SITA RAM SHARMA, Jaipur V. ITO, Jaipur

ITA 726/JPR/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0474 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 03-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS NEENA JEPH
• Keywords: Capital asset; Opportunity of being heard; Bonafide belief; Additional evidence; Cost of acquisition; Condonation of delay
• Section: 54B; 54F; 2(14); 142(1); 147

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA- @ ITA NO. 726/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 SITA RAM SHARMA SEEMAVATO KI DHANI, VILLAGE SANJHARIA, POST- THIKARIYA, TEHSIL- SANGANER, DISTRICT- JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: BHKPS 7928 H VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 66/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 SITA RAM SHARMA SEEMAVATO KI DHANI, VILLAGE SANJHARIA, POST- THIKARIYA, TEHSIL- SANGANER, DISTRICT- JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: BHKPS 7928 H VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 725/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 MADAN LAL SHARMA SEEMAVATO KI DHANI, VILLAGE SANJHARIA, POST- THIKARIYA, TEHSIL- SANGANER, DISTRICT- JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: BISPS 9998 E VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 2 VK;DJ VIHY LA- @ ITA NO. 64/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 MADAN LAL SHARMA SEEMAVATO KI DHANI, VILLAGE SANJHARIA, POST- THIKARIYA, TEHSIL- SANGANER, DISTRICT- JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: BISPS 9998 E VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 724/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 RAMESHWAR SHARMA 164 SEEMAVATO KI DHANI, VILLAGE SANJHARIA, POST- THIKARIYA, TEHSIL- SANGANER, DISTRICT- JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: BHKPS 7922 P VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 67/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 RAMESHWAR SHARMA SEEMAVATO KI DHANI, VILLAGE SANJHARIA, POST- THIKARIYA, TEHSIL- SANGANER, DISTRICT- JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: BHKPS 7922 P VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 3 VK;DJ VIHY LA- @ ITA NO. 723/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 HANUMAN SAHAI SHARMA SEEMAVATO KI DHANI, VILLAGE SANJHARIA, POST- THIKARIYA, TEHSIL- SANGANER, DISTRICT- JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: BITPS 7514 P VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 65/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 HANUMAN SAHAI SHARMA SEEMAVATO KI DHANI, VILLAGE SANJHARIA, POST- THIKARIYA, TEHSIL- SANGANER, DISTRICT- JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: BITPS 7514 P VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 722/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 BANSI LAL SHARMA SEEMAVATO KI DHANI, VILLAGE SANJHARIA, POST- THIKARIYA, TEHSIL- SANGANER, DISTRICT- JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: BHSPS 3742 R VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 4 VK;DJ VIHY LA- @ ITA NO. 68/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 BANSI LAL SHARMA SEEMAVATO KI DHANI, VILLAGE SANJHARIA, POST- THIKARIYA, TEHSIL- SANGANER, DISTRICT- JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: BHSPS 3742 R VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI MUKESH KHANDELWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : MRS. NEENA JEPH (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 27/04/2015 ?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 01/05/2015 VKNS'K @ ORDER PER: BENCH ALL THE APPEALS FILED BY THE DIFFERENT ASSESSEES A GAINST THE ORDERS DATED 14/12/2010 AND 21/11/2013 PASSED BY THE LEARN ED CIT (A)-III, JAIPUR FOR A.Y. 2007-08. THE COMMON EFFECTIVE GROUND S OF ALL THE APPEALS ARE AS UNDER:- COMMON GROUNDS OF ITA OF THE YEAR 2013 1 THAT THE LD. CIT(A) HAS ERRED SERIOUSLY IN SUSTA INING ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SA LE OF LAND AT RS. 81,75,583/- WITHOUT APPRECIATING THAT THE LAND SOLD BY THE APPELLANT WAS AN AGRICULTURAL ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 5 LAND IN TERMS OF SECTION 2(14) OF THE INCOME TAX ACT , 1961. 2. THAT THE LD CIT(A) ERRED IN ALLOWING RELIEF TO THE APPELLANT U/S 54B AND 54F OF THE INCOME TAX ACT, 1961 TO THE TUNE OF RS. 12,94,999/- ONLY. GROUNDS OF ITA OF THE YEAR 2014 1 UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LD CIT(A) HAS ERRED SERIOUSLY IS SUSTAINING THE PENALTY AGAINST ALL THE ASSESSEES OF ALL THE APPEALS OF RS. 18,45,465/-, RS. 18,25,623/-, RS. 18,45,887/-, RS. 18,35,687/- AND RS. 18,28,290/- LEVIED BY THE LD. A.O. U/S 271(1)(C) OF THE INCOME TAX ACT, 1961. 2. ASSESSEES ARE DIFFERENT IN EACH CASE. IN ALL THE CASES, THE ASSESSEES APPEALS ARE AGAINST SUSTAINING ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SALE OF LAND AT RS. 81,75,583/ - WITHOUT APPRECIATING THE LAND SOLD BY THE APPELLANT WAS AN AGRICULTURAL L AND IN TERMS OF SECTION 2(14) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE LD ASSESSING OFFICER OBSERVED THAT THE DEPARTMENT HAD RECEIVED INFORMATION FROM BANK THAT THE ASSESSEES HAD SOLD H IS LAND TO M/S VATIKA LTD. ON 31/5/2006 FOR SALE CONSIDERATION OF RS. 5,72,48,520/-. THE NOTICE U/S 142(1) OF THE ACT WAS ISSUED TO ALL TH E ASSESSEES TO FILE THEIR RETURNS OF INCOME FOR A.Y. 2007-08 BY 20/09/2 007 BUT NO COMPLIANCE WAS MADE BY THE ASSESSEES. ASSESSEES NAME LY IN CASE OF SITA RAM SHARMA AND MADAN LAL SHARMA FILED THEIR RE TURN OF INCOME WITH ITO WARD 7(2), JAIPUR ON 03/2/2009 DECLARING NIL INCOME AND THE ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 6 ASSESSEES NAMELY RAMESHWAR SHARMA, HANUMAN SAHAY SHA RMA AND BANSI LAL SHARMA FILED THEIR RETURN OF INCOME WITH I TO WARD 7(2), JAIPUR ON 04/10/2007 DECLARING DIFFERENT INCOMES. THE FACTU M OF THE CASE IS THAT THE ASSESSEE ALONGIWTH FIVE OF HIS BROTHERS SOL D THEIR ANCESTRAL LAND FOR RS. 5,72,48,520/-, IN WHICH A SHARE WAS RS. 95,4 1,420/- BEING 1/6 TH OF THE TOTAL SALE CONSIDERATION. IT WAS SUBMITTED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER THAT THIS LAND WAS SITUATED BE YOND 8 KM FROM THE MUNICIPAL LIMIT OF JAIPUR NAGAR NIGAM AND THUS IT WA S NOT A CAPITAL ASSET AND FURTHER THERE IS NO LIABILITY ON HIS PART TO AD D THE SAME IN HIS INCOME. HE HAS FURTHER SUBMITTED A CERTIFICATE FROM SARPANCH, GRAM PANCHAYAT- THIKARIA, JAIPUR IN HIS SUPPORT. HE HAS FURTHER GIVEN A CHART SHOWING THEREIN THAT THIS LONG TERM CAPITAL GAIN LIA BILITY AS LONG TERM CAPITAL LOSS. THE LD ASSESSING OFFICER FURTHER OBSER VED THAT ON RECEIPT OF INFORMATION AS A SCALED MAP OF ITS MUNICIPAL LIMITS THE LAND IN DISPUTE IS WITHIN 8 KM OF THE MUNICIPAL LIMIT OF JAIPUR NAGAR N IGAM. THIS LAND ALSO IS WITHIN 8 KM FROM THE BAGRU A TOWN HAVING POPULATIO N OF MORE THAN 10,000/- AS PER CENSUS OF YEAR 2001. THE ASSESSEE WAS ALLOWED TO REASONABLE OPPORTUNITY OF BEING HEARD BUT NO REPLY WAS FILED BY THE ASSESSEES. IT WAS FURTHER FOUND BY THE ASSESSING OFF ICER THAT THIS LAND WAS SOLD TO M/S VATIKA LTD. WAS TREATED AS A CAPITAL ASSETS U/S 2(14) OF ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 7 THE ACT BY THE THEN A.O. WHERE DETAIL FIELD INQUIRY WERE ALSO GOT CONDUCTED BY HIM IN THIS REGARD. THE APPELLANT REPEA TED THE SAME REPLY AS DISCUSSED ABOVE, NO EVIDENCE HAS BEEN FILED FOR THE CLAIM THAT THE LAND WAS OUTSIDE 8 KM FROM THE MUNICIPAL LIMITS. ACC ORDINGLY, HE HELD THAT LAND SOLD BY THE ASSESSEE IS A CAPITAL ASSETS AS ENVISAGED U/S 2(14) OF THE ACT. THE ASSESSEE HAD ACQUIRED THE SAID LAND IN INHERITANCE IN THE YEAR 1992 AS CLAIMED BY HIM BUT HE HAD NOT ADDUCED ANY DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CONTENTION. THEREFORE, HE APPLIED COST OF ACQUISITION OF LAND AS ON 01/4/1981 ON THE BASIS OF CASE DECIDED BY THE LD CIT(A) IN CASES OF SHRI RAM NIWAS, SHRI JAGDISH PR ASAD SHARMA AND SHRI RAMESHWAR SHARMA @ 4312.56 PER BIGHA. THIS RATE A LSO PROPOSED TO ASSESSEE AND ASKED TO COMMENT ON IT BUT NO REPLY HAS BEEN FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. THEREFORE , HE TOOK THE COST OF ACQUISITION @ 4312.56 PER BIGHA. FINALLY LONG TER M CAPITAL GAIN WAS CALCULATED AT RS. 94,70,582/-. THE ASSESSEE ALSO CLA IMED DEDUCTION U/S 54B AND 54F OF THE ACT, WHICH WAS CONSIDERED BY THE A SSESSING OFFICER ON PAGE 5 OF THE ASSESSMENT ORDER. THE LD ASSESSING OFFICER FURTHER HELD THAT DEDUCTION CLAIMED BY THE ASSESSEE U/S 54B AT RS. 9,41,733/- FOR PURCHASE OF LAND MEASURING 20 BIGHAS AND 18 BIS WA WITH ALL HIS BROTHERS AT VILLAGE KANKRALA, TEHSIL- MOJAMADABAD, D ISTRICT- JAIPUR ON ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 8 SIMPLE AGREEMENT WITHOUT ANY REGISTERED DEED AND ALS O NO EVIDENCE OF PAYMENT OF AMOUNT TO THE SELLER WERE FOUND TO THE AS SESSING OFFICER WITHOUT ANY BASIS. THE ASSESSING OFFICER ALSO HAS NO T CONSIDERED THESE AGREEMENTS TO SALE ON THE BASIS OF DISCREPANCY POIN TED OUT IN PARAGRAPHS 6.3 TO 6.6 ON PAGE 7 OF THE ASSESSMENT O RDER. SIMILAR FINDINGS WERE GIVEN BY THE ASSESSING OFFICER ON NOT ALLOWING DEDUCTION U/S 54F OF THE ACT. THUS, HE ALLOWED EXEMPTION U/S 5 4B AND 54F OF THE ACT ON RS. 12,94,999/- IN EACH CASE. NET LONG TERM CAPITAL GAIN WAS ASSESSED AT RS. 81,75,583/- IN EACH CASE. 3. BEING AGGRIEVED BY THE ORDERS OF THE LEARNED ASS ESSING OFFICER, THE ASSESSEES CARRIED THE MATTER BEFORE THE LEARNED CIT(A), WHO HAD ALLOWED THE APPEAL PARTLY BY OBSERVING IN ALL CASES THAT ON THE BASIS OF SCALED MAP OF JAIPUR NAGAR NIGAM, THIS LAND IS WITHI N 8 KM OF THE MUNICIPAL LIMIT. THEREFORE, IMPUGNED LAND COMES UNDE R CAPITAL ASSETS AS ENVISAGED IN SECTION 2(14) OF THE ACT. FURTHER LAND SOLD WAS WITHIN 8 KM OF BAGRU TOWN, IT HAS POPULATION IN 2001 MORE THAN 10,000/-. IT IS CLARIFIED BY THE LD CIT(A) THAT THESE FACTS WERE BROU GHT TO NOTICE OF THE ASSESSEE BUT NO EVIDENCE TO DISPROVE THESE FACTS HA D BEEN PRODUCED BY HIM. ACCORDINGLY HE CONFIRMED THE ASSESSING OFFICER S FINDING ON LONG TERM CAPITAL GAIN. HE FURTHER HELD THAT COST OF ACQ UISITION AS ON ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 9 01/4/1981 ALSO TAKEN BY THE LD ASSESSING OFFICER ON THE BASIS OF SHRI RAM NIWAS SHARMA AND SHRI JAGDISH PRASAD SHARMA, WHI CH HAS BEEN CONFIRMED BY HIM IN ANOTHER CASE @ 4312.56 PER BIGHA . THE ASSESSEE ALSO FURNISHED THE ADDITIONAL EVIDENCE THAT HIS FAT HER DIED ON 18/2/1991 AND ALSO FURNISHED THE COPY OF DEATH CERTIFICATE TO HIM. THE ASSESSEE ALSO CLAIMED THAT IN CASE OF NANGI DEVI, W/O- PRAKA SH NARAYAN, R/O- RAMRAJPURA, SODALA, JAIPUR, WHO SOLD AGRICULTURAL LA ND IN VILLAGE SANJHARIA AND AS PER THIS SALE DEED, THE SALE PRICE IN 1991 HAD BEEN TAKEN AT RS. 29614/- PER BIGHA. THEREFORE, HE ACCEPT ED THESE EVIDENCES UNDER RULE 46A OF THE INCOME TAX RULES, 1962 (IN SHO RT THE RULES) ON WHICH HE ALSO CALLED FOR REMAND REPORT FROM THE ASSE SSING OFFICER BUT THE ASSESSEES HAD NOT COOPERATED WITH THE ASSESSING OFFICER AT THE TIME OF REMAND PROCEEDINGS, THEREFORE, NO COGNIZANCE HAS BEEN TAKEN BY THE LD CIT(A). ACCORDINGLY, HE CONFIRMED THE ORDER OF TH E ASSESSING OFFICER. 4. NOW THE ASSESSEES ARE IN APPEALS BEFORE US BUT TH E APPEALS FILED ARE BELATED BY 921 DAYS FOR WHICH HE FILED CONDONAT ION APPLICATION ALONGWITH AFFIDAVIT OF THE ASSESSEE AS WELL AS AFFID AVIT OF THE ADVOCATE AND CLAIMED THAT APPELLANTS BEING ILLITERATE AGRICU LTURISTS WERE UNDER BONAFIDE BELIEF AND THEY WERE NOT LIABLE TO PAY THE TAX ON THE AGRICULTURAL LAND SOLE BY THEM. THESE FACTS WERE ALSO SUBMITTED BEFORE ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 10 THE LD CIT(A) THAT THEY ARE NOT LIABLE TO PAY ANY L ONG TERM CAPITAL GAIN ON AGRICULTURAL LAND. THE LD CIT(A)-III, JAIPUR HELD IN CASE OF KAMLA DEVI SHARMA, WHO HAD ALSO SOLD LAND IN VILLAGE SANJHARIA TO M/S VATIKA LIMITED NOT LIABLE TO PAY TAX ON CAPITAL GAIN. IN P ENALTY PROCEEDING ALSO INITIATED AND IMPOSED BY THE ASSESSING OFFICER THEY CLAIMED THE SAME THAT NO TAX WAS LIABLE TO PAY AS LONG TERM CAPITAL G AIN ON AGRICULTURAL LAND. THE AGRICULTURAL LAND SITUATED AT VILLAGE SANJ HARIA JOINTLY OWNED BY ALL SIX BROTHERS, WHICH WAS SOLD TO M/S VATIKA LIMITE D. THE HONBLE BENCH IN CASE OF SMT. KAMLA DEVI SHARMA IN ITA NO. 526/JP/2011 VIDE ORDER DATED 28/08/2014 AND IN CASE OF DR. SHUBHA