TaxTMI 
TaxTMI 
2025 (4) TMI 202
X X X X Extracts X X X X
X X X X Extracts X X X X
....e, it is noted that the ld.CIT(A) has dismissed the appeal of the assessee by observing as under :- 8. Decision: All the information available on record alongwith the impugned assessment order, the grounds of appeal and submission filed by the appellant in this case has been considered. The additional documents submitted during appellate proceedings were forwarded to the JAO calling for remand report. Remand report dated 10.04.2019 has been taken on record. The appellant's comments on the remand report have also been considered. The ground wise issues raised in this appeal are discussed as under: 8.1 Grounds of appeal number 1 and 8: Vide ground no 1 and 8 of this appeal, the appellant has challenged the action of AO in initiating reassessment proceeding U/s 147 of the Act without obtaining proper satisfaction and sanction from the superior authority U/s 151 of the Act. I have carefully considered the facts and submissions of the Learned AR and the decisions relied on by him. This is the case where originally the appellant had not filed return u/s 139 (1) of the Act but subsequently filed return of income in response to notice u/s148 of the A....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 8.3 Grounds of appeal number 4: Vide ground no 4 of this appeal, the appellant has challenged the action of AO in not referring the issue for valuation to determine the correct market value even after a specific request U/s 50C(2) of the Act. A perusal of record reveals that during the course of assessment proceedings, the AO had referred the matter to valuation officer but the valuation report was not received till the date of finalization of assessment proceedings u/s 143(3) rws 147 of the Act on 28.12.2017. However, on receipt of valuation report, the AO passed the necessary rectification order u/s 154 of the Act on 28.11.2018 reducing the taxable income from 6,05,20,557/- to Rs. 72.14 057/ -. Accordingly this ground does not survive and hence is dismissed. 8.4 Grounds of appeal number 5: Vide ground no 5 of this appeal, the appellant has challenged the action of AO in not allowing the deduction U/s 54F of the Act. The claim of the appellant has been considered and it is noticed that the appellant has not claimed any deduction u/s 54F of the Act for the AY 2013-14. The Hon'ble Apex Court vide order dated 24.03.2006 in the case of Goetze (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r. amend, modify, substitute, delete and/or rescind all or any of the ground of appeal on or before the final hearing. Since, the appellant has not submitted any request to amend the appeal; therefore, this ground of appeal is not entertained. 9. In the result, the appeal is dismissed." 2.2 During the course of hearing, the ld.AR of the assessee submitted that the lower authorities erred in not allowing the benefit of Section 54F of the Act to the assesee. To this effect, the ld. AR of the assessee has repeated the same arguments as were made before the ld.CIT(A) and thus he has filed the detailed written submission to counter the orders of the lower authorities and the same is reproduced as under :- 1. The assessee is a lady dependent on her husband for her livelihood, and since she did not have any taxable income, no return of income had been filed for the year under consideration or past years. 2. On the basis of AIR information, the Assessing Officer (AO) noted that the assessee sold four pieces of land situated at RohiMauja, Sardarshahar during the FY 2012-13 on 18-02-2013, and one piece of land situated at RohiMauja, Sardarshahar during the FY 20....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as additional evidence). In the said letter dated 28-02-2019, it was specifically stated that Khasra No. 230 is outside the Municipal Limit of Sardarshahar. 11. Since this latest certificate of Municipal Board, Sardarshahar dated 28-02-2019 being additional evidence, it was informed to the appellant a remand report from the AO may be called for. However, it is not clear whether any remand report is called for or not or if called for the same is certainly not provided to the appellant for rebuttal. 12. Sir, even after the AO's rectification order dated 28-11-2018, the issue of dispute remains the same that pieces of land sold by the assessee were agricultural land and not fall in the definition of capital assets, hence, no addition on account of LTCG should be made in our case. Thus, we still rely on our grounds of appeal raised which are reproduced as under:- I. On the facts and circumstances of the case and law also Learned Assessing Officer grossly erred in initiating reassessment proceeding U/s 147 of the Income tax Act 1961. II. On the facts and circumstances of the case and law also Learned Assessing Officer grossly erred in taxing the sale ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....alue of the land, ignoring the fact that this land was situated beyond 6 KM of Municipal limits of the Sardarshahar thus, was not capital assets. Accordingly, the addition so-made is erroneous, arbitrary and for the sake of making addition to the returned income. Had the material available on record examined judicially by an unbiased person in light of judicial pronouncement on the subject matter, no addition on account of invocation of sec. 50C would have been made. While making unwarranted addition contrary to the material on record Ld. AO denied to consider true nature of land and the judgments of Supreme Court and Jurisdictional High Court of Rajasthan on the issue. The denial to consider the binding judicial Pronouncement without recording any finding as to why such decision not at all applicable in the case under consideration itself demonstrate that the assessment was framed in capricious and arbitrary manner contrary to the law governing the issue under consideration. Your appellant wishes to submit that in the instant case also, there were no enquiries conducted to ascertain the correct facts regarding actual sale consideration of the lands and whether the land fa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e sufficiency of reasons cannot be questioned. However, the appellate authorities have jurisdiction and authority to satisfy themselves as to whether the AO had reason to believe taking into consideration whether the reason so given has a rational connection or relevance for formation of that belief. The rational connection postulated in section 147 must have a direct nexus or live link with the material coming to the notice of the AO and the formation of his belief regarding escaped income. There must be tangible material on record for the formation of opinion, which is a prerequisite for initiation of action u/s 147. There should be facts before the AO, which should reasonably give rise to the belief that income has escaped assessment. The facts should have relevant bearing to the formation of the belief at the time of issue of notice. It is thus, trite that when challenge is made to the action u/s 147 what the appellate authority is required to do is to examine as to whether there is some material on record for the AO to form the requisite belief and whether the reason for the belief has a rational nexus or relevant bearing to the formation of Such belief. In the instant case, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sessment. A mere mention of a belief, without disclosing the reasons on which such belief has been based, cannot be permitted. In view of the above, it is requested to kindly quash the assessment proceeding based on non-application of mind of the Assessing Officer while recording the reason to believe. (Ground No. 2) On the facts and circumstances of the case and law also Learned Assessing Officer grossly erred in taxing the sale of alleged land as the alleged land is an agricultural land situated out of limit of Municipal Board hence not a capital assets. Before arguing this ground of appeal and giving reply on AO's various allegations while making the unwarranted addition of Rs. 6,05,20,557/- which was subsequently reduced to Rs. 72,14,057/- vide order passed u/s. 154/143(3) r.w.s. 147/148 of the Act dated 28-11-2018 after receipt of DVO's report, your humble appellant would like to point out that AO's entire action in treating the pieces of land sold by the appellant as "capital assets" is based on report dated 24-08-2016 Executive Engineer of Municipal Board of Sardaharshar. If your honor go through, this letter dated 24-08-2016 of E....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onment board referred to in item (a) and which has a population of more than ten lakh. Explanation .- For the purposes of this sub-clause, "population" means the population according to the last preceding census of which the relevant figures have been published before the first day of the previous year;]] From the language of section, the definition about agriculture land is as under :- iii) agricultural land in India, not being land situate- (a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand according to the last preceding census of which the relevant figures have been published before the first day of the previous year ; or (b) in any area within such distance, not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a), as the Central Government may, having regard to the extent of, and scope for, urbanisation of that area and othe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in all directions. 14. Udaipur Areas up to a distance of 8 kms. From the municipal limits in all directions. What if the agriculture land is not falling within any municipality named in the Notification by Government?? In that case, the agriculture land is not capital asset if it is not within any municipality. Summing Up on agricultural land To determine whether agriculture land, try to answer following question 1. Whether it is situated in any municipality or cantonment population of which is more than 10000. 2. Whether it is situated within distance from notified municipality as given in Notification 9447 and 11186. if answer of any of the above is YES, the said agricultural land is capital asset, otherwise not. In the instant case, admittedly, the agricultural lands of the assessee was Not situated in Municipal Area of Sardarshahar and even not situated within distance from notified municipality as given in Notification 9447 and 11186. In fact, as per newly notified of area Municipal limit of Sardarshahar, the lands are beyond 6 Km 'from the Municipal Limits. This fact can be verified from ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rifies that agricultural land situated in rural areas, areas outside the municipality or cantonment board etc., having a population of not less than 10,000 and also beyond the distance notified by Central Government from local limits, i.e. the outer limits of any such municipality or cantonment board etc ., still continues to be excluded from the definition of 'capital asset'. Accordingly, in view of sub-clause (b) of section 2(14)(ili) even under the amended definition of expression 'capital asset', the agricultural land situated in rural areas continues to be excluded from that definition. In the instant case, admittedly, the agricultural land of the assesse was outside the municipal limits and that also 2.5 km. away from the outer limits of the said Municipality, assessee's land did not come within the purview of section 2(14)(iii ) either under sub-clause (a) or (b ), hence the same could not be considered as capital asset within the meaning of this section: Hence, no capitalgain tax could be charged on the sale transaction of this land entered by the assessee. [Para 7]. Sir, it is to submit that Central Government in its Notification No. 9447 dated....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e that the land is agricultural in character. The fact that permission has been obtained under the Bombay Tenancy Act does not mean that the land ceased to be agricultural in character. On the contrary, non-compliance with the conditions laid down for the permission would automatically make the sanction null and void and the land would again resume its agricultural character. In the instant case, right from 1946 when the impugned land was purchased till its sale in March 1969, it was under cultivation yielding various crops. The agricultural operations could not, therefore, be said to be carried on in the land by way of stop-gap arrangement pending the arrival on the scene of a willing purchaser. Accordingly, impugned land was agricultural in character." Thus, the assessee's lands are agriculture in character and do not come within the purview of section 2(14)(iii ) either under sub-clause (a) or (b ), hence the same could not be considered as capital asset within the meaning of this section. lssue-2:- Provisions of section 50C are applicable to capital asset not on agriculture land. For better appreciation, the relevant provisions of sec. 50C are rep....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ulture lands are not capital assets. In the case in hand the land in question had been using for agricultural purpose and still being used for the agricultural purpose. Also, the agricultural land is not falling within Jodhpur Municipality and not situated within distance from notified municipality as given in Notification 9447 and 11186. Thus, the land cannot be held as capital asset. And provisions of section 50C and 56(2)(vii) of the act are applicable on Capital Assets and not on agriculture land. It is further to submit that according to the definition of 'capital gain' in section 45 of the Income-tax Act, 1961, the capital gain is chargeable on the transfer of 'capital asset' only and not otherwise. Hence, if the transfer is not of a capital asset as defined in section 2(14) of the Act, the question of any capital gain does not arise. Our concern is with section 2(14)( iii)(a) and (b) which are produced hereunder for the sake of clarity: "Section 2(14)( ifi)-" 'Capital asset' means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include 'agriculture land' in India, not being land s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....atest certificate issued my concerned authority i.e. Municipal Board, Sardarshahar dated 28-02-2019, it is specifically stated that Khasra No. 230 where properties in question are situated is outside the Municipal. Limit of Sardarshahar. Thus, from this certificate also, the land in dispute is situated beyond 6 Km from Municipal limits of Sardarshahar. Here we wish to place reliance upon the lastet decision of the Hon'ble ITAT Chennai 'B' Bench in the case of Mohideen Sharif Inayathulla Sharif vs. ITO [2022] 139 taxmann.com 551 (Chennai - Trib.) wherein it was specifically held that where assessee sold land situated at village Eachankaranaiand claimed same as agricultural land as per Notification No. SO 9447, dated 6-1-1994 issued for Chenglepet Municipality area upto 5 Kms. from municipal limits was to be considered and since assessee's land was situated beyond 5 kms. fromChenglepetMunicipality, it could not be considered as non-agricultural land. The head note is reproduced as under:- "Section 2(14), read with section 45, of the Income-tax Act, 1961 - Capital gains - Capital asset (Agricultural land) - Assessment year 2011-12 - Assessee sold certain land....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sessment order. The assessee went in appeal against the said order. The CIT (Appeals) allowed the appeal by observing an important fact on record not mentioned by the Assessing Officer in his order. The relevant extract of observation is as under :- "I find that the assessee's contention is correct that the Assessing Officer had written to the Tehsildar vide his letter dated January 9, 2004, requesting him to furnish the distance certificate of the nearest Municipal limits of Gurgaon. The Tehsildar had reported on January 16, 2004, that the land was at a distance of 8.2 Km. The above copy of the letter as well as the Tehsildar's report are available in the assessment records. A copy of this letter and the report was also furnished by the assessee. It isnot understood why this fact does not find mention in the assessment order. The Assessing Officer has not given any reason why he considered the report not to be adequate and directed the Inspector to submit the report regarding distance. It is a well established fact that it is the Tehsildar working under the State Government, who is competent to measure the distance of the land, more competent than the Inspector of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e said to be perverse, illegal or contrary to the evidence available on record. Thus, no question of law arose from the order of the Tribunal, hence, the appeal was dismissed. In instant case also facts are quite similar to the case of CIT vs. LalSingh (supra). The revenue authorities having jurisdiction on the area wherein the land under consideration is situated, have certified the distance of the land beyond 8 Km from the outer limit of Jodhpur Municipal Corporation and therefore, as per sec. 2(14)(iii) of the Act the land is not a "capital asset". Hence, the AO is not justified in taxing the capital gains on the sale of the said land. 2. CIT vs. Satinder Pal Singh [2010] 188 TAXMAN 54 (PUNJ. & HAR). In this case Hon'ble P&H High Court held as below:- "Section 2(14) of the Income-tax Act, 1961 - Capital gains - Capital asset - Whether distance of land for purpose of section 2(14)(iii) has to be taken in terms of approach by road and not as per straight line distance on a horizontal plane or as per crow flight distance - Held, yes HELD A perusal of the order passed by the Tribunal showed that the principle of measuring distance had been set....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation which has taken place. Moreover, the judgment of the Mumbai Bench appears to have attained finality. Keeping in view the principle of consistency, the opinion expressed by the Tribunal did not suffer from any legal infirmity warranting interference of the Court. [Para 6]" 3. Srinivas Pandit (HUF) vs. ITO, [2010] 39 SOT 350 (HYD.): The ITAT Hyderabad Bench 'B' in the case of SrinivasPandit (HUF) vs. ITO, [2010] 39 SOT 350 (HYD.) considered a similar question, the head note is reproduced as below:- "Section 2(14) of the Income-tax Act, 1961 - Capital gains - Capital asset - Assessment year 2003-04 - During relevant assessment year, assesseesold agricultural land owned by him - He claimed exemption from payment of capital gain tax on ground that agricultural land could not be considered to be a capital asset under section 2(14) - Revenue authorities rejected assessee's claim holding that agricultural land was located within radius of 8 Kms. from limits of municipality 'H' - Whether since entire transaction was made through revenue authorities located in municipality 'R', it was to be held that jurisdictional municipality was municipality 'R' and not municipalit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....apital gains arising from sale of agricultural land within the municipal area were not liable to capital gain tax under the Income Tax Act, 1961. The Hon'ble High Court of Madhya Pradesh having dismissed the writ petition the matter came up before the Hon'ble Supreme Court. The Apex Court observed that the Parliament is empowered to legislate to say what "agricultural income" means. What Parliament says in this regard is that the meaning given under Income-tax Act should be taken as the correct meaning of the expression 'agricultural income' and in regard to such agricultural income the state may legislate. In the aforementioned case the court observed that the land being situated within the municipal limits income arising from transfer of agricultural land falls within the terms of items (a) and (b) of sub-clause (iti) of clause 14 of section 2 and falls outside the ambit of revenue derived from land, therefore, outside the ambit of 'agricultural income' and consequently liable to capital gain tax under section 45 of the Act.' The learned counsel for the assessee placed reliance upon the aforecited decision to submit that the impugned land sold by the assessee was situated....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rospective effect to highlight that the intention of the Legislature was to tax income from transfer of agricultural land situated in the specified area only and cautiously excluded such land from the scope of agricultural income. He also relied upon the decision of the Hon'ble Bombay High Court in the case of Manubhai A. Sheth v. ITO [1981] 128 ITR 87/[1980] 4 Taxman 381 in support of his contention that profits or gains on sale of agricultural land will be revenue within the meaning of section 2(1) (now 2(1 A) of the Act). This principle was reiterated by the Hon'ble Bombay High Court in the case reported in 208 ITR 98 (sic). By virtue of the amendments to section 2(14)(ili) of the Act, only agricultural land situated within the municipal limits gets excluded from the definition of agricultural land. Per contra, agricultural land situated outside the municipal limits, upon sale, gives rise to agricultural income only." Sir, you would find that the ratio laid down in the above cases is squarely applicable to the case of your appellant. The land is agricultural in nature at the time of sale, it is situated beyond 6 kms. from municipal limits and is therefore not a ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssing Officer that the value adopted [or assessed or assessable] by the stamp valuation authority under subsection (1) exceeds the fair market value of the property as on the date of transfer; (b) the value so adopted [or assessed or assessable] by the stamp valuation authority under sub-section (1) has not been disputed in any appeal or revision or no reference has been made before any other authority, Court or the High Court,the Assessing Officer may refer the valuation of the capital asset to a Valuation Officer and where any such reference is made, the provisions of sub-sections (2), (3), (4), (5) and (6) of section 16A, clause (i) of sub-section (1) and subsections (6) and (7) of section 23A, sub-section (5) of section 24, section 34AA, section 35 and section 37 of the Wealth-tax Act, 1957 (27 of 1957), shall, with necessary modifications, apply in relation to such reference as they apply in relation to a reference made by the Assessing Officer under subsection (1) of section 16A of that Act." Sir, from the plain reading of Sec. 50C, it is evident that it is a deeming provision and it extends only to land or building or both. Section 50C can come into play on....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wnership rights. In the case of tenanted property, as is the case before us, while the buyer of property pays the owner of property for ownership rights, he may also have to pay, when he wants to have possession of the Property and to remove the fetters of tenancy rights on the property so purchased, the tenants towards their surrendering the tenancy rights. Merely because he pays the tenants, for their surrendering the tenancy rights, at the time of purchase of property, will not alter the character of receipt in the hands of the tenant receiving such payment. What is paid for the tenancy rights cannot, merely because of the timing of the payment, cannot be treated as receipt for ownership rights in the hands of the assessee. This distinction between the receipt for ownership rights in respect of a property and receipt for tenancy rights in respect of a property, even though both these receipts are capital receipts leading to taxable capital gains, is very important for two reasons ~ first, that the cost of acquisition for tenancy rights, under section 55(2)(a), is, unless purchased from a previous owner ~ which is admittedly not the case here, treated as 'nil'; and, - second, sin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....efore, unable to see any merits in revenue's contention that even when a leasehold right in "land or building or both" is transferred, the provisions of section 50C can be invoked." Similarly, the Hon'ble Jaipur ITAT in the case of M/s Jaipur Time Industries vs. ITO in their order dated 26-02-2014 in respect of ITA No. 429/JP/2012 for AY 2007-08 held that section 50C of the Act applies only to capital asset being land or building or both but it cannot apply to lease rights in a land and since the assessee transferred the lease right for 99 years in the plot and not ownership in land itself, the provisions of Section 50C cannot be invoked. Similar view has been expressed by the Hon'ble ITAT Ahmedabad in the case of ITO vs. Chandrakant R. Patel as referred to by the appellant in his written submission. Thus, from the above decisions, it is clear that provisions of sec 50C does not apply to the transfer of the lease hold land. In the instant case, there is no dispute regarding the fact that the appellant has sold lease hold lands. On his account alone, the AO's order deserves to be quashed. Ground No. 4 On the facts and circumstance....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f a property u/s. 50C is correct or not cannot be subject matter of writ petition, however, assessee can peruse appellate authority with regard to issues relating to such property. Further, In the case of Suresh C. Mehta vs. ITO, reported in [2013] 35 taxmann.com 230 (Mumbai - Trib.), the Hon'ble Mumbai Tribunal held that where AO in terms of provisions of sec. 50C(2) referred valuation of property to valuation officer, he was bound by valuation officer's report, whereas said report was not binding upon commissioner (Appeals) or Tribunal. (Ground No. 5) On the facts and circumstances of the case Learned Assessing Officer grossly in not allowing the deduction U/s 54F of the Income Tax Act 1961. Sir, the appellant begs to submit that she claimed deduction u/s. 54 of the Act on account of investment in house property at Rs. 15,00,000/-, but the AO denied by the same by stating that the construction of house made on the Property which is owned by Sh. Mohammed Ashif (son of the assessee). While denying the assessee's claim, the AO referred to the decision of the Hon'ble Rajasthan High Court rendered in the case of Kalya vs. CIT. Sir, deduc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion relating to purchase of another residential house is completed by the assessee's legal representatives within the stipulated time. iii. The Hon'ble Karnartaka High Court in case of CIT &Anrs. vs. P. R. Seshadri, reported in 33 DTR 128 held that assessee was entitled to exemption u/s 54F in respect of investment in the construction of the house property on the land owned by his wife. vi. The Punjab & Haryana High Court in the decision dated 1-4-2008 in case of CIT vs. Gurnam Singh held that purchase of another agricultural land in joint names of the assessee and his son is entitled for exemption u/s 54B. In the appellant's case also the appellant's mother is totally depended upon him. Even under the provision of sec. 64, any income which arises directly or indirectly to any person from assets transferred otherwise than for adequate consideration from the said asset to the spouse of for the immediate or deferred benefit of his or her spouse is assessable in the hands of his spouse who has transferred otherwise than for adequate consideration. v. The Hon'ble Rajasthan High Court in case of Manshika Bros. P. Ltd. vs. CIT has held that when two vi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sidential houses, should be liberally interpreted. The Hon'ble Supreme Court held that a provision for exemption or relief in a fiscal statute should be construed liberally and in favour of the assessee - Maharajadhiraj Sir Kameshwar Singh v. CIT [1957] 32 ITR 687 (SC). In view of the above facts and judicial Precedents, the appellant very humbly requests your honour to kindly direct the AO to allow deduction u/s. 54 of the Act. (Ground No. 6) On the facts and circumstances of the case Learned Assessing Officer grossly erred in not accepting the affidavit filed by the assessee without proving it wrong. Sir, the appellant submits that she had furnished an affidavit before the AO to confirm that what was sold by her was agricultural land, but the same was rejected holding that an affidavit is a self serving document with no evidential value. These observations made by the Assessing Officer are without any basis and not supported with any cogent evidences. We strongly contend the AO's action in rejecting the affidavits. It is not the case where the statement was given on plain paper, the statement given in the affidavits are duly corroborated with t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....AT 2016 ITL 2724:, 2016 51 ITR (TRIB) 290 In view of the above and judicial precedents cited supra, entire assessment order may be held as invalid and may be quashed. (Ground No. 7) On the facts and circumstances of the case Learned Assessing Officer grossly erred in not providing the opportunity of cross examination of the Executive Officer Municipal Board Sardarshahar. Sir, it is submitted that that entire AO's action in treating is based on report of the Executive Officer Municipal Board Sardarshahar, but the AO did not Provide any opportunity to cross examine the official who adversely commented. The Hon'ble Calcutta High Court in its decision in the case of CIT Vs, Eastern Commercial Enterprises - reported in 210 ITR 103 - observed that if the AO relies on the testimony of a witness or some other evidences, the assessee is to be afforded an opportunity to cross-examine such witnesses. Itis not open to the AO to get over this hurdle on any plea. A re-assessment made onthe basis of entries in the records of a auctioneer without giving the assessee an opportunity to cross-examine the auctioneer has been held violating the principle of natur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on 151(1) requires an officer of the rank of the Joint Commissioner/Commissioner to oversee the decision of the Assessing Officer. Further the concerned authority, while granting approval, is expected to examine the entire material before approving the assessment order. It is also been laid down that whenever any statutory obligation is cast, upon any authority, such authority is legally required to discharge the obligation by application of mind. The circumstances of our case indicate that the Add. CIT granted approval in a day in a mechanical manner without proper application of mind. Thus, the appellant humbly prays that the impugned order may kindly be held to be invalid because approval was not granted in accordance with the requirements of law.'' It is also noteworthy to mention that the ld.AR of the assessee has filed the following documents - S.N. Particulars Page No. 1. Written submissions 1-31 Judicial Precedents 2. Shri Srinivas Pandit (HUF) vs ITO, Ward 7(4), Hyderabad (ITA No.56/Hyd/2007 dated 23-04- 2010) 32-41 3. Mohideen Shariff Inayatulla Sharif vs ITO (ITA No.658/Chny/2020 dated 07-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the levy of taxes or to the denial of exemption would be a burden of the Revenue Authority, laying the burden on the assessee which already stands discharged, only thing that was probable was the rebuttal of such evidence. Hence, the finding arrived at by the ld.CIT(A) to the effect of the assessee unable to prove it, has come in the absence of any documentary evidence and it could not be said to be correct view. It is further relevant to note that it is in the light of the aforementioned burden being discharged and the matter was remanded to the appropriate Assessing Officer by means of calling remand report dated 10.04.2019 in detail which has been noted specifically by ld. CIT(A) in the order impugned. The Objection as to the dis-credibility of the letter dated 04.04.2019 has been required to be met out by the AO which remains absent from perusal of the record. It was within the ambit of AO that it was required to ascertain the distance of land as against the letter dated 04.04.2019 issued which was against the very letter relied upon by the Revenue Authority. In fact the letter dated 04.04.2019 clearly mentions the Rajasthan State Gazette dated 14.07.1988 which sets the boun....