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TMI Blog2020 (1) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... ence - HELD THAT:- If an agriculture land is situated beyond 8 kms. from the local limit of any municipal or cantonment area, whose population is more than ₹ 10 lakhs, then that would not fall within the ambit of definition capital assets. This demarcation of the geographical situation of the land is to be seen from the boundary notified by the CBDT in its gazette notification. It was brought to the notice of the ld.CIT(A) that the CBDT has notified boundary from where it is to be measured vide notification no.9447 dated 6.1.1994. Thereafter, it has not been revised, and from that boundary limit, geographical situation of the mainland was beyond 8 kms. Hence, it was not a capital asset. As far as admission of additional evidence is concerned, if the ld.CIT(A) has entertained the notification no.9447 for determining the geographical situation of the land of the assessee, then to our mind, this type of material can be considered by the ld.CIT(A) under Rule sub-rule (4) of Rule 46A, and there cannot be any violation at the end of the ld.CIT(A). Considering all these aspects, we are of the view that the ld.CIT(A) has considered the issue analytically and recorded a categorica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Shri Ravjibhai M. Patel. On receipt of notice, the assessee has filed CO bearing No.111/Ahd/2019. Similarly, IT(SS)A.No.133/Ahd/2018 is directed at the instance of Revenue against the order of the ld.CIT(A) dated 6.3.2018 for the Asstt.Year 2013-13 in the case of Tushar Ravjibhai Patel. On receipt of notice, the assessee has filed CO bearing No.112/Ahd/2019. All these four appeals were heard together by the Tribunal on 3.10.2019. 2. The tax effect in the appeal of Shri Tushar Ravjibhai Patel was less than ₹ 50 lakhs, and the ld.counsel for the assessee did not press the CO. Therefore, this appeal along with CO was to be dismissed on account of low tax effect involved in it. However, while drafting the order, an apparent typographical error was crept in the cause title of the order in the case of Ravjibhai M. Patel in IT(SS)A.No.132/Ahd/2018 along with CO No.111/Ahd/2019 has been noted. This appeal along with CO has been dismissed on account of low tax effect in it. In fact the tax effect in this appeal is more than the monetary limit, and ought not to have been dismissed by applying CBDT Instruction No.17 of 2019. This fact has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal where tax effect is below ₹ 50 lakhs. This instruction is applicable to the pending cases also. Therefore, the present appeal of the Revenue is liable to be dismissed at the threshold. The ld.DR did not dispute applicability of the recent CBDT circular and left to the Tribunal to pass appropriate order in the matter. 7. After hearing both the sides and after perusal of the above CBDT Instruction, we are of the view that the present appeal of the Revenue falls within the purview of the CBDT Instruction cited (supra). It is not disputed by the Revenue that tax effect on the total disputed addition is more than ₹ 50 lakhs, and therefore, keeping in view the above CBDT circular and provisions of section 268A of the Income Tax Act, we are of the view that the present appeal of the Revenue deserves to be dismissed. It is dismissed. 8. However, it is observed that in case on re-verification at the end of the AO it can be demonstrated that the tax effect is more, or Revenue s case falls within the ambit of exceptions provided in the Circular, then the Department will be at liberty to approach the Tribunal for recall of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts and included in the commission receipt by the assessee and offered to tax. This aspect has been considered by the ld.CIT(A) on the basis of explanation and bank statements furnished during the course of assessment proceedings and found that the addition was being made without any evidence, and therefore, unjustified. Before us also, there is no material to justify action of the AO for making the impugned addition. In a proceeding under section 153C, no addition can be made in the absence of any incriminating material. Undisputedly, there is no material evidence with the AO to make the impugned addition. Therefore, we do not find any infirmity in the order of the ld.CIT(A) on this issue. It is confirmed. 14. In ground no.2 and 3, Revenue has pleaded that the ld.CIT(A) has erred in deleting the addition of ₹ 2,54,59,000/- which was added by the AO with aid of section 50C. According to the Revenue, the ld.CIT(A) has erred in admitting additional evidence under Rule 46A and deleting the above addition. 15. Brief facts of the case are that during the course of search in the case of Tusharbhai Ravjibhai Patel (son of the assessee) who resides a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 06.01.1994. On the basis of the facts available before me, I am in agreement with the contention of the appellant that the agricultural land situated at Amiyapur Village, which is not a capital assets as per provisions of section 2(14)(iii) of the Act and hence, as per provisions of section 2(14)(iii) of the Act, the sale of agricultural land at Village Amiyapur by the appellant being not a capital asset is not subject to capital gain tax and therefore, invocation of provisions of section 50C of the IT. Act by the A.O is bad in law. The appellant has also taken an alternative arguments that in the case of appellant the proceedings were carried out u/s. 153C'of the Act, which is a special provision incorporated in the Act to determine the undisclosed income on the basis of any incriminating material found and seized during the course of search proceedings. The AO in the assessment order has not identified any incriminating material as regards to any sales consideration being received over and above the sales consideration stated in the sale deed for sale of agricultural land at Village Amiyapur, Dist. Sub.Dist Gandhingar. In the present case as the agricultural land at Vil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. The above clause would indicate that if an agriculture land is situated beyond 8 kms. from the local limit of any municipal or cantonment area, whose population is more than ₹ 10 lakhs, then that would not fall within the ambit of definition capital assets. This demarcation of the geographical situation of the land is to be seen from the boundary notified by the CBDT in its gazette notification. It was brought to the notice of the ld.CIT(A) that the CBDT has notified boundary from where it is to be measured vide notification no.9447 dated 6.1.1994. Thereafter, it has not been revised, and from that boundary limit, geographical situation of the mainland was beyond 8 kms. Hence, it was not a capital asset. As far as admission of additional evidence is concerned, if the ld.CIT(A) has entertained the notification no.9447 for determining the geographical situation of the land of the assessee, then to our mind, this type of material can be considered by the ld.CIT(A) under Rule sub-rule (4) of Rule 46A, and there cannot be any violation at the end of the ld.CIT(A). Considering all these aspects, we are of the view that the ld.CIT(A) has consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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