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TMI Blog2017 (4) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... dition of Rs. 4,10,14,760/- relying on the certificate issued by Sarpanch of Sanathal Gram Panchayat, Tal: Sanad Dist. Ahmedabad, who is not Competent Authority. ii) On the facts and in circumstances of the case and in law the Ld.CIT(A) failed to justify that whether the land in question comes under the purview of "Capital Asset" as defined in section 2(14) of the IT Act, 1961-. iii) On the facts and in circumstances of the case and in law the Ld.CIT(A) erred deleting the addition of Rs. 4,10,14,7601- following the decision of the Hon. ITAT 'D' Bench, Ahmedabad in the case of CIT(A) vis. Ashaben L Desai(ITA No.2122/AHD/2012), where the facts of the present case are distinguishable, as in the aforesaid case the Ld.CIT(A) himself personally visited the site and ascertained the distance. iv) The appellant prays that the order of the Ld.CIT(A) on the above ground be set aside and that of the Assessing Officer be restored." 3. Brief facts of the case are that the assessee is an individual deriving income from house property and other sources viz. bank interest. During the course of assessment proceedings u/s 143(3) r.w.s. 143(2) of 1961 Act, the A.O. observed that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try Club and the land comes with in Municipal Limit of Sanand Municipality. The shortest distance of Sanand Municipality to Gulmohor Greens, Golf and Country Club Is 7.1 km, which is less than 8 km. . It was observed by the AO that Sanand is city and the Municipality of Ahmadabad district having the population of 32,348 according to 2001 census. The Map showing the said details were reproduced by AO in the assessment order dated 28-03-2014 . The A.O. observed from the Google maps images that the land sold by the assessee is within the limit of Sanand Municipality i.e. it is 7.1 Km away from the Municipality and is in the Municipal Limit. So as per AO it was not the agriculture land as per Section 2(14) of 1961 Act. Thus, the AO held that income earned by the assessee on the sale of the afore-stated land is not agricultural income and is not an exempt income under the provisions of 1961 Act. The A.O. accordingly computed the long term capital gain earned by the assessee on sale of said land at Rs. 4,10,14,760/- which was brought to tax vide assessment order dated 28-03-2014 passed by the AO u/s 143(3) of 1961 Act. 4. Aggrieved by the assessment order dated 28-03-2014 passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that sale of agricultural land by the assessee is therefore exempt from tax being classified as non-taxable capital receipt, vide appellate order dated 17.04.2015 passed by learned CIT(A) . 7. Aggrieved by the appellate order dated 17.04.2015 passed by the ld. CIT(A) , the Revenue is in appeal before the tribunal. 8. The ld. D.R. submitted that the assessee has sold immovable property during the year which was claimed as an agricultural land being exempt from tax as the same was treated as not being capital asset within meaning of Section 2(14)(iii)(b) of 1961 Act. It was submitted that the ld. CIT (A) has admitted the additional evidences filed by the assessee without remanding the evidences to the A.O. for his comments after examination as stipulated u/r 46A(3) of Income-tax Rules, 1962. It is submitted that the assessee filed certificate from Executive Engineer, Ahmadabad and also relied upon notification no 9447 dated 6.1.1994 to take an additional plea that distance of more than 2 km more Sanand Municipal Corporation is to be taken for determining whether the said land falls within meaning of Section 2(14)(iii)(b) of 1961 Act , which additional evidences/pleas were not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the benefit of above notification . The assessee has claimed that the sale consideration should be taken to be non-taxable capital receipt arising from sale of agricultural land in accordance with definition of capital asset as contained in Section 2(14) of 1961 Act. However, the relevant certificate from the competent authority has not been submitted by the assessee as required under law for determination of the distance of land in question from Municipality etc. . The ld. CIT(A) relied upon the certificate from Executive Engineer, Ahmadabad and of Sarpanch of the Village, who are not competent authority as prescribed under law. The assessee need to produce the said certificate from competent authority as prescribed under law for issue of such certificate. The certificate from Executive Engineer , Ahemdabad was introduced by the assessee for the first time before learned CIT(A) and also claim of benefit of notification no. 9447 issued by Central Government dated 06-01-1994 was claimed by the assesse for the first time before learned CIT(A). The learned CIT(A) did not forwarded these additional evidences and fresh claims to the AO for his examination and comments for rebuttal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 in ITA 151 of 2013 in the case of Smt. Maltibai R Kadu has held that the amendment prescribing distance to be measured aerially, applies prospectively i.e. in relation to assessment year 2014-15 and subsequent assessment years. For the period prior to assessment year 2014-15, the High Court held that the distance between the municipal limit and the agricultural land is to be measured having regard to the shortest road distance. The said decision of the High Court has been accepted and the aforesaid disputed issue has not been further contested. 3. Being a settled issue, no appeals may henceforth be filed on this ground by the officers of the Department and appeals already filed, if any, on this issue before various Courts/Tribunals may be withdrawn/not pressed upon. This may be brought to the notice of all concerned." Needless to say that the AO shall grant proper and adequate opportunity of being heard to the assessee in accordance with principles of natural justice in accordance with law . The relevant evidences submitted by the assessee shall be admitted by the AO before adjudication of the issue on merits. We order accordingly. 11. In the result, appeal filed by the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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