SMT. VINITA AGARWAL, Jaipur V. ACIT, Jaipur

MA 9/JPR/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3015 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 30-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS NEENA JEPH
• Assessee Lawyers: S L PODDAR
• Keywords: Capital asset
• Section: 45(5)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM M.A. NO. 09/JP/2015 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 VINITA AGARWAL PLOT NO. 18, BHARAT MATA PATH, JAMNA LAL BAJAJ MARG, C-SCHEME, JAIPUR. CUKE VS. D.C.I.T., CIRCLE-6, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: AEZPA 6541 D VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI S.L. PODDAR (ADV) JKTLO DH VKSJ LS @ REVENUE BY : MRS. NEENA JEPH (JCIT). LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 22/05/2015 ?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 22/05/2015 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THE ASSESSEE HAS FILED THIS M.A. AGAINST THE ORDER OF THIS BENCH OF ITAT, JAIPUR IN ITA NO. 660/JP/2012 & C.O. NO. 57/JP /2012 FOR A.Y. 2009- 10, WHICH WAS PASSED ON 09/01/2015. 2. THE ASSESSEE THROUGH HER M.A. HAS SUBMITTED AS UN DER:- IN THIS CASE THE COMPULSORY ACQUISITION IS OF AGRI CULTURAL LAND WHICH WAS SITUATED BEYOND 8 KM OF THE MUNICIPAL LIMITS. AL THOUGH THIS ISSUE IS NOT MA 09/JP/2015 VINITA AGARWAL VS. DCIT 2 DISCUSSED BY THE LEARNED ASSESSING OFFICER IN THE A SSESSMENT ORDER BUT THE SAME IS DISCUSSED BY THE LEARNED CIT(A) WHO HAS GIVEN A CLEAR FINDING ON PAGE NO. 21 PARA 3.4 OF THE APPELLATE ORDER QUOTED BELOW:- FURTHER WITHOUT PREJUDICE TO THE ABOVE FINDINGS TH E ASSESSING OFFICER HAD ALSO ERRED IN TAXING THE CAPITAL GAINS U/S 45(5) OF THE INCOME TAX ACT, 1961 BECAUSE THE AGRICULTURAL LAND WAS NOT A CAPITA L ASSET. THE TEHSILDAR OF TEHSIL SANGANER HAD ISSUED A CERTIFICATE DATED 2 3/03/2012 CERTIFYING THAT KHASRA NO. 433, 434, 437, 432/2873, 436/2871 A ND 433/2872 WERE SITUATED IN VILLAGE KHATWARA WHICH WAS BEYOND 8 KM FROM THE MUNICIPAL LIMIT. HENCE THE AGRICULTURAL AND IN QUESTION WAS N OT A CAPITAL ASSET AS PER THE PROVISIONS OF SECTION 2(14). THEREFORE, THE PRO VISIONS OF SECTION 45(5) COULD NOT HAVE BEEN INVOKED IN THE CASE OF APPELLAN T. THE GROUNDS OF APPEAL ARE ACCORDINGLY ALLOWED. THE ASSESSEE ALSO AGITATED THE ISSUE BEFORE THE HON BLE ITAT IN THE SUBMISSIONS. THE RELEVANT PART OF WHICH IS QUOTED BE LOW:- IT IS FURTHER SUBMITTED THAT OTHERWISE ALSO THE AGR ICULTURAL LAND IN QUESTION WAS NOT A CAPITAL ASSET BEING SITUATE BEYO ND 8 KM FROM THE MUNICIPAL LIMIT AS PER THE CERTIFICATE DATED 23/03/ 2012 ISSUED BY TEHSILDAR SANGANER. THE LEARNED CIT(A) THEREFORE HA S HELD THAT IN VIEW OF THIS POSITION PROVISIONS OF SECTION 45(5) COULD NOT HAVE BEEN INVOKED IN THE CASE OF THE APPELLANT. THE LEARNED CIT(A) HAS D ISCUSSED THESE FACTS IN PARA 3.4 OF THE APPELLATE ORDER. THE HONBLE ITAT HAS FURTHER ERRED IN HOLDING THAT TH E ISSUE REGARDING LAND BEING SITUATED BEYOND 8 KM FROM THE MUNICIPAL LIMIT S WAS NOT AGITATED BEFORE THE LEARNED ASSESSING OFFICER AND HENCE THE LEARNED CIT(A) WAS NOT JUSTIFIED IN