Girdhari Lal, Ghaziabad vs Assessee

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.

I.T.A .No.-3213/Del/2013 3 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 I.T.A .No.-3213/Del/2013 4

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 I.T.A .No.-3213/Del/2013 6

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.

Sd/- Sd/-

(G. C. GUPTA) (INTURI RAMA RAO) VICE-PRESIDENT ACCOUNTANT MEMBER Dated:12/06/2015

*AK VERMA*

Copy forwarded to:

1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR I.T.A .No.-3213/Del/2013 7

Initial Date

1. Draft dictated on PS 11/06/2015

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 Second Member.

5. Approved Draft comes to the PS/PS Sr.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 Head Clerk.

10. Date of dispatch of Order.