SHRI GORU RAM YADAV,JAIPUR vs. INCOME TAX OFFICER, JAIPUR

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.

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.”

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.

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.

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

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.

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.

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.

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.

open

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