DCIT 21(2), MUMBAI V. SUNIL G MATHREJA, MUMBAI

ITA 6562/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75718 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 18-12-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 29-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAVI PRAKASH SHRI R K SAHU
• Assessee Lawyers: N R AGRAWAL
• Keywords: Capital asset; Principle of natural justice; Additional evidence
• Section: 131

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F B ENCH, MUMBAI . , !'# , $% &'() , $* +, $ # BEFORE SHRI D.MANMOHAN, VP AND SHRI N.K. BILLAIY A, AM ./ I.T.A. NO.6562/MUM/2011 ( - - - - / ASSESSMENT YEAR :2008-09 THE ACIT-21(2), C-10, 5 TH FLOOR, B.K.C. BANDRA(E), MUMBAI-400 051 / VS. SHRI SUNIL G. MATHREJA, TRISHUL, PLOT NO. 5, ROAD NO. 6, HATKESH SOC. JVPD SCHEME, VILE PARLE (W), MUMBAI-400 056 ,. $* ./ /0 ./ PAN/GIR NO. : ACXPM 8185B ( .1 / APPELLANT ) .. ( 23.1 / RESPONDENT ) ./ I.T.A. NO.6564/MUM/2011 ( - - - - / ASSESSMENT YEAR :2008-09 THE ACIT-21(2), C-10, 5 TH FLOOR, B.K.C. BANDRA(E), MUMBAI-400 051 / VS. SHRI VISHAL G. MATHREJA, TRISHUL, PLOT NO. 5, ROAD NO. 6, HATKESH SOC. JVPD SCHEME, VILE PARLE (W), MUMBAI-400 056 ,. $* ./ /0 ./ PAN/GIR NO. : AAACPM 5761A ( .1 / APPELLANT ) .. ( 23.1 / RESPONDENT ) .1 4 $ / APPELLANT BY: SHRI RAVI PRAKASH SHRI R.K. SAHU 23.1 5 4 $ / RESPONDENT BY: SHRI N.R. AGRAWAL 5 6* / DATE OF HEARING :27.02.2014 ITA NOS. 6562 & 6564/M/11 2 7- 5 6* / DATE OF PRONOUNCEMENT :07.03.2014 +$8 / O R D E R PER N.K. BILLAIYA, AM: THESE TWO APPEALS BY THE REVENUE ARE AGAINST TWO SE PARATE ORDERS OF THE LD. CIT(A)-32, MUMBAI DT.12.07.2011 PERTAINING TO TWO SEPARATE ASSESSEES FOR A.Y. 2008-09. AS COMMON ISS UES ARE INVOLVED IN BOTH THESE APPEALS, THOUGH QUANTUM MAY DIFFER, THEY WERE HEARD TOGETHER AND DISPOSED OF BY THIS COMMON ORDER FOR T HE SAKE OF CONVENIENCE AND BREVITY. ITA NO. 6562/M/2011- SHRI SUNIL G MATHREJA 2. THE GRIEVANCE OF THE REVENUE READS AS UNDER : 1. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITI ON AMOUNTING TO RS.1,80,43,6951- MADE BY THE AC BY ASSESSING THE LONG TERM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. 2. THE CIT(A) HAS FAILED TO APPRECIATE THAT THE DY . SUPERINTENDENT OF LAND RECORDS HAS ISSUED A CERTIFI CATE DATED 13.12.2010 STATING THAT THE VALSHIND VILLAGE IS ABOUT 1600 TO 1700 METERS FROM THE BNMC JURISDICTIONAL LI MIT. 3. THE CIT(A) HAS FAILED TO APPRECIATE THAT AS PER THE MAP SUBMITTED BY THE AC, THERE IS A MOTORABLE ROAD CUTT ING THE MUMBAI NASHIK BHIVANDI BYEPASS, LEADING TO PISE DAM AS PER WHICH THE OVERALL ROAD DISTANCE OF THE ASSESSEE S PLOT ITA NOS. 6562 & 6564/M/11 3 FROM THE MUNICIPAL LIMITS OF BNMC IS ONLY 5.5 KMS, AND THAT THE NOTIFICATION ISSUED IN RESPECT OF SECTION 2(14)(III)(B) IS VERY CLEAR THAT THE DISTANCE OF 8 KMS FROM THE MUNICIPAL LIMITS SHOULD BE CONSIDERED IN ALL DIRECTIONS. 