9911796707
TMI Blog2013 (8) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee declared income of Rs. 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 Rs. 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 filing an appeal before the Commissioner of Income Tax (Appeal). The assessee filed number of do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessee and his brothers and it is they who were cultivating it and was not a non-agriculture land. 11. It was the defence of the assessee before the Appellate Authorities that the revenue in respect of the income tax return by the brothers of respondent - assessee accepted the said contention and granted the benefits by treating the land, being an agriculture land and against the aforesaid order, no appeal under Section 260-A of the Income Tax Act, 1961 was filed by the revenue and the said order has attained finality whereas in identical circumstances erred in taking a different view only on the ground that the assessee is an Advocate by profession. 12. We have heard the learned counsel for the appellant at length and perused the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l land is situated in the revenue record of village Lasudia Parmar whose population is about 2000 people which is less than the condition mentioned in section 2(14)(iii)(a) of the Act. So far as the condition mentioned in sub-clause (b) of the aforesaid section is concerned, from record it is clear that the impugned land is beyond the prescribed limit of 8 kms from the municipal limit. From this angle also, there is no mistake in the conclusion drawn in the impugned order. We further find that some cases like Laukik Developers; 303 ITR (AT) 356 have been relied upon in the impugned order/assessment order wherein the issue was examined with respect to section 801B of the Act whereas the issue before us pertains to section 2(14) with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illage Lasudia Parmar whose population is about 2000 people, which is less than the condition mentioned in Section 2(14)(iii)(a) of the Act. 16. So far as the condition mentioned in sub-clause (b) of the aforesaid Section is concerned, from record it is clear that the impugned land is beyond the prescribed limit of 8 kms from the municipal limit. 17. We are of the view that there is no mistake in the conclusion drawn in the impugned order. 18. The decision taken by the Bombay High Court inthe case of CIT Vs. Smt. Debbie Alenao andJoaquiml Alenao; (2011) 331 ITR 59 (Bom)wherein the land, in question, was shown in the revenue record as agricultural land and no permission was taken for conversion of land use. It was held that since no agric ..... X X X X Extracts X X X X X X X X Extracts X X X X
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