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Income Tax Appellate Tribunal, DELHI BENCHES “D”: DELHI
Before: SHRI BHAVNESH SAINI & SHRI B.R.R. KUMAR
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES “D”: DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER ITA.No.5401/Del./2016 Assessment Year 2009-2010 Shri Karam Chand, s/o. Shri Malik Ditta, The Income Tax Officer, C/o. M/s. Kissan Agro vs., Properties, Khema Khatti Ward – 1, Road, Opp. Thakkar Hospital, Fatehabad. Fatehabad. PAN BAKPC5601C (Appellant) (Respondent) For Assessee : Shri Salil Kapoor, And Ms. Somya Singh, Advocates For Revenue : Shri J.K. Mishra, CIT-D.R. Date of Hearing : 15.10.2019 Date of Pronouncement : 15.10.2019 ORDER PER BHAVNESH SAINI, J.M.
This appeal by Assessee has been directed against the Order of the Ld. CIT(A), Hisar, Dated 08.08.2016, for the A.Y. 2009-2010.
2 ITA.No.5401/Del./2016 Shri Karam Chand, Fatehabad. 2. Briefly the facts of the case are that the the assessee jointly owned certain agricultural land with his three brothers and two sisters namely S/Shri Dharam Chand, Sohan Lal, Prem Chand, Maya Devi and Kaushalya Devi, all sons and daughters of late Shri Malik Ditta, resident of Fatehabad, measuring 106 kanals 18 marlas ( i.e.13.26 Acres) at Bhiva Basti, Fatehabad. The assessee's share in this land was under :
(1) 1/4th share in the land measuring 57 Kanals 18 Marlas (7.13 acres) at Bhiva Basti, Fatehabad, jointly owned by the assessee with S/Shri Dharam Chand, Sohan Lai and Prem Chand. (2) 1/6th share in the land measuring 49 Kanals (6.13 acres) at Bhiva Basti, Fatehabad, jointly owned by the assessee with the three bothers namely S/Shri Dharam Chand, Sohan Lai Chand and Prem Chand and two sisters namely Smt. Kaushalya Devi and Smt. Maya Devi.
3 ITA.No.5401/Del./2016 Shri Karam Chand, Fatehabad. 2.1. The A.O. noted that these lands are situated within the municipal limits and, therefore, undisputedly it is a Capital Asset within the meaning of sub-section (14) of the Section 2 of the Income Tax Act, 1961. During the year under consideration, the said land was sold by the assessee to M/s Soma New Town Pvt. Ltd. for a consideration of Rs.5,84,07,488/-. As per AIR information, inquiries were conducted by the A.O. with regard to incidence and payment of income- tax on account of capital gains by the assessee in respect of transfer of the abovementioned capital asset. The assessment was reopened under section 147 of the I.T. Act, 1961. Statutory notices were issued. The assessee filed return of income at NIL showing long term capital loss at Rs.13,01,339/- and no exemption have been claimed under sections 54, 54B, 54D, 54EC, 54ED and 54F of the I.T. Act. The A.O. after considering the material on record has adopted the fair market value @ Rs.5760/- per acre and computed long term capital gains at Rs.1,19,22,887/- arising out of transfer of land by
4 ITA.No.5401/Del./2016 Shri Karam Chand, Fatehabad. assessee to M/s Soma New Town Pvt. Ltd.. The Ld. CIT(A) confirmed the Order of the A.O. and also did not allow exemption as claimed by assessee.
The assessee in the present appeal has challenged the reopening of the assessment under section 148 of the I.T. Act and long term capital gains computed by authorities below and also claimed exemption/deduction under sections 54B and 54F of the I.T. Act, 1961.
We have heard the Learned Representative of both the parties. The assessee has filed an application for admission of the additional evidences which are as follows :
Certificate from the Tehsildar dated 05.02.2018, certifying the said land to be more than 5KM outside the municipal limits of Fatehabad. 2. Certificate from the Tehsildar dated 19.04.2017 and 07.09.2017 all stating that the land is beyond 5KM from municipal limits of Fatehabad.
