2023 (1) TMI 402

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....27/02/2015, for Assessment Year (AY) 2009-10. 2. The appeal raises a single issue, i.e., whether the agricultural land sold by the assessee on 30/03/2009, i.e., during the relevant year, is a capital asset under the Act or not, on the sale of which therefore 'capital gains' shall, or as the case may be, shall not arise to the assessee. Though agricultural land is excluded from the purview of a 'capital asset', defined u/s. 2(14), under cl. (iii) thereof, an exception is carved for agricultural land situate: (a) in an area comprised within the jurisdiction of a municipality (whether known as municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name), or cantonment boar....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....has erred in deleting the addition of Rs. 4,04,105/- made by the AO on account of short term capital gain without appreciating the fact that the AO has rightly taken the distance from nearest municipal limit of Panagar Nagar Palika. 2. The appeal is being filed as the case falls under exceptional clause of para 10(c) of the Board's Instruction No.03/2018 dated 11/07/2018. 3. Any other ground that may be adduced at the time of hearing." 4. We have heard the party before us, and perused the material on record 4.1 We may, at the outset, clarify that the appeal was heard ex parte the assessee -respondent, as there was no appearance by, or for and on her behalf, despite grant of abundant opportunity of being heard through....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... is the latest such. We say so in view of the considerable time that has elapsed, with urban India expanding at a rapid pace since 1994, even as the law (s.2(14)(iii)), removing the requirement for the Notification by the CG, stood amended only w.e.f. 01/4/2014. There is also no basis on record for the stated distance of 18 km. of the subject land from the limits of the Jabalpur Municipal Corporation (MC), with reference to which, apparently the nearest notified municipal corporation, the agricultural land under reference has been found by him as an agricultural land u/s. 2(14)(iii) and, thus, not a capital asset. In fact, the said distance stands mentioned variously at 15 km. (pg.5) and 18 km. (pgs. 9, 19) of his order. It is also not clea....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....he assessee, and is liable to be verified by the Revenue. Though, ordinarily, the claim for exemption of income is on the assessee, in the instant case we observe that no question was raised in respect of the distance of the land under reference (from Jabalpur MC), either by the AO or the ld. CIT(A). We have though considered it appropriate to make our order subject thereto inasmuch as there is nothing on record to exhibit the same, or even a mention of the source w.r.t. which the said distance, since accepted by the first appellate authority, has been stated, as well as, as afore-stated, the basis for working out the said distance. Further, once the assessee relies on a Notification, as she does before the ld. CIT(A), it is for the Revenue....