TMI Blog2021 (4) TMI 1156X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDICIAL MEMBER For the Assessee : Shri A.V.Raghuram, AR For the Revenue : Shri V.M.Mahidhar, DR ORDER This assessee s appeal for AY.2011-12 arises from the CIT(A)-6, Hyderabad s order dated 05-06-2019 passed in case No.10683 / 2018-19 / B2 / CIT(A)-6, in proceedings u/s.143(3) r.w.s.147 of the Income Tax Act, 1961 [in short, the Act ]. Heard both the parties. Case file perused. 2. It transpires at the outset that this assessee s instant appeal suffers from 36 days delay stated to be attributable to the reason(s) beyond her control as per condonation petition/affidavit dt. 27-12-2019. No rebuttal has come from the departmental side. The impugned delay is condoned therefore. 3. The assessee has raised the following substantive grounds in the instant appeal: 1.The order of the learned CIT(A) dismissing the appeal and confirming assessing capital gains is not only erroneous both on facts and in law but in perverse. 2.The learned CIT(A) erred in upholding the validity of initiating proceedings u/s.147 though there is no escapement of income in this assessment year. 3.The learned CIT(A) erred in holding that capital gains arose in in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the submissions and without accepting that there is transfer during the previous year giving raise to Capital Gains, the appellant submit that she has filed all the relevant documents including the copy of pahani to demonostrate that the land is a patta land and is wet land. The documents both GPA and the sale deed categorically stat that the lands are wet lands and are in Rajam Mandal of Srikakulam district and is not near any notified municipality as there is none in the vicinity. The AO instead of verifying this facts without having knowledge as to when a land would be shown as patta land and based on an enquiry conduct behind the back to the effect that it was leased out for storinq scrap without verifying as to who give it for lease for such purpose had held the land to be a Capital asset. The recital in the sale deed is important and if it is not correct the SRO would not have allowed it to be registered. After sale the land might have given for lease and the verification did not state as to when the lease was given as the assessment is made during 2018-2019 and not in 2010-2011 or immediately. In the absence of providing such information to the appellant anti not narrating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution of India are extracted below for ready reference: section 10(20) of the Act: (20) the income of a local authority which is chargeable under the head [* * *] Income from house property , Capital gains or Income from other sources or from a trade or business carried on by it which accrues or arises from the supply of a commodity or service [(not being water or electricity) within its own jurisdictional area or from the supply of water or electricity within or outside its own jurisdictional area]. [Explanation. - For the purposes of this clause, the expression local authority means- (i) Panchayat as referred to in clause (d) of article 243 of the constitution; or (ii) Municipality as referred to in clause (e) of article 243P of the constitution; or (iii) Municipal Committee and District Board, legally entitled to, or entrusted by the Government with, the control or management of a Municipal or local fund; or (iv) Cantonment Board as defined in section 358 of the Cantonments Act, 1924 (2 of 1924);} Article 243P of the Constitution: 243P. Definitions In this Part, unless the context otherwise requires, (a) Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of section 2(14)(a)(iii)(a) of the Act. The relevant portion of the judgment is reproduced below for ready reference: 58. Further the word Capital Asset is defined in Section 2(14) to mean' property of any kind held by an assessee, whether or not connected with his business or profession, but does not include- (iii) agricultural land in India, not being land situate- (a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand according to the last preceding census of which the relevant figures have been published before the first day of the previous year; or (b) in any area within such distance, not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a), as the Central Government may, having regard to the extent of, and scope for, urbanization of that area and other relevant considerations, specify in this behalf by notification in the Official Gazette; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is pertinent to note that, in accordance with the provisions of the ANDHRA PRADESH MUNICIPALITIES ACT, 1965, Rajam Nagar Panchayat was constituted w.e.f 15.10.2005 i.e., well before the FY 2010-11 relevant to the impugned AY 2011-12 and it had a population of 42,123 as per 2011 Census. 6.5.8 Under the circumstances, the assessee cannot raise objection with regard to enquiries conducted by the AO as to the usage of the lands and nature of surrounding lands, which are immaterial and has no locus standi, when the land under transfer is falling under the purview of capital asset as envisaged u/s.2(14)(a)(iii)(a) of the Act since it is situated within the limits of Rajam Nagar Panchayat. 6.5.9 In view of the aforementioned factual and legal matrix, I do not have any reason to interfere with the decision of the AO. Accordingly, the decision of the AO to treat the property as capital asset u/s.2(14)(a)(iii)(a) of the Act is sustained. Thus, the alternative ground of appeal filed by the assessee on this issue is dismissed . 5. Learned departmental representative has vehemently contended during the course of hearing that both the lower authorities have rightly treated the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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