Commissioner Of Income Tax, Jaipur-Ii, Jaipur v. Order

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 76 / 2017 Commissioner of Income Tax, Jaipur-II, Jaipur ----Appellant Versus Smt. Vinita Agarwal, Plot No. 18, Bharat Mata Path, Jamnalal BajajMarg, C-Scheme, Jaipur ----Respondent _____________________________________________________ For Appellant(s) : Mr. K.D. Mathur for Mr. R.B. Mathur.For Respondent(s) : _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE INDERJEET SINGH Order 05/07/2017 1.By way of this appeal, the appellant has challenged thejudgment and order of the Tribunal whereby the tribunal has initialheld in four of the Department however, in M.A., reversed theearlier order. 2.Learned counsel for the appellant frame the followingquestion of law. “(i) Whether on the facts and in the circumstances ofthe case and in law the Hon’ble ITAT was justified inallowing the benefit of exemption u/s 10(37) of theAct, which was not claimed by assessee in her returnof income. (ii) Whether on the facts and in the circumstances ofthe case and in law the Hon’ble ITAT was justified inholding that the said land was not a capital asset,since it was situated beyond 8 km despite of fact thatthe assessee herself declared long term capital gainin her ROI on sale of the asset. (iii) Whether on the facts and in the circumstancesof the case, the Hon’ble ITAT was justified in notappreciating that the assessee did not take this plea before Assessing Officer and CIT(A). (iv) Whether on the facts and in the circumstancesof the case, the ITAT was justified in not appreciatingthat the CIT(A) admitted additional evidence andheld that the land was beyond 8km without seekingreport of the Assessing Officer against provisions ofRule 46A of the IT Rules. (v) Whether on the facts and in circumstances of thecase, the ITAT was justified in solely relying on theCIT(A)’s order instead of remanding back to theAssessing Officer for verification of facts which wasnot raised before the Assessing Officer. (vi) Whether on the facts and in circumstances ofthe case, the ITAT was justified in holding that thedate of transfer of immovable property in the case ofcompulsory acquisition will be the date when finalaward was given to the assessee and not the datewhen the assessee extinguished her rights in theproperty by accepting terms of acquisition and madeunconditional surrender of her rights in the land inpursuance of notification for acquisition of land. (vii) Whether on the facts and in circumstances ofthe case, the ITAT was justified in the matter ofcompulsory acquisition capital gain process startswith notification for acquisition and culminates withgrant of final award which is contrary to the legalinterpretation that capital gain/loss within themeaning of sec.2(47) of the Act, arises on the date oftransfer of assest and it does not extend to the wholeof the financial year like other heads of income. (viii) Whether on the facts and in circumstances ofthe case, the ITAT was justified in holding thatallowing the benefit of exemption u/s.10(37) of theAct, despite the fact that assessee incurred noexpenditure on agricultural operation and it was notpossible to carry out agricultural operation withoutany expenditure. (ix) Whether on the facts and in circumstances of thecase, the ITAT was justified in direction to apply fairmarket value for the computation of capital gaininstead of reserve price declared by the JDA ignoringthe fact that on acquisition of land many privilegesand amenities associated with the land are takenaway in the process and therefore, reserve price isfixed at more amount than Fair Market Value tocompensate the same. (viii) Whether on the facts and in circumstances ofthe case, the ITAT was justified in holding thatallowing the benefit of exemption u/s.10(37) of theAct, despite the fact that assessee incurred noexpenditure on agricultural operation and it was notpossible to carry out agricultural operation withoutany expenditure. (ix) Whether on the facts and in circumstances of thecase, the ITAT was justified in direction to apply fairmarket value for the computation of capital gaininstead of reserve price declared by the JDA ignoringthe fact that on acquisition of land many privilegesand amenities associated with the land are takenaway in the process and therefore, reserve price isfixed at more amount than Fair Market Value tocompensate the same. (x) Whether on the facts and in circumstances of thecase, the ITAT was justified in law and has not actedperversely in completely changing its earlier orderand dismissing the appeal filed by the department. 2.Taking into consideration the fact that land is outside 8 km ofcity, we are incomplete agreement with the view taken by theTribunal in the order passed in M.A. 3. No substantial question of law arises. 4.Hence the appeal stands dismissed. (INDERJEET SINGH),J. (K.S. JHAVERI),J. Mohit Grover Sr. No.18