9911796707
TMI Blog2025 (4) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee by observing as under :- 8. Decision: All the information available on record alongwith the impugned assessment order, the grounds of appeal and submission filed by the appellant in this case has been considered. The additional documents submitted during appellate proceedings were forwarded to the JAO calling for remand report. Remand report dated 10.04.2019 has been taken on record. The appellant's comments on the remand report have also been considered. The ground wise issues raised in this appeal are discussed as under: 8.1 Grounds of appeal number 1 and 8: Vide ground no 1 and 8 of this appeal, the appellant has challenged the action of AO in initiating reassessment proceeding U/s 147 of the Act without obtaining proper satisfaction and sanction from the superior authority U/s 151 of the Act. I have carefully considered the facts and submissions of the Learned AR and the decisions relied on by him. This is the case where originally the appellant had not filed return u/s 139 (1) of the Act but subsequently filed return of income in response to notice u/s148 of the Act on 02.11.2017. The AO had received credible information regarding sale of land by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of AO in not referring the issue for valuation to determine the correct market value even after a specific request U/s 50C(2) of the Act. A perusal of record reveals that during the course of assessment proceedings, the AO had referred the matter to valuation officer but the valuation report was not received till the date of finalization of assessment proceedings u/s 143(3) rws 147 of the Act on 28.12.2017. However, on receipt of valuation report, the AO passed the necessary rectification order u/s 154 of the Act on 28.11.2018 reducing the taxable income from 6,05,20,557/- to Rs. 72.14 057/ -. Accordingly this ground does not survive and hence is dismissed. 8.4 Grounds of appeal number 5: Vide ground no 5 of this appeal, the appellant has challenged the action of AO in not allowing the deduction U/s 54F of the Act. The claim of the appellant has been considered and it is noticed that the appellant has not claimed any deduction u/s 54F of the Act for the AY 2013-14. The Hon'ble Apex Court vide order dated 24.03.2006 in the case of Goetze (India) Ltd. Vs CIT in CIVIL APPEAL NO. 1761 of 2006, held that the claim of deduction not made in the return cannot be entertained by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equest to amend the appeal; therefore, this ground of appeal is not entertained. 9. In the result, the appeal is dismissed." 2.2 During the course of hearing, the ld.AR of the assessee submitted that the lower authorities erred in not allowing the benefit of Section 54F of the Act to the assesee. To this effect, the ld. AR of the assessee has repeated the same arguments as were made before the ld.CIT(A) and thus he has filed the detailed written submission to counter the orders of the lower authorities and the same is reproduced as under :- 1. The assessee is a lady dependent on her husband for her livelihood, and since she did not have any taxable income, no return of income had been filed for the year under consideration or past years. 2. On the basis of AIR information, the Assessing Officer (AO) noted that the assessee sold four pieces of land situated at RohiMauja, Sardarshahar during the FY 2012-13 on 18-02-2013, and one piece of land situated at RohiMauja, Sardarshahar during the FY 2012-13 on 19-02-2013 for a total consideration of Rs. 24,00,000/-, the value of which was determined at Rs. 6,18,28,000/- by the Stamp Authority. 3. The AO noted that the assessee, desp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being additional evidence, it was informed to the appellant a remand report from the AO may be called for. However, it is not clear whether any remand report is called for or not or if called for the same is certainly not provided to the appellant for rebuttal. 12. Sir, even after the AO's rectification order dated 28-11-2018, the issue of dispute remains the same that pieces of land sold by the assessee were agricultural land and not fall in the definition of capital assets, hence, no addition on account of LTCG should be made in our case. Thus, we still rely on our grounds of appeal raised which are reproduced as under:- I. On the facts and circumstances of the case and law also Learned Assessing Officer grossly erred in initiating reassessment proceeding U/s 147 of the Income tax Act 1961. II. On the facts and circumstances of the case and law also Learned Assessing Officer grossly erred in taxing the sale of alleged land as the alleged land is an agricultural land situated out of limit of Municipal Board hence not a capital assets. III. On the facts and circumstances of the case and law also Learned Assessing Officer grossly erred in applying the provision of section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of judicial pronouncement on the subject matter, no addition on account of invocation of sec. 50C would have been made. While making unwarranted addition contrary to the material on record Ld. AO denied to consider true nature of land and the judgments of Supreme Court and Jurisdictional High Court of Rajasthan on the issue. The denial to consider the binding judicial Pronouncement without recording any finding as to why such decision not at all applicable in the case under consideration itself demonstrate that the assessment was framed in capricious and arbitrary manner contrary to the law governing the issue under consideration. Your appellant wishes to submit that in the instant case also, there were no enquiries conducted to ascertain the correct facts regarding actual sale consideration of the lands and whether the land fall under the definition of capital asset or not and only on the basis of AIR information, the AO reopened the assessment and issued notice u/s. 148 of the Act. It is submitted that the reasons recorded merely reflect the suspicion of the AO and not the satisfaction recorded before issuance of notice under s. 148 of the Act and on mere suspicion reope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO and the formation of his belief regarding escaped income. There must be tangible material on record for the formation of opinion, which is a prerequisite for initiation of action u/s 147. There should be facts before the AO, which should reasonably give rise to the belief that income has escaped assessment. The facts should have relevant bearing to the formation of the belief at the time of issue of notice. It is thus, trite that when challenge is made to the action u/s 147 what the appellate authority is required to do is to examine as to whether there is some material on record for the AO to form the requisite belief and whether the reason for the belief has a rational nexus or relevant bearing to the formation of Such belief. In the instant case, there was no material on record nor there was any nexus between the reasons recorded and the facts on record on the basis of which it could be said that the income has escaped assessment. The duty of the assessee does not extend beyond making a full and true disclosure of primary facts. Once he has done so, his duty ends. It is for the AO to draw the correct inference from the primary facts and it is not the responsibility of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged land as the alleged land is an agricultural land situated out of limit of Municipal Board hence not a capital assets. Before arguing this ground of appeal and giving reply on AO's various allegations while making the unwarranted addition of Rs. 6,05,20,557/- which was subsequently reduced to Rs. 72,14,057/- vide order passed u/s. 154/143(3) r.w.s. 147/148 of the Act dated 28-11-2018 after receipt of DVO's report, your humble appellant would like to point out that AO's entire action in treating the pieces of land sold by the appellant as "capital assets" is based on report dated 24-08-2016 Executive Engineer of Municipal Board of Sardaharshar. If your honor go through, this letter dated 24-08-2016 of Executive Engineer of Municipal Board of Sardaharshar, it never state about any specific distance of properties in question from Municipal Board of Sardaharshar. Moreover, it is totally silent on aerial distance Municipal Board of Sardaharshar. Thus, this letter cannot be said to be conclusive of proof of distance of properties in question from Municipal Board of Sardaharshar. Thus, in view of above, the appellant humbly contends that the Id. AO has erred in law as weil a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nown as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand according to the last preceding census of which the relevant figures have been published before the first day of the previous year ; or (b) in any area within such distance, not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a), as the Central Government may, having regard to the extent of, and scope for, urbanisation of that area and other relevant considerations, specify in this behalf by notification in the Official Gazette; In simple terms, what aforesaid provisions state is that if any of the following conditions is fulfilled the agriculture land will be treated as capital asset under Income Tax Act . 1. Agriculture land is situated within a municipality or cantonment and the population of such municipality or cantonment is more than 10,000 as per last census. Or 2. Agriculture land is situated within an area from local limit of municipality or cantonment are as notified by government in this r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s capital asset, otherwise not. In the instant case, admittedly, the agricultural lands of the assessee was Not situated in Municipal Area of Sardarshahar and even not situated within distance from notified municipality as given in Notification 9447 and 11186. In fact, as per newly notified of area Municipal limit of Sardarshahar, the lands are beyond 6 Km 'from the Municipal Limits. This fact can be verified from Google Map of Sardarshahar Municipality and distance of Village RohiMauja from Municipal Limit of Jodhpu, which is enclosed herewith along with the latest report/certificate dated 28-02-2019 of Municipal Board, Sardarshahar. Sir, it is clarified that our case is not covered by section 2(14)(iii)(b) of the Act. Reference is again invited to sub-clause(b) of section 2(14)(iii) "not being more than six kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a Population of more than one lakh but not exceeding ten lakh; or" Sir, it may be noted that right from the original assessment proceedings, the AO's contention has been that village RohiMauja which assessee's properties are situated fall within the Munic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not come within the purview of section 2(14)(iii ) either under sub-clause (a) or (b ), hence the same could not be considered as capital asset within the meaning of this section: Hence, no capitalgain tax could be charged on the sale transaction of this land entered by the assessee. [Para 7]. Sir, it is to submit that Central Government in its Notification No. 9447 dated 06.01.1994 and 11186 dated 28-12-1999 clearly clarifies that agricultural land situated in rural areas, areas outside the municipality or cantonment board etc., having a population of not less than 10,000 and also beyond the distance notified by Central Government from local limits, i.e. the outer limits of any such municipality or cantonment board etc ., still continues to be excluded from the definition of 'capital asset'. Accordingly, in view of sub-clause (b ) of section 2(14)(iii) even under the amended definition of expression 'capital asset', the agricultural land situated in rural areas continues to be excluded from that definition. In the instant case, admittedly, the agricultural lands of the assessee was not situated in Municipal Area of SARDARSHAHAR and even not situated within distance from noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i ) either under sub-clause (a) or (b ), hence the same could not be considered as capital asset within the meaning of this section. lssue-2:- Provisions of section 50C are applicable to capital asset not on agriculture land. For better appreciation, the relevant provisions of sec. 50C are reproduced as under:- "50C. Special provision for full value of consideration in certain cases.- (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed by any authority of a State Government (hereafter in this section referred to as the "stamp valuation authority') for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer: (2) Without prejudice to the provisions of sub-section (1), where- (a) the assessee claims before any Assessing Officer that the value adopted or assessed by the stamp valuation authority under sub-section (1) exceeds the fair market value of the property as o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake of clarity: "Section 2(14)( ifi)-" 'Capital asset' means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include 'agriculture land' in India, not being land situate- (a) in any area which is comprised: within the jurisdiction of a municipality (whether known as municipality, municipal corporation, notified area committee, town area committee, town committee or by any other name) or a cantonment board and which has a population of not less than ten thousand according to the last preceding census of which the relevant figures have been published before the first day of the previous year; or (b) In any area within such distance, not being more than eight kilometres from the local limits of any municipality or cantonment board referred to in item (a), as the Central Government may, having regard to the extent of and scope for urbanisation of that area and other relevant considerations, specify in this behalf by notification in the Official Gazette." Thus, from the definition of capital asset, agriculture land is excluded. But what is 'agriculture land' is not defined in the Act. Only 'agriculture income' i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced as under:- "Section 2(14), read with section 45, of the Income-tax Act, 1961 - Capital gains - Capital asset (Agricultural land) - Assessment year 2011-12 - Assessee sold certain land situated at village Eachankaranai for Rs. 137 lacs and did not offer any capital gain on ground that land was an agricultural land - Assessing Officer treated land in question as non-agricultural land (capital asset) on plea thatdistance between nearest municipality, namely, Chenglepet Municipality and land was less than 8 Kms. and computed long-term capital gains of Rs. 132.89 lacs - It was noted that as per Notification No. SO 9447, dated 6-1- 1994 issued for Chenglepet Municipality area upto 5 Kms. from municipal limits in all directions was to be considered - Whether since assessee's land was situated beyond 5 Kms. from Chenglepet Municipality, it could not be considered as non-agricultural land and same would be out of ambit of capital asset as defined under section 2(14) - Held, yes [Paras 5 and 6] [In favour of assessee] Since population of Sardarshahar is less than 10 lacs therefore, 6 Km limits shall be considered instead of 8 Kms and in our case certificate dated 28- 02-2019 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l established fact that it is the Tehsildar working under the State Government, who is competent to measure the distance of the land, more competent than the Inspector of the Department. If the Assessing Officer was not satisfied as to the distance certificate, he should have recorded the reasons and requested the higher authorities to the Tehsildar of the State Government for measurement of the same." The Department filed the appeal against this order before the Income Tax Appellate Tribunal which was dismissed by the Tribunal vide order dated January 12, 2007, observing as under :- "We are of the opinion that the Assessing Officer erred in computing the long-term capital gain on the basis of the report of the Inspector and he did not believe the report of the Tehsildar. We agree with the opinion of the learned CIT(Appeals) that he should have requested the higher authorities of the State Government if he did