ITO, Jaipur V. CHANDA LAL S/O KANARAM, Jaipur

MA 10/JPR/2012

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2100 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 02-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Keywords: Capital asset
• Section: 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) M.A. NO.10/JP/2012 (ARISING OUT OF ITA NO. 758/JP/2010 ASSESSMENT YEAR : 2006-07 THE ITO VS. SHRI CHANDA LAL S/O SHRI KANARAM WARD- 7(2) VILL. SANJHARIA, POST THIKARIYA JAIPUR TEHSIL. SANGANER, JAIPUR (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI D.C. SHARMA ASSESSEE BY : NONE DATE OF HEARING: 13-06-2014 DATE OF PRONOUNCEMENT: 11-07-2014 ORDER PER R.P. TOLANI, JM THE REVENUE HAS FILED A MISCELLANEOUS APPLICATION U/S 254 (2) OF THE ACT AGAINST THE ORDER OF THE TRIBUNAL DATED 25- 3-2011 FOR THE ASSESSMENT YEAR 2006-07 CONTENDING THAT FROM THE IMPUGNED ITAT ORDER FOLLOWING MISTAKE IS APPARENT FROM THE RECORD WHICH DESERVES TO BE RECTIFIED U/S 254(2) OF THE ACT. 1. ON GROUND NO.1, THE HON'BLE ITAT IN PARA 5 AT PAGE HAS STATED THAT THE CIT (A) HAS ALSO ASCERTAIN ED THAT THE LAND IS SITUATED BEYOND 8 KMS OF MUNICIPAL LIMIT WH EREAS , CIT (A) IN PARA 2 AT PAGE NO. 4 HAS HELD THE LAND T O BE WITHIN 8 KMS OF MUNICIPAL LIMITS. 2 2.1 NONE APPEARED ON BEHALF OF THE ASSESSEE RESPOND ENT DESPITE NOTICE. THEREFORE, THE M.A, IS DECIDED EX-PARTE QUA THE ASS ESSEE. 2.2 THE BRIEF FACTS OF THE CASE ARE THAT THE AO GOT INFORMATION THAT ASSESSEE HAD SOLD AGRICULTURAL LAND ALONGWITH THIS BROTHER AMOUNTING TO RS. 2,41,20,000/-. NOTICE U/S 142(1)(I) OF THE ACT DAT ED 15-11-2006 WAS ISSUED TO THE ASSESSEE TO FILE THE RETURN OF INCOME WHICH WAS NOT FILED BY THE ASSESSEE. THEREAFTER, THE AO PROCEEDED TO FRAME THE ASSESSMENT AND CALLED UPON THE ASSESSEE ON SEVERAL OCCASIONS TO FILE THE RETURN OF INCOME WHICH WERE NOT COMPLIED WITH AND IT RESULTED INTO FRAMING OF THE ASSESSMENT U/S 144 OF THE ACT ON ENTIRE AMOUNT OF RS. 1,21,10,000/ -. THE AO TREATED THE ASSESSEE'S AMOUNT AS INCOME FROM OTHER SOURCES AND ASSESSED ACCORDINGLY. 2.3 AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEF ORE THE LD. CIT(A) WHERE ALSO NOBODY ATTENDED THE PROCEEDING WHICH RES ULTED INTO EX-PARTE ORDER. HOWEVER, BEFORE THE LD. CIT(A), SOME ADDITIO NAL GROUNDS AND WRITTEN SUBMISSION WERE FILED CONTENDING THAT AGRICULTURAL LANDS WERE SITUATED BEYOND 8 KM OF MUNICIPAL LIMIT WHICH WAS SENT TO A O FOR HIS REMAND REPORT. AFTER CONSIDERING THE REMAND REPORT AND OTH ER MATERIALS, THE LD. CIT(A) HELD THAT AS PER RAJASTHAN GAZETTE NOTIFICAT ION, THE IMPUGNED LAND WAS WITHIN 8 KM OF JAIPUR MUNICIPAL CORPORATION AND THIS BEING SO, THE LAND AMOUNTED TO CAPITAL ASSETS AND ITS SALE WAS LI ABLE FOR CAPITAL GAINS. IN 3 VIEW THEREOF, THE AO WAS DIRECTED THAT COST OF ACQU ISITION OF THE AGRICULTURAL LAND AS ON 01-04-1981 SHOULD BE ADOPTED AND AFTER G IVING INFLATION COST OF INDEX, PROPER LONG TERM CAPITAL GAINS MAY BE WORKED OUT AND TAXED. THUS, THE ASSESSEE'S APPEAL WAS PARTLY ALLOWED BY THE LD. CIT(A). 2.4 AGGRIEVED AGAINST THE ORDER OF THE LD. CIT(A), THE REVENUE FILED AN APPEAL CHALLENGING THE ADMISSION OF ADDITIONAL EVI DENCE AND TREATING THE UNEXPLAINED DEPOSITS AS LONG TERM CAPITAL GAIN. TH E ITAT, JAIPUR BENCH CONFIRMED THE ORDER OF THE LD. CIT(A) AND DISMISSED THE APPEAL OF THE REVENUE BY OBSERVING AS UNDER:- 5. AFTER CONSIDERING THE COMMENTS OF THE AO AS WE LL AS DETAILS FILED ON BEHALF OF THE ASSESSEE, THE LD. CIT(A) FOUND THAT THE DETAILED FILED BEFORE HIM GOES TO THE ROOT OF THE CASE, THEREFORE, THEY SHOULD BE ADMITTED AND ACCORDINGLY THEY WERE ADMITTED. AFTER CONSIDERING THE DETAILS, THE LD. CI T(A) ASCERTAINED THAT THERE IS NO DISPUTE THAT THE BROTH ER OF THE ASSESSEE HAS SOLD THE AGRICULTURAL LAND AT RS. 2,41 ,20,000/- IN WHICH THE ASSESSEE HAS 50% SHARE. THUS 50% SHARE WA S DEPOSITED IN THE BANK. THE LD. CIT(A) HAS ALSO ASCE RTAINED THAT THE LAND IN QUESTION IS SITUATED BEYOND 8 KM OF MUN ICIPAL LIMIT. THEREFORE, THE SAME IS CAPITAL ASSET IN TERM S OF SECTION 2(14)(III)(B) OF THE ACT. ACCORDINGLY, IT WAS HELD THAT THE ADDITION OF RS. 1,21,10,000/- MADE BY AO WAS NOT JU STIFIED. ACCORDINGLY, THE SAME WAS DELETED. 2.5 WE HAVE HEARD THE LD. DR'S SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS MENTIONED ABOVE, T HE GRIEVANCE IS TO THE EXTENT THAT ITAT HAS UPHELD THE FINDINGS OF THE FAC T GIVEN BY THE LD. 4 CIT(A).THE FINDINGS OF THE FACT GIVEN BY THE LD. CI T(A) IS TO THE EFFECT THAT IMPUGNED LAND WAS SITUATED WITHIN 8 KM OF MUNICIPAL LIMIT OF RAJASTHAN GOVT. GAZETTE. THEREFORE, IT WAS AN ASSET LIABLE FO R CAPITAL GAIN TAX. THE ITAT WHILE RECORDING THE FINDINGS OF THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE LAND IN QUESTIN IS SITUATED BEYOND 8 KM AN D THE LD. CIT(A) HAS ASCERTAINED THAT THE LAND IN QUESTION IS SITUATED B EYOND 8 KM OF MUNICIPAL LIMITS. THEREFORE, IT IS A CAPITAL ASSET. THE FINDI NGS OF THE ITAT IS MANIFESTLY WRONG AS THE FINDINGS OF THE RECORDED BY THE LD. CIT(A) IS THAT THE LAND IS SITUATED WITHIN 8KM OF JAIPUR MUNICIPAL COR PORATION. THEREFORE, THIS MISTAKE OF THE ITAT IS TO BE CORRECTED. 2.6 AFTER CONSIDERING THE MATERIALS AVAILABLE ON RE CORD, WE FIND MERIT IN THE CONTENTS OF THE MISCELLANEOUS APPLICATION. THER EFORE, PARA 5 MENTIONED ABOVE IS RECTIFIED WHICH SHOULD BE READ NOW AS UNDE R:- 5. AFTER CONSIDERING THE COMMENTS OF THE AO AS WE LL AS DETAILS FILED ON BEHALF OF THE ASSESSEE, THE LD. CIT(A) FOUND THAT THE DETAILED FILED BEFORE HIM GOES TO THE ROOT OF THE CASE, THEREFORE, THEY SHOULD BE ADMITTED AND ACCORDINGLY THEY WERE ADMITTED. AFTER CONSIDERING THE DETAILS, THE LD. CI T(A) ASCERTAINED THAT THERE IS NO DISPUTE THAT THE BROTH ER OF THE ASSESSEE HAS SOLD THE AGRICULTURAL LAND AT RS. 2,41 ,20,000/- IN WHICH THE ASSESSEE HAS 50% SHARE. THUS 50% SHARE WA S DEPOSITED IN THE BANK. THE LD. CIT(A) HAS ALSO ASCE RTAINED THAT 5 THE LAND IN QUESTION IS SITUATED WITHIN 8 KM OF MUN ICIPAL LIMIT. THEREFORE, THE SAME IS CAPITAL ASSET IN TERMS OF SE CTION 2(14)(III)(B) OF THE ACT. ACCORDINGLY, IT WAS HELD THAT THE ADDITION OF RS. 1,21,10,000/- MADE BY AO WAS NOT JU STIFIED. ACCORDINGLY, THE SAME WAS TO BE HELD CAPITAL GAINS BY THE LD. CIT(A). SINCE THIS RECTIFICATION DOES NOT LEAD TO ANY CHANG E IN THE RESULT OF THE APPEAL, THEREFORE, THE RESULT IN PARA 7 OF THE AP PEAL SHALL REMAIN THE SAME . ACCORDINGLY, THE MISCELLANEOUS APPLICATION OF THE R EVENUE IS ALLOWED. SD/- SD/- (T.R. MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 11 TH JULY, 2014 *MISHRA COPY FORWARDED TO:- 1. THE ITO, WARD- 7 (2), JAIPUR 2. SHRI , CHANDA LAL, JAIPUR 3. THE LD. CIT 4. THE LD. CIT(A), JAIPUR 5..THE LD. DR 6.THE GUARD FILE (MA NO. 10/JP/2012) BY ORDER AR ITAT, JAIPUR 6