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TMI Blog2024 (10) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... nd unjustified. 3. That the Ld. Commissioner of Income Tax (Appeals) has erred in law as well as on facts in not accepting the figure of population as per last census Which was available as per census 2011 and ignoring the provision of section 2(14) which is arbitrary and unjustified. 4. That the Commissioner of Income Tax (Appeals) has further erred in treating the land sold on the basis of unregistered agreement to be complete during the year in utter disregard of the decision of the Hon'ble Apex Court in the case of Balbir Singh Maini reported in 398 ITR 531 (S.C) duly cited before him and as such the order passed is arbitrary and unjustified. 5. That the Ld. Commissioner of Income Tax (Appeals) has further erred in not considering the fact that the assessee was eligible to claim deduction u/s 54B of the Act for which the necessary details were on record and as such the order is arbitrary and unjustified. 6. That the Ld. Commissioner of Income Tax (Appeals) has further erred in the upholding the alleged finding of the Assessing Officer that the possession of land had been handed over to the sellers without any evidence and as such the order passed on incorrect facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irrelevant; that even so, as per the latest Census, the population of Zirakpur Municipal Committee was 95,443; that the distance of the land sold from the nearest Municipal Committee of Zirakpur was more than 8 kms, measured aerially, and that so, the transfer of the land could not be held liable for capital gains tax as per the amended provisions of Section 2(14)(iii)(a) of the Income Tax Act. For his assertion regarding village Chhat having been under Gram Panchayat and it having no Municipal Committee at the time of the sale of the land, the assessee placed reliance on Notification dated 04.12.2012, of the Government of Punjab, Department of Rural Development and Panchayats. 5. The AO held that the Notification dated 04.12.2012 was not relevant, since the assessee had sold land in Financial Year 2016-17 and had given the possession also in Financial Year 2016-17; that therefore, the year of sale was considered as Financial Year 2016-17, in which the entire sale consideration of the land was liable to be taxed as Long Term Capital Gain, in view of the provisions of Section 2(47) of the Income Tax Act, 1961, read with the provisions of Section 53A of the Transfer of Property Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, it is exigible to capital gains. 7. The ld. Counsel for the assessee has contended that the ld. CIT(A) has erred in confirming the addition of Rs. 4,10,35,211/-, treating the agricultural land sold to be a capital asset, alleging it arbitrarily and unjustifiably to be within municipal limits; that the ld. CIT(A) has erred in not considering the Notification dated 04. 12.2012, but instead applying Notification dated 19.12.2016, which latter Notification is not applicable to the case at all; that the ld. CIT(A) has erred in not accepting the figure of population as per the last Census, which was available, i.e., the Census of 2011 and ignoring the provisions of Section 2(14) of the Income Tax Act; that the ld. CIT(A) has erred in treating the land sold to be a capital asset transferred, on the basis of an unregistered Agreement, wrongly disregarding the decision of the Hon'ble Supreme Court in the case of "CIT Vs Balbir Singh Maini", 398 ITR 537 (S.C); and that the ld. CIT(A) has erred in upholding the finding of the AO that the possession of the land had been handed over to the sellers, without there being any evidence to this effect on record. 8. The ld. DR, on the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be not relevant, is faulty, in as much as without considering the express requirements of the provisions, the AO merely held that the land sold was included in the Municipal Committee during Financial Year 2016-17, relevant to the year under consideration, when the land was sold and possession was given. 9.3 The ld. CIT(A), remarkably, has not entered any comment on this aspect of the matter in the order under appeal and still, the assessment order has been upheld. It is further seen that it was by virtue of Notification (APB 23-25) dated 19.12.2016, i.e., Notification No.10/ 16 /16-3 SS3/2788, issued by the Department of Local Bodies, Govt. of Punjab, that the municipal limits of Zirakpur were extended and village Chhatt got to be included therein. The Notification clearly states that vide Resolution No. 88 dated 08. 08.2016, passed by the Nagar Council, Zirakpur, Distt. SAS Nagar area comprising of Gram Panchayats of, inter-alia, village Chhatt, has been resolved to be included within the limits of Zirakpur, considering which, vide Notification No. 10/16/16-3 SS 3/ 2236, dated 04.11. 2016, objections/ suggestions were invited within 30 days under the provisions of Section 5(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early state that "population" means the population according to the last preceding Census, of which, the relevant figures have been published before the first day of the previous year. The AO went wrong in ignoring the contention of the assessee that given the distance of the situs of the land in question from the nearest Municipal Committee, i.e., the Zirakpur Municipal Council, the issue of population was not relevant. Further, the AO again went wrong in not taking into consideration the population figure of 95,443, as per the latest published Census, i. e., the Census of 2011, and holding that the Zirakpur Municipal Council had a population of more than 1.5 lakh, as per the Report released by Census India, 2011. Nothing has been brought on record by the AO to support this rounded off figure of 1.5 lakh, as against the exact figure of 95,443, as made available by the Census 2011-2020, a copy whereof has been appended by the assessee at APB 10-12. The relevant portion thereof, at APB 12, states in no uncertain terms that "the Zirakpur Municipal Council has a population of 95, 553 of which 50,497 are males while 45,056 are females as per Report released by Census India, 2011. Popul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd situated in any area which is comprised within the jurisdiction of a Municipality and which has a population of not less than 10,000; that these two conditions are pre-conditions and must be read conjunctively; that in other words, if both the conditions are present, then it would not be agricultural land and would be treated as a capital asset; that however, inversely speaking, if either of the two conditions is absent, the land would be agricultural land and would get excluded from the definition of "capital asset". On facts, it was held that though the land in question therein had been held to be within the jurisdiction of a municipality, their Lordships found that the second condition to bring the land outside the ambit of agricultural land, i.e., that the area has a population which is not less than 10,000, was absent; and that so, the Tribunal had rightly treated the land as agricultural land not included within the ambit and meaning of "capital asset". It was held that this was a finding of fact which had not been questioned by the Revenue as perverse being contrary to the record, and that the Tribunal was justified in holding that the lands which were sold were agricultu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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