Vinita Agarwal , Jaipur vs Assessee

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR

Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM

M.A. No. 09/JP/2015 fu/kZkj.k o"kZ@Assessment Year : 2009-10

Vinita Agarwal cuke D.C.I.T., Plot No. 18, Bharat Mata Path, Vs. Circle-6, Jaipur. Jamna Lal Bajaj Marg, C-Scheme, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AEZPA 6541 D vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Shri S.L. Poddar (Adv) jktLo dh vksj ls@ Revenue by : Mrs. Neena Jeph (JCIT).

lquokbZ dh rkjh[k@ Date of Hearing : 22/05/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 22/05/2015

vkns'k@ ORDER

PER: T.R. MEENA, A.M.

The assessee has filed this M.A. against the order of this Bench of

ITAT, Jaipur in ITA No. 660/JP/2012 & C.O. No. 57/JP/2012 for A.Y. 2009-

10, which was passed on 09/01/2015.

2. The assessee through her M.A. has submitted as under:-

"In this case the compulsory acquisition is of agricultural land which was situated beyond 8 km of the municipal limits. Although this issue is not 2 MA 09/JP/2015 Vinita Agarwal Vs. DCIT

discussed by the learned Assessing Officer in the assessment order but the same is discussed by the Learned CIT(A) who has given a clear finding on page No. 21 para 3.4 of the appellate order quoted below:-

"Further without prejudice to the above findings the Assessing Officer had also erred in taxing the capital gains U/s 45(5) of the Income Tax Act, 1961 because the agricultural land was not a capital asset. The Tehsildar of Tehsil Sanganer had issued a certificate dated 23/03/2012 certifying that Khasra No. 433, 434, 437, 432/2873, 436/2871 and 433/2872 were situated in village Khatwara which was beyond 8 km from the municipal limit. Hence the agricultural and in question was not a capital asset as per the provisions of section 2(14). Therefore, the provisions of section 45(5) could not have been invoked in the case of appellant. The grounds of appeal are accordingly allowed."

The assessee also agitated the issue before the Hon'ble ITAT in the submissions. The relevant part of which is quoted below:-

"It is further submitted that otherwise also the agricultural land in question was not a capital asset being situate beyond 8 km from the Municipal Limit as per the certificate dated 23/03/2012 issued by Tehsildar Sanganer. The Learned CIT(A) therefore has held that in view of this position provisions of Section 45(5) could not have been invoked in the case of the appellant. The Learned CIT(A) has discussed these facts in para 3.4 of the appellate order."

The Hon'ble ITAT has further erred in holding that the issue regarding land being situated beyond 8 km from the Municipal limits was not agitated before the learned Assessing Officer and hence the learned CIT(A) was not justified in giving a finding in this regard that the land was situated beyond 8 km from the municipal limits on the basis of certificate dated 23/03/2012 from the Tehsildar Sanganer. The Hon'ble ITAT has further observed that this technical ground was also not raised before them. In this regard it is sufficient to submit that it is established position of law that issues which 3 MA 09/JP/2015 Vinita Agarwal Vs. DCIT

go to root of the matter and which could not be taken up before the ld Assessing Officer, can be taken up at appellate stage either before the ld CIT(A) or even before the Hon'ble ITAT. Therefore, even if the issue was not raised before the ld Assessing Officer, the assessee was still justified to agitate the same during the assessment proceedings before the ld CIT(A). In these circumstances the Hon'ble ITAT has erred in holding that ld CIT(A) was not justified that the land was situate beyond 8 km. The Hon'ble ITAT has also incorrect in observing that this issue was not raised before them.

The submission of the assessee is that the various High Courts and Supreme Court have held the Hon'ble ITAT is all powerful in considering any issue which even comes before them of the first time if the same goes to the root of the matter. In this case the nature of land being agricultural goes to the root of the matter. Therefore, whether the matter was taken up or not before the ld Assessing Officer/ld CIT(A), the Hon'ble ITAT was still empowered to consider the issue and decide the same. In this regard it is relevant to quote the decision of the Supreme Court in the case of NTPC Ltd. Vs. CIT 229 ITR 383 (SC).

It is further submitted that the provisions of Section 2(47)(iii) are applicable in the case and not 2(47)(i) as applied by the Hon'ble ITAT. It is clear cut case of compulsory acquisition of land under the Central Land Acquisition Act 1894 by Urban Development Department, Government of Rajasthan which is covered under the provisions of section 2(47)(iii) which speak of the compulsory acquisition of land. The Hon'ble ITAT erred in applying provisions of Section 2(47)i). It is submitted that it is a case where assessee had no violation/choice. The entire proceedings were thrust upon him. Hence it was only under the lawful procedure that the surrender of rights in land was obtained from the assessee by the Urban Development Department of the Government of Rajasthan for processing 4 MA 09/JP/2015 Vinita Agarwal Vs. DCIT

the matter further with regard to acquisition which stood completed only on 29/11/2007 as observed by the Hon'ble ITAT on page No. 27 of the order. In view of this the order passed by the Hon'ble ITAT deserves to be recalled in the interest of equity and justice. The decision of the Hon'ble ITAT is required with reference to provisions of Section 2(47)(iii) in place of Section 2(47)(i). Hence the order passed by the Hon'ble ITAT deserves to be recalled.

It is further submitted that before applying the provisions of Section 2(47)(i) adequate opportunity was not granted to the AR of the assessee which prevented in making submissions for defense. Similarly the issue of the land being beyond 8 km as held by the learned CIT(A) has been dealt summarily and without providing any opportunity to the AR of the assessee. Thus the order of the Hon'ble ITAT requires to be recalled even on the issue of equity and justice.

In the facts and circumstances of the case, the Hon'ble Bench is requested to restore the appeal and oblige. The following case laws are also quoted in support:-

Needless to submit that the Hon'ble Tribunal would be justified in recalling the order for the removal of the prejudice against the assessee. Honda Siel Power Products Ltd. Vs. CIT (2007) 165 Taxman 307 (SC). It is further submitted that the Apex Court has held in the case of ACIT Vs. Saurastra Kutchh Stock Exchange Ltd. (2009) 173 ITR 322 (SC) that "justice is a virtue which transcends all barriers. Neither the rules of procedure not technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Even the law bends before justice. .....Technicalities apart if the court is satisfied of the injustice then

5 MA 09/JP/2015 Vinita Agarwal Vs. DCIT

it is its constitutional and legal obligation to set it right by recalling its order."

3. The M.A. was heard at length from both the sides. The AR of the

assessee reiterated the facts as mentioned in the earlier para. At the

outset, the ld DR vehemently opposed the MA filed by the assessee that

the assessee is changing the stand at every stage. The Hon'ble ITAT has

considered all the facts of the case and decided the case as per law, if the

assessee's arguments considered by the Hon'ble ITAT, it is review of the

case, which is not permitted U/s 254(2) of the Income Tax Act, 1961.

4. We have heard the rival contentions of both the parties and perused

the material available on the record. The ld CIT(A) has held the land

acquired by the JDA is beyond 8 km from the municipal area being a

technical issue raised before the ld CIT(A) during the appellate

proceedings, which can also be raised before us, which goes to root of the

matter to decide the case as per law being not raised before the Assessing

Officer. Therefore, it is an apparent mistake in the order dated 09/1/2015.

Accordingly, we recall our order dated 09/1/2015 in the interest of justice

passed by this Bench in 660/JP/2012 & C.O. No. 57/JP/2012 for A.Y. 2009-

10 and the present M.A. filed by the assessee is allowed and date of

hearing of the appeal is given in open court for 04/08/2015. The registry is 6 MA 09/JP/2015 Vinita Agarwal Vs. DCIT

directed to fix the case as per the above date in regular hearing. No

separate notice is required to be sent for both the parties.

5. In the result, this M.A. application is allowed.

Order pronounced in the open court on 22/05/2015.

Sd/- Sd/- ¼vkj-ih-rksykuh½ ¼Vh-vkj-ehuk½ (R.P.Tolani) (T.R. Meena) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member

Tk;iqj@Jaipur fnukad@Dated:- 22nd May, 2015

*Ranjan

vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- Smt. Vinita Agarwal, Jaipur

2. izR;FkhZ@ The Respondent- The D.C.I.T., Circle-6, Jaipur.

3. vk;dj vk;qDr@ CIT

4. vk;dj vk;qDr¼vihy½@The CIT(A)

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

6. xkMZ QkbZy@ Guard File (M.A. No. 09/JP/2015)

vkns'kkuqlkj@ By order,

lgk;d iathdkj@Asst. Registrar