TMI Blog2017 (3) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The Department : Sh. S.K. Jain DR For The Assessee : Sh. Ved Jain, Adv. ORDER PER H.S. SIDHU : JM This Appeal filed by the Revenue is directed against the order passed by the Ld. Commissioner of Income Tax (Appeals)-XXVI, New Delhi for the assessment year 2009-10. 2. The grounds raised in the Revenue s Appeal read as under:- 1. The Ld. CIT(A)has erred in deleting the addition of ₹ 4,88,38,251/- made by the AO on account of Long Term Capital Gain. 2. The CIT(A) has erred in admitting additional evidence in the form of distance certificate issued by the Tehsildar without appreciating the fact that as per the General Clause Act, 1897, the distance is always required to be measured in straight line manner and the certificate does not mention the method adopted by the Patwari to calculate the distance of the said land. 3. The appellant craves leave to add, alter or amend any/ all of the grounds of appeal before or during the course of the hearing of the appeal. 3. The brief facts of the case are that assesse is an individual and derived her income under the head income from house p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11; copy of agreement to sell b/w the assessee and M/s Samarthal Promoters and Developers Pvt. Ltd. dated 7.5.2033 alongwith payment schedule; copy of purchase deeds; copy of ITR of AY 2005-06 to 2007-08; copy of written submission filed before the CIT(A); copy of application under Rule 46A; copy of remand report to CIT(A) dated 4.1.2013 alongwith enquiry report from Inspector; copy of remand report to CIT(A) dated 8.3.2013 alongwith confirmation certificate from Tehsildar and copy of rejoinder filed before CIT(A). 7.1 Ld. Counsel of the assessee has submitted that during the year under consideration, assessee has sold agricultural land bearing khasra NO.204 (1-10),205(0-12),134/2(2-7),135/1(2-1) measuring 6 bigha 10 biswas situated within the revenue estate of village Haiderpur, Viran, Tehsil and District Gurgaon Haryana on the basis of jamabandi and mutation No. 3471. Out of the said land, the assessee was registered owner of two bigha and two biswa on the basis of jamabandi for the year 2002-03 and remaining land measuring 4 bighaand 8 biswa was recorded in the name of Sh. Swatantar Kumar husband of the assessee. It was further submitted that the after the death of Sh. Swatan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pg.17. To clarify the issue again, an application dated 18.02.2008 was also filed before Tehsildar Gurgaon regarding the certificate for confirmation of municipal limit and population of the village HaiderPur and the said application was marked to Patwari on 02.05.2008. The Patwari submitted his report enclosed at PB Pgs 8 and it was clarified that the land is situated more than 8KMs from the municipal limit of Gurgaon. In addition to the same, assessee also asked the Ld. AO in case still there is any doubt to verify the same from the Tehsildar by making independent inquiry u/s 131 of the Act. It was submitted that AO ignored all the above evidences and certificates made addition of Long Term capital gain ₹ 4,88,38,251/- (Rs. 4,96,15,384/- - 7,77,133/-) and passed the assessment order u/s 143(3) of the Act. It was further submitted that the Ld. Counsel of the assessee that aggrieved by the assessment order, assessee preferred an appeal before the Ld. CIT (A) and submitted all the facts and evidences produced before the Ld.AO. The Assessee also filed application under Rule 46A (PB Pg. 74-78) and submitted the copy of certificate (PB Pg. 78)from the Tehsildar, Gurgaon in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that land sold by the appellant is situated more than 8.5 kilometers away from the nearest municipal limit. I find the said certificate goes to the roots of the ground of appeal raised by the appellant and is important to decide the matter before me. A detailed inquiry has been conducted by the AO for this certificate and the same has been found to be genuine. From the facts narrated by the appellant it is clear that she was prevented by sufficient cause to produce the same before the assessing officer during the assessment proceedings. On these grounds, I find no hesitation in admitting the same as additional evidence. The same is admitted and adjudicated in the order hereunder. 10.1 The main issue to be decided in this case is whether the land sold by the appellant falls under the definition of Capital Asset under the provisions of section 45 read with section 2(14) of the Act or not. The appellant has stated that the land sold by her is an agricultural land. The fact that the land sold by her is agricultural in nature is evident from the sale deed wherein the nature of the land is specifically mentioned. Also the appellant in the return of income filed by her for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of above stated facts I find that the land sold by the appellant does not fall within the ambit of section 45 of the Act and cannot be classified as a Capital Asset. The capital gain on the sale of same being exempted, is liable to be allowed. The assessing officer is directed to delete the addition on account of income under the head long term capital gains made by him and delete the addition made by him to the gross total income of the appellant in this respect. 10.4 I find that the AO in his remand report has stated that the land sold by the appellant is not agricultural in nature and the Tehsildar Gurgaon has not specifically stated the method of calculating the distance of the land from the nearest municipal limit. As regards his claim the same is not agricultural in nature the same gets negated from the fact that it has been specifically stated in the sale deed that the land is agricultural in nature. Also the appellant has been regularly showing. agricultural income from the said land in the preceding years. As regard the fact that the method of measuring the distance is riot stated by the Tehsildar in tne certificate issued by him. I am of a view that the distance pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dar, Gurgaon. On the back side of that application it was certified that the distance of the said land from local limit of Nagar Palika is 8km. Thereafter, the AO objected to the certificate on the back side of the application by stating that the certificate was signed by some unknown person as no name or designation or office address is written. Further, distance of 8KM is mentioned on that document as against more than 8Kms required under the Act. In response to the objection raised by the AO assessee submitted his reply dt. 15.12.2011 in which it was stated that assessee has submitted an application for distance certificate to PWD Gurgaon, Haryana and in response to the same Sub Divisional Engineer PWD has issued a certificate of distance of Village Haiderpur Viran, Gurgaon, Haryana on 14.12.2011. The certificate confirmed that the agricultural land in Haider Pur Viran is 9.5 Kms from Old Municipal office, Gurgaon Haryana. The copy of certificate is at PB Pg 18. In addition to the above, a certificate from Joint commissioner, Municipal Corporation, Gurgaon was also submitted which clarified that the land was not under the Municipal limit of Haryana at PB Pg.17. To clarify the is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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