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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 ..... Sandeep Gosain, Member (J) And Vikram Singh Yadav, Member (A) For the Appellant : Dileep Shivpuri, Adv. For the Respondents : Rooni Paul, Addl. CIT ORDER Per Sandeep Gosain , JM This appeal has been filed by the assessee against the order of the ld. CIT(A)-I, Jaipur dated 05/03/2018 for the A.Y. 2014-15, wherein following grounds have been taken: 1. That on the facts and under the circumstances of case, ld. CIT(A) grossly erred and was arbitrary in not treating the impugned land as rural agricultural land and outside the scope of Section 2(14) of the Act and not accepting the gain from sale of such land as exempt from tax. 2. That the ld. CIT(A) was wrong, illegal and arbitrary in confirming the addition of ₹ 1,15,77,722/- under long term capital gain by approving the action of AO in taking up fair market value of property as on 01/04/1981 on basis of DVO report. 2. The hearing of the appeal was concluded through video conference in view of the prevailing 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted the said ground in these words: (xi) Thus, in view of the above judicial pronouncements, it is crystal clear that if a land is situated beyond 8 kms. From the outer limits of Municipality of Jaipur, then the land does not ipso facto becomes agricultural land. The appellant has neither brought on record any evidence which may establish that the land at village Machhwa was more than 8 kms. from the municipality of Jaipur even on 06.1.1994 nor produced any evidence to suggest that the land under consideration was used for agriculture purposes. (xii) Therefore, in view of the above discussion and considering the totality of facts and circumstances of the case, it is held that the AO was justified in treating the land sold by the appellant at Village Machhwa, as a capital asset u/s 2(14) of the Act and thus, on its sale, the said land is subject to capital gains tax. Hence, this ground of appeal is hereby rejected. In other words, the plea of the assessee was rejected for want of evidence that the said land was more than 8 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has neither brought on record any evidence which may establish that the land of village Machhwa was more than 8 Km from the municipality of Jaipur nor any evidence to suggest that the land under consideration was used for agricultural purposes. The ld. AR vehemently submitted before us that the ld. CIT(A) never asked the assessee/AR for producing evidence in this regard. Though, the assessee had placed on record written submissions wherein this specific plea was contained and therefore, in this respect, the assessee wants to lead additional evidence which are in the shape of copy of sale deed dated 13/02/2014, certificate from the office of Nagar Nigam greater Heritage, Jaipur dated 04/09/2020, certificate of the Tehsildar, Jaipur dated 08/09/2020 and certificate of Dy. Tehsildar, Kalwad dated 12/09/2019. 8. After having heard both the parties on this application and after perusal of the record, we found that it is an admitted fact that the land of the assessee locates at village Machhwa and the said village has not been disputed by the Revenue. The assessee had also in his written submissions submitted before the ld. CIT(A), has categorically stated that the land of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee are admitted as additional evidence whereas on the contrary, rights of the assessee would be prejudiced in case the documents are not admitted as additional evidences. Although, the assessee was expected to place on record all those documents before the lower authorities in order to substantiate his submissions but keeping in view the principles that the justice should not only be done but must manifestly appears to have been done, therefore, we allow this application filed by the assessee under Rule 29 of the Rules and admit all documents i.e. sale deed dated 13/02/2014, certificate from the office of Nagar Nigam Greater Heritage, Jaipur dated 04/09/2020, certificate of the Tehsildar, Jaipur dated 08/09/2020 and the certificate of Dy. Tehsildar, Kalwad dated 12/09/2019 alongwith Girdawari for Samvat 2013-2071 as additional evidences for considering while deciding the main grounds raised by the assessee. 10. Both the grounds raised by the assessee in the main appeal before us are interrelated and interconnected and relates to challenging the order of the ld. CIT(A) in not treating the land of the assessee as rural agricultural land outside the scope of Section 2(14) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge Machwa around 50 years ago. It is also submitted that the fact of situation of agricultural land of the assessee at village Machwa is identically similar to the situation of land in case of Dr. Subha Tripathi cited supra. It is also a fact that the said land was being used for agricultural purposes, evidence of which has already been filed in the Paper-book Vol. I, page 4685. The Hon'ble Coordinate Bench in that case has already held that the land at village Machwa was situated beyond 8 kms. of the municipal limit of Jaipur as on 06.01.1994 and therefore, land of the assessee, based on similar facts, may also be kindly treated as rural agricultural land and under the exclusion clause of Capital Asset as per section 2(14) of the Act. 4. It is humbly submitted that in case of Kheti Lal Sharma HUF in ITA No. 103/JP/2012 dated 18.03.2016, (copy of the order is enclosed herewith as Annexure J) and which has been later on affirmed by the Hon'ble Rajasthan High Court, the Hon'ble Coordinate Bench followed the judgment in the case of Dr. Subha Tripathi. It has been mentioned at page 17 of that order at para 6 that: It has been held by the Coordinate Bench that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well on the basis of certificates from the revenue authorities, the land of assessee may not be treated as capital asset and no capital gain tax liability may be held on sale of such land. 7. That as regards, the use of the land for agricultural purposes is concerned, it is humbly submitted that the assessee has duly disclosed agricultural income in its return of income for the relevant assessment year 2014-15 itself and the same was duly accepted and mentioned in the assessment order dated 23.12.2016 passed under section 143 (3) of the Act. Apart from above copy of Khasra Girdawari Report has already been submitted in support of the contention that the land was agricultural land in revenue record as well as used for agricultural purposes. As the land sold was agricultural land, duly mentioned in sale deed as agricultural land, used for agricultural purposes and agricultural income was declared and accepted by AO in the relevant assessment year, in view of the facts and law it is humbly prayed that the land may be treated as rural agricultural land and not as a capital asset and the resultant income on sale of agricultural land may be not subject to capital gain tax. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question as not falling under the exclusion clause of Section 2(14)(iii)(b) of the Act. There is no quarrel on the point that as per sub-clause (b) of clause (iii) of Section 2(14), the notification of the Central Govt. is mandatory to bring the land in the definition of capital asset which is not located within the limits of the Municipality but located within the distance of 8 kms from the local limits. So far, the agricultural land which is located in the limits of Municipal Limits, the same will be treated as capital asset and no further requirement is to be examined. Since the land in question is located outside the local limits of Municipality, therefore, in order to determine whether the land in question falls under mischief of sub-clause (b) of Section 2(14(iii) of the Act, the distance of 8 kms has 7 to be taken into account in terms of notification dated 6-01-1994. As per explanation 2 of the said notification dated 6-01-1994, the Municipal Limits is to be the limits as existing on the date on which the notification is published in the official gazette. We quote the explanation 2 of the notification (supra) as under:- ''(2) The reference to the municipal li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Rajasthan High Court and the Coordinate Bench had also followed the judgment of Dr. Subha Tripathi and the relevant portion of the order is contained at page No. 17 of the said order at para 6 which reads as under: 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 06/1/1994 and as on the date of said notification, the land in question was beyond 8 km from the municipal limit exist on that point of time. In the case of assessee, on the date of this notification dated 6th January, 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 sl. no. 91. The assessee's land is 16 km away from the ESI hospital. These facts has not been controverted by the ld. DR. Being a precedence, we respectfully following the order of the Coordinate Bench and held that land sold by the assessee is not a capital asset U/s. 2(14) of the Act. Thus, capital gain does not arise. On this ground, the assessee's appeal is allowed. Apart from that while taking judicial notice of the census of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further, a very important fact which emerges in the present case is that the assessee himself has duly disclosed agricultural income in its return of income for the relevant assessment year and the same was duly accepted and mentioned in the order of assessment dated 23/12/2016 passed U/s. 143(3) of the Act. Apart from that the Khasra Girdawari report has already been submitted and placed on record by the assessee in support of his contentions that the land was agricultural land in the revenue records as well as used for agricultural purposes and even in the registered sale deed through which the land in question was sold also carries specific mention that the land which was being sold by the assessee was agricultural land and was used for agricultural purposes. Therefore, since the assessee has duly proved the use of land for agricultural purposes by placing on record the registered sale deed, Khasra Girdawari, return of income which also carries agricultural income of the assessee with regard to land in question and all those factual documents have neither been controverted or rebutted by the revenue authorities in any manner whatsoever. The ld. DR has also relied upon the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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