RAM LAL SHARMA,JAIPUR vs. ITO, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR Jh fot; iky jko] U;kf;d lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JUDICIAL MEMBER vk;dj vihy la-@ITA No. 522/JP/2017 fu/kZkj.k o"kZ@Assessment Year : 2009-10 cuke Sh. Ram Lal Sharma, Income Tax Officer, Vs. Kototya Ki Dhani, Gram- Nindar, Ward 7(4), Tehsil- Amer, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BLLPS4485A vihykFkhZ@Appellant izR;FkhZ@Respondent vk;dj vihy la-@ITA No. 523/JP/2017 fu/kZkj.k o"kZ@Assessment Year : 2009-10 cuke Sh. Gulla Ram Sharma, Income Tax Officer, Vs. Kototya Ki Dhani, Gram- Nindar, Ward 7(4), Tehsil- Amer, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BBWPR0622K vihykFkhZ@Appellant izR;FkhZ@Respondent vk;dj vihy la-@ITA No. 524/JP/2017 fu/kZkj.k o"kZ@Assessment Year : 2009-10 cuke Sh. Prabhu Dayal Sharma, Income Tax Officer, Vs. Kototya Ki Dhani, Gram- Nindar, Ward 7(4), Tehsil- Amer, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BPFPP3975N vihykFkhZ@Appellant izR;FkhZ@Respondent

2 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO vk;dj vihy la-@ITA No. 525/JP/2017 fu/kZkj.k o"kZ@Assessment Year : 2009-10 cuke Sh. Jagdish Prasad Sharma, Income Tax Officer, Vs. Kototya Ki Dhani, Gram- Nindar, Ward 7(4), Tehsil- Amer, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: DIXPS2857B vihykFkhZ@Appellant izR;FkhZ@Respondent vk;dj vihy la-@ITA No. 526/JP/2017 fu/kZkj.k o"kZ@Assessment Year : 2009-10 cuke Sh. Ram Gopal Sharma, Income Tax Officer, Vs. Kototya Ki Dhani, Gram- Nindar, Ward 7(4), Tehsil- Amer, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BBGPR7449A vihykFkhZ@Appellant izR;FkhZ@Respondent vk;dj vihy la-@ITA No. 527/JP/2017 fu/kZkj.k o"kZ@Assessment Year : 2009-10 cuke Sh. Ram Swaroop Sharma, Income Tax Officer, Vs. Kototya Ki Dhani, Gram- Nindar, Ward 7(4), Tehsil- Amer, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: EVTPS8248N vihykFkhZ@Appellant izR;FkhZ@Respondent vk;dj vihy la-@ITA No. 528/JP/2017 fu/kZkj.k o"kZ@Assessment Year : 2009-10 cuke Sh. Ganga Sahai Sharma, Income Tax Officer, Vs. Kototya Ki Dhani, Gram- Nindar, Ward 7(4), Tehsil- Amer, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAGHG1615R vihykFkhZ@Appellant izR;FkhZ@Respondent

3 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

fu/kZkfjrh dh vksj ls@ Assessee by : Shri P.C. Parwal (C.A.) jktLo dh vksj ls@ Revenue by : Shri Punam Rai (D.CIT)

lquokbZ dh rkjh[k@ Date of Hearing : 13/10/2017 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 31/10/2017 vkns'k@ ORDER

PER: VIJAY PAL RAO, J.M.

These 7 appeals by the 7 individual assessees who are related and

co-owners of the land in question directed against the separate orders of

CIT(A) -5, Jaipur dated 27.03.2017 and 28.03.2017 for the A.Y. 2009-

are as under:-

“1. The order passed u/s 144/147 and confirmed by Ld. CIT(A) is illegal and bad in law. 2. The CIT(A) has erred on facts and in law in confirming the addition of Rs. 41,35,500/- on account of long term capital gain by: (i) treating the land sold as a capital asset within the meaning of section 2(14) of IT Act. (ii) not allowing the deduction for cost of acquisition. (iii) not allowing the deduction u/s 54F on account of investment made.” 2. The assessees have also filed additional grounds which are common

in 7 appeals as under:-

“1. The Ld. CIT(A) has erred on facts and in law in confirming the assessment of capital gain even when the land acquired by the forefathers of the assessee is without cost and thus, in the absence of cost of acquisition, no capital gain can be charged to tax.

4 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

additional evidence Rules 29 of the ITAT Rules, 1963. Since the additionals

grounds raised by these assessees go to the root of the matters, therefore,

these grounds are taken up first for the hearing and adjudication.

additional grounds. The assessment orders were passed by the AO u/s 144

read with section 147. It is pertinent to note that the land in question was

agricultural land and therefore, the assessees were under belief that no

capital gain is chargeable to tax arising from transfer of agricultural land

in question. However the AO treated the land in question within the

municipal limit, Jaipur and therefore assessed the capital gain to tax. The

ld. CIT(A) has confirmed the action of the AO. In the additional grounds

the assessee has raised to two issues that the land was acquired by the

forefathers of the assessee without any cost as it was granted /awarded

to the forefathers without any consideration and the assessees have

inherited this land as an ancestral property. Therefore, in the absence of

any cost of acquisition the assessee claimed that the computing of the

5 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

capital gain provision fails and therefore, no capital gain can be charged to

tax in respect of transfer of the land in question in view of the decision of

Hon’ble Supreme Court in case of CIT vs. B.C. Srinivasa Setty 128 ITR 294

as well as decisions of Hon’ble High Courts. The second issue raised by the

assessee in the additional ground is regarding the land in question was

ancestral property and therefore it was assessable in the hands of the HUF

and not in the hand of the individual assessee. These two issues raised in

the additional grounds are purely legal in nature though in the absence of

these issues raised before the authorities below no verification or enquiry

was conducted by the authorities below specifically in the contest of these

two legal issues however, from the findings of the authorities below it

cannot be inferred that there was a cost of acquisition and the property

was not an ancestral land. Accordingly, in the facts and circumstances of

the case and in view of the decision of Hon’ble Supreme Court in case of

CIT vs. NTPC Limited 229 ITR 383 the additional grounds raised by the

assessees are admitted for consideration and adjudication.

therefore, capital gain cannot be charged to tax. The ld. AR of the

assessee has submitted that the forefathers of the assessees were

cultivators of the land which was under the jagirdari of Rao Inder Singh

and his wife (known as maa ji). Subsequently as per the Rajasthan Land

6 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

Reforms & Resumption of Jagirs Act, 1952 this land was allotted to Sh.

Jeevan & Sh. Kanha. Thus the land was allotted without any cost of the

consideration and therefore, there was no cost of acquisition of this land in

the hand of the forefathers. Since the assessees have inherited this land

being an ancestral property, therefore, as per provisions of section 49(1)

the cost of acquisition of the asset in the hand of the assessee shall be

deemed to be the cost for which the previous owner of the property

acquired it. Further, as per the explanation to section 49(1) the cost of

previous owner of the property will be considered as in the hands of the

forefathers of the assesses who were allotted this land. The ld. AR of the

assessee has further submitted that even as per the provisions of section

55 (2) read with section 55 (3) no cost can be imputed to this asset as

there was no cost of acquisition. The ld. AR of the assessee has submitted

that the provisions of section 55 are applicable only when there is a cost

but which is not ascertainable whereas in the case of the assesse the cost

is nil or no cost then the question of ascertaining the cost does not arise.

In support of his contention he has relied upon the decisions of Hon’ble

Gujarat High Court in case of CIT Vs. Mandhar Singh Ji P. Jadeja 281 ITR

19 as well as Thakur Dwara Shri Krishanju Maharaj Handiyaya, Barnala vs.

CIT 162 ITR 93. He has also relied upon the decision of this Tribunal in

case of CIT vs. Pashu Mohammed Zainuddin 142 TTJ 17. Thus the ld.

7 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

AR has submitted the land is an ancestral land as accepted by the AO in

the assessment order and therefore, when there is no cost of acquisition

by the forefathers of the assessee then the capital gain cannot be

chargeable to tax. He has further contended that the amendment brought

into statute u/s 55(2) vide Finance Act 1987 provides the cost of

acquisition in relation a capital asset being goodwill of business or a trade

market or trade name or right to manufacture or right to carry in business

or tenancy right etc. The said provisions is not applicable in case of

tangible asset and particularly for land in question.

the cost of acquisition cannot be ascertained but no consideration was

paid. Thus she has contended when the property was acquired by the

assessee by succession and the cost of acquisition by the previous owner

could be ascertained then the decision relied upon by the Hon’ble

Supreme Court in case of Vs. B.C. Srinivasa Setty as well other Hon’ble

High Courts are not directly applicable in the facts and circumstances of

the present case. The ld. DR has pointed out that even if no cost is paid

but the cost was ascertainable at the time of acquisition of land then the

provisions of section 55(3) are applicable in this case and the fair market

value of the asset as on 01.04.1981 would be the cost of acquisition of

land for the purpose of computing capital gain. She has relied upon the

8 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

decision of Hon’ble Punjab and Haryana High Court in case of CIT Vs.

Raja Malwinder Singh 334 ITR 48 as well as decision in case of Thakur

Dwara Shri Krishanju Maharaj Handiyaya, Barnala vs. CIT 366 ITR 38 and

submitted that the Hon’ble Punjab and Haryana High Court while

following the full bench decision in case of Raja Malwinder Singh

reiterated the view has taken by the Full Bench. Through the decisions

relied upon by the AR will not help the case of the assessee.

on record. The land in question was acquired by the assessee by

succession, therefore, the cost of acquisition of the land in question in the

hand of the assessee would be taken as the cost in the hand of the

previous owner of the land. The ld. AR of the assessee has contended that

the land was allotted under the Rajasthan Land Reforms and Resumption

of Jagir Act, 1952 without any consideration, therefore, the cost of

acquisition in the hand of the previous owner is nil. Thus the ld. AR of the

assessee has submitted that in view of the decision of Hon’ble Supreme

Court in case of CIT Vs. B.C. Srinivasa Setty (supra), decision of Hon’ble

Gujarat High Court in case of CIT vs. Mandharshingji P. Jadeja (supra) as

well as CIT vs. H.H. Maharana Sahib Shri Lokendra Singhji the Jagir

property gifted to the forefathers of the assessee has no cost of

acquisition in the hand of the ancestors and therefore no capital gain

9 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

accrued where the cost of acquisition is not ascertainable. It was also

contended that the fair market price cannot be taken into consideration

where the cost of acquisition was not ascertainable. On the other hand,

the Full Bench decision of Hon’ble Punjab and Haryana High Court in case

of CIT vs. Raja Malwinder Singh (supra) has held that even in a case

where the cost of acquisition cannot be ascertained, section 55(3)

prescribes the cost to the equal to the fair market value on the date of

acquisition in case of acquiring the land either at some cost or without cost

but there can be no situation when the cost is incapable of ascertainment.

This view of the Hon’ble Punjab and Haryana High court was again

reiterated in case of Thakur Dwara Shri Krishanji Maharaja Handiyaya,

Barnala (Supra). Thus it is clear that there are divergent views of Hon’ble

High Courts on this issue particularly the interpretation and understanding

of the decision of Hon’ble Supreme Court in case of CIT vs. B.C. Srinivasa

Setty (supra). The issue before the Hon’ble Supreme Court in case of CIT

vs. B.C. Srinivasa Setty was the taxability of capital gain on transfer of

goodwill of a newly commenced business. The Hon’ble Supreme Court has

observed that no business commenced for the first time possesses

goodwill from the start. It is generated as the business is carried on and

may be augmented with the passage of time. Therefore, goodwill in a

newly commenced business is a self generated asset and in this said

10 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

contest the Hon’ble Supreme Court has held that the cost of acquisition of

self generated asset like goodwill is not possible. The relevant finding of

the Hon’ble Supreme Court decision in case of CIT Vs. B.C. Shrinivasa

Setty in paras 8 to 11 as held as under:-

“8 The mode of computation and deductions forth in s. 48 provide the principle basis for quantifying the income chargeable under the head “capital gain”. The section provides that the income chargeable under that head shall be computed by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset: “(ii) the cost of acquisition of the capital…” What is contemplated is an asset in the acquisition of which it is possible to envisage a cost. The intent goes to the nature and character of the asset, that it is an asset which possesses the inherent quality of being available on the expenditure of money to a person seeking to acquire it. It is immaterial that although the asset belongs to such a class, it may, on the facts of a certain case, be acquired without the payment of money. That kind of case is covered by s. 49 and its cost, for the purpose of s. 48, is determined in accordance with those provisions. There are other provisions which indicate that s. 48 is concerned with an asset capital of acquisition at a cost. Sec. 50 is one such provisions. So also is such s s. (2) of s. 55. None of the provisions pertaining to the head “Capital gain” suggests that they include an asset in the acquisition of which no cost at all can be conceived. Yet there are assets which are acquired by way of production in which no cost element can be identified or envisaged. From what has gone before, it is apparent that the goodwill generated in a new business has been so regarded. The elements which create if have already been detailed. In such a case, when the asset is sold and the consideration is brought to tax, what is charged is the capital value of the asset and not any profit or gain.

11 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

based on specific facts and nature of capital asset being goodwill which is

self generated as it is not possible to determine the date when it comes

into existence. The date of acquisition of the asset is a material factor as

observed by the Hon’ble Supreme Court in applying the computation

provisions pertaining to the capital gains. The Hon’ble Supreme Court has

further observed that it is possible to say that the cost of acquisition as

mentioned in section 48 implies a date of acquisition, and that inference is

12 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

strengthened by the provisions of sub-section 49 and 50 as well as sub-

section (2) of section 55. Thus while analyzing the term the cost of

acquisition of capital asset as per section 48 of the Act the Hon’ble

Supreme Court has held that what is contemplated is an asset in the

acquisition of which it is possible to envisage a cost. The intent goes to the

nature and character of the asset, that it is an asset which possesses the

inherent quality of being available on the expenditure of money to a

person seeking to acquire it. It is immaterial that although the asset

belongs to such as class it may, on facts of certain cases be acquired

without the payment of money. Therefore, when a capital asset which

possesses the inherent quality or monetary value at the time when the

persons seeking to acquire it but it was acquired without the payment of

money would not take such capital asset in the category that it will not

possible to determine the cost of acquisition. Further, in case of self

generated intangible asset like goodwill there is not acquisition by the

transferor whereas in the case of land acquired by the transferor without

any cost but is capable acquisition of cost and therefore the land which

was acquired without cost cannot be put into category of the asset which

is self generated and the determination of cost of acquisition is not

possible. There may be two categories of capital asset where the cost of

acquisition is nil. In first category no cost is paid by the person who has

13 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

acquired it. In other case the asset is self generated in due course of time

and it is not possible to ascertain the cost of acquisition and date of

generation/acquisition. Therefore, the case of the assessee falls in the

categories of the land in question carried/ possesses cost or monetary

value though the forefathers of the assessee acquired it without any cost.

In such a situation the provisions of section 55 (2)(b) would come into

play. For reading reference section 55(2)(b) 55(3) are quoted as under:-

Section 55 (2(b)

“(b) in relation to any other capital asset,—] (i) where the capital asset became the property of the assessee before the [1st day of April, [1981]], means the cost of acquisition of the asset to the assessee or the fair market value of the asset on the [1st day of April, [1981]], at the option of the assessee ; (ii) where the capital asset became the property of the assessee by any of the modes specified in [sub-section (1) of] section 49, and the capital asset became the property of the previous owner before the [1st day of April, [1981]], means the cost of the capital asset to the previous owner or the fair market value of the asset on the [1st day of April, [1981]], at the option of the assessee ; (iii) where the capital asset became the property of the assessee on the distribution of the capital assets of a company on its liquidation and the assessee has been assessed to income-tax under the head "Capital gains" in respect of that asset under section 46, means the fair market value of the asset on the date of distribution ; (iv) [***] [(v) where the capital asset, being a share or a stock of a company, became the property of the assessee on— (a) the consolidation and division of all or any of the share capital of the company into shares of larger amount than its existing shares, (b) the conversion of any shares of the company into stock,

14 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

(c) the re-conversion of any stock of the company into shares, (d) the sub-division of any of the shares of the company into shares of smaller amount, or (e) the conversion of one kind of shares of the company into another kind, means the cost of acquisition of the asset calculated with reference to the cost of acquisition of the shares or stock from which such asset is derived.

Section 55 (3) "Where the cost for which the previous owner acquired the property cannot be ascertained, the cost of acquisition to the previous owner means the fair market value on the date on which the capital asset became the property of the previous owner.”

Thus as per clause (b) sub-section (2) of section 55 read with section 49

(1)(iii)(a) of the Act the cost of acquisition of the asset acquired by

succession or inheritance or devaluation shall be deemed to be the cost

for which the previous owner of the property acquired it. Where the

capital asset become the property of the assessee or previous owner

before 01.04.1981 the cost of acquisition means the cost of acquisition of

the asset to the previous owner or fair market value of the asset on

01.04.1981 at the option of the assessee. Even in case where the cost for

which the previous owner acquired the property cannot be ascertained the

cost of acquisition to the previous owner means the fair market value on

the date on which the capital asset becomes the property of the previous

owner as provided under sub-section (3) of section 55. Since this case of

15 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

the assessee is covered by provisions of section 55(2)(b) read with section

49(1) of the Income Tax Act therefore, the cost of the acquisition of the

property for the purpose of computing the capital gain would be fair

market value as on 01.04.1981. The full bench of Hon’ble Punjab and

Haryana High Court after considering the decision of the Hon’ble Supreme

Court in case of CIT vs. B.C. Srinivasa Setty (supra) as well as other

decisions relied upon by the ld. AR on this point has observed in paras 5 to

7 as under:-

“5. It is pointed out that the judgment in B.C. Shrinivasa Setty’s case (supra) is distinguishable. It was observed therein that in a newly started business the value of goodwill was not ascertainable, and on sale of goodwill, capital gain was not attracted. It is submitted that in the case of acquisition of land, the same is either acquired at some cost or without cost and under the scheme of the Act, there can be no situation when the cost is incapable of ascertainment. Section 55(2) provides for taking the cost either equal to the market value as on January 1, 1954, or at the option of the assessee equal to the cost of acquisition of the previous owner. Section 55(3) provides that where the cost of acquisition of the previous owner cannot be ascertained, it has to be taken to be equal to the market value on the date the asset was acquired by the previous owner. The Explanation to section 49(2), i.e., who acquires property otherwise than by way of gift, will or by succession. 6. In the present case, the assessee acquired the property by succession from the previous owner. According to the stand of the assessee, the cost of acquisition by the previous owner could not be ascertained. However, he failed to exercise the option of going either by the date of market value on the date of acquisition or by the cost of the previous owner in which case the only option

16 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

available to the Assessing Officer was to proceed to compute capital gain by taking the cost of the asset to be the fair market value on the specified date, i.e., January 1, 1954 as per applicable provision for assessment year 1977-78 and as on January 1, 1964 for the assessment year 1978-79. Even in a case where the cost of acquisition cannot be ascertained, section 55(3) statutorily prescribes the cost to be equal to the market value on the date of acquisition. This being the position, capital gain is not excluded even on the plea that value of the asset in respect of which capital gain is to be charged was incapable of being ascertained. The view taken in Amrik Singh’s case (supra) based on the assumption that where market value cannot be ascertained, capital gain cannot be applied, is not correct being against the statutory scheme. Similarly, the view taken by the Madhya Pradesh High Court in CIT v. H.H. Maharaja Sahib Shri Lokendra Singhji [1986] 162 ITR 93/25 Taxman 66 cannot be accepted. The said judgment also does not give effect to the mandate of section 55(3) which provides for a situation where the value of the asset acquired could not be ascertained. If the market value can be ascertained, it has to be taken to be equal thereto and if the value cannot be ascertained, it has to be equal to the market value on a specified date at the option of the assess. It is not the case of the assessee that land had no market value at all on the date of its acquisition. The contention that the value was incapable of being ascertained, as already observed, the value in such case has to be taken as being equal to market value on a specified date. 7. We, thus, hold that even where the cost of acquisition of capital asset cannot be ascertained but the asset has a market value, capital gain will be attracted by taking the cost of acquisition to be fair market value as on January 1, 1954, or on date statutorily specified or at the option by the assessee, the market value on the date of acquisition. The Hon’ble Punjab and Haryana High Court reiterated this view in case of

Thakur Dwara Shri Krishanji Maharaj Handiyaya, Barnala vs. CIT (supra).

17 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

In view of the facts and circumstances of the case as well as the above

discussion and following the full bench decision of Hon’ble Punjab and

Haryana High Court in case of Thakur Dwara Shri Krishanji Maharaj

Handiyaya, Barnala vs. CIT (supra) I am of the considered opinion that the

land in question does not fall in the category of the capital asset for which

the cost of acquisition is not possible to be ascertained. Accordingly, the

cost of acquisition in the hand of the assessee would be the fair market

value as on 01.04.1981. Accordingly this issue is decided against the

assessees.

of HUF and not in the hand of the assessee. In support of this ground the

assessee has also filed additional evidence in the shape of copy of sale

deed on 08.05.2008 and revenue record in respect of the land in question

as well as the copies of revenue record/ mutation in the name of earlier

owners of the land.

relevant material on record. The ld. DR has vehemently objected to the

admission of the additional evidence and submitted the despite sufficient

opportunity given to the assessee by the AO and ld CIT(A) the assessee

has not explained the reasons as to why this evidence was not filed before

the authorities below.

18 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO

additional evidence proposed to be filed by the assessee. It is noted that

all the documents sought to be filed by the assessee are either the copies

of the Revenue record showing the status of the land in question in past

or a sale deed dated 08.05.2008. Therefore from the very nature of the

documents filed by the assessee as additional evidence it is clear that

there is no possibility or scope of creating or manipulating with the

evidence. Thus the question of creating any evidence or putting up a claim

in the nature of afterthought is ruled out. Accordingly, in the facts and

circumstances of the case and the in the interest of justice when all the

documents sought to be filed by the assessee as additional evidence are

beyond the control and reach of the assessee and further when the

assessment was framed due to the time constrained the additional

evidence sought to be filed by the assessee is admitted.

adjudicated after examination and verification of the evidence filed by the

assessee at this stage. Accordingly the additional ground No. 2 of the

assessee is set aside to the record of the Assessing Officer for adjudication

after consideration and examination of additional evidence filed by the

assessees. Needless to say that the assessee is be given an opportunity of

hearing.

19 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO Now Main Ground

pressed by the assessee as at the time of hearing. The ld. AR of the

assessee has stated at bar that the assessee does not press ground No. 1

and Ground No. 2(ii) of the appeals. The ld. DR has no objection even

these two grounds are dismissed as not pressed. Accordingly, the ground

No. 1 and ground No. 2(iii) of the grounds of appeals are dismissed having

not pressed. The other grounds are on the merits of confirming the capital

gain. Since the additional ground regarding the assessment of capital gain

in the hand of HUF has been remanded to the record of the AO and the

same goes to the root of the matter therefore, the other grounds of the

assessees appeal are also set aside to the record of the AO to consider the

objection of the assessee and then decide the same if need arises.

In the result, assessee’s appeals are partly allowed for statistical purposes.

Order pronounced in the open court on 31/10/2017.

Sd/- ¼ fot; iky jko ½ (VIJAY PAL RAO) U;kf;d lnL; @Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 31/10/2017 *Santosh

20 ITA 522 To 528/JP/17_ Ram Lal Sharma and others Vs. ITO आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Sh. Ram Lal Sharma, Sh. Gulla Ram 1. Sharma, Prabhu Dayal Sharma, Jagdish Prasad Sharma, Sh. Ram Gopal Sharma, Sh. Ram Swaroop Sharma & Sh. Ganga Sahai Sharma, Kototya Ki Dhani, Gram- Nindar,Tehsil- Amer, Jaipur. izR;Fkh@ The Respondent- The ITO, Ward 7(4), 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. 522 to 528/JP/17) 6. vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंतअ