TaxTMI 
TaxTMI 
2026 (9) TMI 1536
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....d to appreciate that there was no specific, relevant, reliable and tangible material on record to form a reason to believe that income of the appellant had escaped. The Ld.AO recording of reason income escaped shown Rs. 39811222/-. As per reason of issue of notice u/s 148 dated 23/03/2018 of Ld. AO assumed LTCG of Rs. 4042222200/- (sic. Rs. 4,05,22,222/-) income of assessee. So the legality of notice issued under section 148 is totally incorrect and bad in law. So the assessment order as passed by Ld. AO needs to be set aside on the basis of above ground. Ground No. 2 Legality of Approval u/s 151:-That the procedure for approval of case is totally bad in law in the light of legality. The AO as well as Pr.CIT, Gurgaon did not follow the right procedure and given approval without application of mind. There is not mentioned proper details of approval when approval was given by Pr. CIT, Gurgaon. Only mention in reason recorded "Fit case" is not a right procedure to given approval u/s 151. That based on the facts and circumstance of the case bad in law, the approval granted under section 151 of the income tax Act, 1961 was not in accordance with law as it was accorded in a mech....
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....tion list by Deputy Commissioner, Gurgaon because Village Badha not in list of MC area. c. Population of Municipal Corporation Gurgaon: That population of the city was less than 10 lacs. As per last Census . The population of the city as per last Census of India 2001 was total 8876969. So when population of city was 1 lac to 10 lanc than distance of ag.land should be measured - 6 km. d. Outside M C Area as per DGPS Machine Mesurement: Assessee ag. land situated far from the municipal limit because the distance as measured by DGPS machine by a reputed certified company like: M/S. Vision Engineering Consultant Gurgaon. As per their report the Ag. land is situated about 14.2 km from MC the limit of Gurgaon. e. Distance Cerificate from Sub-Registrar cum Tehsildar and Patwari: In the Haryana state the Sub-registrar cum Tehsildar and Halka Patwari is authorized person to issue distance certificate. Distance from the gurgaon city to this ag. land is about 14.02 km as measured by Revenue Deptt Gurgaon .The Tehsildar Manesar issued certificate of distance on the basis of report as prepared by HalkaPatwari. Tehsiladar of concerned Tehsil Manesar, Gurgaon and HalkaP....
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....attached herewith. Assessee also paid for purchase of residential plot of Rs. 14,58,044/- appx to HUDA Deptt. Haryana as per details/receipt attached. So addition of Rs. 90 lac + 1458044 may be deleted from the total addition on account of purchase and construction of residential house under section 54 of Income Tax Act, 1961. Ground 6. Cost of Acquisition Index Ignored:- That Ld. AO himself admit that value of ag. land was Rs 1 lac as on year 1981 when recorded reason, but not given cost of index relaxation during the assessment. Assessee had ancestral ag .land since 1961. Assessee have right to get benefit of cost of index relaxation . The Ld AO accept itself in the recorded reason that cost of acquisition of the property was Rs. 7.11 lac as on year 1981 but allow only Rs. 1 lac during the assessment year 2011-12. The Ld. AO make to hurry finalization the assessment and made unnecessary addition to the assessee income which is bad in law. Your honor in the absence of proper assessment procedure of Income Tax Act 1961, the addition made by Ld AO and order needs to be set aside. 7. Prayer: It is therefore prayed before your honor that additions as made by....
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....assessee, which was claimed by the AO to have been duly served on the assessee. Statutory notice u/s 142(1) dated 10.07.2018 along with questionnaire was issued by the AO to the assessee along with request to file return of income in pursuance to notice u/s 148 of the 1961 Act. Further statutory notices were also issued by the AO u/s 143(2) and 142(1) of the 1961 Act, during the course of assessment proceedings, the details of which are recorded in assessment order. It is stated by the AO that notices were generated electronically through ITBA Portal, as well sent through emails and by post. The AO also issued notice u/s 133(6) to Sub-Registrar, HSIIDC Building, IMT Manesar, Gurugram, seeking copy of sale deed executed by the assessee. The AO observed that the assessee has sold property of Rs. 4,05,22,222/- . The said property is situated at Village Bhada, Tehsil Manesar, Gurugram, and the assessee is owner of the said property through jamabadi no. 2002-2003. The assessee claimed that income is exempt as the land being agriculture land. The AO confronted assessee with notification no. 18/1/952008-03CI dated 22.03.2010 issued by department of Urban Local Bodies, Haryana Government t....
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....tural land is situated far from municipal limits because the distance measured by a DGPS machine by a reputed private certified company M/s Vision Engineering Consultant, Gurgaon, and as per their report the said land is situated 14.2 kms from the city limits of Gurgaon. The assessee enclosed distance certificate/report. It was submitted that the Revenue Department, Gurgaon vide report prepared by Halka Patwari and Tehsildar of Teshsil Manesar, Gurgaon has also certified that distance from city to agricultural land of the assessee is 14kms. The assessee enclosed certificate of Tehsildar-Revenue department, Haryana. The assessee, thus, contended that the land sold is exempt u/s 2(14)(iii)(b) of the 1961 Act. Thus, the assessee submitted that the assessee was wrongly charged to tax by the AO. The assessee further submitted that the assessee did not received the entire sale consideration, as the cheque for Rs. 3 crores bounced . It was submitted that the assessee has filed a case against purchaser for cancellation of sale deed due to non payment of sale consideration . Thus, it was submitted that in the absence of sale consideration, no capital gains have arisen which could be brought....
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....ee that the assessee raised legal challenge before ld. CIT(A) to invocation of Section 148 of the 1961 Act as well grant of approval u/s 151 of the 1961 Act, but these grounds were not adjudicated by ld. CIT(A). It was submitted that the entire consideration was not received as cheque of Rs. 3,03,91,667/- bounced, and the assessee filed civil suit for cancellation of sale deed as well criminal case was filed against buyer for bouncing of the cheque. It was submitted that payment of Rs. 1,01,30,555/- was received. The total sale consideration was Rs. 4,05,22,222/-. It was submitted that now compromise has been entered into by the assessee with the buyers. Prayers were made to allow appeal filed by the assessee, and delete the additions. 6.2. The ld. Sr DR submitted that the certificate issued by M/s Vision Engineering Consultants was not signed. It was submitted that proper measurement was not done. It was submitted that notification of 1994 is not applicable. It was submitted that notification dated 20.03.2010 is applicable. The copy of said notification is filed by ld. Sr. DR in the paper book filed by Revenue, which is reproduced herewith : It was submitted by ld. Sr. DR th....
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....e on the other hand relied upon the Notification No. 9447 dated 06.01.1994 to contend that the said land which is an agricultural land falls beyond 8Km from the Municipal limits of Gurgaon and hence the same is exempt from income-tax. The assessee relied upon distance certificate dated 26.12.2018 issued by Tehsildar, Manesar (PB/Page 18-19), who in turn relied upon the distance certificate dated Nil issued by Vision Engineering Consultant( who hold Enlistment Certificate issued by Municipal Corporation, Gurugram) bearing Memo No. EE-VIII/MCG/2018/25975 dated 12.06.2018. Both the authorities below viz. AO and ld. CIT(A) rejected the contentions of the assessee by holding that the said land falls within 8 Kms of Municipal Limit of Gurgaon by relying on Notification of 2010. 7.2 The first legal challenge raised by the assessee is that the notice issued by the AO u/s 148 of the 1961 Act is bad in law. The assessee did not raise the aforesaid challenge in its appeal filed with ld. CIT(A), but the ground being legal, we allow the same . Reference is drawn to judgment and order of Hon'ble Supreme Court in the case of National Therma Power Company Limited v. CIT, reported in (1998) 229 ....
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....by the AO that income has escaped assessment. Moreover, at the stage of invocation of provisions of Section 147 of the 1961 Act, prima facie view is required to be formed that income has escaped assessment, and there is no requirement that there should be conclusive evidences before the AO that the income has escaped assessment. Reference is drawn to the judgment and order of Hon'ble Supreme Court in the case of ACIT v. Rajesh Jhaveri Stock Brokers Private Limited, reported in (2007) 291 ITR 500(SC) . The assessee has not filed return of income originally u/s 139 of the 1961 Act. The assessee has sold land for Rs. 4.05 crores. The notice u/s 148 of the 1961 Act was issued by the AO on 23.03.2018 i.e. within six years from the end of the assessment year. First proviso to Section 147 of the 1961 Act is not applicable. In our considered opinion, the AO has rightly invoked provisions of Section 147/148 of the 1961 Act as the assessee has sold property for Rs. 4.05 crores during the year under consideration and no return of income was originally filed u/s 139. The said sale of land has not suffered taxation nor it was demonstrated with cogent evidences that the capital gains were exempt....
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....nder Chapter IV-E dealing with Capital Gains. The assessee is relying on the notification No. SO(10E) [ No. 9447(F.No. 164/3/87-ITA-I], dated 06.01.1994 as amended by Notification No. SO 1302(E)(F.No. 164/1/96-ITA-1), dated 28.12.1999. The assessee has also relied upon distance certificate issued by Tehsildar, Manesar. The Revenue on the other hand is relying on notification dated 20.03.2010 issued by Government of Haryana. We have carefully considered the entire material on record. It will be relevant here to reproduce Section 2(14) of the 1961 Act as were applicable during the relevant assessment year, which is reproduced hereunder: Definitions. 2. In this Act, unless the context otherwise requires,- **** **** 14) "capital asset" means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include- (i) any stock-in-trade, consumable stores or raw materials held for the purposes of his business or profession ; [(ii) personal effects, that is to say, movable property (including wearing apparel and furniture) held for personal use by the assessee or any member of his famil....
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....d Notification No. 9447 dated 06.01.1994 which was amended by notification dated 28.12.1999, wherein Gurgaon Municipality found place under State of Haryana(9) at S no. 20 wherein it stipulated to be an 'Areas falling outside the local limits of Gurgaon Municipality is an area upto a distance of 8kms from the municipal limits in all directions.", meaning thereby that all the areas which falls within 8 kms from the municipal limits of Gurgaon Municipality in all directions, agricultural land shall be a capital assets, chargeable to income-tax on transfer of such agricultural land under the head income from capital gains. But, if the said agricultural land falls outside 8 kms of Gurgaon Municipality, the same shall not be chargeable to income-tax on the capital gains arising on sale/transfer. The definition is not static but dynamic, as with the ever increasing population and urbanization taking place, the Municipalities itself are expanding from time to time, so do the coverage of the agricultural land which falls within capital assets as defined u/s 2(14) of the 1961 Act become chargeable to capital gains tax on transfer. Vide Gazette Notification No. 18/1/95/2008-3CI dated 02.06.2....
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.... 279/MISC./140/2015-ITJ], dated 06.10.2015, issued by CBDT, which is binding. Thus, the matter is restored to the file of the AO for denovo determination of the matter on merits in accordance with law, in accordance with our aforesaid directions. The AO shall give proper opportunity of being heard to the assessee in accordance with principles of natural justice.The evidences filed by the assessee in its defense shall be admitted by the AO and adjudicated on merits in accordance with law. It is once again reiterated that exemption provisions are to be strictly construes and onus is on the assessee. So far as claim of the assessee that the cheque of Rs 3,03,91,667/- towards sale consideration stood bounced, and suit for cancellation of sale deed was filed as well criminal proceedings were launched against the buyer, the ld. Counsel for the assessee has during the course of hearing stated that compromise was reached with the buyer. The sale deed was executed in favour of buyer by the assessee on 03.03.2011 which was never cancelled, and hence the said pleadings wrt bouncing of cheque have become infructuous. We order accordingly. 7.5 The assessee has raised an issue that the said l....
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....व खेवट/ खाता नं. 336/316 मà¥à¤¨à¥à¤¨à¤¾à¤² 10 33 किला 10 11/27-12. 12/1/1/1/3-4) व मà¥0 न0 34 किला 70 15(1-18). किता 3 रकबा 12 कनाल 14 मरला सालम व खेवट/खाता नं0 275/284 मà¥à¤°à¥à¤¤à¥€à¤² नं0 33 किला नं0 13/16-12), किता 1 रकबा 6 कनाल 12 मरला वाका सिवाना मौजा बढ़ा तहसील मानेसर जिला गà¥à¤¡à¤¼à¤—ाà¤à¤µ में है । जो कि उपरोकà¥à¤¤ रकबा मà¥à¤à¥‡ विरासत सा मिला....
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....¦à¥‚री का मà¥à¤•à¤¾à¤® पर है। " तालग है। रिपोरà¥à¤Ÿ देता के यारी में वाही - हेतà¥' È) 26.12.18 तहसीलदार पनेसर 20 WEC VISION ENGINEERING CONSULTANT Topographic Survey Services | Demarcation Survey 1 Soil Investigation | Drone Survey | Layout Survey | Road Survey I Lidar Survey | GPR Survey सेवा में, तहसीलदार साहब, तहसील गà¥à¤°à¥à¤—à¥à¤°à¤¾à¤® (हरियाणा) विषय : दूरी मापने बारें में। आज दिनांक 24.12.2018 को 1996 के अनà¥à¤¸à¤¾à¤° नगरà¤....
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....€. दूरी पर सà¥à¤¥à¤¿à¤¤ है। रिपोरà¥à¤Ÿ सेवा में पेश है। Coordinate Starting Rajeev Chowk Coordinate End Badha Land : : Lat 28º26'41.33"N : Long 77º2'13.22"E : Lat 28°24'25.08"N Long 76°57'4.02"E M. 81307 63223, 72900 18471 | E-mail : [email protected] | Web. : www.visionsurvey.it Office No 102, Creation Tower, Near Laxmi Mandir Cinema, Lal Kothi Jaipur (Raj) H. off :- 222, Radha Palace, Opp. Kamla Nehru Park, Civil Line, Gurugram-120001 MCG 21. Memo No. EE-VIII/MCG/2018/25975 Date: 12/6/2018 ENLISTMENT CERTIFICATE M/s Vision Engineering Consultant (Prop. Sh. Tinkpal), Add: 225, 2â„¢ Floor, Radha Palace, Opp. Kamla Nehru Park, Civil Line, Gurugram Kamistment in Municipal Corporation, Gurugram. (M-7290018471) had appliedupplied by the contractor have been checked and The documents/ informationsuper been found to be eligible for enlistment in Municipal Corporation, Gurugram. The required enlistment fees amounting to Rs. 5000/- has b....
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...., Badshahpur? Begumpur Khatola, Kherki Dasla and Sihi upto point- D' 1 e. the meeting point of revenue boundary of village Sin ang wagn Sikanderpur Badla. WEST Thence towares North atong wastem revenge boundary of village Sini upto point-'E. where R meets the northern penpharal road Thence towards north along the Southern revenue boundary of village Harsant unin Thence towards cast along the Westem boundary of village Horser. . G'ie the meating point of revenue boundaries of village Harsaru a . Gadauli Katen WEST-NORTH .- Thence along the revenue boundary of virage 5. Basal, Chanwapur, Tikampur upto point. 1 whore il meats the dd : Gurgaon in village Daultatiad, Thence elong the old MC limit uer. -.... hauptani ni villana Pawia Khusruour Thence alon Dated 20 03 2010 Endsl. No 18/1/95/2008-3C1 A copy is forwarded to the Controller. Printingsand Stationary Depatenter Maryana, Chandigarh for publication in the Haryana Government Extraordinary Gozonte. He is requested to supply 20-20 printed coptes each of the notification to the Commissioner and Secretary lo Govt Haryana, Urban Local Dodies-Department / Director, Utban Local Bodies, Haryana, Chndigarn ....
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....on of sec. 147(a) or 147(b) are applicable or both the section are applicable : 147 of the I T Act. 1961 8. Whether the assessment is proposed to be made for the first time. If the reply is in affirmative, please state : Yes A. Whether any voluntary return had already been filled Nad L : B. If so, the date of filling the said return. 1 No - 9. If the answer to item 8 is in the negative, please state A. The Income originally assessed. : N.A. B. Whether it is a case of under Asstt. at too low rate, Asstt. which has been made the subject of excessive relief or allowing of excessive loss or depreciation. N.A. 10. Whether the provisions of Sec. 150 (1) are applicable. If the reply is in the affirmative, the relevant facts may be stated and it may also be brought out that the provisions of sec. 150 (2) would not stand in the way of initiating proceedings u/s. 147. 1 No 11. Reasons in belief that income has escaped assessment. As per Annexure- 1 flank (Rajiv Bhatia) Income Tax Officer. Ward - 3(2), Gurgaon 12. Whether the Pr. Commissioner of Income Tax, Gurgaon is satisfied on the reasons recorded by the ITO that it is a fit case for the issue of notice U/s 148: As per Annex. I. ....