ADITYA CHOUDHARY,JAIPUR vs. ITO, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh dqy Hkkjr] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 520/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2012-13 cuke Shri Aditya Choudhary The ITO Vs. B-501, Auram Apartment, Tilak Ward- 1(3) Marg, C-Scheme, Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AENPC 6763 K vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by :Shri Anup Bhatia, CA jktLo dh vksj ls@ Revenue by: Shri Prem Prakash Meena, JCIT-DR lquokbZ dh rkjh[k@ Date of Hearing : 23/01/2017 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 27 /01/2017 vkns'k@ ORDER PER KUL BHARAT, JM This appeal of the assessee is directed against the order of the ld. CIT (A)-1, Jaipur dated 09-02-2016 pertaining to assessment year 2012- 13. The assessee has raised following grounds of appeal:- 1. On the facts and in the circumstances of the case and in law the Commissioner (Appeals) erred in deciding the case on 9th February 2016 without considering the power of attorney submitted on 4th February 2016. Thus opportunity of being heard as requested was

2 ITA No. 520/JP/2016 Shri Aditya Choudhary vs. ITO , Ward- 1(3), Jaipur . not duly provided to the assessee. However the assessee has filed a rectification application u/s 154 on 21.04.2016. 2. On the facts and in the circumstances of the case and in law the land transferred by the assessee was rural agriculture land; transfer thereof was not chargeable to income tax. Whereas same has been wrongly taxed by the assessing officer. 3. On the facts and in the circumstances of the case and in law the Commissioner (Appeals) erred in not holding that the agriculture land under consideration was beyond 8 kms from the limits of Jaipur Municipal area as on 06.01.1994 (i.e. the date of issuing relevant notification no. 9447/F.No. 164/3/87-ITA-1 dated 6.1.1994). Both the assessing officer and CIT (Appeals) have not tried to find out and consider the status of said land as on the date of notification i.e. 6-1-1994. 4. On the facts in the circumstances of the case and in law the Commissioner (Appeals) erred in not applying the rationale of Pooja Agarwal, Jaipur vs. CIT case for the assessment year 2008- 09 passed by the Hon'ble ITAT, Jaipur Bench on 22.01.2014 wherein it is held that no authority other than the Sarpanch and Patwari of the same village can be so authentic to state and certify that the sold land is situated at a distance of more than 8 kms from the local limit of the related municipality. Whereas both the Assessing Officer as well as CIT(Appeals) have relied upon the report of Tehsildar, Sanganer only and not tried to make any inquiry with the Sarpanch or Patwari of the concerned village. 5. The appellant prays that the long term capital gain addition of Rs. 1,65,21,259/- made in the total income of the assessee, may accordingly be deleted.

the ld. CIT (Appeals) did not provide sufficient opportunity to the

assessee to represent his case. He submitted that the impugned order was

3 ITA No. 520/JP/2016 Shri Aditya Choudhary vs. ITO , Ward- 1(3), Jaipur . passed in the absence of the assessee. Further, he submitted that at least

an opportunity be granted on the aforesaid issue and thus the appeal may

be restored to the file of Ld. CIT (Appeals) for afresh decision in the

interest of principle of natural justice and fair play.

on the order of the ld. CIT (Appeals).

and also gone through the orders of the authorities below. It is not in

dispute with regard to the impugned order which was passed by the ld.

CIT (Appeals) in the absence of the assessee. After considering the

totality in the facts of this case, we are of the considered view that in the

interest of justice the assessee be granted as last opportunity to represent

his case before the ld. CIT (Appeals). Therefore the grounds of appeal

raised by the assessee are restored to the file of the ld. CIT (Appeals) for

afresh decision. Hence the appeal of the assessee is allowed for statistical

purpose only.

4 ITA No. 520/JP/2016 Shri Aditya Choudhary vs. ITO , Ward- 1(3), Jaipur . 5. In the result, the appeal of the assessee is partly allowed for statistical purposes Order pronounced in the open court on 27 /01/2017. Sd/- Sd/- ¼ foØe flag ;kno ½ ¼dqy Hkkjr½ (Vikram Singh Yadav) (Kul Bharat) ys[kk lnL;@ Accountant Member U;kf;d lnL;@Judicial Member

Tk;iqj@Jaipur fnukad@Dated:- 27/01/ 2017 *Ganesh आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू

vihykFkhZ@The Appellant- Shri Aditya Choudhary, Jaipur 1. 2. izR;FkhZ@ The Respondent- The ITO,Ward- 1 (3), Jaipur vk;dj vk;qDr¼vihy ) @ CIT(A), 3. 4. vk;dj vk;qDr@ CIT, विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No.520/JP/2016) 6.

vkns'kkuqlkj@ By order,

सहायक पंजीकार@ Aेेपेजंदज. त्महपेजतंत