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2019 (7) TMI 656 - AT - Income TaxAdmission of additional evidence - Capital gain - Capital asset or agricultural land - the ‘certificate from the Tehsildar’, sought to be admitted as additional evidence is both unreliable and ambiguous. Indeed it does not qualify as a certificate from the tehsildar. - Rule 46A of IT Rules - Rule 29 of Appellate Tribunal Rules - said evidence is liable to be admitted in the facts and circumstances of the case, or not so - HELD THAT:- Where therefore the appellate court considers that such an additional evidence would be necessary for proper adjudication of the matter, i.e., where it cannot, in the absence of the said evidence, pronounce a judgment satisfactorily, it is to invoke its’ discretion even if the evidence being furnished before it is for the first time, and there has been no denial of opportunity by the authority below (i.e., before whom it ought to have been furnished) for adducing the said evidence. This, then, explains the law in the matter. It is, in view of the fore-going, not considered necessary for pronouncing the judgment satisfactorily to admit the ‘certificate from the Tehsildar’, sought to be admitted as additional evidence. The said certificate is both unreliable and ambiguous. Indeed it does not qualify as a certificate from the tehsildar. There is nothing on record, or sought to be admitted, that the prescribed distance applicable in this case is 2 km., with the applicability of a higher distance failing the assessee’s case. Even if falling outside the said limit, it will not by itself imply that the said land, forming part of one, contiguous land sold by the assessee, which is not an agricultural land by definition and, thus, a capital asset u/s. 2(14)(iii), is an agricultural land. It is the entirety of the facts that are to be seen, which suggest the subject land to be not an agricultural land and, in any case, not sold as an agricultural land. In fact, given the area of the land under consideration (16K, 1.5 M), the said limit, where so, would be breached by some metres, hardly impacting the nature of the land. Indeed, the ld. CIT(A), who has also decided the issue on merits, only considered the sale document, registered with the office of the subregistrar, specifying the subject land to be within the municipal limits of Goraya, as itself sufficient for the purpose. In fact, the municipal limits itself keep changing with time, so that that is another aspect of the matter, and which would therefore require to be determined before placing reliance on the said certificate, even as we have examined the issue even from the stand point of the truth of its contents, finding it to be of no consequence. In our view, therefore, the assessment stands satisfactorily concluded on the basis of the material on record and, accordingly, the assessee’s plea for admission of additional evidence is liable to be rejected. We decide accordingly. - the assessee’s appeal is dismissed Non-grant of indexation benefit u/s. 48 in computing the impugned long-term capital gain - HELD THAT:- As perusal of the assessment order, however, reveals an indexation benefit of 5.82 as having been applied by the AO in arriving at the long-term capital gain, inflating thus the cost (of acquisition) by the said factor. The charge therefore is incorrect. Any mistake in applying the correct index, if so, could be addressed by moving a rectification application. We have accordingly no reason to interfere. We decide accordingly. Assessee’s appeal is dismissed.
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