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TMI Blog2024 (6) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... rther notification. Therefore, the land in question at Village Masuri is not a capital asset. Appeal of the assessee is allowed. - Shri Shamim Yahya, Accountant Member And Ms. Madhumita Roy, Judicial Member For the Assessee : Shri Subodh Gupta, CA, Shri Mukesh Agarwal, CA For the Revenue : Shri Kanv Bali, Sr. DR ORDER PER SHAMIM YAHYA, ACCOUNTANT MEMBER : This appeal by the assessee is directed against the order of the ld. CIT (Appeals), Ghaziabad dated 25.07.2019 for the assessment year 2013-14. 2. Grounds of appeal taken by the assessee read as under :- 1. Because the order of Ld. Lower Authority is bad in law as well as is against the facts and circumstances of the case. 2. Because learned Commissioner of Income Tax (Appeals) erred in sustaining the addition of long term capital gain Rs. 13230858/- by wrongly observing that land situated at village masuri pargana dasna is within the municipal limits of Ghaziabad though the agricultural land is undisputedly beyond the municipal limits of Ghaziabad and dispute was applicability of notification So10(E)/9447 published on 06/01/1994. 3. Because learned Commissioner of Income Tax (Appeals) erred in holding the agricultural land, cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aziabad, which is the only point of dispute in this case. The Inspectors as well as Tehsildaar has reported that the said land is about 5 Kms from the Municipal limits of Ghaziabad and the assessee has also visited the property through his AR alongwith the IT! and measured the distance of the land from the Municipal limits. Further, I observed that the said findings can't be changed or manipulated by anyone at any point of time. Therefore, after considering all facts and circumstances of the case, the asset transferred by the assessee during the year is held to be a capital asset within the meaning of Section 2(14) of the Act and the same is chargeable to capital gain tax under the Income Tax Act, 1961. 7. During the year under consideration, the assessee has sold 0.6143 hectares of land at land Khasra No. 789, 790 791 at Village- Masuri, Pargana- Dasna, Ghaziabad for Rs. 2,92,50,000/- on 05.11.2012. The said land was purchased by the assessee in financial year 2005-06 for Rs. 15,06,000/- and stamp duty of Rs. 1,20,500/- was paid thereupon. The assessee has share in the said property Thus, the computation of Long Term Capital Gain on transfer of this property is made and long t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he distance was 8.7 km approx. as per IT Inspector's report. Assessee also refers to the response dated 22.03.2016 from Ghaziabad Nagar Nigam enclosing a Notification dated 31.08.1994 to the effect that municipal limits were extended upto Govindpuram and Dasna Drain on 31.08.1994 on its upgrading from Municipal Council (Nagar Palika) to Municipal Corporation (Nagar Nigam) on same date. Assessee also referred to confirmation dated 15.03.2016 from GNN to the effect that distance of Vill Masuri during the year 1993-94 was 10 km from the local limits of the Municipal Council (Nagar Palika). Therefore, considering the report of the inspector dated 04.03.2016 as well as confirmation by Ghaziabad Nagar Nigam dated 15.03.2016, the land in question is undoubtedly beyond 8 km from the limits of Municipal corporation during 1993-94, though the confirmation from GNN of distance of 10 km is more reliable than the report of the inspector. Assessee also submitted that for the purpose of exemption u/s 2(14)(iii)(b), notification by Central Government is mandatory and there being no notification after 06.01.1994, the expansion of municipal limits from Hapur Chungi to Dasna Flyover on 31.08.1994 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, it is not in dispute that the subject land is not located within the limits of Dasarahalli City Municipal Council therefore, Clause (a) to section 2[14][iii] of the Act is not attracted. 12. However, though it is contended that it is located within 8 kms., within the municipal limits of Dasarahalli City Municipal Council in the absence of any notification issued under Clause (b) to section 2[14][iii] of the Act, it cannot be looked in as a capital asset within the meaning of Section 2(14)(iii)(b) of the Act also and therefore though the Tribunal may not have spelt out the reason as to why the subject land cannot be considered as a 'capital asset' by giving this very reason, we find the conclusion arrived at by the tribunal is nevertheless the correct conclusion. Reliance was also placed on decision of ITAT, Ahmedabad, in the case of ITO vs Akash Deep Farms Pvt Ltd vide ITA 561/Ahd/2017 dated 10.12.2018 [AY 2012-13] in which it was held that: 12 We also take affirmative note of the significant plea on behalf of the assessee that distance of 8 kms. from the Municipality has to be seen from the date of notification dated 06.11.1994 in the light of judicial pronouncements ..... X X X X Extracts X X X X X X X X Extracts X X X X
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