IN INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH C BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER I.T. A. No.288/Bang/2016 (Assessment Year : 2008-09) Munilakkanna (HUF), No.E-72, Hemmigepura, Vidyapetha Post, Bangalore South, Bangalore-560 060. . Appellant. PAN AAKHM 6404J Vs. Income Tax Officer, Ward 9(1), Bangalore. .. Respondent. Appellant By : Shri S.R. Kiron, C.A. Respondent By : Shri Vijay Kumar, N, Addl. CIT (D.R) Date of Hearing : 14.09.2016. Date of Pronouncement : 23.09.2016. ORDER Per Shri Vijay Pal Rao, J.M. : This appeal by assessee is directed against order dt.23.12.2015 of Commissioner of Income Tax (Appeals) for Assessment Year 2008- 09. 2 ITA No.288/Bang/2016 2. assessee has raised following grounds : 3 ITA No.288/Bang/2016 3. During assessment proceedings, Assessing Officer noted that assessee has sold agricultural land in S.No.37/1 to extent of 3 Acres 15 Guntas and in Survey No.42/1 to extent of 1 Acre 20 Guntas in Hemmiggepura Village, Bangalore South Taluk, Bangalore vide registered document dt.31.8.2007 and dt.18.7.2007 respectively for total consideration of Rs.1.95 Crores. assessee did not offer capital gains to tax on this sale transaction. Assessing Officer asked assessee to show cause as to why capital gains shall not be taxed on these transactions. assessee contended before Assessing Officer that land is situated in village having population of less than 10,000 and also 20 kms away from Bangalore. Therefore said agricultural land do not constitute capital asset and consequently capital 4 ITA No.288/Bang/2016 gains. Assessing Officer did not accept contention of assessee and found that as per Gazettee Notification of Govt. of Karnataka dt.16.1.2007 vide Notification No.GOK No.UDD 92 MNY 2006 of Hemmigepura Gram Panchayat which is listed in Schedule of said Notification was included in area of Bangalore Mahanagar Palike w.e.f. 16.1.2007. Therefore land situated at this village sold after 16.1.2007 has to be considered as capital asset as per Section 2(14) of Income Tax Act, 1961 (in short 'the Act') and capital gains on said sale of agricultural land is taxable to capital gains. Accordingly, Assessing Officer assessed capital gains of Rs.1,94,27,472. assessee challenged action of A.O. before CIT(Appeals) and also raised additional ground that land in question was transferred by assessee vide Joint Development Agreement (JDA) dt.31.10.2015 and therefore as on date of JDA, land in question was agricultural land and could not be assessed to capital gains. assessee sought to file additional evidence in form of JDA dt.31.10.2005 before CIT (Appeals). CIT (Appeals) did not accept 5 ITA No.288/Bang/2016 request of assessee to file additional evidence and consequently dismissed appeal of assessee. 4. Before us, learned Authorised Representative of assessee has submitted that prior to sale deed dt.18.7.2007 and 31.8.2007, assessee was having JDA which was reduced to writing on 31.10.2015 and therefore in view of judgment of Hon'ble jurisdictional High Court in case of CIT Vs. T.K. Dayalu (2011) 202 Taxman 531 when possession of land in question was handed over on date of JDA then it constitute transfer as per provisions of section 2(47)(v) of Act. learned Authorised Representative has further submitted that even Assessing Officer has not afforded appropriate opportunity of hearing to assessee to place entire record and details before Assessing Officer. He has referred date of hearing before Assessing Officer as 29.12.2011 and 30.12.2011 whereas Assessing Officer has passed assessment order on 30.12.2011 itself. Therefore assessee was not given proper opportunity to present its case along with relevant record. Hence learned Authorised Representative has pleaded that matter may be set aside to record of 6 ITA No.288/Bang/2016 Assessing Officer for considering JDA dt.31.10.2015 on issue of taxability of capital gains arising from sale of agricultural land in question. In support of his contention, he has relied upon decision dt.29.7.2016 of co-ordinate bench of this Tribunal in case of bunch of appeals in ITA Nos.655 to 657/Bang/2014 in case of Sri Munihanumaiah & Others Vs. CIT(A) and submitted that this Tribunal in identical case of sale of agricultural land in same village has set aside issue to record of Assessing Officer for verification of document and particularly JDA and then decide issue in accordance with law. 5. On other hand, learned Departmental Representative has submitted that JDA in question is after thought document manufactured by assessee as it was not produced before Assessing Officer. Further assessee has not produced other supporting evidence to show genuineness and veracity of JDA in question. CIT (Appeals) has rejected admission of additional evidence by considering all relevant facts and circumstances of case. He has relied upon orders of authorities below. 7 ITA No.288/Bang/2016 6. We have considered rival submissions as well as relevant material on record. limited grievance raised by assessee before us is non-admission of additional evidence by CIT (Appeals) proposed to be adduced by assessee in shape of JDA dt.31.10.2005. CIT (Appeals) has declined to admit this additional evidence as it is not registered document and further assessee has executed sale deed in favour of same person and thereby transferred land in question only by way of sale deed executed in month of July, 2007 and Aug., 2007. Though CIT (Appeals) has doubted veracity of JDA and consequently claim of assessee that transfer took place as on date of JDA however since this document was not admitted as additional evidence by CIT (Appeals) therefore it is not appropriate to express any view on merits of issue and particularly on contents and facts based on JDA dt.31.10.2005. Therefore, if on verification and examination of record as well as other relevant facts and circumstances of case it is found that JDA is genuine document and assessee handed over possession of land in question as on date of JDA then in view 8 ITA No.288/Bang/2016 of judgment of Hon'ble jurisdictional High Court in case of CIT Vs. T.K.Dayalu (supra), transfer of land deemed to be completed on date of JDA. co-ordinate bench of this Tribunal while dealing with identical issue pertaining to agriculture land situated in same village namely Hemmiggepura, Kengeri Hobli, Bangalore has set aside this issue to record of Assessing Officer in paras 6 & 7 as under : 9 ITA No.288/Bang/2016 We find that purchaser of agriculture land in said case is same as in case before us. Therefore without expressing any view on merits of case and following decision of co-ordinate bench, we set aside issue to record of Assessing Officer to examine genuineness of JDA as well as nature of property whether it can be treated as capital asset as per section 2(14) of Act and then decide matter in accordance with law. 10 ITA No.288/Bang/2016 7. In result, appeal of assessee is allowed for statistical purpose. Order pronounced in open court on 23rd day of Sept.,2016. Sd/- Sd/- (S. JAYARAMAN) (VIJAY PAL RAO) Accountant Member Judicial Member *Reddy gp Copy to : 1. Appellant 2. Respondent 3. C.I.T. 4. CIT(A) 5. DR, ITAT, Bangalore. 6. Guard File. By Order Asst. Registrar, ITAT, Bangalore Munilakkanna (HUF) v. Income-tax Officer, Ward 9(1), Bangalore