Income Tax Appellate Tribunal - Jaipur
Badri Narain Sharma, Jaipur vs Ito, Jaipur on 22 November, 2016
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM
vk;dj vihy la-@ITA No. 62/JP/2016
fu/kZkj.k o"kZ@Assessment Year : 2008-09.
Shri Badri Narain Sharma,
Village Post Sarangpura
Bad Ke Balaji, Ajmer Road,
Jaipur.
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Vs.
The Income Tax Officer,
Ward 7(2),
Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN No. BKJPS 1441 R
vihykFkhZ@Appellant
izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@ Assessee by : Shri Shrawan Kumar Gupta (Advocate)
jktLo dh vksj ls@ Revenue by : Shri R.A. Verma (Addl. CIT)
lquokbZ dh rkjh[k@ Date of Hearing : 15.11.2016.
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 22/11/2016.
vkns'k@ ORDER
PER SHRI KUL BHARAT, JM.
This appeal by the assessee is filed against the order of ld. CIT (A)-III, Jaipur dated 25.02.2014 pertaining to assessment year 2008-09. The assessee has raised the following grounds of appeal :-
The impugned order u/s 143(3) dated 30.11.2010 is bad in law and on facts of the case, for want of jurisdiction, barred by limitation and various other reasons and hence the same may kindly be quashed.
2.1. Rs. 1,27,67,793/-: The ld. CIT (A) has erred in law as well as on the f acts of the case in confirming the addition of Rs. 1,27,67,793/- on account of Long Term Capital Gain on the entire sale consideration of Agriculture Land, which was not a capital asset as per IT Act, thus the ld. AO erred in taking the sale of agriculture land under LTCG. Hence the addition so made and confirmed by the CIT (A), without considering the true facts and legal position, is totally contrary to the provisions of law and facts. Hence the same may kindly be deleted in full.
2.2. The ld. AO has also erred in taking the cost of acquisition at Rs. 3,680/- per bigha as on 01.04.1980 as against true cost. Hence the cost of acquisition so taken by the AO and confirmed by the CIT (A) is contrary to the provisions of law and facts. Hence the same may kindly be deleted in full.
3. The ld. AO erred in law s well as on the facts of the case in charging of interest u/s 234B, 234C & 234D as consequential in nature. The appellant totally denies it liability of charging of any such interest. Hence the interest so charged, being contrary to the provisions of law and facts, may kindly be deleted in full.
4. The appellant prays your honors indulgence to add, amend or alter all or any of the grounds of the appeal on or before the date of hearing.
2. Briefly stated the facts are that the case of the assessee was picked up for scrutiny assessment and assessment under section 143(3) of the I.T. Act, 1961 (hereinafter referred to as the Act) was framed vide order dated 30.11.2010. While framing the assessment, the AO computed the long term capital gain on the sale of the land at Rs. 1,27,67,793/-. The assessee aggrieved by this order, preferred an appeal before ld. CIT (A) who after considering the submissions dismissed the appeal.
3. Now the assessee is further in appeal before this Tribunal.
4. The effective ground in this appeal is against computation of Long Term Capital Gain on transfer of land. The ld. Counsel for the assessee reiterated the submissions as made in the written brief and submitted that the assessee had sold agricultural land which was beyond the Municipal limits and is not within the definition of Capital Asset. The ld. Counsel submitted that both the authorities below have failed to appreciate the facts.
4.1. On the contrary, the ld. D/R supported the orders of the authorities below.
4.2. We have heard rival contentions, perused the material available on record and gone through the orders of the authorities below. During the course of hearing, the ld. Counsel for the assesee has drawn our attention to copies of the Jamabandi of the revenue record and also Rajasthan Land Revenue (Conversion of Agricultural land for Non-Agricultural Purposes in Rural Areas) Rules, 1992, in support of the contention that the land is not a capital asset. We have given our thoughtful consideration to the material placed on record. It is not disputed with regard to the fact that if the agricultural land is beyond the prescribed Municipal limit, it would not fall within the definition of Capital Asset and any transfer of the same would not attract capital gain. In the present case it is not coming out from the records what is the Municipal Limits and from Municipal Limit what is the distance of the capital asset transferred by the assessee. Under these facts, we deem it proper that the issue be restored to the file of Assessing Officer for decision afresh. The AO would decide the issue afresh after making a on the spot enquiry with regard to the distance of the property in question transferred by the assessee as to whether the land falls within the Municipal limits and if he finds that the land is not within the prescribed distance from the Municipal limits in that event he would delete the Long Term Capital Gain after verifying whether the land in question falls within the exemption provided under the Act.
5. Since we have set aside the original assessment order for denovo assessment, other grounds do not require adjudication and the same are dismissed.
6. In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 22/11/2016.
Sd/- Sd/-
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(VIKRAM SINGH YADAV) ( KUL BHARAT )
ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member
Jaipur
Dated:- 22/11/2016.
Das/
vkns'k dh izfrfyfi vxzsf"kr@Copy of the order forwarded to:
1. The Appellant- Shri Badri Narain Sharma. Jaipur.
2. The Respondent- The ITO Ward 7(2), Jaipur.
3. The CIT(A).
4. The CIT,
5. The DR, ITAT, Jaipur
6. Guard File (ITA No. 62/JP/2016)
vkns'kkuqlkj@ By order,
lgk;d iathdkj@ Assistant. Registrar
5
ITA No. 62/JP/2016
Shri Badri Narain Sharma