Renu Devi Modi, Jaipur vs Assessee

Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM

vk;dj vihy la-@ITA No. 962/JP/2012 fu/kZkj.k o"kZ@Assessment Year : 2009-10

Smt. Renu Devi Modi cuke The ACIT A-49, Shanti Path Vs. Circle- 1 Tilak Nagar, Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAUPM 4484 C vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Shri G.G. Mundra jktLo dh vksj ls@ Revenue by: Shri Rajesh Ojha, JCIT -DR

lquokbZ dh rkjh[k@ Date of Hearing : 24/03/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 30/04/2015

vkns'k@ ORDER

PER R.P. TOLANI, JM

This is an appeal filed by the assessee against the order of the ld.

CIT(A)-Central, Jaipur dated 2-11-2012 for the assessment year 2009-10

wherein the assessee has raised following grounds.

''1. That on the facts and in the circumstances of the case, the ld. CIT(A) is wrong, unjust and has erred in law in conforming the finding recorded by the AO that the agricultural land sold by the appellant is situated within 8 KM of municipal limit of Sriganganagar and is therefore, a 2 ITA No.962/JP/2012 Smt. Renu Devi Modi vs. ACIT, Circle- 1, Jaipur .

'capital asset' within meaning of Section 2(14) of the I.T. Act, 1961

2. That the ld. CIT(A) is further wrong and has erred in law in confirming addition of Rs. 4545200/- made to the income of the appellant by the AO by adopting sale value of Rs. 5595200/- u/s 50C of the I.T. Act , 1961 as Short term capital gain on sale of impugned agricultural land.''

2.1 Brief facts of the case are that the assessee sold the agricultural

land at village Chak Tehsil Sriganganagar which is regularly cultivated

and it is claimed to be beyond 8 KM from Srigangnagar Municipal Limit.

The assessee filed a certificate from Halka Patwari certifying that the said

agricultural land of the assessee was situated beyond 8 KM of Municipal

limits. The AO held that land was situate within 8 kms. of municipal

limits and rejected the claim of the assessee for exemption of capital

gains holding the land to be a capital assets and consequently worked out

the short term capital gain of Rs. 45,35,200/-.

2.2 Aggrieved, the assessee preferred first appeal where the ld. CIT(A)

confirmed the action of the AO by dismissing the appeal of the assessee.

2.3 The ld. Counsel for the assessee contends that during the

assessment proceedings to examine the claim of exemption u/s 2(14) the

assessee was asked to furnish necessary evidence regarding distance of

the land from the Municipal Limit. The assessee filed ''Anshik Nakal 3 ITA No.962/JP/2012 Smt. Renu Devi Modi vs. ACIT, Circle- 1, Jaipur .

Naksha'' issued by Patwari of the area dated 28-11-2011 indicating that

the land was situated 11 kms away from Sriganganagar. The assessee

filed another Nakal Naksha of the same Patwari dated 12-12-2012 stating

that land was situated approximately 9 kms from outer limit of

municipality of Sriganganagar ( 4ML by pass Road). The report of the

Patwari was subsequently endorsed by the Tehsildar of the Sriganganagar

vide letter dated 14-12-2011. AO requested for necessary inquiries to

ACIT Circle- Srigangangar who in turn deputed an inspector in this

behalf. The Inspector reported that the alleged land was just 7 Kms away

from one residential colony namely 'Home Land City approved by UIT,

Sriganganagar'. Consequently it was reported that the land in question

was found to be within 8 Kms of municipal limits of Sriganganagar.

2.4 The AO accordingly required the assessee to show cause as to why

the claim of exemption u/s 2(14) may not be rejected and sale

consideration may be taxed u/s 50C of I.T. Act as Short term capital gain.

In response to such show cause notice, the assessee stated that as per

revenue record submitted by him the agricultural land was situated at a

distance of more than 8 kms from Sriganganagar Parishad (Municipal

Committee). In support thereof assessee relied on certificates issued by

the Revenue authority i.e. Jurisdictional Patwari and Tehsildawr. It was 4 ITA No.962/JP/2012 Smt. Renu Devi Modi vs. ACIT, Circle- 1, Jaipur .

contended that these Govt. Revenue Authorities are competent to certify

distance of the land. As regards the inspector's report, it was stated that

the assessee was not aware as to on what basis and evidence such report

has been furnished. The AO held that the Home Land City was situated

on the Suratgarh Road and area of the municipality extended up to this

colony and when the distance of the disputed is measured from this

colony, and the land was within 8 kms of Municipal Limits. It was held

that the land was situated within 8 kms of Municipal Limits and brought

the capital gains to tax denying assessee's claim for exemption.

2.5 Aggrieved assessee preferred first appeal where the order of ld. AO

was confirmed dismissing the appeal. Aggrieved assessee is now before

us.

2.6 Ld. Counsel for the assessee contends that ld. AO's conclusion is

based on report from the Inspector of ACIT - Sriganganagar which itself

is confusing and non confirmatory. Report only mentions that land is

about 7 kms from 'Home Land City' which is approved by Urban

Improvement Trust. Without appreciating that Urban Improvement Trust

authorities limits extend even beyond the municipal limits, it has been

erroneously held that the land is situated within 8 kms of Municipal Limit

of Sriganganagar. Thus the reliable Revenue record, filed by the assessee, 5 ITA No.962/JP/2012 Smt. Renu Devi Modi vs. ACIT, Circle- 1, Jaipur .

has been ignored and inspector report which is based on presumption has

been relied upon. This has resulted in arriving at a faulty consideration.

Revenue record being authentic record is sufficient evidence to decide the

issue in favour of the assessee.

2.7 The ld. DR is heard who supported the orders of the lower

authorities.

2.8 We have heard the rival contentions and perused the materials

available on record. It appears that Revenue record filed by the assessee

has not been appreciated properly. the inspector's report which is not

based on any revenue record and relies only on distance from the said

'Home Land City'. It is claimed by assessee to be outside the Municipal

Limit. In our considered view the municipal limit of Sriganganagar needs

to be examined and measured as per Revenue records. Thus in entirety of

the facts and circumstances, we are of the view that the issue should be

restored back to the file of the AO to decide the same afresh keeping in

view our observation; after considering the materials available on record

and after giving a reasonable opportunity of being heard to the assessee.

Thus the appeal of the assessee is allowed for statistical purposes. 6 ITA No.962/JP/2012

Smt. Renu Devi Modi vs. ACIT, Circle- 1, Jaipur .

3.0 In the result, assessee's appeal is allowed for statistical purposes .

Order pronounced in the open court on 30/04/2015.

Sd/- Sd/- ¼Vh-vkj-ehuk½ ¼vkj-ih-rksykuh½ (T.R. Meena) (R.P.Tolani) ys[kk lnL;@ Accountant Member U;kf;d lnL;@Judicial Member

Tk;iqj@Jaipur fnukad@Dated:- 30th APRIL, 2015 *Mishra

vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- Smt. Renu Devi Modi, Jaipur

2. izR;FkhZ@ The Respondent- The aCIT, Circle- 1, Jaipur

3. vk;dj vk;qDr¼vihy ) @ CIT(A), Jaipur

3. vk;dj vk;qDr@ CIT, Jaipur

4. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

5. xkMZ QkbZy@ Guard File (ITA No.962/JP/2012)

vkns'kkuqlkj@ By order,

lgk;d iathdkj@ Assistant. Registrar