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TMI Blog2024 (10) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... only on the ground that the certificate filed by the appellant is in photo copy and not in original, held that the certificate furnished by the appellant cannot be relied on. Thus, prima facie it appears that Tehsildar Sanganer has issued certificates on his whims without verifying the actual distance only on estimates as per dictate which cannot be relied. The distance is to be measured aerially as per law in force for A.Y. 2014-15 which can only be done scientifically by putting aerial line on khasra maps from municipal limit and should have attached with certificate so as to rely any certificate of distance. Thus reliance placed by AO on certificate issued by Tehsildar, Sanganer is disregard of the certificate produced by assessee of the same Tehsildar, is without any basis and is wrong and bad in law. Regarding land sold at village Rampura, Tehsil Chaksu, the assessee claimed that said agricultural land is beyond 2 Km from Chaksu Municipality which has population of more than ten thousand but less than one lac. The said land of assessee s husband is agricultural land within the meaning of section 2 (14) and as it is not falling in exceptions given in Section 2 (14) (iii) (b) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, JM And Hon ble Shri Rathod Kamlesh Jayantbhai, AM For the Assessee : Shri S.R. Sharma, CA And Shri R.K. Bhatra, CA For the Revenue : Shri A.S. Nehra, Addl. CIT D/R ORDER PER: SANDEEP GOSAIN, J.M. This appeal by the assessee is directed against the order dated 16.04.2024 of ld. CIT (Appeals), National Faceless Appeal Centre (NFAC), Delhi passed under section 250 of the Income Tax Act, 1961 for the assessment year 2014-15. The grounds raised in the appeal are reproduced as under :- 1. That on the facts and in the circumstances of the case the ld CIT(A) is wrong, unjust and has erred in law in upholding finding recorded by the ld AO that agricultural land at vill Manpur Nanglia, Sanganer sold by the appellant during the year is a capital asset and not an agricultural land within meaning of sec. 2(14)(iii) of the IT Act, 1961 and therefore profit of Rs. 110887/- earned by the appellant on sale thereof is not exempt but chargeable to tax as Long term Capital gain. 2. That on the facts and in the circumstances of the case the ld CIT(A) is wrong, unjust and has erred in law in upholding finding recorded by the ld AO that agricultural land at vill Rampura, Tehsil Chaksu sold by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd at Chaksu Tehsil which has also Municipality and as Chaksu is having population of more than ten thousand but less than one lac and accordingly as per provisions of section 2 (14) (iii) (b) (1) the land is agricultural land which is situated beyond 2 Km from Municipal limits of Chaksu. In course of assessment proceedings the assessee obtained certificate from Tehsildar Sanganer in respect to land at (i) above in which it is specifically mentioned that the agricultural land sold by assessee were outside 8 Km of Municipal limit. 2.1 The A.O. to verify the claim of assessee sought information u/s 133(6) of I.T. Act, 1961 vide letter dated 18-07-2016 from Tehsildar, Sanganer and Tehsildar Chaksu in reply to which respective Tehsildar, Sanganer and Chaksu informed that the aerial distance of the agricultural land at village Manpur Nangalia (i) above from Jaipur Municipal Corporation is 7 Km and for agricultural land (ii) at village Rampura Tehsil, Chaksu stated that it is approximately 2 Km from Chaksu Municipality. The A.O. thereafter issued show cause notice asking the assessee as to why the agricultural land sold by assessee during the year should not be considered as capital asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessee at Rs. 1,62,96,787/-. Aggrieved by the order of the ld. CIT (A), the assessee preferred appeal before ld. CIT (A). The ld. CIT (A) after considering the written submissions filed by the assessee, which are reproduced in his appeal order dated 16.04.2024, sustained the addition. Now the assessee is in appeal before us. 3. Before us, the ld. A/R of the assessee reiterated his submissions as made before the ld. CIT (A) and also placed ground-wise written submissions as under :- Ground No. (1) 1. That on the facts and in the circumstances of the case the ld CIT(A) is wrong, unjust and has erred in law in upholding finding recorded by the ld AO that agricultural land at vill Manpur Nanglia, Sanganer sold by the appellant during the year is a capital asset and not an agricultural land within meaning of sec. 2(14)(iii) of the IT Act, 1961 and therefore profit of Rs. 110887/- earned by the appellant on sale thereof is not exempt but chargeable to tax as Long term Capital gain. 1.1 It is evident from assessment order that assessee also filed before A.O. a copy of certificate from Tehsildar, Sanganer to the effect that impugned agricultural land is beyond 8 Km from Jaipur Munici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at page no. 13 first para also but at the time giving the finding he misunderstood the facts. It is submitted that certificate produced by Appellant showing the land outside the 8 KM of municipal limits. The Ld. Assessing Officer only on the ground that appellant produced photocopy of the certificate and not original hence he cannot rely/authenticate the certificate. In view of the above facts duly verifiable from the assessment order and appeal order itself the Ld. CIT(A) recorded the findings on wrong footing. The Ld. CIT(A) is thus wrong and has erred in law in denying the claimed exemption. Ground No. (2) 2. That on the facts and in the circumstances of the case the ld CIT(A) is wrong, unjust and has erred in law in upholding finding recorded by the ld AO that agricultural land at vill Rampura, Tehsil Chaksu sold by the appellant during the year is a capital asset and not an agricultural land within meaning of sec. 2(14)(iii) of the IT Act, 1961 and therefore profit of Rs. 14050400/- earned by the appellant on sale thereof is not exempt but chargeable to tax as Long term Capital gain. 2.1 The assessee claimed that said agricultural land is beyond 2 Km from Chaksu Municipality w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand report alongwith report of Director RGDC, Survey of India to assessee for his comments. It is submitted that in respect to agricultural land at Khasra No. 747/1, 825 714 at village Rampura, Bujurg Tehsil Chaksu the Ld. A.O. alongwith remand report sent letter No. 606/44-J-1 (Data supply) dated 07-02-2018 wherein in table given at the end at S.No. 2 the Director RGDC, survey of India has certified that the distance of said land from Jaipur Municipal limit is minimum 18.4 Km and maximum 19.7 Km and so the said land of assessee being agricultural land within the meaning of section 2 (14) and as it is not falling in exceptions given in Section 2 (14) (iii) (b) of I. T. Act, 1961 and therefore is not a capital asset. The land being agricultural land which is not a capital asset and hence no capital gain tax is leviable thereon u/s 45 of the Act and long term capital gain tax levied by Ld. A.O. on the sale of said agricultural land is wrong which deserves to be deleted. It is thus prayed that the said land be held as agricultural land and not being capital asset not being liable to assess capital gain. Ground No. (3) 3. That without prejudice to the ground No (1) (2) above the ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madras High Court in case of CIT Vs. Adhinitha Foundation P. Ltd. (2017) 249 Taxman 37 Copy of submitted after considering and analyzing various judgements on the issue held that the power of entertaining the claim vests with the Appellate Authorities based on the facts and circumstances of the case. The power of the Appellate Authorities to consider claims made based on material already on record is co-terminus with the power of the Assessing officer. The failure to advert to the claim in the original return or the revised return cannot denude the appellate authorities of their power to consider the claim, if, the relevant material is available on record and is otherwise tenable in law. Any other view will set at naught the plenary powers of appellate authorities. It is well settled that even if a claim made by the assessee does not form part of the original return or even the revised return, it can still be considered, if, the relevant material is available on record, either by the Appellate Authorities, which includes both the Commissioner (Appeals) and the Tribunal by themselves or on remand, by the Assessing officer. Further Hon ble Bombay High Court in the case of CIT Vs Prut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the considered view, that as the same was raised by the assessee on the basis of a simpliciter claim in the course of the assessment proceedings and not by filing of a revised return of income, therefore, in the backdrop of the judgment of the Hon ble Supreme Court in the case of Goetze (India) Ltd. (supra) no fault can be attributed to the A.O for refusing to entertain the said claim of deduction of the assessee. But then, the assessee remaining well within his rights had rightly raised the aforesaid claim for deduction u/s 54B before the CIT(Appeals), who in our considered view, remaining well within the realm of his jurisdiction had rightly entertained the assessee s claim for deduction u/s 54B of the Act, and finding the same in order had directed the A.O to allow the same. Before parting, we may herein observe, that as our indulgence has been sought by the department only for adjudicating as to whether or not the CIT(A) was well within his jurisdiction to allow the assessee s claim for deduction u/s 54B of the Act, despite the same not having been raised in the return of income, therefore, we are confining our adjudication to the said extent only. Accordingly, finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in response to notice under section 133(6) in the form of letter for same agricultural land. In these circumstances, the AO should have examined the Tehsildar thereon and should also make enquiry from him that how the distances were measured while issuing two different distances for the same land. The AO did not make any enquiry to verify the correctness of position. The AO only on the ground that the certificate filed by the appellant is in photo copy and not in original, held that the certificate furnished by the appellant cannot be relied on. Thus, prima facie it appears that Tehsildar Sanganer has issued certificates on his whims without verifying the actual distance only on estimates as per dictate which cannot be relied. The distance is to be measured aerially as per law in force for A.Y. 2014-15 which can only be done scientifically by putting aerial line on khasra maps from municipal limit and should have attached with certificate so as to rely any certificate of distance. Thus reliance placed by A.O. on certificate issued by Tehsildar, Sanganer is disregard of the certificate produced by assessee of the same Tehsildar, is without any basis and is wrong and bad in law. 5.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India, we are of the considered opinion that the land being agricultural land in the case of assessee, situated at village Rampura, Chaksu is beyond 2 km of Municipal limit of Chaksu Tehsil and accordingly not a capital asset as per law. Hence no capital gain tax is leviable thereon u/s 45 of the IT Act, 1961. The long term capital gain tax levied by A.O. on the sale of said agricultural land is wrong and unjustified. In view of the above discussion and evidence furnished by the ld. A/R, we find no justification to sustain the addition. Thus the additions made by the AO and sustained by the ld. CIT (A) in respect of both the agricultural lands are deleted. 5.2 Regarding the issue involving grant of deduction under section 54B and 54F, we have considered the submissions of the ld. A/R and perused the records placed before us. It is evident from assessment order that assessee has claimed exemption/deduction under section 54B and 54F of the IT Act, 1961 before A.O. and produced before him copy of purchase deed of agricultural land for purchase of agricultural land for Rs. 1,36,40,000/- and a copy of purchase deed of residential house for purchase of Residential House at Rs. 1,29,35, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case. The power of the Appellate Authorities to consider claims made based on material already on record is co-terminus with the power of the Assessing officer. The failure to advert to the claim in the original return or the revised return cannot denude the appellate authorities of their power to consider the claim, if, the relevant material is available on record and is otherwise tenable in law. Any other view will set at naught the plenary powers of appellate authorities. It is well settled that even if a claim made by the assessee does not form part of the original return or even the revised return, it can still be considered, if, the relevant material is available on record, either by the Appellate Authorities, which includes both the Commissioner (Appeals) and the Tribunal by themselves or on remand, by the Assessing officer. In support of the claim of the assessee, the ld. A/R placed reliance on the following case laws :- (1) Hon ble Bombay High Court in the case of CIT Vs Pruthvi Brokers Shareholders Pvt. Ltd. (2012) 349 ITR 336, 23 Taxmann. Com 23 (Bom) dated 21-06-2012 after taking cognizance of the judgment of the Hon ble Supreme Court in the case of Goetze (India) Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f income, therefore, in the backdrop of the judgment of the Hon ble Supreme Court in the case of Goetze (India) Ltd. (supra) no fault can be attributed to the A.O for refusing to entertain the said claim of deduction of the assessee. But then, the assessee remaining well within his rights had rightly raised the aforesaid claim for deduction u/s 54B before the CIT(Appeals), who in our considered view, remaining well within the realm of his jurisdiction had rightly entertained the assessee s claim for deduction u/s 54B of the Act, and finding the same in order had directed the A.O to allow the same. Before parting, we may herein observe, that as our indulgence has been sought by the department only for adjudicating as to whether or not the CIT(A) was well within his jurisdiction to allow the assessee s claim for deduction u/s 54B of the Act, despite the same not having been raised in the return of income, therefore, we are confining our adjudication to the said extent only. Accordingly, finding no infirmity in the order of the CIT(Appeals), who in our considered view remaining well within the realm of his jurisdiction had entertained the assessee s claim for deduction u/s. 54B of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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