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TMI Blog2019 (11) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... Id.CIT(A) for deciding them on merit. We further direct the assessee to cooperate with the ld.CIT(A) and refrain himself from seeking unnecessary adjournments. Appeals of the assessee are allowed for statistical purpose. - ITA. No: 286/AHD/2018 - - - Dated:- 14-10-2019 - Shri Pradip Kumar Kedia, Accountant Member And Shri Mahavir Prasad, Judicial Member For the Appellant : Shri P. B. Parmar, AR For the Respondent : Shri Lalit P. Jain, Sr. D.R. ORDER PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. This appeal filed by the Assessee is directed against the order of the Ld. CIT(A)-7, Ahmedabad dated 06.11.2017 pertaining to A.Y. 2014-15 and that only one ground stating that ld. CIT(A) has erred in not affording an opportunity of hearing to the assessee and passed ex parte order, which is in violation of principles of natural justice. 2. Facts of the case are that the assessee is engaged in the business of Trading of Goods, Logistic Services Goods Transport Agencies. And assessee derived income from Profits and Gains of Business or Profession and Income from Other Sources ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e less than 10,000 as per the last published census. That starting words of Section 2(14)(iii)(a) read us land situated in any area, which means that section is applicable area wise and not as per municipality wise. That the section is talking about the area in which the land is situated and the population of that area need to be consider only and not the population of the municipality, hence the assessee land fall in the jurisdiction of GUDA i.e. Gandhinagar Urban Development Authority and the population of that area is less than 10,000. Hence, both the conditions are fulfilled and the land hereunder shall be treated as rural agricultural land and capital gain on the same shall be exempt. Even otherwise if we consider that the GUDA is not the municipality that as per the definition of section 2(14)(iii)(b) if situated outside the limit of municipality etc. it should be situated certain kilometers away from the local limits of any municipality etc. as may be specified by the Central Government in the official Gazette. The Central Government can notified urban land upto maximum 8 km from the limits of municipality etc. The ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation of more than ten thousand but not exceeding one lakh; or (ii) not being more than six kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than one lakh but not exceeding ten lakh; or (iii) not being more than eight kilometres, from the local limits of any municipality or cantonment board efeferred to in item (a) and which has a population of more than ten lakh. 6. It can be seen clearly from the provisions of Section 2(14(iii)(a) of the Act that it talks about total population of municipality in which area the asset falls and not about the population of a particular area. The assessee has submitted in his reply that Adalaj, in which land in question was situated, falls under Gandhinagar Urban Development. Authority(GUDA) is equivalent as municipality. Therefore, population of Gandhinagar Urban Development Authority is required to be taken for deciding the capital assets as per the provisions of Section 2(14)(iii)(a) of the Act. It is an undisputed fact that the population of Gandhinagar (GUDA) was in lacs as per 2001 census. Therefore, land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide Ref. No. : No. 15287 dated 16.11.2016. In its reply, it has been submitted by the Sr. Town Planner, AUDA, Ahmedabad that the the Minimum Distance of revenue limit of the village Adalaj from AMC limit is 706 Mt. A copy of letter received from Sr. Town Planner, AUDA, Ahmedabad has also been provided to the assessee. 10. Therefore, it has been established that the land in question are situated within a radius of 8 Kms. of Ahmedabad Municipal Corporation Limit (AMC). Therefore, the said land sold during the year under consideration is a Capital Assets as per the provisions of Section 2(14)(iii)(b) of the Income Tax Act, 1961 also and Capital Gain on sale of such land is taxable u/s 45 of the Act as Capital Gain. 11. In view of the above discussion, it is established that the above land sold during the year under consideration are capital assets as per the provisions of Section 2(14)(iii) of the IT. Act,1961 and Long Term Capital Gain arisen on it is liable for tax. The computation of Long Term Capital Gain arisen on sale immovable property in question is as under: SI. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Capital Assets Rural Agriculture land were exempt from the capital gain. For classifying a rural agriculture land one must fulfill and of the condition specified in section 2(14)(iii) 2(14)[(iii) [agricultural land^ in India, not being land situate- (a) in any area which is comprised within the jurisdiction of a municipality^1 (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, according to the last preceding census of which the relevant figures have been published before the first day of the previous year. (b) in any area within such distance, measured aerially,- (i) not being more than two kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten thousand but not exceeding one lakh; or (ii) not being more than six kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the land, subject matter of sale, is a capital asset falling within the scope of clause (iii) of section 2(14) and made addition of ₹ 63,13,309/-. 14. Against the said order, assessee preferred first statutory appeal before the ld. CIT(A) issued three notices to the appellant but because of some reason could not appeared before the ld. CIT(A) and in limine ld. CIT(A) without discussing any merit of the case just confirmed the order of the Assessing Officer. 15. We have gone through the relevant record and impugned order. As we can see, without discussing the merit of the case, ld. CIT(A) has confirmed the order of the Assessing Officer. In our considered opinion, same is amounting to miscarriage of justice. 16. In support of its contention, ld. A.R. cited an order of Co-ordinate Bench wherein with following observation Co-ordinate Bench has allowed the appeal of the assessee for statistical purpose. 4. We have duly considered rival contentions and gone through the record carefully. We find that in para-2 of the impugned orders, the Id.CIT(A) has noticed the details of hearing and how the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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