TMI Blog2016 (9) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... s gone on oath stating that he had never issued said certificate. If that be so, the very foundation of the petitioner's case of the land being at a distance of more than 8 kms from the outer limit of Vadodara Municipal Corporation fails. This would also match with the present information which Revenue collected after the assessment was over in form of statement of Shri Sohan M. Patel and certificate issued by the Deputy Collector of Vadodara Municipal Corporation, both indicating that the distance between the two limits is much shorter. In fact, the Executive Engineer of Road and Building division also in the latest affidavit has confirmed this aspect. In view of such facts, we are not inclined to quash the notice for reopening. However we clarify that the assessment may be carried out on the basis of evidence that may be brought on record including by the petitioner, unmindful of the observations made hereinabove. - SPECIAL CIVIL APPLICATION NO. 4756 of 2016 - - - Dated:- 21-9-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITIONER : MR RK PATEL, ADVOCATE FOR THE RESPONDENT : MR KM PARIKH, ADVOCATE, MR HARDIK VORA, AGP ORAL JUDGMENT (PER : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeking to reopen the assessment for the said assessment year 20082009. He recorded the following reasons for issuing notice : From the information available on record it is noticed that the assessee Shri Thakorebhai Maganbhai Patel (PAN : ACZPP4029K) has sold a land located at R.S. no.43,44,45,46, 65, Block No.23 paiki 3(23A) village Hanumanpura admeasuring 2.28.98 Hectare (246382.48 sq ft) to Shri Jitendrabhai Natwarlal Patel and Kamleshbhai Patel vide a sale deed executed on 31.03.2008. The assessee received a sum of ₹ 1,10,70,000/in cheque and cash in this sale of land, which he admitted in his statement. The assessee has invested the sum in various properties, Gold and Instruments like LIC, Mutual Fund, Post office. The assessment in this case was completed u/s 143(3) r.w.s. 147 of the Act on 23/01/2013 accepting returned income at ₹ 1,28,170/. During the course of assessment, assessee had stated that he had received a sum of only ₹ 4,98,000/through cheque and the said land is agricultural land which is beyond the 8 km limits from Vadodara Municipal Corporation. The assessee also furnished a certificate from Executive Engineer (Road Building) Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um of ₹ 4.98 lacs. No further disclosure of any sale consideration paid or to be paid came on record during the entire assessment proceedings. However, it appears that in the later year i.e. assessment year 20092010, the assessee was confronted with cash deposits in his bank accounts totalling to ₹ 1,05,72,000/. The Assessing Officer added this sum to the income of the assessee as his cash receipts. The assessee challenged the same before the appellate Commissioner. Before the appellate Commissioner, with respect to these cash receipts, the representative of the assessee contended as under : c. The assessee belongs to a family of farmers and owned an agricultural land bearing Revenue Survey No. 43 to 46 and 65 (Block No.2) at Village Hanumanpura, Taluka Vaghodia in the District Vadodara together with his father and two brothers. The said land was equally divided by three brothers by Memorandum of Understanding entered on 17/01/2008. Copy of Memorandum of Understanding is enclosed herewith. The appellant entered into a banakhat to sell his share admeasuring 2,46,000 sq. ft. at the rate of ₹ 45 per square feet. The banakhat was entered with Shri Kamleshbhai Natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th appellant accidentally. The breakup of cash consideration on sale of aforesaid agricultural land and not reflected in the registered sale deed is as under : Date of receipt of cash Amount of cash received Document against which cash received 25/03/2008 155000 As stated in banakhat 04/04/2008 400000 At the time of registration of banakhat with notary 10/06/2008 9017000 At the time of registration of sale deed 20/10/2008 400000 On surrender of State Bank of Mysore cheq. No.s 23888 and 23889 of ₹ 2,00,000/each given earlier as security towards amount aggregate in banakhat 20/20/2008 600000 On surrender of State Bank of Mysore cheq . No.s 23890 and 23891 of ₹ 3,00,000/each given earlier as security towards amount aggregate in banakhat Total 10572000 7. Thus the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised the following contentions : 1) That the Assessing Officer proceeded with the assessment without disposing of the petitioner's objection. 2) There was no failure on part of the assessee to disclose truly and fully all material facts. 3) The assessee relied on certificate issued by Shri K.D. Patel, the then Executive Engineer, which clearly stated that the land was situated beyond a period of 8 Kms. from the outer limitation of Vadodara Municipal Corporation. 4) The authorities are considering aerial distance between the boundary of Vadodara Municipal Corporation and the land in question which provision was not there at the relevant time in section 2(14) of the Act. 5) In any case, the outer limit of Vadodara Municipal Corporation as on issuance of notification dated 6.1.1994 as referred in section 2(14) of the Act, would be relevant and not the later revised boundaries under which the Vadodara Municipal Corporation area is bound to have expanded. In this context, counsel relied on decision of Jabalpur Bench of Income Tax Appellate Tribunal in case of Smt.(Dr.) Subha Tripathi v. Deputy Commissioner of Incometax, Circle6, Jaipur . 9. On the other hand, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bank upon the matching sum in cash being paid to the petitioner. 12. Central question of the petitioner's liability to pay the capital gain tax, however, would depend on the fact whether the agricultural land sold by the petitioner was situated beyond the distance of 8 kms. from the Vadodara Municipal Corporation limit. Here also, the question would be subdivided into two parts. First is, as on which date, the outer boundary of Vadodara Municipal Corporation is to be reckoned for the purpose of measuring the distance. Would it be the date of notification i.e. 6.1.1994 under which the Government of India in terms of clause (iii) of subsection (14) of section 2 of the Act specified the outer limits in connection with different township and cantonment area or the date on which the sale of land actually took place. Second aspect would be what would be the exact distance between the outer limits of Vadodara Municipal Corporation and the lands sold. 13. In plain terms, clause(iii) of section 2(14) refers to agricultural land in India not being land situate within such distance, not more than eight kilometers from the local limits of any municipality or cantonment board, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities however, later on obtained a certificate dated 12.7.2013 from Deputy Municipal Commissioner, Vadodara, in which he had indicated that shortest aerial distance between various blocks of land and Vadodara Municipal Limit is as under : Sr. No. Block No. (Hanumanpura) Areal Distance in (KM) 1 43 0.760 2 44 0.434 3 45 0.528 4 46 0.456 5 65 1.094 6 23 1.708 17. This is in addition to statement of Shri Sohan M. Patel, Additional Assistant Engineer, Vadodara Municipal Corporation, which was recorded on oath on 10.7.2013 in which he stated that the land in question is situated not more than 2 kms from the outer limit of Vadodara Municipal Corporation. Intrigued by such major discrepancy between the certificate of Shri K. D. Patel, Executive Engineer, produced by the petitioner before the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Vadodara Municipal Corporation is barely a half km., it seems very unlikely that a distance by road between the Vadodara Municipal Corporation limits and the village in question would exceed 8 kms. We would therefore like to ascertain correct facts. 4. Let the petitioner join the Secretary, Road and Building Division, Government of Gujarat, as an additional respondent. 5. Let there be NOTICE to the newly added respondent, returnable on 31.08.2016. On the said date, he shall supply following details: I. The exact distance by shortest road between the outer limit of Vadodara Municipal Corporation as on 31.03.2008 and lands bearing revenue survey numbers 43, 44, 45, 46 and 65 and block No.23paiki3(23A) of village:Hanumanpura. II. The authority shall also indicate whether Shri K.D.Patel, Executive Engineer, Road and Building Department, Vadodara, is still in service. If so, his affidavit shall be filed stating as to on what basis the said certificate dated 16.01.2013 was issued by him. 6. For said purpose, alongwith this order, the newly added respondent shall also be supplied a copy of certificate dated 16.01.2013. Direct service to the newly added respondent is pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Municipal Corporation, upon which the petitioner heavily relied. Shri K.D. Patel who is supposed to be the author of the certificate has since retired from Government service but has filed an affidavit stating that he has never issued the said certificate and the document does not carry his signature. The Road and Building division contends that a copy of said certificate is not found in their official records. A strong case is built up against the petitioner of having produced a document which was not genuine. For the purpose of this petition, atleast, we must proceed on the basis of declaration of official of Road and Building division that no copy of such document is found on the record and Shri K.D. Patel, retired Executive Engineer, who has gone on oath stating that he had never issued said certificate. If that be so, the very foundation of the petitioner's case of the land being at a distance of more than 8 kms from the outer limit of Vadodara Municipal Corporation fails. This would also match with the present information which Revenue collected after the assessment was over in form of statement of Shri Sohan M. Patel and certificate issued by the Deputy Collector of Va ..... X X X X Extracts X X X X X X X X Extracts X X X X
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