ITO, JAIPUR vs. POOJA AGARWAL, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर
IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR

Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k
BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, vk;dj vihy la-@ITA No. 927/JP/2012
fu/kZkj.k o"kZ@Assessment Year : 2008-09

Pooja Agrawal
D-5/A, Meera Marg,
Bani Park, Jaipur cuke
Vs.
The Asstt. Commissioner of Income-tax,
Circle-03, Jaipur
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AFRPA2680Q vihykFkhZ@Appellant izR;FkhZ@Respondent vk;dj vihy la-@ITA No. 84/JP/2013
fu/kZkj.k o"kZ@Assessment Year : 2008-09
D-5/A, Meera Marg,
Bani Park, Jaipur
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AFRPA2680Q vihykFkhZ@Appellant izR;FkhZ@Respondent

MA No. 23/JP/2022
(Arising out of vk;dj vihy la- ITA No. 927/JP/2012 & 84/JP/2013) fu/kZkj.k o"kZ@Assessment Year : 2008-09

Pooja Agrawal
D-5/A, Meera Marg,
Bani Park, Jaipur cuke
Vs.
The Asstt. Commissioner of Income-tax,
Circle-03, Jaipur
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AFRPA2680Q vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. P. C. Parwal, CA jktLo dh vksj ls@ Revenue by : Sh. Arvind Kumar CIT-DR &
Sh. Gautam Singh Choudhary, Addl. CIT
Pooja Agarwal vs. ACIT lquokbZ dh rkjh[k@ Dates of Hearing : Various finally on 11/03/2025
mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 28/04/2025

vkns'k@ ORDER

PER: RATHOD KAMLESH JAYANTBHAI, AM

Brief as to why this order:
Before this tribunal revenue as well as the assessee-appellant challenged the order of the learned Commissioner of Income Tax,
(Appeals-I), Jaipur dated 07.11.2012. The dispute relates to the assessment year 2008-09. That cross appeal were disposed off by a common order dated 31.01.2014 thereby the appeal of the revenue was dismissed and that of the assessee was allowed.

“ 3. Taking into consideration the evidence which has come on record, it seems that there are subsequent development which is required to be reconsidered by the Tribunal.
4. In that view of the matter, with a view to verify whether the distance of the land in question is more than 8 kilometer on the outskirts of Jaipur city is required to be re-verified by the Tribunal taking into consideration, the notification dt. 6th
January, 1994 issued by the Income Tax Department and judgment of this Court in Tax Appeal No. 75/2014. The Tribunal will consider both the notification and judgment and if required make a request to Revenue Authority not below Deputy
6. It is made clear that we have not expressed any opinion on merits and it will be open for the Tribunal to reconsider the same and take an independent view after taking into account the new facts after verification and it will not being influenced by the decision of this Court.”

(ii) Whether in the facts and circumstances of the case the Tribunal as well as the CIT (A) were justified in deleting the addition of Rs. 14,30,009/- which was made by the Assessing Officer disallowing 25% of the expenditure claimed by the assessee as neither any documents nor any details were submitted by the assessee in support of the said expenditure ?”
7. In respect of the first question of law Hon’ble High Court held as under:
4. In that view of the matter, with a view to verify whether the distance of the land in question is more than 8 kilometer on the outskirts of Jaipur city is required to be re-verified by the Tribunal taking into consideration, the notification dt. 6th January, 1994 issued by the Income Tax Department and judgment of this Court in Tax Appeal
No. 75/2014. The Tribunal will consider both the notification and judgment and if required make a request to Revenue Authority not below Deputy Collector to verify the distance from the outskirts of Jaipur to the land in question.
5. With the above direction, the matter is remitted back to the Tribunal only with a view to verify the distance.

Hon'ble Bench vide Order Sheet dated 02.08.2023 had appointed the undersigned as Court Commissioner for verification of facts.

Simultaneous directions, by the Hon'ble Bench, were issued to the State Land
Revenue Authorities.

A Report ("CC Report") dated 07.02.24 was submitted to the Hon'ble Tribunal by the undersigned along with the Report submitted by the State Land Revenue
Authorities ("SLRA Report"). Hon'ble ITAT vide note sheet entry dated 08.02.24
The contention of the Department, before the State Land Revenue Authorities, is that the outer limit, as on 22.12.2007, was "Jaipur Golden Pump, opposite Power
House".

The contention of the Assessee, in this regard, is that the outer limit of Jaipur as on 06.01.1994 was "Serva Mod".

Both the Parties have submitted detailed submission in support of their respective contentions before the State Land Revenue Authorities. Assessee has also submitted the map of Jaipur obtained under Right to Information Act, 2005. The State Land Revenue Authorities, although have measured the distance of the impugned land from both the referral points, but have given their finding regarding outer limit of Jaipur contained in Para 3 of the SLRA Report which is reproduced below:

The said SLRA Report has concluded the position of outer limit of Jaipur both as on 06.01.1994 and 22.12.2007. The said conclusion is contained in Para 5 of SLRA Report reproduced below:

(2) दनांक 22.12.2007 क ि-थत के अनुसार पांच /कलोमीटर पांच सौ मीटर स)या*पत
क जाती है।

Thus, in terms of the finding given by the State Land Revenue Authorities the outer limit of Jaipur as on 06.01.1994 is held to be "Serva Mod" Village, Amber, from where distance of the impugned land is 11.5 km.

The SLRA Report submitted by the State Land Revenue Authorities is self- speaking in this regard and is already placed on record.

Place: Jaipur

(RAJEEV SOGANI)
Date: 27th March, 2024

COURT COMMISSIONER

*वषय: Appeal in the case of Smt. Pooja Agarwal, MA 23/JPR/2022, ITA
927/JPR/2012, ITA 84/JPR/2012 for A.Y. 2008-09-reg-

Findings of the AO's from pg. no 4&5 of his assessment order are as follows: -
"The assessee was asked to justify the fulfillment of all the conditions as specified in this section for her claiming that the income is not chargeable to tax, than to justify her claim the copy of certificate dated 18.07.2008 signed by the Sarpanch of Gram Panchayat-
Kukas and letter dated 25.03.2010 on plain paper claimed to be signed by the Patwar
Halka of the village where the land sold is situated were filed.

The reply and the papers filed were examined under the light of provisions of the Act and the claim of the assessee was found to be totally wrong and incorrect and against the provisions of Act as contained in Section 2(14)(iii) read with provisions for charging the income under the head Capital gains.

The circle inspector was deputed to make inquiries, has reported that "The above mentioned land is situated 3.50 Kms. From Amer Chungi Naka and therefore is within 8
Kms. from the municipal limits of Amer and Jaipur." Report of the inspector dated
24.12.2010 is placed on the records.

It is mandatory for claiming that the asset is falling within the provisions of Section 2(14)(iii) that such claim fulfills certain conditions. The land sold by the assessee during the previous year is situated in Village Kukas, PatwarHalka, Nangal Susawatan,
Revenue Village & Tehsil - Amer, Distt. Jaipur. The map of Jaipur municipal limits prepared by Jaipur Nagar Nigam indicates that the land in dispute and sold by the assessee is situated within 8 KMs of Municipal Limits of Jaipur Nagar Nigam and the distance of it from the last point of the limit is not more than 3 to 4 KMs. Apart from the location of land within 8 KMs of Municipal limit of Jaipur Nagar Nigam, it is also within 8
KMs from Amer, a town having the population of more than 10,000 as per census of the year 2001. Further the assessee had not filed any of the certificate issued by the Tehsildar or the Jaipur Municipal Commissioner to establish her contention as to location of disputed land outside the limit of 8 KMs. The copies of certificate and that also on plain paper cannot be considered as the proper evidence in establishing the claim of the assessee.
It is therefore established that the land so sold by the assessee was outside the purview of provisions of section 2(14)(iii) of the Act. When this was brought to the notice of the assessee, then it was claimed that the agriculture activity was carried out on the land and the same is an agricultural land. The issues and the contention raised by the assessee also found not acceptable in view of the ruling of the Apex Court in the case of CIT Vs. Gemini Pictures CircutPvt. Ltd. (1995) 270 ITR 63. Therefore the benefit claimed by the assessee was found to be wrong and the entire income of Rs.6,38,40,000/-
Pooja Agarwal vs. ACIT derived from the sale of land to Quality Resorts & Hospitality Ltd., Mumbai is taken as an income chargeable to tax. The land was purchased by the assessee on 20.11.2007 from Shri Pradeep Bhati, Shri HP Choudhary and Shri G.C. Agarwal for Rs.54,72,000/- and was sold to Quality Resorts & Hospitality Ltd., Mumbai on 22.12.2007 for Rs.6,93,12,000/- resulting into a Short Term Capital Gain of Rs.6,38,40,000/- which is treated as income for the year and added to the income of the assessee for the year.

The assessee had intentionally filed inaccurate particulars of income which chargeable to tax by directly crediting to the capital and by claiming the same to be exempt for which I being satisfied that the assessee is liable for penalty u/s 271(1)(c) for which proceedings are initiated separately."

Subsequently, the assessee filed appeal before the Ld. CIT(A) against the order of the Assessing Officer.

The Ld. CIT(A) upheld the addition on the basis of findings of AO & further detailed investigation carried on by her. The findings of Ld. CIT(A) from para 6.4
at pg 7 of her order are as follows: -

"Given the gravity of the issue and the evidence brought on record, ample opportunity was given to the appellant to rebut this evidence brought on record. In response, a certificate was filed by her from Shri Mangal Chand Kumawat and the appellant herself filed an affidavit stating that the said piece of land was beyond 8 Km. from the Jaipur
Nagar Nigam limits. Once again this evidence was forwarded to the AO for necessary verification. The report of the AO has been reproduced earlier in this order.

In the statement taken of Pooja Agarwal, by the AO, on 24/09/2012 to verify the averments made in the affidavit filed by her, she responded to question no. 6 as follows:

"Mी मंगल चंद जी कुमावत ने मेरे साथ जाकर कार से सवN /कया था एवं दूर ना पीथी। यह दूर
उ8हOने कार से नापी थी तथा इसके बाद उ8हOने मेरे कहने से यह सट /फकेट जार /कया था।
इसके अलावा उ8हOने मेजरम@ट /कया और /फर मुझे 'माण प& करदया। िजस का मेहनताना के
Rप म@ मSने उनको T 5000 नकद दये थे। मS Mीमगल चंद जी को इस लये जानती है 2यO/क वो
एक आ/क टे2ट है और हमारा construction का business है।"

Further in response to question no. 10 she stated that she had made the averments on the basis of the certificate issued by the official of the Jaipur Nagar Nigam dated
06/07/2011 and the certificate issued by the architect Shri Mangal Chand Kumawat.
On perusal of the statements of Shri Mangal Chand Kumawat it is seen that the certificate was issued to him in lieu of payment of Rs.5,000/-. Не states that he had issued this certificate as an architect, and that he is not a Registered Valuer in any department. He admitted that he is an employee in Pooja Construction Ltd. for 2 to 3
years which was the company of the father of the appellant Shri Girish Agarwal. He has admitted that this certificate has not been issued under any law and that Ms Pooja
Agarwal took him in her car and did what was asked of him by her. In response to question no. 6 he states-as follows:

"मुझे नह ं पता /क मेरे #वारा जार /कये गये 'माण प& म@ जो क*ष भू म क बात क है क
कौन से गाँव म@ ि-थत है व उसका खसरा नWबर इ)याद 2या है। मैन ह जानता मुझे तो जो
क*ष भू म सुMी पूजा अ4वाल ने क*ष भू म दखाई थी और उ8हOने कहा था /क यह क*ष भू म
है. आपतो यहां तक क दूर बता दे। इस लये मैने उनके #वारा बताई गई क*ष भू म तक क
दूर उनके Milo Meter से नापकर बताई थी।

As per the certificate issued by Shri Mangal Chand Kumawat it is seen that it is unreliable and invalid evidence because Shri Mangal Chand Kumawat did not have any qualification for issuing such a certificate, nor was he a Govt. Registered Valuer. In fact he was merely an employee of a construction company of the father of the appellant who had issued this certificate at the behest of the appellant for payment of Rs.5,000/-.

Thus the certificate was prepared at the direction of the appellant and is held to be unreliable evidence.

The affidavit by Ms Pooja Agarwal was filed on the basis of the certificates issued by Shri Dinesh Pareek dated 06/07/2011 and the certificate prepared by Shri Mangal Chand
Kumawat as admitted in her statements. Both these certificates have been held to be invalid. in the case of the certificate issued on 06/07/2011 by Shri Dinesh Pareek he himself admitted that it was not issued on the basis of physical verification but on the basis of the certificate issued by the Sarpanch. Subsequently after making the physical verification Shri Dinesh Pareek categorically stated on 21/02/2012 that the certificate issued by him on 06/07/2011 was invalid.
8. The next submission is regarding the population of Amer being less than 10000 as per the census of the 2001. It is seen as per the information filed by the AR of the assessee that as per the office of the