TaxTMI 
TaxTMI 
2011 (8) TMI 556
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....he definition of capital asset as defined under section 2(14)(iii) of the Act or not. For this, assessee has raised following three effective grounds in his Cross Objection: "1. For that on the facts and in the circumstances of the case, the CIT (A) erred in law and in fact in not upholding the assessee's contention that no capital gains was chargeable to tax arose on sale of land as the asset transferred was "Agricultural Land" and therefore did not fall within the definition of "capital asset" defined in Sec. 2(14) of the I.T. Act. 2. For that on the facts and in the circumstances of the case, since the land in question was regularly assessed to land revenue and the same was recorded in the Land Records as agricultural land and there being standing Mango Trees which were planted by the predecessor in title and the agricultural activities having been carried; on the said land, the authorities below erred not accepting the assessee's claim that the land in question was "agricultural land" & therefore profit on its sale was not chargeable to tax. 3. For that on the facts and in the circumstances of the case, the land in question being used for agricultural purpo....
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....outer limit of Rajarhat municipality is approximately 2.5 Kilometers. This fact is evident from two certificates dated 13.10.2009 issued by Pradhan, Rajarhat Bishnupur, I No. Gram Panchayat. These certificates are enclosed at Annexure-II of this order. Further communication was made with BL & LRO, Rajarhat, North 24-arganas to know the distance of assessee's plot from boundary of Rajarhat Municipality, A copy of reply received from BL & LRO vide letter no.2031 /BL & LRO/RHT/09 dated 06.11.2009 is enclosed at Annexure-III from which it is evident that the distance of assessee's plot from Rajarhat Municipality boundary is approximately 2.5 kilometers. The certificates at Annexure-II and III establishes beyond doubt that assessee's land is a capital assets as defined in section 2(14)(iii) of the I.T. Act. (ii) In the course of his statement on oath under section 131 of the I.T. Act, 1961 on 05.11.2009, Shri Arijit Mitra again submitted a letter dated 26.10.2009 from Pradhan, Rajarhat Bishnupur, 1 No. Gram Panchyat which states that the distance of assessee's land from the Municipality Board or Office is 8 to 9 Kilometers. The assessee is again calculating distance of land from the ....
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....ed that 'here, a question arise whether distance has to be measured from the Jurisdiction of the Municipality (i.e. outer boundary) or local limits of the Municipality (i.e. Municipality Office). Also, the appellant's reliance on Notification No.9447 dated 06.01.1994 and the subsequent amended Notification No.1186 dated 28.12.1999, in my opinion, does not help his case because no mention of Rajarhat Municipality is seen there. I may add that, as per the definition, the character of the land is immaterial. So the question of whether an orchard can be classified as agricultural land is immaterial to the case. Similarly, whether or not any agricultural operations have been carried out therein is also not material. None of the arguments advanced by the appellant, in my opinion, bolster his case that the land in question is agricultural. Also none of the case laws cited by the appellant deal with the issue of the provisions of Sec. 2(14)(iii)(b) of the Act. Respectfully, differing from these, I hold that the land in question cannot be said to be agricultural. The AO's decision on this issue is confirmed and this ground of appeal is dismissed. Aggrieved, now assessee is in Cross Objec....
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....ern This is to certify that Sudhanshu Kr. Mitra owned land at Mouza Kalaberia (JL No. 30, RS Dag No. 338, 366, 344, 360, 314, 316, Khatian No. 476) under this Gram Panchayat jurisdiction. The distance of above land from nearest important land mark situated in Rajarhat Municipality area is Raigachi. The distance of above land from the nearest boundry of Rajarhat Gopalpur Municipality (Raigachi) is 2.5 KM (approx.)" Ld. Counsel as well as Ld. CIT-DR Shri Niraj Kumar were on agreement in respect to the facts of the case that the assessee's land is situated at Village Kalaberia which is 2.5 KM from Rajarhat Municipality. Both admitted that Rajarhat Municipality came into existence in 1994 and it is also a fact that distance of assessee's land from outer limit of Rajarhat Municipality is approx. 2.5 KM as certified by Pradhan, Rajarhat Bishnupur 1 No Gram Panchayat and BL &LRO. The Ld. Counsel also referred to revenue records maintained by B.L. & LRO, Rajarhat, which issued land records as on 8.12.2010, qualifying this land as 'shali', 'garden' and 'pond'. In view of these facts, Ld. Counsel Shri D. S. Damle stated that this land is agricultural land and not falling under the defi....
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....cation in the official gazette. As referred by Ld. Counsel the latest notification that is Notification under section 2(1A)(c), proviso (ii)(B) and 2(14)(iii)(b), i.e. Notification No.9947[F. No.164/3/87-ITA-I] dated 6.1.1994 whereas a draft notification was published by central government in exercise of powers conferred by item B of clause (ii) of the proviso to sub-clause (c) of clause (1A), and item (b) of sub-clause (iii) of clause 14 of section 2 of the Act, in the Gazette of India, Extraordinary, Part II, Section3, subsection (ii), dated 13.2.1991 under the Notification of Govt. of India in the Ministry of Finance, Department of Revenue, No. SO 91(E) dated 8.2.1991, for specifying certain areas for the purpose of said clauses and objections and suggestions were invited from the public within a period of 45 days from the date of the copies of the Gazette of India containing notification became available to the public. Further, this was amended by Notification No. 11186 dated 28/12/1999 in exercise of powers conferred by item (B) of clause (ii) of the proviso to sub-clause (c) of clause (1A), and item (b) of sub-clause (iii) of clause 14 of section 2 of the Act, and in superses....