9911796707
TMI Blog2019 (1) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The case was called up but none appeared on behalf of the assessee. In the past also on 27.4.2018 and 10.10.2018 notices of hearing were served through departmental representative as the notice sent to the assessee was returned back un served. Even the notice of hearing to be served through the departmental representative could not be served as the premises at the addressed mentioned in the assessment order was found locked and for this reason the Inspector of the Income Tax Department affixed the notice at the assessee's premises. In the given facts it was decided to hear the revenue's appeal in the absence of assessee. 3. Revenue had raised following grounds of appeal; "On the facts and in the circumstances of the case, learned CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the alleged land was an agricultural land not falling under the category of capital assets as provided u/s 2(14) of the Act and the gain from the sale thereof was not liable to tax but as there was no column in the income tax return she bonafidely declared the transaction under the head capital and claimed deduction u/s 54B of the Act. Now the question before us is that whether the agricultural land measuring 5.71 hectare located at Shivangaon, Amarawati is an agricultural land and is not falling under the head 'capital assets' as defined u/s 2(14) of the Act?. 8. We find that Ld. CIT(A) deleted the addition for Long Term Capital Gain at Rs. 1,33,08,531/- observing as follows after duly considering the submissions made by the assessee; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. For reference, Copy of certificate issued by the Gram Panchayat is enclosed herewith. Sir, it is further submitted that the assessee wants to show this transaction in her return but in return there is column for sale of capital assets only and hence the same was shown as capital assets. Since the Agricultural land is not under capital assets ,to nullify the gain arising on sale, exemption u/s 54 B coloumn was filled up so that the resultant amount of gain comes to nil" It is further submitted here that for arriving at some conclusion Ld. AO was expected to examine these basic factors given u/s 2(14) of the Income Tax act 1961 which decide whether a asset is capital asset or not:- Capital asset means property of any kind held by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermination of the character of a particular piece of land, according to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case. What is really required to be shown is the connection with an agricultural purpose and user and not the mere possibility of user of the land, by some possible future owner or possessor, for an agricultural purpose. It is not the mere potentiality, but its actual condition and intended user, which has to be seen. If there is neither anything in its condition, nor anything in evidence to indicate the intention of its owner or possessor, so as to connect it with an agricultural purpose, the land cannot be termed "agricultural land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st be situated in any area which is comprised within the jurisdiction of a municipality or cantonment board; (ii) The population of the area where the land is situated should not be less than 10,000 according to the last preceding census. In this case Appellant had already submitted uses, distance and population of the Village. We failed to understand why Ld AO has not relied on the certificate issued by the Sarpanch . Gram panchayat is very much appropriate agency for certifying population and surpanch ,being head of the Gram panchayat, is very much appropriate authority of issuing population as well as land uses certificate. We failed to understand LD AO expectation of getting certificate from any higher Authority in this respect. Her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he A.O. But during the appellate stage the appellant assessee first filed a sheet having Google navigation and detail of the population of the area Shivangaon (place where the said land of the appellant exists) and then the appellant assessee filed a certificate of Tehsildar of Shivengaon dated 06.03.2017. Which gives clear-cut finding that the above mentioned place is 27 km from Amravati and has total population of 2294 as per govt. record. In view of the material evidence filed by the appellant it is clear that the above land fulfills the conditions to be an agricultural land as the same is more than 8 km away from the city and has population less than 10,000. Thus the contention of the appellant assessee is found to be correct and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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