TaxTMI 
TaxTMI 
2023 (11) TMI 539
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....ital assets U/s 2(14) of I. Tax Act hence capital gain from sale of land no. 1 & 2 of Rs. 53,42,336.00 is exempted U/s 2(14) the I. Tax Act, 1961 while in the case of the co-owner of such land Smt. Sudha Tyagi accepted by ITO Ward 2(3) Gzb. and granted exemption in capital gain while final the case U/s 143(3) of the I. Tax Act. 3. The learned CIT(A) erred in law and on fact in rejecting the Nagar Nigam certificate that the agriculture land no. 1099, 1135, 1136, 1137, 1139, 435, 1222 & 1258 situated in sub division of paragna Jalalabad which does not comes within the limit of Ghaziabad Municipality or Nagar Nigam as the said land is beyond the distance of 8 to 9 KM from the local limits of municipality at the time of sale of land and total population was 7918 of the last census 2011 while the said certificate was accepted by AO in remand report and no adverse comments has been made. However Ld. AO reply on the Google map of 2017 which is wrong and irrelevant for case relating to F.Y. 2008-09. 4. That the learned CIT(A) not consider the CBDT circular no. 17/2015 dt. 06.10.2015 which says that for the period prior to 2014-15 the distance between the municipal limits ....
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....% which comes to Rs. 69,73,749/- as per section 50C of I.T. Act, 1961. But despite ample opportunities provided to it, the assessee has not filed any written submission/explanation regarding calculation of capital gain. The assessee has also not complied with the notices issued during the course of verification and assessment proceedings. Thus, the attitude of the assessee is of non co-operative nature and deliberately avoiding the statutory proceedings. As the assessee has not furnished ITR for A.Y. 209-10 and the copy of sale deed of the properties and calculation of capital gain as per section 50C, therefore, I have no alternate but to complete the assessment ex-parte u/s 144 of 1.T. Act, 1961 by making an of Rs. 69,73,749/- to the income of the assessee as income from sale of property u/s 50C of I. T. Act., 1961. Since, the assessee has furnished inaccurate particulars of its income, penalty proceedings under section 271(1)(c) of the Act are being initiated separately." 3. Aggrieved by the assessment order, the assessee preferred an appeal before the Ld. CIT(A). The Ld. CIT(A) dismissed the appeal filed by the assessee vide order dated 24/11/2017 and sustained the addition, ....
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....d Report and the Rejoinder of the A.O. are reads as under:- "2. In this case AIR information has been received that during F.Y. 2008-09, the assessee had sold two immovable properties worth Rs. 69,60,720/- & Rs. 65,35,104/-along with Smt. Sudha Tyagi and the circle value of the said properties were Rs. 71,92,000/- & Rs. 67,55,498, respectively. The share of the assessee was 50% of the properties, which comes to Rs. 69,73,749/- (50% of Rs. 1,39,47,498). To verify the genuineness of the transaction, verification letters were issued to the assessee on the address available on records, but the assessee did not comply with the notices issued by this office. Subsequently, provisions of section 147 of the LT. Act, 1961 were invoked and after obtaining approval from the Appropriate Authorities, statutory notice u/s 148 of the IT. Act, 1961 dated 31.03.2016 was issued to the assessee on the given address through speed post. 3. During the assessment proceedings, ample opportunities were provided to the assessee as per order sheet entries, but the assessee denied for making compliance of the statutory notices issued by this office. Further, before passing assessment order, s....
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.... "Capital assets" means property of any kind held by an assessee whether or not connected with his business for profession, but does not include:- (i) Any stock in trade, consumable stores or raw materials held for the purposes of his business or profession. (ii) Personal effects, that is to say, moveable property (including wearing apparel and furniture) held for personal use by the assessee or any member of his family dependent on him, but exclude:- (a) Jewellery (b) Archaeological collections (c) Drawings (d) Paintings (e) Sculptures (1) Any work of art. (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 population of not less than ten thousand according to the last preceding census of which the relevant figures have been published before the first day of the previous year. 4. As per the notification under Section 2(1A)(C), proviso, Clause (II)(B) and Section 2(14)(II....
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....Act. 6. In the light of the above mentioned facts, it is submitted that there is no merits of the additional evidences submitted by the assessee before your honour under Rule 46A, and, therefore, may kindly be not entertained." 5.12 A rejoinder was filed during the discussion on 13.11.2017 which is reproduced as under: "1. She submitted a map of Village Morti, Ghaziabad on Google Map dt 03.10.2017 which shows that the village Morti, Ghaziabad situated at near Raj Nagar Extension, Ghaziabad and as per Google Map the distance from Morti to Ghaziabad is 6 Kms approx as per road distance marked in the Google map. (Since the land in question is less than the distance of 8 K M as notified by Notification NO: (SO 9447) F No: 164/3/87-IOTA.I dt. 06.01.1994, the land is a capital asset U/s 2(14) of the Income Tax Act). 2. That she placed reliance on the Notification issued by the UP Government in powers of Section 3(2) of the UP Nagar Nigam Act, 1959 which says that Village Morti covered under the Nagar Nigam Ghaziabad w.ef. 25.11.1994. 3. That ITO Ward 2(3), Ghaziabad not considered the issue regarding grant of exemption to the co-owner of the land being....
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....e place reliance on the Delhi ITAT judgment in appeal No.: 5028/DEL/2011 the case of Smt Chand Prabha Jain Vs ACIT, New Delhi and appeal No.: 5029/DEL/2011 in case of Sudhir Kumar Vs ACIT, New Delhi. In which it was held that the distance of land sold was to be seen at the time of sale of land and later development, if any will become of no consequence as the question to be determined is that whether or not on the date of sale the land falls within the parameters of agricultural land as section in Section-2(14). So, shortest road distance has to be considered as on the date of sale of land (16.06.2008). Copy of order as per Annexure-3. 2(a). That in respect of 2nd objection that the U P Government issued notification in 1995 that land at Village Morti come under the Nagar Nigam, Ghaziabad w.e.f. 25.11.1994. In this connection, it is submitted that the Ghaziabad Nagar Nigam constituted w.e.f. 31.08.1994 as per Annexure - 4. The said notification issued by the UP Government in power of Section-3(2) of the UP Nagar Nigam Act, 1959. Copy as per Annexure - 5. Section-3 of the UP Nagar Nigam Act, 1959 reads as under:- 3. Declaration of larger urban area. - (1) ....
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....08. Further, you have jointly sold agricultural land at Village Morte for sale consideration of Rs. 65,35,104/- and stamp duty was paid on the value of Rs. 67,55,498/- as per sale deed dated 16.06.2008. Since the land sold falls within 8 KM from the municipal limits of Ghaziabad, the land covers with the definition of Section 2(14) of the Income Tax Act, 1961. You are therefore required to furnish computation of capital gains with the working note on the indexed cost of acquisition. Copy of the notice as per Annexure-7. C. That the said assessee given reply on the above query vide reply in para 2 as under: In reference to the agricultural land sold at Village Morte, Ghaziabad we have furnished documentary evidence which clearly provide that the mentioned agricultural land is situated in sub division Jalalabad which does not come within the limits of Ghaziabad Municipality as the mentioned land is beyond the distance of 8-9 KM from the municipality. Hence the agricultural land does not fall under capital assets and we would be unable to furnish the computation of the capital gain on sale made jointly with Mrs Krishna Tyagi Copy of the reply as per Annexure....