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TMI Blog2023 (1) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... 009-10. 2. The appeal raises a single issue, i.e., whether the agricultural land sold by the assessee on 30/03/2009, i.e., during the relevant year, is a capital asset under the Act or not, on the sale of which therefore 'capital gains' shall, or as the case may be, shall not arise to the assessee. Though agricultural land is excluded from the purview of a 'capital asset', defined u/s. 2(14), under cl. (iii) thereof, an exception is carved for agricultural land situate: (a) in an area comprised within the jurisdiction of a municipality (whether known as municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name), or cantonment board, which has a population of not less than ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO on account of short term capital gain without appreciating the fact that the AO has rightly taken the distance from nearest municipal limit of Panagar Nagar Palika. 2. The appeal is being filed as the case falls under exceptional clause of para 10(c) of the Board's Instruction No.03/2018 dated 11/07/2018. 3. Any other ground that may be adduced at the time of hearing." 4. We have heard the party before us, and perused the material on record 4.1 We may, at the outset, clarify that the appeal was heard ex parte the assessee -respondent, as there was no appearance by, or for and on her behalf, despite grant of abundant opportunity of being heard through notices of hearing at the address available on record as well as that of the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith urban India expanding at a rapid pace since 1994, even as the law (s.2(14)(iii)), removing the requirement for the Notification by the CG, stood amended only w.e.f. 01/4/2014. There is also no basis on record for the stated distance of 18 km. of the subject land from the limits of the Jabalpur Municipal Corporation (MC), with reference to which, apparently the nearest notified municipal corporation, the agricultural land under reference has been found by him as an agricultural land u/s. 2(14)(iii) and, thus, not a capital asset. In fact, the said distance stands mentioned variously at 15 km. (pg.5) and 18 km. (pgs. 9, 19) of his order. It is also not clear from his order if the said distance of 15 km/18 km from the local limits of the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for exemption of income is on the assessee, in the instant case we observe that no question was raised in respect of the distance of the land under reference (from Jabalpur MC), either by the AO or the ld. CIT(A). We have though considered it appropriate to make our order subject thereto inasmuch as there is nothing on record to exhibit the same, or even a mention of the source w.r.t. which the said distance, since accepted by the first appellate authority, has been stated, as well as, as afore-stated, the basis for working out the said distance. Further, once the assessee relies on a Notification, as she does before the ld. CIT(A), it is for the Revenue to state, where so, if and why it is not applicable. Our reservation in its respect, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andum of appeal or even that taken with its leave (rule 11 of the Income Tax (Appellate Tribunal) Rules, 1963). As explained by the Apex Court in Hukumchand Mills Ltd. v. CIT [1967] 63 ITR 232 (SC), even rules 11 & 27 of the Tribunal Rules are not exhaustive of the powers of the Tribunal, but only procedural in character, which do not control or circumscribe it's powers. We, accordingly, do not find ourselves constrained by law; rather, are enabled by it, and duty bound thereunder to, in securing the cause of justice, restore the matter back with clear directions, delineating the aspects that require determination upon, of course, observing the principles of natural justice. We cannot though help note the cavalier approach by the first appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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