SHIVA CORPORATION (INDIA) LIMITED,JAIPUR vs. DY. CIT, CC-3, JAIPUR

vk;dj vihy la-@ fu/kZkj.k o"kZ@Assessment Years : 2015-16 cuke Shiva Corporation (India) Limited. Dy. CIT, A-24, Ambabari, Sikar Road, Vs. Central Circle-3, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAKCS3004M vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Tarun Mittal, C.A. jktLo dh vksj ls@ Revenue by : Mrs. Anita Rinesh, JCIT, Sr.-DR a lquokbZ dh rkjh[k@ Date of Hearing : 10/07/2025 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 21/08/2025 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM

By way of present appeal the assessee – appellant challenges the finding of the learned Commissioner of Income Tax, Appeals-4, Jaipur [ for short CIT(A) ] dated 09.08.2024 for Assessment Year 2015-16. Ld. CIT(A) passed that order because the assessee challenged the order of assessment dated 30.03.2017 passed u/s 143(3) of the Income Tax Act 1961 [for short ‘Act’] by Deputy Commissioner of Income Tax, Central Circle- 3, Jaipur [for short ‘AO’].

Shiva Corporation (India) Ltd., Jaipur.

2. The impugned order is challenged by the assessee on the following grounds: - “1. On the facts and in the circumstances of the case, Ld. CIT(A) has erred in sustaining the additions of Rs. 38,56,889/- made by Ld. AO under are head “long term capital gain” by treating the agriculture lands sold by assessee as urban and capital asset within the meaning of Section 2(14). Appellant prays that land sold by assessee during the year under consideration was rural agriculture land and thus the additions so made deserve to be deleted. 1.1 That, Ld. CIT(A) has further erred in ignoring the fact that the said land was duly fallen under the category of agriculture land being situated beyond the prescribed municipal corporation of tehsil – Samalakha, therefore the addition so made by Ld. AO treating the same as urban land deserves to be deleted.

2. That the appellant craves the right to add, delete, amend or abandon any of the grounds of appeal either before or at the time of hearing of appeal.”

3. Succinctly, the facts as culled out from the records is that for the year under consideration the assessee filed the return of income declaring income of Rs. 4,33,930/-. Records reveals that the assessee derived income from business of toll and royalty collection, hiring income as well as from sale of bajri/reta. During the year under consideration the assessee has shown agricultural income of Rs. 54,14,406/-. Ld. AO from the details so submitted by the assessee noted that the assessee sold two agriculture land located in Village Jorashi Khalasa and Village GarhiJaju of Tehsil Samalakha, District Panipat for a consideration of Rs. 62,65,000/-

Shiva Corporation (India) Ltd., Jaipur. and Rs. 7,50,000/- respectively. The assessee purchased those land in financial year 2006-07 at cost of Rs. 14,19,994/- and Rs. 1,80,650/- respectively. These land being agricultural land and not capital asset in terms of section 2(14) of Act. The assessee claims that both the lands were situated far away from limits of nearest Municipal Corporation and the lands are actually situated in Villages whose population is below 10,000. However, ld. AO observed that these two villages where the impugned land are sold, are situated within circumference of 4 Kms. of Municipal Corporation of Tehsil Samalakha (Distt. – Panipat). Therefore, ld. AO was of the view that lands sold is covered within the definition of capital asset as mentioned in section 2(14) of I.T. Act [mistakenly mentioned by ld. AO as ‘u/s 2(1A) of I.T. Act’]. The ld. AO made addition of capital gain of Rs. 38,56,889/-.

form of google maps and population data of Municipality. After considering the rejoinder filed by the ld. AR and the fact that these are factual data available in public domain and are taken from the google, ld. CIT(A) admitted these evidences, but while passing his order has referred to some official municipal map of Samalakha (not hitherto available before ld. AO or ld. AR) and dismissed the appeal of the assessee by observing as under :

5.5 I have considered the facts of the case and written submissions of the appellant as against the observations/findings of the AO in the assessment order, remand report and the rejoinder submitted by the appellant. The contentions/submissions of the appellant are being discussed and decided as under:- The Id. AO noted during the assessment proceedings that during the year the assessee sold two agricultural lands for a consideration of Rs. 62,65,000 & Rs. 7,50,000 totalling to Rs. 70,15,000 which were purchased in FY 2006-07 at Rs. 14,19,994 and Rs. 1,80,650 respectively. The land sold is located in the villages of Jorashi Khalasa and Gadi Chaju of Tehsil Samalakha (Dist. Panipat). It was observed that both the villages are situated within the circumference of 4 Kms. of the Municipal Corporation of Tehsil-Samalakha (Dist.-Panipat). Therefore, the land sold falls within the definition of capital asset as defined u/s 2(1A) of the IT Act, 1961. In response to the opportunity the appellant reply during the assessment proceedings that the agricultural lands sold were situated far away from the limit of the municipal corporation. The explanation of the appellant was rejected and addition was made in the assessment order treating these two lands as capital assets. In response to the letter calling the remand report the learned AR submitted that the village as mentioned is situated within the municipal limits i.e. Garhi Chhaju is located within 4 Km. from district headquarter Panipat (screen shot of Google map enclosed) while village Jaurasi Khalsa is located within 4 Km. (screen shot of Google map enclosed)

Shiva Corporation (India) Ltd., Jaipur. from Sub-district headquarter Samalkha. The distance as referred to in the Act is outside the municipal limits while the village as referred are within 4 Km. from the headquarters so the question of distance from the end of municipal limits doesn't even arise. The learned AO has also state that the section 2(14) talks about the exception in case of capital assets which if fulfills the conditions remain outside the preview of being referred to as capital asset but the land here falls within the municipal limits of the headquarters. The learned AO has further stated that the assessee has submitted a screenshot of a website villageinfo.in which is not so authentic source of information as it is not a government website and these facts were not narrated by the assessee during the assessment proceeding. The source of population data as submitted is not so authentic and reliable.

In the rejoinder comments the appellant has submitted that the data submitted was from the information available on the Internet in public domain and cannot be considered as additional evidence in terms of Rule 46A. This legal contention of the appellant is found acceptable. Even in the letter calling for the remand report is a general letter and not the specific letter calling for the remand report on additional evidence under Rule 46A. The Hon'ble Bombay High Court in Smt. Prabhavati S Shah's case (1998) 231 ITR 1 has observed to the effect that the CIT Appeal was empowered to make such further inquiry as he thinks fit and such power being quasi judicial power, it was incumbent on him to exercise the same if the facts and circumstances justify. In ITO vs. Bajoria Foundation (2001) 71 TTJ 343, the Calcutta Bench of the Tribunal followed Smt. Prabhavati S Shah's case (supra) to reject the technical objection of the revenue and held that CIT(A) could consider the necessary evidence in exercise of his powers under section 250(4) if prima facie an information is necessary to examine the claim of the assessee. Similarly, the judgement of Hon'ble Bombay High Court has been followed in DCIT vs. Pradeep Oxygen (P) Ltd (2001) 71 TTJ 662

In view of the above, this contention of the appellant is accepted and the data available in public domain is admitted subject to verification and examination.

On merits the appellant has referred to definition of "agricultural land" as per clause (i) of section 2(14) of the Income Tax Act and submitted that as per section 2(14)(iii)(b)(i) the distance should be less than 2 km from the municipal limits having population upto 1 lakh. The appellant has also enclosed the printout from the respective government website

Shiva Corporation (India) Ltd., Jaipur. of the Samalkha Municipal Committee showing population of 39 thousand and of Panipat Municipal Corporation showing population of 6,23,571 (2011 census).

As the population of Samalkha Municipal Committee is less than 1 lakh, for an agricultural land to be considered a capital asset on the basis of proximity to Samalkha Municipal Committee, such land should be within 2 kilometers of the local limits of Samalkha Municipal Committee as per section 2(14)()(b)(i) of the Act.

However in the assessment order it has been held that the two lands in question are within the distance of 4 km. Even in the remand report same position has been reiterated.

For the village Jorashi Khalasa (Jaurasi Khalsa) the distance is less than 2 km from the limits of Samalkha and in this regard the Google Maps in screenshot is as under-

For the village Garhi Chhaju (Gadi Chaju) the distance of the village is as per google maps is more than 2 km from border of Samalkha and in this regard the google maps screenshot is as under:-

Shiva Corporation (India) Ltd., Jaipur.

However the google maps apparently does not reflect the true municipal map. The official municipal map of the Samalkha is as under:-

Shiva Corporation (India) Ltd., Jaipur.

Apparently, considering the above map wherein towards village Garhi Chaju the boundaries of Samalkha Municipal Committee are substantially wider in comparison to map shown on Google maps, the village Garhi Chaju, also falls within 2 kilometer of the municipal limits of the Samalkha Municipal Limits. The appellant has not discharged onus to place on record relevant evidence in support of its claim that the impugned land is not a capital asset specially in view of the fact that the prima-facie findings and the assessment order findings are against him in this regard. Similar is the scenario regarding the distance from Panipat Municipal Corporation where a limit of 8 KM will be applicable considering its population.

Considering the above discussion the impugned land as per the definition of capital asset under section section 2(14) are not outside the purview of the definition of the capital asset and thus the gain on the sale of the same is chargeable to tax.

Shiva Corporation (India) Ltd., Jaipur.

In view of the above, the appeal of the appellant on this ground fails and is dismissed.

“Brief facts of the case are that the assessee-company is engaged in the business of toll collection, mining & construction and declared income from business or profession. The assessee had filed its return of income for the year under consideration on 30.09.2015 declaring a total income of Rs. 4,33,930/-. The income of the assessee was assessed u/s 143(3) by making following disallowance/ additions: (i) Disallowance of deduction u/s 80G Rs. 7,91,266/- (ii) Addition on account of LTCG Rs.38,56,889/- Aggrieved of the additions so made, assessee preferred appeal before ld. CIT(A), however ld. CIT(A) without properly appreciating the submission made and evidence adduced by the assessee, considered the agriculture land as capital asset and thus upheld the addition made by ld.AO. Aggrieved by the order so passed by ld. CIT(A), assessee has preferred a present appeal before the hon’ble Bench against the addition of LTCG of Rs, 38,56,889/-. Grounds of Appeal No.1 & 1.1: In these grounds of appeal, assessee has challenged the action of ld. CIT(A) in confirming the addition of Rs.38,56,889/- made by ld.AO under the head Capital Gain by alleging that Agriculture Land sold by assessee company as Capital Asset as per Income Tax Act,1961 arbitrarily, Brief facts pertaining to these grounds of appeal are that during the year under consideration, assessee has sold two agricultural lands located in villages JorashiKhalasa and GarhiJaju of Tehsil Samalakha (Distt. Panipat) for a total consideration of Rs.62,65,000/- and Rs.7,50,000/- respectively (APB 20-22 & 24-27). Such lands were purchased by Shiva Corporation (India) Ltd., Jaipur. assessee in F.Y.2006-07 for Rs.14,19,994/- and Rs.1,80,650/- respectively. Both the lands sold were agricultural lands and not Capital Assets in terms of section 2(14) of the Income Tax Act, 1961. However, ld.AO alleged that both the villages are situated within circumference of 4 kms of the Municipal Corporation and thus proposed to treat them as “capital asset”. It was submitted that both the lands were situated far away from limits of nearest Municipal Corporation and the subject lands are situated in a village whose population is not more than 10,000. Ld. AO, without raising any further query proceeded to make addition of Rs.38,56,889/-. Further during the course of appellate proceedings, assessee furnished data taken from Google maps regarding population of villages GhariJaju and JharasiKhalsa. Ld. CIT(A) sought remand report from ld. AO w.r.t. such data, which was provided on 25.04.2019 (APB 34-38), wherein ld. AO objected the admissibility of such evidence in the form of Google Maps & Population data of Municipality. In response to Remand Report assessee vide reply dated 23.02.2023 (APB 39-41)& 30.07.2024 (APB 42-44) explained that Certificate from Revenue Authorities (APB 23 & 28) were furnished during the course of assessment itself and other factual data are available in the public domain which does not comprise of additional evidence u/r 46A of Income Tax Rules,1962. Ld. CIT(A) accepted the contention of assessee company and admitted the factual data points. Ld. CIT(A) though admitted such evidences, however has referred some official municipal map of Samalkha (produced for the very first time in the ld. CIT(A) order) and has eventually dismissed the appeal of assessee.

In this regard, at the outset, kind attention of your goodself is invited to the definition of “agricultural land” as per clause (iii) of section 2(14) of the Income Tax Act, which reads as under:

[(iii) agricultural landin India, not being land situate— (a) in any area which is comprised within the jurisdiction of a municipality(whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a populationof not less than ten thousand [***] ; or [(b) in any area within the distance, measured aerially,— (i) not being more than two kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten thousand but not exceeding one lakh; or (ii) not being more than six kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than one lakh but not exceeding ten lakh; or (iii) not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten lakh.

Shiva Corporation (India) Ltd., Jaipur.

Explanation.—For the purposes of this sub-clause, "population" means the population according to the last preceding census of which the relevant figures have been published before the first day of the previous year;]]

From perusal of above, it is evident that whether a particular land is agriculture land or not has to be determined by examining two factors, i.e.: (i) distance of area from municipality limits and (ii) population of such area according to last preceding census

As per clause (a), if land is located within municipality limits or population of the area exceeds 10,000, the land will be considered as “capital asset” without any further condition.

However, once the land is outside the purview of municipality, conditions as per (b) have to examined for determination of whether land is agriculture land or not. In the instant case, ld.AO in assessment order has mentioned that both the villages are situated within circumference of 4 kms of Municipal Corporation. However, that itself does not suffice to hold a land as “capital asset”. Once, distance is admittedly not comprised within jurisdiction of municipal corporation, next test would be whether population of area exceeds threshold as specified in relevant clause of section 2(14)(iii)(b) so as to constitute land as “capital asset”.

Since, land is situated within 4 kms, Clause (II) of sub clause (b) would be relevant. As per this clause, lands within six kilometres from local limits having population within the range of 1,00,000 and 10,00,000 would be treated as “capital assets”.

Further as per clause (b) we need to check the distance from the Municipality as per their population and in order to do so we have determined the distance of municipality from the Village using Google Maps (APB 45-48) and the source of population data is taken as per census 2011 (copy of Screenshots from respective official website of the government has been taken (APB 49-51)). For the sake of convenience same is tabulated as under for ready reference — Pg No. Aerial Pg Pg Population Aerial of WS Distance No. of No. Municipality of Distance from Remark from WS of Municipality JaurasiKhalsa GarhiChhaju WS Panipat 6,23,571 09-10 10.96 km 18 12.01 km 20 Not Covered by Samalkha 39,000 11 4.32 Km 19 3.58Km 21 Clause (b) GarhiChhaju 2,555 12-14 - - Not Shiva Corporation (India) Ltd., Jaipur.

Covered by JurasiKhalsa 3,879 15-17 - - Clause (a)

In the view of aforesaid facts and circumstances of the case it is clearly evident that aforesaid lands are situated beyond 10 and 2 km from the municipality limit of Panipat and Samalkha municipality respectively therefore, both lands are squarely covered by the definition of agriculture land as per section 2(14) of the Income Tax Act, 1961 and same cannot be considered as capital asset.

At this juncture, for the sake of convenience, data available from public domain as produced before ld. CIT(A) is produced as under for ready reference—

Admittedly,in the case of assessee, population of villages GhariJaju and JharasiKhalsa as per last census is 2555 and 3879 respectively and ld. CIT(A) has not rebutted submission of assessee specifically with regards to population of the villages wherein lands sold were located. It is thus submitted that lands sold by assessee do not constitute Capital Assets. In this regard, reliance is placed on:

Principal Commissioner of Income-tax-3 vs. Anthony John Pereira [2020] 115 taxmann.com 368 (Bombay)/[2020] 272 Taxman 138 (Bombay)/[2020] 425 ITR 134 (Bombay)[04-02-2020] INCOME TAX: Where Tribunal after considering census report and population certificate of a village and other relevant documents found that population of village was 5,912 which was less than statutory requirement of 10,000, Tribunal was justified in holding land in question sold by assessee which was situated in said village was an agricultural land

Kulwant Singh vs. Income-tax Officer [2024] 165 taxmann.com 383 (Chandigarh - Trib.)[26-04-2024] Section 2(14) of the Income-tax Act, 1961 - Capital gains - Capital asset (Agricultural land) - Assessment year 2015-16 - Assessee sold agricultural land in Mohali in 2014 and claimed a deduction under section 54B for purchasing new agricultural land - Assessing Officer held that sold land was a capital asset, taxable under section 2(14), as it was within municipal limits of Mohali - On appeal, assessee pleaded an altenate ground that land was not a capital asset under section 2(14)(iii) - Commisssioner (Appeals) however, upheld AO’s decision - It was noted that assessee had submitted necessary documentation issued by Competent authorities that agriculture land was not situated within jurisdiction of municipality of Mohali as per Government notification dated 28/01/2014 and secondly, he had also submitted that population of Village was 907 persons as per latest published

Shiva Corporation (India) Ltd., Jaipur.

Census of Punjab 2011 which was less than prescribed threshold of 10000 persons as so provided in statute - Whether both conditions of section 2(14)(iii)(a) were cumulatively satisfied in instant case and agriculture land so sold qualify for exclusion and could not be classified as capital asset in terms of section 2(14)(iii)(a) - Whether further, given that population of Village was 907 as per latest census, even as per section 2(14)(iii)(b), one of essential conditions of population exceeding threshold was not satisfied and subject agriculture land would stand excluded and could not be classified as capital asset - Held, yes - Whether thus, long term capital gains on sale of agriculture land, being not a capital asset could not be brought to tax and addition so made was to be deleted - Held, yes [Para 12][In favour of assessee]

At this juncture, remarks of ld.CIT(A) while dismissing the appeal are reproduced as under for the sake of convenience: “Apparently, considering the above map wherein towards village GarhiChaju the boundaries of Samalkha Municipal Committee are substantially wider in comparison to map shown on Google maps, the village GarhiChaju, also falls within 2 kilometer of the municipal limits of the Samalkha Municipal Limits. The appellant has not discharged onus to place on record relevant evidence in support of its claim that the impugned land is not a capital asset specially in view of the fact that the prima-facie findings and the assessment order findings are against him in this regard. Similar is the scenario regarding the distance from Panipat Municipal Corporation where a limit of 8 KM will be applicable considering its population.”

From perusal of such official map relied upon by ld.CIT(A), it appears that the same has been signed by competent authorities of Town Planning on 05.10.2005.

At this juncture, kind attention of the hon’ble bench is invited to notification no. SO 9447] (File No. 164/3/87-ITA.I)], dated. 06-01-1994, which is the latest notification issued by CBDT as available to define Municipal Limits From perusal of this notification, it is evident that notification contains a schedule, column 4 of which specifies “Details of Areas falling outside he local limits of municipality or Contonment Board etc.” According to this notification, any land located “up to a distance of 8 kms. from the municipal limits in all directions”, shall be outside the local limits of municipality.

Your honours would appreciate that it is a settled legal position that for the purpose of measuring Kms from radius of municipal corporation, relevant date would be date of notification and not the date of sale of land in question. In this regard, reliance is placed on: [2014] 46 taxmann.com 149 (Jaipur - Trib.)Satya Dev Sharma v. Income-tax Officer, Ward -5(2), Jaipur

Shiva Corporation (India) Ltd., Jaipur.

Section 2(14 of the Income-tax Act, 1961 - Capital gains - Capital asset (Agricultural land) -Assessment year 2008-09 - Assessee was allotted agricultural land by Government on his retirement from defence services - During year, assessee sold a part of said agricultural land- Assessing Officer having rejected assessee's explanation that land in question was agricultural land, brought capital gain arising from sale of land to tax - Whether for purpose of application of item (b) of sub-clause (iii) of section 2(14) and to measure KMs from radius of Municipal corporation, relevant date would be date of notification and not date of sale of land in question - Held, yes - Whether since land sold by assessee was situated outside limits of Jaipur Municipal Corporation on date of notification and, moreover, it was being cultivated during relevant year as per records of Government, it was to be regarded as agricultural land and thus capital gain arising from sale of land could not be brought to tax -Held, yes [Para 6] [In favour of assessee]

[2013] 34 taxmann.com 286 (Jaipur - Trib.)Smt. (Dr.) SubhaTripathiv. Deputy Commissioner of Income-tax, Circle - 6, Jaipur Section 2(14), read with section 54F, of the Income-tax Act, 1961 - Capital gains - Capital asset [Municipal limit] - Assessment year 2008-09 - Agricultural land in question though located beyond 8 kms. from municipal limits of Jaipur municipality as on date of impugned notification No. 9447 dated 6-1-1994 but subsequently it fell within distance of 8 kms from municipal limits due to expansion of municipal limits - Whether said land would still be regarded as agricultural land not falling in definition of capital asset in terms of section 2(14)(iii)(b) - Held, yes [Para 2.8] [In favour of assessee]

Circulars and Notifications : Notification No. 9447, dated 6-1-1994

It is also relevant to state that ld. CIT(A) in page 19 of the order alleged that assessee has not discharged its onus. In this regard it is submitted that observation of ld. CIT(A) is misplaced as assessee company to substantiate that land is situated beyond the municipality limit of nearest municipal corporation, submitted the letter from Tehsildar(APB 23 & 28) confirming the aerial distance from Samhalika Nagar Palika, which were never refuted by the ld. AO as well as ld. CIT(A). Further reliance is placed on the decision of Hon’ble Madras High Court, wherein it was held that certification from the Revenue Authorities needs to be given weightage unless something contrary is bought on records,

Commissioner of Income-tax, Coimbatore vs. K.R.N. Prabhakaran (HUF) [2016] 73 taxmann.com 305 (Madras)/[2017] 393 ITR 175 (Madras)[17-08-2016] Section 2(14) of the Income-tax Act, 1961 - Capital gains - Capital assets (Agricultural land) -Assessment year 2008-09 - Assessee claimed exemption in respect of agricultural land sold by it during relevant assessment year on ground that same was situated beyond 8 kms of Shiva Corporation (India) Ltd., Jaipur. municipal limit - Assessing Officer, however, relying on report of investigation wing held that land was situated within 8 kms of municipal limit and assessee was liable to capital gain tax and accordingly, assessed long term capital gains - Survey Department of State government and Tahsildar of relevant zone, had consistently certified that land was situated beyond 8kms from Corporation limits of Coimbatore - Whether revenue department and survey authorities were competent to measure land and issue appropriate certificates, and same could not have been ignored by Assessing Officer, by relying on report of investigation wing- Held, yes - Whether amongst report of departmental inspector vis-a-vis certificates of revenue authorities, produced before Assessing Officer, latter should be given weightage and accepted, unless contrary is proved - Held, yes [Paras 26 & 27] [In favour of assessee] It is further pertinent to note here that Land situated at Village JorashiKhalsa has been held as Capital Asset without giving any observation. In view of above, it is prayed that lands sold by assessee were not Capital Assets and therefore addition of Rs.38,56,889/- confirmed by ld. CIT(A) deserves to be deleted.”

PAG S. PARTICULARS E No. NOS. Copy of Acknowledgement of Return of Income and Computation of 1. 1-4 Total Income filed u/s 139(1) dated 30.09.2015 2. Copy of Balance Sheet, Profit & Loss Account along with relevant notes 5-19 3. Details of Sale of Agricultural Land situated at JaurasiKhalsa: a . Copy of Sale Deed of Agricultural Land situated at JaurasiKhalsa 20-22 b Copy of Letter from Tehsildar confirming aerial distance from the 23 . Samhalika Nagar Palika 4. Details of Sale of Agricultural Land situated at GarhiChajju: a . Copy of Sale Deed of Agricultural Land situated at GarhiChajju 24-27

Shiva Corporation (India) Ltd., Jaipur.

PAG S. PARTICULARS E No. NOS. b Copy of Letter from Tehsildar confirming aerial distance from the 28 . Samhalika Nagar Palika Copy of Agriculture Land Ledger in the books of accounts of assessee 5. 29-30 Company.

6. Copy of Written submission dated 09.07.2018 filed before Ld. CIT(A)-4 31-33 7. Copy of Remand report letter dated 25.04.2019 34-38 Copy of Remand report reply dated 23.02.2023 in response to remand 8. 39-41 report letter Copy of Remand report reply dated 30.07.2024 in response to remand 9. 42-44 report letter along with a Copy of Screenshot of Google maps determining the distance from 45-48 . municipality from the village b Copy of Screenshot of Official website of Municipal Corporation of 49-51 . Panipat& Municipal Corporation Samalakha

Shiva Corporation (India) Ltd., Jaipur.

