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TMI Blog2019 (5) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... PER A. T. Varkey, J.M. This is an appeal preferred by the assessee against the order of Ld. Commissioner of Income Tax (Appeals)-1, Jodhpur dated 26.11.2018 for AY 2014-15. 2. Though the assessee has raised as many as six ground of appeal, the sole issue involved in this appeal is against the action of the Ld. CIT(A) in upholding the decision of the AO that land in dispute (which was sold by assessee as agricultural land) was within Municipal limit i.e. within 8 kms. and, therefore, the assessee s claim that the land was an agricultural land was not accepted and treated as capital asset and thereby erred in sustaining the addition of ₹ 1,66,30,754/-. 3. Brief facts of the case are that the AO during the assessment proceedings noted that as per AIR information, the assessee had sold a piece of land on 25.03.2014 for a consideration of ₹ 1,73,55,850/- and since the assessee has neither shown any capital gain; nor any agricultural income or any exempt income earlier on the sale of the land in question, the AO issued notice to the assessee as to why the property should not be treated as capital asset? The AO took n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Thereafter, the AO deputed on 04.07.2016 Shri Kamal Deep Mourya, Inspector under him to conduct spot enquiry and report about location and actual distance of the land from the municipal limit of Jodhpur Nagar Nigam by 08.04.2016. According to AO, the Inspector gave his report on 30.11.2016 and reported that the land is situated adjoining to Mohini Industries and Press Kaan Society and is near Pali Road on Guda Bishnoiyan Road. In his report he has stated that physical verification of the land was not possible, however, from the Jodhpur Nagar Nigam office he came to know that municipal limit is near Jhalamand Circle and as per Google Map the land is at a distance of 9 to 10 kms. He also filed some copies of the map, which according to AO, is illegible, so he did not accept the same. 5. Meanwhile, on 11.07.2016, the AO wrote a letter to the Patwari, Mogra Kalan to intimate the aerial distance of the land from municipal limits along with Map of the land and its distance. According to AO, no response was received from Patwari, Mogra Kalan. Since no reply was received the AO sent certain reminders etc. to the Tehsildar but the Tehsildar did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to confirm the same. Aggrieved, the assessee is before us. 7. We have heard rival submissions and gone through the facts and circumstances of the case. The detailed brief facts given above are not repeated for the sake of brevity and the aforesaid facts are not disputed by both the parties. The Ld. AR of the assessee drew our attention to the Girdwari Report which is annexed as annexure C to the assessment order by AO which shows that the sowing of agriculture was there upto 15.10.2016 (whereas the property in question was sold on 25.03.2014) which goes on to show that the land in question was an agricultural land. And the Ld. AR drew our attention to the Memorandum of Association of the assessee company and took us to the sub-heading other objects wherein we note that assessee company s object included agricultural activities, farming etc. so we note that AO was erroneous to say that assessee s objective does not have agricultural activities. According to Ld. AR that the certificate of Patwari Mogra Kalan dated 26.03.2014 has clearly spelt out that the land in question is situate about 10 kms. from the outer limit of Jodhpur Nagar Nigam which fact has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eputed by the AO also gives a report that it is around 9 to 10 kms. and had relied on the Google map aerial distance. Page 13 of the paper book Google map also suggest that the distance is more than 10 kms. The AO himself has written letter to the Patwari, Mogra Kalan as well as the Tehsilder, Luni and the Tehsilder, Jodhpur on 14.12.2016 giving a copy of Girdwari report which states that crop is sown upto 16.10.2016 on the land in question. Our attention was drawn to the Tribunal s order in ITA No. 84/JP/2013 in the case of ITO Vs. Pooja Agarwal dated 31.01.2014 wherein in a similar matter it was observed as under: . It is noticed that alleged physical verifications which are not based on any scientific manner and not done by an expert in the field give divergent opinion. Therefore, these verifications cannot be relied upon. The best evidence in the form of reports of the Sarpanch, the Halka Patwari and even the Municipal Corporation, Jaipur (in the first instance) are emphatic and are reliable. Therefore, we are left with no option but to accept them as correct when these are pitted against the variant statements which in our considered opinion do not seem to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i reflects the property as agricultural land and the Patwari report says that the agricultural activities were carried out in the property till 16.10.2016 and the assessee had stated that the agricultural activities did not yield any surplus. 9. Taking into consideration the certificate of Patwari which is annexure C to the assessment order and also the Inspector deputed by the AO which is placed at page 8 of the paper book and taking note of the copy of the Google Map, and even a perusal of the map annexed by the retired/reemployed official Jugal Kishore, the distance is 7.8 Kms. plus 50 meters and the distance of road and arerial road is almost in a straight line. Taking into consideration the overall facts and circumstances of the case, we are inclined to accept the claim of the assessee that the land in question is situated beyond 8 kms. from the municipal limits of Jodhpur Nagar Nigam and, since the land being agricultural property, consequently the sale consideration is exempt from LTCG. Therefore, the appeal of assessee is allowed. 8. In the result, appeal of assessee is allowed. Order pronounced in the open court on 10th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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