TMI Blog2016 (9) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... from Aya Nagar and 13kms from Ambience Mall, Gurgaon. We have heard the rival submissions and perused the relevant documents. We also deem it fit to admit the documents being admitted as additional evidence under Rule 29 of the ITAT Rules, 1963 as these documents/evidences will have a bearing on the final outcome of this case. However, since the AO has not had the benefit of examining these additional evidences, it will be more appropriate that these additional evidences are examined/verified by the AO so as to be enable him to adjudicate the issue at hand afresh. We accordingly set aside the order of the Ld. CIT (A) and remit the matter to the file of the AO to re-examine the issue after duly considering the documents/evidences as submitted by the assessee and which we have permitted to be admitted as additional evidence as afore said after giving the assessee a proper opportunity of being heard. - ITA No. 4274/Del/2010 - - - Dated:- 18-7-2016 - Shri G. D. Agrawal, Hon ble Vice President And Shri Sudhanshu Srivastava, Judicial Member Assessee by Sh. Gagan Kumar, Adv. Sh. Amit Kaushik, CA Sh. Manoj Nagrath, CA Revenue by Sh. K.K. Jaiswal, DR ORDER Per Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Patwari Gurgaon) and hence the land was not a capital asset as defined in section 2(14)(iii) of the Income Tax Act. The Ld. CIT(A) held that the AO was not justified in rejecting the assessee s claim that the said land was an agricultural land in terms of section 2(14)(iii) and that the income arising on sale of agricultural land was exempt. The observations of the Ld. CIT (A) on this issue are in Paras 7.8 and 7.9 of the impugned order and they are being reproduced hereunder for a ready reference: 7.8 On a close reading of the assessment order, I find that the entire assessment was framed by holding that the land as possessed by the Appellant was situated less than 8 kms distance from Gurgaon Municipal Corporation. However, the said ground no longer holds good as the Assessing Officer had confirmed in his Remand Report that the distance has to be measured from local limits of Gurgaon Municipal Committee Area which is more than 8 kms from the Gurgaon Municipal Committee Area. It is also to be noted that the remand report as issued by the AO is, however, silent on the fact that the assessment order makes a reference that the distance should be measured from the limits of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which, the relevant figures have been published before the first day of the previous year; and (b) agricultural lands situated in any area within such distance, not more than eight kilometers, from the local limits of any municipality referred to in item (a), as the Central Government may, having regard to the extent of, and scope for, urbanisation of that area and other relevant considerations, specify in the Official Gazette. 6. Thus, it appears that the intention of the Legislature is explicit that the municipality being talked about in both sections, i.e., section 2(14)(iii)(a) as well as section 2(14)(iii)(b), is one and the same, i.e., one and only one municipality. In this case, it is only Sohna Municipality Area. XXXXXX 12. Now, undisputedly, the land in question lies in village Ghata, which falls in Tehsil Sohna, DistrictNow, undisputedly, the land in question lies in village Ghata, which falls in Tehsil Sohna, District Gurgaon and is more than five kms. away from Sohna Municipality. The Notification specifies areas up to five kilometers in all direction, from the municipal limits of Sohna Municipality. So, according to the Notification, areas up to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that it is undisputed that the land is situated in Sohna and even the Ld. CIT (A) has accepted that all the regulatory and administrative controls are under the jurisdiction of Sohna Municipality as is evident from Para 15 and 16 of the impugned order and, therefore, the approach adopted by the Ld. CIT (A) is contradictory when it is concluded by him that the land is not a capital asset but an agricultural land which will not attract capital gains. The Ld. DR relied on the judgment of the Hon ble Apex Court in G.M. Omar Khan vs. ACIT 196 ITR 269 (SC), wherein the Hon ble Apex Court has held that local self-Government is carried out under various statutes by means of municipalities, municipal boards, cantonment boards, etc. After their initial set up, area by means of those laws are added to and subtracted from and subsume as such for identity, not as a separate municipal unit but part of the already set up municipal unit. Such being the scheme of things, it is difficult to accept the plea of the appellant that even though his village was falling in the municipal area of Hyderabad, it retained its identity as a village and, hence, an area so as to stand apart for the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unicipal Corporation of Gurgaon. It was submitted that now the assessee seeks to admit the following as additional evidences under Rule 29- i) Certificate dated 10.07.2013 from the office of SDM Mehrauli confirming that the land is situated outside the limit of Delhi Municipality. ii). Certificate dated 18.07.2013 from the Executive Magistrate, Mehrauli certifying that the land does not fall within their jurisdiction. iii). Certificate dated 4.10.2013 from the Municipal Commissioner, Gurgaon stating that the distance of the land from the municipal limit in the year 2006 was approximately 12kms. iv). Certificate dated 25.10.2013 certifying that the distance of land is 8.5 kms from Mandi village, 11.2 kms from Aya Nagar and 13kms from Ambience Mall, Gurgaon. 9. The Ld. AR urged that these additional evidences support the case of the assessee and that the same may be admitted and considered while adjudicating the issue at hand. The Ld. AR also placed reliance on the decision of the co-ordinate Bench of Delhi ITAT in ACIT vs Vijay Singh Kadan in ITA No. 4733/Del/2011(affirmed by the Hon ble Delhi High Court in CIT vs. Vijay Singh Kadan 378 ITR 7) wherein a similar issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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