Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 1008/JP/2017
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, 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. 1008/JP/2017 fu/kZkj.k o"kZ@Assessment Year :2011-12 cuke Goru Ram Yadav, I.T.O., Vs. Nari ka Bas (Peethawas), Panchayat Ward 3(1), Hatoj, Jaipur Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AMMPY 4405 H vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri P.C. Parwal (CA) jktLo dh vksj ls@ Revenue by : Shri A.K. Mahla (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 04/10/2018 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 12/10/2018 vkns'k@ ORDER
PER: VIJAY PAL RAO, J.M.
This appeal by the assessee is directed against the order dated
09/11/2017 of ld. CIT(A)-I, Jaipur for the A.Y. 2011-12. The assessee has
raised following grounds of appeal: “1. The Ld. CIT(A) has erred on facts and in law in directing the AO to enhance the income from long term capital gain on sale of agricultural land declared at Rs. Nil by the assessee and Rs. 19,50,554/- computed by the AO to Rs. 1,60,28,557/- by:- (i) Upholding that the full value of consideration should be adopted u/s 50C at Rs. 1,91,25,000/- as against actual consideration of Rs. 1,43,00,000/- by not accepting the contention of assessee that such value should be considered as
ITA 1008/JP/2017_ 2 Goru Ram Yadav Vs ITO
on 08.10.2007 when the assessee entered into an agreement to sale the land and not as on 26.05.2010 when the sale deed was executed.
(ii) Directing to take the cost of acquisition as on 01.04.1981 at Rs.12,679/- as determined by DVO as against Rs.2,60,000/- considered by the assessee and Rs.1,78,500/- adopted by the AO.
(iii) Not accepting the various objections raised by the assessee on the report of DVO determining the FMV of land as on 01.04.1981 and the value determined by him u/s 50C(2).
(iv) Not allowing the claim of deduction u/s 54B made by the assessee and allowed by the AO at Rs. 1,39,00,000/- by making various observations on surmises & conjectures and by not considering the provision of section 2(47)(vi) and by incorrectly applying the decision of Apex Court in case of CIT Vs. Balbir Singh Maini 86 taxmann.com 94 whereas this decision support the case of assessee.
The Ld. CIT(A) has erred on facts and in law in confirming the addition of Rs.25,27,649/- made u/s 69 by the AO not accepting the source of investment made in construction of house property on which deduction u/s 54F is claimed.
The Ld. AO has erred on facts and in law in considering the agricultural land sold by the assessee as a capital asset u/s 2(14) of the Act whereas the same being beyond 8 kms of the municipal limit as on the date of notification dated 06.01.1994 is not a capital asset and thus, no capital gain is chargeable on sale of the agricultural land. This contention though raised before the AO but not raised before Ld. C1T(A) under a mistaken assumption that the certificate obtained by the AO from Tehsildar on this issue is of as on 06.01.1994 be admitted as additional ground of appeal.
The assessee craves to amend, alter and modify any of the grounds of appeal.
The appropriate cost be awarded to the assessee.”
ITA 1008/JP/2017_ 3 Goru Ram Yadav Vs ITO
1.1 The assessee has also raised additional ground as under:
“The ld. CIT(A) has erred on facts and in law in assessing the income from long term capital gain on transfer of land in A.Y. 2011-12 ignoring that the land under consideration stood transfer U/s 2(47) of the IKT Act, 1961 in A.Y. 2008-09.”
We have heard the ld AR as well as the ld DR on admission of
additional ground. The ld AR has relied upon the decision of the Hon'ble
Supreme Court in the case of CIT Vs. NTPC Ltd. 229 ITR 383 and
submitted that the issue raised by the assessee in the additional ground is
purely legal in nature and goes to the root of the matter and therefore,
the same may be admitted in deciding on merits.
On the other hand, the ld DR has submitted that the assessee has
raised altogether a new issued at this stage for which the relevant facts
and material are not available on the record but required to be
investigated. Thus, he has objected to the admission of the additional
ground.
Having considered the rival submissions and careful perusal of the
additional ground we note that that the issue raised in the additional
ground would amount to setting up altogether a new case which was not
raised before the authorities below. The assessee never disputed that the
land in question was not transferred during the year under consideration
ITA 1008/JP/2017_ 4 Goru Ram Yadav Vs ITO
but raised the other issues regarding the capital gain and whether it is a
capital asset U/s 2(14) of the Income Tax Act, 1961 (in short the Act) or
not. Thus, when the assessee did not dispute the transfer of the land in
question during the year under consideration then raising this issue at
first time by relying upon the agreement to sell which is not registered
and claimed to have been entered into on 08/10/2007 about three years
prior to the sale deed on the basis of which the assessment was reopened
by the Assessing Officer would set the entire proceedings in reverse
motion. When the said agreement was not disclosed by the assessee at
any point of time prior to this stage then it would open a new gate of
avoiding the tax liability in the manner that such document not in the
public domain can be kept with the chest by the assessee till the limitation
for assessment is expired and then execute a sale deed and would take a
plea that the transfer was already taken place several years back when
such secret unregistered agreement was entered into between the
parties. Hence, such modus operandi cannot be allowed to avoid the tax
liability. The non-disclosure of the alleged agreement would operate as
estoppel against the assessee to rely on such document with a view to
avoid tax. Accordingly, the additional ground raised by the assessee
cannot be allowed and deserves to be rejected. We order accordingly.
ITA 1008/JP/2017_ 5 Goru Ram Yadav Vs ITO
The assessee has also filed additional evidence in the shape of
certificate of the concerned Tehsildar in support of the claim that the land
in question is situated beyond the distance of 8 k.m. from the municipal
limits and therefore, the same does not fall in the definition of capital
asset U/s 2(14) of the Act.
The assessee has filed an application for admission of additional
evidence. We have heard the ld AR as well as the DR and considered the
relevant material on record on the point of admission of additional
evidence proposed to be filed by the assessee. We find that the Assessing
Officer rejected the claim of the assessee that the land in question is
beyond 8 k.m. from the municipal limits on the basis of a certificate
issued by the Tehsildar, however, the ld AR has now submitted another
certificate to show the distance as on 01/6/1994 the date of circular
issued by the CBDT and contended that the earlier certificate issued by
the Tehsildar is regarding the current status of the distance and not as on
01/6/1994. The ld AR has also referred to the decision of the Hon'ble High
Court in the case of CIT Vs. Dr. Subha Tripathi decision dated
04/11/2015.
On the other hand, the ld DR has objected to the said certificate
filed by the assessee and submitted that the Assessing Officer has already
ITA 1008/JP/2017_ 6 Goru Ram Yadav Vs ITO
considered the certificate issued by the concerned Tehsildar then the
second certificate issued by the same authority cannot be considered at
this stage.
We find that, though, the earlier certificate issued by the Tehsildar
was considered by the Assessing Officer, however, the said certificate
does not specify the distance as at the time of issuing certificate or any
other date whereas the certificate filed by the assessee as an additional
evidence has specifically mentioned the date as on 01/6/1994, therefore,
the certificate filed by the assessee refers to the situs of the land being
beyond 8 k.m. from the municipal limits. Since this certificate is filed at
this stage and there is an earlier certificate issued by the same authority,
therefore, it requires a proper verification. The issue raised in ground No.
1 of the assessee’s appeal goes to the root of the matter and the
additional evidence filed by the assessee, though, relevant for the
purpose of adjudication of the said issue, however, it also requires a
proper verification. Accordingly when the issue goes to the root of the
matter, therefore, the same is set aside to the record of the Assessing
Officer for consideration of the additional evidence filed by the assessee
and then decide the same after conducting a proper enquiry on this
ITA 1008/JP/2017_ 7 Goru Ram Yadav Vs ITO aspect. Needless to say that the assessee be given an appropriate
opportunity of hearing before passing a fresh order on this issue.
The other issues raised by the assessee in this appeal are kept
open
In the result, the appeal of the assessee is partly allowed for
statistical purposes only.
Order pronounced in the open court on 12/10/2018.
Sd/- Sd/- ¼foØe flag ;kno½ ¼fot; iky jko½ (VIKRAM SINGH YADAV) (VIJAY PAL RAO) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 12th October, 2018 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Shri Goru Ram Yadav, Jaipur. 1. izR;FkhZ@ The Respondent- The I.T.O., Ward 3(1), Jaipur. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 1008/JP/2017) 6. vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत