RAHUL SINGH, MEERUT V. ITO, WARD- 2(2), MEERUT

ITA 6008/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6204 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 18-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YOGESH SHARMA
• Assessee Lawyers: V K GOEL
• Keywords: Capital asset; Opportunity of being heard
• Section: 2(14); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (MEERUT CAMP, MEERUT) BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.6008/DEL./2018 (ASSESSMENT YEAR : 2010-11) RAHUL SINGH VS. ITO, C/O VINOD KUMAR GOEL, WARD-2(2) 282, BOUNDARY ROAD, MEERUT CIVIL LINES,MEERUT UTTAR PRADESH (PAN : EVAPS5779F APPELLANT RESPONDENT ASSESSEE BY : SH. V.K.GOEL, ADV. REVENUE BY : SHRI YOGESH SHARMA, SR.DR DATE OF HEARING : 11.01.2019 DATE OF ORDER : 25.01.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT RAHUL SINGH, MEERUT (HEREINAF TER REFERRED TO AS 'THE ASSESSEE') BY FILING THE AFORESAID APPEAL, SOU GHT TO SET ASIDE THE IMPUGNED ORDER DATED 04/06/2018 PASSED BY LD. COM MISSIONER OF INCOME TAX(APPEALS)-MEERUT QUA THE ASSESSMENT YEAR 2010-11 ON THE GROUNDS INTER ALIA THAT : 1. THAT AS PER ORDER IT IS NOT CLEAR WHETHER NOTIC E UNDER SECTION 148 WAS ISSUED AFTER PROPER RECORDING OF REASONS AND APPROVAL WAS OBTAINED FROM PR. CIT, MEE RUT. THE CIT(A) HAS NOT DISPOSED OFF THIS GROUND WITHOUT PRO PER CONSIDERATION. ITA NO.6008/DEL./2018 2 2. THAT THE A.O. IS IN ERROR IN HOLDING THAT AGRIC ULTURE LAND OF THE ASSESSEE IS CAPITAL ASSET AS DEFINED IN SECTION 2(14) OF I.T.ACT. HENCE, NO CAPITAL GAIN IS CHARGE ON THE SALE OF AGRICULTURE LAND. THE ASSESSEE FURNISHED DETAILS BE FORE CIT(A) WHICH IS MISREPORTED BY CIT(A) AND NOT CONSIDERED A SSESSEES REPLY PROPERLY. 3. THAT THE ASSESSEE HAS RIGHT TO ADD, DELETE OR MO DIFY ANY GROUNDS DURING THE APPEAL PROCEEDING. 2. BRIEFLY STATED THAT FACTS NECESSARY FOR ADJUDI CATION OF THE CONTROVERSY AT HAND ARE : THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 144/147 OF THE INCOME TAX ACT, 1961 (FOR SHORT ACT) BY M AKING ADDITION OF RS. 15,60,350/- ON ACCOUNT OF LONG TERM CAPITAL GAI N (LTCG) ON THE SALE OF AGRICULTURE LAND. 3. ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) BY WAY OF FILING THE APPEAL WHO HAS PARTLY ALLOWED THE APPEAL. FEELING A GGRIEVED THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING TH E PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF THE F ACTS AND CIRCUMSTANCES OF THE CASE. 5. UNDISPUTEDLY THE ASSESSING OFFICER HAS MADE THE ADDITION ON THE BASIS OF REPORT SUBMITTED BY INSPECTOR OF INCOME TA X THAT THE ACTUAL DISTANCE OF THE AGRICULTURAL LAND IN QUESTION BY ROAD IS ONLY 4.2 KM. FROM THE MUNICIPAL LIMITS AS PER NOTIFICATION U/S. 2(IA ) PROVISION II(B) THE DISTANCE HAS BEEN NOTIFIED FOR MEERUT AS BEING 8 KM FROM MUNICIPAL LIMITS IN ALL DIRECTIONS. THE LD. CIT(A) HAS DECLIN ED THE CONTENTION OF THE ASSESSEE THAT THE PROPERTY IN QUESTION IS NOT A CAP ITAL ASSET U/S 2(14) OF THE I.T. ACT AND ALSO BASED HIS DECISION ON THE REPORT OF THE INSPECTOR. ITA NO.6008/DEL./2018 3 6. WE ARE OF THE CONSIDERED VIEW THAT WHEN THE ASSE SSEE HAS COME UP WITH SPECIFIC PLEA THAT THE LAND IN QUESTION IS NOT SITUATED WITHIN THE URBAN AREA AS PER NOTIFICATION, INCOME TAX ACT, 1961 : N OTIFICATION UNDER SECTION 2(1A)(C), PROVISO, CLAUSE (II) (B) AN D SECTION 2(14) (III) (B) : URBANISATION OF AREAS, WHICH IS AVAILABLE AT PAGE 5 TO 40 OF THE PAPER BOOK, THE L D. CIT(A) WAS REQUIRED TO ADJUDICATE THE ISSUE IN THE LIGHT OF THE NOTIFIC ATION (SUPRA). 7. IN THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT THE ISSUE IS REQUIRED TO BE SET ASIDE TO THE AO WHO WILL EXAM INE THE ISSUE AFRESH IN THE LIGHT OF THE NOTIFICATION RELIED UPON BY THE AS SESSEE TO WORK OUT IF THE LAND IN QUESTION IS SITUATED BEYOND 8 KM FROM THE M UNICIPAL LIMITS. NEEDLESS TO SAY THAT THE ASSESSING OFFICER SHALL PR OVIDE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. CONSEQU ENTLY, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 25 TH JANUARY, 2019. SD/- SD/- (N.S.SAINI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 25/01/ 2019 BR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXVI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI. ITA NO.6008/DEL./2018 4 DATE OF DICTATION 15.01.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16.01.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 25.01.2019 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 25.01.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 25.01.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 25.01.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 25.01.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER