Shri Sandeep Thanware, Nagpur V. Income Tax Officer Ward -2(2), Nagpur

ITA 72/NAG/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1040 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-10-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 12-03-2020
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Keywords: Capital asset

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, NAGPUR (AT e-Court, PUNE) BEFORE SHRI R.S. SYAL, VICE PRESIDENT ITA No.72/NAG/2020 निर्धारण वषा / Assessment Year : 2009-10 Shri Sandeep Thanware 262, Misal Layout, Jaripatka, Nagpur – 440014 PAN: ACLPT3830C Vs. ITO, Ward 2(2), Nagpur Appellant Respondent आदेश / ORDER PER R.S. SYAL, VP: This appeal by the assessee is directed against the order dated 20-01-2020 passed by the ld. CIT(A)-2, Nagpur, in relation to the assessment year 2009-10. 2. The only issue raised in this appeal is against the taxability of capital gain on the transfer of certain land claimed by the assessee as `agricultural land’ and hence beyond the scope of `capital asset’. 3. Briefly stated, the facts of the case are that the assessee along with one Shri Dilip Moon sold an agricultural land situated at Assessee by Ms Veena Agrawal Revenue by Shri G.J. Ninawe Date of hearing 11-10-2022 Date of pronouncement 12-10-2022 ITA No.72/NAG/2020 Shri Sandeep Thaware 2 Mauza Vedahari, P.H. No.38, Tah. Nagpur (Rural), Dist. Nagpur for total consideration of Rs.26 lacs on 13.06.2008. The Assessing Officer (AO) took cognizance of the stamp value of the property. By taking purchase consideration at Rs.1.60 lacs, he proceeded to compute the amount of capital gain. On being called upon to explain as to why the capital gain was not offered for taxation, the assessee submitted that the land in question was situated at a distance of 10 kms. from the municipal limits of Nagpur and hence out of purview of the term `capital asset’. In support of the contention, the assessee submitted a certificate from the Secretary of Gram Panchayat. The AO observed that the distance certified by the authority was only taken by road and it was not an aerial distance. He, therefore, computed the long term capital gain and made the addition. The assessee again reiterated before the ld. CIT(A) that the land in question was outside the municipal limits at a distance of 10 kms. In support of this, the assessee furnished the certificate issued by the Secretary, Gram Panchayat of the village. The ld. CIT(A) emphasized on furnishing a certificate to be issued either by Nagpur Municipal Corporation (NMC) or Nagpur Improvement Trust (NIT). In para 5.1.8, he took note of ITA No.72/NAG/2020 Shri Sandeep Thaware 3 some letter originally issued by the competent authority i.e. NIT, stating that the distance of the impugned land from municipal limits of Nagpur was well within 8 kms. He, therefore, confirmed the decision of the AO. 4. Having heard the rival contentions and perused the relevant material on record, it is seen that the view point of the AO for considering the aerial distance is not relevant for year under consideration, namely, A.Y. 2009-10. The amendment in this regard has been carried out by altering the definition of the term ‘capital asset’ w.e.f. A.Y. 2014-15. The CBDT has issued a circular dated 06.10.2015 instructing the Officers to consider the amendment prospectively from A.Y. 2014-15. In that view of the matter, the view of the AO for taking aerial distance is not tenable, which has rightly not been proceeded with by the ld. CIT(A). 5. Coming to the impugned order, it is seen that the ld. CIT(A) has referred to certain letter issued by the Nagpur Improvement Trust stating that the distance between the impugned land and municipal limits was well within 8 kms of the municipal limits. However, there is no mention in the impugned order either of the date or any reference number of such letter. The ld. AR submitted ITA No.72/NAG/2020 Shri Sandeep Thaware 4 that the ld. CIT(A) did not confront the assessee with such alleged letter, contrary to the certificate of the Secretary, Gram Panchayat of the village, nor was it discussed in the assessment order as well. On the contrary, she relied on certificate issued by the Secretary, Gram Panchayat to highlight that the land in question was at a distance of 10 kms from the municipal limits of Nagpur. On a specific query, the ld. DR also could not throw any light on the letter referred to by the ld. CIT(A) in para 5.1.8 of the impugned order which has been taken cognizance for rejecting the assessee’s contention. Under such circumstances, I am of the considered opinion that it would be in the fitness of things, if the impugned order is set aside and the matter is remitted to the file of the ld. CIT(A). I order accordingly and direct him to confront the assessee with such letter referred to in para 5.1.8 of his order and then decide the issue accordingly. 6. In the result, appeal is allowed for statistical purposes. Order pronounced in the Open Court on 12 th October, 2022. - Sd/- (R.S.SYAL) VICE PRESIDENT प ु णे Pune; ददिधांक Dated : 12 th October, 2022 GCVSR ITA No.72/NAG/2020 Shri Sandeep Thaware 5 आदेश की प्रतिलिपि अग्रेपिि/Copy of the Order is forwarded to: 1. अपीऱधर्थी / The Appellant; 2. प्रत्यर्थी / The Respondent; 3. The CIT(A)-1, Nagpur 4. 5. The Pr.CIT-1/2/3, Nagpur विभागीय प्रविविवि, आयकर अपीलीय अविकरण, Nagpur / DR, Nagpur 6. गार्ड फाईल / Guard file आदेशान ु सार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अविकरण ,पुणे / ITAT, Pune Date 1. Draft dictated on 11-10-2022 Sr.PS 2. Draft placed before author 12-10-2022 Sr.PS 3. Draft proposed & placed before the second member JM 4. Draft discussed/approved by Second Member. JM 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *