POOJA AGARWAL, Jaipur V. ACIT, Jaipur

ITA 927/JPR/2012

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0088 (ITAT-JAIPUR)
• Duration Of Justice: 6 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 19-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B K GUPTA CIT DHK
• Keywords: Capital asset; Question of law; Corroborative evidences; Set aside

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH B, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,O A JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 927/JP/2012 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2008-09. MS POOJA AGARWAL, D-5A, MEERA MARG, BANI PARK, JAIPUR. CUKE VS. THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-3, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AFRPA 2680 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 84/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2008-09. THE INCOME TAX OFFICER, WARD 3(2), JAIPUR. CUKE VS. MS POOJA AGARWAL, D-5A, MEERA MARG, BANI PARK, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AFRPA 2680 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI PRAVEEN SARASWAT (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI B.K. GUPTA (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 28/11/2019. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 02/12/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, J.M. THESE TWO CROSS APPEALS BY THE ASSESSEE AND REVENU E ARE DIRECTED AGAINST THE ORDER DATED 07.11.2012 OF LD. CIT (A) FOR THE A SSESSMENT YEAR 2008-09. EARLIER, THIS TRIBUNAL VIDE COMPOSITE ORDER DATED 31 ST JANUARY, 2014 DISPOSED OFF THE APPEAL 2 ITA NOS. 927/JP/2012 & 84/JP/2013 MS POOJA AGARSAL, JAIPUR. OF THE ASSESSEE IN ITA NO. 927/JP/2012 AND CROSS AP PEAL OF THE REVENUE IN ITA NO. 84/JP/2013. THE APPEAL OF THE ASSESSEE WAS ALLOWED AND THE APPEAL OF THE REVENUE WAS DISMISSED BY THE TRIBUNAL. THE REVENUE CHALLEN GED THE SAID COMPOSITE ORDER OF THE TRIBUNAL BEFORE THE HONBLE JURISDICTIONAL HIGH COURT. THE HONBLE HIGH COURT VIDE JUDGMENT DATED 08.11.2017 DISPOSED OFF THE APP EAL OF THE REVENUE IN DBIT APPEAL NO. 28/2014. THE QUESTION OF LAW AS FRAMED BY THE HONBLE HIGH COURT HAVE BEEN REPRODUCED IN PARA 2 OF THE JUDGMENT AS UNDER :- (I) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE TRIBUNAL WAS JUSTIFIED IN REVERSING THE FINDING OF ASSESSING OFFICER AS WELL AS CIT (A) AND HOLDING THE AGRICULTURAL LAND AS EXE MPTED UNDER SECTION 2(14)(III)(B) OF THE ACT, DESPITE THE FACT THAT THE SAID LAND WAS FALLING WITHIN 8 KMS OF THE MUNICIPAL LIMI T AND THEREBY DELETING AN ADDITION OF RS. 6,38,40,000/-. (II) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE TRIBUNAL AS WELL AS THE CIT (A) WERE JUSTIFIED IN DELETING T HE ADDITION OF RS. 14,30,009/- WHICH WAS MADE BY THE ASSESSING OFF ICER DISALLOWING 25% OF THE EXPENDITURE CLAIMED BY THE A SSESSEE AS NEITHER ANY DOCUMENTS NOR ANY DETAILS WERE SUBMITTE D BY THE ASSESSEE IN SUPPORT OF THE SAID EXPENDITURE ? 2. WHILE DISPOSING OFF THESE TWO QUESTIONS OF LAW, THE HONBLE HIGH COURT HAS SET ASIDE THE MATTER TO THE RECORD OF THIS TRIBUNAL AS UNDER :- 3. TAKING INTO CONSIDERATION THE EVIDENCE WHICH H AS COME ON RECORD, IT SEEMS THAT THERE ARE SUBSEQUENT DEVELOPM ENT WHICH IS REQUIRED TO BE RECONSIDERED BY THE TRIBUNAL. 4. IN THAT VIEW OF THE MATTER, WITH A VIEW TO VERIF Y WHETHER THE DISTANCE OF THE LAND IN QUESTION IS MORE THAN 8 KIL OMETER ON THE OUTSKIRTS OF JAIPUR CITY IS REQUIRED TO BE RE-VERIF IED BY THE TRIBUNAL TAKING INTO CONSIDERATION, THE NOTIFICATIO N DT. 6 TH JANUARY, 1994 ISSUED BY THE INCOME TAX DEPARTMENT A ND JUDGMENT OF THIS COURT IN TAX APPEAL NO. 75/2014. T HE TRIBUNAL WILL CONSIDER BOTH THE NOTIFICATION AND JUDGMENT AN D IF REQUIRED MAKE A REQUEST TO REVENUE AUTHORITY NOT BELOW DEPUT Y 3 ITA NOS. 927/JP/2012 & 84/JP/2013 MS POOJA AGARSAL, JAIPUR. COLLECTOR TO VERIFY THE DISTANCE FROM THE OUTSKIRTS OF JAIPUR TO THE LAND IN QUESTION. 5. WITH THE ABOVE DIRECTION, THE MATTER IS REMITTED BACK TO THE TRIBUNAL ONLY WITH A VIEW TO VERIFY THE DISTANCE. 6. IT IS MADE CLEAR THAT WE HAVE NOT EXPRESSED ANY OPINION ON MERITS AND IT WILL BE OPEN FOR THE TRIBUNAL TO RECO NSIDER THE SAME AND TAKE AN INDEPENDENT VIEW AFTER TAKING INTO ACCOUNT THE NEW FACTS AFTER VERIFICATION AND IT WILL NOT BE ING INFLUENCED BY THE DECISION OF THIS COURT. THUS THE HONBLE HIGH COURT HAS REMANDED THE MATTER ON THE POINT OF CONSIDERING THE DISTANCE OF LAND IN QUESTION FROM THE MUNICIPAL LIMITS OF JAIPUR CITY IN ACCORDANCE WITH THE NOTIFICATION DATED 6 TH JANUARY, 1994. CONSEQUENTLY THESE APPEALS WERE PLACED BEFORE THIS TRIBUNAL FOR HEARING AND ADJUDIC ATION IN TERMS OF THE DIRECTIONS OF THE HONBLE HIGH COURT VIDE JUDGMENT DATED 08.11.20 17. THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT THE AO HAS TAKEN THE DI STANCE FROM MUNICIPAL LIMITS TO THE LAND IN QUESTION AT 3.50 KMS AS PER THE REPORT OF THE INSPECTOR AND, THEREFORE, THE SAID REPORT IS NOT BASED ON ACTUAL DISTANCE AS ON THE DATE OF NOTIFICATION DATED 06.01.1994. HE HAS FURTHER CONTENDED THAT THE SAME INSPECTOR HAS ALSO REPORTED THE DISTANCE AS 7 KMS IN HIS SUBSEQUENT REPORT DATE D 07.02.2012 WHICH WAS SUBMITTED TO THE LD. CIT (A). THEREFORE, THERE IS AN INCONSISTENCY IN THE MATERIAL ON THE BASIS OF WHICH THE AUTHORITIES BELOW HAVE ARRIV ED TO THE CONCLUSION THAT THE DISTANCE OF THE LAND FROM THE MUNICIPAL LIMITS OF J AIPUR CITY IS WITHIN 8 KMS AND CONSEQUENTLY THE LAND IN QUESTION IS FALLING IN THE DEFINITION OF CAPITAL ASSET AS PER THE PROVISIONS OF SECTION 2(14)(III)(B) OF THE IT A CT. THUS THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT WHEN THE DISTANCE OF TH E LAND IS REPORTED BY THE INSPECTOR AS 7 KMS AS ON THE DATE OF THE SAID REPOR T, THEN IT WILL BE BEYOND 8 KMS IF THE SAME IS TAKEN AS ON THE DATE OF NOTIFICATION ON 06.01.1994. ACCORDINGLY, THE LD. 4 ITA NOS. 927/JP/2012 & 84/JP/2013 MS POOJA AGARSAL, JAIPUR. A/R HAS SUBMITTED THAT THE LAND IN QUESTION DOES NO T FALL IN THE DEFINITION OF CAPITAL ASSET AND THEREBY NO CAPITAL GAIN IS ASSESSABLE TO TAX. 3. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THE LAND IN QUESTION IS OTHERWISE NOT AN AGRICULTURAL LAND AS HELD BY THE A O. HE HAS REFERRED TO THE FINDING OF THE AO IN PARA 2 OF THE ASSESSMENT ORDER AND SUB MITTED THAT THE ASSESSEE HAS SOLD THE LAND TO QUALITY RESORTS & HOSPITALITY LTD. , MUMBAI WHICH HAS RESULTED SHORT TERM CAPITAL GAIN AND HENCE WHEN THE LAND WAS SOLD FOR NON AGRICULTURAL PURPOSES, THEN IT IS OTHERWISE NO MORE AN AGRICULTURAL LAND. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION OF THIS TRIBUNAL IN CA SE OF RAKESH GARG VS. ITO, 98 TAXMANN.COM 360 (JAIPUR TRIB.). THUS THE LD. D/R H AS SUBMITTED THAT THE LAND IS OTHERWISE NOT AN AGRICULTURAL LAND IRRESPECTIVE OF THE DISTANCE FROM THE MUNICIPAL LIMITS. HE HAS ALSO POINTED OUT THAT EVEN OTHERWIS E THE DISTANCE HAS TO BE MEASURED FROM THE MUNICIPAL LIMITS TO THE AREA IN WHICH THE LAND IN QUESTION IS SITUATED AND NOT THE DISTANCE FROM THE MUNICIPAL LIMITS TO THE PARTI CULAR PIECE OF LAND. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE HONBLE JURISDICTIONAL HIGH COURT HAS REMANDED THE MATTER FOR CONSIDERING THE DISTANCE FROM THE MUNICIPAL LIMITS TO THE LAND IN QUESTION AS ON 06.01.1994. THE ADJUDICATION OF THE ISSUE REQUIRES A PROPER VERIFICATION AND SUPPORTING EVIDENCE WHICH HAS NOT BEEN PROVIDED BY THE PARTIES BEFORE US. ACCORDINGLY, WE CANNOT DECIDE THIS ISSUE CONCLUSIVE LY IN THE ABSENCE OF THE NECESSARY EVIDENCE ON THIS POINT. HENCE THIS MATTER IS SET ASIDE TO THE RECORD OF THE AO TO CONDUCT A PROPER ENQUIRY AND ALSO CONSIDER TH E EVIDENCE, IF ANY, TO BE FILED BY THE ASSESSEE IN SUPPORT OF HIS CLAIM THAT THE DISTA NCE FROM THE MUNICIPAL LIMITS TO THE AREA IN WHICH THE LAND IS SITUATED IS LESS THAN 8 K MS AS ON 06.01.1994. 5 ITA NOS. 927/JP/2012 & 84/JP/2013 MS POOJA AGARSAL, JAIPUR. 5. AS REGARD THE DEPARTMENTS APPEAL ON WHICH THE Q UESTION OF LAW NO. (II) WAS FRAMED BY THE HONBLE HIGH COURT, WE FIND THAT THIS IS ONLY A CONSEQUENTIAL ISSUE ARISES WHEN THE LAND IN QUESTION IS TREATED AS CAPI TAL ASSET AND NOT AS AGRICULTURAL LAND EXCLUDED FROM THE DEFINITION OF CAPITAL ASSET AS PER THE PROVISIONS OF SECTION 2(14)(III)(B) OF THE ACT. THEREFORE, ONCE THE MAIN ISSUE INVOLVED IN THE ASSESSEES APPEAL IS SET ASIDE TO THE RECORD OF THE AO, THIS I SSUE IS ALSO CONSEQUENTLY SET ASIDE TO THE RECORD OF THE AO FOR DECIDING AFRESH AFTER G IVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. BEFORE PARTING WITH THE MATTER, WE MAY CLARIFY T HAT THE HONBLE HIGH COURT HAS SPECIFICALLY MADE IT CLEAR THAT NO OPINION HAS BEEN EXPRESSED ON THE MERITS OF THE CASE AND IT IS OPEN FOR THE TRIBUNAL TO CONSIDE R THE SAME AND TAKE AN INDEPENDENT VIEW AFTER TAKING INTO ACCOUNT NEW FACT S AFTER VERIFICATION AND IT WILL NOT BEING INFLUENCED BY THE DECISION OF THE HIGH COURT. THEREFORE, THE AO IS ALSO DIRECTED TO DECIDE THE ISSUE AFRESH AS PER THE LAW AND FACTS EMERGING FROM THE INVESTIGATION AND ENQUIRY TO BE CONDUCTED ON THIS P OINT. HENCE BOTH THE APPEALS ARE SET ASIDE TO THE RECORD OF THE AO FOR FRESH ADJUDIC ATION IN THE ABOVE TERMS. 7. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02/12/2019. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKWO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 02/12/2019. DAS/ 6 ITA NOS. 927/JP/2012 & 84/JP/2013 MS POOJA AGARSAL, JAIPUR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-MS POOJA AGARWAL, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT-THE ACIT, CIRCLE-3/ITO WARD 3(2), JA IPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 927/JP/2012 & 84/JP/2013} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR