TaxTMI 
TaxTMI 
2016 (5) TMI 726
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....der passed by the Assessing Officer. The aforesaid order was challenged by the Department by filing appeal before the Income Tax Appellate Tribunal, Indore Bench, Indore. The learned Tribunal considering the grounds made in the appeal passed the following order which reads as under:- 3. We have considered the rival submission sand perused the material available on record. So far as the non-appearance in the case of Shri Rakesh Shukla, in spite of service of notice, is concerned, therefore, we have no option but to proceed ex parte qua this assessee and tend to dispose of the appeal on the basis of material available on record and ore specifically when the fact are identical and are oozing out from the same transaction, being co-owner. Before coming to any conclusion, we are reproducing hereunder the aforesaid order dated 31.8.2012 for ready reference:- "The revenue is aggrieved by the impugned order dated 31.1.2012 broadly on the ground that on the facts and in the circumstances of the case, the learned first appellate authority erred in treating the land sold as agricultural land when the assessee failed to substantiate that any agricultural activity was carried out on the sai....
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.... consideration amounting to Rs. 1,29,21,582/- was received through cheque. The Assessing Officer concluded that the impugned land is situated within 8 kms from the municipal limit and then mentioned the provisions of section 10(37) of the IT Act which are applicable in the case of compulsory acquisition, therefore, is not applicable to the facts of the case as the land was sold by private deal and no exemption u/s 54B of the Act was claimed. So far as the argument of the learned CIT DR and observation of the Assessing Officer that since the land was not cultivated by the assessee himself and was carried o by the brother, therefore, it cannot be treated as agricultural land. We are not absolutely convinced by this argument/observation because there is no requirement in any Act more especially the Income Tax Act that only the self cultivated land will be treated a agricultural land. The Tehsildar is the concerned revenue officer who on the basis information/report of revenue Patwari issues a certificate. Since the brother of the assesee was doing agricultural operation, therefore, any income derived out of it will be treated as agricultural income. Even if less income has been shown,....
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.... 245. We find that in that case, the land was situated within municipal limits of Ahmedabad and the surrounding land was developed and since the land was not agricultural land, the gains from sale of such land was held to the exigible to capital gains tax. However, the land in question is clearly agricultural land situated beyond 9 kms from the municipal limit, therefore, this case may not help the revenue, moreso one fact pertinent to mention here that part of the same land, owned by one of the brothers, was treated as agricultural land, therefore, it is quite unjustified to treat part of the same land/chunk to the non-agricultural. Another case relied upon is from Hon'ble Bombay High Court in Fazalbhoy Inv. Company Pvt. Ltd.; 176 ITR 523 wherein there was no evidence showing that no agricultural operations were carried out on the land. The Hon'ble Court held that land was not agricultural. However, in the impugned land, agricultural operation was done by one of the brothers, therefore, with utmost regard, this judicial pronouncement may not help the revenue. Another decision relied on is CIT vs. Gemini Pictures Circuit Private Limited; 220 ITR 43 (SC). The land was situat....
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....pt in mind, one clear fact is oozing out that the impugned land is situated beyond the prescribed limit from the municipality, recorded as agricultural land in the revenue record, agricultural operation was done by one of the brothers, we are of the considered opinion that the no capital gains tax is exigible on sale of such land. So far as the objection of the learned CIT DR that the Tehsildar is not a competent authority for measuring the distance, we are not satisfied with such submission especially when the Inspector of the department of Income tax and Tehsildar both have certified that the land is situated beyond 8 kms from the municipal limit. We are of the considered opinion that Tehsildar is the most competent revenue Officer to certify the proof of agricultural operation, distance of land from a particular place, rate of land, etc. Our view is further fortified by the decision from Hon'ble Punjab & Haryana High Court in CIT vs. Lalsingh & Others' 228 CTR 575. so far as the issue of measuring the land through straight method/aerial method is concerned, we are of the view that for measuring the land we are supposed to go by the road, therefore, road distance is the m....
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.... clearly supports the case of the assessee. In the case of Lalsingh & Others (supra) the Hon'ble High Court concluded that "the report of the Tehsildar having certified that the assessee's land was 8 kms away from the municipal limit, the land constituted agricultural land entitling the assessee to exemption u/s 54B of the Act. 7. If the assessment order is analyzed, we are of the view that the learned Assessing Officer is more guided by section 45 of the Act which speaks about capital gains arising from the transfer of capital asset. Section 54B of the Act speaks about non-charging of gains of the cases where there is a transfer of land used fro agricultural purposes. An amendment was effected with effect from 1.4.1970 so as to include lands situated in certain specified areas within the ambit of non-agricultural land. However, burden is on the assessee to prove that the land is agricultural land and at the same time, onus is on the department to prove that the land is non-agricultural or it forms part of business asset. For the purposes of land being agricultural land, actual agricultural operation or cultivation or tilting of land is always not necessary. What is to be....
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....shing the distance of land beyond prescribed municipal limit and more specifically when Khasra number, etc. has been duly mentioned in the report of Tehsildar. So far as the argument of the learned CIT DR that the land was sold at a substantial amount is not the relevant factor to prove that it was non-agricultural land because it depends upon so many factors. Even in the grounds of appeal, the revenue has raised a ground that the documentary evidences produced by the assessee belong to the land of Shri Rakesh Shukla, brother of the assessee We are not convinced with this argument also because the total land is adjoining to each other and is from one chunk. This claim of the revenue rather supports the case of the assessee. As mentioned earlier, in the case of one of the brothers, it has been allowed as agricultural land, therefore, no different yard stick can be adopted in the case of another brother, being the land is part of the same chunk. The totality of facts clearly leads to the conclusion, under the facts narrated herein above, that the impugned land is agricultural land, therefore, the stand of the learned CIT(A) is affirmed. Finally, the appeal of the revenue is having ....
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....A of the Income Tax Act, 1961 has been filed against the order dated 31.08.2012 passed by the ITAT, Bench-Indore whereby the learned Tribunal affirmed the order passed by the Commissioner of Income Tax (Appeal) on 31.01.2012 and dismissed the appeal of the revenue. 2. Brief facts of the case are that in the assessment year 2008-09, the assessee declared income of Rs. 4,04,690/- on 05.09.2008. He also claimed exemption from capital gains on sale of land by claiming the same to be agriculture land situated in the revenue record of Village - Lasudia Parmar, Tehsil - Sanwer, District - Indore bearing Khasra No.184. 3. The sale consideration was amounting to Rs. 1,29,21,852/-. It is this amount, which he has received through cheque. The Assessing Officer by his assessment has held that the said agriculture land is situated within 8 kms. from the limits of municipal limit and refused to grant exemption, being an agriculture land. 4. The said order was challenged by the assessee by filing an appeal before the Commissioner of Income Tax (Appeal). The assessee filed number of documents to prove that land is more than 8 kms. by road from the municipal limit by straight distance method.....
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....that even as per the report of the Income Tax Inspector (pages 9 and 10 of the paper book) it has been mentioned that the land is situated 9.7 kms. by road from the municipal limit by a straight distance method. The map of the land (page 10) was prepared by the Income Tax Inspector himself, therefore, disregard to such document is not justified. A certificate has been issued by the Executive Engineer, Public Works Department (page 11 of the paper book) wherein it has been specifically mentioned that the impugned land is 9.6 kms. from the municipal limit. The Land Revenue Officer (Tehsildar) had also mentioned the Survey No.95 Area 4.22 acre, Survey No.96/1 area 1.20 acre and has mentioned that the land in question is about 10 kms. from the municipal limit and the population of the village is about 2000 persons. The assessee has also produced a certificate from the land Surveyor (page 14) wherein it has been mentioned that the impugned land is situated at 9.09 kms. from the Municipal limit. The assessee has also placed on record the google map (page 13). All these certificates clearly say that the impugned land is situated beyond 9 kms from the municipal limit, therefore, as per Sec....
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....residential building. In that situation, profit on sale of such land was held to be exigible to capital gains. However, in the impugned case, the facts are altogether different, therefore, may not help the revenue. A decision from Hon'ble Kerala High Court in Kalpetta Estates Ltd. vs. CIT; 185 ITR 318 was relied upon. In that case, it was held that burden of proof is on the assessee to prove that the land was agricultural land at the time of transfer and forest lands were acquired with the intention of extending plantation. Since no agricultural operation was carried out, it was held that it gives rise to capital gain on the sale of such land. In the case of Sarifa Bibi Mohd. Ibrahim; 136 ITR 621 (Guj) the land was situated near railway station and was sold on square yard basis to housing society. The profit from the sale of such land was held to be assessable to capital gains tax. Keeping in view the location and other attendant circumstances, it was held to be assessable to capital gains tax." 13. On-going through the aforesaid findings, we are of the view that findings in respect of distance of agriculture land, which is more than 8 kms from the municipal limit is based on....