TaxTMI 
TaxTMI 
2021 (5) TMI 506
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....On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in ignoring the clinching evidence available on record that the land in question was "padat bhoomi", which literally means "barren land" as opposed to "krishi bhoomi", which means "agricultural land" and also the fact that no agricultural operation had been carried out on such land ever. Therefore, by all means, the land in question was "non-agricultural land" and hence, rightly liable to tax as a "capital asset" within the meaning of section u/s.2(14) of the IT. Act. Letter No.342 dated 21.03.2016 of the Tahasildar, Abhanpur is enclosed as Annexure-1 in support of the above claim. Ground No.3 : On the facts and in the circumstances of the case, the Ld. CIT(A), Cuttack is not justified in ignoring the fact that while acquiring the land, the NRDA had classified the land as "Padat" (barren land) in Page-2-4 of sale deed and had accordingly deducted TDS u/s.194IA from the "sale consideration" as it was a "non-agricultural land", but the CIT(A) has still held the land in question to be "agricultural land" ignoring such relevant material. A copy of the sale deed dated 17.08.2012 is enclosed herew....
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....and as per Section 2(14) of the Act. He treated it as a business income because the income has been generated as an adventure in the nature of trade and commerce. Accordingly, the AO added Rs. 2,08,56,430/- to the total income of the assessee. 4. Feeling aggrieved from the order of AO, the assessee filed appeal before the CIT(A) and the CIT(A) after considering the documents, allowed the appeal of the assessee. 5. Aggrieved from the order of CIT(A), the Revenue is in appeal before the Income Tax Appellate Tribunal. 6. Ld. CIT-DR relied on the order of the AO and submitted that the CIT(A) has gross committed error in allowing the appeal of the assessee by holding that it is an agricultural land defined under Section 2(14) of the Act, relying on the documents submitted by the assessee, ignoring the findings recorded by the AO. Ld. DR further submitted that there was an amendment which has not been properly considered by the CIT(A) while referring to Section 2(14) of the Act. 7. On the other hand, ld. AR of the assessee relied on the order of CIT(A) and has also filed paper book page Nos.1 to 13 which is placed in the record and relied on the judgment of the coordinate ben....
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....re than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten lakh." From the submissions tendered before the undersigned, it is observed that during the assessment proceedings before the AO, the certificate of the local Patwari dt. 08/04/2015 had been duly finished which stated that the plot of land in question was at a distance of more than 10 Kms from the nearest municipal boundary of Raipur, This certificate was duly taken on record by the Assessing Officer and its authenticity has not been questioned by the AO. Hence, the principal determining factor in deciding whether a plot of land in agriculture is squarely in favour of the assessee. The other objection raised by the AO in deeming this land non-agricultural is that TDS was deducted u/s. 1941A,by the Naya Raipur Development Authority [NRDA) while purchasing this land from the assessee. However, this deduction of TDS by NRDA cannot be of any importance in deeming a plot of land as agricultural or otherwise. All institutions tends to deduct TDS on payments made by them unless the payee provides them with a non-deduc....
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....ty (NRDA) was agricultural in nature and therefore exempt from the levy of a capital gains tax. Accordingly, the addition of Rs. 2,08,56,430/- made by the AO is deleted and the asses^see's appeal is upheld. (Relief allowed: Rs. 2,08,56,430/-} The assessee's appeal is allowed. During the course of hearing, ld. AR of the assessee also filed copy of the definition of the agricultural land which reads as under :- (iii) agricultural land- in India, not being land situate- (a) in any area which is comprised within the jurisdiction of a municipality- (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population- of not less than ten thousand [***] ; or 58IYM in any area within the distance, measured aerially,- (I) not being more than two kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten thousand but not exceeding one lakh; or (II) not being more than six kilometres, from the local limits of any municipality o....