Jagdev, v. ITO Ward-47 (1),

ITA 1841/DEL/2008 | 2000-2001
Pronouncement Date: 29-02-2012 | Result: Allowed

Appeal Details

RSA Number 184120114 RSA 2008
Assessee PAN AERPJ7009K
Bench Delhi
Appeal Number ITA 1841/DEL/2008
Duration Of Justice 3 year(s) 9 month(s) 17 day(s)
Appellant Jagdev,
Respondent ITO Ward-47 (1),
Appeal Type Income Tax Appeal
Pronouncement Date 29-02-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 29-02-2012
Date Of Final Hearing 04-01-2012
Next Hearing Date 04-01-2012
Assessment Year 2000-2001
Appeal Filed On 12-05-2008
Judgment Text
ITA 1841/DEL/08 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `D NEW DELHI BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND SHRI K.D. RANJAN ACCOUNTANT MEMBER I.T.A.NO.1841/DEL/2008 ASSESSMENT YEAR : 2000-01 SHRI JAGDEV VS COMMISSIONER OF INCOME TAX S/O SHRI SHIV DYAL DELHI-XVI NEW DELH I. VILLAGE ANKHIR SECTOR 21-D FARIDABAD (HARYANA) (PAN: AERPJ7009K) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GURJEET SINGH RESPONDENT BY : SHRI JAYANT MISHRA CIT DR O R D E R PER K.D. RANJAN ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE FOR AY 2000-01 IS DIREC TED AGAINST ORDER U/S 263 OF THE ACT PASSED BY THE CIT(A)-XVI NEW DE LHI. THE GROUNDS OF APPEAL RAISED ARE REPRODUCED AS UNDER:- 1. THAT THE CIT ORDER IS BEING CHALLENGED ON FACT S AND LAW ON THE TRUE AND CORRECT INTERPRETATION OF THE PROVISIONS OF SECTION 263 READ WITH THE PROVISIONS OF SECTION 2(N) 32 OF THE HARYANA URBAN DEVELOPMENT AUTHORITY ACT 1977. 2. THAT THE CIT ORDER IS BEING CHALLENGED ON THE GROUND THAT THE APPELLANT IS WITHIN THE JURISDICTION OF HA RYANA AND NOT OF DELHI AND EVEN FURTHER THERE IS NO JUDGM ENT ITA 1841/DEL/08 2 CONTRARY BY JURISDICTIONAL P&H HARYANA HIGH COURT CONSIDERING THE SECTION 2(N) 32 OF THE HARYANA URB AN DEVELOPMENT AUTHORITY ACT 1977. 3. THAT THE CIT ORDER IS BEING CHALLENGED FOR INVO KING THE PROVISIONS OF SEC. 45(5) OF THE ACT INTRODUCED W.E.F. 1.04.88 BY THE FINANCE ACT 1987 WHEREIN THE CLAUS E (C) HAS BEEN INSERTED BY THE FINANCE ACT 2003 W.E.F. 1.04.2004 WHEREAS THE APPELLANT IS FOR THE YEAR PRI OR TO THE ABOVE SAID AMENDMENT. 4. THAT THE ASSESSEE PRAYS FOR GRANTING OF ANY CONSEQUENTIAL RELIEF AND ON LEGAL CLAIM IN THE INTE REST OF SUBSTANTIAL JUSTICE TO AVOID PROTRACTED LITIGATION AND WITH A PRAYER TO ALLOW ANY ADDITION DELETION AMENDMENT MODIFICATION AND RECTIFICATION IN THE GROUNDS OF AP PEAL BEFORE THE DISPOSAL OF THE SAME. 2. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT A SSESSMENT ORDER FOR A.Y. 2000-01 WAS PASSED U/S 143(3) ON 14.11.2006 DETERM INING TOTAL INCOME OF RS.10 36 901. SUBSEQUENTLY LD. CIT NEW DELHI-XVI ON SCRUTINY OF ASSESSMENT RECORD FOUND THAT LAND BELONGING TO THE ASSESSEE SITUATED IN VILLAGE ANKHIR DISTRICT FARIDABAD WAS ACQUIRED BY HARYANA URBAN DEVELOPMENT AUTHORITY (HUDA) VIDE A DECLARATION U/S 6 OF THE LAND ACQUISITION ACT 1894 VIDE NOTIFICATION NO. LAC(F) -91/NTLA/104 DTD. 8.05.91. THE COMPENSATION AWARDED BY THE STATE GOV ERNMENT WAS FURTHER ENHANCED BY THE DISTT. AND SESSIONS JUDGE FARIDABA D. THE AMOUNT OF ENHANCED COMPENSATION TOGETHER WITH THE AMOUNT OF INTEREST ON DELAYED PAYMENT OF COMPENSATION WAS PAID TO THE ASSESSEE O N DIFFERENT DATES ITA 1841/DEL/08 3 PERTAINING TO A.Y. 2000-01 TO 2003-04. THE TOTAL C OMPENSATION RECEIVED BY THE ASSESSEE WAS AT RS.1 03 15 743 AND THE AMOUNT O F INTEREST ACCRUED THEREON WAS AT RS. 96 74 721. THE AO ISSUED NOTICE U/S 148 OF THE ACT. THE ASSESSEE FILED HIS RETURN OF INCOME FOR AY 2000-01 ON 2.6.2006 DECLARING TOTAL INCOME OF RS.10 36 901. THE ASSESSEE CLAIMED EXEMPTION IN RESPECT OF LONG TERM CAPITAL GAINS ARISING ON RECEIPT OF ENHA NCED COMPENSATION ON THE GROUND THAT THE AGRICULTURAL LAND IN ANKHIR VILLAGE WHICH WAS ACQUIRED BY HUDA WAS BEYOND 8 KM OF MUNICIPAL LIMITS. SINCE TH E ORDER PASSED BY THE AO DID NOT CONTAIN ANY DISCUSSION WHATSOEVER ON THE ISSUE EITHER IN THE BODY OF ASSESSMENT ORDER OR THE OFFICE NOTE RECORDE D BY THE AO IN THE ASSESSMENT ORDER LD. CIT CONSIDERED THE ASSESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE LD. CI T WHILE CANCELING THE ASSESSMENT ORDER OBSERVED THAT THE BASIC ISSUE INV OLVED WAS WHETHER THE LAND ACQUIRED BY HUDA WAS SITUATED WITHIN THE MUNIC IPAL LIMIT OF NOTIFIED AREA. FOR ASCERTAINING THIS THE AO OUGHT TO HAVE M ADE INQUIRIES WITH THE CONCERNED MUNICIPAL AUTHORITIES. SINCE THE AO HAD NOT MADE ANY DISCUSSION ON THE ISSUE EITHER IN THE BODY OF THE ASSESSMENT O RDER OR IN THE OFFICE NOTE THERETO LD. CIT TREATED THE ASSESSMENT ORDER PREJU DICIAL TO THE INTEREST OF REVENUE. HE THEREFORE CANCELLED THE ASSESSMENT W ITH THE DIRECTION TO PASS ORDER AFRESH AFTER MAKING PROPER INQUIRIES. ITA 1841/DEL/08 4 3. BEFORE US WHEN THE CASE CAME UP FOR HEARING LD . AR OF THE ASSESSEE SUBMITTED THAT ON IDENTICAL FACTS IN RESPECT OF OTH ER ASSESSEES OF VILLAGE ANKHIR ITAT HAD SET ASIDE THE ORDER TO THE FILE OF THE AO WITH THE DIRECTIONS TO DECIDE THE ISSUE IN THE LIGHT OF DECISION OF ITA T IN THE CASE OF SHRI NAHAR & OTHERS. 4. ON THE OTHER HAND LD. DR SUPPORTED THE ORDER OF CIT. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT ITAT DELHI BENCH A IN THE CASE OF SHRI NAHAR S/O SHRI DHAN SAHAY VILLAGE ANKHIR SECTOR 2 1-D FARIDABAD HARYANA IN ORDER DATED 18.6.2010 HAS SET ASIDE THE ISSUE TO THE FILE OF AO BY OBSERVING AS UNDER:- 9. FROM THE PERUSAL OF THIS DEFINITION IT WOULD RE VEAL THAT IN ORDER TO TREAT ANY AGRICULTURAL LAND AS A NON-CAPI TAL ASSETS FOR THE PURPOSE OF THE INCOME-TAX ACT 1961 ASSESS ING OFFICER OUGHT TO HAVE DETERMINED THE PHYSICAL GEOGRAPHICAL LOCATION OF THE LAND IN DISPUTE. WITHOUT DETERMINING THAT AS PECT FACTUALLY HE HAS ACCEPTED THE VERSION OF ASSESSEE WITHOUT APPLICATION OF MIND WHICH WOULD RENDER HIS ORDER AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. THEREFORE AS FAR AS THE LEARNED COMMISSIONER HAS T AKEN COGNIZANCE UNDER SEC. 263 OF THE ACT WE DO NOT FIN D ANY ERROR IN HIS ORDER. HE HAS RIGHTLY EXERCISED THE POWERS U NDER SEC. 263 AND HAS RIGHTLY SET ASIDE THE ASSESSMENT ORDER. HOWEVER AS FAR AS TREATING THE LAND OF ASSESSEE AS A CAPITA L ASSETS WITHIN THE MEANING OF SEC. 2(14)(III) OF THE ACT L EARNED COMMISSIONER AGAIN FAILED TO COLLECT ANY DIRECT EVI DENCE AGAINST THE ASSESSEE. HE HAS RELIED UPON THE JUDGME NT OF HON'BLE DELHI HIGH COURT IN THE CASE OF DEVKINANDAN & SONS. ITA 1841/DEL/08 5 THIS JUDGMENT DO INDICATE THAT FARIDABAD ADMINISTRA TION COMPLEX IS AKIN TO MUNICIPALITY BUT AGAIN ONE HAS T O COLLECT THE REPORT FROM THE REVENUE OFFICIALS EXHIBITING TH E ACTUAL LOCATION OF THE LAND IN DISPUTE. LEARNED DR AFTER C ONCLUSION OF THE HEARING OBTAINED A REPORT FROM THE PATWARI A ND PLACED IT ON RECORD HUT WE CANNOT TAKE COGNIZANCE OF THIS REPORT AT THIS STAGE I.E. FROM THE BACK OF THE ASSESSEE AND W ITHOUT GIVING THEM AN OPPORTUNITY OF HEARING. CONSIDERING ALL THE SE ASPECTS WE DEEM IT APPROPRIATE TO MODIFY THE ORDER OF LEARN ED COMMISSIONER. WE SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WHO WILL COLLECT THE EVIDENCE FRO M THE FIELD AND DETERMINE THE ACTUAL PHYSICAL LOCATION OF THE L ANDS OF THE ASSESSEE AT THE TIME OF ACQUISITION. AFTER COLLECTI NG THE RELEVANT EVIDENCE HE SHALL DECIDE WHETHER LANDS OF THE ASSESSEES ARE CAPITAL ASSERT WITHIN THE MEANING OF SEC. 2(14) OF THE ACT OR NOT AND THEREAFTER HE WILL DECIDE THE COMPUTATION OF CAPITAL GAIN ARISEN IF ANY. IT IS NEEDLESS TO S AY THAT THE OBSERVATIONS MADE BY US WHILE DISPOSING OF THESE AP PEALS WILL NOT IMPAIR OR INJURE THE CASE OF A.O. OR WILL NOT C AUSE ANY PREJUDICE TO THE DEFENCE/EXPLANATION OF THE ASSESSE E IN RESPECT OF DETERMINATION OF EXACT PHYSICAL LOCATION OF THE LAND IN DISPUTE. 6. SINCE THE FACTS OF THE CASE ARE IDENTICAL TO THE FACTS OF THE CASE OF SHRI NAHAR & OTHERS (SUPRA) RESPECTFULLY FOLLOWING THE PRECEDENT WE SET ASIDE THE APPEAL TO THE FILE OF THE AO WITH SIMILAR DIREC TION AND COMPLETE ASSESSMENT AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA 1841/DEL/08 6 ORDER PRONOUNCED IN THE OPEN COURT ON 29.2.2012. SD/- SD/- (RAJPAL YADAV) ( K.D. RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 29TH FEBRUARY 2012 GS COPY FORWARDED TO:- 1. SHRI JAGDEV FARIDABAD. 2. CIT-XVI DELHI 3. CIT 4. DR BY ORDER ASSTT. REGISTRAR