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Income Tax Appellate Tribunal, JAIPUR BENCHES,”B” JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA. No. 284/JP/2019
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe 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. 284/JP/2019 fu/kZkj.k o"kZ@Assessment Years : 2008-09 cuke Smt. Prabhati Devi The ITO, Vs. Village- Suratpura, Ward-7(2), Tehsil-Sanganer, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: CMSPD 2355 K vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Ashish Khandelwal (C.A.) jktLo dh vksj ls@ Revenue by : Smt. Anuradha (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 22/04/2019 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 24/04/2019 vkns'k@ ORDER PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the assessee against the order of ld. CIT(A), Jaipur dated 24.01.2018 for the Assessment Year 2008-09 wherein the assessee has taken the following grounds of appeal:-
“1. That the ld. A.O. has erred in law as well as in facts of the case in assuming jurisdiction u/s 148 of the I.T. Act, 1961.
2. That both the lower authorities has erred in law as well as in facts of the case in confirming the addition of Rs. 10,01,250/- as long term capital gain without appreciating the fact that impugned land was not a capital asset within the meaning of Section 2(14) of the I. T. Act, 1961.
3. That ld. CIT(A) has erred in law as well as in facts of the case in not affording sufficient opportunity of being heard, hence violated principle of natural justice.”
Briefly, the facts of the case are that the assessment in this case was completed U/s 147 r/w section 144 of the Act wherein the AO has brought to tax long term capital gains amounting to Rs. 10,01,250/- in the hands of the assessee. Being aggrieved the assessee carried the matter in appeal before the ld. CIT(A) who has confirmed the said addition and now the assessee’s in appeal before us.
During the course of hearing, various contentions have been raised by the ld. AR and written submissions have been filed challenging the assumption of jurisdiction U/s 147 by the AO stating that there has been no application of mind by the AO before invoking his jurisdiction u/s 147, there are factual inconsistencies in the reasons so recorded in terms of description of land holding which has been sold and the fact that the agriculture land has been held to be a capital asset situated within 8 kms of Jaipur’s municipality without any material on record. Further, on merits of the addition made by the Assessing Officer, it has been contended by the ld AR that distance of agriculture land shall be measured from the local limits of Municipality as on the date of the notification ie, 6.01.1994 as held by the Hon’ble Rajasthan High Court in case of Pr CIT vs Kheti Ram HUF (ITA No. 170/2016 dated 21.11.2017) and not on the date of sale of the agriculture land. Further, it has been submitted that where based on the Tehsildar report, the land situated at village Kalwada has been held to be situated beyond 8 kms of the Jaipur Municipal limits, land situated at village Suratpura which is almost 2.5 kms further from village Kalwada has been held to be situated within 8 kms of the municapal limits. It was been further submitted that the AO during the course of assessment proceedings has also sought report from the Tehsildar regarding distance of village suratpura from the municipal limits, however, without waiting for his report, he has concluded the assessment holding the land situated within 8 Kms from the municipal limits. It was accordingly submitted that the assessment so made thus suffers from the jurisdictional infirmity as well as on merits and thus should be set-aside. It was alternatively pleaded that the matter may be set-aside to the file of the AO to obtain the report of the Tehsildar regarding distance of agriculture land at village Suratpura from the municipal limits of Jaipur as on the date of the notification.
The ld DR is heard who has relied on the findings of the Assessing officer. It was further submitted that the assessment order has been passed u/s 147 r/w 144 and even the ld CIT(A) has passed the order ex-parte qua the assessee and therefore, where the Bench so decide, the Revenue has no objection where the matter is set-aside to the file of the ld CIT(A).
We have heard the rival contentions and pursued the material available on record. Admittedly, the assessment order has been passed
4 Smt. Prabhati Devi vs. ITO u/s 147 r/w 144 and even the ld CIT(A) has not passed the order on merits but has dismissed the appeal ex-parte qua the assessee. We also find that the report of the Tehsildar regarding distance of agriculture land at village Suratpura from the municipal limits of Jaipur as on the date of the notification is not on record. Therefore, in the interest of justice and fair play, we set aside the matter to the file of the AO to decide the same afresh after calling the report of the Tehsildar regarding distance of agriculture land at village Suratpura from the municipal limits of Jaipur as on the date of the notification. Needless to say, the assessee shall be provided a reasonable opportunity and she shall cooperate in the timely completion of the proceedings as so directed by the AO.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 24/04/2019.
Sd/- Sd/- ¼fot; iky jko½ ¼foØe flag ;kno½ (Vijay Pal Rao) (Vikram Singh Yadav) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 24/04/2019. *Santosh आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Smt. Prabhati Devi, Jaipur. 2. izR;FkhZ@ The Respondent- ITO, Ward-7(2), Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A)
सहायक पंजीकार@Aेेज. त्महपेजतंत