TaxTMI 
TaxTMI 
2023 (4) TMI 132
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....al fixed for hearing on 24.1.2023, but again nobody appeared on behalf of the assessee. Therefore, it was decided to adjudicate the appeal, ex parte after hearing the ld.DR and considering the material available on record. 3. The grounds of appeal raised by the assessee read as under: "The ld.AO erred in making addition of Rs.2,53,08,032/- treating Exempt Long term capital under section 2(4) as taxable long term capital gain. The addition is in total disregards to the facts of the appellant's case and merely on suspicion, conjectures and surmises and is totally unjustified and deserves to be deleted and may kindly be deleted. On the facts and in the circumstances of the case and in law the ld.CIT(A) erred in holding that AO is correct and justified." 4. The solitary grievance of the assessee is with regards to the denial of claim of exemption to Long Term Capital Gains as per section 2(14) of the Act. 5. As transpires from orders of the authorities below, the appeal pertains to order passed in assessment proceedings consequent to revisionary order passed by the ld.Pr.CIT, Ahmedabad, under section 263 of the Act. The facts relating to the case being that during the....
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....ipal limits. ii) As regards, copy of certificate of talati-cum mantry, Tarapur for population of Tarapur, it is stated that population is around 3,000, but it is not clarified whether the population given is based on any census report or only estimation. As explanation in section 2(14)(iii) of the Act "population" means the population according to the last preceding census of which the relevant figures have been published. iii) The assessee has stated to have furnished certificate of Dy. Engineer, R&B Division, but certificate is issued by the Dy.Engineer, Road Project Panchayat sub-division, Gandhinagar, Certificate issued that the distance between Gandhinagar Sachivalayato Tarapur is more than 5 kms. No distance between boundary limits of Gandhinagar corporation to Tarapur is mentioned therein. iv) Certificate issued by GUDA states that the land is situated under AGRI Zone (AG-2) but you have not furnished any evidence, whether land was utilized for agri.purpose or not. It is also observed that the assessee has not claimed any agri.income in the return of income filed for the year under consideration. The land in question was not agri.land but capital a....
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....es from GUDA and Gandhinager Municipal corporation certifying to the contrary of the distance of the land being beyond 4Km and 5Km of the Gandhinager and Ahmedabad municipal Limits. The assessee furnished certificate from Gandhinagar Municipal corporation stating distance of the land being more than 6 kmsfrom it and a certificate from Gandhinagar Urban development Authority showing the distance of the said land being 9.53 kms from the municipal limits of Ahmedabad. He also furnished evidence of growing agricultural crop of Jawar on the said land, furnished Revenue record in Form No12 reflecting the said fact. 10. The ld.CIT(A) however upheld the order of the AO, holding at para 2.5 & 2 .6 of his order as under: "2.5 After going through the facts of the case, it is seen that the appellant has failed to furnish any evidences in support of his claim of exemption u/s.2(14) of the Act on the land sold. The same is treated as capital assets as none of conditions as laid down in section 2(14) of the Act has been satisfied. Accordingly, the AO has added the same in the total income. The appellant ahs harped on the certificates he has submitted of Talati, Dy. Engineer, R&B Divis....
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....l purposes was furnished by the assessee and in fact noted that no agriculture income had been returned by the assessee. But we find that the assessee did submit distance certificates of the land both from Gandhinagar and Ahmedabad municipal limits ,issued by the Gandhinagar municipal corporation and GUDA stating the land to be at a distance of 6Kms and 9.53 Kms respectively from the two municipalities. The Ld.CIT(A) has not dealt with these certificates submitted by the assessee. The assessee also contended that the land was used for growing Sorghum (Jawar) and furnished copies of Form No.12 evidencing the fact of the land being cultivated since 2007-08. The Ld.CIT(A) has not addressed this aspect also. 14. In view of the above we find that the Ld.CIT(A) has confirmed the addition made without dealing with the contentions and evidences filed by the assessee. 15. The issue clearly needs reconsideration. Since the matter for determination is the factual aspect of whether the land sold by the assessee fulfilled the criteria of section 2(14) of the Act to qualify as not being a capital asset, it would serve the interest of justice by restoring the issue to the AO who may dete....