Income Tax Appellate Tribunal - Delhi
Krishan Tanwar, New Delhi vs Ito, New Delhi on 8 March, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
(DELHI BENCH 'A' : NEW DELHI)
BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER
and
SHRI KULDIP SINGH, JUDICIAL MEMBER
ITA No.4822/Del./2016
(ASSESSMENT YEAR : 2012-13)
Shri Bal Krishan Tanwar, vs. ITO, Ward 45 (1),
WZ - 377, Basai Darapur, New Delhi.
New Delhi - 110 015.
(PAN : AAUPT5171B)
ITA No.4823/Del./2016
(ASSESSMENT YEAR : 2012-13)
Shri Krishan Tanwar, vs. ITO, Ward 45 (1),
WZ - 377, Basai Darapur, New Delhi.
New Delhi - 110 015.
(PAN : AGGPT9188C)
(APPELLANT) (RESPONDENT)
ASSESSEE BY : Shri Gautam Jain and
Shri Piyush Kumar Kamal, Advocates
REVENUE BY : Smt. Ashima Neb, Senior DR
Date of Hearing : 15.02.2018
Date of Order : 08.03.2018
ORDER
PER KULDIP SINGH, JUDICIAL MEMBER :
Since common questions of facts and law have been raised in both the aforesaid appeals, the same are being disposed of by way of consolidated order to avoid repetition of discussion. 2 ITA Nos.4822 & 4823/Del./2016
2. The appellants, Shri Bal Krishan Tanwar and Shri Krishan Tanwar (hereinafter referred to as 'the assessees') by filing the present appeals, sought to set aside the impugned order both dated 28.07.2016 passed by Ld. CIT(Appeals)-15, New Delhi qua the assessment year 2012-13 on the similar modified-cum-additional grounds inter alia that :-
"DENIAL OF EXEMPTION UNDER S. 10(37)
1. That the learned assessing officer has erred on facts and in law in denying the appellant-assessee the exemption under s. 10(37) of the Act in respect of Capital Gain arising from the compulsory acquisition of agricultural land.
2. That the learned assessing officer has erred in not allowing the appellant-assessee sufficient and proper opportunity to be heard and support the aforesaid claim of exemption.
3. That, therefore, the" denial of the aforesaid exemption and inclusion of capital gain of Rs.l,93,48,567/ - in the assessee's total income is against the law and facts and" is in breach" of the principles of natural justice.
ERROR IN THE AMOUNT OF COMPENSATION
4. That, without prejudice to the grounds 1 to 3 above, the learned assessing officer has erroneously adopted the compensation received by the appellant- assessee during the subject assessment year at Rs.2,11,40,528/- as against the correct amount of Rs.2,10,98,909/-.3 ITA Nos.4822 & 4823/Del./2016
FAIR MARKET VALUE AS ON 1st APRIL 1981
5. That, without prejudice to the grounds 1 to 3 above, the learned assessing officer has erred in arbitrarily adopting the fair market value of the subject land as on 1st April 1981 at Rs.115 per square meter.
6. That the learned assessing officer has erred in not allowing the appellant-assessee sufficient and proper opportunity to be heard and show and establish the fait market value of the land as on 1st April 1981."
2. Briefly stated the facts necessary for adjudication of the controversy at hand are : The exemption claimed by assessees, Shri Krishan Tanwar and Shri Bal Krishan Tanwar to the tune of Rs.2,11,40,528/- each under section 10 (37) of the Income-tax Act, 1961 (for short 'the Act') on account of capital gains arising out of compulsory acquisition of land measuring 2 bighas and 12 biswas or 2191.68 sq.mtrs. bearing Khasra No.3682/2619/2246 situated in Village Basai Darapur, Delhi in AY 2012-13 vide Award dated 01.09.2010, has been disallowed by the Assessing Officer on the ground that the nature of use of land in two years preceding the date of Award was stated to be commercial, so, the AO has made addition of Rs.1,93,48,567/- each on account of long term capital gains in case of both the assessees, Shri Krishan Tanwar and Shri Bal Krishan Tanwar.
4 ITA Nos.4822 & 4823/Del./2016
3. Assessees carried the matter by way of filing appeals before the ld. CIT (A) who has confirmed the additions made by the AO by dismissing the appeal. Feeling aggrieved, the assessees have come up before the Tribunal by way of filing the present appeals.
4. We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case.
5. Undisputedly, the land measuring measuring 2 bighas and 12 biswas or 2191.68 sq.mtrs. each belonging to assessees, Shri Krishan Tanwar and Shri Bal Krishan Tanwar was acquired vide Award dated 01.09.2010. It is also not in dispute that both the assessees, namely, Shri Krishan Tanwar and Shri Bal Krishan Tanwar claimed exemption of Rs.2,11,40,528/- each u/s 10 (37) of the Act on account of compensation received from Government for compulsory acquisition of their land measuring 2 bighas and 12 biswas. It is also not in dispute that to be eligible for getting exemption u/s 37 of the Act, the assessees are required to prove that the land in question was under cultivation / being used for agriculture during the period of two years preceding the date of transfer. For facility of reference, provisions contained u/s 10(37) of the Act are reproduced as under for ready perusal :- 5 ITA Nos.4822 & 4823/Del./2016
"10 In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included-- .........
(37) in the case of an assessee, being an individual or a Hindu undivided family, any income chargeable under the head "Capital gains" arising from the transfer of agricultural land, where--
(i) such land is situate in any area referred to in item
(a) or item (b) of sub-clause (iii) of clause (14) of section 2;
(ii) such land, during the period of two years immediately preceding the date of transfer, was being used for agricultural purposes by such Hindu undivided family or individual or a parent of his;
(iii) such transfer is by way of compulsory acquisition under any law, or a transfer the consideration for which is determined or approved by the Central Government or the Reserve Bank of India;
(iv) such income has arisen from the compensation or consideration for such transfer received by such assessee on or after the 1st day of April, 2004.
Explanation.--For the purposes of this clause, the expression "compensation or consideration" includes the compensation or consideration enhanced or further enhanced by any court, Tribunal or other authority;"
6. From the facts and circumstances of the case, orders passed by the Revenue authorities below, grounds raised by the assessees and the arguments addressed by the ld. Representatives of the 6 ITA Nos.4822 & 4823/Del./2016 parties to the appeal, the sole question arises for determination in this case is :-
"as to whether the land in question measuring 2 bighas and 12 biswas owned by assessees, Shri Krishan Tanwar and Shri Bal Krishan Tanwar to the extent of 1/3rd share each comprised in Khasra No.3682/2619/2246 situated in Village Basai Darapur, Delhi was being used for agriculture purpose by the assessees during the period of two years immediately preceding the date of transfer entitling the assessees to claim exemption u/s 10(37) of the Act.?
7. Undisputedly, this is a factual issue which is required to be decided by the AO, CIT (A) and the Tribunal on the basis of facts supported with Revenue records and the attending circumstances. It is also not in dispute that on one part of the land in question measuring 42 biswas, petrol pump has been running since 1967. It is also not in dispute that the land in question is adjoining to residential area of Mansarovar Garden.
8. Perusal of the Award dated 01.09.2010, available at pages 18 to 26 of the paper book, categorically refers to the report given by Delhi Development Authority (DDA) at page 21 that the land in question is "coming under 60 meters road R/W' and is covered under "Transportation" land used. The land in question is adjoining 7 ITA Nos.4822 & 4823/Del./2016 to existing petrol pump and residential area of Mansarovar Garden and the area surrounding the site of acquisition is residential as per report of DDA and has been taken as such for determining the Award. Report of DDA has not been controverted by the assessees before AO as well as ld. CIT (A) or before the Bench.
9. When we further examine land acquisition Award at pages 21 to 23 of the paper book, the Land Acquisition Collector (LAC) has determined the Award by comparing the same with adjoining property whereupon shops and basements have been constructed and in all the adjoining Khasra numbers, multi-storeyed building of Mansarovar Garden has been constructed with which the land in question has been compared for determining the compensation. Consequently, LAC determined the market value of the land in question at Rs.21,800/- per meter.
10. Undisputedly, the land was acquired vide Award dated 01.09.2010 and possession was taken over by the Government on 23.08.2010. To determine the fact if any piece of land remained under cultivation during the period of preceding two years of date of transfer, the primary evidence is "Revenue record" which is prepared by the Halka Patwari by making physical verification of the crops standing on the land in question after every six months i.e. Rabi and Kharif. Revenue record i.e. Jamabandi and Khasra 8 ITA Nos.4822 & 4823/Del./2016 Girdwari for the two years immediately preceding the date of transfer i.e. 23.08.2010 have not seen the light of the day. Since the onus is on the assessees to prove that the land in question had been continuously used for agriculture purpose, the assessee was duty bound to bring on record the Jamabandi and Khasra Girdwari before AO and then CIT (A) or at the most the assessee could have produced the Revenue record before the Bench for perusal.
11. However, the assessee brought on record Jamabandi for the year 1960-61 and Khasra Girdwari for Kharif 1997 and Rabi 1998, available at pages 14 to 16 of the paper book, which are of no support to the assessees.
12. Perusal of paras 15 & 16 of the assessment order apparently goes to prove that a discreet fact finding enquiry has been conducted by the AO to make out if the land in question was being used for agriculture purpose two years prior to its transfer to the Government, but the assessee has failed to bring any such document before AO. Moreover, when compensation has been determined by the LAC by comparing the land in question with the adjoining land whereupon residential buildings and petrol pump have been running, the assessees is estopped by its own acts and conduct by claiming that the land in question is an agriculture land 9 ITA Nos.4822 & 4823/Del./2016 particularly when the entire relevant revenue record has been suppressed.
13. The ld. AR for the assessee by relying upon the decision rendered by Hon'ble Punjab & Haryana High Court in Jaswant Rai vs. Commissioner of Wealth-tax - (1977) 107 ITR 477 (P&H) contended that when land in possession of other co-sharer of the assessees, namely, Ramesh Singh Tanwar has been subjected to lower rate of taxation by awarding him the similar exemption u/s 10(37) of the Act by the Revenue authorities, the addition made by the AO and confirmed by the ld. CIT (A) is not sustainable.
14. However, we are of the considered view that since the issue in question has been decided by the Revenue authorities below on the basis of facts in the light of the statute parity with other cases cannot be claimed as there is no estoppel against statute. For one reason or the other, in case the apparent facts have been overlooked by the Revenue authorities to decide the identical issue, the assessees cannot claim benefit of the wrong committed by a Revenue Officer as the principle of res judicata is not applicable in tax matters. So, in these circumstances, the judgment relied upon by the ld. AR for the assessees is not applicable to the facts and circumstances of the case.
10 ITA Nos.4822 & 4823/Del./2016
15. The ld. AR for the assessee also relied upon the cases of Hon'ble High Court of Madras in CIT vs. S. Muthukarupan - (2007) 163 taxman 45 (Mad.) and CIT, Chennai vs. Kumararani Smt. Meenakshi Achi - (2007) 158 taxman 4 (Madras) which are also not applicable to the facts and circumstances of the case because the case in hand has been decided by the AO as well as CIT (A) on the basis of facts proved and then admitted on record by the assessee.
16. In view of what has been discussed above, finding no illegality or perversity in the findings returned by the ld. CIT (A), present appeals bearing ITA No.4822/Del./2016 and ITA No.4823/Del/2016 are hereby dismissed.
Order pronounced in open court on this 8th day of March, 2018.
Sd/- sd/-
(B.P. JAIN) (KULDIP SINGH)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated the 8th day of March, 2018
TS
11 ITA Nos.4822 & 4823/Del./2016
Copy forwarded to:
1.Appellant
2.Respondent
3.CIT
4.CIT(A)-15, New Delhi.
5.CIT(ITAT), New Delhi. AR, ITAT
NEW DELHI.