Income Tax Appellate Tribunal - Amritsar
Sh. Kamal Ashish Singh, Phillaur vs Income Tax Officer, Ward-2, Phagwara on 24 June, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL
AMRITSAR BENCH, AMRITSAR
BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER
AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER
I.T.A. No. 721/Asr/2017
Assessment Year: 2009-10
Kamal Ashish Singh vs. Income Tax Officer,
s/o Jasvir Singh, Kooner Niwas, Ward-2,
Crystal Lane, Near Union Bank Phagwara
of India, G.T. Road, Phillaur
Goraya
[PAN: AZZPS 7815D]
(Appellant) (Respondent)
Appellant by : Sh. Sudhir Sehgal (Adv.)
Respondent by: Sh. Charan Dass (D.R.)
Date of Hearing: 28.03.2019
Date of Pronouncement: 24.06.2019
ORDER
Per Sanjay Arora, AM:
This is an Appeal by the Assessee directed against the order by the Commissioner of Income Tax (Appeals)-2, Jalandhar ('CIT(A)' for short) dated 19.9.2017, dismissing the assessee's appeal contesting his assessment u/s. 144 read with section 147 of the Income Tax Act, 1961 ('the Act' hereinafter) dated 13.12.2016 for the Assessment Year (AY) 2009-10.
The background facts
2. The brief facts of the case are that the assessee, who did not return any income by way of capital gain for the relevant year, was, on the basis of the 2 ITA No. 721/Asr/2017 (AY 2009-10) Kamal Ashish Singh v. ITO information in the possession of the Revenue, found to have sold land (measuring 23 Kanals, 11.5 Marlas), agricultural in nature, falling within the municipal limits (of Goraya) during the relevant year and, accordingly, income by way of capital gains - the land having been sold for a consideration of Rs. 103.16 lacs to a real estate company, brought to tax u/s. 2(24)(vi) r/w s. 45 of the Act by the Assessing Officer (AO). In appeal, the assessee sought consideration of the additional evidence by way of a report from the Tehsildar, which was not admitted by the ld. CIT(A) in-as-much as the assessee could not show that he was prevented by sufficient cause in not adducing the said evidence before the AO and, thus, satisfy the condition of r. 46A(1) of the Income Tax Rules, 1962 ('the Rules' hereinafter). The limited issue, it was accordingly urged before us by the ld. counsel for the assessee, Sh. Sehgal, is the sustainability in law, in the facts and circumstances of the case, of the non-admission of the said evidence by the first appellate authority, adduced by the assessee before him. Relying on the decision in Tek Ram (thro' LRs) v. CIT [2013] 357 ITR 133 (SC), it was submitted by him that the same ought to have been admitted and, consequently, considered by the ld. CIT(A), so that direction/s to that effect be issued thereto; the same having a direct bearing on the character of a part (measuring 16 Kanals, 1.5 Marlas) of the land considered as a capital asset u/s. 2(14) of the Act in-as-much as it actually falls beyond a distance of two kilometers from the municipal limits of Goraya.
3. We have heard the parties, and perused the material on record. The issue 3.1 Our first observation in the matter is that the report of the Tehsildar (PB pgs. 32-33/english translation at PB pgs. 54-55) is dated 01.11.2017, given in pursuance to the assessee's application dated 30.10.2017; appearing, in fact, below the said application. The question of its' admission by the first appellate authority (whose 3 ITA No. 721/Asr/2017 (AY 2009-10) Kamal Ashish Singh v. ITO order is dated 19.9.2017) does not therefore arise. The certificate from the Naib- Tehsildar, furnished before the first appellate authority, as stated at para 4.6 of the impugned order, can therefore only be presumed to be a different document, the contents of which are not known, being not made a part of his paper-book by the assessee. Suffice to add that the said difference itself indicates that the assessee would himself be not satisfied with it's contents so as not to press for its admission and, accordingly, chose to apply afresh. It is however unfortunate that this fact was not brought to our notice by either side, particularly by the assessee. We in fact observe no ground of appeal in relation to r. 46A in the appeal as preferred before the first appellate authority, lending credence to his observations in this regard (refer para 3.5 of this order). The evidences at PB pgs. 32-55, thus, cannot be considered as forming part of the paper-book, but only as additional evidences. The certificate issued by the assessee's counsel below the index to the paper-book is thus wrong. This, however, would not materially alter the assessee's case. It may here also be clarified that PB pgs. 37-39 contain the assessee's return of income for the relevant year, filed on 13.01.2017, i.e., just prior to preferring the appeal before the first appellate authority on 14.01.2017. The same is without any basis in law and, to no consequence. As it appears, it stands filed to signify the admission of a part of the capital gains, as assessed, i.e., on, as stated, relatable to 7K 10M of land, paying tax thereon.
3.2 Our second observation in the matter is that the principal issue involved in the instant case, and for which we have also referred to the grounds raised by the assessee, is, as stated, the admissibility of the additional evidence at the appellate stage, denied by the ld. CIT(A) for being not in terms of rule 46A of the Rules, mandatory in character. This is as, de hors the same, the subject land sold by the assessee during the year is, on the basis of the material on record, in law not an 4 ITA No. 721/Asr/2017 (AY 2009-10) Kamal Ashish Singh v. ITO agricultural land, i.e., is a capital asset, capital gains on the transfer of which is liable to tax as income. Per the said additional evidence, the assessee seeks to establish that a part of the land sold, i.e., 16 K, 1.5 M, is outside the 2 km distance (from the municipal limit of Goraya) and, thus, not a capital asset under the Act. The gain arising on its' transfer could be brought to tax only if it qualifies to be a capital asset u/s. 2(14) of the Act. The said evidence, it is argued, has a direct bearing on the finding as to the subject land being a capital asset and, thus, of prime relevance and, therefore, ought to have been admitted by the ld. CIT(A), and for which he has power under rule 46A(4) of the Rules. [And, in any case, by the Tribunal u/r. 29 of the Income Tax (Appellate Tribunal) Rules, 1963]. This sums up the assessee' case. We have, as would apparent from the case as delineated, proceeded on the basis that a certificate from the Tehsildar had been filed before the ld. CIT(A). The same, however, is not on record, so that the only evidence qua which the admission is being sought at this stage is the Tehsildar's report dated 01.11.2017. This also explains the enhancement in scope supra (stated within brackets), and toward which there is an application dated 13/2/2018 on record. As afore-noted, this would not materially alter the assessee's case as the language of the rule 29 of the Appellate Tribunal Rules is akin to rule 46A(4) of the Rules. Even so, the evidence being sought to be admitted before the Tribunal being not before the first appellate authority, the assessee's prayer for admission of additional evidence/s would in any case have to be considered, of course on merits.
The law 3.3 The scope of r. 29 of the Appellate Tribunal Rules has been explained by the Hon'ble Courts time and again, as in Velji Deoraj & Co. v. CIT [1968] 68 ITR 708 (Bom), rendered with reference to the judicial precedents; the mandate of law being the same as defined under Order 41, rule 27 of the Code of Civil Procedure, 5 ITA No. 721/Asr/2017 (AY 2009-10) Kamal Ashish Singh v. ITO 1908. The admission of additional evidence at the appellate stage, it explained, is not referable to any right of the party to produce the evidence, but is dependent solely on the requirement of the court, and what the court has to decide is whether it requires such evidence for pronouncing its' judgment or for any other substantial cause. The mere fact, it continued, that the evidence sought to be produced is vital and important, does not provide a substantial cause to allow its' admission at the appellate stage, especially when the evidence was available to the party at the initial stage and had not been produced by him. In CIT v. Text Hundred India Pvt. Ltd. [2013] 351 ITR 57 (Del), the law stands reiterated, again with reference to judicial precedents. Where some inherent lacunae or defect becomes apparent to the appellate court, coming in the way of pronouncing the judgment, it held, the expression 'to enable it to pronounce the judgment' can be invoked. Reference to pronouncing the judgment, it was explained, is not for pronouncing it in a particular way, but is to pronounce it satisfactorily to the mind of the court delivering it. The provision does not apply where with the existing evidence on record, the appellate court could pronounce a judgment satisfactorily. That is, the requirement of the court to enable it to pronounce a judgment does not refer to pronouncement of judgment one way or the other, but is only to the extent whether satisfactory pronouncing of the judgment on the basis of the material on record is possible. In sum, where therefore the appellate court considers that such an additional evidence would be necessary for proper adjudication of the matter, i.e., where it cannot, in the absence of the said evidence, pronounce a judgment satisfactorily, it is to invoke its' discretion even if the evidence being furnished before it is for the first time, and there has been no denial of opportunity by the authority below (i.e., before whom it ought to have been furnished) for adducing the said evidence. This, then, explains the law in the matter.
6 ITA No. 721/Asr/2017 (AY 2009-10)Kamal Ashish Singh v. ITO Determination 3.4 The next issue, therefore, is if the said evidence is liable to be admitted in the facts and circumstances of the case, or not so. In our considered opinion, the said admission stands rightly denied and, in any case, the said evidence is not liable to be admitted. We hold so for more than one reason, which we detail hereinafter:
A. Inasmuch as the assessee had filed a copy of the Tehsildar's certificate before the first appellate authority, and who has, besides u/r. 46A(4), power u/r. 46A(1) to admit additional evidence, we may, to begin with, advert to the latter. No claim of a part of land falling outside the prescribed distance (from the relevant municipal limit), noted by the AO per his remand report called for by the ld. CIT(A), was made by the assessee during the eight months spanning the assessment proceedings, with in fact the assessee' counsel - who happens to be the same as before the first appellate authority, appearing several times. There is also, and admittedly so, no claim of the assessee being prevented by sufficient cause in producing the evidence being sought to be led at the appellate stage. In fact, even as mentioned in the remand report (refer para 4.4 of the impugned order), as also emphasized by the ld. Sr. DR in his written submissions, the assessee did not cooperate despite being allowed 15 opportunities during the assessment proceedings. The condition/s of r. 46A(1) is not satisfied. In fact, as observed by the ld. CIT(A) at paras 4.7 & 4.8 of his order, applications were only made seeking adjournments and, further, no formal application u/r. 46A(1), spelling out the clause thereof under which admission was being sought, was made before him.
It may be clarified that reference to the non-satisfaction of the condition/s of r. 46A(1) by the assessee is made only by way of an abundant caution; the asssee himself not disputing the same, resting his case w.r.t. r. 46A(4) (refer para 2 of this 7 ITA No. 721/Asr/2017 (AY 2009-10) Kamal Ashish Singh v. ITO order). In fact, even so, the certificate produced for admission before the first appellate authority being conspicuous by its' absence, it is only the 'report' dated 01/11/2017, admission of which u/r. 29 arises for consideration.
B. Qua r. 29 of the Appellate Tribunal Rules, the first reason that informs our decision is that the Tehsildar's report dated 01.11.2017 is unsigned by the Naib- Tehsildar, to whom the application by the assessee (dated 30/10/2017) is addressed. How could, then, it be said to be a (true copy of the) certificate or report by the said authority. The application by the assessee is not receipted by the said office. That apart, the application is not marked by the Tehsildar to the Area Patwari, as requested in the assessee's application. This would be even otherwise necessary as it is only when so marked, that the latter is enabled to make his comments on the subject matter of the report. Further, the report, by hand, appears to be signed by one 'Naya Ram', whose capacity is not clear. Needless to add, the report does not bear any stamp or the number by the office of the Naib Tehsildar, so as to regard it as an official communication by the said office.
C. The report is, even otherwise, vague. It states of certain khasra numbers as falling within the Nagar Panchayat, Goraya, and others at a distance of 2 km. therefrom and, thus, outside the municipal limit. We have, in so stating, gone through both the report in vernacular, as well as its' english translation (which though is not, as required to be, certified by a competent person), as well as the assessee's application. That is, it does not clarify as to how the stated distance is measured, and if the same (stated as 2 km) is from the municipal limits of Goraya. Then, again, the requirement of law is that the distance should exceed the two kilometers, i.e., even assuming that to be the prescribed distance u/s. 2(14)(iii).
8 ITA No. 721/Asr/2017 (AY 2009-10)Kamal Ashish Singh v. ITO D. Next, the sale deed - the entire land being sold per one sale deed (against vasika no. 211, dated 19/5/2008 / PB pgs. 48-53), a registered document, clearly spells out that the land, which is the subject matter of transfer (i.e., 23K, 11.5M), falls under the limits of the municipal committee. The parties, bargaining a single price for the entire land and, further, as applicable to an urban land (i.e., at Rs. 35 lacs per acre, which in fact matches with the stamp valuation thereof), have themselves, i.e., apart from the registering authority, regarded it (the entire land) to be an urban land, i.e., even if not falling wholly within the municipal limits (of Goraya). The evidence sought to be furnished now, thus, contradicts a registered document, belonging to and, in fact, adduced by the assessee himself, as well as the conduct of the parties. There is also no mention of the basis of the mistake in the sale deed, nor of any application moved by the assessee for its' rectification. It may here also be pertinent to state that the stamp duty levied on the transaction is at eight per cent., i.e., as applicable to an urban land, as opposed to an agricultural land, which attracts stamp duty at a much lower rate of, as given to understand, 2%. Further, the collector rate, on which therefore duty is levied is Rs.35 lacs per acre, i.e., as applicable to an urban land. This is even if the said land is - of which there is again no evidence on record, put to agricultural use prior to its' sale. This, as we shall presently see, is the very premise of s. 2(14)(iii).
E. Adoption of one collector rate for the transaction is thus a clear indicator of the subject land, i.e., the entire of it, as falling within the municipal limits, as stated in the sale deed itself. And, in any case, of being one, contiguous land, transferred at a rate applicable to an urban or, in any case, a non-agricultural land. There is nothing to show that the assessee or the buyer has, either at the time of registration or at any time later, raised any objection with regard to the levy of stamp duty at a higher rate, i.e., qua the land claimed to be agricultural in nature.
9 ITA No. 721/Asr/2017 (AY 2009-10)Kamal Ashish Singh v. ITO F. The evidence being sought to be admitted does not come in the way of pronouncing a judgment satisfactorily. Toward this, it may be relevant to begin by reproducing the relevant provision, defining a capital asset:
'Definitions.
S. 2 In this Act, unless the context otherwise requires,-- (14) "Capital assets" means--
(a) property of any kind held by an assessee, whether or not connected with his business or profession;
(b) any security held by ....,
- but does not include -
(i) ....
(ii) ...
(iii) agricultural land in India, not being land situate--
(a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand; or
(b) in any area within the distance, measured aerially,--
(i) not being more than two kilometers, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten thousand but not exceeding one lakh; or
(ii) not being more than six kilometers, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than one lakh but not exceeding ten lakh; or
(iii) not being more than eight kilometers, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten lakh.
Explanation.--For the purposes of this sub-clause, "population" means the population according to the last preceding census of which the relevant figures have been published before the first day of the previous year;' 10 ITA No. 721/Asr/2017 (AY 2009-10) Kamal Ashish Singh v. ITO
(i) Now, clearly the distance is with reference to the population (residing within the limits of the municipality). No evidence as regards the population of Goraya has been furnished, nor in fact is there any contention to that effect. How could, then, it be said that the prescribed distance applicable in the instant case is 2 kms. (and not 6 kms. or 8 kms.). If a higher distance is applicable, the assessee's case fails in consequence - the distance being stated to be 2 km. (from Goraya). That is, the evidence sought to be admitted is, other things being equal, of little help in determining the satisfaction or otherwise of the condition of section 2(14)(iii) and, thus, in ascertaining if the subject land is agricultural. Put differently, de hors the, or in the absence of any, material in respect of the population of the concerned municipality, the said certificate is of no value qua the satisfaction or otherwise of the stipulation of section 2(14)(iii).
(ii) Without prejudice, 'agricultural land' is u/s. 2(14)(iii) not defined positively, i.e., with respect to the ingredients or the conditions, the existence or the satisfaction of which would lead to the subject land being classified as an agricultural land, but negatively. That is, where, for example, an agricultural land is situate within a specified distance from the local limits of a municipality - the distance prescribed varying with the population, it is not to be regarded as an agricultural land under the Act. It does not mean that a land falling outside the said limit has to be necessarily, i.e., irrespective of anything else, regarded as an agricultural land, i.e., as not a capital asset. The reverse, however, is valid - in view of the legal mandate, an agricultural land falling within the said limit has necessarily to be regarded as non-agricultural, a capital asset. It is thus only where the status of the subject land depends, irrespective of any other consideration, including the surrounding circumstances, exclusively on the said distance, that the 11 ITA No. 721/Asr/2017 (AY 2009-10) Kamal Ashish Singh v. ITO admission of the evidence by the assessee may become liable to be admitted in pursuance of r. 46A(4) of the Rules or r. 29 of the Appellate Tribunal Rules.
In the facts of the instant case the entire land is sold as one, contiguous piece of land, i.e., sold as part of the same transaction (i.e., comprised in one sale deed); to the same buyer (M/s. T. M. S. Real Estate (P.) Ltd., Phagwara); at the same rate; for the same purpose, which appears to be the development of real estate. And, in any case, going by the sale rate, i.e., Rs. 35 lacs per acre, for non-agricultural purposes. There is in fact no contention, much less it's substantiation, at any stage, of the intended user of the land by the buyer as being for agricultural purposes, i.e., as to the stated purpose of its' purchase, or the use to which it was actually put subsequently. A good part of the land (7K, 10M) being admittedly a capital asset, the question that arises is: Could the character of the two parts of the same land, put to the same use, be different merely because of a difference in their distance from a specific location? How could it be that a part of the same land is non- agricultural, and the other, agricultural, as it falls outside the 2 km limit, i.e., assuming so and, further, assuming that to be the correct limit? How could a land, even if - and toward which there is though no finding on record, prior to it's transfer is used for agricultural purposes, it may nevertheless be regarded as non- agricultural land irrespective of its' distance from the municipal limit, where it is being bought and sold for non-agricultural purposes, as for development of real estate. The matter, it may be appreciated, is principally factual, to be determined in the conspectus of the case; the only requirement of law being that an agricultural land situate within a maximum distance of (2 kms. to 8 kms., depending on the population) of the limits of a municipality, would nevertheless be regarded as a capital asset. In fact, as afore-noted, a significant part of the land transferred by the assessee during the year has been admitted as a capital asset. The onus under the circumstances is, in our view, heavy on the assessee to show as why the balance 12 ITA No. 721/Asr/2017 (AY 2009-10) Kamal Ashish Singh v. ITO land, even if outside the 2 km limit, i.e., assuming so, should not be considered likewise, i.e., as a capital asset, forming part of the same land, sold as part of the same transaction, so that the parties regarded the entire land as one property, bearing the same character, while transacting the bargain at a single rate. What is relevant is the meeting of the minds by the parties to the transaction, and toward which the rate at which the land is sold, and the intended user of the land by the buyer - the two being themselves related, are prime indicators. That is, whether the land being sold is qua an agricultural land, i.e., for agricultural purposes, or for non-agricultural use. It would without doubt, we may hasten to add, be a different matter if land bought and sold for agricultural purposes, is subsequently, for some reason, not put to agriculture purposes. The stamp duty borne by the transaction is with reference to the collector rate and, further, at the rate as applicable to an urban land, clearly signifying it to be regarded as so by both the parties as well as the registering authority. Both the collector rate as well as the stamp duty rate are significantly lower for agricultural land, clearly suggesting that what was being conveyed was, besides the stated location as within the municipal limits - sought to be disputed by the assessee in the instant proceedings, for all intents and purposes, an urban land, sold for being developed into a real estate by a company in the said business.
Reference here is made to the decision by the Apex Court in Sarifa Bibi Mohamed Ibraham & Ors. v. CIT [1993] 204 ITR 631 (SC). In the said decision the Apex Court emphasized the need to have regard of the entirety of facts and circumstances of the case in arriving at a decision one way or the other; it finding the circumstances, as obtaining in that case, against, outweighing that in favour of the assesee's case of having sold an agricultural land, and held it to be not an agricultural land at the time of its' sale and the profit arising there-from as liable for assessment as capital gains. The land, in the present case, in our view, on the 13 ITA No. 721/Asr/2017 (AY 2009-10) Kamal Ashish Singh v. ITO basis of the material on record, and irrespective of the distance of a part of it from the municipal limit (of Goraya), i.e., within or outside the stated, prescribed limit of 2 kms., is sold by the assessee to T.M.S. Real Estate (P.) Ltd., the buyer, as a non-agricultural land. The said distance, it needs to be appreciated, considering the area of the land under consideration (16K, 1.5 M), would be, where so, breached by some metres, hardly impacting the nature of the land.
In sum 3.5 It is, in view of the fore-going, not considered necessary for pronouncing the judgment satisfactorily to admit the 'certificate from the Tehsildar', sought to be admitted as additional evidence. The said certificate is both unreliable and ambiguous. Indeed it does not qualify as a certificate from the tehsildar. There is nothing on record, or sought to be admitted, that the prescribed distance applicable in this case is 2 km., with the applicability of a higher distance failing the assessee's case. Even if falling outside the said limit, it will not by itself imply that the said land, forming part of one, contiguous land sold by the assessee, which is not an agricultural land by definition and, thus, a capital asset u/s. 2(14)(iii), is an agricultural land. It is the entirety of the facts that are to be seen, which suggest the subject land to be not an agricultural land and, in any case, not sold as an agricultural land. In fact, given the area of the land under consideration (16K, 1.5 M), the said limit, where so, would be breached by some metres, hardly impacting the nature of the land. Indeed, the ld. CIT(A), who has also decided the issue on merits, only considered the sale document, registered with the office of the sub- registrar, specifying the subject land to be within the municipal limits of Goraya, as itself sufficient for the purpose. In fact, the municipal limits itself keep changing with time, so that that is another aspect of the matter, and which would therefore require to be determined before placing reliance on the said certificate, even as we 14 ITA No. 721/Asr/2017 (AY 2009-10) Kamal Ashish Singh v. ITO have examined the issue even from the stand point of the truth of its contents, finding it to be of no consequence.
Conclusion
4. In our view, therefore, the assessment stands satisfactorily concluded on the basis of the material on record and, accordingly, the assessee's plea for admission of additional evidence is liable to be rejected. We decide accordingly. It may appear from the manner in which the instant order has proceeded that we have not had regard to the decisions cited at bar by the parties. This is not so. We have carefully perused all these decisions; the decision in each case turning on its' facts and circumstances. In Tek Ram (supra), the Apex Court states, albeit succinctly, all that has been expressed in Velji Deoraj & Co. v. CIT (supra) and Text Hundred India Pvt. Ltd. (supra), being themselves based on several decisions, mostly by the Apex Court itself. In Tek Ram (supra), the Hon'ble Court was of the view that a satisfactory pronouncement of the judgment required the perusal of the documents produced by the appellant and, accordingly, set aside the matter back to the Hon'ble High Court for the purpose. This is precisely what has been explained to be the law in the matter (refer para 3.3 of this order). In the instant case, though, the decision on merits is based on a registered document, based on the collector rate applicable to urban land, with the stated sale consideration agreeing with the collector rate for property falling within municipal limits. In fact, the basis of the prescription of the distance stated in the certificate, i.e., population, as well as the manner of ascertaining the distance, is not specified. Further, an examination of the facts, given the law in the matter, the same is found as of no moment as the subject land, even if outside the prescribed limit, qua which evidence is being led, would be of little consequence in the facts and circumstances of the case, including the conduct of the parties. We may also refer to the decision, being by the Hon'ble 15 ITA No. 721/Asr/2017 (AY 2009-10) Kamal Ashish Singh v. ITO jurisdictional High Court, finding place in the assessee's compilation, in CIT v. Mukta Metal Works [2011] 336 ITR 555 (P&H). Again, it is difficult to see as to how the said decision helps the assessee's case. Assessments u/s. 158BD r/w s. 158BC were initiated, on the basis of entries in the diary found during search at the residence of one, AKG, and his statement admitting to be involved in the business of broker for money lending, earning commission, albeit undisclosed, in the case of the persons identified, on the basis of the said entries, who had lent money through him (AKG). The Revenue, before the Tribunal, sought to produce the forensic sciences report qua the said diary, as additional evidence, which was denied, as well as the affidavit of AKG, i.e., in the assessments of these persons. Without doubt, the forensic report establishes the truth of the contents of the diary, even otherwise presumed by law (s. 292C), so that it is difficult to fathom as to why, the matter being entirely factual, should the said evidence be denied, as well as the affidavit of AKG, the person searched, on the basis of whose statement, coupled with the diary found from his residence, satisfaction u/s. 158BD had been recorded by the assessing authority. No wonder, the Hon'ble Court, finding it to be of prime relevance, directed its' admission. Rather, it is only the forensic report that could dislodge the rebuttable presumption of s. 292C, so that the objection to admission, sought by the Revenue, by the assessee-appellant is not understood. The Hon'ble jurisdictional High Court has in other cases, as in Jawahar Lal Jain (HUF) v. CIT [2015] 370 ITR 712 (P&H); Jasbir Singh v. CIT (in ITA No. 84 of 2016 (O&M), dated 11.4.2016), upheld, in the facts and circumstances of the case, the denial of admission of additional evidence. The question, thus, in each case, turns on the facts and circumstances of the case, of course, having regard to the law in the matter. We cannot help observing that even as the assessee has rightly discerned the issue arising in the instant case, also making a prayer for admission of additional evidence u/r. 29 of the Appellate Tribunal Rules, he has not cited any 16 ITA No. 721/Asr/2017 (AY 2009-10) Kamal Ashish Singh v. ITO decisions qua the said rule, and toward which we have, accordingly, relied on two, one recent - adverted to by the Bench during hearing, and another, a locus classicus in the matter, both rendered with reference to judicial precedents. Accordingly, neither the law in the matter is enumerated, nor is the question as to how it is met finds reference, in the said application. The said case law would thus not be of any assistance to the assessee in the facts and circumstances of his case.
Another issue
5. The assessee has also raised a Ground (# 6) as to the non-grant of indexation benefit u/s. 48 in computing the impugned long-term capital gain. The same was not pressed during hearing and, accordingly, not responded to by the other side. A perusal of the assessment order, however, reveals an indexation benefit of 5.82 as having been applied by the AO in arriving at the long-term capital gain, inflating thus the cost (of acquisition) by the said factor. The charge therefore is incorrect. Any mistake in applying the correct index, if so, could be addressed by moving a rectification application. We have accordingly no reason to interfere. We decide accordingly.
6. In the result, the assessee's appeal is dismissed.
Order pronounced in the open court on June 24, 2019
Sd/- Sd/-
(N. K. Choudhry) (Sanjay Arora)
Judicial Member Accountant Member
Date: 24.06.2019
/GP/Sr/ Ps.
Copy of the order forwarded to:
(1) The Appellant: Kamal Ashish Singh s/o Jasvir Singh, Kooner Niwas, Crstal Lane, Near Union Bank of India, G.T. Road, Phillaur Goraya (2) The Respondent: Income Tax Officer, Ward-2, Phagwara (3) The CIT(Appeals)-2, Jalandhar 17 ITA No. 721/Asr/2017 (AY 2009-10) Kamal Ashish Singh v. ITO (4) The CIT concerned (5) The Sr. DR, I.T.A.T. True Copy By Order