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TMI Blog2016 (5) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... wed the appeal of the assessee. 3. Considering the aforesaid, the learned Appellate Authority allowed the appeal of the assessee in part and set aside the order passed by the Assessing Officer. The aforesaid order was challenged by the Department by filing appeal before the Income Tax Appellate Tribunal, Indore Bench, Indore. The learned Tribunal considering the grounds made in the appeal passed the following order which reads as under:- 3. We have considered the rival submission sand perused the material available on record. So far as the non-appearance in the case of Shri Rakesh Shukla, in spite of service of notice, is concerned, therefore, we have no option but to proceed ex parte qua this assessee and tend to dispose of the appeal on the basis of material available on record and ore specifically when the fact are identical and are oozing out from the same transaction, being co-owner. Before coming to any conclusion, we are reproducing hereunder the aforesaid order dated 31.8.2012 for ready reference:- The revenue is aggrieved by the impugned order dated 31.1.2012 broadly on the ground that on the facts and in the circumstances of the case, the learned first appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the revenue record of village Lasudia Parmar (the. Sanver) bearing Khasra No.184, etc. The stamp duty and registration fees were borne by the purchaser and the sale consideration amounting to ₹ 1,29,21,582/- was received through cheque. The Assessing Officer concluded that the impugned land is situated within 8 kms from the municipal limit and then mentioned the provisions of section 10(37) of the IT Act which are applicable in the case of compulsory acquisition, therefore, is not applicable to the facts of the case as the land was sold by private deal and no exemption u/s 54B of the Act was claimed. So far as the argument of the learned CIT DR and observation of the Assessing Officer that since the land was not cultivated by the assessee himself and was carried o by the brother, therefore, it cannot be treated as agricultural land. We are not absolutely convinced by this argument/observation because there is no requirement in any Act more especially the Income Tax Act that only the self cultivated land will be treated a agricultural land. The Tehsildar is the concerned revenue officer who on the basis information/report of revenue Patwari issues a certificate. Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the facts of the present case. The learned CIT DR placed reliance on the decision of the Hon'ble Gujarat High Court in Balkrishna Hariballabhadas vs. CIT; 138 ITR 245. We find that in that case, the land was situated within municipal limits of Ahmedabad and the surrounding land was developed and since the land was not agricultural land, the gains from sale of such land was held to the exigible to capital gains tax. However, the land in question is clearly agricultural land situated beyond 9 kms from the municipal limit, therefore, this case may not help the revenue, moreso one fact pertinent to mention here that part of the same land, owned by one of the brothers, was treated as agricultural land, therefore, it is quite unjustified to treat part of the same land/chunk to the non-agricultural. Another case relied upon is from Hon'ble Bombay High Court in Fazalbhoy Inv. Company Pvt. Ltd.; 176 ITR 523 wherein there was no evidence showing that no agricultural operations were carried out on the land. The Hon'ble Court held that land was not agricultural. However, in the impugned land, agricultural operation was done by one of the brothers, therefore, with utmost reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also depends upon factors like location of the land, use of the land, distance from municipal limit, whether land use was changed, etc. if all these factors are cumulatively kept in mind, one clear fact is oozing out that the impugned land is situated beyond the prescribed limit from the municipality, recorded as agricultural land in the revenue record, agricultural operation was done by one of the brothers, we are of the considered opinion that the no capital gains tax is exigible on sale of such land. So far as the objection of the learned CIT DR that the Tehsildar is not a competent authority for measuring the distance, we are not satisfied with such submission especially when the Inspector of the department of Income tax and Tehsildar both have certified that the land is situated beyond 8 kms from the municipal limit. We are of the considered opinion that Tehsildar is the most competent revenue Officer to certify the proof of agricultural operation, distance of land from a particular place, rate of land, etc. Our view is further fortified by the decision from Hon'ble Punjab Haryana High Court in CIT vs. Lalsingh Others' 228 CTR 575. so far as the issue of measuring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as per crow's flight Laukik Developers v. Dy. CIT (2007) 108 TTJ (Mumbai) 364; (2007) 105 ITD 657 (Mumbai) approved. The above conclusion by the Hon'ble High Court clearly supports the case of the assessee. In the case of Lalsingh Others (supra) the Hon'ble High Court concluded that the report of the Tehsildar having certified that the assessee's land was 8 kms away from the municipal limit, the land constituted agricultural land entitling the assessee to exemption u/s 54B of the Act. 7. If the assessment order is analyzed, we are of the view that the learned Assessing Officer is more guided by section 45 of the Act which speaks about capital gains arising from the transfer of capital asset. Section 54B of the Act speaks about non-charging of gains of the cases where there is a transfer of land used fro agricultural purposes. An amendment was effected with effect from 1.4.1970 so as to include lands situated in certain specified areas within the ambit of non-agricultural land. However, burden is on the assessee to prove that the land is agricultural land and at the same time, onus is on the department to prove that the land is non-agricultural or it for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land with regard to its location and distance from the municipal limit. It seems that the learned Assessing Officer has not examined the documents produced by the assessee establishing the distance of land beyond prescribed municipal limit and more specifically when Khasra number, etc. has been duly mentioned in the report of Tehsildar. So far as the argument of the learned CIT DR that the land was sold at a substantial amount is not the relevant factor to prove that it was non-agricultural land because it depends upon so many factors. Even in the grounds of appeal, the revenue has raised a ground that the documentary evidences produced by the assessee belong to the land of Shri Rakesh Shukla, brother of the assessee We are not convinced with this argument also because the total land is adjoining to each other and is from one chunk. This claim of the revenue rather supports the case of the assessee. As mentioned earlier, in the case of one of the brothers, it has been allowed as agricultural land, therefore, no different yard stick can be adopted in the case of another brother, being the land is part of the same chunk. The totality of facts clearly leads to the conclusion, under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reads as under:- 29. 08.2013 Shri R. L. Jain, learned Senior Counsel with Ms. Veena Mandlik for the appellant. Heard on the question of admission. This appeal, under Section 260-A of the Income Tax Act, 1961 has been filed against the order dated 31.08.2012 passed by the ITAT, Bench-Indore whereby the learned Tribunal affirmed the order passed by the Commissioner of Income Tax (Appeal) on 31.01.2012 and dismissed the appeal of the revenue. 2. Brief facts of the case are that in the assessment year 2008-09, the assessee declared income of ₹ 4,04,690/- on 05.09.2008. He also claimed exemption from capital gains on sale of land by claiming the same to be agriculture land situated in the revenue record of Village Lasudia Parmar, Tehsil Sanwer, District Indore bearing Khasra No.184. 3. The sale consideration was amounting to ₹ 1,29,21,852/-. It is this amount, which he has received through cheque. The Assessing Officer by his assessment has held that the said agriculture land is situated within 8 kms. from the limits of municipal limit and refused to grant exemption, being an agriculture land. 4. The said order was challenged by the assessee by f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the material available on record. Para 4 of the impugned order is relevant, which reads as under :- So far as the question of distance from Municipal limit is concerned, we have perused the record and find that even as per the report of the Income Tax Inspector (pages 9 and 10 of the paper book) it has been mentioned that the land is situated 9.7 kms. by road from the municipal limit by a straight distance method. The map of the land (page 10) was prepared by the Income Tax Inspector himself, therefore, disregard to such document is not justified. A certificate has been issued by the Executive Engineer, Public Works Department (page 11 of the paper book) wherein it has been specifically mentioned that the impugned land is 9.6 kms. from the municipal limit. The Land Revenue Officer (Tehsildar) had also mentioned the Survey No.95 Area 4.22 acre, Survey No.96/1 area 1.20 acre and has mentioned that the land in question is about 10 kms. from the municipal limit and the population of the village is about 2000 persons. The assessee has also produced a certificate from the land Surveyor (page 14) wherein it has been mentioned that the impugned land is situated at 9.09 kms. from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited; 220 ITR 43 (SC). The land was situated in most important business centre of a city and was entered in the municipal record as urban land and tax was paid thereon. Part of the land was used for construction of non-residential building. In that situation, profit on sale of such land was held to be exigible to capital gains. However, in the impugned case, the facts are altogether different, therefore, may not help the revenue. A decision from Hon'ble Kerala High Court in Kalpetta Estates Ltd. vs. CIT; 185 ITR 318 was relied upon. In that case, it was held that burden of proof is on the assessee to prove that the land was agricultural land at the time of transfer and forest lands were acquired with the intention of extending plantation. Since no agricultural operation was carried out, it was held that it gives rise to capital gain on the sale of such land. In the case of Sarifa Bibi Mohd. Ibrahim; 136 ITR 621 (Guj) the land was situated near railway station and was sold on square yard basis to housing society. The profit from the sale of such land was held to be assessable to capital gains tax. Keeping in view the location and other attendant circumstances, it was held to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limit, the land constituted agricultural land entitling the assessee to exemption under Section 54B of the Act. 21. As mentioned in the preceding paragraph that in the case of one brother, which has been held as agricultural land, therefore, no different yardstick can be adopted in the case of another brother, being the same land/chunk. 22. In view of the aforesaid, we are of the view that the findings recorded by the appellate authorities are correct and based on several decisions of the various High Courts, no case for interfering with the said finding in this appeal when the same is neither reverse nor contrary to the material available on record, is made out. No substantial question of law is arising out in this appeal. The appeal has no merits and is accordingly, dismissed. 4. On due consideration of the aforesaid and so also the admissions made by the Assessing Officer, the distance is more than 9 kms and treating the land sold as agricultural land and, thus, no substantial question of law is arising in this appeal. 5. For the reasons assigned in ITA No.2/2013 decided by this Court on 29.08.2013, the Income tax appeal filed by the appellant has no merit and is ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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