JAGDISH PRASAD SONI, Jaipur V. JCIT, Jaipur

ITA 754/JPR/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5305 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 07-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R PAREEK JCIT DHK
• Assessee Lawyers: G G MUNDRA
• Keywords: Capital asset; Additional evidence; Corroborative evidences
• Section: 2(14); 10AA

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA-@ ITA NO.754 & 780/JP/14 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 SHRI JAGDISH PRASAD SONI PROP M/S KAPIL JEWELES & ART , 4088 TOP KHANA KA RASA, CHANDPOLE BAZAR, JAIPUR CUKE VS. THE JT. COMMISSIONER OF INCOME TAX , RANGE-I, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AHNPS 6614 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI G.G. MUNDRA (C.A.) JKTLO DH VKSJ LS@ REVENUE BY : SHRI G.R. PAREEK, (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27.05.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : /05/2016. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THESE ARE CROSS APPEALS FILED BY THE ASSESSEE AS W ELL AS REVENUE AGAINST THE ORDER OF CIT APPEAL-I, JAIPUR DATED 17.09.2014 WHEREIN THE FOLLOWING GROUNDS OF APPEAL HAVE BEEN TAKEN: ITA NO. 780/JP/14 (REVENUE) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING DISALLOWAN CE OF RS. 2,17,55,743/- ON ACCOUNT OF DEDUCTION U/S 10AA OF THE INCOME TAX ACT, 1961 IGNORING THAT THE ASSESSEE FAILED TO FULFIL THE MANDATORY C ONDITION PRESCRIBED U/S 10AA(4)(II) OF THE ACT, AS THE ASSESSEE WAS FORMED BY RECONSTRUCTION OF OLD UNIT WHICH WAS HIS PROPRIETARY CONCERN IN THE S AME TRADE OF BUSINESS. ITA NOS. 754 & 780/JP/14 SHRI JAGDISH PRASAD SONI VS. JCIT, RANGE-1, JAIPUR 2 ITA NO. 754/JP/14 (ASSESSEE) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LD. CIT(A) IS WRONG, UNJUST AND HAS ERRED IN LAW IN UPHOLDING ADDITION O F RS. 1,94,604/- TO THE INCOME OF THE APPELLANT ON ACCOUNT OF ALLEGED CAPI TAL GAIN ON SALE OF AGRICULTURAL LAND BY CONFIRMING THAT IT IS SITUATED WITHIN 8 KM OF MUNICIPAL LIMITS DISREGARDING CONTRARY EVIDENCE PRODUCED BY THE APPE LLANT BEFORE HIM BY HOLDING THAT APPLICATION RULE 46A FOR ADMISSION OF ADDITIONAL EVIDENCE IS NOT MADE BEFORE HIM. 2. FIRSTLY REGARDING REVENUES APPEAL, AT THE OUTSE T THE LD. AR SUBMITTED THAT THE MATTER IS SQUARELY COVERED IN FAVOUR OF TH E ASSESSEE BY THE DECISIONS OF HONBLE ITAT, JAIPUR BENCH IN ITA NO.642/JP/10 D ATED 29.04.2011 FOR A.Y. 2007-08, ITA NO.424 & 425/JP/12 DATED 26.02.2014 FO R A.Y. 2008-09 AND 2009- 10 AND DECISION OF THE SUBJECT BENCH IN ITA NO 671/ JP/13 FOR AY 2010-11 DATED 24.11.2015. THE LD.AR FURTHER SUBMITTED THAT THE A O HAS NOT BROUGHT ANY NEW FACT ON RECORD IN THIS SUBJECT YEAR BUT HAS REPEA TED THE FINDINGS RECORDED IN THE ASSESSMENT ORDER FOR A.Y. 2007-08. IN VIEW OF THAT, THE EARLIER ORDERS OF THE HONBLE ITAT IN ASSESSEES OWN CASE SHOULD BE F OLLOWED AND NECESSARY RELIEF MAY BE GRANTED TO THE ASSESSEE. 2.1 THE COORDINATE BENCH IN ITS ORDER DATED 29.04.2 011 (ITA NO. 642/JP/10) HAS GIVEN ITS DETAILED FINDINGS AT PARA 4.4 TO 4.9 OF ITS ORDER WHEREIN THE BENCH HAD ALLOWED THE CLAIM OF THE ASSESSEE U/S 10AA OF T HE ACT WHICH HAS BEEN FOLLOWED IN THE SUBSEQUENT YEARS. ITA NOS. 754 & 780/JP/14 SHRI JAGDISH PRASAD SONI VS. JCIT, RANGE-1, JAIPUR 3 2.2 RESPECTFULLY FOLLOWING THE COORDINATE BENCH DEC ISIONS AS REFERRED ABOVE, WE DO NOT SEE ANY MERIT IN THE APPEAL OF THE REVENUE AND THE SAME IS DISMISSED. 3. NOW COMING TO ASSESSEES APPEAL, THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE OWNED A LARGE HOLDING OF AGRICULTURAL LAND AT VILLAGE BHATTTON KI GALI, RAMPUR DABRI. IN THE YEAR UNDER CONSIDERATION, THE ASSESEEE HAS SOLD 0.502 HECTARE LAND OUT OF TOTAL HOLDING FOR RS. 19,00,000 /- VIDE REGISTERED SALE DEED DATED 1.10.2010 DETERMINING VALUE OF STAMP DUTY PUR POSES AT RS. 20,58,375/-. THE ASSESSEE CLAIMED THE LTCG AS EXEMPT AS BEING FR OM AGRICULTURAL LAND SITUATED BEYOND 8 KM OUTSIDE MUNICIPAL LIMIT. 3.1 THE AO DISALLOWED THE CLAIM OF EXEMPTION ON THE GROUND THAT THE CERTIFICATE OF TEHSILDAR GIVEN BY ASSESSEE OR ITS LAND HOLDING TO THE EFFECT THAT AGRICULTURAL LAND SOLD SITUATES BEYOND 8 KMS OF MUN ICIPAL LIMIT DO NOT MENTION KHASSRA NO.(S) OF AGRICULTURAL LAND SOLD BY ASSESSE E SO THAT SAME IS IRRELEVANT AND THE CLAIM OF ASSESSEE THAT THE LAND IS BEYOND 8 KM OF MUNICIPAL LIMIT CANNOT BE ACCEPTED. 3.2 THE LD. AR HAS SUBMITTED THAT CERTIFICATE OF TE HSILDAR FILED BY THE ASSESSEE WAS OF LAND HOLDING OF ASSESSEE AND ALL TH E LANDS WERE NEARBY. IN CERTIFICATE FEW KHASRA NO.(S) WERE LEFT TO BE INCL UDED WHICH WERE SOLD BY THE ASSESSEE. THE ADDENDUM TO THE CERTIFICATE ISSUED BY TEHSILDAR SUBMITTED TO CIT(A) IS ENCLOSED AS ANNEXURE 22. AS THE VILLAGE B HATTON KI GALI RAMPUR DABDI IS BEYOND 8 KM OF MUNICIPAL LIMIT AND SO ALL PARCEL S OF LAND SITUATED THERE ARE BEYOND 8 KM OF MUNICIPAL LIMIT. THE LD. AO IS WRON G IN GIVING SUCH NARROW MEANING TO THE CERTIFICATE, HOWEVER, THE ADDENDUM TO THE CERTIFICATE ISSUED BY TEHSILDAR CLARIFIES THE ISSUE AND IT IS PRAYED THAT THE LAND SOLD BY ASSESSEE BE TREATED AS OF AGRICULTURAL LAND WITHIN THE MEANI NG OF SECTION 2(14) OF IT ACT, ITA NOS. 754 & 780/JP/14 SHRI JAGDISH PRASAD SONI VS. JCIT, RANGE-1, JAIPUR 4 1961 AND THE SAME NOT BEING CAPITAL ASSET THE GAIN IS NOT LIABLE TO BE ASSESSED AS CAPITAL GAIN U/S 45 OF IT ACT, 1961. THE LD. CIT (A) IN APPEAL HELD THE SAID ADDENDUM ISSUED BY PATWARI IS AN ADDITIONAL EVIDENC E AND REFUSED TO ACCEPT IT IN ABSENCE OF ANY PRAYER FOR ITS ADMISSION FROM ASS ESSEE U/R 46A OF IT RULES AND SO CONFIRMED THE ADDITION BY THE LD. AO. 3.3 IN THIS CONNECTION IT IS SUBMITTED THAT SAID AD DENDUM IS ONLY A SUPPORTING EVIDENCE OF MAIN EVIDENCE FILED. AS VIL LAGE BHATTON KI GALI, RAMPUR DABRI IS BEYOND 8 KM OF MUNICIPAL LIMIT AND SO ALL PARCELS OF LAND SITUATED THERE ARE BEYOND 8 KM OF MUNICIPAL LIMIT. THE CERTIFICAT E FILED BEFORE AO WAS OF THE ADJACENT AND CONTIGUOUS LAND OF ASSESSEE HIMSELF AN D THEREFORE THE PART OF SAID LAND SOLD BY ASSESSEE DURING THE YEAR WERE ALS O BEYOND 8 K,M OF MUNICIPAL LIMIT. IT IS THERE FORE, PRAYED THAT AGRICULTURAL L AND SOLD DURING THE YEAR ARE NOT CAPITAL ASSETS WITHIN THE MEANING OF SECTION 2(14) OF IT ACT, 1961 AND SO NO GAIN IS ASSESSABLE IN THE HANDS OF ASSESSEE. THE AD DITION OF RS. 1,94,604/- MADE IN THE INCOME OF THE ASSESSEE AS SHORT TERM CAPITAL GAIN DESERVES TO BE DELETED. 3.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE ARE OF THE VIEW THAT CERTIFICATE OF TEHSILDAR FILED BY THE ASSESSEE ALONGWITH ADDENDUM NEEDS TO BE EXAMINED IN ORDER TO DETERMINE THE CLAIM OF THE APPELLANT THAT THE SUBJECT AGRICULTURAL LAND WA S BEYOND 8 KMS OF THE MUNICIPAL LIMIT. GIVEN THAT THE SAID CERTIFICATE O F TEHSILDAR ALONGWITH ADDENDUM HAS NOT BEEN EXAMINED BY THE LOWER AUTHORI TIES, IN THE INTEREST OF JUSTICE AND FAIR PLAY, THE MATTER IS REMANDED BACK TO THE FILE OF THE AO TO EXAMINE THE ISSUE A FRESH AFTER CONSIDERING THE CER TIFICATE OF TEHSILDAR FILED BY THE ASSESSEE ALONGWITH ADDENDUM AFTER PROVIDING APP ROPRIATE OPPORTUNITY TO THE APPELLANT. ACCORDINGLY THE GROUND OF THE ASSES SEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NOS. 754 & 780/JP/14 SHRI JAGDISH PRASAD SONI VS. JCIT, RANGE-1, JAIPUR 5 IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DI SMISSED AND APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27 /0 5/2016. SD/- SD/- (R.P. TOLANI) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 27/ 05/2016 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI JAGDISH PRASAD SONI, JAIPUR 2. THE RESPONDENT- THE JCIT, RANGE-1, JAIPUR 3. THE CIT(A) I, JAIPUR 4. THE CIT-I, JAIPUR 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 754 & 780 /JP/14 ) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR