TMI Blog2014 (1) TMI 1867X X X X Extracts X X X X X X X X Extracts X X X X ..... considered opinion do not seem to be devoid of fearlessness or fairlessness. Overwhelming pieces of evidence which are available on record and filed by the assessee to support her claim, cannot be doubted by the Inspector s report. Accordingly, we hold that the piece of land sold was only agricultural land which does not give rise to any capital gain. Disallowance of expenditure - HELD THAT:- As noticed from the record that most of the payments against the impugned expenses were through cheques. The nature of work and its payment stands established from the record and assessment order itself. AO has not pinpointed any defect in these expenses and also in the books of account of the assessee. Therefore, the lumpsum addition made simply on suspicion is not called for. We cannot approve such adhoc disallowance which are not tenable in the eyes of law. Accordingly, the impugned deletion stands approved which resulted into dismissal of the sole ground raised in Revenue s appeal. - ITA No. 84/JP/2013, ITA No.927/JP/2012 - - - Dated:- 31-1-2014 - SHRI HARI OM MARATHA AND SHRI N.K. SAINI For the Appellant : Shri Subhash Chandra For the Respondent : Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned and it was noticed by the AO that an amount of ₹ 6,38,40,000/- has been credited in the land account. An amount of ₹ 10.00 lacs is also found credited as gift received. The assessee was called upon to explain both these credits. It was explained that the credit of land was in respect of gain derived on sale of a piece of agricultural land situated on Delhi Road to Quality Resorts Hospitality Ltd., Mumabi, and about gift it has been received from her maternal uncle. She has supported the land a/c with the copies of purchase deed and sale-deeds. To support gift, she has produced an affidavit of her maternal uncle from whom she has claimed to have received this gift amount. However, being not satisfied, the AO proposed to charge net consideration received from sale of land as a capital gain . This move of the AO was objected by the assessee stating that the land sold being agricultural land and situated outside the stated limits of 8 KM from the municipal territory as defined in Section 2(14)(iii)(b) of the Act and the same is exempt from any tax under the Act. In support of her contention, she has filed a certificate obtained from the Sarpanch of Gram Panchayat, Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ANY AREA WITHIN SUCH DISTANCE, NOT BEING MORE THAN EIGHT KILOMETERS FROM THE LOCAL LIMITS OFANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM (a), AS THE CENTRAL GOVERNMENT MAY, HAVING REGAD TO THE EXTENT OF, AND SCOPE FOR, URBANISATION OF THAT AREA AND OTHER RELEVANT CONSIDERATIONS, SPECIFY IN THIS BEHALF BY NOTIFICATION IN THE OFFICIAL GAZETTE. Thus, it becomes clear from the very plain reading of the above provision of Section 2(14)(iii) that even agricultural land can be treated as a capital asset and consequently capital gain can be charged on the net consideration arising from the sale of that land if the land sold falls within 8KM from the local limit of any Municipality or Cantonment Board etc. as mentioned therein. Now, the only question which we are required to decide as to whether this agricultural piece of land sold by the assessee falls within the purview of Section 2(14)(iii)(b) of the Act or not. If it does then capital gain is chargeable otherwise not. The AO put the assessee to the task of proving that the agricultural land sold is not falling within the above stated 8KM. The assessee produced the following proof in support of her claim: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gar Nigam on various dates (who has issued certificates of Municipal limits on 06/07/2011) are contradictory and without any proper evidence on record. So same are not acceptable in toto. 3.2 The firsts statement recorded on 02/12/2011 was not in presence of assessee s counsel. In that statement in Answer No. 3 Shri Dinesh Kumar Pareek has admitted that certificate dated 06/07/2011 was issued with his signature. Further in Answer No. 5 he has stated that Nagar Nigam, Amer Zone was constituted in April, 2008. The map of 2009 was also given by showing wards 74, 75,76 77 of Jaipur Nagar Nigam. But in Answer No. 6 he has stated thatj physical verification of land was not made by him and certificate was given on basis of evidences on record, such as Sarpanch and Patwari certificates. Now I will do physical verification with Patwari also. 3.3 In second statement dated 21/02/2012 he was again bitterly confused and narrated twisted and incorrect facts without any evidence on record. a) In Answer No.3 Mr. Pareek has stated that physical verification has been done on 07/02/2012 with appointed inspectors of Income-tax Department Mr. Purshottam Sharma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llage Nangal Susawatan where land of assessee is situated is not appearing, because this notification is of 1992. This notification is applicable as through this very notification. Amer Nagar Palika and its revenue villages has been included in Jaipur Municipal Corporation, in which village where land of assessee was situated is not appearing. The subsequent notifications i.e. 25/09/1994 is for distribution of wards, where in old Amer Municipal area has come in ward no. 53, subsequently through notification 17/02/2009, this area has been distributed in ward no. 74,75, 76 77. Hence that notification was applicable. So village which are within 8 KM of Municipal limits of Jaipur/ Amer are clearly mentioned in this notification and name of village where assessee s land is situated is not appearing in this notification. Thus land is out of 8 KM from Municipal limits of Jaipur. f) On re-cross examination by your honour in Answer No. 1 Officer has stated vide notification dated 18/04/1992. Thereafter again Revenue Officer was not satisfied with his own statement regarding correct distance of land. So he has taken time up to 28/02/2012. But no cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er inter alia following submission is also made to clarify the ambiguity which has arisen from the statements of Nagar Nigam Revenue Officer and Inspector concerned of department. 5.1 That with all the prolonged discussion and evidences on record it is established tht land of assessee is situated in village Nangal Susavatan. But due to statements given by Revnue Officer of Nagar Nigam, Jaipur (Amer Zone) and measurement taken by him and Inspector are not corect, as theyhave taken measuremnt from alleged Purani Chungi Chowki, Amer, which is not correct point of limits. How they are identifying Purani Chungi Chowki, Amer and how they are taking the place from where they are saying that land is 6.2 KM best kown to them, they have not provided any evidence on record, simply by giving only contradictory statements and reports. The photo s in (Annexure A,B) are enclosd in which is mentioned from said Chungi Chowki distance of land of assessee is 10.9 KM, which is still verifiable. 5.2 In produced map lf Nagar Nigam, Jaipur, the limits of ward n. 77 of Nagar Nigam etc. also appearing. A detailed map (Annexure C) of said ward is enclosed, which sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness. The overwhelming effect of the following evidence speaks in the favour of the assessee. These pieces of evidence are as under:- 1. The certificates from Patwari, Sarpanch and Jaipur Nagar Nagam which are enclosed at pages 1, 5, and 7 of the assessee's paper book. All these Revenue authorities have certified that the distance of the land sold is 9 KM from the limit of concerned municipality or Nagar Nigam etc. 2. A certificate from a qualified Surveyor who has worked out the distance of land sold from the local municipal limits/ municipal corporation/ notified area committee etc. The surveyor has calculated the distance at 8.2 KMs on the basis of GPS of Google Earth. The certificate is also enclosed with the r reports. 3. Copies of Map of Jaipur Nagar Nigam with a view to identifying the municipal limits and Khatoni/ Jamabandi of land. 4. Copy of Notification dated 18-04-1992 issued by the State Govt. stating that this land is not include the land in the village falling under jurisdiction of Jaipur Municipal Area. This Notification has been approved as valid document for identifying the Municipal Limit by the ITAT Jaipur Bench in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 57,20,036/- which resulted into an addition of ₹ 14,30,009/-. 5.3 The assessee went in first appeal. The ld. CIT(A) has deleted the entire disallowance @ 25% by treating it simply adhoc and having no logic or evidence. 5.4 Before us, both the parties have reiterated their earlier arguments. 5.5 After hearing both the parties and the materials available on record, it was noticed from the record that most of the payments against the impugned expenses were through cheques. The nature of work and its payment stands established from the record and assessment order itself. The AO has not pinpointed any defect in these expenses and also in the books of account of the assessee. Therefore, the lumpsum addition made simply on suspicion is not called for. We cannot approve such adhoc disallowance which are not tenable in the eyes of law. Accordingly, the impugned deletion of ₹ 14,30,009/- stands approved which resulted into dismissal of the sole ground raised in Revenue s appeal. Thus the solitary ground of the Revenue is dismissed. 3.0 In the result, the appeal of the Revenue is dismissed and that of the assessee is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
