Chandra Brothers, Kanpur V. Dy. Commissioner of Income Tax, Kanpur

ITA 455/LKW/2013

• Counselvise Citation: 45523714 RSA 2013
• Duration Of Justice: 2 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 23-09-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 19-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Capital asset; Opportunity of being heard
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.455/LKW/2013 ASSESSMENT YEAR:2006-07 CHANDRA BROTHERS 84/105, G.T. ROAD KANPUR V. DY. CIT RANGE 2 KANPUR TAN/PAN:AABFC3002D (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. AMIT NIGAM, D.R. DATE OF HEARING: 23 09 2015 DATE OF PRONOUNCEMENT: 03 11 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS:- 1. BECAUSE THE LD. CIT (APPEALS) HAS ERRED ON FACTS AND IN LAW IN NOT CONSIDERING THE SUBMISSIONS FILED BY THE ASSESSEE APPELLANT AND WITHOUT APPRECIATING THE SAME HAS PROCEEDED TO DECIDE THE APPEAL, WHICH APPELLATE ORDER IS CONTRARY TO FACTS AND BAD IN LAW. 2. BECAUSE THE LD. CIT (APPEALS) HAS FAILED TO CONSIDER THE WRITTEN SUBMISSIONS AND DEMONSTRATE AS TO HOW THE WRITTEN SUBMISSIONS AND THE DETAILS FILED BY THE APPELLANT WERE NOT ADEQUATE OR EXPLANATORY, AS DESIRED BY HIM. 3. BECAUSE THE LD. CIT (APPEALS) HAS ERRED ON FACTS AND IN LAW IN NOT CONSIDERING THE EXPLANATION AS FILED BY THE ASSESSEE AND HAS ARBITRARILY CONCLUDED THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS IN ACCORDANCE TO LAW. :- 2 -: 4. THAT THE LD. CIT (APPEALS) HAS ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE FACTS OF THE CASE AND IN ENHANCING RS. 4826524/- FROM RS. 200000/-OUT OF TRANSPORTATION CHARGES U/S 40(A)(IA) OF THE I.T. ACT 1961 WHEREAS THE PROVISIONS OF THE SECTION 40(A)(IA) ARE NOT APPLICABLE IN OUR CASE. 5. THAT THE LD. CIT (APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING AN ADHOC DISALLOWANCE OF RS. 20000/- OUT OF VEHICLE IN USE EXPENSES. 6. THAT THE LD. CIT (APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING AN ADDITION OF RS. 14198/- BEING NOTIONAL DISALLOWANCE OF INTEREST ON BORROWED FUND U/S 36(1)(III) OF THE IT. ACT. 7. THAT THE LD. CIT (APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING AN ADHOC DISALLOWANCE OF RS. 250000/- OUT OF REPAIR AND MAINTENANCE EXPENSES. 8. THAT THE LD. CIT (APPEALS) HAS ERRED IN LAW AND ON FACTS IN TREATING SALE OF AGRICULTURE LAND TO BE A NON-AGRICULTURAL LAND AND CONFIRMING AN ADDITION OF RS. 1563000/- ON THIS ACCOUNT. 9. THAT THE LD. CIT (APPEALS) ERRED IN LAW AND ON FACTS IN NOT PROPERLY LOOKING INTO THE FACTS OF BROUGHT FORWARD LOSS AND OBSERVING THAT THE ISSUE HAS ALREADY BEEN CONSIDERED BY THE A.O. U/S 154 IN AS-MUCH-AS THE FULL CLAIM OF THE APPELLANT IN RESPECT OF BROUGHT FORWARD LOSS HAS NOT BEEN ALLOWED BY THE A.O. 2. GROUNDS NO.1 TO 3 ARE GENERAL IN NATURE AND NEED NO INDEPENDENT ADJUDICATION. 3. SO FAR AS GROUND NO.4 IS CONCERNED, WE FIND THAT THE ASSESSING OFFICER HAS MADE DISALLOWANCE OF RS.2 LAKHS OUT OF TRANSPORTATION CHARGES HAVING NOTED THAT THE TRANSPORTATION CHARGES AMOUNTING TO RS.48,26,524/- ARE NOT OPEN FOR VERIFICATION. 4. ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT(A) ASKED THE ASSESSEE TO JUSTIFY THE EXPENSES CLAIMED UNDER THE :- 3 -: HEAD TRANSPORTATION CHARGES. IN RESPONSE THERETO, THE ASSESSEE HAS FILED A LETTER DATED 18.2.2013 WHEREIN IT WAS STATED THAT THE ASSESSEE HAS ENTERED INTO AN AGREEMENT WITH M/S SOMDUTTA BUILDERS LTD. FOR TRANSPORTATION OF GITTI FROM THEIR STORAGE DESTINATION TO THE SITE OF THE CONSTRUCTIONS OF NATIONAL HIGHWAYS PROJECTS. THE ASSESSEE HAS TAKEN TRIPPERS OR DUMPERS ONLY FOR TRANSPORTATION OF SUCH MATERIAL AND THE DRIVERS DEPLOYED FOR RUNNING OF TRIPPERS/DUMPERS WERE PAID RS.1 PER KM ON THE TOTAL RUNNING PER TRIP SUBJECT TO A MINIMUM AMOUNT OF RS.10,000/- PER MONTH. ENQUIRY WAS ALSO MADE WITH REGARD TO THE DEDUCTION OF TDS ON TRANSPORTATION CHARGES OF RS.48.26 LAKHS AND IT WAS NOTICED THAT THE ASSESSEE HAS NOT DEDUCTED TAX AT SOURCE ON SUCH PAYMENTS. THE ASSESSEE WAS ASKED TO SUBMIT THE LEDGER COPY OF THE INDIVIDUALS ALONG WITH THE TRANSPORTATION CHARGES, BUT IT WAS NOT FILED. ONLY MONTHLY PAYMENT OF TRANSPORTATION CHARGES ALONG WITH FOUR PHOTOCOPIES OF THE DRIVERS BILL EACH AMOUNTING TO RS.10,000/- PER MONTH WERE FILED. THE ASSESSEE WAS ASKED TO PRODUCE THE BILLS ALONG WITH LEDGER AND VOUCHERS BUT IT WAS NOT FILED BEFORE THE LD. CIT(A) DESPITE VARIOUS OPPORTUNITIES AND THE LD. CIT(A) THEREAFTER CONCLUDED THAT THE REQUIRED TDS HAS NOT BEEN DEDUCTED ON THE PAYMENT OF TRANSPORTATION CHARGES OF RS.48.26 LAKHS. ACCORDINGLY HE INVOKED THE PROVISIONS OF SECTION 40(A)(IA) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') AND ENHANCED THE DISALLOWANCE TO RS.28.26 LAKHS FROM RS.2 LAKHS MADE BY THE ASSESSING OFFICER. 5. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AND THE LD. COUNSEL FOR THE ASSESSEE HAS RAISED MAIN OBJECTION TO THE ENHANCEMENT MADE BY THE LD. CIT(A) WITHOUT SERVING NOTICE OF ENHANCEMENT UPON THE ASSESSEE. ON MERIT, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT SINCE THE ASSESSEE WAS MAKING PAYMENT TO DRIVERS FOR TRANSPORTATION OF MATERIAL PURSUANT TO THE AGREEMENT, HE WAS :- 4 -: NOT REQUIRED TO DEDUCT TDS. THEREFORE, NO DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT IS CALLED FOR. 6. THE LD. D.R., ON THE OTHER HAND, HAS SUBMITTED THAT THE LD. CIT(A) HAS AFFORDED SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO JUSTIFY THE TRANSPORTATION CHARGES BY PLACING RELEVANT EVIDENCE, BUT THE ASSESSEE COULD NOT FILE THE SAME AND THE LD. CIT(A) HAS ACCORDINGLY MADE DISALLOWANCE OF RS.48.26 LAKHS HAVING INVOKED THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. SINCE THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY TO JUSTIFY ITS CLAIM, NO NOTICE OF ENHANCEMENT WAS REQUIRED. 7. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT UNDISPUTEDLY THE ASSESSING OFFICER HAS MADE DISALLOWANCE OF RS.2 LAKHKS OUT OF TRANSPORTATION CHARGES ON AD HOC BASIS HAVING NOTED THAT THE EXPENDITURES ARE NOT OPEN FOR VERIFICATION. BUT WHEN THE MATTER WAS TRAVELLED TO THE LD. CIT(A), THE LD. CIT(A) HAS EXAMINED THE ISSUE HAVING GIVEN OPPORTUNITY TO THE ASSESSEE TO PRODUCE THE RELEVANT EVIDENCE, BUT THE ASSESSEE COULD NOT PLACE SUFFICIENT EVIDENCE TO JUSTIFY THE EXPENSES AND ITS CLAIM OF NON-DEDUCTION OF TDS. THE LD. CIT(A) ACCORDINGLY MADE DISALLOWANCE OF THE ENTIRE PAYMENT OF RS.48.26 LAKHS HAVING INVOKED THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. 8. FROM A CAREFUL PERUSAL OF THE ORDER OF THE LD. CIT(A), WE DO NOT FIND ANY NARRATION WITH REGARD TO THE ISSUANCE OF NOTICE FOR ENHANCEMENT OF DISALLOWANCE. SINCE THE DISALLOWANCE RESULTED INTO ENHANCEMENT OF INCOME, THE LD. CIT(A) WAS REQUIRED TO ISSUE NOTICE OF ENHANCEMENT BEFORE ENHANCING THE DISALLOWANCE FROM RS.2 LAKHS TO RS.48.26 LAKHS. THEREFORE, ENHANCEMENT MADE BY THE LD. CIT(A) SUFFERS FROM IRREGULARITY, FOR WHICH THE ORDER OF THE LD. CIT(A) DESERVES TO BE SET ASIDE AND WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO ISSUE NOTICE OF :- 5 -: ENHANCEMENT OF DISALLOWANCE TO THE ASSESSEE AND THEREAFTER RE- ADJUDICATE THE ISSUE AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. APROPOS GROUND NO.5, IT IS NOTICED THAT THE ASSESSEE HAS CLAIMED VEHICLE RUNNING EXPENSES OF RS.1,41,292/- AND OUT OF THIS AMOUNT, THE ASSESSEE HAS PAID FBT OF RS.38,938/- AND THE REMAINING AMOUNT OF RS.1,02,534/- WAS NOT VERIFIABLE, AS THE PAYMENTS WERE MADE THROUGH SELF-MADE VOUCHERS, THEREFORE, DISALLOWANCE OF RS.20,000/- WAS MADE. 10. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), BUT THE ASSESSEE DID NOT FIND FAVOUR WITH HIM. 11. NOW THE ASSESSEE IS BEFORE US WITH THE SUBMISSION THAT THE VEHICLE RUNNING EXPENSES WERE INCURRED FOR THE BUSINESS PURPOSES OF THE ASSESSEE-COMPANY, THEREFORE, NO AD HOC DISALLOWANCE CAN BE MADE. SINCE THE ASSESSEE IS A PARTNERSHIP FIRM, THE ELEMENT OF PERSONAL USE OF VEHICLE CANNOT BE RULED OUT. WE ARE, HOWEVER, OF THE VIEW THAT THE DISALLOWANCE OF EXPENDITURE OF RS.20,000/- IS ON HIGHER SIDE. WE ACCORDINGLY REDUCE THE SAME TO RS.10,000/-. 12. APROPOS GROUND NO.6, IT IS NOTICED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER FOUND THAT INTEREST OF RS.57,50,617/- IS DEBITED TO THE PROFIT AND LOSS ACCOUNT AND ON VERIFICATION OF DETAILS, THE ASSESSING OFFICER HAS FOUND THAT THE ASSESSEE HAS CHARGED INTEREST @ 10% BUT HAS PAID INTEREST @ 10 TO 12%. FURTHER, THE ASSESSEE HAS MADE INVESTMENT OF RS.1,41,980/- IN SHARES OF THE SISTER CONCERN, THEREBY EQUIVALENT INTEREST @ 10% AMOUNTING TO RS.14,198/- WAS DISALLOWED BY THE ASSESSING OFFICER. 13. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WITH THE SUBMISSION THAT THE INTEREST WAS PAID BY THE ASSESSEE OUT OF SURPLUS FUNDS AND NOT FROM THE BORROWED FUNDS. THE LD. CIT(A) HAS :- 6 -: CONFIRMED THE DISALLOWANCE HAVING NOTED THAT THE ASSESSEE HAS NOT ESTABLISHED THAT THE INVESTMENT OF RS.1,41,980/- IN SHARES WAS MADE OUT OF SURPLUS FUNDS. 14. NOW THE ASSESSEE IS BEFORE THE TRIBUNAL, BUT NO EVIDENCE IS FILED TO JUSTIFY THAT THIS INVESTMENT WAS MADE OUT OF SURPLUS FUNDS. SINCE THE ASSESSEE HAS MADE PAYMENT ON BORROWED FUNDS, DISALLOWANCE @ 10% ON INVESTMENT IN SISTER CONCERN WAS RIGHTLY MADE BY THE LD. CIT(A). ACCORDINGLY WE CONFIRM THE ORDER OF THE LD. CIT(A) ON THIS ISSUE. 15. APROPOS GROUND NO.7, IT IS NOTICED THAT THE ASSESSEE HAS DEBITED RS.60,25,774/- UNDER THE HEAD REPAIR AND MAINTENANCE AND BILLS AND VOUCHERS FOR THE SAME WERE SELF-MADE AND UNVERIFIABLE IN NATURE. THEREFORE, THE ASSESSING OFFICER HAS MADE DISALLOWANCE OF RS.2.50 LAKHS. 16. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WITH THE SUBMISSION THAT THE BOOKS OF ACCOUNT ARE REGULARLY AUDITED, THEREFORE, THE DISALLOWANCE SHOULD NOT HAVE BEEN MADE. BUT BEFORE THE LD. CIT(A), THE ASSESSEE HAS NOT FILED ANY EVIDENCE IN SUPPORT OF ITS CLAIM. THE LD. CIT(A) ACCORDINGLY CONFIRMED THE DISALLOWANCE. 17. NOW THE ASSESSEE IS BEFORE US AND DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS REITERATED THE SUBMISSION THAT THE BOOKS OF ACCOUNT OF THE ASSESSEE ARE DULY AUDITED AND ALL EXPENSES ARE VERIFIABLE. 18. THE LD. D.R., ON THE OTHER HAND, HAS SUBMITTED THAT THE ASSESSEE HAS NOT FILED ANY EVIDENCE TO JUSTIFY THE EXPENSES, ONLY SELF-MADE VOUCHERS WERE MADE AS NOTED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THEREFORE, ONUS IS UPON THE ASSESSEE TO PROVE THE GENUINENESS OF THE CLAIM OF EXPENDITURE INCURED BY IT. :- 7 -: 19. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE ASSESSING OFFICER HAS SPECIFICALLY POINTED OUT THAT THE BILLS AND VOUCHERS FOR REPAIR AND MAINTENANCE ARE SELF-MADE VOUCHERS AND ARE UNVERIFIABLE IN NATURE. BEFORE THE LD. CIT(A), THE ASSESSEE HAS NOT PLACED ANY EVIDENCE TO PROVE THE GENUINENESS OF THE CLAIM. EVEN BEFORE US, NO SAMPLE VOUCHER IS FILED, WHEREFROM MODE OF PREPARATION OF VOUCHER CAN BE EVALUATED. SINCE THE ASSESSEE HAS MADE A PARTICULAR CLAIM OF EXPENDITURE, ONUS IS UPON THE ASSESSEE TO PROVE ITS GENUINENESS. SELF-MADE VOUCHERS FOR ENTIRE EXPENSES WILL NOT SERVE THE PURPOSE. WE ARE ACCORDINGLY OF THE VIEW THAT THE REVENUE HAS RIGHTLY MADE THE DISALLOWANCE HAVING CONCLUDED THAT THE BILLS AND VOUCHERS MAINTAINED FOR REPAIR AND MAINTENANCE EXPENSES ARE NOT OPEN FOR VERIFICATION. ACCORDINGLY WE CONFIRM THE ORDER OF THE LD. CIT(A). 20. APROPOS GROUND NO.8, IT IS NOTICED THAT THE ASSESSING OFFICER HAS FOUND, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THAT THE ASSESSEE HAS SHOWN SALE OF A PIECE OF LAND SITUATED AT LASHKAR, VILLAGE BITHOOR, PARAGANA TEHSIL, DISTT. KANPUR NAGAR FOR A CONSIDERATION OF RS.25 LAKHS. THE ASSESSEE HAS CLAIMED THAT THIS LAND IS AN AGRICULTURAL LAND AND IS SITUATED BEYOND 8KM FROM THE MUNICIPAL LIMITS. HOWEVER, THE ASSESSING OFFICER, ON VERIFICATION WITH TEHSILDAR, SADAR KANPUR NAGAR AS PER HIS LETTER DATED 26.12.2008, HAS FOUND THAT THE LAND IS SITUATED WITHIN 8KM OF THE MUNICIPAL LIMIT, THEREFORE, THE LAND CANNOT BE CATEGORIZED AS AGRICULTURAL LAND. ACCORDINGLY, HE CALCULATED THE LONG TERM CAPITAL GAIN AT RS.15.63 LAKHS. 21. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WITH THE SUBMISSION THAT THE LAND IS SITUATED OUTSIDE 8KM OF THE MUNICIPAL LIMIT. THEREFORE, NO CAPITAL GAIN CAN BE CHARGED ON THIS TRANSACTION, AS THE LAND IS AN AGRICULTURAL LAND. THE LD. CIT(A) WAS NOT :- 8 -: CONVINCED WITH THE CONTENTION OF THE ASSESSEE AND HE ACCORDINGLY CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 22. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AND DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS FILED AN AFFIDAVIT OF THE ASSESSEE ALONG WITH NOTIFICATION OF THE STATE GOVERNMENT DEFINING THE BOUNDARIES OF KANPUR CITY. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT AS PER NOTIFICATION, VILLAGE BITHOOR, IN WHICH THE LAND IS SITUATED, DO NOT FALL WITHIN THE BOUNDARY OF KANPUR, THEREFORE, THE LAND IS OUTSIDE THE LIMIT OF 8 KM FROM THE MUNICIPAL LIMIT OF KANPUR. THUS, NO CAPITAL GAIN CAN BE COMPUTED ON THE TRANSACTION OF THE SAID AGRICULTURAL LAND. 23. THE LD. D.R. HAS SUBMITTED THAT IN ORDER TO ASCERTAIN THE LOCATION OF THE LAND, THE ASSESSING OFFICER HAS CALLED A REPORT FROM THE TEHSILDAR AND THE TEHSILDAR HAS CATEGORICALLY STATED THAT THE IMPUGNED LAND IS SITUATED WITHIN 8KM FROM THE MUNICIPAL LIMIT OF KANPUR AND HAVING RELIED UPON THE REPORT OF THE TEHSILDAR, THE ASSESSING OFFICER HAS RIGHTLY COMPUTED THE LONG TERM CAPITAL GAIN. 24. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE ASSESSING OFFICER HAS OBTAINED THE REPORT OF THE TEHSILDAR WITH REGARD TO THE LOCATION OF LAND AND THE TEHSILDAR VIDE LETTER DATED 26.12.2008 CERTIFIED THAT THE LAND IS SITUATED WITHIN 8KM OF THE MUNICIPAL LIMIT. THE LD. COUNSEL FOR THE ASSESSEE HAS FILED AN AFFIDAVIT ALONG WITH NOTIFICATION OF THE STATE GOVERNMENT DEFINING THE BOUNDARY OF KANPUR CITY. IN ORDER TO DECIDE THE NATURE OF AGRICULTURAL LAND, WHETHER IT IS A CAPITAL ASSET OR NOT, THE LOCATION OF THE LAND IS TO BE SEEN. FROM THE AFFIDAVIT FILED BY THE ASSESSEE AND THE NOTIFICATION OF THE KANPUR CITY BOUNDARIES, IT IS NOT CLEAR WHETHER THE IMPUGNED AGRICULTURAL LAND FALLS OUTSIDE 8KM OF THE MUNICIPAL LIMIT OF KANPUR MUNICIPALITY. THROUGH THIS NOTIFICATION, KANPUR :- 9 -: BOUNDARIES HAVE BEEN IDENTIFIED BUT AREA OF KANPUR MUNICIPALITY IS NOT IDENTIFIED. MOREOVER, ONE HAS TO WORK OUT THE DISTANCE FROM THE BOUNDARY OF THE KANPUR MUNICIPALITY UPTO THE LAND. WHEREAS THE ASSESSING OFFICER HAS OBTAINED CERTIFICATE FROM THE TEHSILDAR, WHO IS COMPETENT TO FURNISH A CERTIFICATE WITH REGARD TO THE LOCATION OF THE AGRICULTURAL LAND BEFORE HOLDING THAT THE LAND IS SITUATED WITHIN 8KM OF THE MUNICIPAL LIMIT OF KANPUR. ONCE THE LAND IS SITUATED WITHIN 8KM OF THE MUNICIPAL LIMIT, THE LAND CERTAINLY FALLS WITHIN THE CATEGORY OF CAPITAL ASSET AND CAPITAL GAIN IS TO BE WORKED OUT. SINCE THE ASSESSEE HAS RAISED A CLAIM THAT IT IS AN AGRICULTURAL LAND AND DOES NOT FALLS WITHIN THE DEFINITION OF CAPITAL ASSET, THE ONUS IS UPON IT TO PLACE THE RELEVANT EVIDENCE BY OBTAINING A CERTIFICATE FROM THE CONCERNED AUTHORITY, BUT THE ASSESSEE HAS SIMPLY FILED AN AFFIDAVIT ALONG WITH NOTIFICATION OF THE BOUNDARIES OF KANPUR CITY WHEREFROM THE LOCATION OF THE LAND CANNOT BE VERIFIED. WE ARE ACCORDINGLY OF THE VIEW THAT THE LD. CIT(A) HAS RIGHTLY DISALLOWED THE CLAIM OF THE ASSESSEE IN THE GIVEN FACTS AND CIRCUMSTANCES. ACCORDINGLY WE CONFIRM HIS ORDER ON THIS ISSUE. 25. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 3 RD NOVEMBER, 2015 JJ:0710 :- 10 -: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR