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Income Tax Appellate Tribunal, DELHI BENCH “SMC”, NEW DELHI
Before: SHRI R. K. PANDA
O R D E R
PER R. K. PANDA, AM :
This appeal filed by the assessee is directed against the order dated 28.11.2016 of CIT(A), Ghaziabad relating to assessment year 2008-09.
Although, a number of grounds have been raised by the assessee, they all relate to the order of the ld. CIT(A) in sustaining the addition of Rs.10,40,115/- by treating the sale of agricultural land by the assessee as capital asset as defined u/s 2(14) of the I.T. Act. 3. Facts of the case, in brief, are that the assessee is an individual and has sold two pieces of land with 21 other co-owners situated at Gate No.20A and 202B of Khata No.07 in Village Jokhabad, Sikandrabad, Distt. Bulandshahr and received a sum of Rs.2,98,723/- and also sold land at gata 204 with other 8 co- owners with his share being Rs.7,92,952/-. However, no return of income was filed by the assessee. The Assessing Officer initiated reassessment proceedings and in response to notice u/s 148 issued on 27.03.2015 the assessee filed return of income declaring agricultural income of Rs.60,000/- and income from other sources of Rs.200/-. The Assessing Officer treated the share of receipts on sale of above said lands (Rs.2,98,723 + Rs.7,92,952 = Rs.10,91,675) as capital gains and after necessary adjustment computed Long Term Capital Gain of Rs.10,40,115/-. He, however, accepted agricultural income of Rs.60,000/- and income from other sources of Rs.200/-.
Before the ld. CIT(A), the assessee mad elaborate submissions.
However, the ld. CIT(A) dismissed the appeal filed by the assessee by observing as under :-
“5. Appellate findings: The submission of the appellant, assessment order all the case laws referred to therein have been duly considered. 5.1 Ground nos.1, 2 & 3: The appellant has challenged the treatment of land sold by appellant as capital asset in accordance with provisions of section 2(14) by the AO. During the course of appellate proceedings, the appellant submitted that the land in question should be treated as rural agricultural land because it is situated in 5 kilometers away from local limits of Sikandrabad and beyond 1 kilometer from Ghaziabad-Sikandrabad National Highway. Further, appellant stated that permission of change of land use has been taken by the purchase of the land after sale deed has been executed. Appellant challenged the treatment of the said land as capital asset within the definition of capital asset as per section 2(14) read with notification SO no.9447 dt.06.01.1994 by AO. 5.1.1 The above said circular specifies that the purpose of Sikandrabad Municipality area falling within 1 kilometer on either side of Ghaziabad-Sikandrabad road and Sikandrabad-bulandshahr road up to a distance of 8 kilometers from municipal limit of these roads to be treated as capital asset in accordance with per section 2(14). Appellant has disputed that the land which he has sold is beyond 1 km of Sikandrabad-Ghaziabad Road. However, examination of certificate issued by Tehsildar on 04.11.2015 wherein it has been certified that the distance from said land from the above mentioned road is less than one kilometer. This fact is also supported by the description of property given in the sale deed wherein it has been mentioned that approximate distance of the said land is 1 kilometer. Appellant further contended that Tehsildar has given distance certificate as per crow fly distance, claim to rebut the certificate of Revenue Officer issued stating that the distance of said land is less than 1 km from the Ghaziabad-Sikandrabad Road. Keeping in view the above facts the action of the AO upholding the sold land as capital asset within the meaning of section 2(14) is upheld. As far as principle of natural justice is concern during appellate stage appellant got ample of opportunities to support his claim with sufficient evidence and to rebut the arguments given by AO in the assessment order, satisfying the principle of natural justice. Thus, there grounds of appeal are dismissed.”
5. Aggrieved with such order of the ld. CIT(A), the assessee is in appeal before the Tribunal.
6. Ld. counsel for the assessee at the outset submitted that the ld. CIT(A) while dismissing the appeal of the assessee vide order dated 28.11.2016 has incorporated the submissions made by another assessee. When the mistake was pointed out, the ld. CIT(A) passed an order u/s 154 on 08.02.2017 and incorporated the submissions made by the assessee. However, his findings remained the same without any verification. He submitted that the submission made by the assessee is different from the earlier submission incorporated by the ld. CIT(A) in case of some other person. Therefore, the ld. CIT(A) should have applied her mind before coming to the conclusion. Since the same has not been done, therefore, the order of the ld. CIT(A) be set-aside and the grounds raised by the assessee should be allowed.
7. Ld. DR on the other hand submitted that since the ld. CIT(A) has not considered the submissions made by the assessee, therefore, this matter may be restored to the file of the ld. CIT(A) with a direction to adjudicate the issue afresh.
8. I have considered the rival arguments made by both the sides and perused the material available on record. The dispute in the present appeal is relating to the treatment of the land sold by the assessee. According to the assessee, the land is an agricultural land whereas according to the Revenue, the same is capital asset. The dispute is also regarding the distance between the agricultural land and the nearby town. Different certificates have been filed in the Paper Book by different persons from different authorities. Further, the submission of the assessee, which was incorporated by the ld. CIT(A) in her 154 order has not been considered in her final decision. The decision given in the order dated 28.11.2016 remains unchanged although she has rectified the paragraphs relating to the submissions made by the assessee. Considering the totality of the facts of the case and in the interest of justice, I deem it proper to restore the issue to the file of the ld. CIT(A) with a direction to decide the issue afresh and in accordance with law after giving due opportunity of being heard to the assessee. The ld. CIT(A) shall consider the certificates/evidences filed by the assessee to substantiate his case. I hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open Court at the time of hearing itself i.e. on this 22nd day of November, 2017.