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13-05-2019, Dinesh Nigam, Section 2(14)(iii), 50C, 405, Tribunal Indore

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1 week 3 days ago #9429 by amit
Section - 2(14)(iii), 50C, 405
Order Date - 13-05-2019
Favouring - Revenue
Court - Tribunal Indore
Appellant - Dinesh Nigam
Respondent - ITO
Justice - KUL BHARAT JM & MANISH BORAD AM
Citation - 519Taxpundit192
Appeal No. - ITA No.457/Ind/2017
Asstt. Year - 2013-14

Order

PER : KUL BHARAT, J.M

This appeal by the assessee is directed against order of the CIT(A)-1, Indore dated 18.11.2016 pertaining to the assessment dated 18.11.2016 pertaining to the assessment year 2013-14. The assessee has raised following grounds of appeal:-

1. That in the light of fact that the territorial limit of Indore Municipal Corporation, Indore has been expanded by virtue Notification No.F 1- 3-2012-13-3 dated 4.3.2014 erred in treating the subject land “as capital asset within the meaning of section 2(14)(iii) of Income Tax Act, 1961” and further erred in determining the LTGC to the tune of Rs.41,13,018/- therefore the order passed by the Non applicants is illegal, bad-in-law and levy of LTGC deserves to be deleted.

2. That, the learned ITO and first Appellate Authority ought not to have considered the report of Patwari as one and only evidence, which in itself is an arbitrary and a casual report and is totally based on erroneous facts and mis conception of law. The authorities ought to have invited objections from appellant before using the same against him.

3. That, the subject order suffers from the principle of natural justice, the contents of report were neither shown to the appellant nor any reply was sought to rebut the same, hence the order passed is illegal, bad-in-law and non-est.

4. That, the order is further illegal on the ground that it has been based on the manda e of law which have been declared ultravires to the Constitution. Thus, the impugned order has become ipsofacto null and void.

5. That the above authorities further erred in not granting the deduction u/s 54 B of the Act in commensurate with the share of investment of the appellant, in purchasing the agricultural land at Village Ghatiya.

6. That, the appellant craves leave to add/alter/amend or plead the other grounds at the time of hearing.

7. That, the appellant has paid the requisite amount of fee as required.

8. That, this appeal has been filed with the application for condonation of delay.

2. The assessee has also raised following additional grounds:

“That, the Learned ITO erred in law and on facts in adopting the value determined by the stamp valuation authority at Rs.1,00,60,000/- for the calculation of LTCG while he ought to have adopted the amount actually received by the appellant to the tune of Rs.72,82,000/- to compute the amount of LTCG. The learned authority erred in law in applying Section 50C which is not applicable to the appellant’s case in the light of ITAT decision ITO, Ajmer V Raj Kumar Parashar ITA No.11/JP/2016 decided on 28.9.2017 by ITAT Jaipur.”

3. The facts giving rise to the present appeal are that case of the assessee was selected for scrutiny assessment and the assessment u/s 143(3) of the Income Tax Act, 1961 (hereinafter called as ‘the Act’) was framed vide order dated 9.3.2016. The A.O. observed in the assessment order that the assessee had sold an agricultural land bearing Khasra No.117/3, Patwari halka No.38, village Jakhya, Tehsil Sanwer, Dist. Indore admeasuring 0.614 hectare on 11.2.2013at a sale consideration of Rs.72,82,000/-. The stamp valuation authority had adopted market value of property at Rs.1,00,60,000/-. The A.O. observed that the assessee has claimed cost of improvement as well as the cost of acquisition for the purpose of capital gain. Further, claim u/s 54B of the Act was made which was restricted to 1/3rd of the claim on the basis that the new asset was purchased in joint ownership with the other brothers of the assessee. Hence, the A.O. computed taxable capital gain at Rs.41,13,018/- against the income disclosed by the assessee in the return of income at Rs.1,97,440/-. Aggrieved by this, the assessee preferred an appeal before the Ld. CIT(A), who after considering submissions partly allowed the appeal, thereby the claim of improvement of asset was allowed. Hence, the addition of Rs.91,280/- was allowed. The other claim of the assessee related to the land in question being not capital asset and the claim of deduction u/s 54B of the Act on the entire sale consideration was rejected by the Ld. CIT(A). Now the assessee is in the present appeal.

4. It was noticed during the course of hearing that the present appeal filed was barred by 115 days. The assessee had filed an application seeking condonation of delay. The

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