4. THE CIT(A) HAS FAILED TO APPRECIATE THAT THE DY COLLECTOR OF URBAN LAND DEVELOPMENT VIDE ORDER DATE D 24.5.2007 HAS DESCRIBED THE LAND AS URBAN LAND AND THAT NO AGRICULTURAL ACTIVITY WAS CARRIED ON BY THE ASSE SSEE AND NO AGRICULTURAL INCOME WAS DECLARED BY THE ASSESSEE IN HIS RETURN OF INCOME FOR ANY OF THE PRECEDING YEARS. 3. THE ENTIRE GRIEVANCE OF THE REVENUE CAN BE SUMME D UP AS RELATING TO THE SALE OF ONE PIECE OF LAND WHICH THE ASSESSEE CLAIMED TO BE AN AGRICULTURAL LAND WHEREAS THE REVENUES CLAIM IS THAT THE SAID PIECE OF LAND DO NOT FULFILL THE CONDITIONS OF THE PROVIS IONS OF SEC. 2(14)(III)(B). 4. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT DU RING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER N OTICED THAT THE ASSESSEE HAS SHOWN LONG TERM CAPITAL GAIN ON SALE O F AGRICULTURAL LAND AT BHIWANDI, WHICH HE CLAIMED TO BE EXEMPT FROM TAX. FOR CLAIMING IT TO BE EXEMPT FROM TAX, THE ASSESSEE DREW SUPPORT FROM THE PROVISIONS OF SEC. 10(37)(I) WHEREIN IT HAS BEEN PROVIDED THAT IN THE CASE OF AN ASSESSEE BEING AN INDIVIDUAL OR HUF ANY INCOME CHA RGEABLE UNDER THE HEAD CAPITAL GAIN ARISING FROM THE TRANSFER OF AG RICULTURAL LAND WHERE SUCH LAND IS SITUATED IN ANY AREA REFERRED TO IN IT EM (A) OR ITEM (B) OF SUB CLAUSE (III) OF CLAUSE (14) OF SEC. 2 IS EXEMPTED FROM TAX AND IS NOT TO BE INCLUDED IN THE COMPUTATION OF TOTAL INCOME. TH E ASSESSEE ALSO RELIED ITA NOS. 6562 & 6564/M/11 4 ON THE DEFINITION OF CAPITAL ASSET GIVEN AS PER SEC . 2(14)(III) WHEREIN IT IS PROVIDED THAT CAPITAL ASSET MEANS PROPERTY OF ANY KIND HELD BY AN ASSESSEE WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFESSION BUT DOES NOT INCLUDE AGRICULTURAL LAND IN INDIA NOT BEI NG LAND SITUATED (A) IN ANY AREA WHICH IS COMPRISED WITHIN THE JURISDICTION OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MUNICIPAL CORPORA TION, NOTIFIED AREA COMMITTEE, TOWN AREA COMMITTEE, TOWN COMMITTEE OR B Y ANY OTHER NAME) OR A CANTONMENT BOARD AND WHICH HAS A POPULAT ION OF NOT LESS THAN TEN THOUSAND ACCORDING TO THE LAST PRECEDING C ENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBLISHED BEFORE THE FIR ST DAY OF THE PREVIOUS YEAR ; OR (B) IN ANY AREA WITHIN SUCH DISTANCE NOT BEING