ITO, NEW DELHI vs. SMT SAVITRI GUPTA, NEW DELHI

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ITA 5581/DEL/2016Status: DisposedITAT Delhi08 November 2021AY 2009-105 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that the Revenue failed to produce any evidence to demonstrate that the impugned properties were situated within 8 kilometers of a notified area. The Tribunal noted that it was not in dispute that the subject land was not located within the limits of the Municipal limits. Therefore, Section 2(14)(iii)(a) of the Act was not attracted. The Tribunal found that the ratio laid down by the Hon'ble Karnataka High Court in the case of CIT Vs. Madhu Kumar N. (HUF) squarely applied to the facts of the present case. The High Court had clarified that for agricultural land to be considered a capital asset under Section 2(14)(iii)(b), the Central Government must have issued a notification including the area up to 8 kms from the municipal limits. As this condition was not met, the Tribunal declined to interfere with the findings of the CIT(A). The addition made by the AO was directed to be deleted.

What were the facts?

The Revenue has appealed against the order of the CIT(A)-17, New Delhi, dated 12.08.2016, for Assessment Year 2009-10. The assessee sold two properties for Rs. 2.12 crores and Rs. 1.89 crores. The Assessing Officer (AO) was of the opinion that these properties, situated near Village Gangapur, Tehsil Kashipur, Uttarakhand, did not qualify as agricultural land as defined under Section 2(14)(iii) of the Income Tax Act, 1961, because they were adjacent to the municipality. Consequently, the AO treated the sale consideration as long-term capital gains. The assessee contended that the properties were agricultural and thus exempt from tax. The CIT(A) agreed with the assessee and directed the AO to delete the addition.

What were the issues?

1. Whether the agricultural land sold by the assessee qualifies as a capital asset under Section 2(14)(iii) of the Income Tax Act, 1961, considering its proximity to the Kashipur Municipality. Assessee's contentions (as per CIT(A)'s order): The properties are agricultural and hence the sale consideration is exempt from tax. The land was located in Village Gangapur Rakba, Kashipur Tehsil, neither of which was notified by the Central Government under Section 2(14)(iii)(b) to include areas up to 8 kms from municipal limits. The facts are identical to the case of CIT Vs. Madhu Kumar N (HUF). Revenue's contentions (as per the appeal grounds and Tribunal's observation): The sale deed itself indicates the property is less than 7kms from Kashipur Municipality. A letter from the Sub-Registrar, Kashipur, and the land rate list confirm that Village Gangapur Rakba is situated adjoining the municipality limits. The AO was of the firm belief that the properties do not qualify as agricultural land as defined under Section 2(14)(iii).

Which sections of the Income-tax Act were involved?

Section 2(14)(iii),Section 2(14)(iii)(a),Section 2(14)(iii)(b)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH ‘G’, NEW DELHI

Before: SH. N. K. BILLAIYA & SH. SUDHANSHU SRIVASTAVA

Hearing: 08/11/2021Pronounced: 08/11/2021
1.

This appeal by the revenue is preferred against the order of the CIT(A)-17, New Delhi dated 12.08.2016 pertaining to A.Y.2009-10.

2.

The solitary grievance of the revenue read as under :-

“1. The Ld. CIT (A) has erred in ignoring the fact that as per sale deed itself the distance of the property from Kashipur Municipality is less than 7kms. Further, as per letter dated 19.02.2013 received from Sub-Registrar, Kashipur in response to notice u/s 133(6), Village- Gangapur Rakba is situated adjoining to the municipality limits of Kashipur Tehsil. The same fact is also mentioned in the rate list of land enclosed with the above mentioned letter.”

3.

None appeared on behalf of the assessee. We have heard the DR at length. Case record carefully perused.

4.

Briefly stated the facts of the case are that during the course of the scrutiny assessment proceedings the AO noticed that the assessee has sold two properties situated near in the vicinity of Village Gangapur, Tehsil Kashipur, Distt. Udham Singh Nagar, Uttarakhand for consideration of Rs.2.12 crores and Rs.1.89 crores.

5.

On verifying the details the AO was of the opinion that the properties under consideration situated near Gangapur, Rakwa is adjacent to Municipality. The AO was of the firm belief that the properties under consideration do not quality to be treated as agricultural land as defined under sub-section iii of Section 2 (14) of IT Act and accordingly the sale consideration under the head long term capital gains.

6.

Assessee accordingly agitated the matter before the CIT(A) contending that the said properties are agricultural properties and hence sale consideration is exempt from tax. After considering the facts and the submissions the CIT(A) held as under :-

“4.1 I have considered the facts & circumstances of the case and submission of the appellant. I find merit in the argument of the appellant. The fact remains that the land was located in the village Gangapur Rakba which was situated in Kashipur Tehsi Neither the village nor the tehsil headquarter was notified by the Central Government under the clause (b) to sec. 2 (14) (iii) for the purpose of including the area upto 8 kms from the municipal limit to render the land as capital asset. Further, the Hon'bie Karnataka High Court in the case of CIT Vs. Madhu Kumar N (HUF) (Supra) has discussed the issue involved and the fact of the present case are identical to the fact of the case cited above. Under these circumstances, the AO is directed to treat the land as agricultural land and accordingly to delete the addition.”

7.

Before us the DR could not bring any evidence on record to show that the impugned properties were situated within 8 kilometers of the notified area. In fact the DR could not demonstrate that Village Gangapur, Rakba which is situated in Kashipur Tehsil in a notified area. The ratio laid down by the Hon’ble Karnataka High Court in the case of CIT Vs. Madhu Kumar N. (HUF) in of 2009 dated 29.03.2012 squarely apply on the facts of the case in hand. The relevant findings of the Hon’ble High Court read as under :-

8.

As mentioned elsewhere in the case in hand also it is not in dispute that the subject land is not located within limits of Municipal limits, therefore, in our considered opinion section 2 (14)(iii) (a) of the Act is not attracted on the facts of the case and, therefore, we decline to interfere with the findings of the CIT(A).

9.

In the result, the appeal filed by the revenue is dismissed.

10.

Decision announced in the open court in the presence of Sr.DR on 08.11.2021.

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