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TMI Blog2015 (12) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the period. As the assessee is company, the MD is advised by counselors and CAs." 2. On the facts and circumstances of the case and in law, the Id. CIT (A) has erred in allowing exemption to the Short Term Capital Gain of Rs. 53,98,220/- disclosed by the assessee in the return of income on the ground that subject matter of STCG was agricultural land as defined u/s. 2(14) of the Income Tax Act without appreciating the fact that the said claim was not made by the assessee either in the original return of income or revised return of income, which is in contravention to the judgment of Hon'ble Supreme Court in the case of M/s. Goetz (India) Ltd. Vs. CIT [284 ITR 323]. 3. On the facts and circumstances of the case and in law, the Id. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricultural land and being an agricultural land the asset can not be termed as capital asset as defined section 2(14) and hence the profit on transfer of such land cannot be charged as capital gain. Because of the wrong presumption about the chargeability of tax on this land (ignoring the fact that the land is agricultural land) the income was declared in the return of income and even during the course of assessment proceedings or till the time assessment completed, this mistake could not be rectified due to the ignorance of the facts and legal provisions. It was during the course of appellate proceedings of one of the relative of director the portion of the profit on the aforesaid land was charged to tax by their assessing officer and duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission has been supported by various case laws. Learned Authorized Representative requested to uphold the condonation of delay at the end of CIT(A) and to uphold the order on merit. On other hand Learned Departmental Representative supported the order of Assessing Officer. 3. After considering the aforesaid submission of the assessee on account of condonation of delay in filing of appeal as well as the additional evidences submitted by the assessee, the Assessing Officer was asked to submit remand report for the same. The CIT(A) found that the Assessing Officer vide letter dated 26.03.2012 submitted his report as under:- "There is no error in the assessment order passed by the Assessing officer and there has been no addition under the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional evidence that the assessee claims to submit is the certificate from Group Gram Panchayat, Ambhai-amgaon-Khutal dated 0510712010, which states that the land Gut No. 128, Hissa No.1 to 21 and Gut No. 130 Hissa No. 1 & 2 admeasuring 254 Hector, 35 Guntha 935.87 Acre is 30 kilometres away from Palghar Nagar Parishad and 45 kilometres away from Bhiwandi Nagar Parishad. It fails within the Rural area of Amgaon and does not fall within any city limit. The population of Amgaon village is 1350 which is less than 10,000. In view of the above remarks, the contention of the assessee that the documents submitted by it may be accepted deserves to be rejected under rule 46A of the IT Rules, 1962 and the case deserves to be decided strictly on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has a reasonable cause for delay in filing of appeal and considering the factual position of the case and also taking note of judicial pronouncements, the CIT(A) condoned the delay in filing of appeal by the assessee. 6. This reasoned finding of CIT(A) on point of condonation needs no interference from our side. We uphold the same. 7. On merits, the issue is with regard to allowability of exemption to the short term capital gain of Rs. 53,98,220/-. In appeal, CIT(A) after having considered the submission as well as the case laws cited by the assessee, granted relief to the assessee and the same has been opposed by the Revenue in its further appeal. The ld. D.R. submitted that the CIT(A) erred in allowing capital exemption to the short ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anch, which suggested that the land is not situated in area, which is comprised within the jurisdiction of a municipality or a cantonment board and which has a population of not less than ten thousand or in any area within such distance, not being more than eight kilometer from the local limits of any municipality or cantonment board. This fact has not been disputed before us on behalf of Revenue. Taking note of all the facts available on record, the CIT(A) found the assessee's claim proper and appropriate in accordance with the provisions of law and accordingly allowed the same. There is nothing brought on record by the Revenue against this factual finding of the CIT(A). Under these circumstances, we are not inclined to interfere with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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