TMI Blog2023 (1) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... ose referred to the Notification dated 06/01/1994, also reproducing the same. He has however not stated if the said Notification is the latest such. We say so in view of the considerable time that has elapsed, with urban India expanding at a rapid pace since 1994, even as the law (s.2(14)(iii)), removing the requirement for the Notification by the CG, stood amended only w.e.f. 01/4/2014. There is also no basis on record for the stated distance of 18 km. of the subject land from the limits of the Jabalpur Municipal Corporation (MC), with reference to which, apparently the nearest notified municipal corporation, the agricultural land under reference has been found by him as an agricultural land u/s. 2(14)(iii) and, thus, not a capital asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee and hearing her thereon, i.e., where the same is/are contrary to her claim/s, adversely impacting the status of the subject land as held by the ld. CIT(A), and finally decide the issue of the status of the subject land u/s. 2(14)(iii) by rendering definite finding/s of fact. Revenue s appeal is allowed for statistical purposes. - I.T.A. No. 195/JAB/2018 - - - Dated:- 9-11-2022 - SHRI SANJAY ARORA, HON BLE ACCOUNTANT MEMBER AND SHRI MANOMOHAN DAS, HON'BLE JUDICIAL MEMBER Appellant by : Sh. Shiv Kumar, Sr. DR Respondent by : None ORDER Per Sanjay Arora, AM: This is an Appeal by the Revenue agitating the Order dated 09/07/2018 by the Commissioner of Income Tax (Appeals)-1, Jabalpur ( CIT(A) , for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the last (2001) census prior to the relevant previous year. He, accordingly, subject the entire capital gain arising on the sale thereof, being short-term capital gain, determined at rs. 4,04,105 after allowing deduction u/s. 54B at rs. 20,56,795, to tax. In appeal, relief stood allowed to the assessee by the ld. CIT(A) on the basis that the Panagar Municipality stands not specified by the CG vide it s Notification u/s. 2(14)(iii)(b), referring to that issued on 06/01/1994. A distance of 8 kms. from the municipal limit (in all directions) stands specified in respect of the Jabalpur Municipal Corporation, though the distance of the subject land from the local limits thereof was 18 km, so that the same was not a capital asset under the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as every land would fall outside the maximum 8 km. limit from some Municipality. So, however, an agricultural land, to be regarded as a capital asset u/s. 2(14)(iii), is to be either located within the territorial jurisdiction of a municipality (Cl.(a)) or, within a maximum distance of 8 km. from a Municipality as may be specified by Notification by the CG (Cl.(b)), generally referred to as urban agricultural land . The subject land in the instant case is neither located within the local limits of Panagar Municipality (Nagar Palika) nor within the specified distance of a notified municipality. As such, we find no infirmity in the ld. CIT(A) regarding it as not a capital asset on that basis (refer para 6.1.5/pg. 20 of his order). He has for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back to the file of the AO to determine the issue with reference to the distance of the subject land from the extant local limits of the Jabalpur MC. If the same is more than 8 kms., i.e., the limit specified in the Notification for the Jabalpur MC, the subject land would be an agricultural land under the Act and, thus, not a capital asset, so that no capital gain shall arise on the sale thereof, else it shall. As we are remitting the matter, it would only be proper to require the AO to examine the aspect of the 1994 Notification as being the latest issued by CG in the matter, i.e., up to March, 2009, whereat the transfer in the instant case takes place. The burden of proof in the matter, i.e., the said distance, including the related a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and finally decide the issue of the status of the subject land u/s. 2(14)(iii) by rendering definite finding/s of fact. We are conscious when we do so, that the remittance by us, as well as the terms thereof, do not arise out of the Revenue s Grounds before us. There is, however, no estopple against law. It is, accordingly, the correct legal position that is relevant, and not the view that the parties may take of their rights in the matter (CIT v. C. Parakh Co. (India) Ltd. [1956] 29 ITR 661 (SC); Kedarnath Jute Mfg. Co. Ltd. v. CIT [1971] 82 ITR 363 (SC)). The Tribunal is the final fact-finding body under the Act, and is to, accordingly, deal with and determine questions which arise out of the subject-matter of the appeal in the light o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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