Bhisham Singh Yadav, Ghaziabad V. ITO, Ward- 5(1), Ghaziabad

ITA 885/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1793 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Capital asset; Cost of acquisition
• Section: 147; 148; 144

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC - F : NEW DELHI BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 885/DEL/1018 (ASSESSMENT YEAR: 2009 - 10 ) BHISHAM SINGH YADAV, C/O SHRI GIRWER SINGH, H. NO. 68, AHATA MALKHAN, RAILWAY ROAD, BAJARI, GHAZIABAD, UTTAR PRADESH. VS. ITO, WARD - 5(1), GHAZIABAD (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY: SHRI S. L. ANURAGI, SR. DR DATE OF HEARING 21/08 / 2018 DATE OF PRONOUNCEMENT 2 0 / 11 / 2018 O R D E R PER PRASHANT MAHARISHI, A. M. 01. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 2, NOIDA DATED 20/12/2017 FOR ASSESSMENT YEAR 2009 10 RAISING SEVERAL GROUNDS OF APPEAL. THE LEARNED COMMISSIONER OF INCOME TAX APPEALS HAS CONFIRMED THE ORDER OF THE LEARNED ASSESSING OFFICER WHEREIN THE ADDITION OF RS . 4687500/ - BEING ONE HALF SHARE OF THE ASSESSEE ON SALE OF PROPERTY WAS CHARGED TO CAPITAL GAIN BY THE LEARNED ASSESSING OFFICER VIDE ORDER DATED 8/11/2016 U/S 147 READ WITH SECTION 144 OF THE INCOME TAX ACT 1961 FOR THAT YEAR. 02. THE LEARNED ASSESSING OFFICER RECEIVED AIR INFORMATION IN CASE OF THE ASSESSEE THAT HE HAS SOLD AN IMMOVABLE PROPERTY FOR 9375000/ JOINTLY WITH SRI JAIVEER SINGH DURING THE FINANCIAL YEAR 2008 09 BUT HAS NOT PAID TAXES ON CAPITAL GAINS ARI SING ON THE SAID TRANSACTION. THEREFORE, THE CASE OF THE ASSESSEE WAS REOP ENED U/S 147 AND NOTICE UNDER SECTION 148 WAS PAGE | 2 ISSUED ON 18/3/2016 . FURTHER THE NOTICE UNDER SECTION 142 (1) OF THE ACT WAS ALSO ISSUED TO THE ASSESSEE REQUIRING HIM TO FILE RETURN OF INCOME BUT ASSESSEE HAS NEITHER FILED A RETURN OF INCOME NOR MADE ANY COM PLIANCE OF NOTICE . T HEREFORE, THE LEARNED ASSESSING OFFICER PASSED IN ASSESSMENT ORDER ON 8/11/2016 ASSESSING THE TOTAL INCOME OF THE ASSESSEE AT 4 687500 HOLDING THAT THE ASSESSEE HAS EARNED THE SHORT - TERM CAPITAL GAIN ON THE SALE OF THE ABOVE PROPERTY. 03. THE ASSESSEE AGGRIEVED WITH THE ORDER OF THE AO PREFERRED AN APPEAL BEFORE THE LEARNED CIT (A) WHO ALSO CONFIRMED THE ACTION OF THE LEARNED ASSESSING OFFICER HOWEVER, HE GRANTED THE DEDUCTION OF THE COST OF ACQUISITION AFTER INDEXING. 04. THE BRIEF FACT SHOWS THAT ASSESSEE SOLD ONE PROPERTY ON 31/7/2008 AND SALE CONSIDERATION WAS RECEIVED OF 24.40 LAKHS WHEREAS THE STAMP VALUE OF THE PROPERTY WAS AT 9 375000/ . THE ASSESSEE SUBMITTED THAT THE LAND SOLD BY THE ASSESSEE IS SITUATED IN VILLAGE DARYAPUR BUZURG AND IS OUT OF THE LIMITS OF NAGAR PALIKA GAJURAULA , DIST AMROHA . THE MAIN CONTENTION OF THE ASSESSEE IS THAT THE IMPUGNED LAND IS SITUATED BEYOND 8 KM FROM THE OUTER LIMITS OF NEAREST MUNICIPAL CORP . THEREFORE SUCH LAND WAS NOT A CAPITAL ASSET WITHIN THE M EANING OF SECTION 2 (14) (III) (B) OF THE ACT . THE ASSESSEE RELIED ON THE CERTIFICATE DATED 24/10/2017 ISSUED BY THE EXECUTIVE OFFICER, NAGAR PALIKA PARISHAD GAUJRAULA . THE LEARNED COMMISSIONER OF INCOME TAX FOUND THAT THE IMPUGNED MUNICIPAL CORP HAD A POP ULATION OF 39826 AND THE LAND IS SITUATED 2.9 KM AWAY FROM THE OUTER LIMIT OF THAT CORPORATION . THEREFORE, IT WAS HELD THAT THE IMPUGNED LAND SOLD IS A CAPITAL ASSET AS MEASURED BY GOOGLE MAPS . THEREFORE THE SIMPLE ISSUE IN APPEAL IS THAT WHETHER THE DIST ANCE FROM THE OUTER LIMIT OF MUNICIPAL CORPORATION IS PAGE | 3 REQUIRED TO BE DETERMINED FOR ASSESSMENT YEAR 2009 10 AS PER GOOGLE MAPS OR NEAREST ROAD DISTANCE AND FURTHER WHETHER THE IMPUGNED LAND HEELS A CAPITAL ASSET OR NOT. WE HAVE CAREFULLY PERUSE D THE NO TIFICATION NUMBER NOTIFICATION NO. [SO 9447] (FILE NO. 164/3/87 - ITA.I)], DATED. 6 - 1 - 1994 WHEREIN IT SERIAL NUMBER 21 IN STATE OF UTTAR PRADESH GAUJRAULA IS NOT MENTIONED . FURTHER, IT WAS NOT SHOWN TO US THAT THE LAND IS SITUATED IN THE VICINITY OF THE SPECIFIED AREA STATED IN THAT NOTIFICATION . IN VIEW OF THIS WE ARE OF THE OPINION THAT LAND IS NOT SITUATED IN THE SPECIFIED AREA ACCORDING TO THAT NOTIFICATION WHICH IS APPLICABLE FO R THE PURPOSE OF DETERMINATION OF THE CHARACTER OF THE LAND FOR THE PURPOSE OF TAXABILITY UNDER SECTION 2 (14) (III) (B) OF THE ACT AS CAPITAL ASSET . IN ABSENCE OF THIS, THE GAINS ARISING TO THE ASSESSEE IS NOT CHARGEABLE TO TAX UNDER THE HEAD CAPITAL GAIN . THEREFORE, WE REVERSE THE FINDING OF THE LOWER AUTHORITIES AND HOLD THAT IMPUGNED LAND SOLD BY THE ASSESSEE IS NOT A CAPITAL ASSET BEING LAND SITUATED BEYOND THE SPECIFIED LIMIT HENCE A GAIN ARISING ON SALE OF THAT IS NOT CHARGEABLE TO TAX UNDER THE HEAD CAPITAL GAINS . ACCORDINGLY, GROUND NUMBER (A) OF THE APPEAL OF THE ASSESSEE IS ALLOWED. 05. ALL OTHER GROUNDS ARE CONSEQUENTIALLY NATURE AND THEREFORE THERE NOT ADJUDICATED. 06. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 0 / 11 / 2018 . - SD/ - - SD/ - ( AMIT SHUKLA ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 0 / 11 / 2018 A K KEOT COPY FORWARDED TO PAGE | 4 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI