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TMI Blog2012 (11) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... from the BBMP limits - in favour of the assessee - I.T.A. No.35/Bang/2011 - - - Dated:- 25-5-2012 - SMT. P. MADHAVI DEVI, SHRI JASON P. BOAZ, JJ. Appellant By : Dr. Deepak, R.L. Respondent By : Shri K.S. Hanumantha Rao. O R D E R Per Shri Jason P. Boaz, A.M. : This appeal by the Revenue is directed against the order of the Commissioner of Income Tax (Appeals)-V, Bangalore dated 11.11.2010 for the Assessment Year 2005-06. 2. The facts of the case, in brief, are as under : 2.1 The assessee had not filed its return of income for Assessment Year 2005-06 in the time prescribed under section 139(1) of the Income Tax Act, 1961 (herein after referred as 'the Act'). The case was selected for scrutiny on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs. When the Assessing Officer proposed to tax the transactions as Short Term Capital Gains (STCG), the assessee contended that since the property was agricultural land and is situated beyond 8 kms from the municipal limits of Bruhat Bangalore Mahanagar Palike (BBMP), the provisions of section 2(14)(iii) of the Act were not attracted. The Assessing Officer did not accept the explanation of the assessee, holding that since the said land is situated within 8 kms from the limits of Bommanahalli Municipal Corporation, the said transaction would be liable to be taxed for capital gains even though the land was agricultural land and proceeded to bring it to tax as STCG by order under section 143(3) r.w.s. 252 of the Act dt.17.11.2009 determinin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in Arakere village (now merged with the BBMP) was within municipal limits of Bommanahalli Municipality as on 28.1.2005. 3. The CIT(A) erred in not treating the land as capital asset as per section 2(14)(iii) i.e. any area within such distance, not being more than eight kilometers, from the local limits of any municipality or cantonment board. 4. The letter issued by the Assistant Revenue Officer, Arakere Sub-Division, BBMP, Bangalore on 24.1.2012 states that Arakere Villalge falls within municipal limits of Bommanahalli Municipality. 5. The appellant craves for permission to add or to delete the grounds of appeal at the time of hearing the case. 4. The grounds of appeal raised at S.Nos. 1 and 5 are general in nature and no adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the order of the learned CIT(A) was wrong in holding that the said transaction of sale of agricultural land by the assessee in the relevant period was not liable to capital gains and prayed for the reversal of the finding of the learned CIT(A) and restoration of the finding in the order of the Assessing Officer. 6. The learned counsel for the assessee, at the outset of his arguments referred to the written submission and attachments thereto filed by him on 1.2.2012. The learned Authorised Representative submitted that the assessee supports the order of the learned CIT(A) that the agricultural land sold by the assessee is not a capital asset as per the definition of the section 2(14)(iii) of the Act as it is situated beyond 8 kms from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the subject matter of the appeal. In this regard the learned Authorised Representative referred to the decision of the jurisdictional High Court in the case of Karnataka State Forest Industries Corporation Ltd Vs. CIT 201 ITR 674 (KAR) in which it was held that the power of the Tribunal under section 254 can be exercised only in relation to the grounds of dispute arising in the appeal and therefore submitted that this issue not arising as a dispute out of the orders of the Assessing Officer or CIT(A) cannot be entertained by the Tribunal as a subject matter of dispute in this appeal. The learned Authorised Representative prayed that as the order of the order of the learned CIT(A) suffered from no infirmity, the same be confirmed and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital asset within the meaning of section 2(14)(iii)(b) of the Act. In this view of the matter, we are of the considered opinion that the order of the learned CIT(A) needs no interference on this issue and is therefore confirmed. Consequently, the grounds raised at S.Nos.2 to 4 by Revenue are dismissed. 8. The issue sought to be raised by the learned Departmental Representative that though the said agricultural land is not a capital asset and not liable to tax for capital gains as per section 2(14)(iii)_(b), it would be liable to tax for capital gains under section 2(14)(iii)(a), does not appear to be justiciable before us in this appeal. We find from a perusal of the orders of the authorities below viz. Assessing Officer and CIT(A) th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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