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Sita Ram Sharma and Others Versus Income Tax Officer, Ward-7 (2) , Jaipur.

2015 (7) TMI 200 - IITAT JAIPUR

Long term capital gain on sale of land - agricultural land in terms of section 2(14) - Held that:- The land sold by all the brothers situated in village- Sanjhaia, Tehsil- Sanganer, district- Jaipur. In case of assessee’s brother namely Shri Ram Sahay Sharma in A.Y. 2007-08 by the ITO ward 7(2), Jaipur order dated 25/03/2013 had not made any addition on account of long term capital gain. Further the ld CIT(A) as well as this Bench also allowed the appeal in case of Smt. Kamla Devi Sharma (2015 ( .....

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s ground of all the appeals.

Disallowance of relief U/s 54B and 54F - Held that:- As we have decided the land sold by these assessees as not capital assets as envisaged in Section 2(14) of the Act, we need not to express our views on these deductions as these deductions is based on capital assets envisaged in Section 2(14) of the Act.

Penalty U/s 271(1)(c) - Held that:- Assessing Officer imposed penalty U/s 271(1)(c) of the Act, which has been confirmed by the ld CIT(A) in .....

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014, ITA No. 724/JP/2013, ITA No. 67/JP/2014, ITA No. 723/JP/2013, ITA No. 65/JP/2014, ITA No. 722/JP/2013, ITA No. 68/JP/2014, - Dated:- 1-5-2015 - SHRI R.P. TOLANI AND SHRI T.R. MEENA, JJ. For The Assessee : Shri Mukesh Khandelwal (CA) For The Revenue : Mrs. Neena Jeph (JCIT) ORDER PER: BENCH All the appeals filed by the different assessees against the orders dated 14/12/2010 and 21/11/2013 passed by the learned CIT (A)-III, Jaipur for A.Y. 2007-08. The common effective grounds of all the appe .....

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of the year 2014 1 Under the facts and circumstances of the case the ld CIT(A) has erred seriously is sustaining the penalty against all the assessees of all the appeals of ₹ 18,45,465/-, ₹ 18,25,623/-, ₹ 18,45,887/-, ₹ 18,35,687/- and ₹ 18,28,290/- levied by the ld. A.O. U/s 271(1)(c) of the Income Tax Act, 1961. 2. Assessees are different in each case. In all the cases, the assessees appeals are against sustaining addition on account of long term capital gain on s .....

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007-08 by 20/09/2007 but no compliance was made by the assessees. Assessees namely in case of Sita Ram Sharma and Madan Lal Sharma filed their return of income with ITO Ward 7(2), Jaipur on 03/2/2009 declaring NIL income and the assessees namely Rameshwar Sharma, Hanuman Sahay Sharma and Bansi Lal Sharma filed their return of income with ITO Ward 7(2), Jaipur on 04/10/2007 declaring different incomes. The factum of the case is that the assessee alongiwth five of his brothers sold their ancestral .....

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iven a chart showing therein that this long term capital gain liability as long term capital loss. The ld Assessing Officer further observed that on receipt of information as a scaled map of its municipal limits the land in dispute is within 8 km of the municipal limit of Jaipur Nagar Nigam. This land also is within 8 km from the Bagru a town having population of more than 10,000/- as per census of year 2001. The assessee was allowed to reasonable opportunity of being heard but no reply was file .....

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(14) of the Act. The assessee had acquired the said land in inheritance in the year 1992 as claimed by him but he had not adduced any documentary evidence in support of his contention. Therefore, he applied cost of acquisition of land as on 01/4/1981 on the basis of case decided by the ld CIT(A) in cases of Shri Ram Niwas, Shri Jagdish Prasad Sharma and Shri Rameshwar Sharma @ 4312.56 per bigha. This rate also proposed to assessee and asked to comment on it but no reply has been filed by the ass .....

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village Kankrala, Tehsil- Mojamadabad, district- Jaipur on simple agreement without any registered deed and also no evidence of payment of amount to the seller were found to the Assessing Officer without any basis. The Assessing Officer also has not considered these agreements to sale on the basis of discrepancy pointed out in paragraphs 6.3 to 6.6 on page 7 of the assessment order. Similar findings were given by the Assessing Officer on not allowing deduction U/s 54F of the Act. Thus, he allow .....

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envisaged in Section 2(14) of the Act. Further land sold was within 8 km of Bagru town, it has population in 2001 more than 10,000/-. It is clarified by the ld CIT(A) that these facts were brought to notice of the assessee but no evidence to disprove these facts had been produced by him. Accordingly he confirmed the Assessing Officer s finding on long term capital gain. He further held that cost of acquisition as on 01/4/1981 also taken by the ld Assessing Officer on the basis of Shri Ram Niwas .....

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a. Therefore, he accepted these evidences under Rule 46A of the Income Tax Rules, 1962 (in short the Rules) on which he also called for remand report from the Assessing Officer but the assessees had not cooperated with the Assessing Officer at the time of remand proceedings, therefore, no cognizance has been taken by the ld CIT(A). Accordingly, he confirmed the order of the Assessing Officer. 4. Now the assessees are in appeals before us but the appeals filed are belated by 921 days for which he .....

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anjharia to M/s Vatika Limited not liable to pay tax on capital gain. In penalty proceeding also initiated and imposed by the Assessing Officer they claimed the same that no tax was liable to pay as long term capital gain on agricultural land. The agricultural land situated at village Sanjharia jointly owned by all six brothers, which was sold to M/s Vatika Limited. The Hon ble Bench in case of Smt. Kamla Devi Sharma in ITA No. 526/JP/2011 vide order dated 28/08/2014 and in case of Dr. Shubha Tr .....

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ondonation of delay: (i) Collector, Land Acquisition Vs. Mst. Katji (167 ITR 471): (ii) Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh & Others (1979) 118 ITR 326: (iii) N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123: Therefore, he prayed to condone the delay and appeal filed by the assessees are allowed to be heard on merit. 5. At the outset, the Ld. DR vehemently opposed the submission filed by the assessees and argued that every day of delay is to be explained by .....

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culturalists. They are ignorant with the IT law. The affidavit filed by the advocate support the claim of the assessee that he had not informed and impressed upon the assessee about repercussion of the legal proceedings under the IT Act and also forget the matter to remind these assessees as file of these assesses were mixed in the other files of his office. Further the adjacent land has been treated agricultural assets as envisaged in Section 2(14) of the Act in the case of Kamla Devi Sharma vi .....

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ji (167 ITR 471): Held that When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred . (ii) Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh & Others (1979) 118 ITR 326: held that it is impossible to know all the statutory provisions of law and hence the principle that everyone is presumed to know the law is not applicable universally since it is of a very different scope and application. (iii) .....

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ed by the appellants belated for years if this Bench has not condoned the delay of the assessees then the assessees would not get justice and which is against the technical objections to file the appeal belatedly. In the interest of substantial justice, we feel that delay should be condoned and the assessee is allowed to be heard on merit. 7. Now coming on merit of the case, the impugned land sold by these assessees bearing khasra No. 500/1239, 532, 432/1166, 533, 542, 543, 545, 546 and 548 in j .....

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2006, it has been held by the Hon ble ITAT that these lands situated beyond 8 km from the municipal limits and is not capital assets as envisaged U/s 2(14) of the Act. The ld AR further argued that in case of Dr. Subha Tripathy Vs. DCIT, Circle-6, Jaipur ITA No. 1129/JP/2011 vide order dated 24/5/2013, it has been held that distance of agricultural land is to be measured as it was as on 06/1/1994 i.e. the date of notification of CBDT circular No. 9447 and not as on date of sale. Since in the pre .....

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and as not a capital assets envisaged U/s 2(14) of the Act. He further drawn our attention on letter dated 15/2/2011 addressed to ITO Ward 7(2), Jaipur that village Sanjharia, Tehsil Sanganer, Khasra No. 319 and 320 are beyond 9 kms from the municipal limits. The ld AR also argued that municipality notified whole village to be included in the municipal area not part and partial of the land of particular khasra number. Therefore, he argued that all the khasra numbers of village Sanjharia, Tehsil- .....

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