ITO, Ward-4, Gurgaon, Gurgaon V. Sukh Lal, S/o Sh. Narain UPO, Gurgaon, Gurgaon

MA 25/DEL/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6918 (ITAT-DELHI)
• Duration Of Justice: 7 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 1997-1998
• Appeal Filed On: 19-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Keywords: Capital asset
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : FRIDAY : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER M.A NO. 25/DEL/2011 (ITA NO.2420/DEL/06) ASSESSMENT YEAR : 1997-98 ITO, WARD 1 (3), GURGAON. VS. SHRI SUKH LAL, S/O SHRI NARAIN, VPO-SUKHRALI, GURGAON. (APPLICANT) (RESPONDENT) APPLICANT BY : DR. B.R.R. KUMAR, DR RESPONDENT BY : NONE O R D E R PER I.P. BANSAL, JUDICIAL MEMBER: VIDE THE AFOREMENTIONED MISCELLANEOUS APPLICATION, THE REVENUE HAS SOUGHT MODIFICATION OF THE ORDER OF THE TRIBUNAL DA TED 23 RD NOVEMBER, 2007 PASSED IN THE AFOREMENTIONED ITA NO.2420/DEL/2006. 2. THE AFOREMENTIONED APPEAL FILED BY THE REVENUE W AS DISMISSED ON THE GROUND THAT LEARNED CIT (A) WAS RIGHT IN HOLDING TH AT THE COMPENSATION RECEIVED BY THE ASSESSEE WITH REGARD TO HIS LAND WAS NOT A C APITAL ASSET WITHIN THE MEANING OF SECTION 2 (14) OF THE INCOME-TAX ACT, 19 61 (THE ACT) AS THE SAID LAND WAS SITUATED AT A DISTANCE OF MORE THAN TWO KILOMET ERS OF THE MUNICIPAL LIMIT. IT WAS FOUND THAT TEHSILDAR HAD GIVEN A CERTIFICATE TO THE ASSESSEE ACCORDING TO WHICH THE DISTANCE OF THE QUESTIONED LAND WAS 2.5 K MS. FROM THE MUNICIPAL LIMIT AND, IN THIS MANNER, THE FINDINGS GIVEN BY LEARNED CIT (A) WAS CONFIRMED AND SUCH FACT WAS ACCEPTED BY THE ASSESSING OFFICER IN THE REMAND REPORT ITSELF. MA NO.25/DEL/2011 2 WHILE HOLDING SO, THE TRIBUNAL HAS TOOK NOTE OF THE FACT THAT THE NOTIFICATION REGULATING THE DISTANCE OF THE LAND FROM MUNICIPAL LIMIT WAS NO.8077(E) DATED 6 TH FEBRUARY, 1973 WHICH HAS FIXED THE DISTANCE FOR THE PURPOSE OF LEVYING THE CAPITAL GAINS AT 2 KMS. AGAINST THE SAID ORDER OF THE TRIB UNAL, THE DEPARTMENT HAD FILED AN APPEAL BEFORE THE HONBLE PUNJAB & HARYANA HIGH COURT WHICH WAS DECIDED BY HONBLE PUNJAB & HARYANA HIGH COURT VIDE ORDER D ATED 17 TH AUGUST, 2009 AND THE RELEVANT OBSERVATIONS OF THEIR LORDSHIPS FROM T HE SAID DECISION ARE AS UNDER:- THE ISSUE BEFORE THE TRIBUNAL WAS WHETHER THE LAN D IN QUESTION WAS COVERED BY THE DEFINITION OF CAPITAL ASSET UNDER SECTION 2 (14) OF THE INCOME TAX ACT, 1961 (FOR SHO RT, THE ACT), WHICH DEPENDS UPON DISTANCE SPECIFIED IN NOTIFICATI ON ISSUED UNDER THE SAID PROVISION. THE TRIBUNAL PROCEEDED ON THE FOOTING THAT REQUIRED DISTANCE WAS TWO KILOMETERS. LEARNED COUNSEL FOR THE REVENUE SUBMITS THAT AS PER NOTIFICATION NO.9447 DATED 6.1.1994, REQUISITE DIST ANCE WAS 8 KILOMETERS, FOR GURGAON. THIS BEING A FACTUAL MATTER NOT BROUGHT TO THE NOT ICE OF THE TRIBUNAL, THE REVENUE HAS REMEDY TO APPROACH THE TR IBUNAL ITSELF, BY WAY OF AN APPROPRIATE APPLICATION. THE APPEAL IS DISPOSED OF ACCORDINGLY. 3. IN PURSUANCE OF AFOREMENTIONED ORDER OF THE HON BLE HIGH COURT, THE REVENUE HAS FILED AN APPLICATION CONTENDING THEREIN THAT THE NOTIFICATION WHICH GOVERNS THE CASE OF THE ASSESSEE IS NO.9774 DATED 6 TH JANUARY, 1994, THEREFORE, THE RELIANCE HAS WRONGLY BEEN PLACED BY ITAT ON NOT IFICATION NO.8077 (E) DATED 6 TH FEBRUARY, 1973, AND, IF THE NOTIFICATION OF 1994 IS TAKEN INTO CONSIDERATION, THEN, THE NOTIFIED AREA IN RESPECT OF THE LAND IN Q UESTION WILL BE THE DISTANCE OF 8 KMS. AS THE LAND OF THE ASSESSEE WHICH HAS BEEN AC QUIRED IS SITUATED AT 2.5 KMS., THE SAME SHOULD BE HELD TO BE A CAPITAL ASSET LIABLE FOR CAPITAL GAINS. 4. AFTER NARRATING THE FACTS AND RELYING UPON THE M ISCELLANEOUS APPLICATION, IT HAS BEEN THE ARGUMENT OF THE LEARNED DR THAT THE TR IBUNAL HAS COMMITTED AN MA NO.25/DEL/2011 3 ERROR WHILE UPHOLDING THE ORDER OF THE CIT (A), AS THE DISTANCE IS FIXED BY 1994 NOTIFICATION AT 8 KMS. HE PLEADED THAT THE DISTANCE OF THE ASSESSEES LAND FROM MUNICIPAL LIMIT BEING 2.5 KMS, IT WAS TO BE HELD TH AT THE LAND WAS A CAPITAL ASSET LIABLE FOR CAPITAL GAINS TAX. HE, THEREFORE, PLEAD ED THAT THE ORDER OF THE TRIBUNAL SHOULD BE MODIFIED ACCORDINGLY. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LEARNED DR AND THE CONTENTS OF THE APPLICATION FILED BY THE REVENUE. IT HAS NEVER BEEN THE CASE OF THE DEPARTMENT EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE CIT (A) THAT THE DISTANCE OF THE LAND WILL BE GOVERNED BY THE NOTIFI CATION ISSUED IN 1994. THE ONLY DISPUTE WAS WHETHER THE LAND IS WITHIN 2 KMS OR MOR E THAN 2 KMS. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS M ISCONCEIVED AS, IN THE IMPUGNED ASSESSMENT ORDER ITSELF, IT HAS BEEN NOTED BY THE ASSESSING OFFICER THAT THE AGRICULTURAL LAND LOCATED AT VILLAGE SUKHR ALI WAS ACQUIRED BY LAO, HUDA, GURGAON IN THE YEAR 1987, THEREFORE, THE DATE OF AC QUISITION OF THE LAND WAS IN THE YEAR 1987. THEREFORE, WHILE DECIDING THE ISSUE THA T WHETHER OR NOT THE RELEVANT LAND IS CAPITAL ASSET HAS TO BE SEEN IN THE LIGHT O F THE NOTIFICATION AS IT EXISTED IN 1987, ACCORDING TO WHICH, THE DISTANCE WAS FIXED AT 2 KMS AND THE ASSESSING OFFICER HIMSELF, IN THE ASSESSMENT ORDER HAS REFER RED TO THE SAID NOTIFICATION AND SUCH OBSERVATIONS OF THE ASSESSING OFFICER HAVE BEE N REPRODUCED BY THE LEARNED CIT (A) IN PARA 12.2 OF THE ORDER OF THE CIT (A). THEREFORE, EVEN DURING THE COURSE OF FIRST APPELLATE PROCEEDINGS IT WAS NOT TH E CASE OF THE ASSESSING OFFICER THAT THE CASE OF THE ASSESSEE IS GOVERNED BY THE NO TIFICATION OF 1994. THE DEPARTMENT, IN AN APPLICATION FILED U/S 254 (2), CA NNOT TAKE AN ENTIRELY DIFFERENT PLEA WHICH WAS NOT EVEN TAKEN BY THE ASSESSING OFFI CER OR IT WAS NOT SUBJECT MATTER OF DISCUSSION BEFORE CIT (A) OR BEFORE THE T RIBUNAL. THEREFORE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE HAS NO MERITS AND HAS TO BE DISMISSED AND IS ACCORDINGLY DISMISSED. MA NO.25/DEL/2011 4 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED IN THE AFOREMENTIONED MANNER. THE ORDER PRONOUNCED IN THE OPEN COURT ON 20.08.20 11. SD/- SD/- [SHAMIM YAHYA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 20.08.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES MA NO.25/DEL/2011 5 DATE OF DICTATION 05.08.2011 DATE OF PRESENTATION OF THE DRAFT ORDER TO THE MEMBER 08.08.2011 DATE OF RETURN FROM THE BENCH AFTER PRONOUNCEMENT &SIGNING DATE OF DISPATCH OF THE ORDER TO THE BENCH