MORE THAN EIGHT KILOMETERS FROM THE LOCAL LIMITS OF ANY MUNICIPALIT Y OR CANTONMENT BOARD REFERRED TO IN ITEM (A) AS THE CENTRAL GOVERN MENT MAY HAVING REGARD TO THE EXTENT OF AND SCOPE FOR URBANIZATION OF THAT AREA AND OTHER RELEVANT CONSIDERATIONS SPECIFY IN THIS BEHALF BY N OTIFICATION IN THE OFFICIAL GAZETTE. TO SUPPORT HIS CONTENTION THAT T HE LAND IS BEYOND 8 KILOMETERS OF BHIWANDI NIZAMPUR MUNICIPAL CORPORATI ON (BNMC)., THE ASSESSEE FILED A CERTIFICATE DT. 3.9.2007 FROM SHRI ANANT BHIVA MADHVI, SARPANCH OF SONALE GRAM PANCHAYAT WHO CERTI FIED THAT THE SAID LAND OF THE ASSESSEE IS 12 KMS FROM BNMC, 16 KMS FR OM THANE MUNICIPAL CORPN. & 27 KMS FROM BRIHANMUMBAI MUNICIP AL CORPN. THE AO WAS OF THE FIRM BELIEF THAT THE LAND OF THE ASSESSEE IS SITUATED WITHIN 8 KMS FROM THE MUNICIPAL LIMITS OF BNMC. FU RTHER NO AGRICULTURAL ACTIVITY WAS CARRIED OUT BY THE ASSESS EE ON THIS LAND WHICH IS PROVED FROM THE FACT THAT THE ASSESSEE HAS NOT DECLARED ANY AGRICULTURAL INCOME IN THE PRECEDING YEARS IN THE R ETURN OF INCOME FILED. ITA NOS. 6562 & 6564/M/11 5 4.2. IN ORDER TO VERIFY THE CLAIM OF THE ASSESSEE, THE AO SENT A LETTER TO THE DY. SUPDT. OF LAND RECORDS, MAHARASHTRA STAT E, JAKAT NAKA, BHIWANDI. THE DY. SUPDT. OF LAND RECORDS VIDE HIS LETTER DT. 13.12.2010 CERTIFIED THAT THE LAND IS ONLY 1600 TO 1700 METERS FROM THE MUNICIPAL LIMITS OF BNMC. IN ORDER TO VERIFY THE G ENUINENESS OF THE CERTIFICATE ISSUED BY THE SARPANCH SHRI ANANT B. MA DHVI, THE AO ISSUED SUMMONS U/S. 131 OF THE ACT. SHRI ANANT B. MADHVI R ESPONDED TO THIS SUMMON , WHOSE STATEMENT WAS RECORDED IN WHICH SHRI ANANT B. MADHVI STATED THAT THE DISTANCE OF 12 KMS CERTIFIED BY HIM IS FROM THE BNMC OFFICE AND STATE TRANSPORT BUS STAND OF BHIWAN DI. THE AO ALSO CONFRONTED WITH THE CERTIFICATE RECEIVED FROM DY. S UPDT. OF LAND RECORDS TO WHICH SHRI ANANT B. MADHVI STATED THAT H E IS TOTALLY IGNORANT OF THE JURISDICTION OF BNMC AND ITS OUTER LIMITS. AFTER CONSIDERING THE STATEMENT OF SARPANCH, THE AO REJECTED THE CERTIFIC ATE ISSUED BY HIM. THE AO ISSUED A SHOW CAUSE TO THE ASSESSEE ASKING F OR HIS REPLY ON THE POINT THAT WHY THE LAND SOLD BY HIM SHOULD NOT BE T REATED AS A CAPITAL ASSET AND LIABLE FOR TAXATION UNDER THE HEAD CAPIT AL GAIN. THE AO ALSO GAVE A COPY OF THE CERTIFICATE ISSUED BY THE DY. SU PDT. OF LAND RECORDS. THE ASSESSEE FILED A DETAILED REPLY VIDE LETTER DT. 28.12.2010 IN WHICH IT WAS REITERATED THAT THE LAND SOLD WAS BEYOND 8 KMS DISTANCE FROM THE JURISDICTION OF ANY MUNICIPALITY. IT WAS FURTHER E XPLAINED THAT THE