHICH THE RTI AUTHORITY HAS DIRECTED THE TEHSILDAR TO ISSUE CERTIFICATE REGARDING DISTAN CE OF THE LAND IN QUESTION SOLD BY ASSESSEE. SIMILAR VIEW HAS BEEN EXPRESSED BY THE T RIBUNAL IN CASE OF SHRI JAGDISH SHARMA, ON WHICH RELIANCE HAS BEEN PLACED BY LD. D/ R WHICH WAS DECIDED IN ITA NO. 32/JP/2011 DATED 22.7.2011. IN THIS ORDER ALSO THE TRIBUNAL SENT THE MATTER BACK TO THE FILE OF AO TO EXAMINE THE DISTANCE OF LAND WHETHER SITUATES 8 KM OF MUNICIPAL LIMIT OR 3 NOT. THEREFORE, THIS ORDER OF THE TRIBUNAL DOES NO T HELP THE DEPARTMENT MUCH BUT SUPPORTS OUR STAND FOR SENDING THE MATTER BACK TO THE FILE O F THE AO. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD. CIT (A) AND RESTORE THE MATTER TO THE FILE OF THE AO TO DECIDE THE ISSUE AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. IF ASSESSEE FILES ANY EVIDENCE IN REGARD TO THE DISTANCE, THE AO, AFTER EXAMINING THE SAME WILL PASS A FRESH ORDER AS PER PROVISIONS OF LAW. IF IT IS FOUND THAT THE DISTANC E IS WITHIN 8 KM OF MUNICIPAL LIMIT, THEN LONG TERM CAPITAL GAIN SHALL BE COMPUTED AS PER LAW . 8. OTHER ISSUE, THE AO WILL DECIDE ON MERIT. WE OR DER ACCORDINGLY. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 10. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 22 .11.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/ COPY FORWARDED TO :- SHRI BAKSHA RAM, JAIPUR. THE ITO WARD 7(4), JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 60/JP/2011) BY ORDER, AR ITAT JAIPUR.