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Income Tax Appellate Tribunal, AGRA BENCH: AGRA
Before: SHRI SUDHANSHU SRIVASTAVA, & DR. MITHA LAL MEENA
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH: AGRA BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER, AND DR. MITHA LAL MEENA, ACCOUNTANT MEMBER
ITA No.160/Agra/2018 (ASSESSMENT YEAR: 2009-10) Hoti Lal S/o Shri Ram Dayal, Vs. Income Tax Officer 3(2), Aurangabad, Mathura. Mathura. PAN: ABYPL9237B (Assessee) (Revenue)
Assessee by Shri Pankaj Garg, AR. Revenue by Shri Waseem Arshad, Sr. DR.
Date of Hearing 22.02.2019 Date of Pronouncement 22.03.2019
ORDER Per Dr. M. L. Meena; A.M.:
This appeal, by assessee is filed against the orderdated 30.11.2017 of Ld. CIT(A)-1, for Assessment Year 2009-10 challenging the correctness of the order passed by the Income Tax officer 3(2), Mathura,under section 147/144 of the Income Tax Act, 1961 for Assessment Year 2009-10.
The sole issue, in the present appeal is regarding the measurement of the distance of the impugned land sold from Municipal Limits of Mathura.
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Briefly, the facts of the case are that the appellant assessee sold agricultural land in which he was having ½ share and the sale consideration was not shown in the return of income filed taking that the same being beyond 8 km from the municipal limits of Mathura. The A0 completed assessment under section 144 r.w.s148 of the Act, made addition under the head long-term Capital Gains, by way of treating the land sold within 8 Km. from Municipal Limits of Mathura. 4. Being aggrieved, the assessee went before the Ld. CIT(A) who rejected the assessee’s submission thatthe land sold was beyond 8 Km. from Municipal Limits of Mathura and a Capital Asset as per Section 2(14) of the Act. The ld. CIT(A) vide para 7.2, page -6 of the impugned order while confirming the finding of the AO on the basis of inspector’s report and AO’s objection to seal mark on the Certificate of Lekhpalmahawan-II, a documentary evidence without communicating the said objections to the assessee. 5. The learned Counsel Shri Pankaj Garg for the appellant challenged the inspector’s report that how the distance of the impugned land sold was measured by the inspector is nothing has been provided in the assessment order in regards to the measurement of the land. He contended that the AO has specifically mentioned in its remand report, according to the report of the inspector the distance of the impugned
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land was 7.5 km from municipal limit which had not been confronted with the assessee before it can be used against him. For this purpose, he relieson Hon’ble Supreme Court in the case of Dhakeshwari Cotton Mills Ltd. Vs. CIT”, 26 ITR 775 where it was held that: “assessment so made without disclosing to the assessee the information supplied by the Departmental representative and without giving any opportunity to the assessee to rebut the information so supplied and declined to take into consideration all materials which the assessee wanted to produce in support of his case constitutes a violation of the fundamental rules of justice and call for the powers under Art. 136 of the Constitution” 5.1 He further submitted that the aerially measured distance in section 2(14) (iii)(b) has been substituted by the Finance Act, 2013, w.e.f 01.04 .2014 relevant to assessment year 2014 – 15 and same criteria not be applicable in respect of assessment year 2009 – 10 the year under consideration. Hon’ble Bombay High Court, Nagpur Bench,in the case of “CIT vs. Smt. Maltibai R. Kadu”, held that the amendment prescribing the distance to be measured aerially, applies prospectively. Thus, the CBDT Circular Number 17/2015 dated 06.10 .2015 (APB, Pg.31) is in relation to Assessment Year 1014-15. 5.2 The Counsel has filed the following Paper book of 41 pages with the support of written synopsis in support of its contentions with request
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to restore the issue to the AO to examine afresh after taking into considering the relevant documentary evidences filed by him in support of his contentions that the distance of the impugned land was being more than 8.5 kmswhich are listed as under: 1) The letter written to the Tahsildar and Mahawan, Mathura regarding the correction in the mistake of the seal mark. 2) The Freshcertificate from Lekpal,Mahawan, Mathura, dated 26.06 .2018. 3) Map showing the roads connected to the impugned land from Nagar Palika, Mathura. 4) Photograph of the inauguration of the new road connected to the impugned land. Therefore, in the interest of justice, the matter may be restored back to the AO with a direction to decidethe issue after considering the evidences on merits and affording proper opportunity of being heard to the assessee. 6. The Learned Department Representative, Shri Vashim Arshad has agreed for examination of the issue afresh in respect of the verification of the distance of the impugned land however he prayed that the matter may be restored to the CIT(A) since, the AO can’t sit on the judgement of the CIT(A). 7. Having heard both the sides, perused the record and the documentary evidences brought before us, we of the considered opinion
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that impugned order based on the inspector report and objection of the AO without rebuttal to the assessee of such report and AO’s objection which was raised in the remand report laying foundation of the impugned order appealed against cause violation of the principles of natural justice as held by the Apex Court “Dhakeshwari Cotton Mills Ltd. Vs. CIT”, (Supra). It was the AO who raised the objection in remand report and he is the assessing authority vested with the power to conduct necessary enquiries as deem fit to examine the veracity of the documentary evidences filed by the asseesse as above. In the present case if the matter is restored to the CIT(A) as prayed by the ld. DR even in that case, the examination and investigation would be carried out by the assessing officer which it would lead to multiplicity of the authorities. We, therefore, set aside the order of the CIT(A) and restore the matter back the file of the AO with the direction to examine the issue of the distance of the impugned land sold was being more than 8.5 kms afresh on merit after affording opportunity of being heard to the assessee.
In the result, appeals of the assessee stans allowed for statistical purpose.
Order pronounced in the open court on 22/03/2019
Sd/- Sd/- (SUDHANSHU SRIVASTAVA) (DR. MITHA LAL MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER
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Dated: 22/03/2019 DOC