Referred Sections:
sub-section (14) of the Act
Section 2 of the Income Tax Act, 1961.
Section 147 of the I.T. Act, 1961.
Sections 54, 54B, 54D, 54EC, 54ED and 54F of the I.T. Act.
Section 148 of the I.T. Act
Section 2(lA)(c),
Section 2(14)(III)(B) of the Income-tax Act, 1961
Referred Cases / Judgments:
Virender Singh vs ITO, ITA No.3166/ Del/2010 by order dated 27.6.2014.
Virender Singh and also ITO vs Praveen Kumar, ITA.No.3839/Del/2012
Virender Singh vs ITO.
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES "D": DELHI
BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER
AND
SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER
ITA.No.5401/Del./2016
Assessment Year 2009-2010
Shri Karam Chand,
s/o. Shri Malik Ditta, The Income Tax Officer,
C/o. M/s. Kissan Agro
Properties, Khema Khatti vs., Ward 1,
Road, Opp. Thakkar
Hospital, Fatehabad. Fatehabad.
PAN BAKPC5601C
(Appellant) (Respondent)
Shri Salil Kapoor, And
For Assessee : Ms. Somya Singh, Advocates
For Revenue : Shri J.K. Mishra, CIT-D.R.
Date of Hearing : 15.10.2019
Date of Pronouncement : 15.10.2019
ORDER
PER BHAVNESH SAINI, J.M.
This appeal by Assessee has been directed
against the Order of the Ld. CIT(A), Hisar, Dated
08.08.2016, for the A.Y. 2009-2010.
2
ITA.No.5401/Del./2016
Shri Karam Chand, Fatehabad.
2. Briefly the facts of the case are that the the
assessee jointly owned certain agricultural land with his
three brothers and two sisters namely S/Shri Dharam
Chand, Sohan Lal, Prem Chand, Maya Devi and
Kaushalya Devi, all sons and daughters of late Shri
Malik Ditta, resident of Fatehabad, measuring 106
kanals 18 marlas ( i.e.13.26 Acres) at Bhiva Basti,
Fatehabad. The assessee's share in this land was under :
(1) 1/4th share in the land measuring 57 Kanals
18 Marlas (7.13 acres) at Bhiva Basti,
Fatehabad, jointly owned by the assessee with
S/Shri Dharam Chand, Sohan Lai and Prem
Chand.
(2) 1/6th share in the land measuring 49 Kanals
(6.13 acres) at Bhiva Basti, Fatehabad, jointly
owned by the assessee with the three bothers
namely S/Shri Dharam Chand, Sohan Lai
Chand and Prem Chand and two sisters
namely Smt. Kaushalya Devi and Smt. Maya
Devi.
3
ITA.No.5401/Del./2016
Shri Karam Chand, Fatehabad.
2.1. The A.O. noted that these lands are situated
within the municipal limits and, therefore, undisputedly
it is a Capital Asset within the meaning of sub-section
(14) of the Section 2 of the Income Tax Act, 1961. During
the year under consideration, the said land was sold by
the assessee to M/s Soma New Town Pvt. Ltd. for a
consideration of Rs.5,84,07,488/-. As per AIR
information, inquiries were conducted by the A.O. with
regard to incidence and payment of income- tax on
account of capital gains by the assessee in respect of
transfer of the abovementioned capital asset. The
assessment was reopened under section 147 of the I.T.
Act, 1961. Statutory notices were issued. The assessee
filed return of income at NIL showing long term capital
loss at Rs.13,01,339/- and no exemption have been
claimed under sections 54, 54B, 54D, 54EC, 54ED and
54F of the I.T. Act. The A.O. after considering the
material on record has adopted the fair market value @
Rs.5760/- per acre and computed long term capital gains
at Rs.1,19,22,887/- arising out of transfer of land by
4
ITA.No.5401/Del./2016
Shri Karam Chand, Fatehabad.
assessee to M/s Soma New Town Pvt. Ltd.. The Ld. CIT(A)
confirmed the Order of the A.O. and also did not allow
exemption as claimed by assessee.
3. The assessee in the present appeal has
challenged the reopening of the assessment under section
148 of the I.T. Act and long term capital gains computed
by authorities below and also claimed
exemption/deduction under sections 54B and 54F of the
I.T. Act, 1961.
4. We have heard the Learned Representative of
both the parties. The assessee has filed an application
for admission of the additional evidences which are as
follows :
1. Certificate from the Tehsildar dated 05.02.2018,
certifying the said land to be more than 5KM
outside the municipal limits of Fatehabad.
2. Certificate from the Tehsildar dated 19.04.2017
and 07.09.2017 all stating that the land is
beyond 5KM from municipal limits of
Fatehabad.
5
ITA.No.5401/Del./2016
Shri Karam Chand, Fatehabad.
3. Letter dated 31.10.2017, 10.11.2017 and 06.1
1.2017 of PWD B&R Branch, Fatehabad,
certifying that the metaled road from Municipal
Limits of Fatehabad towards the said land is 3.2
KM and the rest of the road is `kacha road'
4. Certificate from Tehsildar dated 16.01.2018
certifying that the balance road (kacha road)
towards the said land is 2KM proving that the
total distance is 5.2 KM.
5. Copy of the Notification under section 2(lA)(c),
Proviso, Clause (II)(B) and section 2(14)(III)(B) of
the Income-tax Act, 1961 dated 06.01.1994.
6. Certified copy dated 05.02.2018 of the Area Map
showing the land of the assessee and the
adjoining lands of the other family members.
7. Google maps showing the distance of 5.13 KM
from the municipal limit of Fatehabad.
4.1. Learned Counsel for the Assessee submitted
that these documents go to the root of the matter and are
necessary to determine the tax liability. He has submitted
that in the case of co-owner Shri Dharm Chand, the ITAT,
Delhi B-Bench, vide Order Dated 09.09.2019 in
6
ITA.No.5401/Del./2016
Shri Karam Chand, Fatehabad.
ITA.No.5400/Del./2016 for the A.Y. 2009-2010 has
similarly admitted the additional evidences and restored
the matter back to the file of A.O. for fresh decision after
taking into consideration the additional evidences. It is
covered matter. The Order Dated 09.09.2019 is
reproduced as under :
"IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: `B' NEW DELHI
BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT
MEMBER
&
SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER
ITA No.5400/Del/2016
Assessment Year: 2009-10
Shri Dharm Chand, Income-tax Officer,
C/o M/s Kissan Agro vs
Properties, Khema Khatti Ward -1,
Road, Opp. Thakkar
Hospital, Fatehabad. Fatehabad.
PAN: BAKPC5602C
Appellant Respondent
Assessee by : Shri Salil Kapoor, Advocate
Shri Shivansh Panoya, Advocate.
Department by : Ms Ashima Neb, Sr. DR
Date of Hearing : 13.08.2019
Date of Pronouncement : 09.09.2019
7
ITA.No.5401/Del./2016
Shri Karam Chand, Fatehabad.
ORDER
PER NARASIMHA K. CHARY, JM
Aggrieved by the order dated 08.08.2016 in
Appeal No. 95/2014-15 passed by the Learned
Commissioner of Income-tax (Appeals), Hissar
{"CIT(A)"} for Assessment Years 2009-10, assessee
preferred this appeal.
2. Brief facts of the case are that during the
Financial year 2008-09, the assessee sold certain
agricultural land to M/s Soma New Town for a
consideration of Rs.79,08,778/- and Rs.44,62,062/-
on account of two plots of land. In one plot he is the
co-owner with three other brothers whereas in
respect of the other besides the four brothers, two
sisters were also there.
3. On receipt of AIR information, ld. AO made
enquiries and resorted to the proceedings u/s 147 of
the Income-tax Act, 1961 (`the Act') after recording
reasons and by issuance of notice u/s 148 on
8
ITA.No.5401/Del./2016
Shri Karam Chand, Fatehabad.
2.8.2013. Learned AO found that the assessee filed
return of income showing nil income. He concluded
the proceedings by order dated 24.11.2014 u/s
143(3)/147 of the Act by assessing the income of the
assessee at Rs.1,21,97,890/-.
4. Aggrieved by the said addition, assessee
preferred appeal before the CIT(A) and the ld. CIT(A)
by order dated 8.8.2016 gave partial relief and the
addition qua the disallowance of claim of agricultural
income was deleted while confirming the addition
qua the long term capital gains.
5. At the outset, it is the submission on
behalf of the assessee that the assessee being an
agriculturist not aware of income-tax procedures and
nuances involved therein and therefore, could not
produce the documentary evidence at an earlier stage
but subsequently, on being advised they have
gathered some evidence in the shape of certificate
from Tehsildar to the effect that the lands are
9
ITA.No.5401/Del./2016
Shri Karam Chand, Fatehabad.
situated beyond 5 kms outside the municipal limits of
Fatehabad; Letter of PWD B&R Branch, Fatehabad
showing that the metalled road from municipal limits
of Fatehabad towards the disputed land is 3.2 KM
and the rest of the road is `kacha road'; certificate
from the Tehsildar to show that the balance road,
which is a `kacha road' is about 2 km proving
thereby showing the total length of distance at 5.2
kms; Notification u/s 2(1A)(c), Proviso, Clause (ii)(b)
and Section 2(14)(III)(B) of the Income-tax Act, area
map and Google maps etc. and since these
documents would go to the root of the matter and
necessary to determine the tax liability, these
documents may kindly be admitted for complete and
effective adjudication of the matter.
6. It is further submitted that the two sisters of the
assessee by the name Kaushalya Devi and Maya
Devi also met with the same fate before the
authorities below and they prefer ITA No.5393 and
5403/Del/2016 and they also being placed in
10
ITA.No.5401/Del./2016
Shri Karam Chand, Fatehabad.
identical situation produced addition evidence in
support of their claim and the Tribunal by order
dated 16.3.2018 accepted additional evidence and
restored the matter to the file of the ld. AO with a
direction to adjudicate the issue afresh in the light of
additional evidence by following the directions given
in the case of Virender Singh vs ITO, ITA No.3166/
Del/2010 by order dated 27.6.2014. It is submitted
that in view of the similarity of the facts, the same
course would be followed in this matter also.
7. We have heard the learned DR on this aspect
also. Both Kaushalya Devi and Maya Devi preferred
appeals before this Tribunal and such appeals were
disposed of by order dated 16.3.2018 holding that
the evidence sought to be produced goes to the root of
the matter. Further the Bench noticed the decisions
in the case of Virender Singh and also ITO vs Praveen
Kumar, ITA.No.3839/Del/2012 order dated
21.10.2016 and considering the factual matrix, set
aside the order and remanded the issue to the file of
11
ITA.No.5401/Del./2016
Shri Karam Chand, Fatehabad.
the ld. AO to adjudicate the issue afresh in the light
of the decision in the case of Virender Singh (supra)
after giving an opportunity of being heard to the
assessee.
8. We are convinced with the facts and
grounds in all these matters are identical so also the
plea taken in respect of filing of the additional
evidence. On a consideration of the nature of the
evidence sought to be produced, we are satisfied
that such evidence has a bearing on the extent of
liability to tax of the assessee. We, therefore, find
that the evidence sough to be produced is relevant
and since all the endeavor of the authorities under
the Income- tax Act is to reach the just tax liability of
the assessee, we are of the considered opinion that
no prejudice would be caused to any of the parties by
admitting all the additional evidence and setting
aside the matter to the ld. AO to appreciate the
contentions of the assessee in the light of such
additional evidence.
12
ITA.No.5401/Del./2016
Shri Karam Chand, Fatehabad.
9. We accordingly allow the additional evidence to
be produced and while setting aside the impugned
order, remand the matter to the file of the ld. AO for
disposing it afresh after taking into consideration the
additional evidence in the light of the directions given
in the case of Virender Singh vs ITO.
10. In the result, appeal of the assesee is allowed
for statistical purposes."
5. The Ld. D.R. did not object to the request of
the assessee.
6. After considering the submissions of the both
the parties, we are of the view that additional evidences
goes to the root of the matter and in the case of co-owner
Shri Dharm Chand, the same have been admitted for
disposal of the matter and matter have been remanded to
the file of A.O. Therefore, following the Order in the case
of Shri Dharm Chand (supra), we admit the additional
evidences. Since the A.O. has no occasion to examine
these additional evidences, we set aside the Orders of the
13
ITA.No.5401/Del./2016
Shri Karam Chand, Fatehabad.
authorities below and restore the matter in issue to the
file of A.O. with a direction to re-decide the issue in the
light of additional evidences and other material on record
as is directed in the case of co-owner Shri Dharm Chand
(supra), by giving reasonable, sufficient opportunity of
being heard to the assessee.
7. In the result, appeal of Assessee allowed for
statistical purposes.
Order pronounced in the open Court.
Sd/- Sd/-
(B.R.R. KUMAR) (BHAVNESH SAINI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Delhi, Dated 15th October, 2019
VBP/-
Copy to
1. The appellant
2. The respondent
3. CIT(A) concerned
4. CIT concerned
5. D.R. ITAT "D" Bench
6. Guard File
//By Order//
Asst. Registrar : ITAT : Delhi Benches : Delhi.
|
