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TMI Blog2021 (10) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... for the A.Y. 2008-09. 2. In this case, the Assessee along with six other persons has sold 5.88 acres of land situated at Kapuluppada village, Visakhapatnam on dated 16/04/2007 through registered sale-cum-GPA document No. 3921/2007 in which the Assessee's share was to the extent of Rs. 50.00 lakhs in lieu of 0.50 acres of the total land. The purchase value of the land sold by the Assessee was Rs. 1,16,130/- as on dated 05/02/2003. The case of the Assessee was opened for the A.Y. 2008-09 while issuing notice u/sec. 148 of the Act on dated 19/03/2015. Before the AO, it was claimed by the Assessee that the land sold was rural agricultural in nature and therefore not liable for long term capital gain. It was further submitted that without pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipality Visakhapatnam to Kapuluppada village is 15.96 kms, and therefore, GVMC notification has no application. The Assessee also relied on the decision of the coordinate bench of the tribunal at Visakhapatnam in the case of DCIT Vs. Jasti Vayunandana Rao (ITA No.122/ViZ/2010, dated 29/10/2010) wherein the land situated in the same village was exempted from the capital gain tax, being considered as rural agricultural land. The ld. Commissioner though considered the contention and documents of the Assessee, however affirmed the order of the AO, while rejecting the claim of the Assessee by holding that section 2(14)(iii)(b) got amended in 2013 w.e.f. 01/04/2014 wherein the distance is measured aerially. Thus, it is clear that the amended pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion of the Ld. Commissioner with regard to applicability of section 2(14)(iii)(b) is that the said section got amended w.e.f. 01/04/2014 where the distance is measured aerially, therefore, the amended provision is not applicable to A.Y. 2008-09. If we consider the conclusion of the ld. Commissioner to the effect that provisions of section 2(14)(iii)(b) which got amended w.e.f. 01/04/2014 will not be applicable to A.Y. 2008-09 qua the case of the Assessee, then in principle the provisions prior to shall be applicable, whereby in 1994 the Central Government has notified the areas within the limits of Visakhapatnam municipality and as per that notification, the Assessee's land in question is undoubtedly falls beyond 8 km. from municipa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nicipality limit of Visakhapatnam Municipal Corporation. But later on, on incorporation of Greater Visakhapatnam Municipal Corporation, it falls within the 8 kms. from the municipal limit. But no notification as required u/s 2(14)(iii)(b) of the I.T. Act was issued in the Official Gazette by the Central Government. This issue was examined by us in the case of Smt. C. Girija Vs. ACIT (supra) in which we have given a categorical finding that to bring a land within the purview of clause (b) of section 2(14)(iii), the Central Government is required to issue a notification in the Official Gazette and without a notification a land falls within the 8 kms. from the local limit of any municipality would not cease to be an agricultural land. The rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the central laws. But we do not find any force in this argument because the municipality or the cantonment board are subject to local laws and within a state subject and are created by a notification by the state government. Central government has no jurisdiction to create a municipality, cantonment board in any state of the country. Central government is concerned with the central act. Once the municipality of the cantonment board is created by a notification by the state government as per local laws, the central act will apply. Therefore once the impugned land is situated within the jurisdiction of the local limit of the GVMC, the impugned land cease to be the agricultural land and on its sale capital gain is to be computed. We therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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