TRI PATHI IN ITA NO. 1129/JP/2011 ORDER DATED 24/05/2013 DECIDED THE APP EAL IN FAVOUR OF THE ASSESSEE. THE LD CIT(A)S ORDER WAS NOT COMMUNICAT ED BY THE THEN ADVOCATE AND REPERCUSSION OF NOT FILING APPEAL AGA INST THE ORDER OF CIT(A)S ORDER DATED 24/12/2010 COULD NOT BE REALIZE D BEING ILLITERATE AGRICULTURISTS. IT IS FACT THAT THIS LAND IS NOT C APITAL ASSETS AS ENVISAGES IN SECTION 2(14) OF THE ACT BEING BEYOND 8 KM OF TH E MUNICIPAL LIMITS. THE LD AR FURTHER RELIED UPON THE FOLLOWING DECISIONS ON CONDONATION OF DELAY: (I) COLLECTOR, LAND ACQUISITION VS. MST. KATJI (16 7 ITR 471): ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 11 (II) MOTILAL PADAMPAT SUGAR MILLS CO. LTD. VS. STAT E OF UTTAR PRADESH & OTHERS (1979) 118 ITR 326: (III) N. BALAKRISHNAN VS. M. KRISHNAMURTHY (1998) 7 SCC 123: THEREFORE, HE PRAYED TO CONDONE THE DELAY AND APPEAL FILED BY THE ASSESSEES ARE ALLOWED TO BE HEARD ON MERIT. 5. AT THE OUTSET, THE LD. DR VEHEMENTLY OPPOSED THE SUBMISSION FILED BY THE ASSESSEES AND ARGUED THAT EVERY DAY OF DELAY IS TO BE EXPLAINED BY THE APPELLANTS AS HELD BY THE VARIOUS COURTS. SHE RELIED ON THE DECISION OF THIS HONBLE BENCH IN THE CASE OF M /S KGNMMW EDUCATIONAL RESEARCH & ANALYSIS SOCIETY VS. ITO IN ITA NOS. 402 & 403/JP/2012 ORDER DATED 13/02/2015. THE CASE LAWS CIT ED BY THE ASSESSEE ARE NOT SQUARELY APPLICABLE ON CONDONATION OF DELAY ON FACTS OF THE ASSESSEES CASE. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. ALL T HE SIX BROTHERS ARE ILLITERATE AGRICULTURALISTS. THEY ARE IGNORANT WITH T HE IT LAW. THE AFFIDAVIT FILED BY THE ADVOCATE SUPPORT THE CLAIM OF THE ASSE SSEE THAT HE HAD NOT INFORMED AND IMPRESSED UPON THE ASSESSEE ABOUT REPE RCUSSION OF THE LEGAL PROCEEDINGS UNDER THE IT ACT AND ALSO FORGET THE MATTER TO REMIND THESE ASSESSEES AS FILE OF THESE ASSESSES WERE MIXED IN THE OTHER FILES ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 12 OF HIS OFFICE. FURTHER THE ADJACENT LAND HAS BEEN T REATED AGRICULTURAL ASSETS AS ENVISAGED IN SECTION 2(14) OF THE ACT IN THE CASE OF KAMLA DEVI SHARMA VIDE ORDER DATED 23/3/2011 FOR A.Y. 200 7-08 AND ORDER DATED 28/08/2014 BY THE ITAT OF THIS BENCH BUT CONF IRMED THAT THE LAND SITUATED IN SANJHARIA VILLAGE IS NOT A CAPITAL ASSE T AS ENVISAGED IN SECTION 2(14) OF THE ACT. WHEN IN CASE OF OTHERS, T HE ITAT HAS DECIDED THE CAPITAL ASSETS OUTSIDE THE 8 KM FROM THE MUNICI PAL LIMITS AND NON CONDONING THE DELAY BY THE BENCH WILL TANTAMOUNT TO MISCARRIAGE OF JUSTICE. THE LEGAL POSITION ON THIS ISSUE IS AS UNDE R:- (I) COLLECTOR, LAND ACQUISITION VS. MST. KATJI (16 7 ITR 471): HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. (II) MOTILAL PADAMPAT SUGAR MILLS CO. LTD. VS. STAT E OF UTTAR PRADESH & OTHERS (1979) 118 ITR 326: HELD THAT IT IS IMPOSSIBLE TO KNOW ALL THE STATUTORY PROVISIONS OF L AW AND HENCE THE PRINCIPLE THAT EVERYONE IS PRESUMED TO KN OW THE LAW IS NOT APPLICABLE UNIVERSALLY SINCE IT IS OF A V ERY DIFFERENT SCOPE AND APPLICATION. (III) N. BALAKRISHNAN VS. M. KRISHNAMURTHY (1998) 7 SCC 123: HELD THAT WORDS SUFFICIENT CAUSE UNDER SECTION 5 OF THE ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 13 LIMITATION ACT SHOULD RECEIVED A LIBERAL CONSTRUCTI ON SO AS TO ADVANCE SUBSTANTIAL JUSTICE. THE HON'BLE SUPREME COURT HAS HELD IN THE CASE OF CO LLECTOR, LAND ACQUISITION VS. MST. KATIJI (SUPRA) THAT SUBSTANTIA L JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE C AUSE OF SUBSTANTIAL JUSTICE DESERVED TO BE PREFERRED. IN THIS CASE ALSO , IT IS A FACT THAT APPEAL FILED BY THE APPELLANTS BELATED FOR YEARS IF THIS BENCH HAS NOT CONDONED THE DELAY OF THE ASSESSEES THEN THE ASSESS EES WOULD NOT GET JUSTICE AND WHICH IS AGAINST THE TECHNICAL OBJECTION S TO FILE THE APPEAL BELATEDLY. IN THE INTEREST OF SUBSTANTIAL JUSTICE, WE FEEL THAT DELAY SHOULD BE CONDONED AND THE ASSESSEE IS ALLOWED TO BE HEARD ON MERIT. 7. NOW COMING ON MERIT OF THE CASE, THE IMPUGNED LAN D SOLD BY THESE ASSESSEES BEARING KHASRA NO. 500/1239, 532, 4 32/1166, 533, 542, 543, 545, 546 AND 548 IN JOINT NAME OF ALL THE SE BROTHERS IN VILLAGE SANJHARIA, POST THIKARIYA, TEHSIL SANGANER BEING AGRI CULTURAL LAND TO M/S VATIKA LTD. FOR RS. 5,72,48,520/- ON 21/5/2006. THE ASSESSEES HAVE 1/6 TH SHARE OF TOTAL CONSIDERATION OF RS. 5,72,48,520/- AT RS.95,41,420/-. THE AR OF THE ASSESSEES SUBMITTED THAT LAND SOLD IS OUTSIDE THE MUNICIPAL LIMIT AND IS MORE THAN 8 KM. IT IS ARGUED THAT IN CASE OF SMT. KAMLA DEVI SHARMA, WHO ALSO SOLD HER LAND OF SANJHAR IA VILLAGE TO M/S ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 14 VATIKA LTD. ON 16/05/2006, IT HAS BEEN HELD BY THE HONBLE ITAT THAT THESE LANDS SITUATED BEYOND 8 KM FROM THE MUNICIPAL LIMITS AND IS NOT CAPITAL ASSETS AS ENVISAGED U/S 2(14) OF THE ACT. TH E LD AR FURTHER ARGUED THAT IN CASE OF DR. SUBHA TRIPATHY VS. DCIT, CIRCLE-6, JAIPUR ITA NO. 1129/JP/2011 VIDE ORDER DATED 24/5/2013, IT HAS BEEN HELD THAT DISTANCE OF AGRICULTURAL LAND IS TO BE MEASURED AS IT WAS AS ON 06/1/1994 I.E. THE DATE OF NOTIFICATION OF CBDT CIRC ULAR NO. 9447 AND NOT AS ON DATE OF SALE. SINCE IN THE PRESENT CASE, THE DISTANCE OF LAND IS MORE THAN 8 KM FROM MUNICIPAL LIMITS DURING 2011 TH EN DURING 2006-07 IT WAS DEFINITELY MANY MORE KMS AWAY FROM MUNICIPAL L IMIT AS THE ORGANIZATION HAS INCREASED THE AREA RAPIDLY DURING THE PERIOD FROM YEAR 1994 TO 2011. IT IS FURTHER ARGUED THAT IN CASE OF ASSESSEE, ONE OF THE ASSESSEES BROTHER SHRI RAM SAHAY SHARMA WHO ALSO SO LD HIS LAND ALONGWITH HIS BROTHERS WHERE CASE WAS REOPENED U/S 147 WHEREIN LD ASSESSING OFFICER HIMSELF HAD ACCEPTED THE SAME PAR T OF LAND AS NOT A CAPITAL ASSETS ENVISAGED U/S 2(14) OF THE ACT. HE F URTHER DRAWN OUR ATTENTION ON LETTER DATED 15/2/2011 ADDRESSED TO IT O WARD 7(2), JAIPUR THAT VILLAGE SANJHARIA, TEHSIL SANGANER, KHASRA NO. 319 AND 320 ARE BEYOND 9 KMS FROM THE MUNICIPAL LIMITS. THE LD AR AL SO ARGUED THAT MUNICIPALITY NOTIFIED WHOLE VILLAGE TO BE INCLUDED I N THE MUNICIPAL AREA ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 15 NOT PART AND PARTIAL OF THE LAND OF PARTICULAR KHAS RA NUMBER. THEREFORE, HE ARGUED THAT ALL THE KHASRA NUMBERS OF VILLAGE SA NJHARIA, TEHSIL- SANGANER ARE BEYOND 8 KMS FROM THE MUNICIPAL LIMITS . ACCORDINGLY, HE PRAYED TO ALLOW THE APPEALS OF THE ASSESSEES. 8. THE LD DR VEHEMENTLY SUPPORTED THE ORDER OF THE L D CIT(A) AND ARGUED THAT THE ASSESSEES HAD NOT SUBMITTED ANY EVI DENCE BEFORE THE LOWER AUTHORITY TO PROVE THAT THE IMPUGNED LAND SOLD BY ALL THE BROTHERS BEYOND 8 KM FROM THE MUNICIPAL LIMITS. THEREFORE, OR DER OF THE LD CIT(A) MAY PLEASE BE CONFIRMED. 9. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE LA ND SOLD BY ALL THE BROTHERS SITUATED IN VILLAGE- SANJHAIA, TEHSIL- SANG ANER, DISTRICT- JAIPUR. IN CASE OF ASSESSEES BROTHER NAMELY SHRI RAM SAHAY SHARMA IN A.Y. 2007-08 BY THE ITO WARD 7(2), JAIPUR ORDER DATED 25/ 03/2013 HAD NOT MADE ANY ADDITION ON ACCOUNT OF LONG TERM CAPITAL G AIN. FURTHER THE LD CIT(A) AS WELL AS THIS BENCH ALSO ALLOWED THE APPEAL I N CASE OF SMT. KAMLA DEVI SHARMA (SUPRA), WHO ALSO SOLD HER LAND AT SANJHARIA VILLAGE TO M/S VATIKA LTD. ON 16/05/2006 AND HELD THAT THE AGRICULTURAL LAND SOLD BY THE ASSESSEE IS NOT CAPITAL ASSETS AS ENVIS AGED U/S 2(14) OF THE ACT AS SAME WAS SOLD TO VATIKA LTD. WITHIN A SHORT SP AN OF TIME. THE ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 16 OTHER CASE LAWS RELIED BY THE ASSESSEE IS ALSO SQUAR ELY APPLICABLE. THEREFORE, WE HOLD THAT THE LAND SOLD BY ALL THE ASSE SSEES ARE AGRICULTURAL LAND AND BEYOND 8 KMS FROM THE MUNICIP AL LIMITS. ACCORDINGLY, WE ALLOW THIS GROUND OF ALL THE APPEALS. 10. GROUND NO. 2 OF THE ALL THE APPEALS ARE AGAINST NOT ALLOWING THE RELIEF U/S 54B AND 54F OF THE ACT ON DIFFERENT AMOU NTS. AS WE HAVE DECIDED THE LAND SOLD BY THESE ASSESSEES AS NOT CAP ITAL ASSETS AS ENVISAGED IN SECTION 2(14) OF THE ACT, WE NEED NOT T O EXPRESS OUR VIEWS ON THESE DEDUCTIONS AS THESE DEDUCTIONS IS BASED ON CAPITAL ASSETS ENVISAGED IN SECTION 2(14) OF THE ACT. 11. NOW WE ARE DECIDING THE PENALTY ORDERS PASSED U/S 271(1)(C) OF THE ACT. THE LD. ASSESSING OFFICER IMPOSED PENALTY U /S 271(1)(C) OF THE ACT, WHICH HAS BEEN CONFIRMED BY THE LD CIT(A) IN AL L THE CASES BUT AS DECIDED ABOVE, THE LAND SOLD IS NOT CAPITAL ASSETS AS ENVISAGED IN SECTION 2(14) OF THE ACT AND HELD AGRICULTURAL LAND , WHICH IS NOT COME UNDER THE PURVIEW OF TAXABLE INCOME. NO CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOM E IS THERE. THEREFORE, WE DELETE THE PENALTY IN ALL THE CASES. T HUS, WE ALLOW THE APPEALS IN ALL THE CASES. ITA 726/JP/2013 & 66/JP/2014 & ORS. CASES_ SITA RAM SHARMA VS. ITO & ORS. CASES 17 12. IN THE RESULT, ALL THE ASSESSEES APPEALS ARE A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/05/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 01 ST MAY, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANTS- SITA RAM SHARMA, MADAN LAL SHARMA, RAMESHWAR SHARMA, HANUMAN SAHAI SHARMA, BANSI LAL S HARMA, JAIPUR 2. IZR;FKHZ @ THE RESPONDENT- ITO, WARD-7(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NOS. 726, 725, 724, 723, 722 /JP/2013 & ITA NO. 66,64,67,65,68/JP/2014 ) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR