Income Tax Appellate Tribunal - Delhi
Sh. Virender Kumar Pardesi, New Delhi vs Acit, New Delhi on 10 May, 2018
In the Income-Tax Appellate Tribunal,
Delhi Bench 'D', New Delhi
Before : Shri Bhavnesh Saini, Judicial Member And
Shri L.P. Sahu, Accountant Member
ITA No. 2977/Del./2014
Assessment Year: 2009-10
Virender Kumar Pardesi, vs. A.C.I.T., Central Circle-21,
A-103, Ashoka Apartment, New Delhi.
Sector-9, Rohini, New Delhi.
PAN - AAHPP5601M
(Appellant) (Respondent)
Assessee by Dr. Shashwat Bajpai, Advocate &
Sh. Sharad Agawal, Advocate
Revenue by Sh. Amit Jain, Sr. DR
Date of Hearing 09.05.2018
Date of Pronouncement 10.05.2018
ORDER
Per L.P. Sahu, A.M.:
This is an appeal filed by the assessee against the order of ld. CIT(A)- XII, New Delhi dated 27.03.2014 for the assessment year 2009-10 on the following grounds :
1. That the order of the Learned C.I.T. Appeal - 12 in dismissing the Appeal of the assessee in toto is wrong & bad in law and needs to be quashed.
2. That the Learned C I T Appeal treated the land sold by the assessee as Ordinary land and not Agricultural land. She treated the gain earned on sale of land as Short Term Capital Gain and Not entitled for exemption u/s 2(14)(iii) as the land in question according to CIT Appeal is not agricultural land and dismissed the appeal of the assessee and confirmed addition of Rs 1,14,25,610.00. This order of the C I T-Appeal in not ITA No. 2977/Del./2014 2 accepting the contention of the assessee that land in question is agricultural land is totally wrong, bad in Law and needs to be quashed.
3. That the order of Learned C.I.T. Appeal in Treating sale of land at Rs 1,54,39,000.00 against actual sale of Rs 88,00,000.00 is totally wrong , bad in law, and needs to be quashed . In the appeal order passed by the CIT Appeal nothing has been mentioned why the sale of land has been treated at Rs 1,54,39,000.00 against actual sale of Rs 88,00,000.00 . The Assessee has raised this point in ground no 2 in the appeal filed before the C I T-
Appeal but the same has not been disposed off as per C I T-Appeal order. The assessee prays that correct amount may be taken as sale."
2. The brief facts of the case are that the assessee filed return of income on 30.03.2010 declaring income of Rs.1,27,590/- comprising the income from house property and income from other sources. The case was selected for scrutiny and statutory notices were issued to the assessee. The assessee stated to have purchased eight pieces of land bearing No. 5075/8, 5074/08, 5073/08, 5072/08, 5076/08 and 5069/08 for total cost of Rs.42,22,000/-. Sum of Rs.3,37,890/- was spent on stamp papers and sold this property through sale deed No.14738/08, 14,494/08 for Rs.88 lacs. The assessee claimed exemption u/s. 2(14)(iii) of the IT Act on the premise that the impugned piece of land was an agricultural land situated beyond 8 kms. from the local limits of municipality. The assessee had shown to have purchased this land for Rs.42,22,000/- and paid stamp duty of Rs.3,37,890/- and has shown to have sold the same for Rs.88 lacs. In support of its claim, the assessee submitted various certificates certifying the distance of land beyond 8 kms. from the local limits of municipality. The Assessing Officer made spot enquiries through the Inspector, who reported that the distance of the impugned land was within 7 kms. from the local municipal limit and also submitted a revised certificate dated 27.12.2011 issued by Nagar Panchayat ITA No. 2977/Del./2014 3 Dankaur, certifying the distance of the land within 8 kms. from the local municipal limits. Based on these certificates and Inspector's report, the Assessing Officer rejected the claim of assessee and worked out the short term capital gain as under :
Amount of sale of land Rs.1,54,39,000/-
Less: cost of purchase Rs.40,13,390/-
Short-term capital gains Rs.1,14,25,610/-
He accordingly, added the amount of short term capital gains into the income of the assessee. In appeal, the ld. CIT(A) affirmed the order of the Assessing Officer and dismissed the appeal of the assessee.
3. Initially, the ld. AR requested for time stating that the assessee was not producing documents to him and even department is not supplying papers to him on his request. Such a request made by the ld. AR, being improper, was found not acceptable. He, however, has reiterated the submissions made before the authorities below.
4. The ld. DR, on the other hand, vehemently opposed the submissions of the assessee and relied on the orders of the authorities below.
5. Having considered the rival submissions and perused the material available on record, we find that with the memorandum of appeal, the assessee has submitted statement of facts, in which he has declared the sale value of the property at Rs.88 lacs, whereas the ld. Authorities below have considered the sale price of Rs.1,54,39,000/- without giving reference of any ITA No. 2977/Del./2014 4 material on record to substantiate the same. The assessee has also raised a ground before the ld. CIT(A), challenging the sale value of the property at Rs.1,54,39,000/- adopted by the Assessing Officer as against Rs.88 lacs declared by assessee. However, on perusal of the impugned order, we find that the ld. CIT(A) has not decided this dispute raised by the assessee by way of ground of appeal before him. Apart from the above, we further notice that in his submissions made before the ld. CIT(A), as incorporated in the impugned order, the assessee has admitted the purchase value of land at Rs.42,22,000/- + Stamp Duty of Rs.3,37,890/-, whereas in the statement of facts given before the first appellate authority as well as before us, the assessee has stated the purchase value of property at Rs.40,13,390/-. This discrepancy has also not been made clear by the assessee either before the first appellate authority or before us. It is also seen from the orders of the authorities below that there are various certificates from different authorities. Some of the certificates certify the distance of impugned land beyond 8 Kms from the local Municipal Limits and some of them show the distance within 8 kms from the local Municipal Limit. The assessee had also made a request to the Assessing Officer to cross examine the officer who issued the revised certificate dated 27.12.2011 which has not been accepted by the Assessing Officer. No documentary evidence or any paper book is filed before us on behalf of either party to verify true state of affairs. In presence of all these facts, we feel it expedient in the interest of justice to remand the case back to the file of ld. CIT(A) to decide the issue about the difference in sale value of property after obtaining evidence with respect to the purchase and sale of land in terms of section 2(14)(iii) of the IT Act and shall decide the appeal in accordance with law. Needless to say, the assessee shall be given reasonable ITA No. 2977/Del./2014 5 opportunity of being heard. Accordingly, the appeal of the assessee deserves to be allowed for statistical purposes.
6. In the result, the appeal is allowed for statistical purposes.
Order pronounced in the open court on 10th May, 2018.
Sd/- Sd/-
(Bhavnesh Saini) (L.P. Sahu)
Judicial member Accountant Member
Dated: 10th May, 2018
*aks*
Copy of order forwarded to:
(1) The appellant (2) The respondent
(3) Commissioner (4) CIT(A)
(5) Departmental Representative (6) Guard File
By order
Assistant Registrar
Income Tax Appellate Tribunal
Delhi Benches, New Delhi