DCIT, Central Circle-1(4), Ahmedabad V. Shri Tushar Ravjibhai Patel, Ahmedabad

ITSSA 133/AHD/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9574 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 03-10-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 04-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Capital asset; Additional evidence; Tax effect
• Section: 50C; 2(14); 268A; 48

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ IT(SS)A NO. 132 /AHD/2018 WITH CO NO.111/AHD/2019 ASSTT.YEAR : 2013-14 DCIT, CENT.CIR.1(4) AHMEDABAD. VS SHRI RAVJIBHAI MANIBHAI PATEL 01, SARITA BUNGLOWS-3 OPP: DEWSHAVAR HOTEL MOTERA, SABARMATI AHMEDABAD 380 005. PAN : AALPP 3666 J ./ IT(SS)A NO. 133 /AHD/2018 WITH CO NO.112/AHD/2019 ASSTT.YEAR : 2013-14 DCIT, CENT.CIR.1(4) AHMEDABAD. VS SHRI TUSHAR RAVJIBHAI PATEL 01, SARITA BUNGLOWS-3 OPP: DEWSHAVAR HOTEL MOTERA, SABARMATI AHMEDABAD 380 005. PAN : ALUPP 1975 C / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI SAMIR TEKRIWAL, CIT-DR ASSESSEE BY : SHRI KARAN SHAH & MS.NUPUR SHAH / DATE OF HEARING : 07/01/2020 /DATE OF PRONOUNCEMENT : 08/ 01/2020 T(SS)A.NO.132 AND 133/AHD/2018 WITH CO - 2 O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : THE LD.CIT(A) HAS DECIDED THE APPEALS OF SHRI RAVJIBHAI MANILAL PATEL AND SHRI TU SHAR RAVJIBHAI PATEL FOR THE ASSTT.YEAR 2013-14 VIDE SEPARATE ORDERS DATED 6.3.2 018. BOTH THESE ORDERS HAVE BEEN CHALLENGED BY REVENUE VIDE IT(SS)A.NO.132 /AHD/2018 AND 133/AHD/2018. ON RECEIPT OF NOTICE, BOTH THE RESPO NDENTS HAVE FILED CROSS OBJECTION BEARING NO.111/AHD/2019 AND 112/AHD/2019. 2. APPEALS AND THE COS WERE LISTED FOR HEARING ON 3 .10.2019 WHEREIN IT WAS POINTED BY THE LD.COUNSEL FOR THE ASSESSEE THAT APPEAL IN THE CASE OF SHRI TUSHAR RAVJIBHAI PATEL IS NOT MAINTAINABLE BECAUSE TAX EFFECT BY VIRTUE OF RELIEF GIVEN BY THE LD.CIT(A) INVOLVED IN THIS APPEAL IS L ESS THAN RS.50 LAKHS, AND AS FAR AS CO FILED BY HIM WAS NOT PRESSED. SIMILARLY, IN THE CASE OF SHRI RAVJIBHAI MANILAL PATEL, CROSS OBJECTION WAS NOT PRESSED BY T HE ASSESSEE. ALL THESE APPEALS WERE HEARD AND ORDERS WERE RESERVED FOR PRO NOUNCEMENTS. HOWEVER, ON ACCOUNT OF INADVERTENT MISTAKE, APPEAL OF SHRI R AVJIBHAI MANILAL PATEL I.E. IT(SS)A.NO.132/AHD/2018 WAS TREATED AS NOT MAINTAIN ABLE ON ACCOUNT OF LOW TAX EFFECT, WHEREAS TAX EFFECT INVOLVED IN THIS APP EAL WAS MORE THAN THE PRESCRIBED LIMIT, AND IT WAS DULY MAINTAINABLE. ON RECEIPT OF ORDER IN THIS APPEAL, THE ASSESSEE HAS FILED AN APPLICATION VIDE WHICH THEY HAVE POINTED OUT ERROR CREPT IN ORDER OF THE TRIBUNAL DATED 3.10.201 9 VIDE WHICH IT(SS)A.NO.132/AHD/2018 ALONG WITH CO NO.111/AHD/20 19 WAS ALLOWED TO BE DISMISSED. ON RECEIPT OF THIS APPLICATION, THE TRIBUNAL HAS RE-FIXED ALL THESE APPEALS FOR HEARING VIDE ORDER DATED 10.12.2019 OBS ERVING AS UNDER: 10.12.2019 IT(SS)A.NO.132/AHD/2018 IS DIRECTED AT THE INSTANCE OF THE REVENUE AGAINST THE ORDER OF THE LD.CIT(A) DATED6.3 .2018 IN THE CASE OF SHRI RAVJIBHAI M. PATEL. ON RECEIPT OF NOTICE, THE ASSESSEE HAS FILED CO BEARING NO.111/AHD/2019. SIM ILARLY, IT(SS)A.NO.133/AHD/2018 IS DIRECTED AT THE INSTANCE OF REVENUE AGAINST THE ORDER OF THE LD.CIT(A) DATED 6. 3.2018 FOR T(SS)A.NO.132 AND 133/AHD/2018 WITH CO - 3 THE ASSTT.YEAR 2013-13 IN THE CASE OF TUSHAR RAVJIB HAI PATEL. ON RECEIPT OF NOTICE, THE ASSESSEE HAS FILED CO BEA RING NO.112/AHD/2019. ALL THESE FOUR APPEALS WERE HEARD TOGETHER BY THE TRIBUNAL ON 3.10.2019. 2. THE TAX EFFECT IN THE APPEAL OF SHRI TUSHAR RAVJ IBHAI PATEL WAS LESS THAN RS.50 LAKHS, AND THE LD.COUNSEL FOR THE ASSESSEE DID NOT PRESS THE CO. THEREFORE, THIS APP EAL ALONG WITH CO WAS TO BE DISMISSED ON ACCOUNT OF LOW TAX E FFECT INVOLVED IN IT. HOWEVER, WHILE DRAFTING THE ORDER, AN APPARENT TYPOGRAPHICAL ERROR WAS CREPT IN THE CAUSE TITLE OF THE ORDER IN THE CASE OF RAVJIBHAI M. PATEL IN IT(SS)A.NO.132/AH D/2018 ALONG WITH CO NO.111/AHD/2019 HAS BEEN NOTED. THIS APPEAL ALONG WITH CO HAS BEEN DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN IT. IN FACT THE TAX EFFECT IN THIS APPEA L IS MORE THAN THE MONETARY LIMIT, AND OUGHT NOT TO HAVE BEEN DISMISSE D BY APPLYING CBDT INSTRUCTION NO.17 OF 2019. THIS FAC T HAS BEEN BROUGHT TO OUR NOTICE BY THE LD.COUNSEL FOR THE ASS ESSEE VIDE LETTER DATED 22.10.2019. IT HAS BEEN PRAYED THAT C ORRIGENDUM BE ISSUED WHEREBY TITLE IN PLACE OF SHRI RAVJIBHAI MANIBHAI PATEL, TUSHAR RAVJIBHAI PATEL BE INCORPORATED. SI MILARLY, APPEAL NUMBER VIZ. IT(SS)A.NO.132/AHD/2018 HAS BEEN SOUGHT TO BE REPLACED WITH IT(SS)A.NO.133/AHD/2018. 3. REGISTRY HAS PLACED A RECORD BEFORE US ALONG WIT H THE APPLICATION. WE FIND THAT AN APPARENT ERROR HAS CR EPT IN. APPEAL WHICH HAS BEEN DISMISSED ON ACCOUNT OF LOW T AX EFFECT OUGHT NOT TO HAVE BEEN DISMISSED, AND DESERVES TO B E DECIDED ON MERIT. THE APPEAL I.E. IT(SS)A.NO.133/AHD/2018 AND CO NO.112/AHD/2019 PENDING ADJUDICATION ON MERIT DESER VES TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT. CONSID ERING THIS DISCREPANCY, WE DEEM IT APPROPRIATE TO ISSUE NOTICE TO THE REVENUE AND LIST ALL THESE APPEALS FOR CLARIFICATIO N ON 7 TH JANUARY, 2020. REGISTRY IS DIRECTED TO INFORM BOTH THE PARTIES, AND SUPPLY COPY OF THIS ORDER TO BOTH THE PARTIES, INCLUDING THE ASSESSING OFFICER. SD/- SD/- (AM) (JM) 3. AFTER HEARING THE PARTIES, AND DUE CONSIDERATION OF THE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT WHILE DISPOS ING OF THE IT(SS)A.NO.132/AHD/2018 ALONG WITH CO NO.111/AHD/20 19, THE TRIBUNAL HAS COMMITTED APPARENT ERROR. IT HAS DISPOSED OF T HE APPEAL BY TREATING IT AS IF T(SS)A.NO.132 AND 133/AHD/2018 WITH CO - 4 TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS. 50 LAKSH, WHEREAS TAX EFFECT IS MORE THAN RS.50 LAKHS. THEREFORE, WE RECALL ORDER OF THE TRIBUNAL DATED 3.10.2019 AND RESTORE THIS APPEAL AS WELL AS CO TO THEIR RESPECTIVE ORIGINAL NUMBERS, AND PROCEED TO DECIDE BOTH THESE APPEALS A S WELL AS CROSS OBJECTION AFRESH. 4. IT(SS)A NO.133/AHD/2018 AND CO NO.112/AHD/2019 5. IN THIS APPEAL, REVENUE IS AGGRIEVED BY ACTION OF THE LD.CIT(A) IN DELETING THE ADDITION OF RS.55.00 LAKHS MADE ON ACC OUNT OF UNEXPLAINED INVESTMENT. 6. ADMITTEDLY, TAX EFFECT INVOLVED IN THIS APPEAL I S LESS THAN RS.50 LAKHS. RECENTLY, CBDT CIRCULAR NO.17 OF 2019 DATED 8.8.201 9 HAS DIRECTED THE DEPARTMENT NOT TO FILE APPEAL BEFORE THE TRIBUNAL W HERE TAX EFFECT IS BELOW RS.50 LAKHS. THIS INSTRUCTION IS APPLICABLE TO THE PENDING CASES ALSO. THEREFORE, THE PRESENT APPEAL OF THE REVENUE IS LIA BLE TO BE DISMISSED AT THE THRESHOLD. THE LD.DR DID NOT DISPUTE APPLICABILIT Y OF THE RECENT CBDT CIRCULAR AND LEFT TO THE TRIBUNAL TO PASS APPROPRIA TE ORDER IN THE MATTER. 7. AFTER HEARING BOTH THE SIDES AND AFTER PERUSAL O F THE ABOVE CBDT INSTRUCTION, WE ARE OF THE VIEW THAT THE PRESENT AP PEAL OF THE REVENUE FALLS WITHIN THE PURVIEW OF THE CBDT INSTRUCTION CITED (S UPRA). IT IS NOT DISPUTED BY THE REVENUE THAT TAX EFFECT ON THE TOTAL DISPUTE D ADDITION IS MORE THAN RS.50 LAKHS, AND THEREFORE, KEEPING IN VIEW THE ABO VE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT, W E ARE OF THE VIEW THAT THE PRESENT APPEAL OF THE REVENUE DESERVES TO BE DISMIS SED. IT IS DISMISSED. 8. HOWEVER, IT IS OBSERVED THAT IN CASE ON RE-VERIF ICATION AT THE END OF THE AO IT CAN BE DEMONSTRATED THAT THE TAX EFFECT IS MO RE, OR REVENUES CASE FALLS T(SS)A.NO.132 AND 133/AHD/2018 WITH CO - 5 WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRC ULAR, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR REC ALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN THE TIME PERIOD PRESCRIBED IN THE ACT. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DIS MISSED DUE TO LOW TAX EFFECT. 9. NOW WE TAKE IT(SS)A.NO.132/AHD/2018 WITH CO NO.1 11/AHD/2019 IN THE CASE OF SHRI RAVJIBHAI MANILAL PATEL. 10. IN THE FIRST GROUND OF APPEAL, THE REVENUE IS C HALLENGING DELETION OF ADDITION OF RS.10.00 MADE BY THE AO ON ACCOUNT OF A LLEGED BROKERAGE INCOME. 11. BRIEF FACTS IN THIS REGARD ARE THAT A SEARCH UN DER SECTION 132 OF THE INCOME TAX ACT WAS CARRIED OUT AT THE PREMISES OF S HRI TUSHARBHAI RAVJIBHAI PATEL (SON OF THE ASSESSEE), AND DOCUMENT RELATING TO THE ASSESSEE WAS FOUND FROM HIS PREMISES. ACCORDINGLY, ASSESSMENT PROCEED ING UNDER SECTION 153C WAS INITIATED AGAINST THE ASSESSEE. AFTER ISSUANCE OF NOTICES, ASSESSEE FILED RETURN OF INCOME ELECTRONICALLY SHOWING INCOME AT R S.14,21,630/-. DURING THE ASSESSMENT PROCEEDINGS, IT WAS NOTICED BY THE AO TH AT ON THE BASIS OF INFORMATION RECEIVED, ONE SHRI HEMANTKUMAR UMEDBHAI PATEL HAD DEBITED COMMISSION EXPENSES TO THE TUNE OF RS.10 LACS BEING COMMISSION PAID TO THE ASSESSEE. HOWEVER, THE SAME WAS REFLECTED IN THE B OOKS OF THE ASSESSEE. TO THE SHOW CAUSE NOTICE, THE ASSESSEE EXPLAINED THAT THE COMMISSION RECEIPT WAS DULY REFLECTED IN THE BOOKS OF THE ACCOUNTS AND OFF ERED FOR TAXATION. THE LD.AO DID NOT ACCEPT THIS EXPLANATION OF THE ASSESS EE AND MADE THE IMPUGNED ADDITION. HOWEVER, THE SAME DELETED BY THE LD.CIT (A). THE LD.CIT(A) WHILE DELETING THE ADDITION HAS OBSERVED THAT ADDITION MA DE BY THE AO WAS ON THE BASIS OF INFORMATION RECEIVED AT THE TIME OF ASSESS MENT PROCEEDINGS, WHICH WAS NOT SUPPORTED BY ANY EVIDENCE. HE ALSO OBSERVE D THAT THE EXPLANATION OF T(SS)A.NO.132 AND 133/AHD/2018 WITH CO - 6 THE ASSESSEE WAS VERIFIABLE AND THE DETAILS OF BANK STATEMENTS WERE ALSO FILED DURING THE ASSESSMENT TO SUPPORT THE CLAIM OF THE A SSESSEE. 12. BEFORE US, BOTH THE PARTIES HAVE SUPPORTED RESP ECTIVE ORDERS OF THE REVENUE AUTHORITIES. 13. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE T HROUGH THE RECORD CAREFULLY. WE FIND THAT THE IMPUGNED ADDITION OF R S.10.00 LAKHS BEING THE ALLEGED BROKERAGE COMMISSION, WAS MADE BY THE AO ON THE BASIS OF INFORMATION RECEIVED DURING THE COURSE OF ASSESSMEN T PROCEEDINGS. THE ASSESSEE HAS EXPLAINED THAT THIS COMMISSION WAS REF LECTED IN THE BOOKS OF ACCOUNTS AND INCLUDED IN THE COMMISSION RECEIPT BY THE ASSESSEE AND OFFERED TO TAX. THIS ASPECT HAS BEEN CONSIDERED BY THE L D.CIT(A) ON THE BASIS OF EXPLANATION AND BANK STATEMENTS FURNISHED DURING TH E COURSE OF ASSESSMENT PROCEEDINGS AND FOUND THAT THE ADDITION WAS BEING M ADE WITHOUT ANY EVIDENCE, AND THEREFORE, UNJUSTIFIED. BEFORE US AL SO, THERE IS NO MATERIAL TO JUSTIFY ACTION OF THE AO FOR MAKING THE IMPUGNED AD DITION. IN A PROCEEDING UNDER SECTION 153C, NO ADDITION CAN BE MADE IN THE ABSENCE OF ANY INCRIMINATING MATERIAL. UNDISPUTEDLY, THERE IS NO MATERIAL EVIDENCE WITH THE AO TO MAKE THE IMPUGNED ADDITION. THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) ON THIS ISSUE. IT IS CONFIRMED. 