ITO-2(1), RAIPUR (CG) V. M/S V. N. AGRAWAL, HUF, RAIPUR (CG)

ITA 197/BIL/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2414 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 26-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MISHRA
• Assessee Lawyers: PRAFULE PENDSE
• Keywords: Capital asset; Cost of acquisition
• Section: 143(3); 54B; 54F; 2(14); 133(6)

Judgement Text

1 ITA NOS. 197,199&200/BLPR/2012 CO NOS. 06, 04 & 05/BLPR/2013 IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR. BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO. 197 /BLPR/2012 ASSESSMENT YEAR : 200 9 - 10 . THE INCOME - TAX OFFICER - 2(1), M/S V.N. AGRAWAL, (HUF), RAIPUR. VS. RAIPUR. APPELLANT RESPONDENT C.O. NO. 06 / BLPR /201 3 . (IN ITA NO. 197 /BLPR/2012). ASSESSMENT YEAR : 2 00 9 - 10. . M/S V.N. AGRAWAL, HUF, THE INCOME - TAX OFFICER - 1(2), RAIPUR. VS. RAIPUR. CROSS OBJECTOR RESPONDENT. I.T.A. NO.199/BLPR/2012 ASSESSMENT YEAR : 2009 - 10. ASSTT. COMMISSIONER OF INCOME - TAX - 2(1), M/S J.N. AGRAWAL (HUF), RAIPUR. VS. RAIPUR. APPELLANT. RESPONDENT. C.O. NO. 04/BLPR/2013. (IN ITA NO. 199/BLPR/2012). ASSESSMENT YEAR : 2009 - 10. M/S J.N. AGRAWAL, (HUF), ASSTT. COMMISSIONER OF INCOME - TAX - RAIPUR. VS. 2(1), RAIPUR. CROSS OBJECTOR RESPONDENT. I.T.A. NO.200/BLPR/2012 ASSESSMENT YEAR : 2009 - 10. ASSTT. COMMISSIONER OF INCOME - TAX - 2(1), M/S S.N. AGRAWAL (HUF), RAIPUR. VS. RAIPUR. APPELLANT. RESPONDENT. 2 ITA NOS. 197,199&200/BLPR/2012 CO NOS. 06, 04 & 05/BLPR/2013 C.O. NO. 05/BLPR/2013. (IN ITA NO. 2 00 /BLPR/2012). ASSESSMENT YEAR : 2009 - 10. M/S S.N. AGRAWAL, (HUF), ASSTT. COMMISSIONER OF INCOME - TAX - RAIPUR. VS. 2(1), RAIPUR. CROSS OBJECTOR RESPONDENT. DEPARTMENT BY : SHRI P.K. MISHRA. ASSESSEE BY : SHRI PRAFULE PENDSE . DATE OF HEARING : 09 - 02 - 2016 DATE OF PRONOUNCEMENT : 31 ST MARCH, 2016. O R D E R PER MUKUL K. SHRAWAT, J.M. ALL THESE APPEALS HAVE BEEN FILED BY THE REVENUE ARISING FROM THE ORDER OF LEARNED CIT(APPEALS), RAIPUR IDENTICALLY DATED 31 - 08 - 2012. 2. WE HAVE BEEN INFORMED THAT THE FACTS AS WELL AS THE ISSUE IN ALL THE THREE APPEALS ARE IDENTICAL, THEREFORE, CONSOLIDATED AND HEREBY DECIDED BY THIS COMMON ORDER. FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE UP THE APPEAL OF M/S V.N. AGRAWAL, HUF AS A LEAD CASE. THE GROUND RAISED IS REPRODUCED BELOW : WHETHER IN LAW AND NON FACTS & CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ER RED IN DELETING THE ADDITION OF RS.2,04,51,363/ - MADE BY THE AO ON ACCOUNT OF LONG TERM CAPITAL GAIN WORKED OUT ON SALE OF AGRICULTURAL LAND SITUATED AT VILLAGE AMASEONI BY NOT TREATING IT AS CAPITAL ASSET U/S 2(14) AND ALLOWING THE CLAIM OF DEDUCTION U/S 54B OF THE I. TAX ACT, 1961. 3. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S 143(3) DATED 28 - 12 - 2011 WERE THAT THE ASSESSEE HAD SOLD 1/3 RD SHARE IN A LAND SITUATED AT VILLAGE AMASEONI FOR A CONSIDERATION OF RS.3,72,56,666/ - . ON SALE OF 3 ITA NOS. 197,199&200/BLPR/2012 CO NOS. 06, 04 & 05/BLPR/2013 LAND THE ASSESSEE HAS DECLARED A LONG TERM CAPITAL GAIN AT RS. 1,36,728/ - AFTER CLAIMING THE DEDUCTION IN THE FOLLOWING MANNER : FULL VALUE OF SALE CONSIDERATION RS.3,72,56,667/ - LESS : - INDEXED COST OF ACQUISITION OF LAND UNDER CONSIDERATION RS. 22,09,173/ - INDEXED COST OF IMPROVEMENT RS. 1,12,683/ - EXPENSES INCURRED IN CONNECTION WITH TRANSFER RS. 6,06,666/ - RS.3,43,28,143/ - DEDUCTION U/S.54B OF THE IT ACT I) RS.1,02,27,293/ - II) RS.1,02,24,070/ - RS. 2,04,51,363/ - DEDUCTION U/S. 54EC OF THE IT ACT RS. 50,00,000/ - DEDUCTION U/S. 54F OF THE IT ACT AND INVESTMENT MADE IN CAPITAL GAIN INVESTMENT A/C. RS. 87,40,052/ - RS.3,41,91,415/ - 4 . IN COMPLIANCE OF THE NOTICE THE ASSESSEE HAS FURNISHED THE FOLLOWING EXPLANATION : THAT THE LONG TERM CAPITAL GAINS WERE WORKED OUT ON SALE OF AGRICULTURAL LAND SITUATED AT VILLAGE AMASEONI BY WRONGLY CONSIDERING THE SAME AS CAPITAL ASSET U/S.2(14) OF THE IT ACT. THAT THE ASSESSEE C AME TO KNOW THAT THE 1/3 RD SHARE OF THE ASSESSEE IN LANDS AT VILL. AMASEONI SOLD BY THE ASSESSEE ON 12.09.2008 FOR VALUE OF RS.3,72,56,666/ - WAS INFACT NOT A CAPITAL ASSET WITHIN THE MEANING OF S.2(14)OF THE I.TAX AS THE SAME DO NOT FALL WITHIN THE LIMITS OF RAIPUR MUNICIPAL CORPORATION. THAT THE FACTS REMAINS THAT THE SAID A. LANDS WERE SITUATED WITHIN THE JURISDICTION OF GRAM PANCHAYAT, AMASEONI. THAT A XEROX COPY OF CERTIFICATE DATED 25.09.2009 ISSUED THE SARPANCH, AMASEONI AND DULY CERTIFIED BY NOTARY P UBLIC ON 20.12.2010, IN TOKEN OF EVIDENCE (ANNEXURE - II) PG.01) IS FILED HEREWITH TO ESTABLISH THAT THE A. LAND SOLD WERE SITUATED AT VILLAGE AMASEONI WERE A. LANDS OWNED BY THE ASSESSEE ALONGWITH OTHER TWO OWNERS (TWO HUFS) IN LANDS AT VILLAGE AMASEONI O WNED AND POSSESSED BY ASSESSEE WITH OTHER TWO CO - OWNERS NAMELY J.N.AGRAWAL, HUF & S.N. AGRAWAL, HUF, WERE SITUATED WITHIN THE JURISDICTION OF GRAM PANCHAYAT, AMASEONI. THAT THE 1/3 RD SHARE OF THE ASSESSEE IN THE SAID A. LANDS AT VILLAGE AMASEONI IS THUS NOT COVERED BY THE JURISDICTION OF RAIPUR MUNICIPAL CORPORATION. THAT PERUSAL OF PROVISION OF S.2(14) WILL REVEAL THAT THE GRAM PANCHAYAT ARE SPECIFICALLY NOT INCLUDED WITHIN THE 4 ITA NOS. 197,199&200/BLPR/2012 CO NOS. 06, 04 & 05/BLPR/2013 PROVI SIONS OF SECTION 2(14)(III)(A) & (B) OF THE I.T.ACT,1961. THAT IN VIEW OF THIS CRUCIAL FACTS IT IS RESPECTFULLY SUBMITTED THAT THE CONSIDERATION OF THE CAPITAL GAINS OF SALE OF A. LANDS AT VILLAGE AMASEONI WAS THUS A PATENT MISTAKE AND THE ASSESSEE, THEREF ORE, RESPECTFULLY SUBMITS THAT THE SAME BE ALLOWED TO BE CORRECTED BY EXCLUDING THE SAME FROM THE COMPUTATION OF TAXABLE INCOME MADE BY THE ASSESSEE.(SIC) 4.1 AS PER THE ABOVE REPLY THE ASSESSEE HAS CONTENDED BEFORE THE AO THAT THE CAPITAL ASSET BEING AN AGRICULTURAL LAND DID NOT ATTRACT LONG TERM CAPITAL GAIN. AN ENQUIRY WAS RAISED BY THE AO BY ISSUING A LETTER U/S 133(6) OF I.T. ACT TO TOWN & COUNTRY PLANNER, RAIPUR MUNICIPAL CORPO RATION TO ASCERTAIN THE STATUS OF THE LAND. THE TOWN & COUNTRY PLANNER HAS INFORMED THAT THE MUNICIPAL LIMIT OF THE RAIPUR MUNICIPAL CORPORATION WAS UPTO VILLAGE SADDU AS ON 12 - 09 - 2008, I.E. THE DATE OF TRANSFER OF THE LAND. THE VILLAGE AMASEONI IS STATED TO BE ADJACE NT TO VILLAGE SADDU. HENCE THE AO HAS HELD THAT THE VILLAGE AMASEONI WAS OUT OF 8 KMS. FROM THE RAIPUR MUNICIPALITY. ON THE OTHER HAND, THE ASSESSEE HAS CONTESTED THAT VIDE LETTER DATED 28 - 11 - 2011 THE TOWN & COUNTRY PLANNER HAS STATED THAT THE AGRICULTURAL LAND WAS SITUATED IN GRAM PANCHAYAT. IN RESPONSE TO THE QUERY, THE ASSESSEE HAS MADE SUBMISSIONS BEFORE THE AO AS UNDER : AS REGARDS LETTER DATED 28.11.2011 FROM MUNICIPAL CORPORATION, RAIPUR IS CONCERNED WE WISH TO STATE THAT LETTER EXPLICI TLY STATES THAT THE AGRICULTURAL LAND WAS SITUATED IN GRAM PANCHAYAT, AMASEONI WHICH WAS BEYOND MUNICIPAL LIMITS OF RAIPUR AS ON 12.09.2008. IT MAY INCIDENTALLY BE STATED THAT SIMILAR LETTER FR OM MUNICIPAL CORPORATION, RAIPUR DT. 28.12.2010 WAS FILED ON 14 .03.2011 WITH ACIT CIRCLE 2(1) AS ANNEXURE - III STATING THE FACT THAT GRAM AMASEONI IS NOT COVERED WITHIN THE MUNICIPAL LIMITS OF RAIPUR,(SIC) 5. HOWEVER , THE AO WAS NOT CONVINCED AND HELD THAT THE MUNICIPAL CORPORATION CAN AUTHENTICATE THE SITUATION OF A LAND AS WELL AS THE MUNICIPAL LIMITS. THE GRAM PANCHAYAT HAS NO AUTHORITY TO GIVE CERTIFICATE WHICH WAS 5 ITA NOS. 197,199&200/BLPR/2012 CO NOS. 06, 04 & 05/BLPR/2013 WRONGLY RELIED UPON BY THE ASSESSEE. THE AO HAS H ELD THAT THE ASSESSEE HAS RIGHTLY OFFERED THE CAPITAL GAIN FROM THE TRANSFER OF LAND. 6. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY , THE ASSESSEE HAS FURNISHED THE SUBMISSION AND CASE LAWS AS UNDER : DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPELLANT CONTENDED THAT A PATENT MISTAKE WAS OCCURRED WHILE OFFERING LONG TERM CAPITAL GAIN TO TAX WHILE FILING THE RETURN. HOWEVER, AFTER DETECTION OF THE MISTAKE, THE AO WAS REQUESTED TO EXCLUDE THE SAME FROM THE TAXABLE INCOME. HOWEVER , HE HAD REJECTED THE SAME. IT WAS CONTENDED BY THE LD.A.RS. THAT THE LAND UNDER REFERENCE IS SITUATED AT VILL. AMASEONI AND FALLS IN THE JURISDICTION OF GRAM PANCHAYAT. IT IS BEYOND THAT LOCAL LIMITS OF RMC. IN ORDER TO SUPPORT THIS CONTENTION, A CERTIFIC ATE ISSUED BY THE SARPANCH, GRAM PANCHAYAT, AMSEONI, DHARSIVA VIKAS KHAND, DIST, RAIPUR WAS FILED. HE HAD ALSO FILED A COPY OF LETTER NO.1306/BHA.NI.A.PRA./NA.PA.NI./ 2010, DATED 12.08.2010 ISSUED BY NAGAR NIVESHAK, NAGAR PALIKA NIGAM, RAIPUR CONFIRMING TH AT VILL. AMSEONI DOES NOT FALL WITHIN THE LIMITS OF RMC. IT WAS FURTHER CONTENDED THAT IN SECTION 2(14), THE GRAM PANCHAYATS ARE SPECIFICALLY NOT INCLUDED. THEREFORE, THE LAND WAS NOT A CAPITAL ASSET. IN THIS REGARD, THE LD. A.RS. HAVE RELIED ON THE DECISI ON OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS.PJ THOMAS REPORTED IN (1995) 211 ITR 897, WHEREIN THE HONBLE HIGH COURT HAS HELD THAT IN THE ABSENCE OF CLEAR OR SPECIFIC WORDS IN THE SECTION TO TAKE IN A PANCHAYAT, THE SAME CANNOT BE INCLUDED. THE APPELLANT HAS ALSO RELIED ON THE FOLLOWING CASES : - A. MUNICIPAL CORPORATION OF THE CITY OF BOMBAY VS CIT (1984) 16 ITR 165 (BOM) B. INCOME TAX OFFICER VS. P.VENKATARAMANA (1993) 46 TTJ (HYD) 706. C. (CIT VS. MURALI LODGE (1992) 194 ITR 125 (KER.) D. K.PARAMESHWARAN V.S ITO (1979) 2 ITD 371 (MAD.) E. CIT VS. SATINDER PAL SINGH (2010) 229 CTR (P&H) 82 6.1 ON RECEIVING THE WRITTEN SUBMISSIONS OF THE ASSESSEE, LEARNED CIT(APPEALS) HAS FORWARDED THE SAME TO THE AO FOR HIS COMMENTS. THE AO HAS REITERATED THAT THE VILLAGE AMASEONI IS ADJACENT TO VILLAGE SADDU UPTO WHICH THE LIMITS OF MUNICIPAL CORPORATION WERE EXTENDED. THE LAND IN QUESTION ACCORDING TO THE REVENUE, WAS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE I.T. ACT. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE SIDES, LEARNED CIT(APPEALS) HAS HELD AS UNDER : I HAVE GONE THROUGH THE OBSERVATIONS OF THE A.O. AND SUBMISSIONS OF THE APPELLANT. THE UNDISPUTED FACTS ARE THAT THE APPELLANT WAS HAVING AGRICULTURAL LANDS ALONG WITH 6 ITA NOS. 197,199&200/BLPR/2012 CO NOS. 06, 04 & 05/BLPR/2013 CO - OWNERS, SHRI S.N.AGRAWA L (HUF) AND SHRI V.N.AGRAWAL (HUF) AT VILL. AMASEONI. PART OF THE LANDS WERE SOLD AND LONG TERM CAPITAL GAIN ARISING OUT OF SUCH SALE WAS OFFERED TO TAX IN THE RETURN OF INCOME FILED. HOWEVER, AFTER NOTICING THE FACT THAT THE SAID AGRICULTURAL LAND FALL OU T OF THE LOCAL LIMITS OF RAIPUR, IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE APPELLANT REQUESTED THE A.O. TO EXCLUDE THE SAME FROM THE TOTAL INCOME ON THE GROUND THAT THE SAID LAND DOES NOT FALL IN THE DEFINITION OF CAPITAL ASSET U/S. 2(14) OF THE ACT. THE APPELLANT HAD FILED A COPY OF CERTIFICATE DATED 25.09.2009 ISSUED BY SARPANCH, GRAM PANCHAYAT, AMASEONI, VIKAS KHAND, DHARSIWA, STATING THAT THE AGRICULTURAL LAND UNDER REFERENCE FALLS IN GRAM PANCHAYAT, AMASEONI, THA POPULATION OF WHICH IS ABOUT 2800 AND THE SAID LAND IS ABOUT 10 (TEN) KILOMETRES AWAY FROM RAIPUR MUNICIPAL CORPORATION. THE A.O. DID NOT DISPUTE THE QUESTION OF SUBSEQUENT CLAIM MADE BY THE APPELLANT. HOWEVER, HE HAD REJECTED THE APPELLANTS CLAIM ON THE BASIS OF INFORMATION COLLECTED FRO M THE TOWN AND COUNTRY PLANNER, RAIPUR, WHO HAD CONVEYED THE A.O. THAT THE MUNICIPAL LIMIT OF RAIPUR MUNICIPAL CORPORATION, AS ON 12.09.2008, I.E. THE DATE OF TRANSFER OF THE LAND, WAS UPTO VILL. SADDU AND VILL. AMASEONI IS ADJACENT TO VILL. SADDU - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - IN THIS CASE, THE A.O. HAS NOT CATEGORICALLY STATED EITHER IN THE ASSESSMENT ORDER OR IN THE REMAND REPORT THAT THE AGRICULTURAL LANDS SOLD BY THE APPELLANT ARE WITHIN 8 KMS FROM THE LOCAL LIMITS OF RAIPUR MUNICIPAL CORPORATION. ALL THAT HE AVERRED IS THAT THE LOCAL LIMITS OF RAIPUR MUNICIPAL CORPORATION EXTEND UP TO VILL. SADDU AND VILL. AMASEONI IS ADJACENT TO VILL. SADDU. ON THE OTHER HAND, THE APPELLANT HAS FURNISHED A CERTIFICATE FROM SARPAN CH, GRAM PANCHAYAT, AMASEONI IN VIKAS KHAND DHARSIWA, DISTT. RAIPUR, THAT THE LAND IS 10 KMS, AWAY FROM RAIPUR MUNICIPAL CORPORATION. THE APPELLANT HAS FILED A COPY OF THE CERTIFICATE FIELD BEFORE THE AO AND THE AO HAS REJECTED THE SAME HOLDING THAT THE GR AM PANCHAYAT HAS NO AUTHORITY OF WHATSOEVER TO GIVE SUCH CERTIFICATE. HE HAD REJECTED THE CERTIFICATE WITHOUT CONDUCTING ANY ENQUIRY BEFORE COMING TO FINAL FINDING ON THE FACT. THE AGERMENTS MADE IN THE STATEMENT WERE NOT PUT TO CHECK EVEN DURING THE REMAN D PROCEEDINGS. THUS, THE APPELLANTS SUBMISSIONS REMAINED UNREBUTTED BY THE A.O. THE APPELLANT HAD ALSO FILED A LETTER DATED 28.12.2012 FROM NAGAR NIVESHAK, NAGAR PALIKA NIGAM, RAIPUR AFFIRMING THAT VILL.AMASEONI DOES NOT COME IN THE LIMITS OF RAIPUR MUNIC IPAL CORPORATION. - - - - - - - - - - - - - - - - - - - - - - IN THE COURSE OF APPEAL PROCEEDINGS, THE LD. ARS HAD CONTENDED THAT AS PER THE LAW LAID DOWN BY THE HONBLE ITAT, HYDRABAD BENCH IN THE CASE OF INCOME TAX OFFICER VS. P. VENKATARAMANA (1993) 46 TTJ (HYD) 706 FOR THE PURPOSES OF SEC.2 (14) (III) (A), MUNICIPALITY AND GRAM PANCHAYAT ARE DISTINCT ENTITIES AND COMPULSORY ACQUISITION OF LAND IN VILLAGE DOES TO INVITE CAPITAL GAINS. ON THE ISSUE OF DISTANCE, REFERRING TO THE CASE OF CIT VS. SATINDER PAL SINGH (2010) 229 CTR (P&H) 82, THE LD., A.R. HAS CONTENDED THAT FOR THE PURPOSE OF MEASUREMENT OF DISTANCE, STRAIGHT LINE DISTANCE ON HORIZONTAL PLANE OR DISTANCE AS PER CROWS FLIGHT HAVE NO RELATIONSHIP AND IT HAS TO BE COUNTED AS PER ACTUAL DISTANC E FROM THE LOCAL LIMITS TO THE LOCATION OF THE LAND. SIMILARLY, TO SUPPORT HIS CONTENTION THAT AGRICULTURAL LAND SITUATED WITHIN THE LIMITS OF PANCHAYAT AND NOT SITUATED WITHIN MUNICIPAL LIMITS WOULD NOT BE CONSIDERED AS A CAPITAL ASSET U/S. 2(14), THE LD. COUNSEL HAS STRONGLY RELIED ON THE DECISION OF 7 ITA NOS. 197,199&200/BLPR/2012 CO NOS. 06, 04 & 05/BLPR/2013 HONBLE MADRAS COURTS IN CIT VS. P.J.THOMAS REPORTED IN (1995) 211 ITR 897 (MAD.) I HAVE CAREFULLY CONSIDERED THE FACTS OBTAINING FROM THE RECORD AS ALSO THE WRITTEN SUBMISSIONS OF THE LD. A.R. AND HAVE CON SCIOUSLY TAKEN NOTE OF THE RATIO LAID DOWN IN THE CASES, SPECIFICALLY THAT OF THE HONBLE MADRAS HIGH COURT IN CIT VS. P.J.THOMAS REPORTED IN (1995) 211 ITR 897 (MAD.) AND ALSO THAT OF HONBLE JURISDICTIONAL TRIBUNAL, REFERRED TO ABOVE. IN THIS CASE, THE A GRICULTURAL LANDS IN QUESTION ARE SITUATED BEYOND 8 KMS FROM THE RAIPUR MUNICIPAL CORPORATION AREA IN GRAM PANCHAYAT AMASEONI, WHICH IS NOT A NOTIFIED AREA FOR THE PURPOSES OF SEC.2(14). IN VIEW OF THE REASONS ELABORATELY DISCUSSED IN THE ABOVE PARAGRAPHS, I AM OF THE CONSIDERED OPINION THAT THE AGRICULTURAL LAND TRANSFERRED BY THE APPELLANT IS NOT A CAPITAL ASSET UNDER SEC.2(14) OF THE ACT. THE A.O. IS, ACCORDINGLY, DIRECTED TO EXCLUDE THE GAIN ARISING FROM TRANSFER OF SUCH LAND FROM THE TOTAL INCOME OF THE APPELLANT. THIS GROUND OF APPEAL IS HENCE, ALLOWED. 6.2 THE REVENUE IS IN APPEAL AGAINST THE FINDING OF LEARNED CIT(APPEALS). 7. FROM THE SIDE OF THE REVENUE, LEARNED D.R. MR. P.K. MISHRA APPEARED AND VEHEMENTLY PLEADED THAT THE CERTIFICATE ISSUED BY THE TOWN & COUNTRY PLANNER, RAIPUR SHOULD HAVE BEEN ACCEPTED BY THE LEARNED CIT(APPEALS) INSTEAD OF PLACING RELIANCE ON A CERTIFICATE ISSUED BY THE SARPANCH, GRAM PANCHAYAT. HE HAS ALSO ARGUED THAT THE LAND IN QUESTION WAS ADJACENT TO VILLAGE SAD DU UPTO WHICH THE LIMITS OF MUNICIPAL CORPORATION HAVE BEEN EXTENDED. HE HAS, THEREFORE, PLEADED THAT THE LEARNED CIT(APPEALS) WENT WRONG IN IGNORING THE CERTIFICATE OF THE TOWN & COUNTRY PLANNER, RAIPUR. 7.1 ONE MORE ARGUMENT HAS BEEN RAISED BY THE LEARN ED D.R. THAT AS PER THE RETURN THE ASSESSEE HIMSELF HAS TREATED THE LAND IN QUESTION AS A CAPITAL ASSET AND, THEREFORE, DECLARED A LONG TERM CAPITAL GAIN. THE ASSESSEE HAS NOT REVISED HIS RETURN AND CLAIMED THE EXEMPTION BY FILING THE WRITTEN SUBMISSIONS B EFORE THE AO., HE HAS, THEREFORE, ARGUED THAT WITHOUT REVISING THE RETURN THE ASSESSEE WAS NOT ENTITLED TO CLAIM AN EXEMPTION AS HELD IN THE CASE OF GOTEZ (INDIA) 284 ITR 323 (SC). LEARNED D.R. HAS, THEREFORE, CONCLUDED HIS ARGUMENT THAT THE RELIEF WAS WRO NGLY GRANTED TO THIS ASSESSEE SPECIALLY WHEN THE ASSESSEE HAS NOT CLAIMED SUCH EXEMPTION AT THE TIME OF FILING OF THE RETURN. 8 ITA NOS. 197,199&200/BLPR/2012 CO NOS. 06, 04 & 05/BLPR/2013 8. ON THE OTHER HAND, FROM THE SIDE OF THE RESPONDENT - ASSESSEE LEARNED A.R. MR. PRAFULA PENDSE APPEARED AND AT THE OUTSET PLACED RELIANCE ON THE DECISION OF CIT VS. P.J. THOMAS 211 ITR 897. 9. WE HAVE HEARD BOTH THE SIDES AT SOME LENGTH AND ALSO CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW IN THE LIGHT OF THE COMPILATION FILED. AS FAR AS THE ISSUE OF THE CLAIM OF EXEMPTION BEFORE THE AO BY FILING A WRITTEN SUBMISSION IS CONCERNED, WE ARE OF THE VIEW THAT IF ALL THE FACTS AND REQUISITE INFORMATION ALONG WITH THE EVIDENCES WERE ALREADY ON RECORD THEN THE ASSESSEE CAN REQUEST THE AO TO ALLOW A STATUTORY EXEMPTION ON THE BASIS OF THE FACTS AND EVIDENCES ALREADY ON RECORD. THEREFORE, WE FIND NO FALLACY IN THE ORDER OF LEARNED CIT(APPEALS) ON THIS ASPECT THAT THE ASSESSEE IS LEGALLY ENTITLED TO CLAIM AN EXEMPTION WHICH IS OTHERWISE LEGALLY PERMISSIBLE IN THE EYES OF LAW. 9.1 NEX T IS THE ISSUE OF THE ACCEPTANCE OF CERTIFICATE OF SARPANCH, GRAM PANCHAYAT. THE GRAM PANCHAYAT CERTIFICATE WAS DATED 15 - 07 - 2007 WHEREIN IT WAS SPECIFIED THAT THE LAND IN QUESTION WAS BEYOND 10 KMS. FROM RAIPUR NAGAR NIGAM SIMA. THERE IS ONE MORE LETTER O F NAGAR PALIGA NIGAM, RAIPUR DATED 28 - 12 - 2010 WHICH HAS SPECIFIED THAT THE MUNICIPAL LIMITS OF RAIPUR NAGAR NIGAM W ERE NOT EXTENDED UPTO THE VILLAGE OF AMASEONI. OUR ATTENTION HAS ALSO BEEN DRAWN ON THE SALE DEED DATED 12 - 09 - 2008, EXECUTED BY THE PARTIES F OR THE PURPOSE THAT THE DESCRIPTION OF THE PROPERTY WAS AGRICULTURAL LAND AND IT WAS MENTIONED THAT THE LAND UNDER SALE WAS OUTSIDE THE NAGAR PALIKA NIGAM, RAIPUR. IN THE CASE OF P.J. THOMAS 2011 ITR 897 THE HONBLE MADRAS HIGH COURT HAS EXAMINED THE ISS UE OF THE CHARACTER OF THE LAND. HONBLE COURT HAS OPINED THAT THE TRIBUNAL HAD TAKEN INTO ACCOUNT NOT ONLY THE CLASSIFICATION OF THE LAND IN THE REVENUE RECORDS BUT ALSO CIRCUMSTANCES THAT THE LAND WAS UNDER ACTUAL 9 ITA NOS. 197,199&200/BLPR/2012 CO NOS. 06, 04 & 05/BLPR/2013 CULTIVATION. IT WAS ALSO HELD BY THE HON BLE COURT THAT THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE AGRICULTURAL LAND WITHIN THE PANCHAYAT COULD NOT BE RECORDED AS FALLING WITHIN THE SCOPE OF SECTION 2(14) OF THE I.T. ACT. IN A SITUATION WHEN THE FIRST APPELLATE AUTHORITY HAS CONSIDERED FACTUAL AS WELL AS LEGAL ASPECT OF THE CASE IN DETAIL AND ON APPRECIATION OF THE EVIDENCES HELD THAT THE AGRICULTURAL LAND IN QUESTION WAS NOT A CAPITAL ASSET, THEREFORE, IN THE ABSENCE OF ANY CONTRARY MATERIAL OR ADVERSE DECISION OF ANY HIGH COURT, WE HEREBY AF FIRM THE LEGAL AS WELL AS FACTUAL FINDING OF LEARNED CIT(APPEALS). WE FIND NO REASON TO INTERFERE WITH THOSE FINDINGS. HENCE AS A RESULT, THE GROUND RAISED BY THE REVENUE IS HEREBY DISMISSED. 10. ONCE WE HAVE TAKEN A VIEW THAT THE LAND IN QUESTION WAS NOT WITHIN THE DEFINITION OF CAPITAL ASSET, HENCE THE GAIN IS EXEMPT FROM INCOME, THEREFORE, THE ISSUE OF DEDUCTION U/S 54B HAD BECOME INFRUCTUOUS. 11. IN THE CROSS OBJECTION THE RESPONDENT ASSESSEE HAS SUPPORTED THE ORDER OF LEARNED CIT(APPEALS) AND ASK ED TO ALLOW THE CLAIM OF DEDUCTION U/S 54B OF I.T. ACT. IN VIEW OF THE ABOVE DECISION, THE CROSS OBJECTION DO NOT SURVIVE AND BECOME REDUNDANT. 12. REST OF THE APPEALS OF J.N. AGRAWAL, (HUF) (ITA NO. 199/BLPR/2012) AND APPEAL OF S.N. AGRAWAL (ITA NO. 200/BLPR/2012) FILED BY THE REVENUE DEPARTMENT ARE ALSO DISMISSED AND IN THE LIKE MANNER THE CROSS OBJECTIONS HAVE BECOME REDUNDANT. 10 ITA NOS. 197,199&200/BLPR/2012 CO NOS. 06, 04 & 05/BLPR/2013 13. IN THE RESULT, ALL THE APPEALS OF THE REVENUE AS WELL AS THE CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED. ORDER P RONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF MARCH, 2016. SD/ - SD/ - (SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31 ST MARCH, 2016. COPY FORWARDED TO : 1. M/S V.N. AGRAWAL, 2. M/S J.N. AGRAWAL, 3. M/S S.N. AGRAWAL C/O SHANTI PHOTOSTAT, TATYAPARA CHOWK, RAIPUR. 4. A.C.I.T./I.T.O. - 1(2), RAIPUR. 5. COMMISSIONER OF INCOME - TAX - , RAIPUR. 6. CIT(APPEALS), RAIPUR. 7. D.R., ITAT, RAIPUR. 8. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE.