TMI Blog2023 (11) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... n the AUDA, and are therefore within 8 kms. from the outer point of AMC. As noted that identical issue has been deal in the case of Shri Dashratbhai Gopalbhai Patel, [ 2021 (9) TMI 346 - ITAT AHMEDABAD] wherein they have held that the Development Authority cannot be equated with the Municipal Corporation, and therefore, the measurement of the Revenue Department fails. Thus distance measurement by the Revenue is not in accordance with law. As for the distance measurement submitted by the assessee, the same is based on Google Map and that submitted by the Dy. Engineering, Road Building Department, we fail to understand how this measurement can be treated as authentic. In our view, authority keeping records of land is the correct authority to issue certificate, and therefore, measurement certificate submitted by the assessee is also rejected. Since, there is no basis before us for determining the distance for the land sold by the assessee, the issue, we find, need reconsideration, and therefore the same is restored back to the AO to obtain necessary distance certificate from the appropriate authority, and thereafter adjudicate the issue in accordance with law. Appeal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l land sold is not a capital asset and , the entire addition ought to have been deleted, as prayed for. iii) That on facts and in law, the learned CIT(A) has grievously erred in confirming the action of the AO in applying the provisions of section 50C of the Act while computing the addition of capital gains. And the grounds raised by the Revenue in its appeal are as under: (1) The Id. CIT(A) has erred in direction the AO to verify and allow the claim u/s 54 by ignoring that (i) assessee had not made the claim u/s 58 in return of income, (ii) Section 54B deduction is allowed only if the land is used for agricultural purposes, (Hi) Section 54B envisages that in the 2 immediate preceding years, the assessee should have used the land for agricultural purposes which is not satisfied in this case as the lands have been purchased in one financial year and sold in immediate next financial year. (2) The Id. CIT(A) has erred in deleting the additions made u/s 68 of Rs. 64,85,000/- + Rs. 2,63,00,000/- + Rs. 3,34,50,000/- aggregating Rs. 6,62,35,000/- without appreciating the discrepancies and findings given by the AO in the remand report in the right perspective. (3) I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sset is that the land was situated beyond limits prescribed under section 2(14)(iii) of the Act to qualify as capital asset. The contention of the Revenue, on the other hand, is otherwise. The assessee has sold two pieces of land during the year (i) situated in Gam Telav, Ta. Sanand, and (ii) land at Gam Sanathal, Ta. Sanand. The assessee had contended that the lands fell in the exception provided u/s 2(14)(iii) of the Actbeing situated beyond 8 Kms. from the Ahmedabad Municipal Corporation and had measured the distance as per Google Map and based on certificate of Dy. Engineer, Roads Building Department. The assessee had submitted that both the land are located under Sanand Taluka, and are located beyond 2 Kms. from the local limit of Sanand, and therefore, as per the Notification No.SO-9447 (F.No.164/3-ITA-I dated 6.1.1994, they are not urban agricultural land. The assessee had also submitted Google Map and letter of Dy.Engineer, Road Building Department, reporting distance beyond 8 Kms. from the limit of the AMC and beyond 2 Kms. from the Sanand Municipality. The facts relating to the measurement of distance furnished by the assessee from the Google Map and ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned development of the area failing outside the periphery of Ahmedabad Municipal Corporation. A Municipality or Municipal Corporation is Constitutional body, while a Development Authority is a creation of statute. The role of Municipality or Municipal Corporation is altogether different from Development Authority. AUDA does not have elected representatives but only nominated representatives by the Government Moreover, it does not have power to levy taxes. It is held by Hon'ble Kerala High Court in the case of CIT v/s Murali Lodge 194 ITR 125 (Ker) that only those local authorities, township, etc. can be treated as municipality within meaning of section 2(14)(iii)(a) which satisfy the requirements of a municipality within the meaning of relevant Municipal Act. It is held in following judgements that a Development Authority is not a Municipality: a. Smt.T. Urmila v/s ITO (2012} 34 CCH 0477 HydTrib b. ITO v/s Shri Adela Krishna Reddy [ITA No.l838/Hyd/2013) Measurement of Distance Further the distance of Land is as under; Land at Distance as per Google Map Page Reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the Revenue authorities. We also perused the submissions filed in writing before us and the case laws referred to before us. The short issue for adjudication is, whether the lands sold by the assessee qualified as capital asset in terms of section 2(14)(iii) of the Act. For clarity, the section is reproduced hereunder: 2(14)(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 (b) 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 or cantonment board referred to in item (a) and which has a population of more than one lakh but not exceeding ten lakh; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 13. Since no contrary decision has been pointed out by the Revenue before us, therefore, ratio laid down by the ITAT in the said decision will apply in the present case also, following which, we hold that the distance measurement by the Revenue is not in accordance with law. 14. As for the distance measurement submitted by the assessee, the same is based on Google Map and that submitted by the Dy. Engineering, Road Building Department, we fail to understand how this measurement can be treated as authentic. In our view, authority keeping records of land is the correct authority to issue certificate, and therefore, measurement certificate submitted by the assessee is also rejected. 15. Now since, there is no basis before us for determining the distance for the land sold by the assessee, the issue, we find, need reconsideration, and therefore the same is restored back to the AO to obtain necessary distance certificate from the appropriate authority, and thereafter adjudicate the issue in accordance with law. The assesses claim of exemption u/s 54B of the Act, is also restored back to be dealt with thereafter. The ground no.1 to 3 raised by the assessee, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 Zamirkhan Z. Pathan 4,85,000 11 Kamrunisa Ansari 25,00,000 18 Bharat Bharwad 19,00,000 19 Rakesh B. Shah 10,00,000 Total 64,85,000 The Assessing Officer in the remand report has observed that Shri A.A. Pathan has debit balance of Rs. 27,20,185/- as on 01/04/2011 but as per books of Shri A. A. Pathan, the debit balance is Rs. 24,35,959/-, therefore, appellant's explanation should not be accepted. As regard to Shri Zamirkhan Z. Pathan, the AO has noted that return of income and confirmation was filed but bank statement was not submitted. As regard to Smt. Kamrunisa Ansari, the AO has noted that identity, genuineness and creditworthiness not proved. As regard to Shri BharatbhaiBharwad, AO has observed that copy of bank statement, return of income has not been filed. As regard to Shri Rakesh B. Shah, the AO has observed that bank account has not been furnished. Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant has submitted confirmation, copy of bank pass book. The AO has noted that creditworthiness has not been proved. In respect of Shri Y.Y. Sheikh, appellant submitted that amount is received from C. M. Motors, Prop. Shri Biren J. Patel and not from Shri Y. Y. Sheikh and submitted accounts from his books of accounts. The Assessing Officer has noted that the appellant has not discharged the onus, therefore, credit entry is not explained. As regard to Shri Kamlesh Bhagat, appellant submitted copy of account, copy of return of income and bank statement, however, the AO has noted that credit worthiness has not been proved as the total income shown is only Rs. 3,24,330/-. Appellant has submitted confirmation from the above persons and the amount taken has been returned back subsequently. Therefore, in view of decision of Honourable Gujarat High Court in the case of CIT Vs. Aayachi Chandrashekhar Narsangi, the addition made u/s. 68 is not sustainable in respect of above persons. 4.2.10. The appellant in respect of credit in the bank account received from following persons has stated that he has submitted the confirmation and other details and the amount has been received through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is seen from the bank statement of Smt. Shamana Shajid Momin held with AXIS Bank Account No.911010028697538 that there is a deposit out of closure proceeds in her bank account and out of above credit, cheque has been issued to the appellant. As appellant has furnished confirmation and entries through bank accounts and there is nothing abnormal noticed in view of decision of Honourable Gujarat High Court in the case of Rohini Builders (supra), the addition made by the AO cannot be sustained. As regard to credit entry of Rs. 7,50,000/- from Shri S. M. Pathan (S. M. Sipahi), the appellant has submitted that the confirmation from Shri S.M.Sipahi, bank statement and copy of return of income showing annual income of Rs. 7,50,000/- for A. Y. 2012-13. As appellant has submitted confirmation, bank statement and income tax return in respect of Shri S.M. Sipahi, the credit entry is duly explained. As regard to credit entry of Rs. 5,00,000/- from Shri H.N. Ghoghari, appellant has submitted confirmation, bank statement and copy of income tax return explaining the source of the credit entry. Therefore, in view of decision of Honourable Gujarat High Court in the case of Rohini Builde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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