TMI Blog2023 (11) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... Ghaziabad Nagar Nigam (GMC). In so far as the certificate issued by the Ghaziabadad Nagar Nigam is concerned, considering the fact that during the Remand proceedings, A.O. after making extensive enquiry and also relying on the corroborative evidences, found that the village Morti/Morta is only 2.5-03 kilometers from the outer limit of the Ghaziabad Municipal Corporation. Therefore, we do not give much importance to the contents of the certificate which is far from truth. We find no error or infirmity in the order of the CIT(A) in upholding the disallowance made by the A.O - CIT(A) has rightly directed the A.O. to recomputed the capital gain by reducing the cost of acquisition of the said properties from the total sale consideration in the land of the Assessee. No merit in the Grounds of Appeal of the Assessee. - Shri Shamim Yahya, Accountant Member And Shri Yogesh Kumar U.S., Judicial Member For the Appellant : Smt. Rano Jain, Advocate For the Respondent : Sh. Vivek Vardhan, Sr. DR ORDER PER YOGESH KUMAR U.S., JM: This appeal by Assessee is filed against the order of Learned Commissioner of Income Tax (Appeals)-2, Noida [ Ld. CIT(A) , for short], ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter the impugned assessment order as confirmed by CIT(A) in respect Capital gain exempt are not sustainable in the eyes of law and the order of authorities below is beyond jurisdiction and void-ab-initio 8. That the appellant craves the leave to Add, Modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other. 2. The brief facts of the case are that, the AIR information has been received by the Revenue that the assessee had sold two immovable properties with the sale consideration of Rs. 69,60,720/- and Rs. 65,35,104/- and the circle value of the said property was Rs. 71,92,000/- Rs. 67,55,498/-, respectively. To verify the financial transaction, verification letters have been issued to the assessee no compliance was made by the assessee. Subsequently, the case was reopened u/s 147 of the Income Tax Act, 1961 ( Act for short). The Authorized Representative appeared on behalf of the assessee and submitted the required details before the AO. The Ld. AO passed the assessment order u/s 144 of the Act by making the addition of Rs. 69,73,749/- u/s 50C of the Act in following manners:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land is situated beyond the distance of 8 K.M. from the nearest municipality. Further submitted that the assessee produced the copy of the certificate from Ghaziabad Municipal Corporation dated 22/06/2008, but the Ld. CIT(A) has erroneously relied on the Google map which was showing the distance as on 03/10/2017 which is erroneous, therefore, submitted that the assessee s appeal deserves to be allowed. 5. Per contra, the Ld. DR relying on the order of the Ld. CIT(A) that the distance between the property sold by the Assessee and the outer limit of Ghaziabad Municipal Corporation are less than the 8 K.M. from the outer limits of the Municipality. Further, submitted that the CIT(A) called for Remand Report and the A.O. made extensive enquiry and submitted detailed report to prove the distance between the property sold by the Assessee is less than 8 K.M. supported by the Google map and other materials, therefore, therefore, submitted that the order of the Ld. CIT(A) requires no interference. 6. We have heard both the parties and perused the materials available on record. The assessee had sold two immovable properties for the total sale consideration of Rs. 67,47,912/- which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y kindly be rejected. 2. Aggrieved with the order of the A.O passed u/s 147/144 dated 08.12.2016, assessee has preferred an appeal before your honor. However, the assessee has filed copy of sale deeds of the property as well as copy of purchase deed of the said property during the appellate proceedings. On perusal of deeds, it is noticed that the assessee had purchased said property jointly with Smt. Sudha Tyagi W/o Shri Sagar Tyagi, Vill- Makanpur, Indirapuram, Ghaziabad. The said properties were purchased by the assessee on 15.06.2006 with the sale consideration of Rs. 6,08,000/- Rs. 6,37,350/ respectively. Further, the said properties were sold by the assessee on 16.06.2008 with the sale consideration of Rs. 65,35,104/- Rs. 69,60,720/-, respectively. The assessee had purchased the said properties on 15.06.2006 and were sold on 16.06.2008 Le. within three years. Therefore, the assessee was liable to pay short term capital gain. The assessee has sold both the properties to M/s I. M. A. Private Limited, 26A, Sector-31, Kasna Industrial Area, Greater Noida through Authorized Signaturory Shri Pawan Kumar Sarswat. During the course of appellate proceedings the assessee has su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re as capital assets, the copy of notification issued by Nagar Nigam, Ghaziabad in the year 1995, under which village: Morti was covered under the Nagar Nigam with effect from 25 November 1994 is enclosed for your honour's kind perusal. 6. Further, on perusal of record it is noticed that vide letter dated 25.09.2017, the A.R of the assessee has submitted before your honour that (in page no. 1) That the Agricultural Land with is sold on 16.06.2008 for Rs. 69,60,720 and Rs. 65,35,104.00 jointly with Smt. Sudha Tyagi at village Morta is not capital assets within the definition of section 2(14) of 1.Tax Act hence profit comes from sale of land no. 1 2 of Rs. 53,42,336,00 exempted u/s 2(14) and on that basis ITO ward 2(3) accept the case of Smt. Sudha Tyagi u/s 143(3) of I. Tax . He further submitted in the letter that (in page no.2) That both the agriculture land is not the Capital Assets within the definition of section 2(14) of I. Tax Act. Hence profit on sale of above land as calculated as per page-1 of Rs. 5342336.00 exempted u/s 2(14) of the I.Tax Act and on that basis the case of the assessee sister in law and co-owner of above agriculture land Smt. Sudha Tyagi was final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 9 years of development in the area. The road as shown in the map was not in existence in the year 2008 and the shortest road distance of the village Morti, Ghaziabad from the municipal limits of Ghaziabad Nagar Nigam was more than 8 KM. The assessee place reliance on the following documents:- a. CBDT circular No.: 17/2015 dt 06.10.2015 which says that for the period prior to A Y 2014-15, the distance between the municipal limits and the agricultural land is to be measured having regards to the shortest road distance. Copy as per Annexure-1. b. The assessee rightly submit the certificate from the Ghaziabad Nagar Nigam office dt. 23.06.2008 (Annexure 2), that the agricultural land which was sold on dt. 16.06.2008 was beyond the distance of 8 K M from the municipal Limit of Ghaziabad Nagar Nigam The said certificate has been considered by the AO in the remand report and no adverse comments has been made by the AO in this regard. The A O only rely on the Google map of 2017 which is wrong and irrelevant. c. That the agricultural land in question was a agricultural land and used for agricultural purposes by the assessee. The said land was sold as agricultural land b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid area. So, by the above notification the notified villages comes in the larger urban Area of Ghaziabad, so that such area could not be held to be falling in the area of some other Municipal area or district say Hapur, Noida or Merrut. But the said notification does not held that the Morti Village falls under local limits of Ghaziabad Nagar Nigam as presumed by the ld AO to justify her actions. 2(b) The assessee enclosed the certificate from Gram Pradhan Morti Village dt 12.11.2017 in which it was mentioned that there is elected Gram Panchayat in Village Morti and Village Morti does not fall in the limits of Ghaziabad Nagar Nigam. Copy as per Annexure-6. 3. That in respect of 3rd objection of the AO in the remand report that the issue of exemption on the /% share of the other co-owner was not examined by the ITO Ward 2(3), Ghaziabad The assessee submit the following evidence in this regard: a. The enclosed certificate Page 2 issued by the Nagar Nigam, Ghaziabad dt, 27.06.2008 issued in the name of both the owners Namely Smt Krishna Devi Smt Sudha Tyagi and the said certificate filed by Smt Sudha Tyagi before the ITO Ward - 2(3), Ghaziabad during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment proceedings, the assessee has not appeared and produced any documents to show that the two immovable properties sold by the assessee is more than 8 K.M. away from the outer limit of the Municipality to come out of the clutches of provision of Section 2(14)(iii)(b) of the Act. As per the Remand Report, it is clear that the village Motra/Morti is 2.5-03 K.M. away from the outer limit of the GMC, which is contrary to the stand taken by the assessee before us that the distance of village Morti would be more than 8 K.M. from the outer limit of Ghaziabad Municipal Corporation. It is the contention of the Ld. AR that the Google map relied by the CIT(A) and the A.O. in the remand report is of the year 2017 and the property has been purchased way back in 2008, therefore, the distance measured with the help of Google Map cannot be relied. The said contention the Ld. AR does not have any merit as distance between the property and the outer limit of the municipality will not increase or decrease until and unless there is expansion of the boundaries of the receptive places. De-hors the Google Map, the fact remains that the distance from Rajnagar Extension area to village Morta/Morti i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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