IMPUGNED LAND IS SITUATED AT THE POINT WHERE NEARE ST MUNICIPAL CORPORATION IS THAT OF BHIWANDI NIZAMPUR CORPORATI ON AND THE PROPERTY CAN BE REACHED FROM TWO POINTS ONE FROM ITS LIMIT O F OCTROI POST SITUATED NEAR SAI BABA TEMPLE ON KALYAN BHIWANDI ROAD. THE DISTANCE FROM OCTROI POST NEAR SAI BABA TEMPLE TO THE IMPUGNED LA ND COMES TO 11.90 KMS. THUS THE TOTAL DISTANCE FROM THE LIMIT FROM B HIWANDI NIZAMPUR ITA NOS. 6562 & 6564/M/11 6 MUNICIPAL CORPORATION AND THE IMPUGNED LAND IS MORE THAN 8 KMS. IT WAS FURTHER EXPLAINED THAT THE SECOND APPROACH TO T HE IMPUGNED LAND IS FROM THE LIMIT OF BHIWAND NIZAMPUR OCTROI POST SIT UATED ON OLD AGRA ROAD NH-3 FROM WHICH THE DISTANCE COMES TO 10.6 KMS . IT WAS STRONGLY CONTENDED THAT APPROACHING THE IMPUGNED LAND FROM EITHER OF THE TWO ROUTES, THE DISTANCE IS MORE THAN 8 KMS. IN SUPPOR T OF HIS CONTENTION, THE ASSESSEE FILED A CERTIFICATE FROM M/S. ARYAS SU RVEYERS AND CONSTRUCTIONS PVT. LTD ALONGWITH SITE PLAN GIVING POINT WISE DISTANCE. THE ASSESSEE ALSO FILED A MAP TAKEN FROM GOOGLE MAP S. 4.3. IN SO FAR AS THE MEASUREMENT OF DISTANCE IS CO NCERNED, THE ASSESSEE STRONGLY SUBMITTED THAT THE DISTANCE IS AL WAYS MEASURED HAVING REGARD TO THE ROAD DISTANCE AND NOT AS PER CROWS FLIGHT , STRAIGHT LINE METHOD. THE ASSESSEE FURTHER STATED THAT THE CERTI FICATE ISSUED BY THE DY. SUPDT. OF LAND RECORDS STATING THAT THE DISTAN CE COULD BE 1600 TO 1700 MTRS IS BASED ON THE SCALE OF MAP I.E. CROWS FLIGHT METHOD THEREFORE CANNOT BE ADMITTED AS AN EVIDENCE. THE A SSESSEE ALSO RELIED UPON CERTAIN JUDICIAL DECISIONS. THE ENTIRE SUBMISSIONS/CONTENTIONS OF THE ASSESSEE DID NOT FIND ANY FAVOUR FROM THE AO. ACCORDING TO THE AO, THE SURVE YORS CERTIFICATE HAS CLEARLY IGNORED A MOTORABLE ROAD IN BETWEEN THE TWO TOLL NAKAS MARKED BY HIM. IN THE OPINION OF THE AO, THERE IS A MOTORABLE ROAD STARTING FROM PISE DAM CUTTING THE THANE BHIWANDI B YPASS AND REACHING THE BNMC JURISDICTION WHICH JOINS AT BRAHM AN PADA VILLAGE, POGAON WHICH IS THE LAST VILLAGE WITHIN THE JURISDI CTION OF BNMC, AS CERTIFIED BY THE DY. SUPDT. OF LAND RECORDS. THE AO ALSO DISMISSED ITA NOS. 6562 & 6564/M/11 7 THE GOOGLE MAP STATING THAT IN THE GOOGLE MAP, SOME OF THE STATES OF OUR OWN COUNTRY ARE SHOWN AS PART OF OTHER NEIGHBOR ING COUNTRIES. THE AO FINALLY WENT PERSONALLY TO VERIFY THE ACTUAL DISTANCE OF THE LAND FROM THE BRAHMAN PADA OF POGAON VILLAGE FROM WHERE HE TOOK THE MOTORABLE ROAD CUTTING THE MUMBAI NASHIK BHIWANDI B YPASS LEADING TO PISE DAM. THE DISTANCE WAS ONLY 3.5 KMS FROM WHIC H SPOT THE IMPUGNED LAND WAS AT A DISTANCE OF 2 KMS. ONLY. TH US THE AO FINALLY CONCLUDED THAT THE ROAD DISTANCE OF ASSESSEES LAND FROM THE MUNICIPAL LIMITS OF BNMC IS ONLY 5.5. KMS. HAVING COME TO THI S CONCLUSION, THE AO WENT ON TO TAX CAPITAL GAIN ON SALE OF LAND AS P ER THE PROVISIONS OF LAW. 5. AGGRIEVED BY THIS, ASSESSEE CARRIED THE MATTER B EFORE THE LD. CIT(A). BEFORE THE LD. CIT(A), THE ASSESSEE REITER ATED HIS CONTENTION THAT THE IMPUGNED LAND WAS BEYOND 8 KMS. FROM THE MUNICIPAL LIMITS AND RELIED UPON THE EVIDENCES ALREADY PRODUCED BEFO RE THE AO. EMPHASIZING ON THE CERTIFICATE FROM TAHASILDAR, BH IWANDI WHO CERTIFIED THAT THE ASSESSEE IS AN AGRICULTURIST , C OPY OF 7/12 EXTRACT SHOWING THAT THE LAND IS AGRICULTURAL AND AGRICULTU RAL ACTIVITY OF PRODUCING GAVAT AND RICE WAS ALSO CARRIED OUT. TH E COPY OF 7/12 EXTRACTS WAS SUBMITTED FOR THE FIRST TIME BEFORE TH E LD. CIT(A) STATING THAT THE AO NEVER ASKED THE ASSESSEE TO SUBMIT THE EVIDENCE OF DOING AGRICULTURAL ACTIVITY. THE ASSESSEE ALSO CHALLENGE D THE VISIT OF THE AO TO THE IMPUGNED LAND STATING THAT THE ROUTE CONSIDERED BY THE AO IS A PRIVATE ROUTE WHICH IS NOT OPEN TO PUBLIC AND HENCE THE SAME CANNOT BE CONSIDERED FOR MEASURING THE DISTANCE FROM BNMC OCT ROI NAKA. ITA NOS. 6562 & 6564/M/11 8 5.1. AFTER CONSIDERING THE FACTS AND THE SUBMISSIO NS, THE LD. CIT(A) OBSERVED THAT THE MAIN REASON FOR HOLDING THE LAND TO BE A CAPITAL ASSET BY THE AO IS BASED ON THE MEASUREMENT OF THE DISTAN CE BY THE AO BY CONSIDERING THE ROUTE WHICH INCLUDES A ROAD STRETCH OF 3.5 KMS. FROM THE BHIWANDI BYE-PASS LEADING TO THE PISE DAM WHICH HAS BEEN OBJECTED BY THE ASSESSEE STATING THAT THIS ROUTE IS A PRIVATE R OAD WHICH IS NOT OPEN TO PUBLIC AND THEREFORE, THE SAME CANNOT BE CONSIDERED FOR THE PURPOSE OF COMPUTING THE DISTANCE OF 8 KMS. TO RESOLVE THIS ISSUE, THE ASSESSEE WAS ASKED TO PRODUCE THE CERTIFICATE FROM THE CONCE RNED AUTHORITIES REGARDING THE OWNERSHIP AND NATURE OF USAGE OF THE SAID STRETCH ROAD LEADING TO THE PISE DAM. IN RESPONSE TO THIS, THE ASSESSEE FURNISHED A CERTIFICATE DT. 21.6.2011 FROM THE DY. HYDRAULIC EN GINEER (OPERATIONS), MUNICIPAL CORPORATION OF GREATER MUMBAI STATING THA T THE ROAD BETWEEN THANE-BHIWANDI BYE-PASS TO YEWAI CHOWKY IS UNDER OWNERSHIP OF MCGM AND THIS ROAD IS MAINTAINED BY M CGM. PLYING OF PUBLIC VEHICLE IS NOT PERMITTED ON THIS ROAD. T HIS ROAD IS MCGMS APPROACH ROAD FOR MCGMS CHLORINATION PLANT . CONS IDERING THE CERTIFICATE, THE LD. CIT(A) WAS CONVINCED THAT THE SAID 3.5 KMS. STRETCH OF ROAD FROM BHIWANDI BYE-PASS