TaxTMI 
TaxTMI 
2025 (6) TMI 794
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.... into consideration the evidence which has come on record, it seems that there are subsequent development which is required to be reconsidered by the Tribunal. 4. In that view of the matter, with a view to verify whether the distance of the land in question is more than 8 kilometer on the outskirts of Jaipur city is required to be re-verified by the Tribunal taking into consideration, the notification dt. 6th January, 1994 issued by the Income Tax Department and judgment of this Court in Tax Appeal No. 75/2014. The Tribunal will consider both the notification and judgment and if required make a request to Revenue Authority not below Deputy Collector to verify the distance from the outskirts of Jaipur to the land in question. 5. With the above direction, the matter is remitted back to the Tribunal only with a view to verify the distance. 6. It is made clear that we have not expressed any opinion on merits and it will be open for the Tribunal to reconsider the same and take an independent view after taking into account the new facts after verification and it will not being influenced by the decision of this Court." 3. As is evident that as per para 5 of ....
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....he Income Tax Department and judgment of this Court in Tax Appeal No. 75/2014. The Tribunal will consider both the notification and judgment and if required make a request to Revenue Authority not below Deputy Collector to verify the distance from the outskirts of Jaipur to the land in question. 5. The High Court in issuing the above directions specifically remitted the matter to the Tribunal only for the purpose of verifying the distance. 6. In view of the above, the submission is that the verification of the distance was to be done by the Tribunal itself and it could not have relegated the matter to the assessing authority. 7. The tribunal has remanded the matter to the assessing authority for simple reason that the verification of the distance required proper and supporting evidence, which was not provided to it. If that be so, the tribunal could have requested the Revenue Authority as directed by the High Court to make the measurement and submit the report and acting upon such report could have recorded its finding rather than reminding the matter to the assessing officer. 8. It may be pertinent to note that the ITAT is the last fact finding ....
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....he High Court is reiterated here in below : "(i) Whether in the facts and circumstances of the case the Tribunal was justified in reversing the finding of Assessing Officer as well as CIT (A) and holding the agricultural land as exempted under Section 2(14)(iii)(b) of the Act, despite the fact that the said land was falling within 8 kms of the municipal limit and thereby deleting an addition of Rs. 6,38,40,000/-. (ii) Whether in the facts and circumstances of the case the Tribunal as well as the CIT (A) were justified in deleting the addition of Rs. 14,30,009/- which was made by the Assessing Officer disallowing 25% of the expenditure claimed by the assessee as neither any documents nor any details were submitted by the assessee in support of the said expenditure ?" 7. In respect of the first question of law Hon'ble High Court held as under: 4. In that view of the matter, with a view to verify whether the distance of the land in question is more than 8 kilometer on the outskirts of Jaipur city is required to be re-verified by the Tribunal taking into consideration, the notification dt. 6th January, 1994 issued by the Income Tax Department and judgment ....
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.... has taken much time but was required to provide the natural justice to the stakeholders and therefore, there was delay and we record this short summary so as to bring those aspect of taking the long time to decide the issue sent back to this tribunal by our High Court. 11. At this stage we would like to reproduce the report of the Court Commissionerate dated 27.03.2024 which reads as under: COURT COMMISSIONER REPORT Hon'ble Bench vide Order Sheet dated 02.08.2023 had appointed the undersigned as Court Commissioner for verification of facts. Simultaneous directions, by the Hon'ble Bench, were issued to the State Land Revenue Authorities. A Report ("CC Report") dated 07.02.24 was submitted to the Hon'ble Tribunal by the undersigned along with the Report submitted by the State Land Revenue Authorities ("SLRA Report"). Hon'ble ITAT vide note sheet entry dated 08.02.24 had sought further report on the matter. In addition to measuring the distance from the outer municipal limits of Jaipur, another issue involved was deciding the outer limit of Jaipur Municipality. The contention of the Department, before the State Land R....
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....994 को जयपुर की बाह्यसीमा ग्राम आमेर की सड़वा मोड़ स्थित अन्तिम सीमा को माना गया। इस संदर्भित बिन्दु से निर्धारिती की प्रश्नगत भूमि के निकटतम बिन्दु खसरा नंबर 364 की न्यूनतम दूरी (रोड़ दूरी) तहसीलदार तहसील आमेर....
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....369;सार पांच किलोमीटर पांच सौ मीटर सत्यापित की जाती है। Thus, in terms of the finding given by the State Land Revenue Authorities the outer limit of Jaipur as on 06.01.1994 is held to be "Serva Mod" Village, Amber, from where distance of the impugned land is 11.5 km. The SLRA Report submitted by the State Land Revenue Authorities is self speaking in this regard and is already placed on record. Place: Jaipur (RAJEEV SOGANI) Date: 27th March, 2024 &n....
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....n this section for her claiming that the income is not chargeable to tax, than to justify her claim the copy of certificate dated 18.07.2008 signed by the Sarpanch of Gram Panchayat- Kukas and letter dated 25.03.2010 on plain paper claimed to be signed by the Patwar Halka of the village where the land sold is situated were filed. The reply and the papers filed were examined under the light of provisions of the Act and the claim of the assessee was found to be totally wrong and incorrect and against the provisions of Act as contained in Section 2(14)(iii) read with provisions for charging the income under the head Capital gains. The circle inspector was deputed to make inquiries, has reported that "The above mentioned land is situated 3.50 Kms. From Amer Chungi Naka and therefore is within 8 Kms. from the municipal limits of Amer and Jaipur." Report of the inspector dated 24.12.2010 is placed on the records. It is mandatory for claiming that the asset is falling within the provisions of Section 2(14)(iii) that such claim fulfills certain conditions. The land sold by the assessee during the previous year is situated in Village Kukas, PatwarHalka, Nangal Sus....
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....t the order of the Assessing Officer. 3. Findings of the Ld. CIT(A) The Ld. CIT(A) upheld the addition on the basis of findings of AO & further detailed investigation carried on by her. The findings of Ld. CIT(A) from para 6.4 at pg 7 of her order are as follows: - "Given the gravity of the issue and the evidence brought on record, ample opportunity was given to the appellant to rebut this evidence brought on record. In response, a certificate was filed by her from Shri Mangal Chand Kumawat and the appellant herself filed an affidavit stating that the said piece of land was beyond 8 Km. from the Jaipur Nagar Nigam limits. Once again this evidence was forwarded to the AO for necessary verification. The report of the AO has been reproduced earlier in this order. In the statement taken of Pooja Agarwal, by the AO, on 24/09/2012 to verify the averments made in the affidavit filed by her, she responded to question no. 6 as follows: "श्री मंगल चंद जी कुमावत ने मेरे साथ ज&#....
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..../-. [1] states that he had issued this certificate as an architect, and that he is not a Registered Valuer in any department. He admitted that he is an employee in Pooja Construction Ltd. for 2 to 3 years which was the company of the father of the appellant Shri Girish Agarwal. He has admitted that this certificate has not been issued under any law and that Ms Pooja Agarwal took him in her car and did what was asked of him by her. In response to question no. 6 he states-as follows: "मुझे नहीं पता कि मेरे द्वारा जारी किये गये प्रमाण पत्र में जो कृषि भूमि की बात की है की कौन से गाँव में स्थित है व उसका खसरा &#....
