TMI Blog2022 (5) TMI 1270X X X X Extracts X X X X X X X X Extracts X X X X ..... he evidence being used against him. Also, the Ld. CIT(A) should also consider the evidence placed by the assessee on record i.e. report of Talati cum Mantri regarding certificate of distance of impugned land from VMS and give his observations as to why the report placed by the assessee in support of his contention cannot be relied upon or whether there is any factual inaccuracy in such report. It may be important to point out, that for the impugned assessment year, it has been clarified by the CBDT vide Circular No.17/2015 [f.no.279/misc./140/2015- itj] dated 6-10-2015 that that the distance between the municipal limit (VMC in this case) and the agricultural land is to be measured having regard to the shortest road distance . In light of the above observations, we think it fit in the interest of justice to restore the matter to the file of Ld. CIT(A) to take a decision afresh, on facts, in light of direction issued vide CBDT Circular No.17/2015 [f.no.279/misc./140/2015-itj] dated 6-10-2015 ( Measurement Of Distance For Purpose Of Section 2(14)(iii)(b) For Period Prior To Assessment Year 2014-15) and after taking into consideration the certificates placed on record by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has not produced any supporting bills/vouchers/documents in support of his claim of incurring the expenditure before any of the authorities. Accordingly, in our view, the Ld. CIT(A) has not erred in facts and in law in restricting the disallowance to 10% of agricultural expenses in absence of any bills/vouchers/supporting evidence produced in support of proof of claim of expenditure. In the result, ground number 2 of the assessee s appeal is dismissed. - ITA Nos. 458 & 459/Ahd/2019 - - - Dated:- 17-5-2022 - Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member For the Assessee : Shri P.B. Parmar, A.R. For the Revenue : Shri Umesh Agarwal, Sr. D.R. ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:- These two appeals filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals-3), Vadodara in Appeal nos. CIT(A)-Vadodara-3/10303/2015-16 CIT(A)-Vadodara-3/10928/2016-17 vide orders dated 22/01/2019 28-01-2019 passed for the assessment year 2012-13 2013-14 respectively. Since, the issue involved for both the years are primarily common, we shall dispose of both the appeals by a common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al agricultural expenditure claimed on assumption and presumption. 2.02 Your appellant prays Your Honour to hold so now and delete the said impugned additions made to the total income. 3.00 YOUR APPELLANT CRAVES LEAVE TO ADD, AWIEND AND / OR DELETE ALL OR ANY GROUND(S) TAKE HERE IN ABOVE. AY-2012-13: 3. The brief facts of the case are that during the year, the assessee sold agricultural lands situated at village- Kotambi, Bhaniyara and Bhavpura, Taluka for total consideration of ₹ 10,30,200/-. The gain on sale of such agricultural lands amounting to ₹ 6,60,504/- was claimed as not taxable in the return of income under the head Exempt Income since the said agricultural lands at the time of sale were situated beyond 8 km from the local limits of Vadodara Municipal Corporation (VMC). During the course of assessment proceedings, the assessing officer issued a show cause notice as to why provisions of section 50C should not be applied to the sale of such lands, because as per Vododara Urban Development Authorities (VUDA) letter dated 22.12.2014, distance from Vadodara Mahanagar Seva Sadan to Bhavpura and Baniyara are within 8 km and hence the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the disallowance of Rs. 6,88,742/- as Short Term Capital Gain is deleted for the land situated at Bhavpura village as the former is within 8 k.m. from VMC limit whereas the latter is outside of 8 k.m. from VMC limit . Thus, this ground is partly allowed. 4. Before us, the counsel for the assessee reiterated that the land sold in village Bhaniyara is situated beyond 8 km of VMC limit and accordingly does not qualify as a capital asset under section 2(14) of the Act. Hence, in the instant facts, the assessing officer erred in invoking section 50C of the Act. The learned counsel for the assessee drew attention to pages 16 to 16 A of the paper book which is the distance certificated and population certificate issued by Talati cum mantri in respect of the impugned land. He further drew attention to page 30 of paper book containing the Google Maps showing the relevant distance. The counsel for the assessee submitted that the above evidences were completely overlooked by Ld. CIT(A) who has only given weightage to certificate issued by Executive Engineer, Vadodara. Further, Ld. CIT(A) has given an erroneous finding that even as per Google Maps, land in question was situated wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompetent authority to measure distance between the land sold and the municipal limits. The assessee before us contended that it is the Talati cum Mantri who is the competent authority and reliance cannot be placed on the report of Executive Engineer, Vadodara, on which reliance has been placed by the Ld. CIT(A) while adjudicating the issue of distance against the assessee in respect of land situated at Bhaniyara village from VMC. Therefore, while the assessee is relying on the certificate issued by Talati cum Mantri and Google Maps (copies of which have been placed before us) for ascertaining the distance between the impugned land situated at Bhaniyara village and the VMC limits, the Ld. CIT(A) has relied upon the report of Executive Engineer, Vadodara (R and B) division (on the basis of remand report issued by Ld. Assessing Officer) and also the Google Maps to decide that the distance is beyond the prescribed limit of 8 km. We are of the considered view, that since there is no prescribed authority to decide upon the distance between the village land and the limit of the closest municipal Corporation, therefore, we are unable to accept the assessee s argument that the report o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year 2014-15, the High Court held that the distance between the municipal limit and the agricultural land is to be measured having regard to the shortest road distance . The said decision of the High Court has been accepted and the aforesaid disputed issue has not been further contested. 3. Being a settled issue, no appeals may henceforth be filed on this ground by the officers of the Department and appeals already filed, if any, on this issue before various Courts/Tribunals may be withdrawn/ not pressed upon. This may be brought to the notice of all concerned. 5.1 In light of the above observations, we think it fit in the interest of justice to restore the matter to the file of Ld. CIT(A) to take a decision afresh, on facts, in light of direction issued vide CBDT Circular No.17/2015 [f.no.279/misc./140/2015-itj] dated 6-10-2015 ( Measurement Of Distance For Purpose Of Section 2(14)(iii)(b) For Period Prior To Assessment Year 2014-15) and after taking into consideration the certificates placed on record by the assessee in support of the proof of distance between the land situated at village Bhaniyara and VMC (report of Talati cum Mantri and any other certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t year 2013-14. Accordingly, ground number 2 of the assessee is appeal is allowed. 9. In the result, ground number 2 of the assessee s appeal is allowed. 10. In the result, for AY 2012-13, appeal of the assessee is partly allowed for statistical purposes. Assessment Year 2013-14: Ground No. 1: the addition on account of capital gain arising on sale of land by evaluating it as an non agricultural land: 11. For assessment year 2013-14, the counsel for the assessee submitted that for this year the facts are similar to the immediately preceding year i.e. AY 2012-13, wherein a different land was sold in AY 2013-14, but it was located in the same village (Bhaniyara). Since the facts for AY 2013-14 are similar to AY 2012-13, in the interests of justice, we are restoring the matter to the file of Ld. CIT(A) to take a decision afresh, on facts, in light of direction issued vide CBDT Circular No.17/2015 [f.no.279/misc./140/2015- itj] dated 6-10-2015 ( Measurement Of Distance For Purpose Of Section 2(14)(iii)(b) For Period Prior To Assessment Year 2014-15) and after taking into consideration the certificates placed on record by the assessee in support of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed. The Ld. Departmental Representative relied upon the observations made by the Ld. CIT(A) in his order. 14. We have heard the rival contentions and perusal the material on record. In our view, the reasons for disallowance of agricultural expenses is that initially, the assessee had claimed almost 60% of agricultural receipts as agricultural expenses. When asked to produce the relevant supporting bills/voucher or any other supporting documents to evidence the agricultural expenses, the same were not produced before the Ld. Assessing Officer, who in absence of any supporting documents disallowed 20% thereof. In appeal, the Ld. CIT(A), restricted disallowance to 10% of the expenses. We note that while the assessee has given a summary list of details of agricultural expenditure viz. electricity and diesel expenses, fertilizer and pesticide expenses, ploughing and labour charges, seeds purchased, depreciation, however, the assessee has not produced any supporting bills/vouchers/documents in support of his claim of incurring the expenditure before any of the authorities. Accordingly, in our view, the Ld. CIT(A) has not erred in facts and in law in restricting the disallowance to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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