Even in the proceeding before the ld. CIT(A) they have considered the contention and evidence placed on record but were not being correct it was not accepted. Apart from these contention she also submitted the following submission in support of the orders of the lower authority; “I. ISSUE: ADDITION ON ACCOUNT OF LONG-TERM CAPITAL GAIN Rs. 38,56,889 1. Revenue's Objection to Claim of Agricultural Land: The assessee claimed that the land sold was agricultural and hence exempt under Section 2(14) of the Income Tax Act, 1961. The Assessing Officer and CIT(A) rightly treated the land as a 'capital asset', taxable under LTCG, based on the following - The lands are within 4 km of municipal limits. - The population of the municipality (Samalkha) exceeds 10,000, hence fulfilling the condition of Clause (b)(ii) of Section 2(14)(iii). - Assessee's reliance on Google Maps and downloaded census data is not admissible as conclusive evidence under Rule 46A.

2. CIT(A)'s Findings (Summarized) : - CIT(A) admitted that assessee submitted municipal population and distance data from Google sources. - However, CIT(A) also considered official maps issued by Town Planning Authority (dated 05.10.2005) and remand report, holding that the land is within proximity of notified limits. - CIT(A) rightly observed that the assessee failed to discharge onus to prove land falls outside the notified municipal area and below population thresholds. - The land in Village JorashiKhalsa was held to be capital asset without assessee giving concrete rebuttal.

Shiva Corporation (India) Ltd., Jaipur.

- Not reliable or conclusive; official town planning maps relied by CIT(A) prevail - No certificate from municipal authority provided. Census data is general and not specific to notified limits. - All fact-specific and distinguishable, In this case, land falls within 4 km and municipality has >10,000 population, clearly attracting capital asset status. - The said notification was properly considered by CIT(A). However, once the distance and population criteria are met, exemption cannot be claimed. II. LEGAL POSITION AND CASE LAW DISTINGUISHED - The assessee has relied on Anthony John Pereira [2020] and Kulwant Singh [2024], but both are distinguishable. - In present case, CIT(A) has relied on authenticated maps and held that land is within 4 km, and the municipality has over 39,000 population (Samalkha), clearly attracting capital asset status. - As held by Hon'ble ITAT in DCIT v. Dinesh Kumar Jain [ITA No. 561/JP/2019], 'Google map and self-declared population cannot override official notifications and maps issued by Planning Authorities.' III. RULE 46A VIOLATION - The assessee's evidence (Google maps, web-screenshots) is additional evidence under Rule 46A. - No prior permission was sought for admission. - Hence, CIT(A) erred in even partly relying on such material. IV. PRAYER In view of the above, it is respectfully prayed that the Hon'ble Bench may: - Uphold the findings of the Assessing Officer and the CIT(A). - Confirm the treatment of the impugned land as capital asset. - Dismiss the appeal of the assessee in total.”

8.1 The ld. DR also vide letter dated 17.07.2025 filed the rebuttal on the submission filed by the ld. AR of the assessee. The submission of the ld. DR deals with the following submission on the issue;

At the outset, it is respectfully submitted that the assessee has failed to discharge its statutory onus to conclusively prove that the lands sold

Shiva Corporation (India) Ltd., Jaipur. during the year were "agricultural land" within the meaning of Section 2(14)(iii) of the Income-tax Act, 1961. The CIT(A) has rightly upheld the addition based on:

Proximity of land to municipal limits (within 4 km).

Absence of conclusive evidence supporting population claim.

Introduction of official municipal maps contradicting assessee's Google map data.

II. Rebuttal of Key Contentions of the Assessee:

The assessee has relied upon Google Maps and self-generated distance estimates. However, as held by multiple judicial precedents, Google Maps cannot be treated as conclusive legal evidence.

The official municipal map of Samalkha, relied upon by CIT(A), is signed by the competent Town Planning Authority and carries far greater evidentiary value than Google data.

In CIT v. Subha Tripathi (2013) 34 taxmann.com 286 (Jaipur Trib.), even where land fell within 8 km due to expansion of municipal limits, the Tribunal held such land to be a capital asset.

The land at Garhi Jaju falls within 2 km of municipal limit, as per authenticated municipal map-this is sufficient to qualify as a capital asset under Section 2(14)(iii)(b).

The population data cited by the assessee pertains to the 2011 census, but the relevant date for determining capital asset status is date of sale, i.e., F.Y. 2014-15.

The assessee has not produced any official population certificate issued by a competent authority or cross-verified census extract as admissible u/s 46A of the IT Rules.

Moreover, the onus to rebut the official record/map was not discharged by the assessee. In Satya Dev Sharma (2014) 46 taxmann.com 149 (Jaipur Trib.), the Tribunal held that date of notification and actual

Shiva Corporation (India) Ltd., Jaipur. municipal limits are relevant-not just the assessee's claimed distance or population.

III. On Evidentiary Value of Revenue Certificates:

The assessee has produced certificates from Revenue Authorities which are not in the prescribed format, are not contemporaneous, and do not conclusively certify land classification under Section 2(14).

It is well-settled that certification must be specific and unambiguous. Mere absence of municipal tax collection or cultivation use is not sufficient to escape capital gain liability.

IV. On Misplaced Reliance on Case Laws:

In Anthony John Pereira (2020) 115 taxmann.com 368 (Bom HC), the Tribunal relied on unrefuted population certificate. In present case, the certificate is disputed and not conclusive.

In Kulwant Singh v. ITO (2024) (Chandigarh Trib.), land was held to be outside municipal limits and certificate was based on government notification. In present case, official municipal map proves otherwise.

V. On Jurisdiction and Natural Justice:

The assessee's objection that the CIT(A) relied on the municipal map for the first time is incorrect, as the map is publicly notified and carries official seal of competent planning authority.

Moreover, the assessee had adequate opportunity during remand and did not seek cross-verification or file cogent rebuttal.

VI. Conclusion:

In light of the above, the following may be respectfully submitted:

The assessee has failed to prove that the lands were outside the prescribed distance or that the population was below the statutory threshold as on the date of sale.

The onus lies squarely on the assessee to establish exemption from capital asset status, which it has not discharged.

Shiva Corporation (India) Ltd., Jaipur.

The official municipal map, coupled with lack of verifiable population proof, clearly supports the treatment of land as capital asset. The addition of ₹38,56,889/- u/s 45 on account of LTCG has rightly been upheld by the Ld. CIT(A), and deserves confirmation. Prayer It is humbly prayed that the appeal of the assessee be dismissed and the order of the ld. CIT(A) confirming the addition of Rs. 38,56,889/- under LTCG be upheld in full. 9. We have heard the rival contentions and perused the material placed on record. The bench noted that vide ground no. 1 & 1.1 the assessee contends that the land sold by the assessee being not capital assets not liable to charged as capital gain and thereby the assessee challenges additions of Rs. 38,56,889/- made by Ld. AO under the head “long term capital gain” by treating the agriculture lands sold by assessee as urban and capital asset within the meaning of Section 2(14) and that land duly falls under the category of agriculture land being situated beyond the prescribed municipal corporation of tehsil – Samalakha, therefore the addition so made required to be deleted.

Since the apple of discord in this case is to decide as to whether the land sold by the assessee is capital assets or not, while examining that we need to have a look of the definition

Shiva Corporation (India) Ltd., Jaipur. provided in the Act, section 2(14) deals with the definition of capital assets which reads as under :

(14) "capital asset" means—

(a) property of any kind held by an assessee, whether or not connected with his business or profession; xx xx xx

(iii) agricultural land in India, not being land situate—

(a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand; or (b) in any area within the distance, measured aerially,—

(I) not being more than two kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten thousand but not exceeding one lakh; or (II) not being more than six kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than one lakh but not exceeding ten lakh; or (III) not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten lakh.

Explanation.—For the purposes of this sub-clause, "population" means the population according to the last preceding census of which the relevant figures have been published before the first day of the Shiva Corporation (India) Ltd., Jaipur. previous year; As per section 2(14) which define capital assets exclude agriculture land, however, the agriculture land falling within the parameters mentioned clause (iii) of section 2(14) is treated as capital asset. While examining as to whether particular land is agriculture or not, we have to consider two factors namely (i) distance from the municipal limit and (ii) population of that area according to last preceding census. In the instant case, the land is located in the Villages GhariJaju and JorashiKhalasa and population of both the villages is less than 10,000, as is submitted in the written submission. Thus, the case of assessee does not fall in sub-clause (a) of clause (iii) of section 2(14) of the I.T. Act.

Record also reveals that population of Tehsil Samalakha is 39000 and accordingly it is not falling in limb (II) or limb (III) of sub-clause (b) of clause (iii) of section 2(14), as the population is below one lakh. As regards, limb (I) is concerned, as is evident that the aerial distance of these villages are 4.32 Kms. and 3.58 Kms. from Samalakha Municipality Corporation and moreover the AO himself has observed that the land is situated within circumference of 4

Shiva Corporation (India) Ltd., Jaipur. Kms. of Municipal Corporation of Tehsil Samalakha. Accordingly, both the lands are not covered within the purview of limb (I) as the distance limit in this limb is of 2 Kms. Accordingly, both the impugned lands have been rightly treated as not the ‘capital asset’.

Thus, considering that provision of section 2(14) read with the explanation as provided for considering the population while considering the issue while considering the fact that whether particular land is agriculture land or not, one has to examine two factors namely (i) the population of such area and (ii) distance of area from municipal limit. It is seen that as per the explanation below aforesaid clause (iii), the population has to be seen as population according to last preceding census of which relevant figures have been published before the first day of previous year.

In the instant case, previous year starts from 01.04.2014. Thus, census statistics of Census 2011 has to be considered for this purpose. Record reveals that population of village GhariJaju is 2555 and of village JorashiKhalasa is 3879. Same is not in dispute.

In any case the population of both the villages is well below 10,000. Thus, as per sub-clause (a) of clause (iii) of section 2(14), if the land is located within municipal limit etc. or the population of the area exceed 10,000, the land will be considered as ‘capital

Shiva Corporation (India) Ltd., Jaipur. asset’ without any further detailing about the distance of the land.

In the instant case, as the population of both the villages is below 10,000, accordingly, the impugned lands in these two villages are not covered within sub-clause (a) of clause (iii) of section 2(14) of I.T. Act. It is seen that population of Municipal Committee of Samalakha is 39,000. Thus, population of Municipal Committee of Samalakha being less than 1 lakh, therefore provisions of limb (I) of sub-clause (b) of clause (iii) of section 2(14) will be for consideration and limb (II) and (III) will not come into play when seeing the distance from Samalakha. On perusal of assessment order passed by ld. AO, we noticed that the ld. AO has observed at para 4 of the order that ‘both the villages are situated within the circumference of 4 Kms., of the Municipal Corporation of Samalakha’. The ld. AR of the assessee has also submitted in its written submission which are supported by google maps that aerial distance of Samalakha Municipality from GhariJaju is 4.32 Kms. and from JorashiKhalasa it is 3.58 Kms. Thus, the distances mentioned by ld. AR and also mentioned by ld. AO in the assessment order broadly match with each other. We see that though there are some marginal variations regarding the distance, but nonetheless it is clear that none of the above details have Shiva Corporation (India) Ltd., Jaipur. shown these two lands are within 2 Kms. from the local limit of Municipality of Samalakha, so as to cover the land within limb (I) of sub-clause (b) of clause (iii) of section 2(14) of I.T. Act. Therefore, we are of the considered view that these impugned lands are also not hit by provisions of limb (I) of sub-clause (b) of clause (iii) of section 2(14) of I.T. Act. Thus, if we see the position of land with reference to Panipat than as per the details the population of Panipat as per Census-2011 is 6,23,571 and accordingly as the population was less than 10,00,000, the matter has to be considered in limb (II) of sub-clause (b) of clause (iii) of section 2(14) of I.T. Act. The distances of both the villages have been shown to be 10.96 and 12.01 Kms. respectively whereas the land, to be treated as capital asset by invoking the provisions of limb (II) of sub-clause (b) of clause (iii) of section 2(14) of I.T. Act, should be within 6 Kms from the local limit of any Municipality. Therefore, these lands are not covered under the aforesaid limb (II) also.

The ld. DR in its objection against claiming the land as agriculture land has mentioned as follows:

“1. Revenue's Objection to Claim of Agricultural Land:

Shiva Corporation (India) Ltd., Jaipur. The assessee claimed that the land sold was agricultural and hence exempt under Section 2(14) of the Income Tax Act, 1961.

The Assessing Officer and CIT(A) rightly treated the land as a 'capital asset', taxable under LTCG, based on the following - The lands are within 4 km of municipal limits.

- The population of the municipality (Samalkha) exceeds

10,000, hence fulfilling the condition of Clause (b)(ii) of Section 2(14)(iii).

- Assessee's reliance on Google Maps and downloaded census data is not admissible as conclusive evidence under Rule 46A.”

As regards, third point of objection for admitting google map and downloaded Census data as additional evidence is concerned, we see that the ld. CIT(A) has rightly concurred with the submission of ld. AR that these data are in public domain and we see no infirmity in the finding of ld. CIT(A) for admitting these evidence. The ld. DR at point 1 & 2 submits that the aforesaid land is fulfilling condition of sub-clause (b) as the population of Samalakha exceed 10,000 and the lands are within 4 Kms. of Municipal limit. We have already discussed this issue in the earlier paras. The population of Shiva Corporation (India) Ltd., Jaipur. Samalakha exceed 10,000 and is below 1 lakh (more particularly 39,000 as submitted). Thus it is clear that the land will come under consideration in limb (I) of sub-clause (b). Even as per ld. DR the land is within 4 Kms. of municipal limit whereas for any land to be covered within limb (I) is should be situated not more than 2 Kms. from the limit of municipality. Therefore, even as per argument of ld. DR, the impugned lands are not covered within any limb of sub- clause (b), so as to treat the land as capital asset.

At this stage we agree with the ratio of decision in the case of DCIT Vs. Dinesh Kumar Jain, so cited by ld. DR that google map and self-declared population cannot override the official notifications and maps issued by Planning Authorities. However, we have noticed that revenue has not furnished any official notification of population and any maps issued by Planning Authorities contradicting the details so given by ld. AR. Moreover, record reveals that that population of Samalakha and Panipatso taken in consideration is the population as per Census 2011, as mentioned in the government website of Municipal Corporation of Panipat and population of both the villages is also not self-declared but taken from website. Considering the facts of the case, the Shiva Corporation (India) Ltd., Jaipur. impugned land in the aforesaid villages are not covered in the exception provided in clause (iii) of section 2(14) for treating these lands to be ‘capital asset’. Accordingly, we hold these two lands to be agriculture land and the addition made by ld. AO treating them to be capital asset, is not justified and thereby we direct the ld. AO to delete the addition of Rs. 38,56,889/-. In the light of the discussion so recorded herein above Ground No. 1 and 1.1 raised by the assessee stands allowed.

In the result, appeal of the assessee stands allowed.

Order pronounced in the open Court on 21/08/2025.