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TMI Blog2021 (5) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... in brief are that the assessee in the present case is an individual and declared income under the head capital gain and interest. The assessee in the year under consideration sold the land situated at " Mauje Gam Unali, Taluka Kalol, Gandhinagar" bearing survey No's 141, 160, 161 for Rs. 1,93,00,000/- and declared short term capital on the same. 3.1 The AO during the assessment proceeding found that the Jantari value/Market value of land transferred for purpose of stamp duty was of Rs. 3,13,00,568/- only. Accordingly the AO issued show cause notice to the assessee purposing to take the sale consideration as declared for the stamp duty as provided under the provisions of section 50C of the Act. 3.2 In response, the assessee contended that when the deal was negotiated for the transfer of the land with the purchaser, the Jantri value was at Rs. 1,93,00,000/- only. Therefore, the sale consideration cannot be substituted with the value of the property as provided under section 50C of the Act which was declared in the registered documents for the stamp duty purposes. 3.3 However, the AO rejected the claim of the assessee and worked out the short term capital gain of 2,75,19,343/- afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as agricultural in nature. The AO also submitted that assessee herself declared short term capital gain on such transfer of land and also did not object on the invocation of provisions of section 50C of the Act during the assessment proceeding. The AO further found that the area namely 'Gam Unali' where the impugned land was situated is covered under the jurisdiction of Ahmadabad Urban Development Authority (AUDA). The AO for this purpose referred the letter dated 02/02/2017 issued by AUDA. Accordingly the AO concluded that the impugned land is not an agricultural land under the provision of section 2(14) of the Act. The AO further submitted that entry of property as agriculture land in Land Revenue record is not a conclusive evidence that the such land in reality is an agricultural property, as such the assessee has proved that the property has not lost its character of agriculture at the time of transfer. 5.4 The assessee in rejoinder reiterated her submission and claimed that the village Unali where impugned land is situated is falling under the jurisdiction of Talluka Klol district Gandhi Nagar, therefore the distance limit should be calculated from Kalol instead of Ahmadabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee are within 8 kms. from the distance of AUDA. I do not find any merits in the arguments of the Appellant, as per said notification, any land situated within 8 kms from the distance of AUDA is agricultural land coming within the definition of capital asset. It is further observed that the limits of AUDA have been extended by the State Government of Gujarat. Since, the lands sold by the assessee are situated within 8 kms distance from the newly incorporated boundary of AUDA, the distance should be measured from the limits of AUDA to determine whether a particular land is a capital asset or not for the purpose of section 2(14) of the Act. In the present case, it is no I doubt lands are situated within 8 kms. from the limits of AUDA. Therefore, in view of the above discussion and direct decision reported in 40 Taxmann.com 295 and 79 Taxmann.com 104(as discussed above), I am of the view that the lands sold by the I appellant are capital assets within the meaning of section 2(14) of the Act and liable for capital gains. The AO after considering the relevant facts, has rightly held that the lands I are capital assets and liable for capital gain tax. Therefore, the ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xman 301 as under :- 'On an appeal, a Constitution Bench of this Court held that: Inasmuch as agricultural land is exempted from the purview of the definition of the expression "assets", it is "impossible to adopt so wide a test as would obviously defeat the purpose of the exemption given". The idea behind exempting the agricultural land is to encourage cultivation of land and the agricultural operations. "In other words this exemption had to be necessarily given a more restricted meaning than the very wide ambit given to it by the Full Bench of the Andhra Pradesh High Court". (b) What is really required to be shown is the connection with an agricultural purpose and user and not the mere possibility of user of land, by some possible future owner or possessor, for an agricultural purpose, It is not the mere potentiality, but its actual condition and intended user, which have to be seen for purposes of exemption. (emphasis * added). (c) "The person claiming an exemption of any property of his from the scope of his assets must satisfy the conditions of the exemption." (d)"The determination of the character of land, according to the purpose for which it is meant or set apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven to the expression "agricultural land" as contemplated under section 2(14) (iiib) of the act. 10.7 In the case on hand, the ld. CIT-A has given a very clear finding that the land in dispute was not used for the agricultural purposes. The relevant finding of the ld. CIT-A on page 28 of his order reads as under: "the appellant claims that the lands are agriculture lands and agricultural operations could not be carried out." 10.8 Besides the above, we also note that the land was sold after the purchases within a short span of time. Thus a cumulative reading of the facts as discussed above, it is transpired that the assessee was not intending to use the land in dispute for the purpose of agricultural operations. 10.9 Before parting, there is no information available on record whether the land in dispute was used for the agricultural operations prior to the date of purchase by the assessee viz a viz whether the land in dispute was to be used for agricultural operations in future by the buyer of the land from the assessee. To our understanding, the information for the prior and the future use of the land was necessary to arrive at the conclusion whether the land in dispute was an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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