14. IN GROUND NO.2 AND 3, REVENUE HAS PLEADED THAT THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.2,54,59,000/- WHICH WAS ADDED BY THE AO WITH AID OF SECTION 50C. ACCORDING TO THE REVENUE, THE LD.CIT(A) HAS ERRED IN ADMITTING ADDITIONAL EVIDENCE UNDER RULE 46A AND DE LETING THE ABOVE ADDITION. T(SS)A.NO.132 AND 133/AHD/2018 WITH CO - 7 15. BRIEF FACTS OF THE CASE ARE THAT DURING THE COU RSE OF SEARCH IN THE CASE OF TUSHARBHAI RAVJIBHAI PATEL (SON OF THE ASSESSEE) WH O RESIDES ALONG WITH THE ASSESSEE, ONE ANNEXURE INVENTORISED AS A/1 CONTAI NING 122 PAGES WAS FOUND AND SEIZED. AS PER THE NOTING AVAILABLE AT P AGE NOS.27 TO 48 IT REVEALED TO THE AO THAT LAND AT AMIYAPUR WAS SOLD WHOSE SALE VALUE WAS RS.21,51,000/-. THE STAMP DUTY PAID ON THIS LAND W AS AT RS.13,80,500/-. THE AO FURTHER FOUND THAT STAMP DUTY WAS FOUND AT THE R ATE OF 5%, AND THEREFORE, CORRESPONDING SALE VALUE AS PER SECTION 50C OF THE ACT WORKED OUT TO RS.2,76,10,000/- AS AGAINST RS.21,51,000/- SHOWN BY THE ASSESSEE. HE THEREFORE WORKED OUT LONG TERM CAPITAL GAIN ON THE BASIS OF S ECTION 50C AT RS.2,62,15,832/-, AFTER DEBITING THE LONG TERM CAPI TAL GAIN SHOWN BY THE ASSESSEE AT RS.7,56,832/-. THE LD.AO CONFRONTED TH E ASSESSEE TO EXPLAIN AS TO WHY AN ADDITION ON ACCOUNT OF CAPITAL GAIN AT RS.2, 54,59,000/- BE NOT MADE. AFTER HEARING THE ASSESSEE, THE LD.AO HAS MADE ADDI TION OF THE ABOVE AMOUNT. DISSATISFIED WITH THE ABOVE, THE ASSESSEE CARRIED T HE MATTER IN APPEAL BEFORE THE LD.CIT(A). HE CONTENDED THAT THE LAND SOLD WAS AN AGRICULTURE LAND, AND IT WAS SITUATED BEYOND 8 KMS. OF MUNICIPAL LIMIT. THU S, IT WAS NOT A CAPITAL ASSET AND NO LONG TERM CAPITAL GAIN TAX IS ASSESSABLE IN HIS HAND. SUBMISSIONS MADE BY THE ASSESSEE HAVE BEEN DULY BEEN NOTED BY THE LD .CIT(A), AND THEREAFTER, THE LD.CIT(A) ACCEPTED THE CONTENTIONS OF THE ASSES SEE BY OBSERVING AS UNDER: 5.2. THE SUBMISSION OF THE APPELLANT ALONG WITH SU PPORTING EVIDENCES, FACTS OF THE CASE AND ASSESSMENT ORDER HAVE BEEN CONSIDERED CAREFULLY AND IN TOTALITY. THE A.O MADE THE ADDITION ON THE BASIS OF PAGE NO. 2 7 TO 48 OF ANNEXURE A/1 FOUND IN THE CASE OF SON OF THE APPELLANT SHRI TUSH AR PATEL WHICH SHOWS THE SALE OF AGRICULTURAL LAND AT VILLAGE AMIAPUR, DIST - SUB . DIST. GANDHINAGAR AND THE LOCATION OF THE LAND HAS BEEN CLEARLY STATED IN THE SALE DEED. ONCE THE AGRICULTURAL LAND AT VILLAGE ARNIAPUR, DIST - SUB. DIST. GANDHINAGAR IS SITUATED BEYOND 8 KMS FROM GANDHINGART AND THE POPU LATION OF VILLAGE AMIYAPUR IS 1799 WHICH IS LESS THAN 10,000 AND THERE FORE, THE AGRICULTURAL LAND SITUATED AT VILLAGE AMIYAPUR WHICH HAS BEEN SOL D BY APPELLANT, WHICH IS THE ISSUE UNDER CONSIDERATION, DOES NOT FALL IN THE DEFINITION OF THE CAPITAL ASSETS AS PER PROVISIONS OF SECTION 2(14)(III) OF THE IT. ACT , 1961 AND AS PER THE CBDT T(SS)A.NO.132 AND 133/AHD/2018 WITH CO - 8 NOTIFICATION NO. 9447 DATED 06.01.1994. ON THE BASI S OF THE FACTS AVAILABLE BEFORE ME, I AM IN AGREEMENT WITH THE CONTENTION OF THE APPELLANT THAT THE AGRICULTURAL LAND SITUATED AT AMIYAPUR VILLAGE, WHIC H IS NOT A CAPITAL ASSETS AS PER PROVISIONS OF SECTION 2(14)(III) OF THE ACT AND HE NCE, AS PER PROVISIONS OF SECTION 2(14)(III) OF THE ACT, THE SALE OF AGRICULTURA L LAND AT VILLAGE AMIYAPUR BY THE APPELLANT BEING NOT A CAPITAL ASSET IS NOT S UBJECT TO CAPITAL GAIN TAX AND THEREFORE, INVOCATION OF PROVISIONS OF SECTION 50C OF THE IT. ACT BY THE A.O IS BAD IN LAW. THE APPELLANT HAS ALSO TAKEN AN ALTERNA TIVE ARGUMENTS THAT IN THE CASE OF APPELLANT THE PROCEEDINGS WERE CARRIED OUT U/S. 153C'OF THE ACT, WHICH IS A SPECIAL PROVISION INCORPORATED IN THE ACT TO D ETERMINE THE UNDISCLOSED INCOME ON THE BASIS OF ANY INCRIMINATING MATERIAL F OUND AND SEIZED DURING THE COURSE OF SEARCH PROCEEDINGS. THE AO IN THE ASSESSME NT ORDER HAS NOT IDENTIFIED ANY INCRIMINATING MATERIAL AS REGARDS TO ANY SALES CONSIDERATION BEING RECEIVED OVER AND ABOVE THE SALES CONSIDERATION STATED IN TH E SALE DEED FOR SALE OF AGRICULTURAL LAND AT VILLAGE AMIYAPUR, DIST. SUB.DIS T GANDHINGAR. IN THE PRESENT CASE AS THE AGRICULTURAL LAND AT VILLAGE AMI YAPUR, DIST. SUB.DISTGANDHINGAR IS NOT A CAPITAL ASSETS AS PER P ROVISIONS OF SECTION 2(14)(III) OF THE ACT AND HENCE, SALE OF SUCH AGRICUL TURAL LAND IS NOT SUBJECT TO CAPITAL GAIN TAX, THEREFORE, THE ADDITION MADE BY T HE AO BY INVOKING THE DEEMING PROVISION OF SECTION 50C OF THE ACT ON ACCO UNT OF CAPITAL GAIN OF RS. 2,54,59,000/- IN THE HANDS OF THE APPELLANT IS NOT TENABLE ON FACTS AND AS PER LAW AS WELL AS ON THE BASIS OF JUDICIAL PRONOUNCEME NTS RELIED UPON BY THE APPELLANT AND THEREBY DELETED. THUS, THIS GROUND OF APPEAL IS ALLOWED. 16. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. SECTION 2(14) OF THE INCOME TAX ACT, PROVIDES DEFINITION OF EXPRESSION CAPITAL ASSET. THE RELEVANT CLAUSE FO R THE CONTROVERSY IN HAND IS SUB-CLAUSE (III) OF SUBSECTION-(14) OF SECTION 2. THIS CLAUSE DEFINES THE MEANING OF AGRICULTURE LAND, WHETHER IT IS TO BE INCLUDED I N THE DEFINITION OF CAPITAL ASSET OR NOT. THIS DEFINITION READS AS UNDER: (III) AGRICULTURAL LAND IN INDIA, NOT BEING LAND SIT UATE (A) IN ANY AREA WHICH IS COMPRISED WITHIN THE JURISD ICTION 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 BOA RD AND WHICH HAS A POPULATION OF NOT LESS THAN TEN THOUSAND ; OR (B) IN ANY AREA WITHIN THE DISTANCE, MEASURED AERIAL LY, T(SS)A.NO.132 AND 133/AHD/2018 WITH CO - 9 (I) NOT BEING MORE THAN TWO KILOMETRES, FROM THE LO CAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITE M (A) AND WHICH HAS A POPULATION OF MORE THAN TEN THOUSAND BU T NOT EXCEEDING ONE LAKH; OR (II) NOT BEING MORE THAN SIX KILOMETRES, FROM THE LO CAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITE M (A) AND WHICH HAS A POPULATION OF MORE THAN ONE LAKH BUT NO T EXCEEDING TEN LAKH; OR (III) NOT BEING MORE THAN EIGHT KILOMETRES, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM (A) AND WHICH HAS A POPULATION OF MORE THAN TEN LAKH. EXPLANATION.FOR THE PURPOSES OF THIS SUB-CLAUSE, ' POPULATION' MEANS THE POPULATION ACCORDING TO THE LAST PRECEDIN G CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBLISHED BEFO RE THE FIRST DAY OF THE PREVIOUS YEAR; 17. THE ABOVE CLAUSE WOULD INDICATE THAT IF AN AGRI CULTURE LAND IS SITUATED BEYOND 8 KMS. FROM THE LOCAL LIMIT OF ANY MUNICIPAL OR CANTONMENT AREA, WHOSE POPULATION IS MORE THAN RS.10 LAKHS, THEN THA T WOULD NOT FALL WITHIN THE AMBIT OF DEFINITION CAPITAL ASSETS. THIS DEMA RCATION OF THE GEOGRAPHICAL SITUATION OF THE LAND IS TO BE SEEN FROM THE BOUNDA RY NOTIFIED BY THE CBDT IN ITS GAZETTE NOTIFICATION. IT WAS BROUGHT TO THE NO TICE OF THE LD.CIT(A) THAT THE CBDT HAS NOTIFIED BOUNDARY FROM WHERE IT IS TO BE M EASURED VIDE NOTIFICATION NO.9447 DATED 6.1.1994. THEREAFTER, IT HAS NOT BE EN REVISED, AND FROM THAT BOUNDARY LIMIT, GEOGRAPHICAL SITUATION OF THE MAINL AND WAS BEYOND 8 KMS. HENCE, IT WAS NOT A CAPITAL ASSET. AS FAR AS ADMIS SION OF ADDITIONAL EVIDENCE IS CONCERNED, IF THE LD.CIT(A) HAS ENTERTAINED THE NOT IFICATION NO.9447 FOR DETERMINING THE GEOGRAPHICAL SITUATION OF THE LAND OF THE ASSESSEE, THEN TO OUR MIND, THIS TYPE OF MATERIAL CAN BE CONSIDERED BY TH E LD.CIT(A) UNDER RULE SUB-RULE (4) OF RULE 46A, AND THERE CANNOT BE ANY V IOLATION AT THE END OF THE LD.CIT(A). CONSIDERING ALL THESE ASPECTS, WE ARE O F THE VIEW THAT THE LD.CIT(A) HAS CONSIDERED THE ISSUE ANALYTICALLY AND RECORDED A CATEGORICAL FINDING THAT THE LAND IN DISPUTE WAS SITUATED BEYOND 8 KMS. AND IT WAS NOT A CAPITAL ASSET T(SS)A.NO.132 AND 133/AHD/2018 WITH CO - 10 ON WHOSE TRANSFER CAPITAL GAIN CAN BE ASSESSED IN T HE HANDS OF THE ASSESSEE. WE DO NOT FIND ANY ERROR IN THE ORDER OF THE LD.CIT (A). ACCORDINGLY, THE APPEAL OF THE REVENUE IS DISMISSED. 18. IN THE RESULT, BOTH APPEALS OF THE REVENUE AND COS OF THE ASSESSEE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 8 TH JANUARY, 2020 SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER