Girdhari Lal C/o Akhilesh Kumar, Chamber No. 206-207, Ansal Satyam RDC Raj Nagar, Ghaziabad Vs. ITO Advocate Ward-1(2), Ghaziabad.
June, 15th 2015
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: `C' NEW DELHI
BEFORE SHRI G. C. GUPTA, HON'BLE VICE-PRESIDENT
SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER
Girdhari Lal Vs. ITO
C/o Akhilesh Kumar, Advocate Ward-1(2),
Chamber No. 206-207, Ansal "Satyam" Ghaziabad.
RDC Raj Nagar,
Assessee by:-Sh. Akhilesh Kumar, Adv.
Revenue by:- Sh. T Vasan Than, Sr. DR
Date of Hearing: 07/05/2015
Date of Pronouncement: 12/06/2015
PER INTURI RAMA RAO, AM :
This is an appeal filed by the assessee directed against the
order of ld. CIT(A), Ghaziabad in Appeal No.116/2009-10/GZB dated
26.03.2013 for the assessment year 2007-08. These grounds raised in
this appeal are as under:
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"1. Because, the order of learned lower authority is bad in law
and against the facts and circumstances of the case and
hence is unsustainable.
2. Because, the Learned Commissioner of Income Tax
(Appeals) grossly erred in not appreciating the fact that
the Ld. AO has totally failed to consider the claim u/s
2(14)(iii)/45 being gain from sale of agricultural land/stores
situated beyond 12 KM from the municipal limits and instead
rejected the same summarily while none of the lower authority
neither considered the evidences/material on the record nor
conducted any enquiry about the same. Hence orders of both the
lower authorities are against provisions of natural justice and
there is no speaking/reasoned order.
3. Because, without prejudice to above but as an alternative,
learned commissioner of Income Tax (Appeals) further failed to
appreciate the fact that the Ld. AO has not even considered the
fact that even if sale of rooms/stores are not to be considered
u/s 2(14) as above than the claim about the land should have
been considered u/s 2(14).
4. Because, learned Commissioner of Income Tax (Appeals) grossly
erred in not appreciating the fact that section 50C has no
applicability as property under question is a rural agricultural
land at the relevant time.
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5. Because, without prejudice to above but only as an alternative,
learned Commissioner of Income Tax (Appeals) has erred in not
appreciating the unusual surrounding circumstances of the case
on the record under which it was required to refer matter to DVO
u/s 50C(2)(b) of the Act.
As such rejection of claim u/s 2(14)(iii) and application of
provisions of section 50C are illegal and consequent addition of
Rs.3381514/- is not sustainable hence it is hereby prayed that
the total addition may kindly be quashed. Without prejudice to
the above but only in alternative, if it is not possible to allow the
above prayer than it is alternatively prayed that Ld. AO may
kindly be directed to examine the issue afresh in the interest of
justice as deemed fit by the Hon'ble Court."
2. Briefly stated the facts of the case are that the appellant is
individual and derived income under the head of capital gains and
income from other sources. The return of income for the A.Y. 2007-
08 was filed on 31st March 2008, declaring income of Rs.1,45,140/-.
After processing the return of income under the provision of section
143(1) of the Income Tax Act, the case was selected for scrutiny
assessment by issuing notice u/s 143(2) of the I.T. Act and the
assessment was completed u/s 143(3) of the I.T. Act vide order dated
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18th December 2009 at total income of Rs.33,92,830/- by making
addition of Rs.33,81,514/- under the provisions of section 50C of the
Act in respect of land sold by him.
3. Aggrieved by this assessment order an appeal was filed before
the ld. CIT(A) Ghaziabad, contending inter alia that the provisions of
section 50C cannot be applied in the instant case, inasmuch as the
property sold was agriculture land situated beyond 12 K.M. from the
Municipal Corporation limits. Therefore, the land is covered by this
provision of section 2(14)(iii) of the Act therefore, he contended that
the provisions of section 50C cannot be made applicable to this
transaction. However, the ld. CIT(A) without going into this issue
whether the property sold is agriculture land within the meaning of
provisions of section 2(14)(iii) of the Act or not simply after referring
to certain case laws governing the provisions of section 50C of the
Act, dismissed the appeal of the appellant. Being aggrieved, the
appellant had come up with the present appeal.
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4. It was argued on behalf of the appellant that the transaction is
covered by provisions of section 2(14)(iii) of the Act, and therefore,
the question of invoking the provisions of section 50C does not arise
inasmuch as the gains if any, arising out of transaction are exempt
from capital gains. On the other hand the ld. DR relied on the orders
of the lower authorities.
5. We have heard the rival submissions and perused the relevant
material placed on record. It appears that the AO had not considered
the issue whether the land is agriculture land or not. Even the ld.
CIT(A) despite filing the evidence before him simply ignored the
submissions made in this regard without assigning any reasons.
Therefore, in the interest of justice, we restore the matter to the file
of the AO to consider the evidence brought on record and take a
view whether the land sold agriculture is or not. If the land sold was
agriculture land within the meaning of provision of section 2(14)(iii)
of the Act then the question of invoking the provisions of section 50C
does not arise. Accordingly, with the above directions, the matter is
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restored to the file of the AO for such disposal after giving adequate
opportunity of being heard to the appellant.
6. In the result, appeal is allowed for statistical purposes.
Order pronounced in the open Court on 12/06/2015.
(G. C. GUPTA) (INTURI RAMA RAO)
VICE-PRESIDENT ACCOUNTANT MEMBER
Copy forwarded to:
5. DR: ITAT
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1. Draft dictated on PS
2. Draft placed before author 11/06/2015 PS
3. Draft proposed & placed before JM/AM
the second member
4. Draft discussed/approved by JM/AM
5. Approved Draft comes to the PS/PS
6. Kept for pronouncement on PS
7. File sent to the Bench Clerk PS
8. Date on which file goes to the AR
9. Date on which file goes to the
10. Date of dispatch of Order.