LEADING TO PISE DAM IS NOT OPEN FOR PUBLIC PLYING OF VEHICLES AS A THOROUGH FARE AND T HE SAID ROAD IS MEANT TO BE USED FOR A LIMITED PURPOSE BY MCGM OFFICIALS. THE LD. CIT(A) FINALLY CONCLUDED THAT THE DISTANCE OF THE ASSESSEE S AGRICULTURAL LAND IS BEYOND 8 KMS. FROM THE OUTER LIMIT OF BNMC MEASURED THROUGH THE SHORTEST ROAD WHICH IS OPEN FOR PUBLIC USE AND HENC E THE SAME WOULD FALL OUTSIDE THE DEFINITION OF CAPITAL ASSET U/S. 2 (14)(III)(B) AND THEREFORE THE SALE PROCEEDS OF SAID LAND IS NOT CHARGEABLE TO CAPITAL GAINS. ITA NOS. 6562 & 6564/M/11 9 6. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTED THE FINDINGS OF THE AO. IT IS THE SAY OF THE LD. DR THAT THE LD. CIT(A) HAS ACCEPTED SOME ADDITIONAL EVIDENCE WHICH IS IN VIOLATION OF RULE 4 6A AND THEREFORE SHOULD NOT HAVE BEEN CONSIDERED BY THE LD. CIT(A) WITHOUT AFFORDING ANY OPPORTUNITY TO THE AO. 7. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE STR ONGLY SUBMITTED THAT THE CERTIFICATE FILED BY THE ASSESSEE DURING T HE COURSE OF THE APPELLATE PROCEEDINGS WAS AT THE INSISTENCE OF THE LD. CIT(A) WHICH IS COVERED BY THE POWERS CONFERRED TO THE LD. CIT(A) B Y VIRTUE OF SEC. 250(4) OF THE ACT. IT IS THE SAY OF THE LD. COUNSE L THAT THERE IS NO VIOLATION OF RULE 46A BY THE LD. CIT(A).IN SUPPOR T OF THIS CONTENTION RELIANCE WAS PLACED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF INDUSTRIAL ROADWAYS 112 ITD 293. ON MERIT OF THE C ASE, THE LD. COUNSEL REITERATED WHAT HAS BEEN SUBMITTED BEFORE T HE LOWER AUTHORITIES AND RELIED UPON THE EVIDENCES WHICH WERE PLACED BEF ORE THE LOWER AUTHORITIES. 8. WE HAVE HEARD THE RIVAL PARTIES AND CAREFULLY PE RUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE RELEVANT MATERIAL EVIDENCE BROUGHT ON RECORD. THE ENTIRE DISPUTE REVOLVES AROUND THE ISS UE WHETHER THE IMPUGNED AGRICULTURAL LAND IS SITUATED WITHIN 8 KMS FROM THE LIMITS OF MUNICIPALITY AS ALLEGED BY THE REVENUE OR IT IS BEY OND 8 KMS AS CLAIMED BY THE ASSESSEE. THE ENTIRE EXERCISE OF TH E AO DEPENDS ONLY ON ONE THING WHICH IS THE PHYSICAL VERIFICATION OF THE DISTANCE DONE BY THE AO. HOWEVER, IT IS NOT IN DISPUTE THAT WHILE MEASU RING THE DISTANCE, THE AO TOOK AN APPROACH ROUTE WHICH IS OWNED BY MCGM FO R MAINTENANCE ITA NOS. 6562 & 6564/M/11 10 OF CHLORINATION PLANT. THIS IS ESTABLISHED BY THE CERTIFICATE OF THE DY. HYDRAULIC ENGINEER (OPERATIONS), MUNICIPAL CORPORAT ION OF GREATER MUMBAI. IT IS ALSO A FACT THAT THIS CERTIFICATE WA S SUBMITTED BY THE ASSESSEE BEFORE THE LD. CIT(A). 8.1. A PERUSAL OF THE ORDER OF THE LD. CIT(A) SHOW S THAT THE LD. CIT(A) INVOKING HIS POWERS U/S. 250(4) OF THE ACT A SKED THE ASSESSEE TO FURNISH CERTAIN DETAILS. IN RESPONSE TO WHICH, THE ASSESSEE FILED THIS CERTIFICATE. THEREFORE, IN OUR UNDERSTANDING OF TH E LAW, THIS CANNOT BE TERMED AS VIOLATION OF RULE 46A. HOWEVER, AT THE S AME TIME, EVEN IF THERE ARE NO EXPRESS PROVISIONS WHICH COULD SUGGEST THAT THE LD. CIT(A) IS BOUND TO GIVE AN OPPORTUNITY TO THE AO IN RESPEC T OF THE EVIDENCE GATHERED BY VIRTUE OF SEC. 250(4) OF THE ACT, IN O UR CONSIDERED VIEW THE PRINCIPLES OF NATURAL JUSTICE DEMAND THAT NOTHING S HOULD BE USED AGAINST A PERSON WHICH HAS BEEN COLLECTED BEHIND THE BACK O F THAT PERSON, THEREFORE, IN OUR HUMBLE OPINION, THIS CERTIFICATE OF DY. HYDRAULIC ENGINEER (OPERATIONS) NEED TO BE CONFRONTED TO THE AO FOR THIS LIMITED PURPOSE OF WHETHER THE APPROACH ROAD TAKEN BY THE A O IS A PRIVATE ROAD OR PUBLIC ROAD . WE RESTORE THE MATTER BACK TO THE FILES OF THE AO. THE ASSESSEE IS DIRECTED TO FILE A COPY OF THE SAID LET TER OF DY. HYDRAULIC ENGINEER (OPERATIONS) BEFORE THE AO. THE AO IS DIR ECTED TO VERIFY THE GENUINENESS OF THE SAID LETTER AND DECIDE THE ISSUE OF DISTANCE ACCORDINGLY. WE WOULD LIKE TO MAKE IT VERY CLEAR T HAT THE AO IS ONLY DIRECTED TO VERIFY THE GENUINENESS OF THIS LETTER O F DY. HYDRAULIC ENGINEER (OPERATIONS) ONLY. IF THE AO IS SATISFIED WITH THE GENUINENESS OF THE LETTER, THE IMPUGNED LAND SHALL BE TREATED A S AN AGRICULTURAL LAND EXEMPT FROM CAPITAL GAIN TAX. ITA NOS. 6562 & 6564/M/11 11 9. IN THE RESULT, THESE TWO APPEALS FILED BY THE RE VENUE ARE ALLOWED FOR STATISTICAL PURPOSE. ODER PRONOUNCED IN THE OPEN COURT ON 7 TH MARCH, 2014 . +$8 5 - * $ 9 :+ ; 07/03/2014 5 < SD/ SD/- (D.MANMOHAN ) (N.K. BILLAIYA) !'# / VICE PRESIDENT $* +, / ACCOUNTANT MEMBER MUMBAI; :+ DATED 07/03/2014 . . ./ RJ , SR. PS +$8 +$8 +$8 +$8 5 55 5 26& 26& 26& 26& =$&-6 =$&-6 =$&-6 =$&-6 / COPY OF THE ORDER FORWARDED TO : 1. .1 / THE APPELLANT 2. 23.1 / THE RESPONDENT. 3. > ( ) / THE CIT(A)- 4. > / CIT 5. &?< 26 , , / DR, ITAT, MUMBAI 6. < / GUARD FILE. 3&6 26 //TRUE COPY// +$8 +$8 +$8 +$8 / BY ORDER, ! !! ! / / / / / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI ITA NOS. 6562 & 6564/M/11 12 DATE INITIALS 1. DRAFT DICTATED ON: 03.03.2014 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 04.03.2014 SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: SR. PS/PS 6. ORDER PRONOUNCED ON: SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: SR. PS/PS 9. DATE ON WHICH FILE GOES TO AR 10. DATE OF DISPATCH OF ORDER: