ITO 5(3), Lucknow V. Shri Rajesh Kumar Gupta, Lucknow

ITA 669/LKW/2011

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9136 (ITAT-LUCKNOW)
• Duration Of Justice: 3 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-11-2014
• Assessment Year: misc
• Appeal Filed On: 11-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset

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.669/LKW/2011 ASSESSMENT YEAR:2008-09 INCOME TAX OFFICER 5(3) RANGE V LUCKNOW V. SHRI. RAJESH KUMAR GUPTA E-1/F-2, Y BLOCK RIVER BANK COLONY, LUCKNOW TAN/PAN:ADKPG1311 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. AMIT NIGAM, D.R. RESPONDENT BY: SHRI. RAKESH GARG, ADVOCATE DATE OF HEARING: 26 11 2014 DATE OF PRONOUNCEMENT: 06 02 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS:- 1. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN THE CASE IN TREATING THE LAND IN QUESTION AS AGRICULTURAL LAND WITHIN THE MEANING OF SECTION 2(14)(III)(6) OF THE I.T. ACT AND HENCE EXEMPT FROM CAPITAL GAINS TAX. 2. THE CIT(A) HAS ERRED IN LAW AND ON FACT IN CONSIDERING THE CERTIFICATE OF THE TEHSILDAR TO BE CORRECT EVEN THOUGH THE SAID CERTIFICATE DOES NOT GIVE THE DISTANCE OF THE LAND FROM THE 'MUNICIPAL LIMITS' OF KHURJA CITY WHICH IS THE RELEVANT POINT OF REFERENCE. IN THESE CIRCUMSTANCES THE DESCRIPTION IN THE SALE DEED THAT THE LAND WAS SITUATED ONLY ONE KM. FROM 'ABADI' SHOULD BE CONSIDERED TO BE CORRECT AND CAPITAL GAINS SHOULD BE CHARGED IN THE CASE. :- 2 -: 2. THE SOLE CONTROVERSY INVOLVED IN THIS APPEAL IS WITH REGARD TO THE LOCATION OF THE IMPUGNED LAND SOLD DURING THE IMPUGNED ASSESSMENT YEAR. 3. THE FACTS IN BRIEF BORNE OUT FROM THE RECORD ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS REQUIRED TO SUBMIT THE DETAILS REGARDING SALE OF AGRICULTURAL LAND AND IN RESPONSE THERETO PHOTOCOPY OF SALE DEED WAS FILED AND THE ASSESSING OFFICER HAS NOTED THAT SINCE THE LAND FALLS WITHIN 1KM FROM THE MUNICIPAL LIMITS AND APPROXIMATELY 8KM FROM THE RAILWAY STATION, IT IS OUTSIDE THE AMBIT OF AGRICULTURAL LAND AND ON ITS SALE CAPITAL GAIN IS TO BE CHARGED. 4. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND PLACED HEAVY RELIANCE UPON THE CERTIFICATE ISSUED BY THE TEHSILDAR AND CONTENDED THAT AS PER MODIFICATION BY THE C.B.D.T., THE LAND, WHICH FALLS OUTSIDE THE LIMIT OF 4KM DISTANCE FROM THE MUNICIPAL LIMIT, WOULD BE AN AGRICULTURAL LAND AND ON ITS SALE NO CAPITAL GAIN TAX IS TO BE CHARGED. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO CONTENDED THAT IN THE LIGHT OF THE CBDT CIRCULAR, SINCE MIRPUR VILLAGE, IN WHICH THE LAND IS SITUATED, IS 6KM AWAY FROM KHURJA CITY AS PER TEHSILDARS REPORT, THE IMPUGNED LAND IS AN AGRICULTURAL LAND AND ON ITS SALE THE CAPITAL GAIN WOULD NOT BE CHARGED. 5. THE LD. CIT(A), HAVING RELIED UPON THE TEHSILDARS CERTIFICATE IN THE LIGHT OF ASSESSEES CONTENTIONS, HAS HELD THAT THE LAND SITUATED IN VILLAGE MIRPUR IN KHURJA IS SITUATED BEYOND A DISTANCE OF 4KM FROM THE MUNICIPAL LIMITS OF KHURJA, THEREFORE, IT IS NOT A CAPITAL ASSET AND BEING AGRICULTURAL LAND, NO CAPITAL GAIN ARISES ON ITS TRANSFER. 6. AGGRIEVED, THE REVENUE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT IN THE SALE DEED AND IN HIS OWN APPLICATION SUBMITTED BEFORE THE ASSESSING OFFICER, THE ASSESSEE HAS ADMITTED THAT THE SOLD LAND IS 1KM AWAY FROM ABADI AND 8 KM AWAY FROM THE RAILWAY STATION. :- 3 -: HE HAS ALSO INVITED OUR ATTENTION TO THE SALE DEED, IN WHICH THERE IS A SPECIFIC NARRATION THAT THE SOLD LAND IS 1KM AWAY FROM THE ABADI AND 8KM AWAY FROM THE RAILWAY STATION AND 6KM AWAY FROM KHURJA. SINCE THE ASSESSEE HIMSELF HAS ADMITTED THAT THE LAND IS ONLY 1KM AWAY FROM THE ABADI, THE LAND CERTAINLY FALLS WITHIN 4KM FROM THE KHURJA MUNICIPAL LIMIT. THE LD. D.R. HAS ALSO INVITED OUR ATTENTION TO THE CERTIFICATE ISSUED BY THE TEHSILDAR, IN WHICH HE HAS SIMPLY MENTIONED THAT DISTANCE OF MIRPUR IN KHURJA IS 6KM AWAY FROM KHURJA. NOWHERE IT IS MENTIONED THAT MIRPUR VILLAGE IS SITUATED 6KM AWAY FROM THE MUNICIPAL LIMIT OF KHURJA MUNICIPALITY. IN THE ABSENCE OF SPECIFIC CERTIFICATE, THE CONTENTION OF THE ASSESSEE CANNOT BE ACCEPTED THAT THE LAND IS SITUATED IN A VILLAGE WHICH IS 6KM AWAY FROM THE MUNICIPAL LIMIT OF KHURJA MUNICIPALITY. THEREFORE, THE MATTER SHOULD BE SENT BACK TO THE ASSESSING OFFICER WITH A DIRECTION TO OBTAIN A CATEGORICAL CERTIFICATE ABOUT LOCATION OF THE AREA, IN WHICH THE LAND IS SITUATED IN ORDER TO DECIDE WHETHER THE IMPUGNED LAND FALLS WITHIN THE DEFINITION OF AGRICULTURAL LAND OR A CAPITAL ASSET. 7. THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A. BESIDES PLACING STRONG RELIANCE WAS UPON THE CERTIFICATE ISSUED BY THE TEHSILDAR, IT WAS CONTENDED THAT THE REVENUE AUTHORITIES ARE QUITE COMPETENT TO GIVE A CERTIFICATE ABOUT LOCATION OF THE LAND AND ACCORDING TO THE TEHSILDAR, THE LAND IS SITUATED IN MIRPUR VILLAGE AND MIRPUR VILLAGE IS 6KM AWAY FROM KHURJA. HE HAS FURTHER INVITED OUR ATTENTION TO THE NOTIFICATION BY THE CBDT, ACCORDING TO WHICH IN KHURJA, THE AREAS UPTO A DISTANCE OF 4KMS. FROM MUNICIPAL LIMITS IN ALL DIRECTIONS IS TO BE CONSIDERED TO DECIDE THE NATURE OF AGRICULTURAL LAND. SINCE THE LD. CIT(A) HAS ADJUDICATED THE ISSUE IN THE LIGHT OF REVENUE AUTHORITYS CERTIFICATE, THE SAME DESERVES TO BE CONFIRMED. 8. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT IN THE SALE DEED, THE ASSESSEE :- 4 -: HIMSELF HAS MENTIONED THAT THE SOLD LAND IS SITUATED 1KM AWAY FROM ABADI AND 8KM AWAY FROM THE RAILWAY STATION AND 6KM AWAY FROM KHURJA CITY. SIMILAR IS THE POSITION IN THE REPLY FILED BEFORE THE ASSESSING OFFICER. NOWHERE IT HAS BEEN MENTIONED ABOUT THE ACTUAL DISTANCE OF THE AREA IN WHICH THE LAND IS SITUATED FROM THE MUNICIPAL LIMIT. IT IS NOT CLEAR AS TO WHICH IS THE NEARBY MUNICIPAL LIMIT FROM WHICH THE DISTANCE OF AREA IN WHICH THE LAND IS SITUATED IS TO BE CALCULATED. IF IT IS KHURJA MUNICIPALITY, THEN DISTANCE IS TO BE COMPUTED FROM THE OUTER LIMIT OF KHURJA MUNICIPALITY FROM ALL DIRECTIONS AND IF THE LAND FALLS WITHIN 4KM FROM THE LIMIT OF KHURJA MUNICIPALITY, THE SAME LAND WOULD BE OUT OF DEFINITION OF AGRICULTURAL LAND. THE CERTIFICATE GIVEN BY THE TEHSILDAR SIMPLY TALKS ABOUT THE DISTANCE OF THE VILLAGE FROM KHURJA CITY. GENERALLY IN THE CITY, THE DISTANCE IS TO BE COUNTED FROM THE BUS STAND, ETC, BUT THE DISTANCE CANNOT BE COUNTED FROM THE MUNICIPAL LIMIT. WITH REGARD TO KHURJA IS CONCERNED, THERE IS A NOTIFICATION OF THE CBDT, IN WHICH AREA FOR THE PURPOSE OF URBAN LAND WAS REDUCED TO 4KM FROM THE MUNICIPAL LIMITS IN ALL DIRECTIONS. THEREFORE, FOR THE PURPOSE OF DETERMINING WHETHER THE SOLD LAND IS AN AGRICULTURAL LAND OR IS OUTSIDE THE DEFINITION OF AGRICULTURAL LAND ON ACCOUNT OF ITS LOCATION, THE DISTANCE OF THE VILLAGE IS TO BE COMPUTED FROM THE MUNICIPAL LIMIT OF KHURJA MUNICIPALITY IN ALL DIRECTIONS AND NOT FROM THE KHURJA CITY. THE MUNICIPAL LIMIT IS ALSO DEMARKED BY THE MUNICIPAL AUTHORITIES AND THIS FACT CAN BE VERIFIED FROM THE MUNICIPAL AUTHORITIES WHILE COMPUTING THE DISTANCE FROM THE MUNICIPAL LIMITS ABOUT THE VILLAGE IN WHICH THE LAND IS SITUATED. BEFORE US NONE OF THE AUTHORITYS CORRECT CERTIFICATE WAS FILED IN ORDER TO DECIDE THE LOCATION OF THE LAND. IN THE TEHSILDARS CERTIFICATE, THE DISTANCE WAS COUNTED FROM KHURJA CITY AND NOT FROM THE MUNICIPAL LIMIT. SIMILAR IS THE POSITION IN THE SALE DEED, IN WHICH THE ASSESSEE HIMSELF HAS STATED THAT THE LAND IS SITUATED IN A VILLAGE 1KM AWAY FROM ABADI OR 6KM AWAY FROM THE KHURJA CITY. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO :- 5 -: THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO MAKE NECESSARY ENQUIRIES FROM THE MUNICIPALITY AND REVENUE AUTHORITIES WITH REGARD TO THE LOCATION OF THE VILLAGE MIRPUR, IN WHICH THE IMPUGNED LAND IS SITUATED IN ORDER TO DECIDE WHETHER THE LAND FALLS WITHIN THE DEFINITION OF AGRICULTURAL LAND FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN. ACCORDINGLY, THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER TO RE-ADJUDICATE THE ISSUE AFRESH IN TERMS INDICATED ABOVE. 9. IN THE RESULT, APPEAL OF THE REVENUE IS 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: 6 TH FEBRUARY, 2015 JJ:0901 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR