SHRI SANTOSH KUMAR SHARMA,BAREILLY vs. INCOME TAX OFFICER- 2(2), BAREILLY

Ground Nos. 1 to 8 in I.T.A. No.167 and ground Nos. 1 to 5 in I.T.A. No.168 are legal grounds, which have not been pressed by Learned A. R. However, in support of ground No. 9 in I.T.A. No.167 and ground No. 6 in I.T.A. No.168, Learned A. R. filed petition for admission of additional evidence under Rule 29 of the Appellate Tribunal Rules. The additional evidence filed by the assessee is a copy of letter written by Tehsildar, Sadar, Bareilly certifying therein that the land of the assessee was outside the municipal limits of Bareilly. Learned A. R. submitted that these evidences prove that the lands sold by the assessees were outside the municipal limits and therefore, capital gain arising therefrom was not subjected to capital gain tax. Learned A. R. submitted that these additional evidence go to the root of the matter and these could not be filed before the authorities below as these were obtained after the authorities below had passed the respective orders. Therefore, it was prayed that these should be admitted and should be adjudicated.

Learned D. R., on the other hand, vehemently argued that the additional evidence cannot be accepted as the assessee did not file these documents before the Assessing Officer and before learned CIT(A) also nothing was filed and in fact the assessee did not appear before the CIT(A). Moreover, it was argued that the Assessing Officer, in his order, has noted that on the basis of letter of Tehsildar dated 14/09/2016, the land in question did fall in the municipal limits and therefore, the Assessing Officer has rightloy assessed the income from capital gain and the additional evidences are nothing but an afterthought and therefore, these should not be admitted.

Learned A. R., in his rejoinder, submitted that the Assessing Officer had mentioned the letter dated 14/09/2016 but the letter specifically stated that the village was within the municipal limit and there is no mention of particular lands of assessees whereas, as per the additional evidence, the land belonging to assessees was outside the municipal limits. Moreover, it was argued that the Assessing Officer has not confronted to the assessees the said letter dated 14/09/2016 and therefore, in all fairness, the additional evidence should be admitted and adjudicated.

I have heard the rival parties and have gone through the material placed on record. I find that Assessing Officer did mention the fact of having obtained letter dated 14/09/2016 which he has noted in the last page of his order. The Assessing Officer has noted that the land was situated in village Kareli, Bareilly and was situated within the local limits of Nagar Nigam, Bareilly. In the assessment order the Assessing Officer has not noted that this letter was confronted to the assessee. The additional evidence filed by the assessee has been obtained by the assessee after the date of passing of assessment order and the order of CIT(A) and these evidences specifically state that the land in question was outside the municipal limits therefore, the fact of not confronting letter dated 14/09/2016 to the assessee coupled with the fact that the evidences were obtained after the authorities had passed orders, necessitates that the additional evidences be taken on record and therefore, these are admitted. Since the additional evidences have been admitted, which have not been examined by the authorities below therefore, I deem it appropriate to remit the issue back to the file of the Assessing Officer who should readjudicate the issue afresh after taking into account the additional evidences filed by

In the result, both the appeals filed by the assessees are allowed for statistical purposes.