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.... of the certificate issued by the Sarpanch. Subsequently after making the physical verification Shri Dinesh Pareek categorically stated on 21/02/2012 that the certificate issued by him on 06/07/2011 was invalid. Thus, the affidavit filed by Ms Pooja Agarwal on the basis of these certificates is held not to have any evidentiary value in view of the above discussion. 7. The next submission of the AR is that the certification or the measurement taken by the officer of the Jaipur Nagar Nigam are not binding or mandatory. It is a fact, that nowhere in the law has it been stated by whom the certificate verifying the distance from the Jaipur Municipal limits is required to be issued. The certificate issued by Jaipur Nagar Nigam is held to have evidentiary value over and above those issued by the Sarpanchs and Patwaris by holding that the official of the Jaipur Nagar Nigam would have the correct information regarding the municipal limits. Moreover, there is no evidence that the certificates issued by the Sarpanch or the Patwari were prepared after the physical verification of the land from the Jaipur Nagar Nigam limit. On the other hand, the distance was physically measur....
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....ct, the distance of the said land from the municipal limits was gotten measured by the concerned Revenue Officer of the Jaipur Nagar Nigam having specific information about the municipal limits. Thus the finding of the Hon'ble Punjab and Haryana High Court is not applicable to the facts of the case of the appellant. The next case law relied on by the AR is that of Ashok Kumar Agarwal V/s ACIT, ITAT Jaipur Bench "B" Jaipur ITA No. 427/JP/2010. Once again the facts of the case relied on by the AR are completely different from the facts of the case of the assessee. In the case relied on by the AR the AO had rejected the certificate filed by the Sarpanch which was admitted by the CIT(A) and subsequently by the ITAT. On the other hand, in the case of the assessee the certificate issued by the Sarpanch and Tehsildar were invalidated by the actual physical verification done by the Revenue Officer of the Jaipur Nagar Nigam for Amer zone. Thus the evidence filed by the appellant by way of the certificates of the Tehsildar and Sarpanch and Jaipur Nagar Nigam dated 06/07/2011 were controverted when actual physical verification of the distance was done by the concerned official of....
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....gh Court and also the details of the land to record findings after verifying the distance of the land in question of the assessee. Subsequently, the tribunal directed the appellant to get the distance verified, but the appellant failed to do so. Looking towards delay in appeal, following letter was submitted by the Ld. DR dtd. 31.10.23 vide letter no 431: - "As per the directions of Hon'ble Rajasthan High Court, to determine the issue, the Hon'ble ITAT, Jaipur on 02.08.2023 appointed an 'independent court commissioner' for conduct of on the spot enquiry in presence of state revenue authorities, department officials and the appellant and the task of coordinating this enquiry was entrusted to the appellant. However, no action/efforts in this regards were taken by the appellant till 04.10.2023 i.e. for two months. 3. Despite the fact that on 12.09.2023, the appellant and the court commissioner, in the Hon'ble Bench promised that the enquiry will be done on 14.09.2023, no such enquiry was conducted by the appellant whereas relevant letters were issued to the concerned ITO and his seniors to depute department's officer for such enquiry. All such....
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....;िगम की बाहरी सीमा में कोई परिवर्तन नहीं आया है। बाहरी सीमा जैसी की सन 1994 में थी 2009 के राजस्थान राजपत्र जो आपके समक्ष हे में, कोई परिवर्तन नहीं आया है। केवल आंतरिक सीमाओं में वार्डों के अनुसार परिवर्तन किया गया ह....
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....ollowing reasons: - (i) The Id. Assessing Officer u/s 143(3) vide his order dtd 24.12.10 had rejected the contention of the assessee that the alleged land is agriculture land. This is clearly stated in his order at pg. 5 of the order, extract of the same is as below- "...It is therefore established that the land so sold by the assessee was outside the purview of provisions of section 2(4)(iii) of the Act. When this was brought to the notice of the assessee, then it was claimed that the agriculture activity was carried out on the land and the same is an agricultural land. The issues and the contention raised by the assessee also found not acceptable..." Which is Agricultural Land? In this context following Case Laws submitted with gist of the pronouncements: -Rasiklal Chimanlal Nagri v. CWT [1965] 56 ITR 608 (Guj.) Whether land is agricultural land or not cannot depend on the fluctuating or ambulatory intention of the owner of the land. The criterion must be something more definite, something more objective, something related to the nature or character of the land and not varying with the intention of the owner as to the use to which he wants to put ....
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....ust not only be capable of being used for agricultural purposes but should have been actually used as such at some point of time. A temporary non-user for agricultural purposes will not affect the character of the land but a permanent abandonment of user for agricultural purposes will affect the character of the land as agricultural land. The actual conversion of the land for non-agricultural purposes will also affect the character of the land as agricultural land. Whether such a conversion has taken place will depend on the facts of each case. (ii) That the complete land was purchased by the assessee in the month of Nov- 07 for Rs. 54,72,000/- which was subsequently sold in the very next month of Dec-07 for Rs. 6,93,12,000/- resulting into a gain of more than 12 times in one month. The land was sold prior to purchase, as the first pay order provided by the buyer (Kwality Resorts and Hospitality Limited) to assessee was dtd 15.11.07 and payment for purchase of land from seller (Pradeep Bhati, HP Choudhary and G C Agarwal) by the assessee was on 20.11.07 as per the statement of accounts of the assessee (copy attached as Annexure-B). Holding period of the complete land was v....
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....#2352;ण-1. जयपुर 13. Now coming back to the first order of the ITAT where in the revenue has taken following grounds; "1. The ld. CIT(A) has erred in upholding wrong distance reports prepared by the Income-tax Inspectors and ignoring the distance certificates issued by the Land Revenue Authorities, such as Patwari, Sarpanch etc. and Land Surveyor for the agriculture land at village Nagal Susavatan for the purpose of Section 2(14)(iii). The Inspectors and measured the distance without ascertaining the correct Municipal Limits and actual location of the impugned land sold by the assessee, accordingly wrongly sustained impugned addition made by AO on this score. 2. The Id. CIT(A) has erred in considering the remand report of the Assessing Officer in pursuance to Rule 46A who had failed to examine the elaborate Map by a Qualified Land Surveyor and a Google Map of distance between Municipal Limit and impugned land. The assessing officer also did not physically verify the distance, while rejecting the Surveyor's report and ignored the request of the assessee to verify the distance of the said land in assessee's presence for....
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....assessee falls within the purview of Section 2(14)(iii)(b) of the Act or not. If it does then 'capital gain' is chargeable otherwise not. The AO put the assessee to the task of proving that the agricultural land sold is not falling within the above stated 8KM. The assessee produced the following proof in support of her claim:- (1) A cop of the certificate dated 18-07-2008 issued by the Sarpanch of the Gram Panchayat, Kukas; a copy of this certificate is enclosed at PB-1. This certificate has been issued by the Sarpanch of the same village wherein the Revenue estate of the sold land is situated. (2) A letter from the Halka Patwari of the same village. As is revealed from the page 4 of the AO's order, he has discarded both the above mot relevant pieces of evidence. No other authority than the Sarpanch and Patwari of the same village can be so authentic to state and certify that the sold land is situated at a distance of more than 8 KM from the local limits of the related municipality etc. Surprisingly, the AO has relied on a report of his Inspector. This report was never confronted to the assessee. We have found the assertion of ld. AR that the AO did not r....
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....with Patwari also. 3.3 In second statement dated 21/02/2012 he was again bitterly confused and narrated twisted and incorrect facts without any evidence on record. a) In Answer No.3 Mr. Pareek has stated that physical verification has been done on 07/02/2012 with appointed inspectors of Income-tax Department Mr. Purshottam Sharma & Ramji Lal Meena. This observation is base-less as they have verified the so called land physically from the alleged Purani Chungi Chowki, Kunda Amer and the distance, according to above limits comes 6i.2 & 7 KM respectively, while they should had taken the distance from the limits of Jaipur Nagar Nigam, prevailing at the time of sale of land. It seems that limits of Japir Nagar Nigam is not clear to them. b) The Inspector appointed, Shri Purshottam Sharma had earlier given report to AO on 24/12/2010 (APB-24) in which he had mentioned that from Amer Chungi Naka distance of land is 3.50 KM and on the basis of this report, AO has made huge addition and said Shri Purshottam Sharma, Inspector and Revenue Officer of Nagar Nigam without identifying the limits of Jaipur Nagar Nigam and land in question has taken the a....
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.... land is out of 8 KM from Municipal limits of Jaipur. f) On re-cross examination by your honour in Answer No. 1 Officer has stated vide notification dated 18/04/1992. Thereafter again Revenue Officer was not satisfied with his own statement regarding correct distance of land. So he has taken time up to 28/02/2012. But no cross examination by AR of the assessee was allowed to Inspector. 3.3 In statement dated 11-03-2012 of Revenue Officer (not in presence of assessee's Counsel) in Ans. No.1 & 2 of the Revenue Officer has admitted that there was no change in outer limits of Jaipur Nagar Nigam through notification dated 25-09/- 1994 and 17/2/2009. Therefore, map (2009) is given final. Further Revenue Officer has stated that land in question in2007-08 & 2008-09 from Purani Chungi Chowki, Kunda, Amer 6.2 KM and from Kunda,Amer is at a distance of 7 KM. In answer No. 5 Revenue Office has stated that in 277-08 the land was 6.2 KM (it was from Purani Chungi Kunda). Thus in all these 3 transactions the Revenue Officer could not satisfactory explained or pin-point the area from where measurement has to be taken or from where is t....
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....ents and reports. The photo's in (Annexure A,B) are enclosed in which is mentioned from said Chungi Chowki distance of land of assessee is 10.9 KM, which is still verifiable. 5.2 In produced map If Nagar Nigam, Jaipur, the limits of ward n. 77 of Nagar Nigam etc. also appearing. A detailed map (Annexure -C) of said ward is enclosed, which shows the clear limits for land of assessee. In detailed map, you will find a place marked 'B (near Shyam Doongri Colony) where limits of said ward touched the Jaipur - Delhi Road and clearly limits is appearing in its from this place land of assessee is 8.2 KM. So assessee's land is 10.9 KM from Chungi Chowki and 8.2 KM from the limits appearing in map of ward no. 77. The (Annexure-D) is also enclosed for its certification. Thus assessee's land from both the angles is beyond 8 KM of limits of Jaipur Nagar Nigam. An affidavit of assessee is also enclosed for above correct position of land (Annexure-E) 5.3 It also seems that Revenue Officer of Nagar Nigam and Inspectors concerned have not followed the measurement procedure i.e. as per the road distance and not as per straight line distance on a horizontal....
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....pal limits and Khatoni/ Jamabandi of land. 4. Copy of Notification dated 18-04-1992 issued by the State Govt. stating that this land is not include the land in the village falling under jurisdiction of Jaipur Municipal Area. This Notification has been approved as valid document for identifying the Municipal Limit by the ITAT Jaipur Bench in the case of Pratibha Goyal. 5. The assessee submitted her own affidavit to certify the distance of more than 8 KMs from local limit of Municipality. The above overwhelming pieces of evidence which are available on record and filed by the assessee to support her claim, cannot be doubted by the Inspector's report. Accordingly, we hold that the piece of land sold was only agricultural land which does not give rise to any capital gain. The following decisions support the above views. 1. CIT vs. Lal Singh, 195 Taxman 420 (P&H)( copy enclosed at page 67 to 71 of APB 2. Ashok Kumar Agarwal, ITAT Jaipur XLUT.W.P.112 (copy enclosed at pages 72 to 74 of APB) 3. ITO vs. Ashok Shukla, 28 Taxman 111 (Indore) (copy enclosed at pages 75 to 79 of APB) 4. Smt. (Dr.) Subha Tripathi vs. DCIT, Circle- 6....
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....#2344;ंबर 364) की रोड़ द्वारा नापी गई. न्यूनतम दूरी (1) दिनांक 06.01.1994 की स्थिति के अनुसार ग्यारह कि.मी. पांच सौ मीटर एवं (2) दिनांक 22.12.2007 की स्थिति के अनुसार पांच किलोमीटर पांच सौ मीटर सत्यापित की जाती है। 20. Considering that aspect of the matter and as per the direction of our High Court we hold that the issue raised by the revenue of the....
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....JP/2023, the Hon'ble ITAT, Jaipur Bench had appointed Shri Rajeey Sogani as Advocate Commissioner to ascertain the correct facts in respect of distance of land from the outer limit of Jaipur Municipal Corporation which is a subject matter of appeal before the Hon'ble ITAT for computing Capital Gain. In view of direction received from Hon'ble ITAT, Jaipur, the undersigned vide this office letter No. 415 dated 15.09.2023 & various subsequent reminders and Notice w/'s 133(6) of the I.T. Act dated 18.10.2023 had requested to SDM, Amer to intimate the date and time for conducting distance measurement exercise in the supervision of Advocate Commissioner and in the presence ofthe undersigned and the representative of assessee. The SDM, Amer vide his office letter No. 1086 dated 18.12.2023(enclosed) has intimated this office that tho said distance measurement exercise will be conducted on 21:12.2023 at 11:00 A.M. Accordingly, the undersigned, Sh. P.K. Joshi(erstwhile ITO, Ward-1(2), Jaipur), Advocate Commissioner and representative of the assessed were present at the office of SDM; Aurer at scheduled time. The Tehsildar, Amer was deputed to meusure distance berween "Municipal Limi....
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....ation of facts. Simultaneous directions, by the Hon'ble Bench, were Issued to the Revenue Authorities Revenue Authorities, in the presence of the Court Commissioner and also in the presence of representatives of both the Parties had measured the distance from the two points of reference on 21.12.2023. The factual report so submitted by the Revenue Authorities is enclosed. Place: Jalpur Date: 7 February, 2024 (RAJEEV SÓGANI) COURT COMMISSIONER Document 4 BEFORE THE HON BLE ITAT, JAIPUR BENCH, JAIPUR BENCH CONSISTING OF HON'BLE DR. S. SEETHALAKSHMI (JUDICIAL MEMBER) AND HON'BLE RATHOD KAMLESH JAYANTBHAI (ACCOUNATNT MEMBER) IN THE MATTER OF POOJA AGRAWAL ITA NO. 927/JP/12, 84/JP/13 8. MA. NO. 23/JP/2023 COURT COMMISSIONER REPORT Hon'ble Bench vide Order Sheet dated 02.08.2023 had appointed the undersigned as Court Commissioner for verification of facts, Simultaneous directions, by the Hon'ble Bench, were issued to the State Land Revenue Authorities A Report ("CC Report") dated 07.02.24 was submitted to the Hon'ble Tribunal by the undersigned along with the Report submitted by the State Land Revenue Authorities ("SLRA Report"). Hon'ble ITAT vide note ....
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....¥à¤¯à¥à¤•à¥à¤¤ मानचितà¥à¤° के आधार पर राजसà¥à¤µ टीम दà¥à¤µà¤¾à¤°à¤¾ दिनांक 06.01.1991 को जयपà¥à¤° की वà¥à¤¯à¤¾à¤¹à¥à¤¯à¤¸à¥€à¤®à¤¾ गà¥à¤°à¤¾à¤® आमेर की सड़वा मोड़ सà¥à¤¥à¤¿à¤¤ अनà¥à¤¤à¤¿à¤® सीमा को माना गया। इस संदरà¥à¤à¤¿à¤¤ बिनà¥à¤¦à¥ से निरà¥à¤§à¤¾à¤°à¤¿à¤¤à¥€ की पà¥à¤°à¤¶à¥à¤¨à¤°à¤¾à¤¤ à¤à¥‚मि के निकटà¥à¤°à¤¾à¤® बिनà¥à¤¦à¥ खसरा नंबर 364 की नà¥à¤¯à¥‚नतà¤....