I.T.O Wd - 49(3),kolkata., Kolkata V. Sri Bikash Chandra Maji., Kolkata

ITA 374/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99855 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 25-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K BISWAS JCIT SRDR
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Capital asset
• Section: 143(3); 2(14); 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 374 / KOL / 2013 ASSESSMENT YEAR :2008-09 ITO WARD-49(3), MANIKTALA CIVIC CENTRE, UTTARAPAN COMPLEX, 2 ND FLOOR, KOLKATA 700 054 V/S . SRI BIKASH CH. MAJI 42/G/13, B.C.CHATTERJEE, ST, BELGHARIA, KOLKATA 700 056 [ PAN NO.AFGPM 8447 N ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI M.K. BISWAS, JCIT, SR-DR /BY RESPONDENT SHRI MIRAJ D SHAH, AR /DATE OF HEARING 11-09-2015 /DATE OF PRONOUNCEMENT 07 -10-2015 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS ARISING OUT OF ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XXXII, KOLKATA IN APPEAL NO.131 /XXXII/10-11/49(3)/KOL DATED 03.12.2012. ASSESSMENT WAS FRAMED BY ITO WARD-49(3), KOLKATA U/S 143(3) OF THE INCOME TA X ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORD ER DATED 29.12.2010 FOR ASSESSMENT YEAR 2008-09. 2. THE ONLY ISSUE RAISED BY THE REVENUE IN THIS APP EAL THAT THE LD.CIT(A) HAS ERRED BY DELETING THE STCG OF RS. 9,7 1,011/- ARISING OUT OF THE SALE OF LAND OWNED BY THE ASSESSEE. ITA NO.374/KOL/2013 A.Y.2008-09 ITO WD-49(3), KOL. V. SH. BIKASH CH. MAJI PAGE 2 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND HAS INCOME FROM BUSINESS AND OTHER SOURCES. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE DISCLOSED THAT HE HAS PURCHASED CERTAIN AGRICULTURE LANDS DURING THE FINANCIAL YEAR 2005-06 AND 2006-07 AND SOLD THE AGRICULTURAL LAND IN THE FINANCIAL YEA R 2007-08. THE ASSESSEE GENERATED THE SHORT TERM CAPITAL GAIN ON T HE PURCHASE AND SALE OF AGRICULTURAL LAND. THE ASSESSEE CLAIMED EXE MPTION FROM THE INCOME TAX ON THIS SHORT TERM CAPITAL GAIN IN VIEW OF THE SECTION 2(14)(III) OF THE ACT BEING AGRICULTURAL LAND NOT AMOUNTING TO CAPITAL ASSETS. THE DETAILS OF THE LAND AND THE INCOME GENERATED ON THE SALE, PURCHASE OF THE SAME INTER ALIA WHICH ARE SUBJECT MATTER OF APPEAL, IS DETAILED AS UNDER : S. NO. NAME OF THE PLACE AREA OF THE LAND SHORT T ERM CAPITAL GAIN 1) CHANDIRAMPUR MOUZA 553 SATAK 9,35,878.00 2) NARAPATI PARA 14 SATAK 35,133.00 ---------------- TOTAL 971011.00 ========= THE AO TREATED THE ABOVE STATED LAND AS URBAN LAND CONSEQUENTLY STGC AROSE THEREON ADDED TO THE TOTAL INCOME OF THE ASSE SSEE. THE AO ALSO CITED THE REFERENCE OF THE CIRCULAR DIRECT TAXES CIRCULAR, VOLUME 1, PAGE NO. 51, S.NO. 16, AND ACCORDING TO IT THE ABOV E AREA OF THE LAND FALLS WITHIN 8 KMS UNDER THE JURISDICTION OF KALYAN I MUNICIPALITY. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE LD. CIT( A) WHO HAS DELETED THE ADDITION MADE BY THE AO ON THE GROUND THAT THE AFORESAID LAND DOES NOT FALL WITHIN THE 8 KMS OF THE NOTIFIED MUNICIPAL ITY. AGGRIEVED, REVENUE CAME IN APPEAL BEFORE THE TRIBUNAL. ITA NO.374/KOL/2013 A.Y.2008-09 ITO WD-49(3), KOL. V. SH. BIKASH CH. MAJI PAGE 3 4. BEFORE US, LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE AO WHEREAS LD. AR SUPPORTED THE ORDER OF LD. CIT(A) A ND SUBMITTED THAT IT IS THE AGRICULTURAL LAND AND IT IS NOT CAPITAL ASS ET WITHIN THE MEANING OF SECTION 2(14)(III) OF THE ACT. THE LAND IS LOCATED 8 KMS AWAY FROM THE BORDER OF KALYANI MUNICIPALITY WHICH IS NOTIFIED MU NICIPALITY. HENCE THE INCOME ARISING ON SUCH LAND IS EXEMPTED FROM TAX IN TERMS OF SECTION 10 OF THE ACT. 5. WE HAVE HEARD THE CONTENTIONS OF THE RIVAL PARTI ES AND EXAMINED THE FACT AND RECORDS OF THE CASE. THE LD. CIT(A) HA S DELETED THE STCG ON THE GROUND THAT THE LAND IS NOT SITUATED WITHIN BOUNDARY OF NOTIFIED MUNICIPALITY, HENCE NOT A CAPITAL ASSET. THE DEFINI TION OF THE CAPITAL ASSET HAS BEEN DEFINED UNDER SECTION 2(14) (III) OF THE A CT, WHICH READS AS UNDER : CAPITAL ASSET MEANS PROPERTY OF ANY KIND HELD BY AN ASSESSEE, WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFE SSION, BUT DOES NOT INCLUDE- (I) ANY SOCK-IN-TRADE, CONSUMABLE STORES OR RAW MAT ERIALS HELD FOR THE PURPOSES OF HIS BUSINESS OR PROFESSION. (II) PERSONAL EFFECTS THAT IS TO SAY, MOVABLE PROPE RTY (INCLUDING WEARING APPAREL AND FURNITURE) HELD FOR PERSONAL USE BY THE ASSESSEE OR ANY MEMBER OF HIS FAMILY DEPENDENT ON HIM, BUT EXCLUDES (A) JEWELLERY, (B) ARCHAEOLOGICAL COLLECTIONS; (C) DRAWINGS; (D) PAINTINGS; (E) SCULPTURES; OR (F) ANY WORK OF ART. EXPLANATION FOR THE PURPOSES OF THIS SUB-CLAUSE, JEWELLERY INCLUDES (A) ORNAMENTS MADE OF GOLD, SILVER, PLATINUM OR ANY OTHER PRECIOUS METAL OR ANY ALLOW CONTAINING ONE OR MORE OF SUCH P RECIOUS METALS, WHETHER OR NOT CONTAINING ANY PREVIOUS OR SEMI-PREC IOUS STONE, AND WHETHER OR NOT WORKED OR SEWN INTO ANY WEARING APPA REL; ITA NO.374/KOL/2013 A.Y.2008-09 ITO WD-49(3), KOL. V. SH. BIKASH CH. MAJI PAGE 4 (B) PREVIOUS OR SEMI-PRECIOUS STONES, WHETHER OR NO T SET IN ANY FURNITURE, UTENSIL OR OTHER ARTICLE OR WORKED OR SE WN INTO ANY E WEARING APPAREL;] (III) AGRICULTURAL LAND IN INDIA, NOT BEING LAND SITUATE (A) IN ANY AREA WHICH IS COMPRISED WITHIN THE JURIS DICTION OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MUNI CIPAL CORPORATION, NOTIFIED AREA COMMITTEE, TOWN AREA COM MITTEE, TOWN COMMITTEE, OR BY ANY OTHER NAME) OR A CANTONMENT BO ARD AND WHICH HAS A POPULATION OF NOT LESS THAN TEN THOUSAND ACCO RDING 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 MOR E THAN EIGHT KILOMETERS, FROM THE LOCAL LIMITS OF ANY MUNICIPALI TY OR CANTONMENT BOARD REFERRED TO IN ITEM (A), AS THE CENTRAL GOVER NMENT MAY, HAVING REGARD TO THE EXTENT OF, AND SCOPE FOR, URBA NIZATION OF THAT AREA AND OTHER RELEVANT CONSIDERATIONS SPECIFY IN T HIS BEHALF BY NOTIFICATION IN THE OFFICIAL GAZETTE; FROM THE AFORESAID PROVISIONS, IT IS CLEAR THAT THE AGRICULTURAL LAND IS CAPITAL ASSET AND SUBJECT TO TAX IF IT SITUATED WIT HIN THE BOUNDARY OF NOTIFIED MUNICIPALITY. THE LD. AO IN HIS REMAND REP ORT, SUBMITTED TO THE CIT(A), HAS RECORDED THAT THE SUBJECTIVE LANDS WERE LOCATED IN GAYESHPUR MUNICIPALITY. BUT AT THE SAME THE AO OMIT TED TO CHECK WHETHER THE GAYESHPUR MUNICIPALITY COMES UNDER THE NOTIFIED LIST ISSUED BY THE GOVERNMENT OF INDIA OR NOT. IT IS PERTINENT TO NOTE THAT THE GAYESHPUR MUNICIPALITY DOES NOT FALL UNDER THE CATE GORY OF NOTIFIED LIST, HENCE THE QUESTION OF TAXING THE AGRICULTURAL LAND DOES NOT ARISE. THEREFORE IN THE PRESENT CASE THE LANDS OF THE ASSE SSEE ARE LOCATED 8 KMS AWAY FROM THE KALYANI MUNICIPALITY WHICH IS DUL Y NOTIFIED MUNICIPALITY IN TERMS OF THE NOTIFICATION NO. SO 10 (E), DATED 06.01.1994, AS AMENDED BY NOTIFICATION NO. SO 1302, DATED 28-12 -1999.HENCE THE PROVISION OF INCOME TAX DOES NOT ATTRACT TO THIS IN COME OF THE ASSESSEE. IN VIEW OF ABOVE, WE ARE OF THE OPINION THAT THE AF ORESAID LANDS DO NOT FALL WITHIN THE JURISDICTION OF NOTIFIED MUNICIPALI TY AS CLAIMED BY THE AO. IN THE PRESENT CASE THE TEST TO CLASSIFY THE ASSETS AS AGRICULTURAL LAND OR NOT, ITA NO.374/KOL/2013 A.Y.2008-09 ITO WD-49(3), KOL. V. SH. BIKASH CH. MAJI PAGE 5 IS TO BE SEEN WITH REFERENCE TO THE LIMITS OF THE N OTIFIED MUNICIPALITY. THERE CAN BE A CASE THAT THE LAND IS LOCATED WITHIN THE JURISDICTION OF MUNICIPALITY I.E. WITHIN 8 KMS BUT THE SAME IS NOT NOTIFIED MUNICIPALITY. HENCE IN THE PRESENT CASE THE LAND IS 8 KMS AWAY FR OM THE NOTIFIED MUNICIPALITY SO THE STCG IS EXEMPTED FROM TAX. THIS GROUND OF REVENUES APPEAL IS DISMISSED. 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 0 7/10/2015 SD/- SD/- (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 07 /10/2015 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT-ITO, WD-49(3) MANIKTALA CIVIC CENTRE, UTTARAPAN COMPLEX, 2ND FLOOR, KOLKATA 70 0 054 2. / RESPONDENT-SRI BIKASH CH. MAJI 42/G/13, B.C.CHAT TERJEE, ST, BELGHARIA, KOL-56 3. * +, - - . / CONCERNED CIT KOLKATA 4. - - .- / CIT (A) KOLKATA 5. 012 33+,, - +, , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ - , /TRUE COPY/ / - +, ,