not believe his report to be correct or he could have summoned the Tehsildar under section 131 of the Income-tax Act in order to verify the veracity of the report. He is not justified in brushing aside the report of the Revenue official who is competent to measure the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld, yes HELD A perusal of the order passed by the Tribunal showed that the principle of measuring distance had been settled, namely, that the distance of the agricultural land belonging to the assessee had to be measured in terms of the approach by road and not byastraight line distance on a horizontal plane or as per crow flight distance. The Tribunalhad placed firm reliance on a judgment delivered by the Mumbai Bench of the Tribunal in the case of Laukik Developers v. Dy. CIT [2007] 105 ITD 657, wherein the aforesaid principle has been accepted. [Para 4 A perusal of section 2(14 (iii) shows that 'capital asset' would not include any agricultural land which is not situated in any area within such distance as may be specified in this behalf by a notification in the Official Gazette which may be issued by the Central Government. The maximum distance prescribed by section 2(14)(ili )(b) which may be incorporated in the notification cannot be more than 8 kms. from the local limits of the municipal committee or cantonment board, etc. The notification has to take into account the extent of and scope for urbanization of that area and other relevant considerations. The reckoni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 'R', it was to be held that jurisdictional municipality was municipality 'R' and not municipality 'H' - Held, yes - Whether since assessee's land was situated beyond radius of 8 Kms. From limits_of municipality 'R' and moreover said municipality was not notified by Central Government, it was to be held that land in question was not capital asset within meaning of section 2(14)(iii)(b) - Held, yes - Whether, therefore, impugned order passed by lower authorities was to be set aside - Held, yes" 4. Smt. SupriyaKanwar Vs. ITO (2014) 163 TTJ (Jd/TM)_1: The. Hon'ble Jurisdictional Tribunal i.e. Jodhpur ITAT in the case of Smt. SupriyaKanwar Vs. ITO (2014) 163 TTJ (Jd/TM) 1 considered the issue regarding sale of agricultural land situated beyond 8 Km from the Municipal Limits in great detail, the relevant paras 15, 16 & 17 of the order are reproduced hereunder: "15. If it is not considered as an adventure in the nature of trade the next issue that arises for consideration is whether sale of agricultural land gives rise to 'agricultural income' or it "is assessable to tax under the head 'capital gains'. Admittedly, the expression "agricultural income" is not comprehensively def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforecited decision to submit that the impugned land sold by the assessee was situated beyond eight kilometres from the nearest municipal limit and hence the income arising from transfer of agricultural land falls within the ambit of revenue derived from land and, therefore, has to be treated as agricultural income in which event it has to be considered for rate purposes only. 16. The Hon'ble Bombay High Court in the case of Gopal C. Sharma v. CIT [1994] 209 ITR 946/72 Taxman 353, on the other hand, observed that the expression 'agricultural land' is not defined in the Income Tax Act and, going by the intention of the Legislature, i.e. encouraging cultivation, sale of agricultural land gives rise to capital gains. It may be noticed that the court was not concerned with the case of agricultural land situated outside the municipal limits and had not specifically dealt with the provisions of section 2(1A) r.w.s.2(14)(iii) (a) and (b). On the contrary, the Apex Court in the case of SinghaiRakesh Kumar (supra) observed that agricultural land situated within eight kilometers from the municipal limit, upon sale thereof, is liable to tax and underlined the principle that definition g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uated beyond 6 kms. from municipal limits and is therefore not a capital asset attracting capital gains tax as per Section 2(14) of the Act. Moreover, the property /land was not covered by definition of asset under the sec. 2(ea) of Wealth-tax Act, 1957 as this land was an agricultural land. Sir, the appellant very humbly requests that the surplus arising on sale of the impugned agricultural land gives rise to agricultural income and is not assessable to tax. The addition made by the AO at Rs.7214057/- treating the same as capital assets may kindly be directed to be deleted. Since it is established that the said lands were a rural agricultural land and do not fall under the definition of capital asset or urban land as given in Income tax Act or Wealth tax Act, therefore, provisions of sec. 50C are not applicable. (Ground No. 3) On the facts and circumstances of the case and law also Learned Assessing Officer grossly erred in applying the provision of section 50C of the Income Tax Act as the alleged rights are Khatedari Rights and not land or a building. Moreover the alleged Khatedari Rights on land are even not a Capital Assets. The Appellant Further beg to submit that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a situation where the consideration received or accruing as a result of the transfer by an appellant of a capital asset, being land or building or both is less than the value adopted or assessed or assessable by any authority of State Government for the purpose of payment of stamp duty in respect of such transfer. It is settled legal proposition that deeming provision can be applied only in respect of the situation specifically given and hence cannot go beyond the explicit mandate of the section. Clearly 'therefore, it is essential that for application of Sec.50C, the transfer must be of a capital asset, being land or building or both. If the capital asset under transfer cannot be described as "land or building or both" then section 50C will cease to apply. From the facts of the case narrated above, it is clear that the assessee has transferred tenancy right. In the said transactions, no actual transfer of land or building took place and only tenancy rights of the appellant were transferred. Tenancy right was no doubt a capital asset but the same could not be considered as land and building. Therefore, provisions of section 50C were not applicable. Transfer of tenancy tights can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 50C can only be applied in respect of "transfer by an assessee of a capital asset, being land or building or both", the provisions of section 50C will apply on receipt of consideration on transfer of a property, being land or building or both, these Provisions will not come into play in a case where only tenancy rights are transferred. or surrendered. It is, therefore, important to examine as to in what capacity the assessee received the payment. No doubt the assessee was a party to the registered tripartite deed dated 20th July 2007 whereby the Property was sold by the KSCT, but, as a perusal of the sale deed unambiguously shows, the assessee has given up all the rights and interests in the said Property, which he had acquired. by the virtue of lease agreements with owner and which were, therefore, in the nature of lessee's rights; these rights could not have been, by any stretch of logic, could be treated as ownership rights. It has been specifically stated in the sale deed that the lessee, which included this assessee, had proceeded to, inter alia, "grant, convey, transfer and assign their leasehold rights, title and interest in the said premises". There is nothing on the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not referring the issue for valuation to determine the correct market value even after a specific request U/s 50C(2) of the Income Tax Act 1961. Since the AO referred the matter to DVO and on the basis of DVO's report, he subsequently, revised his earlier order, therefore, this is ground is withdrawn and being substituted with the ground which reads as under:- On the facts and circumstances of the case Learned Assessing Officer grossly erred in taking value of the Properties sold as per report of the DVO without giving any opportunity to the assessee. Sir, it is submitted that the DVO determined the value of Properties sold at Rs. 85,21,500/-. However, while preparing his report, the AO has not provided any opportunity to the assessee to present her case nor has furnished any material which was considered while determining the value of properties in question. Thus, any report prepared by the DVO without providing any opportunity to the assessee is gross violation of principle of natural justice and such cannot be relied upon by the AO. Sir, DVO's suffers from lacunae as no comparable instances have either discussed either by the DVO or by the AO and therefore the valuation m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at needs to be checked whether the assessee has invested any money for construction of house property where she resides out of sale consideration of original assets. In the instant case before your honour, it is not the case where the assessee invested in Construction on the property any stranger; she invested in construction in property which is owned by her son. As far as facts of the judicial pronouncement quoted by the AO in the assessment order is concerned, the facts of this case, do not match with the present case. In the Case of "Kalya" the assessment was made under section 144 of the Act. In other rulings, it is not proved that investment was made by the assessee as in these cases property was purchased prior to sale. There is plethora of decisions, ratio of which Clearly states that while allowing deduction u/s. 54B or 54F it is not necessary that one cannot construct or purchase Property or register the property in his son/ wife's/mother name as long as other conditions are fulfilled. Few of them are discussed as under:- i. The Hon'ble Madras High Court in other case C. V. Ramanathan vs. CIT, reported in 125 ITR 191 held that the assessee is entitled for exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the purpose of deduction u/s 54/54F is to give impetus for construction of residential houses. The Supreme Court in case of CIT vs. Vegetable Products Ltd. [1973] 88 ITR 192 has observed that if a Statutory provision is capable of more than one view, then the view which favours the taxpayer should be preferred. Therefore, section 54, being a beneficial provision enacted for encouraging investment in residential houses, should be liberally interpreted. The Hon'ble Supreme Court held that a provision for exemption or relief in a fiscal statute should be construed liberally and in favour of the assessee - Maharajadhiraj Sir Kameshwar Singh v. CIT [1957] 32 ITR 687 (SC). In view of the above facts and judicial Precedents, the appellant very humbly requests your honour to kindly direct the AO to allow deduction u/s. 54 of the Act. (Ground No. 6) vi. The Punjab & Haryana High Court in the decision dated 1-4-2008 in case of CIT vs. Gurnam Singh held that purchase of another agricultural land in joint names of the assessee and his son is entitled for exemption u/s 54B. In the appellant's case also the appellant's mother is totally depended upon him. Even under the provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of M/s Krishna Fruit Company Vs. DCIT reported 36 TW 280 it was held that contents of a duly sworn affirmed affidavit have to be taken as a proof of its contents. The same contentions were further confirmed in the case of Anand Prakash Gupta vs. ACIT reported in 32 TW 221. The Hon'ble Tribunal in the case of Kuldeep Chand Gargee reported in 37 TW 127, held that contents of a duly sworn affidavit has to be accepted as such unless such person is cross examined to establish fallacy of the contents. Sir, in the instant case, the Assessing Officer has not brought anything contrary on record to prove that the facts asserted in the affidavits were false. Further, it appears from the assessment order the AO was in hurry to complete the assessment order. If the AO was not satisfied with the evidences submitted by the assessee and required any explanation from assessee for assertion made in the affidavits, he could have and should have asked the assessee to explain the same or could have asked for more details. The Ld. Assessing Officer was in very hurry to complete the assessment without knowing appellant's reply and pleadings with regard the assessment proceedings. Therefore a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw also Learned Assessing Officer grossly erred in initiating reassessment proceeding without obtaining proper satisfaction and sanction from the superior authority U/s 151 of the Income Tax Act 1961. Without prejudice to above, Sir, it is submitted that in number of cases the Principal Commissioner of Income Tax given approval in a mechanical way, without application of mind. Here it is imperative to reproduce provisions of sec. 151(1) which clearly states that: In a case where an assessment under sub-section (3) of section 143 of section 147 has been made for the relevant assessment year, no notice shall be issued under section 148{by an assessing officer, who is below the rank of Asstt. Commissioner or Dy. Commissioner unless the Jt.CIT is satisfied on the reasons recorded by such A.O. that it is a fit case for the issue of such notice} Provided that, after the expiry of four years from the end of the relevant assessment year, no such notice shall be issued unless the {Principal Chief Commissioner or} Chief Commissioner or {Pr. Commissioner or} Commissioner is satisfied, on the reasons recorded by the AO aforesaid, that it is a fit case for the issue of such notice. Sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. CIT vs Debie Alemao (MANU/MH/1099/2010 dated 09-09-2010 [ITA No. 1 of 2006 Hon'ble HighCopurt of Bombay at Goa) 67-70 9. CIT VS Satinder Pal Singh (MANU/PH/0012/2010 dated 07-01-2010 - Hon'ble P&H High Court) 71-73 2.3 On the other hand, the ld.DR supported the order of the ld. CIT(A). 2.4 We have heard both the parties and perused the materials available on record including the orders of the lower authorities and written submission of the assessee. At the very outset the preliminary grounds on which the appeal is contested as that the authorities below have erred in addition of Rs. 72,14,060/- to income of the Assessee in as much as the land in question was situated beyond the Municipal Limit on Sardarsahar. The bare perusal of the record reveals that the Assessing Authorities have relied on the letter no.1836 dated 24.08.2016 issued by the Office of Nagar ParishadSardarsahar confirming that the alleged land was situated within the Municipal Limits of Sardarsahar. Further, it has been specifically noted in the order passed by the ld. CIT(A) while considering the Appeal in para 8.5 of the order dated 23.08.2024 which is under challenge. It is noted that primarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authorities simply remains absent. Now coming to the effect of the letter dated 04.04.2019 wherein it now clearly establishes that the land in question was not situated within the municipal limits of Sardarsahar, the basis of the Rajasthan Gazette dated 14.07.1988 could not be ignored. It arrived at a conclusion that while issuing the letter dated 24.08.2016, the Gazette seems to have been ignored and on realizing the same, the effect of the Rajasthan Gazette could not been ignored. Now this bench is of the view that the order passed by the Assessing Officer dated 28.12.2017 as well as the order upholding the same which passed by the ld. CIT(A) dated 23.08.2024 is hereby set aside and the addition of the income of Rs. 72,14,060/- and the capital gain Tax levied thereon is also set aside as per the settled principles of law. Hence, in view of the all the discussions made hereinabove, we do not concur with the findings of the ld.CIT(A) and thus the appeal of the assessee is allowed.
3.0 In the result, the appeal of the assessee is allowed
Order pronounced under Rule 34(4) of the Income Tax (Appellate Tribunal) Rules, 1963 by placing the details on the notice board. X X X X Extracts X X X X X X X X Extracts X X X X
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