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TMI Blog2015 (7) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... :- As we have decided the land sold by these assessees as not capital assets as envisaged in Section 2(14) of the Act, we need not to express our views on these deductions as these deductions is based on capital assets envisaged in Section 2(14) of the Act. Penalty U/s 271(1)(c) - Held that:- Assessing Officer imposed penalty U/s 271(1)(c) of the Act, which has been confirmed by the ld CIT(A) in all the cases but as decided above, the land sold is not capital assets as envisaged in Section 2(14) of the Act and held agricultural land, which is not come under the purview of taxable income. No concealment of particulars of income or furnished inaccurate particulars of income is there. Therefore, we delete the penalty in all the cases. Thus, we allow the appeals in all the cases. - Decided in favour of assessee. - ITA No. 726/JP/2013, ITA No. 66/JP/2014, ITA No. 725/JP/2013, ITA No. 64/JP/2014, ITA No. 724/JP/2013, ITA No. 67/JP/2014, ITA No. 723/JP/2013, ITA No. 65/JP/2014, ITA No. 722/JP/2013, ITA No. 68/JP/2014, - - - Dated:- 1-5-2015 - SHRI R.P. TOLANI AND SHRI T.R. MEENA, JJ. For The Assessee : Shri Mukesh Khandelwal (CA) For The Revenue : Mrs. Neena Jeph (JCIT) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee before the Assessing Officer that this land was situated beyond 8 km from the municipal limit of Jaipur Nagar Nigam and thus it was not a capital asset and further there is no liability on his part to add the same in his income. He has further submitted a certificate from Sarpanch, gram panchayat- Thikaria, Jaipur in his support. He has further given a chart showing therein that this long term capital gain liability as long term capital loss. The ld Assessing Officer further observed that on receipt of information as a scaled map of its municipal limits the land in dispute is within 8 km of the municipal limit of Jaipur Nagar Nigam. This land also is within 8 km from the Bagru a town having population of more than 10,000/- as per census of year 2001. The assessee was allowed to reasonable opportunity of being heard but no reply was filed by the assessees. It was further found by the Assessing Officer that this land was sold to M/s Vatika Ltd. was treated as a capital assets U/s 2(14) of the Act by the then A.O. where detail field inquiry were also got conducted by him in this regard. The appellant repeated the same reply as discussed above, no evidence has been filed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to disprove these facts had been produced by him. Accordingly he confirmed the Assessing Officer s finding on long term capital gain. He further held that cost of acquisition as on 01/4/1981 also taken by the ld Assessing Officer on the basis of Shri Ram Niwas Sharma and Shri Jagdish Prasad Sharma, which has been confirmed by him in another case @ 4312.56 per bigha. The assessee also furnished the additional evidence that his father died on 18/2/1991 and also furnished the copy of death certificate to him. The assessee also claimed that in case of Nangi Devi, W/o- Prakash Narayan, R/o- Ramrajpura, Sodala, Jaipur, who sold agricultural land in village Sanjharia and as per this sale deed, the sale price in 1991 had been taken at ₹ 29614/- per bigha. Therefore, he accepted these evidences under Rule 46A of the Income Tax Rules, 1962 (in short the Rules) on which he also called for remand report from the Assessing Officer but the assessees had not cooperated with the Assessing Officer at the time of remand proceedings, therefore, no cognizance has been taken by the ld CIT(A). Accordingly, he confirmed the order of the Assessing Officer. 4. Now the assessees are in appeals befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessees case. 6. We have heard the rival contentions of both the parties and perused the material available on the record. All the six brothers are illiterate agriculturalists. They are ignorant with the IT law. The affidavit filed by the advocate support the claim of the assessee that he had not informed and impressed upon the assessee about repercussion of the legal proceedings under the IT Act and also forget the matter to remind these assessees as file of these assesses were mixed in the other files of his office. Further the adjacent land has been treated agricultural assets as envisaged in Section 2(14) of the Act in the case of Kamla Devi Sharma vide order dated 23/3/2011 for A.Y. 2007-08 and order dated 28/08/2014 by the ITAT of this bench but confirmed that the land situated in Sanjharia village is not a capital asset as envisaged in Section 2(14) of the Act. When in case of others, the ITAT has decided the capital assets outside the 8 km from the municipal limits and non condoning the delay by the Bench will tantamount to miscarriage of justice. The legal position on this issue is as under:- (i) Collector, Land Acquisition Vs. Mst. Katji (167 ITR 471): Held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notification of CBDT circular No. 9447 and not as on date of sale. Since in the present case, the distance of land is more than 8 km from municipal limits during 2011 then during 2006-07 it was definitely many more kms away from municipal limit as the organization has increased the area rapidly during the period from year 1994 to 2011. It is further argued that in case of assessee, one of the assessee s brother Shri Ram Sahay Sharma who also sold his land alongwith his brothers where case was reopened U/s 147 wherein ld Assessing Officer himself had accepted the same part of land as not a capital assets envisaged U/s 2(14) of the Act. He further drawn our attention on letter dated 15/2/2011 addressed to ITO Ward 7(2), Jaipur that village Sanjharia, Tehsil Sanganer, Khasra No. 319 and 320 are beyond 9 kms from the municipal limits. The ld AR also argued that municipality notified whole village to be included in the municipal area not part and partial of the land of particular khasra number. Therefore, he argued that all the khasra numbers of village Sanjharia, Tehsil- Sanganer are beyond 8 kms from the municipal limits. Accordingly, he prayed to allow the appeals of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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