MAHABIR,GURGAON vs. ITO, WARD- 2(5), GURGAON
Income Tax Appellate Tribunal, DELHI BENCHES: F : NEW DELHI
Before: SHRI ANUBHAV SHARMA & SHRI AMITABH SHUKLA
PER ANUBHAV SHARMA, JM:
These are appeals preferred by the assessee against the orders dated
10.12.2018 and 31.01.2019 of the Commissioner of Income-tax (Appeals)-1,
Gurgaon (hereinafter referred to as the ld. First Appellate Authority or ‘the Ld.
FAA’ for short) in Appeals No.47/17-18, A.Y. 2013-14 and 48/17-18, A.Y.
2013-14 arising out of the appeals before it against the orders dated 26.02.2016
and 29.08.2016 passed u/s 144 r.w.s. 147 and u/s 271(1)(c) of the Income Tax
Act, 1961 (hereinafter referred as ‘the Act’) by the ITO, Ward-2(5), Gurgaon
ITAs No.879 & 2597/Del/2019
and ITO, Ward 2(4), Gurgaon, (hereinafter referred to as the Ld. AO), respectively.
On hearing both the sides, we find that primarily the dispute in the assessee’s appeal in ITA No.879/Del/2019 is with regard to the rival claims of the assessee and the Department as to if the land sold by the assessee falls in the definition of capital asset and is not agricultural land. The background is that the AO received information about the assessee selling certain land along with co-sharers. This land was situated in the village Dhunela, Sohna, Gurgaon. The case of the assessee was reopened and, after examining the sale deeds, the AO noted that as per the verification of the Tehsildar, Gurgaon, the distance to the village Dhunela from the Municipal Council, Gurgaon, was 1.5 Kms.
The case of the assessee is that it is not an agricultural land and it is by way of Notification dated 06.01.1994 of the Central Government the land should have been examined and as in Sohna, District Gurgaon, area upto 5 Kms. from the Municipal limits in all directions has to be considered not agricultural. The case of the assessee was incorrectly opened. The assessee relies copy of certificate dated 25.06.2018 of the Tehsildar, Sohna certifying the distance of land as on 06.01.1994 was 6 Kms. From Nagar Palika, Sohna. The copy of the certificate was provided at pages 72-73 of the paper book.
ITAs No.879 & 2597/Del/2019
The ld. DR has defended the reopening submitting that as the AY 2013- 14 is involved, the date of notification is not relevant and distance as on the date of execution of sale deed is relevant.
In this context, we find that the law is well settled that the relevant date would be the date of Notification and unless there is subsequent notification, the same holds the ground. Reliance can be placed on the decisions of the Jaipur Tribunal in the case Satya Dev Sharma vs. ITO (2014) 149 ITD 0725 and in the case of Smt. (Dr.) Subha Tripathi vs. DCIT (2013) 58 SOT 0139; Lavleen Singhal vs. DCIT (2007) 111 TTJ 0326 (Del); Shri Prahlad Singh vs. ITO, SA No.436/Del/2017 & ITA No.3375/Del/2017, order dated 11.05.2018 (ITAT, Delhi). In Ashish Gupta v. ITO [2024] 163 taxmann.com 739 (Delhi – Trib.), the coordinate Bench at Delhi has ruled that since no Notification was issued after 6th January, 1994, the expansion of Municipal limits thereafter is irrelevant and should be disregarded.
On the basis of the aforesaid, if we examine the reasons recorded, the copy of which is placed at pages 2 & 2A of the paper book, the AO has not made any reference of the fact that if the issue was examined from the point of view of applicability of the Notification of the CBDT No.9447/F.No.164/3/87- ITA-I dated 06.01.1994, the ld. AO has merely relied the certificate from Tehsildar, Gurgaon.
ITAs No.879 & 2597/Del/2019
Then, the copy of sale deed on record from pages 3 to 9 show that at the time of registration, it was mentioned that the sale deed is being executed of agricultural land and from the endorsement of Sub-