TaxTMI 
TaxTMI 
2014 (1) TMI 1867
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....nd Land Surveyor for the agriculture land at village Nagal Susavatan for the purpose of Section 2(14)(iii). The Inspectors and measured the distance without ascertaining the correct Municipal Limits and actual location of the impugned land sold by the assessee, accordingly wrongly sustained impugned addition made by AO on this score. 2. The ld. CIT(A) has erred in considering the remand report of the Assessing Officer, in pursuance to Rule 46A who had failed to examine the elaborate Map by a Qualified Land Surveyor and a Google Map of distance between Municipal Limit and impugned land. The assessing officer also did not physically verify the distance, while rejecting the Surveyor's report and ignored the request of the assessee to verify the distance of the said land in assessee's presence for correct identification of the impugned land or with the help of the Revenue authorities. 3. The ld. CIT(A) has erred in accepting the remand report under Rule 46A by a lower authority i.e. Income-tax Officer on an order under appeal issued by Superior Authority i.e. Asstt. Commissioner of Income-tax. 4. The interest charged u/s 234B & C has wrongly been calculat....
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....e assessee on 20-11-207 from Shri Pradeep Bhati, Shri H.P. Choudhary and Shri G.C. Agarwal for a total consideration of Rs. 54,72,000/-. This land has been sold on 22-12-2007 for a total consideration of Rs. 6,93,12,000/- which has been treated as the income of the assessee of this year and has been added in her hands. 3.2 Aggrieved, the assessee filed an appeal before the ld. CIT(A) who has confirmed the addition. 3.3 The assessee is further aggrieved and filed an appeal before us. The Revenue has also filed an appeal before us. 3.4 We have heard the rival submissions and have carefully perused the entire record. Before us, both the parties have reiterated their earlier stands. The assessee has sold a piece of agricultural land. The AO has not disputed the fact. Rather, he has accepted that the nature of the land sold is agricultural only. Section 45 of the Act prescribes that any profit or gain arising from the transfer of capital asset effected in the previous year shall, save as otherwise provided in the sections 54,54B, 54D etc. shall be deemed to be the income of the previous year in which the transfer took place. The definition of a 'Capital Asset' is supplied by th....
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....further proof. The report of the Inspector was obtained behind the back of the assessee. The AO did not and should not have demanded any further proof from the Tehsildar or the Jaipur Municipal Corporation as the Sarpanch and the Halka Patwari are such authorities who are more intimately connected with the position of their agricultural revenue area. Thus, the action of the AO is uncalled for and deserves to be deprecated. Now coming to the order of the ld. CIT(A), to satisfy the exparte observations of the AO, the assessee produced even the report obtained from Jaipur Municipal Corporation was filed before him under the provisions of Rule 46A of the Income Tax Rules. This report has also been certified and confirmed the report of the Sarpanch and the Halka Patwari that this land is situated beyond 9 KM from the local limits of this Municipal Corporation. The ld. CIT(A) moved one step further and summoned the Revenue officer of the Jaipur Municipal Corporation and recorded his statement. Shri Dinesh Pareek, the Revenue Officer, confirmed that he had himself issued this certificate. However, he was examined again and again. He made a contradictory statement when he was called &frac3....
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....asurement, the actual distance between Delhi Road, Jaipur (land of Mrs. Pooja Agarwa) from Purani Chungi is found as 6.2 KM and accoriding to new jurisdiction of Jaipur Municipal Corporation, its distance found as 7 KM. The Inspection report given by Shri Purshottam Sharma dated 07/02/2012 again has no evidential value and lacks reliability. The same cannot be used against the assessee. As per Revenue Officer, Jaipur's Municipal Corporation limits ends before 8 KM from Purani Chungi, Amer, Jaipur. Thus both these reports are contradictory and having no evidential value, because it seems that Inspector Shri Purshottam Sharma still was not aware about the correct limits of Jaipur Municipal Corporation and location of the land of assessee. c) In Answer No.4 Revenue Officer has narated the story of land within 8 KM of Jaipur Municipal Corporation from Purani Chungi, Chowki without knowing location of the land of assessee. The earlier certificates were based on the certificates of other Revenue Authorities. So this averment is not acceptable. d) In cross examination Revenue Officer, Jaipur Nagar Nigam (Amer) has stated in Answer No.1 that are....
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....nue Officer and Inspector of Department) are not aware the facts. They have taken the measurement from Purani Chungi Chowki, Kunda, which is not correct. 4. The assessee has produced all the relevant evidences i.e. Revneu Record in support of the land situated at village Nangal Susavatan, Tehsil Amer, Distt. Jaipur alongwith certificates of I Revenue Authorities of village of justifying that land is beyond 8 KM distance from the Municipal Limit. Nowhere in law, it is provided that certificates from Municipal Commissioner is binding or mandatory. The assessee has also provided the same as per requirement of AO asked during the course of assessment proceedings. The enquiry made on that certificates is also not fruitful as contradictory findings has come out. The report of Inspector conerned is altogether not considerable as he is not aware about the correct position of land and its measurement etc. since very beginning. 5. The assessee is regularly stating categorically tht land in question is beyond 8 KM of Jaipur Nagar, Nigam limits, even in notificatation dated 18-04-1992 villages, which are within 8 KM of Municipal Limit are mentioned and the name of vi....
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....al Singh followed Lankik Developers vs. DCIT, 105 ITD 657, Mumbai. 5.4 A certificate from Shri Mangal Chand Kumawat, Architect is also enclosed which certifies the above distance (Annexure -F). An attested map from him taken from Google Earth Work GPS system is also enclosed which also certifies above distance (Annexure -G) So claim of assessee is correct as the facts emerges from above evidences on record. Hence, addition made on this score may kindly be deleted.'' Admittedly, the assessee was not allowed opportunity to cross examine. This is against principles of natural justice. This statement cannot be relied on. The ld. CIT(A) has mentioned that he has not relied on the statement of Shri Dinesh Pareek dated 02-02-2011. However, his version has really impressed his decision making faculty in one way or the other. It is noticed that alleged physical verifications which are not based on any scientific manner and not done by an expert in the field give divergent opinion. Therefore, these verifications cannot be relied upon. The best evidence in the form of reports of the Sarpanch, the Halka Patwari and even the Municipal Corporation, Jaipur (in the fi....
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.... 5. Smt. Pratibha Goyal, ITAT Jaipurm, ITA No 1572/JP/2008 (copy enclosed at pages 84 to 87 of APB) Accordingly, we order to delete the impugned addition and allow the appeal of the assessee. Thus Ground Nos. 1 to 3 of the assessee are allowed. 4.1 The Ground No. 4 of the assessee relating to charging of interest u/s 234B and 234C is consequential 5.1 In the Revenue's appeal, the only ground has been raised which pertains to deletion of addition of Rs. 14,30,009/- made by the AO on account of disallowance of expenditure. 5.2 The facts of this ground are that the AO noticed that the assessee has shown net income from job work and contract receipts of Rs. 5,79,964/- under the head "Income from other Sources''. The assessee received an amount of Rs. 63.00 lacs from Kwality Resorts & Hospitality Ltd. Mumbai as per the contract. After examination, it was found that the payments weer made for tractor hire and labourers for levelling the land between the period 3-10-2007 to 28-12-007. The AO observed that the assessee had sold this land as per 03 conveyance deeds to Kwality Resorts & Hospitality Ltd., Mumbai dated 22-12-2007. It was also noticed that the payments were m....