TMI Blog2018 (9) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... ation embedded in the social democratic frame work where individual can be presumed to have an inherent right of expecting similar treatment in the eyes of law for similar conduct. The doctrine of resjudicata cannot be picked up and abused to shelter any and every wrong doing of the state. To condone such an action would lead to eroding the trust and faith in the state action and clothe state functionaries as an alien exploitive machinery which lets loose unchecked the personal whims and fancies of the state functionaries - set aside the impugned order in toto and restore the issue back to the file of the CIT(Appeals) with the direction to denovo pass a speaking order in accordance with law in the light of the aforesaid directions - ITA No.-2132/Del/2016 - - - Dated:- 26-6-2018 - SMT. DIVA SINGH, JUDICIAL MEMBER For The Assessee : Sh. K. Sampat, Sh. V. Raja Kumar, Advs. For The Revenue : Ms. Ashima Neb, Sr. DR ORDER The present appeal has been filed by the assessee, assailing the correctness of the order dated 10. 03. 2016 of Commissioner of Income Tax (Appeals)-Moradabad pertaining to 2009-10 assessment year on various grounds which read as under: 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds the Ld . AO has erred in law and on facts in taking the stamp value for registry as sale consideration in place of fair market value of the land . 3 . That the Ld . AO has erred in law and on facts in not taking the stamp value as on the date of agreement to sale registered and part payment of sale consideration was made . 4 . That the Ld . AO has erred in law and on facts in not allowing allowable deduction u/s 54B of the Act of Rs . 2, 48, 000/- for investment in purchase of other agricultural land . 5 . That the Ld . AO has erred in law and on facts in not allowing allowable deduction u/s 54F of the Act of Rs . 15, 00, 000/- for investment in construction of residential house . It is, therefore, prayed to kindly allow due relief to the appellant . 2. Some of the above appear to be supportive arguments instead of grounds. Accordingly ground numbers no. 1, 5 6 of the above are being taken to be the grounds raised by the assessee in the present appeal and the rest are treated as arguments in support of the grounds. 3. Both the parties were heard. The Ld. AR inviting attention to the assessment order and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for sale dated 29. 12. 2006 with M/s Uttar Development P. Ltd. for the specific consideration and this Agreement was registered with sub-registrar Kashipur of 30. 12. 2006. It is further submitted that it was only upon the execution of the agreement for sale that the buyers i. e. M/s Uttar Development P. Ltd. got this land declared as Private Industrial Estate on 02. 01. 2007 and applied for change of land use from cultivation to non-cultivation u/s 143 of the Uttrakhand Zamindari Abolition and Reform Act, 2001 and hence the participation of the illiterate assessee and her sister was only for furthering the Agreement entered into for which payments were received. It was his submission that since in similar set of facts and circumstances in the case of the other co-owners of the specific land the proceeds received from the specific land in the hands of the co-owners have not been brought to tax the Assessing Officer and the CIT(A) have arbitrarily ignored the facts . 6. I have heard the submissions and perused the material available on record. Before addressing the other issues which arise for consideration in the present case it is worth noting that the mere participation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land by co-owners on the principles akin to the principles of consistency rule enunciated in Radhasomi Satsang vs. CIT, 193 ITR 321(SC) which in the peculiar facts of the present case would avoid the unequal application of laws to co-owners and check the tax authorities from adopting an arbitrary manner of proceeding in the matter on the basis of varied interpretations to suit individual assesses, subjective to their convenience, - a result at once debilitating and destructive of the rule of law. 6.2. On considering the facts I find that before the CIT(Appeals) the assessee has advanced the following submissions which are extracted at page 4 5 of the impugned order for ready reference and reproduced hereunder: Alternatively it is submitted to your honor that the land even at the time of final sate deed was used for agricultural activities and character of the land remains that time as also agricultural land as under:- The assessee is the owner of 'A th share in 1 . 586 hectare of in the agricultural land situated at village MahuaKheraGanjTehseelKashipurDistt . U . S . Nagar bearing khatauni No . 322, khasra No . 964 measuring 1 . 586 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there were other co-owners alongwith the assessee. However, for reasons best known to the tax authorities these issues are left unaddressed. As noted no doubt res judicata does not apply strictly to the tax proceedings. However, the fact that the legitimate expectation of being treated similarly in identically placed facts by coowners at the same point of time cannot be out rightly ignored. The authority of the state rests on the assumption and the presumption that the state acts for the welfare of the individual. No doubt when the benefits of the individual are pitted against the benefits of the society the individual benefit has to yield to the greater good of the society. However I find that by no stretch of imagination the greater good of the society can be presumed to be served when identically placed individuals are meted with separate codes and actions. There is presumption of legitimate expectation embedded in the social democratic frame work where individual can be presumed to have an inherent right of expecting similar treatment in the eyes of law for similar conduct. The doctrine of resjudicata cannot be picked up and abused to shelter any and every wrong doing of ..... 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