5 ITA.No.5401/Del./2016 Shri Karam Chand, Fatehabad. 3. Letter dated 31.10.2017, 10.11.2017 and 06.1 1.2017 of PWD B&R Branch, Fatehabad, certifying that the metaled road from Municipal Limits of Fatehabad towards the said land is 3.2 KM and the rest of the road is ‘kacha road’ 4. Certificate from Tehsildar dated 16.01.2018 certifying that the balance road (kacha road) towards the said land is 2KM proving that the total distance is 5.2 KM. 5. Copy of the Notification under section 2(lA)(c), Proviso, Clause (II)(B) and section 2(14)(III)(B) of the Income-tax Act, 1961 dated 06.01.1994. 6. Certified copy dated 05.02.2018 of the Area Map showing the land of the assessee and the adjoining lands of the other family members. 7. Google maps showing the distance of 5.13 KM from the municipal limit of Fatehabad.
4.1. Learned Counsel for the Assessee submitted that these documents go to the root of the matter and are necessary to determine the tax liability. He has submitted that in the case of co-owner Shri Dharm Chand, the ITAT, Delhi B-Bench, vide Order Dated 09.09.2019 in
6 ITA.No.5401/Del./2016 Shri Karam Chand, Fatehabad. ITA.No.5400/Del./2016 for the A.Y. 2009-2010 has similarly admitted the additional evidences and restored the matter back to the file of A.O. for fresh decision after taking into consideration the additional evidences. It is covered matter. The Order Dated 09.09.2019 is reproduced as under :
“IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: ‘B’ NEW DELHI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER ITA No.5400/Del/2016 Assessment Year: 2009-10 Shri Dharm Chand, Income-tax Officer, vs C/o M/s Kissan Agro Properties, Khema Khatti Ward -1, Road, Opp. Thakkar Hospital, Fatehabad. Fatehabad. PAN: BAKPC5602C Respondent Appellant Assessee by : Shri Salil Kapoor, Advocate Shri Shivansh Panoya, Advocate. Department by : Ms Ashima Neb, Sr. DR Date of Hearing : 13.08.2019 Date of Pronouncement : 09.09.2019
7 ITA.No.5401/Del./2016 Shri Karam Chand, Fatehabad. ORDER PER NARASIMHA K. CHARY, JM
Aggrieved by the order dated 08.08.2016 in Appeal No. 95/2014-15 passed by the Learned Commissioner of Income-tax (Appeals), Hissar {“CIT(A)”} for Assessment Years 2009-10, assessee preferred this appeal.
Brief facts of the case are that during the Financial year 2008-09, the assessee sold certain agricultural land to M/s Soma New Town for a consideration of Rs.79,08,778/- and Rs.44,62,062/- on account of two plots of land. In one plot he is the co-owner with three other brothers whereas in respect of the other besides the four brothers, two sisters were also there.
On receipt of AIR information, ld. AO made enquiries and resorted to the proceedings u/s 147 of the Income-tax Act, 1961 (‘the Act’) after recording reasons and by issuance of notice u/s 148 on
8 ITA.No.5401/Del./2016 Shri Karam Chand, Fatehabad. 2.8.2013. Learned AO found that the assessee filed return of income showing nil income. He concluded the proceedings by order dated 24.11.2014 u/s 143(3)/147 of the Act by assessing the income of the assessee at Rs.1,21,97,890/-.
Aggrieved by the said addition, assessee preferred appeal before the CIT(A) and the ld. CIT(A) by order dated 8.8.2016 gave partial relief and the addition qua the disallowance of claim of agricultural income was deleted while confirming the addition qua the long term capital gains.
At the outset, it is the submission on behalf of the assessee that the assessee being an agriculturist not aware of income-tax procedures and nuances involved therein and therefore, could not produce the documentary evidence at an earlier stage but subsequently, on being advised they have gathered some evidence in the shape of certificate from Tehsildar to the effect that the lands are
9 ITA.No.5401/Del./2016 Shri Karam Chand, Fatehabad. situated beyond 5 kms outside the municipal limits of Fatehabad; Letter of PWD B&R Branch, Fatehabad showing that the metalled road from municipal limits of Fatehabad towards the disputed land is 3.2 KM and the rest of the road is ‘kacha road’; certificate from the Tehsildar to show that the balance road, which is a ‘kacha road’ is about 2 km proving thereby showing the total length of distance at 5.2 kms; Notification u/s 2(1A)(c), Proviso, Clause (ii)(b) and Section 2(14)(III)(B) of the Income-tax Act, area map and Google maps etc. and since these documents would go to the root of the matter and necessary to determine the tax liability, these documents may kindly be admitted for complete and effective adjudication of the matter.
It is further submitted that the two sisters of the assessee by the name Kaushalya Devi and Maya Devi also met with the same fate before the authorities below and they prefer ITA No.5393 and 5403/Del/2016 and they also being placed in
10 ITA.No.5401/Del./2016 Shri Karam Chand, Fatehabad. identical situation produced addition evidence in support of their claim and the Tribunal by order dated 16.3.2018 accepted additional evidence and restored the matter to the file of the ld. AO with a direction to adjudicate the issue afresh in the light of additional evidence by following the directions given in the case of Virender Singh vs ITO, ITA No.3166/ Del/2010 by order dated 27.6.2014. It is submitted that in view of the similarity of the facts, the same course would be followed in this matter also.
We have heard the learned DR on this aspect also. Both Kaushalya Devi and Maya Devi preferred appeals before this Tribunal and such appeals were disposed of by order dated 16.3.2018 holding that the evidence sought to be produced goes to the root of the matter. Further the Bench noticed the decisions in the case of Virender Singh and also ITO vs Praveen Kumar, ITA.No.3839/Del/2012 order dated 21.10.2016 and considering the factual matrix, set aside the order and remanded the issue to the file of
11 ITA.No.5401/Del./2016 Shri Karam Chand, Fatehabad. the ld. AO to adjudicate the issue afresh in the light of the decision in the case of Virender Singh (supra) after giving an opportunity of being heard to the assessee.
We are convinced with the facts and grounds in all these matters are identical so also the plea taken in respect of filing of the additional evidence. On a consideration of the nature of the evidence sought to be produced, we are satisfied that such evidence has a bearing on the extent of liability to tax of the assessee. We, therefore, find that the evidence sough to be produced is relevant and since all the endeavor of the authorities under the Income- tax Act is to reach the just tax liability of the assessee, we are of the considered opinion that no prejudice would be caused to any of the parties by admitting all the additional evidence and setting aside the matter to the ld. AO to appreciate the contentions of the assessee in the light of such additional evidence.
12 ITA.No.5401/Del./2016 Shri Karam Chand, Fatehabad. 9. We accordingly allow the additional evidence to be produced and while setting aside the impugned order, remand the matter to the file of the ld. AO for disposing it afresh after taking into consideration the additional evidence in the light of the directions given in the case of Virender Singh vs ITO.
In the result, appeal of the assesee is allowed for statistical purposes.”
The Ld. D.R. did not object to the request of the assessee.
After considering the submissions of the both the parties, we are of the view that additional evidences goes to the root of the matter and in the case of co-owner Shri Dharm Chand, the same have been admitted for disposal of the matter and matter have been remanded to the file of A.O. Therefore, following the Order in the case of Shri Dharm Chand (supra), we admit the additional evidences. Since the A.O. has no occasion to examine these additional evidences, we set aside the Orders of the
13 ITA.No.5401/Del./2016 Shri Karam Chand, Fatehabad. authorities below and restore the matter in issue to the file of A.O. with a direction to re-decide the issue in the light of additional evidences and other material on record as is directed in the case of co-owner Shri Dharm Chand (supra), by giving reasonable, sufficient opportunity of being heard to the assessee.
In the result, appeal of Assessee allowed for statistical purposes.
Order pronounced in the open Court.
Sd/- Sd/- (B.R.R. KUMAR) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER Delhi, Dated 15th October, 2019 VBP/- Copy to 1. The appellant 2. The respondent 3. CIT(A) concerned 4. CIT concerned 5. D.R. ITAT “D” Bench 6. Guard File //By Order//
Asst. Registrar : ITAT : Delhi Benches : Delhi.