TMI Blog2018 (5) TMI 1576X X X X Extracts X X X X X X X X Extracts X X X X ..... KM from the Jaipur Municipal Limits or beyond 8 KM? - Held that:- As per the language of section 2(14)(iii)(b) the distance has to be between the Municipal limits and the area in which the property is situated. Thus the distance is required to be considered from the Municipal limits and the area and not the particular property. Since the assessee has raised an issue which is factual in nature as to whether the area in which the property is situated within the distance of 8 KM from the Municipal limits of Jaipur or beyond it as on 6th January, 1994, therefore, the same is required to be verified at the level of the AO by conducting a proper enquiry. Accordingly having regard to the facts and circumstances, we set aside this issue to the record of the AO for consideration and deciding the same afresh in the light of above observations. - ITA No. 1064/JP/2016 - - - Dated:- 21-5-2018 - SHRI VIJAY PAL RAO, JM AND SHRI BHAGCHAND, AM For The Assessee : Shri Rajeev Sogani (C.A.) For The Revenue : Shri J.C. Kulheri (JCIT) ORDER PER VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 28th September, 2016 of ld. CIT (A)-1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, unjustified, arbitrary and against the facts of the case. Relief may please be granted by allowing the deduction of ₹ 17,40,960/- of cost of acquisition of land. ( f) In the facts and circumstances of the case and in law the ld. CIT (A) has erred in rejecting the contention of the appellant that where no addition was made by the ld. AO on purchase of immovable property for which the proceedings u/s 147 of the Act were initiated no further addition can be made for other alleged escaped incomes. The action of ld. CIT (A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the addition made by ld. AO and confirmed by CIT (A) which are illegal and contrary to established legal proposition. 3. The assessee craves her right to add, amend or alter any of the grounds on or before the hearing. Ground No. 1 is regarding validity of reopening of the assessment under section 147 of the IT Act. 2. The assessee is an Individual and did not file her return of income for the year under consideration. The AO received AIR information regarding the investment of ₹ 40,00,000/- made by the assessee in a prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty which accorded the sanction for issuing notice under section 148 is without analyzing the facts and was given mechanically. Therefore, the same is not sustainable. 3.1. On the other hands, the ld. D/R has relied upon the order of the ld. CIT (A) and submitted that when the assessee did not file any return of income and also not disclosed either the sale transaction of the existing capital asset or the purchase transaction, therefore, when the AO has received the AIR information of purchase of immovable property of ₹ 40,00,000/-, the same constitute a tangible material to form the belief that income assessable to tax has escaped assessment. 4. Having considered the rival submissions as well as the relevant material on record, we note that the AO reopened the assessment by recording the reasons as under :- As per the AIR information generated from the system, the assessee has purchased immovable property of ₹ 40,00,000/- during FY 2005- 06 relevant for AY 2006-07. Since as per system no return of income has been filed for AY 2006-07, the above transaction is not verifiable. I have therefore reasons to believe that on account of not filing of return b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als with the jurisdiction of AO as under: Jurisdiction of Assessing Officers. 124. (1) Where by virtue of any direction or order issued under subsection (1) or sub-section (2) of section 120, the Assessing Officer has been vested with jurisdiction over any area, within the limits of such area, he shall have jurisdiction - ( a) in respect of any person carrying on a business or profession, if the place at which he carries on his business or profession is situate within the area, or where his business or profession is carried on in more places than one, if the principal place of his business or profession is situate within the area, and ( b) in respect of any other person residing within the area. ( 2) Where a question arises under this section as to whether an Assessing Officer has jurisdiction to assess any person, the question shall be determined by the Director General or the Chief Commissioner or the Commissioner; or where the question is one relating to areas within the jurisdiction of different Directors General or Chief Commissioners or Commissioners, by the Directors General or Chief Commissioners or Commissioners concerned or, if they are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing of the assessment order under consideration and as per the provisions of section 124(3) of the Act, the appellant had lost its right to agitate the jurisdiction of the AO at that point of time. ( vi) It was the another contention of the appellant that the appellant filed its return of income for the A.Y 2005-06 in the same jurisdiction, which was duly accepted by the department. Therefore, the action of the appellant in filing the subsequent return in the same jurisdiction cannot be faulted with. I have duly considered the acknowledgement form filed by the AR for the AY 2005-06 and it was observed that the previous year has been stated as from 01.04.2005 to 31.03.2006, AY as 2005-06 and the date for furnishing the return was stamped as 20 JUL 2005 which raises serious doubts about the genuineness of such acknowledgement form. Further, the said acknowledgement form, certainly, cannot be for the AY 2005-06 as claimed by the AR. ( vii) It may be mentioned that in its reply dated 26.04.2013 in response to notice dated 23.03.2013 issued u/s 148 of the Act, it was stated by the AR that the return of income filed on 25.04.2006 may be treated as return filed in purs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it is clear that the approval was granted by due application of mind. Hence we do not find any infirmity in the approval. Therefore, we do not find any merit or substance in the objection of the assessee against the reopening of the assessment. Ground No. 2 is regarding the addition made by the AO under section 2(14) as Long Term Capital Gain of ₹ 1,21,80,000/-. 5. We have heard the ld. A/R as well as the ld. D/R and considered the relevant material on record. The ld. A/R of the assessee has raised the objection that the property in question is an agricultural land and, therefore, does not fall in the ambit of the term Capital asset as per the provisions of section 2(14) of the IT Act. He has submitted that the property is also situated beyond 8 KM from the Municipal limit of Jaipur and hence the sale consideration of agricultural land cannot be taxed as capital gain. In support of his contention, he has relied upon the decision of the Hon ble Jurisdictional High Court in the case of Principal CIT vs. Shri Kheti Lal Sharma HUF dated 21st November, 2017 in DB IT Appeal No. 170/2016 and 165/2017. Thus the ld. A/R has submitted that the Hon ble High Court has upheld the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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