9911796707
TMI Blog2012 (11) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the Income Tax Act, 1961 (herein after referred as 'the Act'). The case was selected for scrutiny on the basis of Annual Information Return which showed that the assessee had sold a property for Rs. 40 lakhs during the relevant period. Since no return of income was filed, notice under section 142(1) was issued on 14.9.2007 which was served on the assessee asking him to file his return of income for Assessment Year 2005-06. The assessee failed to comply with the said notice. He was afforded one more opportunity, by the Assessing Officer's letter dt.28.11.2007 to explain why the said transaction of Rs. 40 lakhs should not be brought to tax in his hands as unexplained income from other sources, to which also the assessee failed to respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and proceeded to bring it to tax as STCG by order under section 143(3) r.w.s. 252 of the Act dt.17.11.2009 determining the income of the assessee at Rs. 36.20 lakhs after taking the cost of acquisition of the said property at Rs. 3,80,000. 2.3 The assessee carried the matter in appeal before the CIT(A). The learned CIT(A) after considering the order of assessment, details filed and submission of the learned Authorised Representative of the assessee, came to the view that the land sold by the assessee is not a capital asset as per provisions of section 2(14)(iii) of the Act and therefore, the sale of the land was not liable to be taxed for capital gains in view of the fact that (i) a copy of letter dt.4.10.2010 issued by the Gram Panchayat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of hearing the case." 4. The grounds of appeal raised at S.Nos. 1 and 5 are general in nature and no adjudication is called for thereon. 5. The grounds raised at S.Nos.2 to 4 are all in relation to the sale of agricultural land by the assessee in the relevant period. The learned Departmental Representative filed a paper book containing written submission and other details of the case such as copies of notices issued, copy of AIR statement, copies of assessment order, CIT(A)'s order, Tribunal order dt.29.5.2009 during the first round and second round of orders and appeals, submissions made, scrutiny reports, etc. The learned Departmental Representative contended that the agricultural land sold by the assessee on 28.1.2005 was liable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal asset as per the definition of the section 2(14)(iii) of the Act as it is situated beyond 8 kms from the municipal limits of BBMP as held in para 3 and 4 of the said order. This finding, the learned counsel for the assessee argued, finds confirmation in the certificate dt.4.10.2010 issued by the Gram Panchayat, Bangalore South Taluk and notification No.9447/F.No.164/3/87/ITA-1 Dt.6.1.1994 issued by the Central Government in which it is seen that Bommanahalli Municipal Corporation is not a notified municipal corporation. The learned counsel for the assessee placed reliance for this proposition on the decision of the jurisdictional High Court in the case of CIT Vs. Madhukumar (HUF) in ITA No.369 of 2009 dt.29.3.2012 in which it was held i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at as the order of the order of the learned CIT(A) suffered from no infirmity, the same be confirmed and the grounds raised by Revenue accordingly dismissed. 7. We have heard both parties and have perused and carefully considered the material on record. Admittedly the assessee in the relevant period sold agricultural land measuring 16 guntas at Arakere village, Begur Hobli, Bangalore south Taluk on 28.1.2005 for a sum of Rs. 40 lakhs and which was bought by the assessee on 3.6.2004 for a sum of Rs. 3.8 lakhs. On consideration of the material on record, we are in agreement with the finding of the learned CIT(A) that the agricultural land sold by the assessee is not a 'capital asset' as per the provision of section 2(14)(iii)(b) of the Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal. We find from a perusal of the orders of the authorities below viz. Assessing Officer and CIT(A) that this issue was never the subject matter of dispute therein nor was it a ground of appeal raised before the learned CIT(A) or the Tribunal in both the original and revised grounds of appeal and therefore cannot be entertained by us. In coming to this finding, we find support from the finding laid down by the Hon'ble jurisdictional High Court in the case of Karnataka State Forest Industries Corporation (supra) wherein it was held that the power of the Tribunal under section 254 can be exercised only in relation to the grounds of dispute arising in the orders under appeal. This argument put forward by the learned Departmental Representat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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