GIVING A FINDING IN THIS REGARD THAT T HE LAND WAS SITUATED BEYOND 8 KM FROM THE MUNICIPAL LIMITS ON THE BASIS OF CERT IFICATE DATED 23/03/2012 FROM THE TEHSILDAR SANGANER. THE HONBLE ITAT HAS FUR THER OBSERVED THAT THIS TECHNICAL GROUND WAS ALSO NOT RAISED BEFORE THE M. IN THIS REGARD IT IS SUFFICIENT TO SUBMIT THAT IT IS ESTABLISHED POSITIO N OF LAW THAT ISSUES WHICH MA 09/JP/2015 VINITA AGARWAL VS. DCIT 3 GO TO ROOT OF THE MATTER AND WHICH COULD NOT BE TAK EN UP BEFORE THE LD ASSESSING OFFICER, CAN BE TAKEN UP AT APPELLATE STA GE EITHER BEFORE THE LD CIT(A) OR EVEN BEFORE THE HONBLE ITAT. THEREFORE, EVE N IF THE ISSUE WAS NOT RAISED BEFORE THE LD ASSESSING OFFICER, THE ASS ESSEE WAS STILL JUSTIFIED TO AGITATE THE SAME DURING THE ASSESSMENT PROCEEDINGS BEFORE THE LD CIT(A). IN THESE CIRCUMSTANCES THE HONBLE ITAT HAS ERRED IN HOLDING THAT LD CIT(A) WAS NOT JUSTIFIED THAT THE LAND WAS SITUATE BEY OND 8 KM. THE HONBLE ITAT HAS ALSO INCORRECT IN OBSERVING THAT TH IS ISSUE WAS NOT RAISED BEFORE THEM. THE SUBMISSION OF THE ASSESSEE IS THAT THE VARIOUS HIGH COURTS AND SUPREME COURT HAVE HELD THE HONBLE ITAT IS ALL POW ERFUL IN CONSIDERING ANY ISSUE WHICH EVEN COMES BEFORE THEM OF THE FIRST TIME IF THE SAME GOES TO THE ROOT OF THE MATTER. IN THIS CASE THE NA TURE OF LAND BEING AGRICULTURAL GOES TO THE ROOT OF THE MATTER. THEREF ORE, WHETHER THE MATTER WAS TAKEN UP OR NOT BEFORE THE LD ASSESSING OFFICER/LD CIT(A), THE HONBLE ITAT WAS STILL EMPOWERED TO CONSIDER THE IS SUE AND DECIDE THE SAME. IN THIS REGARD IT IS RELEVANT TO QUOTE THE DE CISION OF THE SUPREME COURT IN THE CASE OF NTPC LTD. VS. CIT 229 ITR 383 (SC). IT IS FURTHER SUBMITTED THAT THE PROVISIONS OF SECT ION 2(47)(III) ARE APPLICABLE IN THE CASE AND NOT 2(47)(I) AS APPLIED BY THE HONBLE ITAT. IT IS CLEAR CUT CASE OF COMPULSORY ACQUISITION OF LAND UN DER THE CENTRAL LAND ACQUISITION ACT 1894 BY URBAN DEVELOPMENT DEPARTMEN T, GOVERNMENT OF RAJASTHAN WHICH IS COVERED UNDER THE PROVISIONS OF S ECTION 2(47)(III) WHICH SPEAK OF THE COMPULSORY ACQUISITION OF LAND. THE HON BLE ITAT ERRED IN APPLYING PROVISIONS OF SECTION 2(47)I). IT IS SUBMI TTED THAT IT IS A CASE WHERE ASSESSEE HAD NO VIOLATION/CHOICE. THE ENTIRE PR OCEEDINGS WERE THRUST UPON HIM. HENCE IT WAS ONLY UNDER THE LAWFUL P ROCEDURE THAT THE SURRENDER OF RIGHTS IN LAND WAS OBTAINED FROM THE AS SESSEE BY THE URBAN DEVELOPMENT DEPARTMENT OF THE GOVERNMENT OF RAJASTH AN FOR PROCESSING MA 09/JP/2015 VINITA AGARWAL VS. DCIT 4 THE MATTER FURTHER WITH REGARD TO ACQUISITION WHICH STOOD COMPLETED ONLY ON 29/11/2007 AS OBSERVED BY THE HONBLE ITAT ON PAG E NO. 27 OF THE ORDER. IN VIEW OF THIS THE ORDER PASSED BY THE HONB LE ITAT DESERVES TO BE RECALLED IN THE INTEREST OF EQUITY AND JUSTICE. THE DECISION OF THE HONBLE ITAT IS REQUIRED WITH REFERENCE TO PROVISIONS OF SECT ION 2(47)(III) IN PLACE OF SECTION 2(47)(I). HENCE THE ORDER PASSED BY THE HONBLE ITAT DESERVES TO BE RECALLED. IT IS FURTHER SUBMITTED THAT BEFORE APPLYING THE P ROVISIONS OF SECTION 2(47)(I) ADEQUATE OPPORTUNITY WAS NOT GRANTED TO THE AR OF THE ASSESSEE WHICH PREVENTED IN MAKING SUBMISSIONS FOR DEFENSE. S IMILARLY THE ISSUE OF THE LAND BEING BEYOND 8 KM AS HELD BY THE LEARNED C IT(A) HAS BEEN DEALT SUMMARILY AND WITHOUT PROVIDING ANY OPPORTUNITY TO T HE AR OF THE ASSESSEE. THUS THE ORDER OF THE HONBLE ITAT REQUIRE S TO BE RECALLED EVEN ON THE ISSUE OF EQUITY AND JUSTICE. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE HO NBLE BENCH IS REQUESTED TO RESTORE THE APPEAL AND OBLIGE. THE FOLL OWING CASE LAWS ARE ALSO QUOTED IN SUPPORT:- NEEDLESS TO SUBMIT THAT THE HONBLE TRIBUNAL WOULD B E JUSTIFIED IN RECALLING THE ORDER FOR THE REMOVAL OF THE PREJUDIC E AGAINST THE ASSESSEE. HONDA SIEL POWER PRODUCTS LTD. VS. CIT (2007) 165 TAX MAN 307 (SC). IT IS FURTHER SUBMITTED THAT THE APEX COURT HAS HELD IN T HE CASE OF ACIT VS. SAURASTRA KUTCHH STOCK EXCHANGE LTD. (2009) 173 ITR 322 (SC) THAT JUSTICE IS A VIRTUE WHICH TRANSCENDS ALL BARRIERS. NEITHER THE RULES OF PROCEDURE NOT TECHNICALITIES OF LAW CAN STAND IN ITS WAY. THE ORDER OF THE COURT SHOULD NOT BE PREJUDICIAL TO ANYONE. EVEN THE LAW BENDS BEFORE JUSTICE. ..TECHNICALITIES APART IF THE COURT IS SAT ISFIED OF THE INJUSTICE THEN MA 09/JP/2015 VINITA AGARWAL VS. DCIT 5 IT IS ITS CONSTITUTIONAL AND LEGAL OBLIGATION TO SE T IT RIGHT BY RECALLING ITS ORDER. 3. THE M.A. WAS HEARD AT LENGTH FROM BOTH THE SIDES. THE AR OF THE ASSESSEE REITERATED THE FACTS AS MENTIONED IN THE E ARLIER PARA. AT THE OUTSET, THE LD DR VEHEMENTLY OPPOSED THE MA FILED B Y THE ASSESSEE THAT THE ASSESSEE IS CHANGING THE STAND AT EVERY STAGE. THE HONBLE ITAT HAS CONSIDERED ALL THE FACTS OF THE CASE AND DECIDED T HE CASE AS PER LAW, IF THE ASSESSEES ARGUMENTS CONSIDERED BY THE HONBLE ITAT, IT IS REVIEW OF THE CASE, WHICH IS NOT PERMITTED U/S 254(2) OF THE INCOM E TAX ACT, 1961. 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE LD CIT(A) HAS HELD THE LAND ACQUIRED BY THE JDA IS BEYOND 8 KM FROM THE MUNICIP AL AREA BEING A TECHNICAL ISSUE RAISED BEFORE THE LD CIT(A) DURING T HE APPELLATE PROCEEDINGS, WHICH CAN ALSO BE RAISED BEFORE US, WHIC H GOES TO ROOT OF THE MATTER TO DECIDE THE CASE AS PER LAW BEING NOT RAISE D BEFORE THE ASSESSING OFFICER. THEREFORE, IT IS AN APPARENT MISTAKE IN THE ORDER DATED 09/1/2015. ACCORDINGLY, WE RECALL OUR ORDER DATED 09/1/2015 IN THE INTEREST OF JUSTICE PASSED BY THIS BENCH IN 660/JP/2012 & C.O. NO. 57/J P/2012 FOR A.Y. 2009- 10 AND THE PRESENT M.A. FILED BY THE ASSESSEE IS AL LOWED AND DATE OF HEARING OF THE APPEAL IS GIVEN IN OPEN COURT FOR 04 /08/2015. THE REGISTRY IS MA 09/JP/2015 VINITA AGARWAL VS. DCIT 6 DIRECTED TO FIX THE CASE AS PER THE ABOVE DATE IN R EGULAR HEARING. NO SEPARATE NOTICE IS REQUIRED TO BE SENT FOR BOTH THE PARTIES. 5. IN THE RESULT, THIS M.A. APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/05/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 22 ND MAY, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SMT. VINITA AGARWAL, JAIPUR 2. IZR;FKHZ @ THE RESPONDENT- THE D.C.I.T., CIRCLE-6, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (M.A. NO. 09/JP/2015) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR