2012 (1) TMI 190

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....this common order. 2. The common issue involved in all the appeals relates to levy of short term capital gain on sale of agricultural land. Except difference in figures the issue involved is identical. For sake of convenience the grounds of appeal in ITA No.5304/Del/2011 in the case of Smt. Manju Bansal are reproduced as under:- "1. On the facts and in the circumstances of the case, the CIT(A) has erred in law and on facts in deleting the addition of Rs. 2,34,70,697/- made by the Assessing Officer on account of Short Term Capital Gain. 2. The order of the ld. CIT(A) is erroneous and is not tenable on facts and in law." 3. The only issue for consideration relates to levy of short term capital gains on sale of agricultural land. T....

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.... share and surplus amount are given as under:- Sl. No. Name A.Y. Amount 1. Smt. Manju Bansal 2008-09 Rs.2,34,70,697/- 2. Smt. Manju Bansal 2009-10 Rs.2,97,94,499/- 3. Smt. Nirmal Bansal 2008-09 Rs.2,34,70,697/- 4. Smt. Nirmal Bansal 2009-10 Rs.2,97,94,502/-. It was further submitted that assessees have sold agricultural lands which were situated more than 8 kms. from outer Municipal limits of Gurgaon. Therefore, the said agricultural lands were outside the definition of "Capital assets" as defined in sec. 2(14) of the Income-tax Act, 1961. Consequently the capital gains arising on sale of such lands was not subject to any taxation under Income-tax Act, 1961. It was also su....

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.... municipal limit of Gurgaon, the agricultural lands were not capital asset and therefore, the profits arising on sale thereof will be exempt from income-tax. 6. Before us, the learned CIT-DR submitted that two conditions are to be satisfied for claim of exemption i.e. it should be agricultural land and should be situated more than 8 kms. away from municipal limits. He further submitted that the learned CIT(A) has not examined whether the lands sold were agricultural lands. Therefore, CIT(A) should have examined the nature of lands. He, therefore, submitted that the matter may be set aside to the file of learned CIT(A for deciding the nature of lands sold by both the assessees. He placed reliance on the decision of ITAT, Cochin Bench in t....

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....ies and gone through material available on record. The AO had made disallowance merely on the ground that possibility of shortest distance less than 8 kms. from outer limits of Municipal Corporation could not be ruled out. The assessee had filed certificate from Tehsildar of Gurgaon that the lands sold by both the assessees were situated 9 kms away from Municipal Corporation limits of Gurgaon. The AO had also obtained a certificate from the District Town Planner, who had also certified that the lands were situated at 8.5 kms on the date of sale. No other evidence was brought on record by the AO to prove that the impugned lands were situated within 8 kms. from outer limits of Municipal Corporation of Gurgaon. The AO has not doubted the natur....