TaxTMI 
TaxTMI 
2019 (5) TMI 854
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.... per AIR information, the assessee had sold a piece of land on 25.03.2014 for a consideration of Rs. 1,73,55,850/- and since the assessee has neither shown any capital gain; nor any agricultural income or any exempt income earlier on the sale of the land in question, the AO issued notice to the assessee as to why the property should not be treated as capital asset? The AO took note that the land in question was purchased by the assessee on 09.12.1994 for Rs. 2 lacs by registered sale deed. And the AO noted that the land is situated at Khasra No. 142 and 142/4 at village Mogra Kalan, Patwar area - Mogra Kalan, Tehsil - Luni and the total area of property was 15.13 (11.09) bigha. According to the AO, though the assessee claimed that the land in question was agricultural land which was situated beyond 8 kms. from the municipal limits of Jodhpur Nagar Nigam and claimed that the income on sale of land is exempt from tax, he did not agree for the following reasons. The AO noted that the assessee company was incorporated in 1991 and since the objects in the memorandum of association was for the company to manufacturing and trading of bearings and other metal machinery parts/items and ther....
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...., the AO wrote a letter to the Patwari, Mogra Kalan to intimate the aerial distance of the land from municipal limits along with Map of the land and its distance. According to AO, no response was received from Patwari, Mogra Kalan. Since no reply was received the AO sent certain reminders etc. to the Tehsildar but the Tehsildar did not give distance clearly from the property in dispute and the municipality. However, the AO acknowledges that copy of Girdwar report suggests that crop is sown upto 16.10.2016 on the land (sale happened on 20.03.2014). However, AO noted that since the Tehsildar report was silent in respect to the aerial distance of the municipal limit and the reports were clearly spelling out the distance of the land in question but speaks only about the distance of the village Mogra only, so, the AO did not accept the report. 6. Thereafter, he deputed an Inspector named Shri Jogal Kishore Choudhary (retired/re-employed with the department) was deputed to give report about the distance from the municipal area. As per his report the land is covered by a boundary wall, two shops have been constructed at road side of the land. The land is a barren land, covered with bus....
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....s not have agricultural activities. According to Ld. AR that the certificate of Patwari Mogra Kalan dated 26.03.2014 has clearly spelt out that the land in question is situate about 10 kms. from the outer limit of Jodhpur Nagar Nigam which fact has been acknowledged by the AO at para 6 of his assessment order. And the Inspector deputed by the AO had submitted his report dated 30.11.2016 has stated that the land is at a distance of 9 to 10 kms. from the municipal limit and for that he relied on the distance between Jhalamand Circle and assessee's property with the aid of Google Map. Thereafter, the Ld. AR drew our attention to page 13 of the paper book which is the screen shot from Google Map, which shows the flight distance (aerial) between Jhalamand Circle (Jodhpur Nagar Nigam outer limit) and Mogra Kalan (place where assessee's property is situated) shown as 13 Kms. According to the Ld. AR when the Patwari, the Revenue Officer who is the custodian of Revenue records has certified the distance and the serving Inspector of the Department also has concurred with the view of the Patwari, the matter should have settled there. However, the AO not getting a report against the claim r....
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.... first instance) are emphatic and are reliable. Therefore, we are left with no option but to accept them as correct when these are pitted against the variant statements which in our considered opinion do not seem to be devoid of fearlessness or fairlessness." 8. Further, in order to counter the argument of Ld. DR that the assessee did not return any agricultural income or claimed expenditure on the land in question earlier goes on to shows that the land in question is not agricultural property, the Ld. AR drew our attention to CIT Vs. Smt. Debbie Alemao 331 ITR 59 (Bom) in which a similar contention was taken by the Revenue that the land sold which was claimed as agricultural land by the assessee was not actually used for agriculture inasmuch as no agricultural income was derived from this land and was not shown by the assessee in their income returns. In that case it was explained by the assessee saying that there were coconut trees in the land but the agricultural income derived by sale of coconuts was just enough to maintain the land and there was not actual surplus. Hence, no agricultural income was shown from this land. In the aforesaid factual matrix, the Hon'ble High Cour....