Sh. Sudhir Kumar, Amritsar. V. The Income-tax Officer, Amritsar.

ITA 724/ASR/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8805 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 04-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Additional evidence; Corroborative evidences
• Section: 54B; 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S.KAPOOR, ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER I.T.A. NO.721(ASR)/2014 ASSESSMENT YEAR: 2009-10 SMT. SANTOSH RANI 13, JOSHI COLONY, AMRITSAR. PAN:AAVPR3577N VS. ASST. CIT CIRCLE-V AMRITSAR. (APPELLANT) (RESPONDENT) I.T.A. NO.722(ASR)/2014 ASSESSMENT YEAR: 2009-10 SMT. NEERU SAMRA 13, JOSHI COLONY AMRITSAR. PAN:ADDPS2230A VS. ITO WARD-5(4) AMRITSAR. (APPELLANT) (RESPONDENT) I.T.A.NO.723(ASR)/2014 ASSESSMENT YEAR: 2009-10 SH. JUGAL KISHORE 13, JOSHI COLONY AMRITSAR. PAN:ABSPK4317R VS. ASST. CIT CIRCLE-V AMRITSAR. (APPELLANT) (RESPONDENT) I.T.A. NO.724(ASR)/2014 ASSESSMENT YEAR: 2009-10 SH. SUDHIR KUMAR C/O SVR PHARMACEUTICALS KT. SHER SINGH AMRITSAR. PAN:ABSPK4375K VS. ITO WARD-1(2) AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. PRAVEEN JAIN (ADV.) RESPONDENT BY: SH. RAHUL DHAWAN(DR) ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 2 DATE OF HEARING: 21.09.2016 DATE OF PRONOUNCEM ENT: 16.01.2017 ORDER PER N. K. CHOUDHRY(JM): THE ASSESSEES HAVE FILED THE AFORESAID APPEALS IND IVIDUALLY AGAINST THE COMMON ORDER DATED 25 TH SEPTEMBER, 2014 PASSED BY THE LEARNED CIT (APPEAL), AMRITSAR. 2. IN ALL THE APPEAL, THE COMMON ISSUES ARE INVOLVED, THEREFORE, FOR THE SAKE OF CONVENIENCE AND BREVITY, FACTS AND ISSUE OF THE APPEAL NO. 721/ASR/2014 HAS BEEN TAKEN ON CONSIDERATION AND TH E RESULT OF THE SAME SHALL DISPOSE OF OTHER APPEALS AS WELL. 3 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. ` (I) THE WORTHY COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN LAW, FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE DEN IAL OF EXEMPTION U/S 54B OF THE INCOME TAX ACT, 1961 ON THE GROUND THAT THE APPELLANT HAS NOT SUBMITTED ANY SCIENTIFIC EVIDENCE TO COUNTER THE RE VENUE RECORDS SHOWING THE SAID LAND AS KABILE TAMIR SO THAT THE SAME CAN BE CONSIDERED AS SUPERIOR EVIDENCE IN THIS REGARD. BESIDES THE FACT THAT THE ELECTRICITY METER WAS INSTALLED, TUBE WELL AND TRACTOR WAS MAINTAINED, EL ECTRICITY BILLS WERE PRODUCED AND LAND WAS UNDER CONTINUES CULTIVATION SINCE ITS PURCHASE AND J-FORMS WERE PRODUCED. (II) THE WORTH COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW ON FACTS IS NOT CONSIDERING THE SECOND REPORT/ KHASRA GIRDAWARI FURNISHED BY THE TEHSILDAR/ HALKA PATWARI, WHICH WAS FURNISHED AFTER ENQUIRES AND SPOT VERIFICATION UNDER THE PROVISIONS OF SECTION 44 OF THE PUNJAB LAND REVENUE ACT, 1887. (III) THE WORTHY COMMISSIONER OF INCOME TAX (APPEAL S) ERRED IN LAW, FACTS AND CIRCUMSTANCES OF THE CASE IN NOT FOLLOWING THE JUDGMENT OF THE HON'BLE PATNA HIGH COURT (WHICH WAS ON SIMILAR FACTS) IN TH E CASE OF CIT V. DUMRAON COLD STORAGE REFRIGERATION SERVICES (P) LTD. [1983] 15 TAXMAN 1 (PAT.), THEREBY CONCLUDING THAT THERE IS NO EVIDENCE REGARD ING THE CULTIVATION OF SAID LAND. (IV) THE WORTHY COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN NOT RELYING ON THE SECOND REMAND REPORT SUBMITTED BY TH E ASSESSING OFFICER ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 3 WHERE THE ASSESSING OFFICER HAS MADE ENQUIRES FROM THE LOGICAL RESIDENTS, WHICH CLEARLY REVEAL THAT THE AGRICULTURAL ACTIVITI ES WERE BEING CARRIED OUT IN THE PAST ON THE SAID LAND. (V) THAT THE ADDITIONS MADE BY THE LD. ASSESSING O FFICER ARE ARBITRARY, ILLEGAL, ILLOGICAL, UNREASONABLE, AND UNWARRANTED WITH CONSI DERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT. 4. THE BRIEF FACTS OF THE CASE ARE AS UNDER: - THE ASSESSEE FILED INCOME TAX RETURN BY DECLARING INCO ME OF RS.18,41,640/- AND AGRICULTURAL INCOME OF RS.2,02,840/- , AND THE SAME WAS PROCESSED U/S 143(1) DATED 01.09.2010. LATER ON , THE CASE WAS SELECTED FOR SCRUTINY, UNDER CASS SOFTWARE OF AST MOD ULE AND STATUTORY NOTICE U/S 143(2) WAS SERVED ON THE ASSESSEE ON 29.09.2010, THEREAFTER, THE ASSESSEE REPRESENTATIVE ATTE NDED THE SAID PROCEEDINGS BY SUBMITTING THAT THE ASSESSEE IS A PARTNER IN FIRM THE D-SIGN AND HAS SHOWN SHARE INCOME FROM THE SAID FIRM, DURING THE YEAR, THE ASSESSEE HAS ALSO SHOWN LONG TERMS CAPITAL GAIN ON SALE OF AGRICULTURAL LAND AND INTEREST INCOME FROM BANKS. THE BASIS OF THE SELECTION, IS TO EXAMINE THE GENUINENESS OF THE DEDUCTION, CLAIMED BY THE ASSESSEE, UNDER SECTION 54B OF T HE ACT. DURING THE COURSE OF PROCEEDINGS, ONE KHASRA GIRDAWRI HA S BEEN PLACED ON RECORD WHICH WAS ADVERSE TO THE INTEREST OF ASSESSE E AND ASSESSES HAVE BEEN CALLED UPON TO REPLY THEE SHOW CAUSE TO A SCERTAIN THE FACTUAL POSITION OF THE LAND. THE ASSESSING OFFICER WA S PLEASED TO SUMMON HALKA PATWARI, SHRI TAJINDER SINGH U/S 131 OF T HE INCOME TAX ACT, AND WHO HAD GIVEN A DIFFERENT REPORT TO THE EF FECT THAT CERTAIN ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 4 CROPS ARE GROWN UP THERE IN THE LAND UNDER CONTROVERSY HOWEVER IN EARLIER KHASRA KHATAUNI THE LAND WAS SHOWN AS KABILE TAMIR. ON FINDING KHASRA GIRDAWARIS CONTRADICTORY TO EACH OTHER, THE LD. ASSESSING OFFICER APPLIED HIS OWN MIND AND WHILE RELYING UPON FIRST KHASRA GIRDAWARI, DECLINED TO GIVE BENEFIT OF EXEMPTI ON U/S 54B OF THE INCOME TAX ACT AND CAPITALIZED THE SALE PROCEEDS OF THE L AND. 5. FEELING AGGRIEVED BY THE ASSESSMENT ORDER, PASSED BY THE ASSESSING OFFICER, THE ASSESSEE PREFERRED THE FIRST APPEAL BE FORE THE LD. CIT (APPEAL) WHO ALSO CONFIRM THAT THE ORDER OF T HE ASSESSING OFFICER BY HOLDING AS UNDER: DURING THE CURRENT APPELLANT PROCEEDINGS ASSESSEE SUBMITTED GOOGLE MAP OF THE LAND IN DISPUTE. THE ASSESSEE SUBMITTED THAT FROM PERUSAL OF ABOVE GOOGLE MAP IT CAN BE SEEN THAT LAND STILL HAVING GREEN COVER AND AGRICULTURE ACTIVITY IS THERE. IN VIEW OF ASSES SEES CLAIM AND ADDITIONAL EVIDENCE, THE ASSESSING OFFICER WAS DIRE CTED TO SUBMIT REPORT IN THIS REGARD, WHICH IS AS UNDER:- CONSEQUENT TO THE ABOVE IT IS SUBMITTED THAT SHRI . MANISH YADAV, INSPECTOR WAS DEPUTED TO INSPECT THE IMPUGNE D LAND WHETHER IT WAS USED FOR AGRICULTURAL PURPOSES DURING THE F.Y. 2008-09 RELEVANT TO A.Y. 2009-10 OR NOT. IN THIS REGARD, A REPORT HAS B EEN SUBMITTED BY SHRI MANISH YADAV, ON PHYSICAL VERIFICATION AND LOC AL ENQUIRES ABOUT THE CITES OF THE LAND IN QUESTION. THE REPORT IS RE PRODUCED BELOW:- (I) NATURE AND USE OF LAND AS ON DATE: ON GOING TO THE SPOT, I FOUND THAT THE LAND UNDER CONSIDERATION WAS PLAIN LAND AND NO AGRICULTURE ACTIVITY IS TAKING PL ACE ON IT. (II) NATURE AND USE OF LAND DURING THE F. Y. K2008 -09 RELEVANT TO A.Y. 2009- 10: ON THE NATURE AND USE OF LAND DURING THE F.Y. 2008- 09; THE CIRCLE INSPECTOR HAS REPORTED THAT I ALSO MADE FURTHER EN QUIRES FROM ONE SHRI RAMAGOPAL SINGH S/O JAGESHWAR SINGH WORKING IN KHANNA PAPER MILLS SINCE 1981 AND SHRI. TAJINDER SINGH S/O SARDA R PRATAP SINGH OWNER OF SARGAJ RESORT BOTH OF WHOM WERE STAYING NE AR THE LOCATION ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 5 OF THAT LAND. IT WAS INFORMED BY THEM THAT THE LAND IN QUESTION WAS USED FOR AGRICULTURE PURPOSES IN FINANCIAL YEAR 200 8-09 RELEVANT TO ASSESSMENT YEAR 2009-10 AND ALSO IN EARLIER YEARS. THEY ALSO INFORMED ME THAT THERE WERE NO AGRICULTURE ACTIVITI ES ON THE SAID LAND FOR THE LAST ABOUT 6 TO 7 MONTHS. (III) FACTUAL STATUS ON THE BASIS OF PHOTOS: AS DIRECTED IN ORDER TO GIVE A TRUE PICTURE OF THE NATURE OF LAND, WHETHER AGRICULTURAL OR NOT, I HAVE OBTAINED SOME P HOTOS, OF THE SAID LAND, AMPLIFYING THE FACTS THAT THE IMPUGNED LAND I S NOT BEING USED FOR AGRICULTURE PURPOSES AS ON DATE, 9 PHOTOGRAPHS OF THE SAID LAND ARE ATTACHED ALONG WITH. 03. THE FACTUAL POSITION, AS FILED WITH THE UNDERSIGNED BY THE INSPECTOR IS SUBMITTED FOR KIND INFORMATION AND NECESSARY ACTION PLEASE. 6.3 THE ASSESSEE HAD EARLIER ALSO SUBMITTED VARIOUS PHO TOGRAPHS SHOWING AGRICULTURE ACTIVITY ON THE DISPUTE LAND. HOWEVER, FROM THOSE PHOTOGRAPHS IT WAS IMPOSSIBLE TO ASCERTAIN PERIOD O F THE PHOTOGRAPH AND THE LAND OF WHICH THESE PHOTOGRAPHS WERE. IN VI EW OF ABOVE, IT WAS NOT POSSIBLE TO TAKE ANY COGNIZANCE OF THESE EV IDENCES. 6.4 DURING APPELLATE PROCEEDINGS THE ASSESSEE HAS HEAVI LY RELIED ON THE DECISION OF HON'BLE PATNA HIGH COURT IN THE CASE OF CIT VS. DUMRAON COLD STORAGE REFRIGERATION SERVICE PVT. LTD. 15 TAX MAN DATED 11.01.1983. IN THAT CASE, IT WAS HELD THAT LAND WAS USED FOR AGRICULTURE PURPOSES FOR SEVERAL YEARS BEFORE THE D ATE OF ITS SALE COULD BE DEEMED TO BE AGRICULTURE LAND NOT WITHSTANDING E NTRY IN A RECORD OF RIGHTS SHOWING LAND AS NON-AGRICULTURE. THIS OBSERV ATION OF HON'BLE COURT WAS ON ACCOUNT OF EVIDENCE IN THE FORM OF ORD ERS OF THE AGRICULTURAL ITO STATING THAT ASSESSEE HAD BEEN CA RRYING ON AGRICULTURAL-OPERATIONS SINCE 1953 AND THE ENTRY IN RECORD OF RIGHTS AS RAISE COURSE LAND HAD BEEN MADE AS EARLY AS IN THE YEAR 1912 AND THEREAFTER, THE LAND MIGHT HAVE BEEN USED FOR AGRIC ULTURE PURPOSE. THUS IN THAT CASE THERE WAS EVIDENCE IN THE FORM OF ORDERS OF THE AGRICULTURAL ITO THAT ASSESSEE IS CARRYING OUT AGRI CULTURAL OPERATIONS AND CONSIDERING THE VIEW THE LAND WAS RACE COURSE W AS ENTRY IN THE RECORDS WAS MADE IN ORDER 1912 AND THEREAFTER, IT M IGHT HAVE BEEN USED FOR AGRICULTURE PURPOSE IS BASED ON EVIDENCE R EGARDING CULTIVATION OF SAID LAND. IN VIEW OF ABOVE, THE JUDGMENT OF ABO VE CASE IS NOT APPLICABLE AS IS BASED ON ENTIRELY DIFFERENT FACTS AND EVIDENCE. 6.5 THE ASSESSEE HAS ALSO TAKEN PLEA THAT THEY WERE SHO WING AGRICULTURE INCOME ON THE SAID LAND AND ARGUED THAT J-FORMS WER E ALSO SUBMITTED IN THIS REGARD. THE ASSESSING OFFICER HAS SUBMITTED THAT EARNING OF AGRICULTURE INCOME WAS NEVER VERIFIED DURING ASSESS MENT PROCEEDING AND ITS ALSO NOT CLEAR THE AGRICULTURE INCOME SHOWS BY THE ASSESSEE IS FROM THE SAME LAND. THERE IS NO DENIAL TO THE FACT THAT ALL THESE ASSESSEE ARE OWNER OF OTHER AGRICULTURAL LANDS AS W ELL. THE ASSESSING OFFICER FURTHER SUBMITTED THAT ASSESSEE HAS SHOWN H UGE AGRICULTURE INCOME WHEREAS; IT IS WELL-KNOWN FACT THAT ONE ACRE OF AGRICULTURE LAND CAN YIELD NET PROFIT OF RS. 25,000/- TO 30,000/- PE R YEAR. I HAVE ALSO ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 6 GONE THROUGH VARIOUS PHOTOGRAPHS SUBMITTED BY THE A SSESSING OFFICER WITH THE SECOND REMAND REPORT AND IT CAN BE SEEN FR OM THESE PHOTOGRAPHS THAT THERE ARE WILD WEED GROWTH ON THES E LANDS AND TEXTURE OF LAND SUGGEST THAT IT COULD NOT HAVE BEEN USED FOR AGRICULTURE PURPOSES FOR LAST 8 TO 10 YEARS. 6.6 THE ASSESSEE HAS SUBMITTED A CERTIFICATE FROM M/S K HANNA PAPER MILLS PVT. LTD., AMRITSAR STATING THAT COMPANY HAD PURCHA SED LAND BEARING KHASRA NOS. 13.12- 11,20/1,20./3,14/16/1,25/1/1,25/1/3,13/6,15,16/1,13 /15 AND 109/10 SITUATED IN VILLAGE RAKH SHIKARGAH, TEHSIL & DISTRI CT AMRITSAR, FROM SMT. SANTOSH W/O SHRI. JUGAL KISHORE, SMT. NEERU W/ 0 SHRI. VINOD KUMAR, SHRI. SUDHIR KUMAR S/0 SHRI. CHAMAN LAL AND SHRI. JUGAL KISHORE S/0 SHRI CHAMAN LAL ALL RESIDENT OF 13-JOSH I COLONY , AMRITSAR, IN THE YEAR 2008-09. IT IS FURTHER CERTIFIED THAT T HE AFORESAID LAND WAS AN AGRICULTURAL LAND AT THE TIME OF PURCHASE BY THE COMPANY. THE ASSESSEE HAS ALSO SUBMITTED AFFIDAVIT OF SHRI VIKA SH MALHOTRA, DEPUTY MANAGER OF KHANNA PAPER MILLS, AGAIN STATING THAT S ELLERS WERE CARRYING OUT AGRICULTURE ACVIVITY ON SAID LAND AND SIMILARLY WARD INSPECTOR HAS ALSO RELIED ON STATEMENT OF NEIGHBORS IN THE SECOND REMAND REPORT REGARDING AGRICULTURE OPERATIONS ON THE SAID LAND D URING THAT PERIOD. THESE STATEMENTS/ AFFIDAVITS HAVE NO EVIDENTIARY VA LUES AS THEY HAVE BEEN ISSUED BY RELATED PARTY OR PARTIES NOT HAVING ANY AUTHORITY REGARDING DECLARING ANY LAND AS AGRICULTURE LAND. T HE ASSESSEE HAS NOT SUBMITTED ANY SCIENTIFIC EVIDENCE TO COUNTER THE RE VENUE RECORDS SHOWING ABOVE LAND FROM YEAR 2002-03 ONWARDS AS KA BILE TAMIR SO THAT SAME CAN BE CONSIDERED AS SUPERIOR EVIDENCE TO THE EVIDENCE SUBMITTED AND AVAILABLE ON RECORDS OF THE REVENUE A UTHORITIES IN THIS REGARD. IN ABSENCE OF ANY EVIDENCE, THE RECORDS OF THE REVENUE AUTHORITIES IN THIS REGARD. IN ABSENCE OF ANY EVIDE NCE, THE RECORDS OF GIRDAWARI & JAMAWANDI SUBMITTED EARLIER CAN NOT BE DISCREDITED AND HAS TO BE RELIED UPON. 6.7 THE ASSESSEE HAS SUBMITTED HIS/HER OWN AFFIDAVIT ST ATING THAT LAND WAS USED FOR AGRICULTURE PURPOSE DURING RELEVANT PERIOD . AN AFFIDAVIT IS NOT A PIECE OF EVIDENCE IN ITSELF AND AN AFFIDAVIT IS R EQUIRED TO BE FILED ON THE ORDER OF CIVIL COURT/QUASI JUDICIAL AUTHORITIES TO EVER A POINT FOR WHICH NO PRIMARY EVIDENCE IS AVAILABLE AND SAME CAN NOT BE PROVED BY MEANS OF ANY DIRECT OR INDIRECT EVIDENCE. IN SUCH C IRCUMSTANCES, THE COURT ASK WITNESS TO SUBMIT AN AFFIDAVIT IN THIS RE GARD SO THAT AVERMENT ARE TAKEN ON OATH AND IN CASE IT IS FOUND INCORRECT , SUITABLE PROCEEDINGS COULD BE INITIATED AGAINST THE PERSON. IN THE PRESENT CASE THIS SUO-MOTO SUBMISSION OF AN AFFIDAVIT BY ASSESSE E DOES NOT HAVE ANY EVIDENTIARY VALUE AS EVIDENCE OF AGRICULTURE OP ERATION BEING CARRIED BY THE ASSESSEE IS AVAILABLE IN THE FORM OF REVENUE RECORDS (GIRDAWARI) AND IN VIEW OF SAME, THE ASSESSING OFFI CER HAS RIGHTLY HAS NOT TAKEN ANY COGNIZANCE OF THE AFFIDAVIT AND IN TH IS REGARD DECISION OF HON'BLE SUPREME COURT IN THE CASE OF MEHTA PARIKH 3 0 ITR 1 IS NOT APPLICABLE. 6.8 CONSIDERING ABOVE FACTS AND CIRCUMSTANCES AND JUDIC IAL DECISIONS AVAILABLE IN THIS REGARD, I AGREE WITH SECTION OF A SSESSING OFFICER OF TAXING CAPITAL GAIN UNDER THE INCOME TAX ACT AND DE NYING CLAIM FOR EXEMPTION U/S 54B OF THE INCOME TAX ACT. IN VIEW OF ABOVE, THE APPEAL OF THE ASSESSEE ON THESE ISSUES IS DECIDED A GAINST THE ASSESSEE. ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 7 6.9 GROUND NO. 2 & 3 ARE GENERAL IN NATURE AND IN VIEW OF ABOVE DISCUSSION, THESE TWO GROUNDS ARE DISMISSED. 6. FEELING AGGRIEVED BY THE ORDER PASSED BY THE LD. C IT(APPEAL), THE ASSESSEES PREFERRED THE INSTANT APPEALS WHICH ARE U NDER CONSIDERATION. 7. TO SUBSTANTIATE THE APPEALS, THE LD. AR OF TH E ASSESSEE ARGUED THAT THE APPELLANTS HAVING SOLD THE AGRICULTURAL LAND CL AIMED DEDUCTION U/S 54B OF THE INCOME TAX ACT, AND THE APPELLANTS HAVE FILED C OPIES OF THE REGISTRATION DEED OF AGRICULTURAL PROPERTIES, KHASRA GIRDAWARI D ATED 07.10.2011, COPIES OF J- FORMS, ELECTRICITY BILL, TRACTOR BILL, PHOTOGRAP HS OF THE LAND TO SHOW THAT THE LAND IS STILL UNDER CULTIVATION. THE LD. AR ALSO SU BMITTED THAT THE AFFIDAVITS OF THE PERSON WHO WAS CULTIVATING THE LAND FOR THE APP ELLANTS AS WELL AS APPELLANTS HAVE ALSO BEEN BROUGHT ON RECORD WHICH W ERE NEVER BEEN CONFRONTED BY THE LD. ASSESSING OFFICER AND EVEN LO CATION OF THE AGRICULTURAL LAND WAS ALSO BEING CORROBORATED THROUGH GOOGLE MAP S. IT WAS FURTHER SUBMITTED THAT SHOW CAUSE NOTICE DATED 30 TH NOVEMBER, 2010 WAS ISSUED TO THE APPELLANTS AND IN RESPONSE TO THE SHOW CAUSE NO TICE, THE APPELLANT VIDE LETTER DATED 02.11.2011, SOUGHT CLARIFICATION FROM THE TEHSILDAR AMRITSAR QUA FIRST KHASRA GIRDAWARI AND LAND. ON DIRECTION OF TE HSILDAR HALKA PATWARI AFTER SPOT VISIT GIVEN THE REPORT WHICH IS AS UNDER:- SHRI MAAN JI, PHELE HE DITI DARKHASAT SMT. BIMLA R ANI, INCOME TAX OFFICER, WARD 1(2), AMRITSAR JI DI DARKHAST TE REPO RT MUTABIK JAMA BANDI SAAL 2002-03 VICH KABLE TAMIR DARJ HAI. ES TO BAAD VICH VI RECORD VICH VI GARJ HAI PAR MOKIA TE SURU TO MATALA B SAAL 1999 TO HUNT TA KINA UMBERA KHASRA VICH FASAL CHONA ATE KANAK DI KADAT HUNDI AA RAHI HAI ATE ES SAAL HUN VI RAKABE TE KANAK TE CHON E DI FASAL KADAT KITI HOI HAI. REPORT PESH HAI. HOWEVER, THE LD. ASSESSING OFFICER HAS TAKEN DIFFERE NT VIEW ON THE GROUND THAT THE TEHSILDAR HAS PREPARED THE REPORT A T THE BEHEST OF THE ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 8 APPELLANT. IT WAS FURTHER SUBMITTED BY THE LD. AR T HAT EVEN THE APPELLANT, SEVERAL TIMES REQUESTED THE LD. ASSESSING OFFICER T O SUMMON THE PATWARI AND TO VERIFY THE POSITION BUT THE LD. ASSESSING OFFICE R, NEVER BOTHERED ON THE SAME. IT WAS FURTHER SUBMITTED THAT EVEN AFTER RECE IVING THE SECOND REPORT BOTH THE AUTHORITIES BELOW FAILED TO ACT PROPERLY A ND WRONGLY RELIED ON THE FIRST DOCUMENT I.E. KHASRA KHATAUNI WHICH WAS NEVER BEING CONFRONTED AND PROVED. THE AUTHORITIES BELOW HAVE ALSO FAILED TO U NDERSTAND THAT THE GIRDAWARI CAN BE CORRECTED FOR PRIOR YEARS AFTER SP OT VERIFICATION ON THE APPLICATION OF THE CONCERNED PARTIES IN DUE COURSE OF LAW AS PER PUNJAB LAND REVENUE ACT. IT WAS FURTHER SUBMITTED BY THE LD. AR THAT HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF DALER SINGH AND OT HER V. FINANCIAL COMMISSIONER HARYANA AND OTHER TO THE 2014 (3) LAW H ERALD 2198 HELD THAT THE KHASRA GIRDAWARI ARE NOT DOCUMENTS WHICH CARRIE S PRESUMPTION OF CORRECTNESS IN TERMS OF SECTION 44 OF THE PUNJAB LA ND REVENUE ACT, 1887. THE LD. AR ALSO EMPHASIZED THAT THE JURISDICTIONAL HIGH COURT IN THE CASE OF SUHAGWANTI V. COMMISSIONER PATIALA DIVISION, PATIAL A AND OTHERS 2013 (1) CIVIL COURTS CASES HELD AS UNDER:- AS WE HAVE ALREADY NOTICED, THE OBJECT OF HARVEST INSPECTION/GIRDAWARI IS TO COLLECT ACCURATE INFORMA TION REGARDING CROPS, CHANGE OF RIGHTS, RENT, AND POSSESSION OF LA ND, AMENDMENTS REQUIRED IN THE VILLAGE MAP, THE DATA WITH REGARD T O THE CROPS FOR THE PURPOSE OF OVER ALL PLANNING. ONE MUST UNDERSTAND T HAT BASIS OF NATURE OF REVENUE ENTRY, NAMELY IT NEITHER CONFERS NOR DIVEST A PARTY OF ITS TITLE WHETHER PROPRIETY OR POSSESSORY AND IS A MERE FISCAL ENTRY RECORDED TO UPDATE THE REVENUE RECORDS. IT, THEREFO RE, CANNOT BE HELD THAT A KHASRA GIRDAWARI CANNOT BE RECORDED OR CORRE CTED DURING PENDENCY OF THE SUIT. THUS THE QUESTION POSED IS HEREBY ANSWERED BY HOLDI NG THAT A REVENUE AUTHORITY HAS JURISDICTION TO CONDUCT SPO T INSPECTION WITH REGARD TO THE ENTRIES IN THE KHASRA GIRDAWARI, EVEN IF SUIT INVOLVING A QUESTION OF TITLE AND/OR POSSESSION IS PENDING. ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 9 THE LD. AR FURTHER RELIED UPON A JUDGMENT PASSED BY THE PUNJAB & HARYANA HIGH COURT IN BHARDWAR LAL AND OTHERS V. NADI R CHAND AND OTHERS REPORTED IN 1971 PLJ 266. THE HEADING OF THE COLUMNS REQUIRES WITH THE KIND OF SOIL TO BE MENTIONED THEREIN SHOULD BE BORROWED FROM THE PREVI OUS JAMABANDI. BUT AS MENTIONED EARLIER, IN THE PREVIOU S JAMABANDI. THIS KHASRA NUMBER IS RECORDED AS BARRANI. IT IS TH US QUITE EVIDENT THAT THE ENTRY MADE IN COLUMN 6 OF THE AFOREMENTIO NED KHASRA GIRDAWARI IS NOT CORRECTLY RECORDED. MOREOVER, ENTR IES MADE IN THE KHASRA GIRDAWARI DO NOT CARRY PRESUMPTION OF TRUTH U/S 44 OF THE PUNJAB LAND REVENUE ACT, 1887. FURTHER, IT WAS ARGUED BY THE LD. AR THAT THE LD. C IT (APPEAL) HAS GROSSLY ERRED IN CONFIRMING THE ACTION OF THE LD. A SSESSING OFFICER BY NOT CONSIDERING THE FOLLOWING DOCUMENTS WHICH WERE PLAC ED BY THE ASSESSEE IN SUPPORT OF HER CASE. (A) J FORMS (B) ELECTRICITY BILL, OF THE ACTIVE CONNECTI ON INSTALLED AT THE AGRICULTURAL LAND. (C) TRACTOR BILL IN THE NAME OF THE APPELLAN TS. (D) PHOTOGRAPHS OF THE AGRICULTURAL LAND. (E) AFFIDAVIT OF S. GURMUKH SINGH EMPLOYEE O F THE APPELLANT WHO WAS CARRYING ON AGRICULTU RAL ACTIVITY FOR THE APPELLANT, WHICH WAS NEVER CONFRONTED. (F) AFFIDAVIT OF DEPUTY MANAGER SH RI VIKAS KHANNA STATING THAT THE APPELLANT WAS CARRYING ON AGRICULTURAL ACTIVITY ON THE SAID LAND, WHICH WAS NEVER CONFRO NTED. (G) AMENDED GIRDAWARI FILED BY THE PATWARI W.R.T THE SAID AGRICULTURAL LAND. FINALLY IT WAS ARGUED BY THE LD. AR THAT E VEN THE RECORDS OF THE INCOME TAX DEPARTMENT I.E. ITR FILED ALONG WITH THE COMPUTATION OF INCOME ALSO SHOWS THAT THE ASSESSEE HAD DECLARED AGRICULTU RAL INCOME FROM THIS LAND FOR THE PRECEDING EIGHT (8) YEARS. STATEMENT OF PAT WARI WAS ALSO RECORDED AND THE ORIGINAL AND AMENDED GIRDAWARI WAS CONFRONT ED AND WAS STATED THAT IT WAS AMENDED AS PER PROVISIONS UNDER THE PUNJAB L AND REVENUE ACT, 1887 ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 10 AND AFTER ADOPTING PROCEDURE AS PER THE LAND RECORD MANUALS. ACCORDING TO SECTION 44 OF THE OF THE PUNJAB LAND REVENUE ACT, 1 887, THE ENTRIES IN THE KHASRA GIRDAWARI HAVE NO PRESUMPTION OF TRUTH AND T HE GIRDAWARI CAN BE AMENDED AFTER SPOT VERIFICATION AND IN THE INSTANT CASE, THE TEHSILDAR/PATWARI HAS ACTED WITHIN HIS JURISDICTION IN SUBMITTING THE AMENDED GIRDAWARI AS PER SECTION 44 OF THE PUNJAB LAND REVENUE ACT. 8. ON THE CONTRARY, THE LD. DR SUBMITTED THAT T HE ASSESSEES HAVING SOLD THE LANDS UNDER CONSIDERATION TO M/S KHANNA PAPER M ILL LTD. AS THE SAME WERE SITUATED ADJOINING THE FACTORY OF THE M/S KHAN NA PAPER MILL LTD. DURING THE ASSESSMENT PROCEEDINGS, COPY OF REGISTRATION DE ED, JAMABANDI AND GIRDAWARI WERE FILED. THEREAFTER, IN ORDER TO CLARI FY, THE ASSESSING OFFICER SOUGHT THE INFORMATION FROM HALKA PATWARI WHO HAVE G IVEN THE REPORT QUA LAND AS KABILE TAMIR WHICH MEANS THAT NO AGRICUL TURAL ACTIVITIES HAVE BEEN TAKEN PLACE ON THE SAID LAND. DEPARTMENT INSPECTOR WAS ALSO DEPUTED TO ASCERTAIN , LOCATION OF THE LAND, WHO HAD TAKEN STATEMENT OF GE NERAL MANAGER OF KHANNA PAPER MILLS. THE ASSESSING OFFICER DETERM INED THAT THE LAND UNDER CONSIDERATION WAS NOT USED FOR AGRICULTURAL PURPOSE S IN TWO YEARS IMMEDIATELY PROCEEDING THE DATE OF WHICH THE TRANSF ER TOOK PLACE AS IT MANDATES BY THE PROVISIONS OF SECTION 54B OF THE IN COME TAX ACT, 1961, THEREFORE, THE LD. ASSESSING OFFICER DISALLOWED THE EXEMPTION U/S 44 B OF THE ACT. IT WAS FURTHER SUBMITTED BY THE LD. DR THAT TH E GOOGLE MAPS HAS FURNISHED BY THE ASSESSEE IS JUST AN ARIEL VIEW OF THE LOCALITY AND THERE IS NO KHASRA NUMBER OR OTHER MARKING BY WHICH IT CAN BE PROVED THAT THE LOCATION SHOWN IS EXACT LOCATION. AGRICULTURE LAND SOLD IN AUGUST AND OCTOBER, 2008 BUT GOOGLE MAPS PERTAINS TO THE PERIOD MUCH LATER I.E. OF 2012, THEREFORE, ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 11 THE GOOGLE MAP DOES NOT HAVE ANY EVIDENTIARY VALUE WITH REGARD TO THE ELIGIBILITY OF DEDUCTION U/S 44 B. IT WAS FURTHER A RGUED THAT IN BOTH THE KHASA GIRDAWARI, 1 ST RELIED UPON BY THE ASSESSING OFFICER AND 2 ND BY ASSESSEE ARE ALTOGETHER DIFFERENT BECAUSE JAMABANDI AND KHATAUN I NOS. ARE DIFFERENT AND BECAUSE THE ASSESSEE ARE HAVING OTHER AGRICULTURAL LAND, SO MAY BE THE SAME PERTAINS TO THEIR OTHER LAND WHICH CANNOT BE RULED OUT. THE ASSESSEE MAY BE TRYING TO PROVE THE AGRICULTURAL ACTIVITIES FROM OT HER LANDS. FURTHER, IT WAS SUBMITTED BY THE LD. DR THAT IN THE FIRST GIRDAWARI , THE SERIAL NUMBER HAS BEEN MENTIONED WHEREAS IN THE SECOND GIRDAWARI SERI AL NUMBER DOES NOT APPEAR, THEREFORE, ITS AUTHENTICITY IS IN DOUBT. FU RTHER IT WAS ARGUED THAT NAME OF THE CULTIVATORS OF THE LAND I.E. KHASTKAR IN COLUMN NO. 4 OF THE GOURDAWARIS ARE DIFFERENT BECAUSE IN THE FIRST GIRD AWARI, THE NAME OF THE CULTIVATOR OF THE LAND IS SHOWN AS MR. DAYA PRAKASH WHEREAS IN THE SECOND GIRDAWARI SHOWN AS KHASTKAR WHICH SHOWS THE REVIS ED GIRDAWARI IS NOT AN AUTHENTIC AND IS UNRELIABLE. FURTHER IT WAS SUBMITT ED BY THE LD. DR THAT EVEN OTHERWISE THE LD. ASSESSEE, DURING THE COURSE OF TH E PROCEEDINGS, FILED THE AFFIDAVITS OF THE PERSONS CULTIVATING THE LAND TO P ROVE AGRICULTURAL ACTIVITY ON THE LANDS, HOWEVER IN THE SECOND GIRDAWARI, NO SUCH DETAILS OF THE CULTIVATOR APPEARS, THEREFORE, IT CAN EASILY BE UNDERSTOOD THA T THE ASSESSEE IS TRYING TO MANIPULATE BY FURNISHING FALSE EVIDENCE. IT WAS FU RTHER SUBMITTED THAT KHATAUNI IN QUESTION NOT THE SAME AS MENTIONED IN T HE KHASRA GIRDAWARI IN THE PAPER BOOK. ORIGINAL GIRDAWARI HAS BEEN PREPARE D ON THE BASIS OF ACTUAL VERIFICATION OF THE RELEVANT PERIOD ON THE BASIS OF LAND RECORD, HOWEVER, THE REVISED GIRDAWARI IS BASED ON THE LOCAL ENQUIRIES A ND EVEN OTHERWISE SOUGHT AT BELATED STAGE WHICH CARRIES NO EVIDENTIARY VALUE . FURTHER IT WAS SUBMITTED BY LD. DR THAT THE CASE LAWS FURNISHED BY THE ASSES SEE ARE NOT RELEVANT IN ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 12 THE PRESENT CASE AS THE SAME RELATES TO THE OWNERSH IP/TITLE ISSUES OF LAND AND THE HON'BLE JURISDICTIONAL HIGH COURT IN VARIOUS CAS ES, CLEARLY HELD QUA, OWNERSHIP OF THE LAND, CANNOT BE DECIDED ON THE BAS IS OF ENTRIES IN GIRDAWARI. IN THE INSTANT CASE, THE DISPUTE IS NOT ABOUT OWNER SHIP/TITLE OF THE LAND BUT IT IS WITH REGARD TO THE CLAIM OF EXEMPTION U/S 54B OF THE ACT, WHICH MANDATES THAT AGRICULTURAL ACTIVITY HAS TO BE CARRIED ON FOR THE LAST TWO YEARS PROCEEDINGS FROM THE DATE OF TRANSFER, FURTHER LD. DR ALSO RELIED UPON THE JUDGMENT PASSED BY THE HON'BLE JURISDICTIONAL HIGH C OURT IN THE CASE OF SUHAGWANTI AND SUBMITTED THAT THE PREPARATION OF KH ASRA GIRDAWARIS IS NOT AN EXEMPLY FORMALITY, BUT IT IS THE REQUIREMENT OF LAW FOR PUBLIC ADMINISTRATION OF LAND REVENUE COLLECTION AND PRIMA FACIE EVIDENCE OF POSSESSION. FURTHER, IT WAS ALSO SUBMITTED BY THE L D. DR THAT IN ACCORDANCE TO THE PUNJAB LAND REVENUE MANUAL, THE CORRECTION O F GIRDAWARI CAN BE MADE, AT THE TIME OF ORIGINAL GIRDAWARI/ INSPECTION ITSELF AND WHEN THE GIRDAWARI INSPECTION PERIOD IS OVER, NO SUCH CORREC TION CAN BE MADE. FURTHER THE VERY PURPOSE OF KHASRA GIRDAWARI IS TO DEPICT T HE PICTURE OF THE TIME OF CROP INSPECTION BEING DONE I.E. TO INSPECT THE CROP OF EACH HARVEST BEFORE THEY ARE CUT. GIRDAWARI IS DONE TWICE A YEAR WITH C OOPERATION OF VILLAGE CHOWKIDAR, LUMBERDAR, SARPUNCH AND PANCHAYAT MEMBER S, THEREFORE, IT IS UNBELIEVABLE THAT IN SPITE OF DETAILED PROCEDURE, B EING FOLLOWED, THERE CAN BE ERROR, IN RELATION TO CROP CULTIVATION. FINALLY, IT WAS ARGUED BY THE LD. DR THAT THE STAT EMENTS/ AFFIDAVITS FURNISHED BY THE ASSESSES, HAVE NO EVIDENTIARY VALU ES AS THEY HAVE BEEN ISSUED BY THE RELATED PARTIES NOT HAVING ANY AUTHOR ITY TO DECLARE ANY LAND AS AGRICULTURAL LAND. AS THE ASSESSEE HAVE NOT PRODUCE D ANY SUPERIOR SCIENTIFIC ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 13 EVIDENCE, TO COUNTER THE REVENUE RECORDS SHOWING TH E LANDS, UNDER REFERENCE AS KABILE TAMIR. EVEN OTHERWISE, THE ENTRIES IN T HE REVISED GIRDAWARI RELATING TO NAME OF CULTIVATOR AND JAMABANDI/ KHATA UNI NO. IN COLUMN NO. 3 AND NO. 4 ARE DIFFERENT WHICH CLEARLY PROVED THAT THE REVISED GIRDAWARI IS NOT AUTHENTIC AND NOT AS PER LAND RECORDS. 9. ALL THE GROUNDS OF APPEAL ARE CONNECTED WITH EACH OTH ER, THEREFORE, TAKEN TOGETHER SIMULTANEOUSLY FOR ADJUDICAT ION. WE HAVE GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CA SE AND ALSO CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES AND RELEVANT DOCUMENTS FILED HEREIN AS WELL AS JUDGMENTS RELIED UPON BY THE PARTIES. AT THE OUTSET, IT IS RELEVANT TO REPRODUCE SE CTION 54B OF THE ACT. 54B [(1)] [SUBJECT TO THE PROVISIONS OF SUB-SECTI ON (2), WHERE THE CAPITAL GAIN ARISES] FROM THE TRANSFER OF A CAPITAL ASSET B EING LAND WHICH, IN THE TWO YEARS IMMEDIATELY PRECEDING THE DATE ON WHICH THE T RANSFER TOOK PLACE, WAS BEING USED BY THE ASSESSEE OR A PARENT OF HIS FOR A GRICULTURAL PURPOSES [(HEREIN AFTER REFERRED TO AS THE ORIGINAL ASSET)], AND THE ASSESSEE HAS, WITHIN A PERIOD OF TWO YEARS AFTER THAT DATE, PURCHASED AN Y OTHER LAND FOR BEING USED FOR AGRICULTURAL PURPOSES, THEN, INSTEAD OF THE CAP ITAL GAIN BEING CHARGED TO INCOME-TAX AS INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSFER TOOK PLACE, IT SHALL BE DEALT WITH IN ACCORDANCE WITH THE FOLLOWING PROVISIONS OF THIS SECTION, THAT IS TO SAY,- (I) IF THE AMOUNT OF THE CAPITAL GAIN IS GREAT ER THAN THE COST OF THE LAND SO PURCHASED (HEREINAFTER REFERRED TO AS T HE NEW ASSET), THE DIFFERENCE BETWEEN THE AMOUNT OF THE CAPITAL GA IN AND THE COST OF THE NEW ASSET SHALL BE CHARGED UNDER SECTION 45 AS THE INCOME OF THE PREVIOUS YEAR; AND FOR THE PURPOSE OF COMPUT ING IN RESPECT OF THE NEW ASSET ANY CAPITAL GAIN ARISING FROM ITS TRANSFER WITHIN A PERIOD OF THREE YEARS OF ITS PURCHASE, THE COST SHA LL BE NIL; OR (II) IF THE AMOUNT OF THE CAPITAL GAIN IS EQUAL TO OR LESS THAN THE COST OF THE NEW ASSET, THE CAPITAL GAIN SHALL NOT B E CHARGED UNDER SECTION 45; AND FOR THE PURPOSE OF COMPUTING IN RES PECT OF THE NEW ASSET ANY CAPITAL GAIN ARISING FROM ITS TRANSFER WI THIN A PERIOD OF THREE YEARS OF ITS PURCHASE, THE COST SHALL BE REDU CED, BY THE AMOUNT OF THE CAPITAL GAIN.] ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 14 [(2)] THE AMOUNT OF THE CAPITAL GAIN WHICH IS NOT U TILIZED BY THE ASSESSEE FOR THE PURCHASE OF THE NEW ASSET BEFORE THE DATE O F FURNISHING THE RETURN OF INCOME UNDER SECTION 139, SHALL BE DEPOSITED BY HIM BEFORE FURNISHING SUCH RETURN [SUCH DEPOSIT BEING MADE IN ANY CASE NO T LATER THAN THE DUE DATE APPLICABLE IN THE CASE OF THE ASSESSEE FOR FUR NISHING THE RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139] IN AN ACCOUNT IN ANY SUCH BANK OR INSTITUTION AS MAY BE SPECIFIED IN, AND UTI LIZED IN ACCORDANCE WITH, ANY SCHEME WHICH THE CENTRAL GOVERNMENT MAY, BY N OTIFICATION IN THE OFFICIAL GAZETTE, FRAME IN THIS BEHALF AND SUCH RET URN SHALL BE ACCOMPANIED BY PROOF OF SUCH DEPOSIT; AND, FOR THE PURPOSES OF SUB-SECTION (1), THE AMOUNT, IF ANY, ALREADY UTILIZED BY THE ASSESSEE FO R THE PURCHASE OF THE NEW ASSET TOGETHER WITH THE AMOUNT SO DEPOSITED SHA LL BE DEEMED TO BE THE COST O] THE NEW ASSET: IN ACCORDANCE WITH SEC.54B, THE CAPITAL GAIN OF TRANSFER OF LAND USED FOR AGRICULTURE PURPOSES IS EXEMPTED BUT, SUBJECT TO CONDITION THAT THE LAND OF WHICH TRANSFER TOOK PLACE WAS BEING USE D FOR AGRICULTURE PURPOSES WITHIN TWO YEARS, PRECEDING FROM T HE DATE OF TRANSFER. IN THE INSTANT CASE, THE FIRST KHASRA GIRDAWAR I REFLECTS THE LAND AS KABLE TAMIR WHICH MEANS THE LAND IS NOT USED F OR AGRICULTURAL PURPOSES. ON FINDING THE SAID OBSERVATIONS, THE ASSESSING OFFICER ISSUED THE SHOW CAUSE NOTICE TO THE ASSESSEES CONCERNED AND ASKE D TO FILE THE REPLY/EXPLANATION IN RESPONSE TO THE SAID KHA SRA GIRDAWARI AND THEREAFTER, THE ASSESSEES APPROACHED THE CONCERNED TEHSILDA R AND SOUGHT CLARIFICATION/ STATUS OF THE LAND. ON THE DIRECTI ON OF THE TEHSILDAR, THE SPOT INSPECTION WAS CONDUCTED BY THE CONCERNE D PATWARI AND HE HAD ISSUED THE NEW KHASRA GIRDAWARI REPORT BY H OLDING THAT THE LAND WAS BEING USED FOR AGRICULTURAL PURPOSES UNDER THE RELEVANT ASSESSMENT YEARS. THE FINDINGS OF TWO DIFFERENT KHASRA GIR DAWARI CONTRADICTED TO EACH OTHER. THE ASSESSING OFFICER CONSIDERE D THE OTHER RELEVANT MATERIAL AND RELIED UPON THE FIRST KHASRA GI RDAWARI, REJECTED ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 15 THE SECOND KHASRA GIRDAWARI BY REASONING THAT SECOND REP ORT DATED 14.12.2011 ISSUED BY THE PATWARI IS ONLY ON BEHEST OF T HE ASSESSEES REQUEST AND FINALLY DECLINED TO GIVE BENEFIT OF EXEMP TION U/S 54B OF THE ACT AND ASSESSED THE SALE PROCEEDS OF THE AGRICULTURAL LAND AS CAPITAL GAIN. ON APPEAL, THE ID. CIT(A) CALLED UPON THE REMAND REP ORT BY DEPUTING INSPECTOR TO INSPECT THE LAND IN QUESTION, WH ETHER IT WAS USED FOR AGRICULTURAL PURPOSES DURING THE F.Y. 2008-09 RELEVANT TO ASSTT. YEAR 2009-10 OR NOT. THE SAID INSPECTOR, ON PHYSICA L VERIFICATION OF LOCAL ENQUIRIES ABOUT THE STATUS OF THE LAND IN QU ESTION, REPORTED THE FACT THAT ON GOING TO THE SPOT, HE FOUND THAT LAND UN DER CONSIDERATION WAS PLAIN LAND AND NO AGRICULTURAL ACTIVITY IS TAKING P LACE ON IT. THE INSPECTOR ALSO OBTAINED PHOTOGRAPH OF THE SAID LAND AND ALSO MADE FURTHER ENQUIRIES FROM MR. RAMAGOPAL SINGH, S/O JAGE SHWAR SINGH WHO WAS WORKING IN KHANNA PAPER MILLS SINCE 1981 AND SH. T EJINDER SINGH, S/O SARDAR PRATAP SINGH OWNER OF SARGAJ RESORT BOTH WERE STAYING NEAR THE LOCATION OF THAT LAND. THE INSPECTOR FURTHER INFORMED THAT THERE WERE NO AGRICULTURAL ACTIVITIES ON THE SAID LAND FOR THE LAST ABOUT 6 TO 7 MONTHS. THE ID. CIT(A) WHILE REJECTING THE J FORMS SUBMITTED BY THE ASSESSEES, ACCEPTING THE REMAND REPORT AND CONCLUDED THA T IT CAN BE SEEN FROM THE PHOTOGRAPHS SUBMITTED BY THE INSPECTOR THAT THERE ARE WEED GROWTH ON THESE LANDS AND TEXTURE OF THE LAN D SUGGEST THAT IT COULD NOT HAVE USED FOR AGRICULTURAL PURPOSES FOR LAST 8 TO 10 YEARS. ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 16 FURTHER THE ID. CIT(A) ALSO DID NOT RELY UPON STATEME NTS/AFFIDAVITS FILED BY THE ASSESSEES AS WELL AS LABOURS AND A CERTIFICATE FROM M/ S. KHANNA PAPERS MILLS PVT. LTD., BY HOLDING THAT THE SAID AFFID AVITS AS THEY HAVE BEEN USED BY RELATED PARTIES FOR THEIR OWN PURPOSES AN D NOT HAVING ANY AUTHORITY TO DECLARE ANY LAND AS AGRICULTURAL LAND . THE ID. CIT (A) FURTHER OBSERVED THAT THE ASSESSEE HAS NOT SUBMITTED ANY SCI ENTIFIC EVIDENCE TO COUNTER THE REVENUE RECORDS SHOWING ABOVE L AND FROM YEAR 2002-03 ONWARDS AS KABLE TAMIR SO THAT SAME CAN B E CONSIDERED AS SUPERIOR EVIDENCE TO THE EVIDENCE SUBMITTED AND AVAILABLE ON RECORD OF THE REVENUE AUTHORITIES IN THI S REGARD. FURTHER, IN ABSENCE OF ANY EVIDENCE THE RECORDS OF THE GIRDAWARI AND JAMANBANDI SUBMITTED EARLIER CANNOT BE DISCARDED AND HA S TO BE RELIED UPON AND FINALLY UPHELD THE ACTION OF THE ASSESSING OFF ICER WITH REGARD TO THE CONTROVERSY INVOLVED IN THE GROUNDS UNDER CONSIDE RATION. IN SUPPORT OF ITS CASE, THE ASSESSEES HAVE FILED GOOGLE MAP DEP ICTING THE LOCATION OF THE AGRICULTURE LAND AND COPY OF KHASRA GIR DAWARI TO THE EFFECT THAT THE LAND UNDER QUESTION WERE BEING USED FO R THE AGRICULTURAL PURPOSES AND THE CERTIFICATE OF TEHSILDAR TO THE EFFECT THAT GIRDAWARI CAN BE CORRECTED AND ALSO SUBMITTED COPY OF REGISTRATION D EED OF AGRICULTURAL PROPERTIES, COPY OF J FORMS, ELECTRICITY BI LLS, TRACTOR BILL, PHOTOGRAPH OF THE LAND TO PROVE THAT LAND IS STILL UN DER CULTIVATION AND NOT VACANT AS WELL AS AFFIDAVITS OF THE PERSONS CULTIVATIN G THE LAND FOR THE ASSESSEES AS WELL AS ASSESSEES AFFIDAVITS AND ALSO KHASRA ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 17 GIRDAWARI DATED 7 TH OCTOBER, 2012 TO THE EFFECT THAT THE LAND IN QUESTION WAS USED FOR THE AGRICULTURAL PURPOSES DURING TH E YEAR UNDER CONSIDERATION. ON THE CONTRARY, IT WAS ARGUED BY THE ID. DR THAT TH E GOOGLE MAP FURNISHED BY THE ASSESSEE IS JUST AN ARIEL VIEW OF THE LOCALITY AND THERE IS NO PROOF QUA EXACT LOCATION OF THE AGRICULTURE LAND OF THE ASSESSEES, THE KHASRA NO. OR OTHER MARKINGS BY WHICH CAN B E PROVED THAT THE AGRICULTURE LAND SHOWN IN THE GOOGLE MAY PER TAINING TO THE SAME LAND OF THE ASSESSEE, EVEN OTHERWISE THE GOOGLE MAP PERTAINING TO THE PERIOD AFTER 2012, HOWEVER, THE CONTROVERSY IS WITH REGARD TO THE 2008-09 FINANCIAL YEAR. IT WAS FURTHER SUBMITTED B Y THE ID. DR THAT ENTRIES IN COLUMN NO.3 & 4 OF THE GIRDAWARI ARE ALT OGETHER DIFFERENT AS THE JAMABANDI NOS. AND KHATAUNI NOS. ARE ALSO NOT CO-RE LATED. AS IT WAS FURTHER SUBMITTED THAT THERE IS NO SERIAL NO. IN T HE REVISED GIRDAWARI, WHEREAS IT APPEARS IN THE FIRST GIRDAWARI A ND COLUMN NO.9,12,15 PERTAINING TO COLLECTION OF LAND REVENUE I S ALSO REFLECTS AS NIL. FURTHER NAME OF CULTIVATOR IN COLUMN NO.4 OF THE GIRDAWARI OR ALL TOGETHER DIFFERENT KHATAUNI /KHEWAT NOS. ARE ALSO ALL TOGETHER. IT WAS FURTHER SUBMITTED THAT ORIGINAL GIRDAWARI HAS BEEN M ADE ON THE BASIS OF ACTUAL VERIFICATION PERTAINING TO THE RELEVANT PE RIOD ON THE BASIS OF LAND RECORDS, HOWEVER, THE REVISED GIRDAWARI HAS BEEN MADE ON THE BASIS OF LOCAL ENQUIRIES AND AT A VERY LATER STAGE WHIC H CARRIES NO EVIDENTIARY VALUES. HOWEVER THE AFORESAID FACTUAL DISSI MILARITIES IN BOTH ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 18 OF THE KHASRA GIRDAWARIS, THE AUTHORITIES BELOW HAVING FAILED TO CONCLUDE THAT THE SECOND GIRDAWARI IS MANUFACTURED, FABR ICATED OR TOTALLY UNRELIABLE DOCUMENTS. EVEN OTHERWISE THE AUTHO RITIES BELOW HAVE NOT CONFRONTED THE DOCUMENTS WITH THE CONCERNED PER SONS WHO HAVE ISSUED CERTIFICATES AND DOCUMENTS PERTAINING TO TH E USE OF LAND AS WELL AS THE PERSONS WHO HAVE GIVEN AFFIDAVITS AND RECORD ED THEIR STATEMENTS. IT IS NO DOUBT THAT KHASRA GIRDAWARI IS NOT A FULL PR OOF DOCUMENT WHICH CARRIES PRESUMPTION OF CORRECTNESS IN TERMS OF SECTION 44 OF THE PUNJAB LAND REVENUE ACT 1887 AS IT WAS HELD BY THE JUR ISDICTIONAL HIGH COURT IN THE CASE OF DALER SINGH AND ORS. VS. FINANCIAL COMMISSIONER HARYANA AND ORS. 2014 (3) LAW HERALD 2198. FURTHER, IT IS ALSO TRUE THAT REVENUE AUTHORITIES HAVE JURISDICTION TO INSPECT THE SPOT AND TO CHANGE THE KHASRA GIRDAWARI AS IT WAS CLARIFIED BY JURI SDICTIONAL HIGH COURT IN THE CASE OF JURISDICTIONAL HIGH COURT IN THE CASE OF SUHAGWANTI V. COMMISSIONER PATIALA DIVISION, PATIALA AND OTHERS 2 013 (1) CIVIL COURTS. WHILE COMING TO THE CONTROVERSY INVOLVED IN THE INSTAN T CASE AS THE ASSESSEE IN ORDER TO SUBSTANTIATE HER CASE AND TO CONTRADIC T THE PREVIOUS KHASRA GIRDAWARI WHICH WAS AGAINST THE ASESSEES, PREFERRED THE PETITION BEFORE THE CONCERNED TEHSILDAR TO GET THE REAL STATUS OF THE LAND UNDER CONTROVERSY AND ON THE INITIATION OF THE A SSESSEE, THE CONCERNED TEHSLIDAR DEPUTED THE HALKA PATWARI, WHO COND UCTED THE SUPPORT INSPECTION AND GIVEN THE KHASRA GIRDAWARI TO THE EFFECT THAT ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 19 THE SAID LAND WERE BEING USED FOR AGRICULTURAL PURPOSES DURING THE RELEVANT ASSESSMENT YEAR WHICH IS NOT TOTALLY DISCARDED A ND DISBELIEVED AND NOT CONFRONTED WITH OTHER CORROBORATIV E EVIDENCES AND /OR PERSONS CONCERNED. IT IS UNIVERSAL LAW THAT IF TWO VI EWS ARE POSSIBLE THEN CERTAINLY THE BENEFIT HAS TO BE GIVEN TO THE PET ITIONER, HOWEVER, CONSIDERING THE INSTANT CASE AS ID. DR HAS RAISED SO MANY CONTRADICTIONS WITH REGARD TO THE SECOND KHASRA GIRDAWA RI AND THE ID. CIT(A) HAS ALSO OBSERVED THAT THE ASSESSEE HAS FAILED TO P RODUCE ANY SCIENTIFIC EVIDENCE TO PROVE THAT THE LAND UNDER DISPUT E WAS USED FOR THE AGRICULTURAL PURPOSES DURING THE RELEVANT PERIOD AND IT IS ALSO A FACT THAT IN REMAND REPORT THE INSPECTOR RECORDED THE STAT EMENT OF NEIGHBOURS WHO WERE STAYING IN THE VICINITY OF THE L AND UNDER SUBJECT MATTER TO THE EFFECT THAT THE LAND WAS BEING USED FOR THE AGRICULTURAL PURPOSES DURING THE YEARS UNDER CONSIDERATION. AFFIDAVIT S OF THE ASSESEES AND OTHER PERSONS AND STATEMENTS OF THE OTHER PERSO NS CORROBORATIVE THE AUTHENTICITY OF THE SECOND KHASRA GIRD AWARI, HOWEVER, CONSIDERING THE FACTS THAT BOTH THE AUTHORITI ES HAVE RELIED UPON FIRST KHASRA GIRDAWARI ONLY AND THE SPECIFIC OBJECTI ONS AND CONTRADICTIONS RAISED BY THE ID. DR WITH REGARD TO THE SECOND KHASRA GIRDAWARI. WE ALSO HESITATE TO RELY UPON THE SAME WIT HOUT ANY SUBSTANTIVE INDEPENDENT EVIDENCE AS IT REFLECTS FROM THE RECORD THAT THE ASSESSEES HAVE ALSO SUBMITTED DEED OF AGRICULTURAL PROP ERTIES, COPIES OF J FORMS. ELECTRICITY BILLS, TRACTOR BILLS, PHOTOG RAPHS OF THE ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 20 LAND. WE ARE UNABLE TO FIND ANY OBSERVATIONS OF THE A UTHORITIES CONCERNED WHETHER THEY HAVE CONSIDERED THE REGISTERED DE ED OF THE AGRICULTURE PROPERTIES, ELECTRICITY BILLS CONCERNING THE L OCATION/AMOUNT INVOLVED/ RELEVANT PERIOD AND TRACTOR BILL. HENCE, WE ARE OF THE CONSIDERED OPINION THAT BOTH THE AUTHORITIES BELOW HAV E LOST SIGHT TO THE FACTS QUA CORROBORATIVE EVIDENCES SUCH AS REGISTRATION D EED OF THE AGRICULTURAL PROPERTY/ LAND, ELECTRICITY BILLS. TRACTOR BILLS, COPIES OF J FORMS. EVEN OTHERWISE BOTH THE AUTHORITIES ALSO SUBSTITUT ED THEIR OWN OPINION WITHOUT GETTING SCIENTIFIC EVIDENCE WITH REGARD TO THE STATUS OF THE LAND DURING THE RELEVANT PERIOD AND ALSO FAILED TO COLLECT CORROBORATIVE EVIDENCES AGAINST THE KHASRA GIRDAWARI WHI CH IN FAVOUR OF THE ASSESSEES. HENCE, WE FEEL IT APPROPRIATE TO REMAND THE CASE TO THE FILE OF ASSESSING OFFICER TO DECIDE AFRESH WHILE TAK ING INTO CONSIDERATION, THE DOCUMENTS I.E. REGISTRATION DEED OF AGRICULTURAL LAND, COPIES OF J FORMS TO DETERMINE WHETHER THE SAME P ERTAINS TO THE PARTICULARS LAND/ PERIOD OR NOT, ELECTRICITY BILLS, W HETHER THE SAME IS INSTALLED IN THE SUBJECTED LAND OR NOT AND PERIOD OF THE ELECTRICITY BILLS AS WELL AS AMOUNTS OF THE BILLS, TRACTORS BILLS AND ITS USES ON THE SUBJECT LAND AND AUTHENTICITY OF THE PHOTOGRAPHS SUBMIT TED BY THE ASSESSEES QUA SUBJECT LAND AND TO CONSIDER STATEMENTS / AFFID AVITS OF THE PERSONS WHO WERE CULTIVATING THE SUBJECT LAND AND AL SO TO GET INDEPENDENT SCIENTIFIC EVIDENCE WITH QUA STATUS OF THE LAND DURING THE ITA NOS.721 TO 724(ASR)/2 014 ASST. YEARS: 2009-10 21 RELEVANT PERIOD AND TO GIVE OPPORTUNITIES TO CONFRON T WITH THE REVENUE AUTHORITIES QUA BOTH THE GIRDAWARIS. 10. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16.0 1.2017. SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMB ER DATED:16.01.2017. /GP/ SR.PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER