TaxTMI 
TaxTMI 
2018 (6) TMI 270
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....Ld. CIT(A) and thereafter, ITAT. The case was adjudicated by ITAT, Delhi, C-Bench and the operative portion of the order is reproduced in the assessment order in which the matter in issue was restored to the file of A.O. to consider the evidence brought on record and take a view, "Whether land sold was agriculture or not. If the land sold was agricultural land within the meaning of provisions of Section 2(14)(iii) of the Act, then, question of invoking provisions of Section does not arise." In view of these directions of the Tribunal the A.O. has taken-up the matter again for passing the assessment order. In order to provide the opportunity to the assessee of being heard, the A.O. asked the assessee to submit the following documents/explanation/reply : '(a) Document(s) evidencing conclusively that the land Khata No. 573, Khasara No. 1234 measuring 2970 sq. mtr situated in Village Roza Yakubpur, Pargana Tehsil Dadri, Distt. Gautam Budh Nagar was not a capital asset at the time of sale effected by you during AY 2007-08. (b) Also, furnish distance of the impugned land from the local limits of any nearest municipality etc. whether the municipality etc. falls in UP., Delhi or Hary....
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.... report of the Income Tax Inspector reveal that the distance between the impugned land and the Income Tax Office, Ghaziabad via motorable road is 9.0 KM, which strengthen the above two reports. Meaning thereby, the land in question falls in the area not being more than 8.0 KM from the local limits of Ghaziabad. Nagar Nigam. It was also brought to the notice of the assessee that since no crop was grown during the years 2005 to 2007, therefore, the character of the impugned land was not agricultural land but residential, which is further corroborated from the sale deed, in which, nature of land is mentioned as 'residential land'. It is also mentioned in the sale deed that same is having covered area having six rooms, one guard room, one generator room built-up on the impugned property, therefore, no agriculture activity could be conducted on the same. It was, therefore, brought to the notice of the assessee that land in question is not agricultural land. Since, there was an inadvertent error in the notice, A.O. issued corrigendum to the notice issued under section 142(1) pointing-out to the assessee that the land in question is a capital asset due to the reasons mentioned abo....
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....tored the matter back to the A.O. with a direction to examine whether the land sold during the year under consideration by assessee was agricultural land, within the meaning of Section 2(14)(iii) or not. The A.O. gave an opportunity to the assessee to prove that the land in question is agricultural land and confronted all the material collected by him during the course of assessment proceedings. However, the assessee did not explain the same. The matter was examined by various authorities and land in question was found within Municipal limits. The Ld. CIT(A) also referred to copy of the sale deed in question which shows that land sold was not agricultural land which is residential property having six residential rooms along with generator room etc., and is a constructed property. It was also noted that evidences reveal that no cultivation was held in this land in A.Ys. 2005 to 2007. The assessee himself described the said land to be non-agricultural when he has declared long term capital gains on the same. The Ld. CIT(A), accordingly held that the land in question situated within the municipal limits and is not agricultural land. The appeal of the assessee was accordingly dismissed....
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....ir father. On March 15, 1967, they agreed to sell the land to a housing co-operative society and, to enable them to complete the transaction, they applied in June, 1968, and March, 1969, for permission to transfer the land for a non-agricultural purpose and the permission was granted in April, 1969. A number of sale deeds were executed in May, 1969, and the purchasing society applied for conversion of the land to non- agricultural purposes, viz., construction of buildings. The question was whether the profit from the sale of the land was assessable to capital gains tax. The facts in favour of the appellants were : the land was registered as agricultural land in the revenue records and land revenue had been paid in respect thereof till the year 1968-69; there was no evidence that the land was put to non-agricultural use and the land was actually cultivated till and including the agricultural year 1964-65; there were agricultural lands abutting the land ; and the appellants had no other source of income except the income from those lands. The facts against the appellant were : the land was situated within the municipal limits of the Surat Municipality and at a distance of one kilomet....
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....veral evidences at assessment stage and confronted the same to the assessee seeking explanation as to how assessee claimed the impugned land as agricultural land. However, assessee did not file any explanation before A.O. and whatever documents were confronted to the assessee have not been rebutted by the assessee. Therefore, the material evidence collected by the A.O. at assessment stage clearly prove that no crops grown during F.Ys. 2005-06 to 2006-07 in the impugned land. Meaning thereby, prior to the sale on 15th April, 2006 and at the time of sale, no agricultural activities were carried out on the said land. This fact is corroborated by the sale deed in question, copy of which is filed in the paper book to show that circle rate of the property in question was Rs. 44,60,000/- which could not be of agricultural land and property under sale was residential property, on which, six residential rooms have been constructed along with guard room and generator room. Further construction was also going on in the impugned land. The sale deed is produced by the assessee on record. Therefore, it amounts to admission on the part of the assessee that the impugned land was being used for res....