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TMI Blog2021 (4) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... situation of Covid-19 Pandemic. 3. Brief facts of the case are that the main assessee is an individual Sr. Citizen and had filed his return of income declaring taxable income of Rs. 2,44,75,010/-. The source of income were pension, income from business, other sources and long term capital gain (in short, LTCG) on sale of agriculture land and building thereon. The case of the assessee was selected for scrutiny and after providing due opportunity of hearing and seeking report of DVO, the assessment was finalized U/s. 143(3) of the Income Tax Act, 1961 (in short, the Act) by taking fair market value of property as on 01/04/1981 at Rs. 91,900/- as determined by the DVO. A LTCG was accordingly computed at Rs. 3,46,43,290/- as against declared gain of Rs. 2,30,65,568/- resulting in an addition of Rs. 1,15,77,722/- under LTCG. Aggrieved by the of A.O., the assessee preferred appeal before the ld. CIT(A) and the assessee apart from challenging the valuation carried out by the DVO, the assessee also challenged the entire additions of LTCG by pleading that the land of the assessee was outside the scope of Section 2(14) of the Act and thus any gain on sale of the said land was exempt from ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kms. from the limit of Jaipur Municipality and was being used for agricultural purposes. 3. That it is stated that the CIT(A) never asked the assessee's A/R to produce evidence in this regard though detailed submissions were made at that level. Hence, to prove our contention on the main ground of appeal it is essential that the following evidence being produced by the assessee, be admitted by the worthy ITAT since it goes to the root of the main issue before them: a) Copy of sale deed dated 13.02.2014 duly stating that the land in question is agriculture land and also mentioning, inter alia, that there were "Amla" trees on the said land, which is an evidence of it being used for agriculture purposes. It is important to point out that on 06.10.2020 the worthy ITAT had asked the assessee to produce the same. b) Certificate from the office of the Nagar Nigam Greater & Heritage, Jaipur dated 04.09.2020 confirming that Village Machhwa, Kalwad Road, is not within the area of Jaipur Nagar Nigam; c) Certificate of the Tehsildar, Jaipur dated 08.09.2020, that Village Machhwa was more than 8 kms. from the limit of Jaipur Nigam Parishad; d) Certificate of Dy. Tehsildar, Kalwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad also in his written submissions submitted before the ld. CIT(A), has categorically stated that the land of the assessee was outside the scope of Section 2(14) of the Act and thus any gain on sale of said land was exempt from tax but the ld. CIT(A) had rejected the said contention of the assessee in absence of the documents. It is an admitted position that the revenue authorities not only acts as an adjudicator but also acts as an investigator and the ld. CIT(A) being the superior official possesses all powers that an A.O. can exercise and the job of the investigator is to collect evidence and to separate the crux and to find out the truth in the facts and circumstances of the case. The ld. CIT(A) has never asked the assessee at any stage to produce such documents in support of his contention and even now the assessee has only wanted to place on record copy of registered sale deed dated 13/02/2014 wherein it has been mentioned that the land in question is agricultural land and also contains inter alia, that there were "Amla" trees on the said land which is apparent evidence to the effect that the land of the assessee was being used for agricultural purposes. Certificate from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) in not treating the land of the assessee as rural agricultural land outside the scope of Section 2(14) of the Act, therefore, we thought it fit to dispose off these grounds by this consolidated order. 11. The ld. AR appearing on behalf of the assessee has reiterated the same arguments as were raised before the ld. CIT(A) and also relied upon the written submissions submitted before us which are reproduced below: "1. It is submitted that Ld. CIT (Appeals-I), Jaipur as per paras (xi) 86 (xii) at page 14-15 of his order dated 05.03.2018, did not accept the plea of assessee for treating the impugned agricultural land outside the scope of capital asset as defined in section 2(14) of the Act on the grounds that the assessee was unable to bring on record proper evidence to establish that the land at village Machwa, Kalwar Road, Jaipur was more than 8 kms from the municipality of Jaipur even on 06.01.1994 nor had led any evidence to suggest that the land under consideration was used for agriculture purposes. 2. In this regard, in continuation to our earlier submissions, it is further submitted that in the case of Dr. Subha Triphati in ITA No. 1129/JP/2011 dated 24.05.2013, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned at page 17 of that order at para 6 that: "It has been held by the Coordinate Bench that there is no dispute that the Jaipur municipality has been duly notified vide said notification dated 06.01.1994 and as on the date of said notification, the land in question was beyond 8 kms from the municipal limit exists on that point of time. In the case of assessee on the date of this notification dated 06.01.1994, the municipal limit of Jaipur on Ajmer Road on which the assessee land is situated was up to ESI Hospital. The Ld. AR placed the evidence in paper book at serial no. 91. The assessee's land is 16 kms away from the ESI Hospital. These facts have not been controverted by the Ld. DR. Being a precedence, we respectfully following the order of the Coordinate Bench held that the land sold by the assessee is not a Capital Asset under section 2(14) of the Act. Thus, capital gain does not arise. On this ground the assessee appeal is allowed." 5. It is humbly submitted that the agricultural land of assessee was situated at village Machwa, Tehsil Jaipur. The land in case of Dr. Subha Tripathi was also at village Machwa and the Hon'ble Bench on the facts in that case has alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultant income on sale of agricultural land may be not subject to capital gain tax." 12. On the contrary, the ld. DR has relied on the orders of the authorities below and also relied on the decisions in the cases of CIT Vs Shree Hanuman Sugar & Industries (1992) 195 ITR 625 (Cal) and Smt. Sarifabibi Mohmed Ibrahim Vs CIT (1993) 70 Taxman 301 (SC). 13. We have heard the rival contentions of both the parties and have perused the material placed on record, judgments cited by the parties as well as orders passed by the revenue authorities. Now the only question that arises for consideration before us is to the effect as to whether the land of the assessee was outside the scope of Section 2(14) of the Act or not? In this respect, from the record, we found that it is an undisputed fact that the land of the assessee is located at village Machhwa and in this regard, we found that the Coordinate Bench of this Tribunal in the case of Dr. Subha Tripathi in ITA No. 1129/JP/2011 order dated 24/05/2013 dealt with identical issue and concluded that the land situated at village Machhwa, Jaipur was located beyond 8 KM from the municipal limits as on 06/01/1994 when the notification was published i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification (supra) as under:- ''(2) The reference to the municipal limits or the limit of Cantonment Board in the Schedule to this notification is to the limits as existing on the date on which on which the notification is published in the official gazette.'' If the stand of the Revenue is accepted that the distance of 8 kms should be considered from the Municipal Limit exists as on the date of the sale of land then it would render the notification issued by the Central Govt. as ineffective and unworkable/otiose. As it is made clear by explanation 2 of the said notification that Municipal Limits is to be considered as existing on the date on which notification is published in the official gazette, therefore, the date of notification is relevant and material point to determine the distance of 8 kms from Municipal Limits. There is no amendment or withdrawal of the said notification except a recent amendment has been brought in the statute by the Finance Act 2013 whereby the requirement of said notification has been dispensed with for invoking sub-clause (b) of clause (iii) of Section 2(14) of the Act w.e.f. 01-04-2014. Thus it is discernible from the notification d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed." Apart from that while taking judicial notice of the census of India 2011, Directorate of Census Operators Rajasthan, Series-09 Part XII-A and information and location code of village Machhwa (080203), we found that the distance of the said village is more than 10 KMs from Jaipur and the total population of the village is 2453. The assessee had also submitted an aerial map showing aerial distance of land to village Machhwa which is more than 17 KM and the said map has already been placed on record in the page book at page Nos. 93-94. The ld. AR has also drawn our attention to the certificate issued from the office of Nagar Nigam Greater and Heritage, Jaipur dated 04/09/2020 wherein it was specifically confirmed that village Machhwa does not fall in the municipal limit of Jaipur as well as a certificate from the Tehsildar dated 08/09/2020 stating that the distance of agricultural land in question as owned by the assessee from the municipal limits of Jaipur was more than 8 KM. Since the assessee has placed on record certificates from the different authorities which are public documents and prepared by public officials during the discharge of their duties, therefore, presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any manner whatsoever. The ld. DR has also relied upon the decision in the case of CIT Vs Shree Hanuman Sugar & Industries (1992) 195 ITR 625 (Cal) and Smt. Sarifabibi Mohmed Ibrahim Vs CIT (1993) 70 Taxman 301 (SC) but the pari materia contained in those cases are not relevant to the facts of the present case as in the referred cases, the respective assessee in those cited cases had sought conversion of land from agricultural to non-agricultural purposes and they had not placed on record any evidence with regard to cultivation of land for a period of four years prior to its sale, thus in no way, the decisions cited by the ld. DR are of any help to the revenue. Even otherwise, ld. CIT(A) in its order had examined and duly considered the entire facts and the legal position and thus concluded that if the land is situated beyond 8 KM from the outer limits of municipality of Jaipur as on 06/01/1994 and the land was used for agriculture purpose then the same would be outside the ambit of the provisions of Capital Asset u/s. 2(14) of the Act and is not subject to capital gain tax. Ld. CIT(A) had specifically held that since the assessee had failed to place on record any evidence to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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