Income Tax Appellate Tribunal - Jaipur
Pooja Agarwal, Jaipur vs Acit, Jaipur on 2 December, 2019
vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj
IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH 'B', JAIPUR
Jh fot; iky jkWo] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k
BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM
vk;dj vihy la-@ITA No. 927/JP/2012
fu/kZkj.k o"kZ@Assessment Years : 2008-09.
Ms Pooja Agarwal, cuke The Asstt. Commissioner of
D-5A, Meera Marg, Vs. Income Tax,
Bani Park, Circle-3,
Jaipur. Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. AFRPA 2680 Q
vihykFkhZ@Appellant izR;FkhZ@Respondent
vk;dj vihy la-@ITA No. 84/JP/2013
fu/kZkj.k o"kZ@Assessment Years : 2008-09.
The Income Tax Officer, cuke Ms Pooja Agarwal,
Ward 3(2), Vs. D-5A, Meera Marg,
Jaipur. Bani Park,
Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. AFRPA 2680 Q
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@Assessee by : Shri Praveen Saraswat (CA)
jktLo dh vksj ls@ Revenue by : Shri B.K. Gupta (CIT)
lquokbZ dh rkjh[k@ Date of Hearing : 28/11/2019.
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 02/12/2019.
vkns'k@ ORDER
PER VIJAY PAL RAO, J.M.
These two cross appeals by the assessee and revenue are directed against the order dated 07.11.2012 of ld. CIT (A) for the assessment year 2008-09. Earlier, this Tribunal vide composite order dated 31st January, 2014 disposed off the appeal 2 ITA Nos. 927/JP/2012 & 84/JP/2013 Ms Pooja Agarsal, Jaipur.
of the assessee in ITA No. 927/JP/2012 and cross appeal of the revenue in ITA No. 84/JP/2013. The appeal of the assessee was allowed and the appeal of the revenue was dismissed by the Tribunal. The revenue challenged the said composite order of the Tribunal before the Hon'ble jurisdictional High Court. The Hon'ble High Court vide judgment dated 08.11.2017 disposed off the appeal of the revenue in DBIT Appeal No. 28/2014. The question of law as framed by the Hon'ble High Court have been reproduced in para 2 of the judgment as under :-
" (i) Whether in the facts and circumstances of the case the Tribunal was justified in reversing the finding of Assessing Officer as well as CIT (A) and holding the agricultural land as exempted under Section 2(14)(iii)(b) of the Act, despite the fact that the said land was falling within 8 kms of the municipal limit and thereby deleting an addition of Rs. 6,38,40,000/-.
(ii) Whether in the facts and circumstances of the case the Tribunal as well as the CIT (A) were justified in deleting the addition of Rs. 14,30,009/- which was made by the Assessing Officer disallowing 25% of the expenditure claimed by the assessee as neither any documents nor any details were submitted by the assessee in support of the said expenditure ?"
2. While disposing off these two questions of law, the Hon'ble High Court has set aside the matter to the record of this Tribunal as under :-
" 3. Taking into consideration the evidence which has come on record, it seems that there are subsequent development which is required to be reconsidered by the Tribunal.
4. In that view of the matter, with a view to verify whether the distance of the land in question is more than 8 kilometer on the outskirts of Jaipur city is required to be re-verified by the Tribunal taking into consideration, the notification dt. 6th January, 1994 issued by the Income Tax Department and judgment of this Court in Tax Appeal No. 75/2014. The Tribunal will consider both the notification and judgment and if required make a request to Revenue Authority not below Deputy 3 ITA Nos. 927/JP/2012 & 84/JP/2013 Ms Pooja Agarsal, Jaipur.
Collector to verify the distance from the outskirts of Jaipur to the land in question.
5. With the above direction, the matter is remitted back to the Tribunal only with a view to verify the distance.
6. It is made clear that we have not expressed any opinion on merits and it will be open for the Tribunal to reconsider the same and take an independent view after taking into account the new facts after verification and it will not being influenced by the decision of this Court."
Thus the Hon'ble High Court has remanded the matter on the point of considering the distance of land in question from the Municipal limits of Jaipur City in accordance with the Notification dated 6th January, 1994. Consequently these appeals were placed before this Tribunal for hearing and adjudication in terms of the directions of the Hon'ble High Court vide judgment dated 08.11.2017. The ld. A/R of the assessee has submitted that the AO has taken the distance from Municipal limits to the land in question at 3.50 kms as per the report of the Inspector and, therefore, the said report is not based on actual distance as on the date of Notification dated 06.01.1994. He has further contended that the same Inspector has also reported the distance as 7 kms in his subsequent report dated 07.02.2012 which was submitted to the ld. CIT (A). Therefore, there is an inconsistency in the material on the basis of which the authorities below have arrived to the conclusion that the distance of the land from the Municipal limits of Jaipur City is within 8 kms and consequently the land in question is falling in the definition of capital asset as per the provisions of section 2(14)(iii)(b) of the IT Act. Thus the ld. A/R of the assessee has submitted that when the distance of the land is reported by the Inspector as 7 kms as on the date of the said report, then it will be beyond 8 kms if the same is taken as on the date of Notification on 06.01.1994. Accordingly, the ld. 4 ITA Nos. 927/JP/2012 & 84/JP/2013
Ms Pooja Agarsal, Jaipur.
A/R has submitted that the land in question does not fall in the definition of capital asset and thereby no capital gain is assessable to tax.
3. On the other hand, the ld. D/R has submitted that the land in question is otherwise not an agricultural land as held by the AO. He has referred to the finding of the AO in para 2 of the assessment order and submitted that the assessee has sold the land to Quality Resorts & Hospitality Ltd., Mumbai which has resulted short term capital gain and hence when the land was sold for non agricultural purposes, then it is otherwise no more an agricultural land. In support of his contention, he has relied upon the decision of this Tribunal in case of Rakesh Garg vs. ITO, 98 taxmann.com 360 (Jaipur Trib.). Thus the ld. D/R has submitted that the land is otherwise not an agricultural land irrespective of the distance from the Municipal limits. He has also pointed out that even otherwise the distance has to be measured from the Municipal limits to the area in which the land in question is situated and not the distance from the Municipal limits to the particular piece of land.
4. We have considered the rival submissions as well as the relevant material on record. The Hon'ble Jurisdictional High Court has remanded the matter for considering the distance from the Municipal limits to the land in question as on 06.01.1994. The adjudication of the issue requires a proper verification and supporting evidence which has not been provided by the parties before us. Accordingly, we cannot decide this issue conclusively in the absence of the necessary evidence on this point. Hence this matter is set aside to the record of the AO to conduct a proper enquiry and also consider the evidence, if any, to be filed by the assessee in support of his claim that the distance from the Municipal limits to the area in which the land is situated is less than 8 kms as on 06.01.1994. 5 ITA Nos. 927/JP/2012 & 84/JP/2013
Ms Pooja Agarsal, Jaipur.
5. As regard the department's appeal on which the question of law no. (ii) was framed by the Hon'ble High Court, we find that this is only a consequential issue arises when the land in question is treated as capital asset and not as agricultural land excluded from the definition of capital asset as per the provisions of section 2(14)(iii)(b) of the Act. Therefore, once the main issue involved in the assessee's appeal is set aside to the record of the AO, this issue is also consequently set aside to the record of the AO for deciding afresh after giving an opportunity of hearing to the assessee.
6. Before parting with the matter, we may clarify that the Hon'ble High Court has specifically made it clear that no opinion has been expressed on the merits of the case and it is open for the Tribunal to consider the same and take an independent view after taking into account new facts after verification and it will not being influenced by the decision of the High Court. Therefore, the AO is also directed to decide the issue afresh as per the law and facts emerging from the investigation and enquiry to be conducted on this point. Hence both the appeals are set aside to the record of the AO for fresh adjudication in the above terms.
7. In the result, both the appeals are allowed for statistical purposes.
Order pronounced in the open court on 02/12/2019.
Sd/- Sd/-
¼foØe flag ;kno½ ¼ fot; iky jkWo ½
(Vikram Singh Yadav) (VIJAY PAL RAO)
ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member
Tk;iqj@Jaipur
fnukad@Dated:- 02/12/2019.
das/
6
ITA Nos. 927/JP/2012 & 84/JP/2013
Ms Pooja Agarsal, Jaipur.
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant-Ms Pooja Agarwal, Jaipur.
2. izR;FkhZ@ The Respondent-The ACIT, Circle-3/ITO Ward 3(2), Jaipur.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr@ CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File {ITA No. 927/JP/2012 & 84/JP/2013} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar