Samander Singh Chouhan, Indore V. ITo-1(1), Indore

ITA 702/Ind/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0877 (ITAT-INDORE)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 10-06-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R P MOURYA
• Keywords: Capital asset; Opportunity of being heard; TDS; Set aside
• Section: 2(14)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.702/IND/2019 ASSESSMENT YEARS: 2014-15 APPELLANT BY NONE REVENUE BY SHRI R.P. MOURYA , SR. DR DATE OF HEARING 08.06 .2020 DATE OF PRONOUNCEMENT 09 .0 6 .2020 O R D E R PER MANISH BORAD, AM. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. CIT(A)-I, INDORE DATED 08.03.2019 PERTAINING TO ASSESSMENT YE AR 2014-15. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL; SHRI SAMANDER SINGH CHOUHAN, VILLAGE DHABLI, TEHSIL SANWER, INDORE VS. ITO 1(1),INDORE (APPELLANT) (REVENUE ) PAN A SBPC3210D ITANO.702/IND/2019 SAMANDAR SINGH CHOUHAN 2 GROUND.1 A. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-2, INDORE ERRE D IN PASSING AN EXPARTE ORDER AND DISMISSING THE APPEAL ON THE ALLE GED GROUND OF NON PERSECUTION OF APPEAL. B. THE APPELLANT PRAYS THAT THE ORDER PASSED WITHOUT G RANTING PROPER OPPORTUNITY OF BEING HEARD BE DIRECTED TO BE SET AS IDE TO THE COMMISSIONER (APPEALS) WITH A DIRECTION TO GRANT OP PORTUNITY OF HEARING AND DECIDE THE ISSUES ON MERITS OF THE CASE . 2. THE LEARNED ASSESSING OFFICER ERRED IN COMPUTING TH E TOTAL INCOME OF THE APPELLANT UNDER NORMAL PROVISIONS OF THE INC OME TAX ACT, 1961 AT RS. 98,72,678/- AND TAX DEMANDED OF RS. 27,98,490/- AS AGAINST EXEMPTED INCOME OF RS. 1,02,99,480/-. 3. AS PER SECTION 2(14) OF THE INCOME TAX ACT, 1961, R URAL AGRICULTURE LAND IS NOT CONSIDERED AS CAPITAL ASSET BUT M/S SARTHAK REA L INFRABUILT PVT. LTD HAS MISTAKENLY DEDUCTED TDS U/S 194IA OF RS.2,81,20 7/- ON THE SALE CONSIDERATION OF THE AGRICULTURAL LAND OF RS. 1,97, 08,333/-. HOWEVER, SECTION 194IA IS NOT APPLICABLE TO SALE/PURCHASE OF RURAL AGRICULTURAL LAND. 4. THE APPELLANT FILED ITS RETURN OF INCOME ON 11 TH JULY, 2015 DECLARING AN INCOME OF RS.14,570/- UNDER NORMAL PROVISIONS OF TH E INCOME TAX ACT, 1961 TO CLAIM TDS AS A REFUND. 5. ACCORDING TO CENSUS 2011, VILLAGE BIJU KHEDI IS SIT UATED 16 K.M. AWAY FROM INDORE MUNICIPAL CORPORATION AND HAVING T OTAL POPULATION OF 6115 PEOPLE -S AS PER INDIAN VILLAGE DIRECTORY. 6. CBDT ISSUED CIRCULAR NO. 17/2015 INCOME TAX DATED 0 6.10.2015 REGARDING MEASUREMENT OF DISTANCE FOR THE PURPOSE O F SECTION 2(14)(III)(B), ACCORDING TO THE CIRCULAR, IT IS CLA RIFY THAT DISTANCE TO BE MEASURED HAVING REGARDING TO SHORTEST ROAD DISTANCE TILL A.Y. 2014- ITANO.702/IND/2019 SAMANDAR SINGH CHOUHAN 3 15. SO, WE SHOULD NOT CONSIDER AERIAL DISTANCE FOR THE CASE. 7. THE VILLAGE DHABLI HAS TOTAL POPULATION OF 6115 PEO PLE AS PER CENSUS 2011 AND ALSO 16 KM AWAY FROM INDORE MUNICIPA L CORPORATION. AS IT WILL SUFFICIENT TO PROOF THAT TH E THE LAND IS RURAL AGRICULTURAL LAND AND NO TAX WILL BE LEVIABLE ON SAL E OF RURAL AGRICULTURE LAND AS IT IS SPECIFICALLY EXCLUDED FRO M THE DEFINITION OF CAPITAL ASSETS U/S 2(14) 8. ANY OTHER GROUND OR GROUNDS AS MAY BE URGED AT THE TIME .OF HEARING. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE. THE AP PEAL WAS TAKEN UP WITH THE ASSISTANCE OF LD. DEPARTMENTAL RE PRESENTATIVE. ON PERUSAL OF THE IMPUGNED ORDER WE FIND THAT THE O RDER OF LD. CIT(A) IS EX-PARTE DUE TO NON APPEARANCE OF THE ASSESSEE. LD. CIT(A) HAS NOT DEALT WITH MERITS OF THE CASE. 4. LD. DEPARTMENTAL REPRESENTATIVE RAISED NO OBJECT ION IF THE ISSUES ON MERITS IN THE INSTANT APPEAL ARE RESTORED TO LD. CIT(A) FOR AFRESH ADJUDICATION. 5. WE, THEREFORE IN THE INTEREST OF JUSTICE AND BEI NG FAIR TO BOTH THE PARTIES SET ASIDE THE ORDER OF LD. CIT(A) AND R ESTORE ALL THE ISSUES RAISED ON MERITS IN THE INSTANT APPEAL TO TH E FILE OF LD. CIT(A) FOR AFRESH ADJUDICATION AND DIRECT LD. CIT(A) TO OP ASS A SPEAKING ITANO.702/IND/2019 SAMANDAR SINGH CHOUHAN 4 ORDER AFTER PROVIDING REASONABLE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. ASSESSEE IS ALSO DIRECTED NOT TO TAKE UN NECESSARY ADJOURNMENT UNLESS OTHERWISE REQUIRED FOR REASONABL E CAUSE. 6. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. THE ORDER PRONOUNCED IN THE OPEN COURT ON 09 .06.2020. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 9 TH JUNE, 2020 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE