SAYDA,GHAZIABAD vs. ITO, WARD- 2(3), GHAZIABAD

The Assessee has filed the Appeal against the Order dated 02.1.2018 of the Ld. CIT(A), Ghaziabad pertaining to assessment year 2009-10 on the following grounds:- i) On the facts and circumstances of the case the order of Ld. CIT(A) is bad in both in the eyes of law and on facts. ii) That on the facts and circumstances of the case the Ld. CIT(A) has erred in law in upholding the order of AO making an addition of Rs. 21,80,700/- by treating amount realized from sale of agricultural land as sale of residential property and taxing the same as short term capital gain. iii) That on the facts and circumstances of the case the Ld. CIT(A) erred in law in treating agricultural land as residential plot even when there was no conversion of the land use made by the appellant. iv) That on the facts and circumstances of the case the Ld. CIT(A) has erred in law in law in not admitting the crucial evidences in accordance with Rule 46A and omitting to adjudicate on the contention and claim of the appellant. v) That the appellant craves leave to add / alter all or any of the grounds of appeal before or at the time of hearing of the appeal.

2. The facts narrated by the revenue authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of convenience.

3. At the time of hearing, Ld. Counsel for the assessee stated that it is a case where the Ld. CIT(A) has not admitted the crucial evidences in accordance with Rule 46A and omitting to adjudicate on the contention and claim of the assessee which were filed during the appellate proceedings and which are very essential in considering the issues in dispute and therefore, he requested that the same may be admitted and issues in dispute may be set aside to the AO for fresh adjudication, after giving adequate opportunity of being heard to the assessee. In support of his contention he filed the letter dated 27.12.2017 issued by the Tehsildar, Ghaziabad stating that the land situated at Khata No. 317, Khasra No. 1037, Village Muhinddinpur, Dhabarsi, Pargaon Dasna, Tehsil and District, Ghaziabad, UP is beyond 8 KM from the local limits of Municipal Corporation of Ghaziabad. He also filed a Paper Book containing pages 1-64 in which he has attached the copy of ITR alongwith computation of income; Purchase deed of land situated at Khasra No. 1067, Village Muhiuddinpur Dhaharsi, Pargana Dasna, Tehsil and District Ghaziabad; sale deed dated 16.3.2009 for sale of land situated at Khasra No. 1067, Village Muhiuddinpur Dhaharsi, Pargana Dasna, Tehsil and District Ghaziabad; Copy of khasra and khatauni issued by the Tehsildar in respect of aforementioned property; Notification No. (SO 9447) (File No. 164/3/870ITA,I) dated 6.1.1994; Copy of Section 143 of UP Zamindari Abolition and Land Reform Act, 1950; Copy of written submission submitted before CIT(A); Copy of affidavit stating No. change in land use; Copy of details of land downloaded from Government website www.upbhulekh.gov.in.

4. On the contrary, Ld. DR relied upon the order of the authorities below and stated that Ld. CIT(A) has rightly rejected the additional evidences filed by the Assessee u/r 46A.

5. I have heard both the parties and perused the records especially the orders of the revenue authorities, copy of additional documents filed u/r 46A of the Income Tax Rules and various documents viz. letter dated 27.12.2017 issued by the Tehsildar, Ghaziabad stating that the land situated at Khata No. 317, Khasra No. 1037, Village Muhinddinpur, Dhabarsi, Pargaon Dasna, Tehsil and District, Ghaziabad, UP is beyond 8 KM from the local limits of Municipal Corporation of Ghaziabad and the copy of ITR alongwith computation of income; Purchase deed of land situated at Khasra No. 1067, Village Muhiuddinpur Dhaharsi, Pargana Dasna, Tehsil and District Ghaziabad; sale deed dated 16.3.2009 for sale of land situated at Khasra No. 1067, Village Muhiuddinpur Dhaharsi, Pargana Dasna, Tehsil and District Ghaziabad; Copy of khasra and khatauni issued by the Tehsildar in respect of aforementioned property; Notification No. (SO 9447) (File No. 164/3/870ITA,I) dated 6.1.1994; Copy of Section 143 of UP Zamindari Abolition and Land Reform Act, 1950; Copy of written submission submitted before CIT(A); Copy of affidavit stating No. change in land use and Copy of details of land downloaded from Government website www.upbhulekh.gov.in. After careful consideration of these documents, I find considerable cogency in the submissions of the Ld. counsel for the assessee that Ld. CIT(A) was not justified in rejecting the additional evidences filed u/R 46A. I further note that now the assessee has furnished the copies of those documents which were furnished by the assessee during the course of appellate proceedings in the shape of application u/r 46A, which are very much relevant and essential in adjudicating the issues in dispute. Hence, in the interest of justice, I admit the aforesaid said additional evidences and set aside the issues in dispute to the file of the AO with the directions to decide the same, afresh, as per law, after giving adequate opportunity of being heard to the assessee and pass a speaking order.