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TMI Blog2019 (7) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate from the Tehsildar , sought to be admitted as additional evidence. The said certificate is both unreliable and ambiguous. Indeed it does not qualify as a certificate from the tehsildar. There is nothing on record, or sought to be admitted, that the prescribed distance applicable in this case is 2 km., with the applicability of a higher distance failing the assessee s case. Even if falling outside the said limit, it will not by itself imply that the said land, forming part of one, contiguous land sold by the assessee, which is not an agricultural land by definition and, thus, a capital asset u/s. 2(14)(iii), is an agricultural land. It is the entirety of the facts that are to be seen, which suggest the subject land to be not an agricultural land and, in any case, not sold as an agricultural land. In fact, given the area of the land under consideration (16K, 1.5 M), the said limit, where so, would be breached by some metres, hardly impacting the nature of the land. Indeed, the ld. CIT(A), who has also decided the issue on merits, only considered the sale document, registered with the office of the subregistrar, specifying the subject land to be within the municipal limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the land having been sold for a consideration of ₹ 103.16 lacs to a real estate company, brought to tax u/s. 2(24)(vi) r/w s. 45 of the Act by the Assessing Officer (AO). In appeal, the assessee sought consideration of the additional evidence by way of a report from the Tehsildar, which was not admitted by the ld. CIT(A) in-as-much as the assessee could not show that he was prevented by sufficient cause in not adducing the said evidence before the AO and, thus, satisfy the condition of r. 46A(1) of the Income Tax Rules, 1962 ( the Rules hereinafter). The limited issue, it was accordingly urged before us by the ld. counsel for the assessee, Sh. Sehgal, is the sustainability in law, in the facts and circumstances of the case, of the non-admission of the said evidence by the first appellate authority, adduced by the assessee before him. Relying on the decision in Tek Ram (thro LRs) v. CIT [2013] 357 ITR 133 (SC), it was submitted by him that the same ought to have been admitted and, consequently, considered by the ld. CIT(A), so that direction/s to that effect be issued thereto; the same having a direct bearing on the character of a part (measuring 16 Kanals, 1.5 Marlas) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have also referred to the grounds raised by the assessee, is, as stated, the admissibility of the additional evidence at the appellate stage, denied by the ld. CIT(A) for being not in terms of rule 46A of the Rules, mandatory in character. This is as, de hors the same, the subject land sold by the assessee during the year is, on the basis of the material on record, in law not an agricultural land, i.e., is a capital asset, capital gains on the transfer of which is liable to tax as income. Per the said additional evidence, the assessee seeks to establish that a part of the land sold, i.e., 16 K, 1.5 M, is outside the 2 km distance (from the municipal limit of Goraya) and, thus, not a capital asset under the Act. The gain arising on its transfer could be brought to tax only if it qualifies to be a capital asset u/s. 2(14) of the Act. The said evidence, it is argued, has a direct bearing on the finding as to the subject land being a capital asset and, thus, of prime relevance and, therefore, ought to have been admitted by the ld. CIT(A), and for which he has power under rule 46A(4) of the Rules. [And, in any case, by the Tribunal u/r. 29 of the Income Tax (Appellate Tribunal) Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctorily to the mind of the court delivering it . The provision does not apply where with the existing evidence on record, the appellate court could pronounce a judgment satisfactorily. That is, the requirement of the court to enable it to pronounce a judgment does not refer to pronouncement of judgment one way or the other, but is only to the extent whether satisfactory pronouncing of the judgment on the basis of the material on record is possible. In sum, where therefore the appellate court considers that such an additional evidence would be necessary for proper adjudication of the matter, i.e., where it cannot, in the absence of the said evidence, pronounce a judgment satisfactorily, it is to invoke its discretion even if the evidence being furnished before it is for the first time, and there has been no denial of opportunity by the authority below (i.e., before whom it ought to have been furnished) for adducing the said evidence. This, then, explains the law in the matter . Determination 3.4 The next issue, therefore, is if the said evidence is liable to be admitted in the facts and circumstances of the case, or not so. In our considered o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort by the said authority. The application by the assessee is not receipted by the said office. That apart, the application is not marked by the Tehsildar to the Area Patwari, as requested in the assessee s application. This would be even otherwise necessary as it is only when so marked, that the latter is enabled to make his comments on the subject matter of the report. Further, the report, by hand, appears to be signed by one Naya Ram , whose capacity is not clear. Needless to add, the report does not bear any stamp or the number by the office of the Naib Tehsildar, so as to regard it as an official communication by the said office. C. The report is, even otherwise, vague. It states of certain khasra numbers as falling within the Nagar Panchayat, Goraya, and others at a distance of 2 km. therefrom and, thus, outside the municipal limit. We have, in so stating, gone through both the report in vernacular, as well as its english translation (which though is not, as required to be, certified by a competent person), as well as the assessee s application. That is, it does not clarify as to how the stated distance is measured, and if the same (stated as 2 km) is from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature. F. The evidence being sought to be admitted does not come in the way of pronouncing a judgment satisfactorily. Toward this, it may be relevant to begin by reproducing the relevant provision, defining a capital asset: Definitions. S. 2 In this Act, unless the context otherwise requires,- ( 14) Capital assets means- ( a) property of any kind held by an assessee, whether or not connected with his business or profession; ( b) any security held by ., - but does not include ( i) . ( ii) ( iii) agricultural land in India, not being land situate- ( a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand; or ( b) in any area within the dista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed varying with the population, it is not to be regarded as an agricultural land under the Act. It does not mean that a land falling outside the said limit has to be necessarily, i.e., irrespective of anything else, regarded as an agricultural land, i.e., as not a capital asset. The reverse, however, is valid in view of the legal mandate, an agricultural land falling within the said limit has necessarily to be regarded as non-agricultural, a capital asset. It is thus only where the status of the subject land depends, irrespective of any other consideration, including the surrounding circumstances, exclusively on the said distance, that the admission of the evidence by the assessee may become liable to be admitted in pursuance of r. 46A(4) of the Rules or r. 29 of the Appellate Tribunal Rules. In the facts of the instant case the entire land is sold as one, contiguous piece of land, i.e., sold as part of the same transaction (i.e., comprised in one sale deed); to the same buyer (M/s. T. M. S. Real Estate (P.) Ltd., Phagwara); at the same rate; for the same purpose, which appears to be the development of real estate. And, in any case, going by the sale rate, i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l use. It would without doubt, we may hasten to add, be a different matter if land bought and sold for agricultural purposes, is subsequently, for some reason, not put to agriculture purposes. The stamp duty borne by the transaction is with reference to the collector rate and, further, at the rate as applicable to an urban land, clearly signifying it to be regarded as so by both the parties as well as the registering authority. Both the collector rate as well as the stamp duty rate are significantly lower for agricultural land, clearly suggesting that what was being conveyed was, besides the stated location as within the municipal limits sought to be disputed by the assessee in the instant proceedings, for all intents and purposes, an urban land, sold for being developed into a real estate by a company in the said business. Reference here is made to the decision by the Apex Court in Sarifa Bibi Mohamed Ibraham Ors. v. CIT [1993] 204 ITR 631 (SC). In the said decision the Apex Court emphasized the need to have regard of the entirety of facts and circumstances of the case in arriving at a decision one way or the other; it finding the circumstances, as obtaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate, even as we have examined the issue even from the stand point of the truth of its contents, finding it to be of no consequence. Conclusion 4. In our view, therefore, the assessment stands satisfactorily concluded on the basis of the material on record and, accordingly, the assessee s plea for admission of additional evidence is liable to be rejected. We decide accordingly. It may appear from the manner in which the instant order has proceeded that we have not had regard to the decisions cited at bar by the parties. This is not so. We have carefully perused all these decisions; the decision in each case turning on its facts and circumstances. In Tek Ram (supra), the Apex Court states, albeit succinctly, all that has been expressed in Velji Deoraj Co. v. CIT (supra) and Text Hundred India Pvt. Ltd. (supra), being themselves based on several decisions, mostly by the Apex Court itself. In Tek Ram (supra), the Hon ble Court was of the view that a satisfactory pronouncement of the judgment required the perusal of the documents produced by the appellant and, accordingly, set aside the matter back to the Hon ble High Court for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue, by the assessee-appellant is not understood. The Hon ble jurisdictional High Court has in other cases, as in Jawahar Lal Jain (HUF) v. CIT [2015] 370 ITR 712 (P H); Jasbir Singh v. CIT (in ITA No. 84 of 2016 (O M), dated 11.4.2016), upheld, in the facts and circumstances of the case, the denial of admission of additional evidence. The question, thus, in each case, turns on the facts and circumstances of the case, of course, having regard to the law in the matter. We cannot help observing that even as the assessee has rightly discerned the issue arising in the instant case, also making a prayer for admission of additional evidence u/r. 29 of the Appellate Tribunal Rules, he has not cited any decisions qua the said rule, and toward which we have, accordingly, relied on two, one recent adverted to by the Bench during hearing, and another, a locus classicus in the matter, both rendered with reference to judicial precedents. Accordingly, neither the law in the matter is enumerated, nor is the question as to how it is met finds reference, in the said application. The said case law would thus not be of any assistance to the assessee in the facts and circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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