2014 (1) TMI 1867 - AT - Income Tax

Nature of land sold - whether this agricultural piece of land sold by the assessee falls within the purview of Section 2(14)(iii)(b) of the Act or not? - capital asset - HELD THAT - Admittedly the assessee was not allowed opportunity to cross examine. This is against principles of natural justice. This statement cannot be relied on. CIT(A) has mentioned that he has not relied on the statement of Shri Dinesh Pareek dated 02-02-2011. However his version has really impressed his decision making faculty in one way or the other. It is noticed that alleged physical verifications which are not based on any scientific manner and not done by an expert in the field give divergent opinion. Therefore these verifications cannot be relied upon. The best evidence in the form of reports of the Sarpanch the Halka Patwari and even the Municipal Corporation Jaipur (in the first instance) are emphatic and are reliable. Therefore we are left with no option but to accept them as correct when these are pitted against the variant statements which in our considered opinion do not seem to be devoid of fearlessness or fairlessness. Overwhelming pieces of evidence which are available on record and filed by the assessee to support her claim cannot be doubted by the Inspector s report. Accordingly we hold that the piece of land sold was only agricultural land which does not give rise to any capital gain. Disallowance of expenditure - HELD THAT - As noticed from the record that most of the payments against the impugned expenses were through cheques. The nature of work and its payment stands established from the record and assessment order itself. AO has not pinpointed any defect in these expenses and also in the books of account of the assessee. Therefore the lumpsum addition made simply on suspicion is not called for. We cannot approve such adhoc disallowance which are not tenable in the eyes of law. Accordingly the impugned deletion stands approved which resulted into dismissal of the sole ground raised in Revenue s appeal.

Summary

Issues Involved:
1. Deletion of addition made by AO on account of disallowance of expenditure.
2. Determination of the correct distance of the agricultural land from municipal limits for the purpose of Section 2(14)(iii) of the Income Tax Act.
3. Acceptance of remand report under Rule 46A.
4. Calculation and charging of interest under Sections 234B and 234C.

Issue-wise Detailed Analysis:

1. Deletion of Addition Made by AO on Account of Disallowance of Expenditure:
The Revenue raised a ground questioning the deletion of Rs. 14,30,009/- made by the AO on account of disallowance of expenditure. The AO had noticed that the assessee showed net income from job work and contract receipts of Rs. 5,79,964/- under "Income from Other Sources" and received Rs. 63.00 lacs from Kwality Resorts & Hospitality Ltd. Mumbai. The AO disallowed 25% of payments made for tractor hire and laborers for leveling the land due to cash payments and lack of proper establishment of nature of receipt and expenditure. The CIT(A) deleted the disallowance, finding it adhoc and without logic or evidence. The Tribunal upheld the CIT(A)'s decision, noting that most payments were made through cheques, the nature of work and payments were established, and no defects were pinpointed in the books of accounts. Thus, the Revenue's appeal on this ground was dismissed.

2. Determination of the Correct Distance of the Agricultural Land from Municipal Limits:
The assessee contested the AO's treatment of agricultural land as a 'capital asset' under Section 2(14)(iii)(b) of the Act, arguing it was situated beyond 8 KM from municipal limits, thus exempt from capital gains tax. The AO relied on an Inspector's report, which was not confronted to the assessee, and discarded certificates from the Sarpanch and Patwari. The CIT(A) considered further evidence, including a report from Jaipur Municipal Corporation and contradictory statements from the Revenue Officer. The Tribunal found the certificates from the Sarpanch, Patwari, and Municipal Corporation reliable, noting the Inspector's report was obtained behind the assessee's back and lacked scientific verification. The Tribunal accepted the overwhelming evidence supporting the assessee's claim that the land was beyond 8 KM from municipal limits, thus not liable for capital gains tax. The assessee's appeal on this ground was allowed.

3. Acceptance of Remand Report Under Rule 46A:
The assessee argued that the CIT(A) erred in accepting the remand report under Rule 46A by a lower authority (Income-tax Officer) on an order under appeal issued by a superior authority (Assistant Commissioner of Income-tax). The Tribunal did not find any specific detailed analysis on this issue in the judgment, implying the decision on this ground was subsumed under the broader analysis of the evidence regarding the distance of the land from municipal limits.

4. Calculation and Charging of Interest Under Sections 234B and 234C:
The assessee contended that the interest charged under Sections 234B and 234C was wrongly calculated and charged. The Tribunal noted that this ground was consequential to the main issues decided. Since the primary contention regarding the distance of the land and its classification as a capital asset was resolved in favor of the assessee, the interest calculation under Sections 234B and 234C would be adjusted accordingly.

Conclusion:
The Tribunal concluded by dismissing the Revenue's appeal and allowing the assessee's appeal, thus ordering the deletion of the impugned addition and confirming that the land in question did not give rise to any capital gain. The order was pronounced in the open court on 31-01-2014.